R v Tahiata

Case [2024] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tahiata [2024] QCA 59

PARTIES:

R
v
TAHIATA, Tuhirangi-Thomas
(appellant)

FILE NO/S:

CA No 59 of 2020
SC No 1712 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 21 February 2020 (Davis J)

DELIVERED ON:

19 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2023; 25 October 2023

JUDGES:

Bowskill CJ and Flanagan JA and Buss AJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – APPLICATION OF PROVISO TO PARTICULAR CASES – where the appellant was convicted of two counts of murder – where a pre-trial s 590AA ruling was made that the Crown was allowed to lead evidence of an off-camera confession by the appellant, which amounted to wrong decision of any question of law – where there was a substantial body of other confessional and corroborative evidence which went to proving the appellant’s guilt – where the appellant was interviewed by police four times and provided a different version of events in each interview – where the third and fourth interviews were consistent with the appellant’s guilt – where there was a significant amount of other documentary and oral evidence which corroborated the versions consistent with the appellant’s guilt – whether, notwithstanding the error of law, no substantial miscarriage of justice actually occurred

Criminal Code (Qld), s 668E(1), s 669E(1A)
Police Powers and Responsibilities Act 2000 (Qld) s 436, s 437, s 439

Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59, applied
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, applied
Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59, cited
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, considered
Huxley v The Queen (2023) 98 ALJR 62; [2023] HCA 40, applied
Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, distinguished
R v Faumuina [2004] QSC 264, cited
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, considered
R v Smith (2003) 138 A Crim R 172; [2003] QCA 76, cited
R v Tahiata (No 2) [2020] QSCPR 9, considered
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, applied
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied

COUNSEL:

A C Freeman and E J Cooper for the appellant
N W Crane for the respondent

SOLICITORS:

Wallace O’Hagan Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. BOWSKILL CJ:  On the basis of my own consideration of the evidence properly received at the trial, I agree with Flanagan JA.

  2. FLANAGAN JA:  On 21 February 2020, after a 14-day trial in the Supreme Court of Queensland at Brisbane before Davis J, a jury found the…

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CaseChat Overview and Summary

The case of R v Tahiata involves the appellant's appeal against his conviction for two counts of murder. The appeal hinges on the contention that the trial judge erred in admitting evidence of an off-camera confession, which violated statutory requirements for recording confessions. The appellant argues that this error led to a substantial miscarriage of justice. The primary legal issue before the court was whether the admission of the off-camera confession, despite being a wrong decision of a question of law, resulted in a substantial miscarriage of justice, thus warranting a dismissal of the appeal under s 668E(1A) of the Criminal Code.

The court reviewed the evidence and concluded that although the trial judge erred in admitting the off-camera confession, the substantial body of other confessional and corroborative evidence strongly supported the appellant's guilt. The court noted that the appellant had provided inconsistent accounts during multiple interviews, but the third and fourth interviews were consistent with his guilt. Additionally, there was significant documentary and oral evidence corroborating these versions. The court applied the principles from previous cases, such as Baini v The Queen and Filippou v The Queen, which hold that an error of law does not automatically result in a substantial miscarriage of justice if the evidence overwhelmingly supports the conviction. In this case, the court was satisfied that the error did not deprive the appellant of a fair chance of acquittal.

Therefore, the court dismissed the appeal, finding that no substantial miscarriage of justice had occurred despite the error in admitting the off-camera confession. The court held that the substantial evidence supporting the appellant's guilt meant that the error did not impact the verdict.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

