R v Tahiata (No 2)
[2020] QSCPR 9
•3 June 2020
SUPREME COURT OF QUEENSLAND
CITATION: R v Tahiata (No 2) [2020] QSCPR 9 PARTIES: R
(respondent)
v
TUHIRANGI-THOMAS TAHIATA
(applicant)FILENO: Indictment No 1712 of 2018 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: Orders made on 24 January 2020, reasons delivered on 3 June 2020 DELIVERED AT: Brisbane HEARINGDATE: 17, 20, 22, 23, 24 January 2020 JUDGE: Davis J ORDER: The application is dismissed. CATCHWORDS: CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – VOLUNTARY STATEMENTS – INDUCEMENT – GENERALLY – where
the applicant was charged with two counts of murder – where the applicant applied to exclude evidence of confessionary statements made by him – where the applicant alleged that his statements were not voluntarily made in that they were induced by a promise offered by police – where the applicant alleged he was offered a “big discount” on sentence by police – where the promise was alleged to have been made while the police recording device was off – where the initial confession was also not recorded – whether the confessionary statements were made voluntarily or were induced – whether evidence of the confessionary statements should be admitted at trial
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – POLICE INTERROGATION – DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS – GENERALLY – where
the applicant was charged with two counts of murder – where the applicant applied to exclude evidence of confessionary statements made by him on discretionary bases – where police failed to comply with s 436 and s 437 of the Police Powers and
Responsibilities Act 2000 – where the applicant alleged he was
offered a “big discount” on sentence by police – where the applicant alleged that he was affected by cannabis while being interviewed by police – where the applicant also alleged he was fatigued and denied food and water while being interviewed by police – whether the admission of the evidence at trial would be unfair in all the circumstances
Criminal Code, s 2, s 7, s 8, s 293, s 300, s 302
Criminal Law Amendment Act 1894, s 10
Police Powers and Responsibilities Act 1997, s 103, s 104 Police Powers and Responsibilities Act 2000, s 322, s 423, s 431, s 436, s 437, s 438, s 439, schedule 6Police Powers and Responsibilities Regulation 2012, schedule 9
Ajodha v The State [1982] AC 204, cited
Bunning v Cross (1978) 141 CLR 54, followed
Carr v The Queen (1988) 165 CLR 314, cited
Cleland v The Queen (1982) 151 CLR 1, cited
Duke v The Queen (1989) 180 CLR 508, cited
Foster v The Queen (1993) 67 ALJR 550, citedGiorgianni v The Queen (1985) 156 CLR 473, cited Ibrahim v The King [1914] AC 599, cited McDermott v The King (1948) 76 CLR 501, cited
McKinney v The Queen; Judge v The Queen (1991) 171 CLR 468, followed
Police v Dunstall (2015) 256 CLR 403, followed
R v Burt [2000] 1 Qd R 28, cited
R v Cowan; Ex parte Attorney-General (Qld) [2016] 1 Qd R 433, cited
R v Duong [2002] 1 Qd R 502, cited
R v Faumuina [2004] QSC 264, followed
R v Lee (1950) 82 CLR 133, cited
R v McMillan (2010) 204 A Crim R 98, followed
R v Pham [2004] NSWCCA 190, cited
R v Purnell [2012] QSC 60, followedR v Smith (2003) 138 A Crim R 172, followed
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, followed
R v Swan [2013] QCA 217, cited
R v Walbank [1996] 1 Qd R 78, cited
Sinclair v The King (1946) 73 CLR 316, cited
Smethurst v Commission of Police [2020] HCA 14, cited
Tofilau v The Queen (2007) 231 CLR 396, applied
Van der Meer v The Queen (1988) 62 ALJR 656, citedCOUNSEL: C Minnery for the applicant
D Meredith with D Kovac for the respondent
SOLICITORS: Fuller & White Solicitors for the applicant
Office of the Director of Public Prosecutions (Qld) for the respondent
The accused, Tuhirangi-Thomas Tahiata, who was the applicant to exclude evidence, was charged on indictment:
(a)that on 24 January 2016 at Kingston in the State of Queensland, he murdered Cory Robert Spier Breton (“Breton”); and
(b)that on 24 January 2016 at Kingston in the State of Queensland, he murdered Iuliana Tabita Triscaru (“Triscaru”).
It was alleged by the Crown that the applicant acted in concert with other offenders. They have also been charged with the two murders and a separate indictment has been presented against them. The applicant’s trial commenced before me on 4 February 2020. He was convicted by a jury on both counts of murder on 21 February 2020. The trial of the other alleged offenders is planned to be heard before Boddice J later this year.