It follows that the primary issue in this appeal is whether, by reference to the principles discussed below, this Court considers that notwithstanding the error of law, no substantial miscarriage of justice has actually occurred.Relevant background Prior to the commencement of the trial on 4 February 2020, the appellant applied for a pre-trial ruling pursuant to s 590AA of the Criminal Code. The appellant sought the exclusion of evidence of confessions made by him to police including the off-camera confession referred to in ground 1. The exclusion of the confessional evidence was sought on two main bases. First, the appellant submitted that his confessions were not voluntary in that they were induced by a promise offered by police. Secondly, the appellant submitted that the evidence should be excluded on discretionary bases, primarily upon the unfairness ground. Relevantly for the purpose of this appeal, one of the matters relied on by the appellant in relation to the unfairness ground was that there had been a breach of s 436 and s 437 of the PPRA. Section 436 deals with the recording of questioning and mandates that questioning must, if practical, be electronically recorded. Section 437 deals with the requirements for a written record of a confession or admission. The pre-trial hearing was heard over the course of four days. On 24 January 2020, the appellant’s application was dismissed by his Honour and all the confessional evidence, including the off-camera confession, was led at trial. Prior to making this ruling, both counsel had informed Davis J that the reasons for the ruling were not required prior to the commencement of the trial. The trial commenced on 4 February 2020. As already observed, the appellant was found guilty of two counts of murder on 21 February 2020. The appellant filed a notice of appeal on 16 March 2020. The original ground of appeal was that the trial judge erred in failing to exclude interviews and statements (led by the Crown as confessions or admissions) as evidence in the trial. On 3 June 2020, Davis J delivered written reasons for the ruling made on 24 January 2020[3]. In those reasons, his Honour accepted that he erred in permitting oral evidence from a police officer, Detective Sergeant Tunks, as to the off-camera confession. His Honour considered that the oral evidence of the off-camera confession did not constitute a record of the confession for the purposes of s 437 of the PPRA.[3]R v Tahiata (No 2) [2020] QSCPR 9. It is necessary to consider the evidence of the off-camera confession in the context of the Crown case and in the sequence of the appellant’s four interviews with police. The Crown alleged that the appellant acted in concert with other persons who were also charged with the two murders but were tried separately. The Crown’s case was that Breton and Triscaru were lured to a unit at Juers Street, Kingston. A number of persons whom the appellant had known since school resided at this unit, including Trent Thrupp and Lelan Harrington. The unit was often used as a meeting place and was referred to as “the Tav”.

Evidence

Evidence Before The Court

More recently, in Huxley v The Queen[62] Gordon, Steward and Gleeson JJ stated that:“Not every error of law, however trivial, will give rise to a substantial miscarriage of justice. If there has been a misdirection or other error of law the question is always whether there has been a substantial miscarriage of justice.”[62][2023] HCA 40, [44].The Crown’s case and the evidence The Crown opened the case on the basis that although the appellant took sole responsibility for the murders in the third interview, the true version was that told by the appellant in his fourth interview and his primary statement.[63] The Crown’s particulars identified the relevant acts committed by the appellant as follows:1.Putting the toolbox in Scrubby Creek;2.Placing the toolbox on the Green Hilux;3.Driving the vehicle to Scrubby Creek;4.Removing the toolbox from the vehicle at Scrubby Creek;5.Providing Trent Thrupp with a claw hammer;6.Firing a shot in order to silence Triscaru and Breton when the toolbox was placed in the water.[64][63]RB vol 1, page 25, ll 27 – 34.[64]The Crown’s particulars in this form were provided to the jury by the trial judge in the course of the summing up. RB vol 5, page 2317. The relevant acts were slightly re-ordered from the Crown’s particulars as provided at the start of the trial: RB vol 5, page 2228. The Crown submitted to the jury in its closing address that, irrespective of whether they accepted the appellant’s version in the third interview or the fourth interview, in both versions he was “confessing to involvement in their murders”.[65][65]RB vol 1, page 41, ll 5 – 14. The trial judge summed up to the jury in relation to the party provisions of the Criminal Code in relation to both versions. If the jury accepted the version in the third interview as true, they could be satisfied that it was the appellant who did the act (Particular 1) which caused the death of the deceased: s 7(1)(a) of the Criminal Code. Alternatively, if the jury accepted the version in the fourth interview (and the primary statement) as true, the appellant’s criminal liability fell to be considered under s 7(1)(c) of the Criminal Code as aiding Thrupp (Particulars 2 – 6) to commit the offences.[66][66]RB vol 1, pages 78, l 5 – 79, l 26. The Crown called 32 witnesses. The appellant did not give or call any evidence. Approximately seven hours of police interviews with the appellant were played to the jury. It is convenient to commence a consideration of the evidence with the four interviews, as well as the walk-through and the appellant’s signed statements. The original evidence of what the appellant told police in the course of each interview are the relevant recordings. The Court has viewed each of these recordings. Counsel for the appellant accepted that in applying the proviso, the Court should view the recordings for the purposes of assessing the appellant’s demeanour and determining the plausibility of his various versions.[67][67]Transcript (25 October 2023) 1 – 14, ll 17 – 47; cf Pell v the Queen (2020) 268 CLR 123 at 144 – 145, [36] – [39].(a)The first interview