The case sought to be led at trial, as it emerged on the application, was that the two victims were lured to a unit at Juers Road, Kingston by a group associated with a drug dealer, Stou Daniels (“Daniels”). Daniels believed that Breton was planning to kill him. The two victims were tortured at the unit and then locked in a large toolbox.
Later, the applicant appeared at the unit. Using the applicant’s vehicle, a Hilux, the applicant, in company with another co-accused, Trent Thrupp (“Thrupp” aka “Punchy”), then drove the toolbox to a body of water in Kingston called Scrubby Creek. The toolbox was then submerged in Scrubby Creek causing the two victims to die of either asphyxia or drowning.
The applicant applied to exclude the evidence of confessions allegedly made by him to police. The existence of the evidence constituted by the alleged confessions is, I understand, the reason for the separate trial of the applicant from his co-accused. In his various statements to police, the applicant implicated both himself and the other persons accused. His confessions are not admissible against them. The Crown proceeded on the basis that a fair trial of the other accused could not be achieved in a trial involving this applicant where the jury would hear his admissions.1
The applicant did not seek the exclusion of all statements made by him to police. Early statements that he made were exculpatory. In the later statements, he withdrew the earlier exculpatory statements and confessed. The initial confession was not electronically recorded. What the applicant sought was the exclusion of all statements from that point onwards.
On 24 January 2020, I dismissed the application, reserving my reasons, which I now give.
Basis of the application
The application was brought on two bases.
Firstly, the applicant submitted that his statements were not voluntary in that they were induced by a promise offered by police. The applicant relied upon s 10 of the Criminal Law Amendment Act 1894 (the CLA) and common law principles.
Consistently with cases such as R v Pham [2004] NSWCCA 190 and R v Swan [2013] QCA 217.
The particulars of the lack of voluntariness were:
1.The police promised the applicant that if he showed them where the dead bodies of the two victims were, the applicant would be given a “big discount” on sentence.2
2.The applicant was under the influence of cannabis as well as being tired, hungry and thirsty (and reliance was placed upon s 423 of the Police Powers and Responsibilities Act 2000 (the PPRA)).3
3.The initial confession was not recorded, in breach of s 436 of the PPRA.4
Section 436 of the PPRA makes oral confessions of an accused inadmissible (subject to ss 437 and 439) if not electronically recorded. It is difficult to see how s 436 is relevant to “voluntariness”, however the argument was put that it was relevant, but on a limited basis.5
Alternatively, the applicant submitted that the evidence should be excluded on discretionary bases. The applicant relied upon the “unfairness ground” and submitted that it would be unfair for the confessionary statements to be admitted against him.6 Factors giving rise to the alleged unfairness were identified as:
1.There was a promise for a “big discount” if the applicant took police to the bodies.7
2.Police interviewed the applicant while he was fatigued.8
3.During the applicant’s interaction with police, he was not provided with food and water.9
4.Police interviewed the applicant while he was under the influence of cannabis.10
5.There had been a breach of s 436 and s 437 of the PPRA.11
As I will explain, the Crown alleged that between two of the electronically recorded interviews the applicant made confessions to the offences. Those statements were not electronically recorded but were confirmed, in substance, in a recorded interview shortly after. The applicant relied, in limited ways, upon ss 436, 437 and 439 of the PPRA in support of both the argument that the evidence was inadmissible and the argument that it should be excluded in the exercise of discretion. The limited reliance placed upon those sections by the applicant is analysed later.
Applicant’s written submissions, paragraph 38; transcript of pre-trial hearing, T 3-106, lines 11-15.
Applicant’s written submissions, paragraphs 54 and 55.
Applicant’s written submissions, paragraphs 41 and 60.
See paragraph [50] of these reasons.
Applicant’s written submissions, paragraph 62.
Applicant’s written submissions, paragraph 62.
Applicant’s written submissions, paragraph 64.
Applicant’s written submissions, paragraph 65.
Applicant’s written submissions, paragraph 63; Police Powers and Responsibilities Act 2000, s 423.
Applicant’s written submissions, paragraph 41.
Section 436 is in these terms:
“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.”
Sections 437 and 439 of the PPRA are also relevant. They provide:
“437 Requirements 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.
…
439 Admissibility of records of questioning etc.
(1)Despite sections 436 and 437, the court may admit a record of questioning or a record of a confession or admission (the record) in evidence even though the court considers this division has not been complied with or there is not enough evidence of compliance.
(2)However, the court may admit the record only if, having regard to the nature of and the reasons for the noncompliance and any other relevant matters, the court is satisfied, in the special circumstances of the case, admission of the evidence would be in the interests of justice.”
The breach of s 436 of the PPRA was submitted by Mr Minnery, counsel for the applicant, in his written submissions, to be relevant in two ways:
1.It went to voluntariness and therefore was relevant to the exclusion of all confessionary statements; 12 and
2.It led to an exclusion of the oral, unrecorded confessions (at least) unless the admission of the confessions (including the oral, unrecorded confessions) was in the interests of justice and then there was a discretion to admit it.13
The applicant always put that the PPRA sections operated, so that if the evidence was rendered inadmissible by s 436, there was a discretion to admit it under s 439. It was never suggested that ss 436, 437 and 439 operated so that any of the evidence was excluded with no discretion to admit it.
In the course of argument, the failure of police to comply with s 437 was raised as an issue which was said to damage the credit of the police evidence as to what occurred
Applicant’s written submissions, paragraph 60.
Applicant’s written submissions, paragraph 41.
in the unrecorded portion (between what I later define as the second and third instalments of the Tunks interview).
Also in the course of argument, ss 436, 437 and 439 emerged as a further basis for discretionary exclusion. Mr Minnery submitted that it would be unfair to admit the unrecorded confessions, or any confessions thereafter, as the police had not followed the procedure prescribed by s 437 and therefore denied the applicant the opportunity to state, and have recorded, what exactly occurred during the period when the recording device was not activated.14
To some extent, the various alternative bases of exclusion overlap. Mr Minnery submitted that when considering the effect of the alleged promise, I should take into account some of the factors said to give rise to the discretion. In other words, if I find that the applicant was under the influence of cannabis or was fatigued or tired or hungry, then I should take those into account when considering whether the promise made by police in fact induced the applicant to make the confessionary statements. It was also submitted that those factors may explain why the applicant reacted to the promise by making admissions to murder.15
Mr Minnery submitted that the making of the promise was relevant to the discretionary exclusion of the evidence. He submitted though that if I did not find that a promise was made, the other discretionary factors would still have to be considered and that they ought to lead to the exclusion of the evidence.
It is necessary to analyse some of the evidence in detail. However, it is firstly appropriate to give a broad description of the applicant’s interactions with police.
The applicant’s interactions with police
The applicant and police first spoke on 10 February 2016. By this time, the two deceased had been reported missing and an investigation was under way. Police suspected that they had been murdered, and the applicant was identified as a person of interest. Police had secured a statement by Lelan Harrington (“Harrington”) who had been at the Juers Road unit and had seen, among other things, the applicant and Thrupp drive off with the toolbox containing Breton and Triscaru.
On 10 February 2016, police intercepted the applicant and took him into custody. He was subsequently charged with the two murders and has been in custody ever since.
Initially, as already observed, the applicant made denials to police. Later he made statements implicating himself, and he took police to the scene where the murders had been committed. Police recovered from Scrubby Creek a large metal toolbox containing the two partially decomposed bodies of the deceased. That toolbox was found at the spot identified by the applicant.
Police officer Martin Hunter first had contact with the applicant.16 Officer Hunter had been detailed to locate persons who had been identified as suspects. The applicant was one such person. Officer Hunter also knew that a search warrant had
I thought this was the point of the exchanges at T 4-91 to T 4-94 (transcript of pre-trial hearing).
But see paragraph [50] of these reasons.
The transcript is part of Exhibit 3 on this application (dated 10 February 2016, 6.25 pm to 6.50 pm).
been issued authorising police to search a house at Tennessee Way in Logan City and the applicant’s vehicle.17
Officer Hunter travelled to the house at Tennessee Way to surveille the premises until other police officers arrived to execute the search warrant.
While Officer Hunter was at the address, he saw the applicant enter his vehicle and drive away. He, with the help of other police officers, intercepted the applicant.18 He then received information from other officers that there was a basis upon which to arrest the applicant upon an allegation of the murder of the two victims. He effected that arrest.19 He transported the applicant back to the Logan Criminal Investigation Branch which shares premises with the Logan Child Protection Unit. Subsequent interviews were conducted in the office of the Child Protection Unit.20 The relevance of that fact will become apparent when understanding the evidence of Detective Sergeant Nicole Tunks, who ultimately interviewed the applicant.
Officer Hunter recorded his conversations with the applicant.21 There was no application to exclude the evidence of that conversation.