Decision

Reasons for decision

Subsequently, the appellant provided a 79-paragraph statement dated 12 February 2016 (“the primary statement”), as well as two addendum statements.[20] The primary statement contained a version consistent with what he had told police in the course of the fourth interview.[20]Exhibits 58, 59 and 60.A wrong decision of a question of law While the respondent concedes that the trial judge erred in law in ruling that the off‑camera confession was admissible, ss 668E(1) and (1A) require this Court to form its own opinion as to whether there was a wrong decision of any question of law. Sections 436 and 437 of the PPRA provide as follows:“436 Recording of questioning etc.(1)This section applies to the questioning of a relevant person.(2)The questioning must, if practicable, be electronically recorded.Examples for subsection (2)—1 It may be impracticable to electronically record a confession or admission of a murderer who telephones police about the murder and immediately confesses to it when a police officer arrives at the scene of the murder.2 It may be impracticable to electronically record a confession or admission of someone who has committed an armed hold-up, is apprehended after pursuit, and makes a confession or admission immediately after being apprehended.3 Electronically recording a confession or admission may be impracticable because the confession or admission is made to a police officer when it is not reasonably practicable to use recording facilities.(3)If the person makes a confession or admission to a police officer during the questioning, the confession or admission is admissible in evidence against the person in a proceeding only if it is recorded as required by subsection (4) or section 437.(4)If the confession or admission is electronically recorded, the confession or admission must be part of a recording of the questioning of the person and anything said by the person during questioning of the person.437Requirements for written record of confession or admission(1)This section applies if a record of a confession or admission is written.(2)The way the written record of the confession or admission is made must comply with subsections (3) to (7).(3)While questioning the relevant person, or as soon as reasonably practicable afterwards, a police officer must make a written record in English of the things said by or to the person during questioning, whether or not through an interpreter.(4)As soon as practicable after making the record—(a) it must be read to the person in English and, if the person used another language during questioning, the language the person used; and(b) the person must be given a copy of the record.(5)Before reading the record to the person, an explanation, complying with the responsibilities code, must be given to the person of the procedure to be followed to comply with this section.(6)The person must be given the opportunity, during and after the reading, to draw attention to any error in or omission from the record he or she claims were made in the written record.(7)An electronic recording must be made of the reading mentioned in subsection (4) and everything said by or to the person during the reading, and anything else done to comply with this section.”

Ratio Decidendi

Legal Principle Established

Accordingly, the admission of Tunks’ oral evidence as to the off-camera confession constitutes a wrong decision of any question of law for the purposes of s 668E(1) of the Criminal Code.The operation of s 668E(1) and (1A) of the Criminal Code Section 668E(1) and (1A) provide:“668E Determination of appeal in ordinary cases(1)The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.(1A)However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” Section 668E(1) identifies three criteria. As to the second criterion, that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, Gageler J (as the Chief Justice then was) observed in Baini v The Queen[28] by reference to Mraz v The Queen[29] that this criterion “has always been understood to have the effect that ‘if there is a wrong decision of any question of law the appellant has the right to have his appeal allowed, unless the case can be brought within the proviso’”. His Honour further observed that:“… it has always been understood that it is for the respondent and not the appellant to establish to the satisfaction of the court of criminal appeal that the case is within the proviso – that ‘no substantial miscarriage of justice has actually occurred’.”[28](2012) 246 CLR 469, [49].[29](1955) 93 CLR 493, 514. In Filippou v The Queen,[30] French CJ, Bell, Keane and Nettle JJ said that “[a] ‘wrong decision of any question of law’ includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law” and that the question under the second criterion in the New South Wales equivalent of s 668E(l) is “whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law”.[31] Their Honours also said that, where the second criterion applies, “the circumstances in some cases may be such that, despite the judge making ‘the wrong decision of [a] question of law’, the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her” and in that case the proviso will operate.[32][30]Filippou v The Queen (2015) 256 CLR 47.[31]Filippou v The Queen (2015) 256 CLR 47, [13].[32]Filippou v The Queen (2015) 256 CLR 47, [15]; see also [48]. In Simic v The Queen,[33] Gibbs, Stephen, Mason, Murphy and Wilson JJ, by reference to Mraz, observed: “The test thus stated is less favourable to an appellant than that which is applied in cases where there has been a wrong decision of a question of law – cases that would include those in which there has been a misdirection as to the law or in which evidence has been improperly admitted or rejected. Some of the statements of the principle to be applied in cases of that kind are collected in Mrazv The Queen. In such a case, the Crown must establish that if there had been no error the jury would (or must) have come to the same conclusion. According to the test approved in R v Leggatt, the appellant has the burden of showing that the misstatement probably affected the verdict, whereas in the case of an error of law the appeal will be allowed unless the Crown shows that the error did not affect the verdict.”[33](1980) 144 CLR 319, 327.