Sergeant Nicole Tunks (at that point Acting Sergeant Nicole Tunks) and Senior Constable Christopher Kidd had been detailed to speak to the applicant.
Once the applicant was at the police station, Tunks and Kidd approached him and there was an initial conversation which was electronically recorded. This occurred at
7.15 pm and the conversation appears in the transcript marked “7.15 pm to
7.28 pm”.22 Nothing turns on this conversation, as it is very much introductory, with police explaining that they intended to interview the applicant. There was no application to exclude the evidence of that conversation.
There was then a formal interview between Tunks, Kidd and the applicant which was electronically recorded (“the Tunks interview”). That interview commenced at
7.28 pm and concluded at 11.40 pm,23 although, importantly, the interview was not one continuous process.
The first part of the Tunks interview commenced at 7.28 pm and finished at
8.59 pm.24 In this part of the interview, the applicant denied involvement in the alleged offences. There was no application to exclude the evidence of that part of the Tunks interview.
The second part of the Tunks interview commenced at 9.41 pm and terminated at
10.22 pm.25 During that instalment of the interview the applicant maintained his denials. There was also no application to exclude the evidence of that part of the Tunks interview.
Transcript of pre-trial hearing, T 1-67.
Transcript of pre-trial hearing, T 1-67.
Transcript of pre-trial hearing, T 1-69.
Transcript of pre-trial hearing, T 1-82.
Part of Exhibit 3 on this application.
Part of Exhibit 3 on this application.
The transcript is part of Exhibit 3 on this application and is MFI I on the trial (dated 10 February 2016, 7.28 pm to 11.40 pm).
Page 56 of the transcript.
Page 80 of the transcript.
The third and final instalment of the Tunks interview commenced at 10.55 pm.26 It finished at 11.40 pm.27 In that instalment of the interview the applicant told police that he murdered the two deceased and was acting alone when he did so. The interview concluded with the applicant offering to take police to the bodies. The applicant sought to exclude the evidence of the third instalment of the Tunks interview.
There is no electronic recording of any exchanges between police and the applicant between 10.22 pm and 10.55 pm, although at the beginning of the third instalment, Sergeant Tunks asked the applicant about what occurred during the period that was not recorded. The applicant gave an explanation of what occurred between 10.22 pm and 10.55 pm. His explanation was electronically recorded during the third instalment of the Tunks interview28 and I will analyse those statements shortly.
It is the unrecorded conversation in the period between 10.22 pm and 10.55 pm which is critical. By 10.55 pm, a decision had obviously been made by the applicant to speak to police and confess. That demonstrates a significant shift from the applicant’s attitude to the police investigation evidenced by his denials up to 10.22 pm.
The applicant sought to have evidence of all his statements to police (electronically recorded, written or otherwise) which he made after 10.22 pm on 10 February 2016 excluded from his trial.
After the third instalment of the Tunks interview, arrangements were made for the applicant to show police where the bodies of the deceased were. That exercise was recorded (“the walkthrough”).29 Exclusion of that evidence was sought. As already observed, the bodies were later recovered from the place identified by the applicant.
On 12 February 2016, the applicant was interviewed by officers Phillips and Ovreseth, who were police involved in the investigation (“the Ovreseth interview”). This interview occurred at the instigation of the applicant. The Ovreseth interview commenced at 12.56 am on 12 February and concluded at 3.42 am. The applicant told police that he should not have accepted sole responsibility for the murders and he then proceeded to give another version of what occurred, being one that implicated the co-accused.30
Later that morning at 10.56 am, Sergeant Tunks and Senior Constable Westall attended upon the applicant at the watch house and interviewed him again. That was for the purpose of the applicant providing a formal statement which the police hoped would form the basis of evidence which the applicant may give against co-offenders. Sergeant Tunks interviewed the applicant and while doing so prepared a draft statement on a computer. The conversation was recorded.31 The statement was then printed and signed by the applicant.32 A second statement, clarifying matters in the first, was later signed by the applicant.33 There was an error in dating the first two
Page 81 of the transcript.
Page 119 of the transcript.
Pages 83-85 of the transcript.
The transcript is part of Exhibit 3 on this application (dated 11 February 2016, 12.53 am to unknown).
The transcript is part of Exhibit 3 on this application (dated 12 February 2016, 12.56 am to 3.42 am).
The transcript is part of Exhibit 3 on this application (dated 12 February 2016, 10.56 am to unknown).
Exhibit 15 on this application.
Exhibit 16 on this application.
statements34 but nothing turns on this. A third statement was signed but this just dealt with the issue of the wrong date being placed on the first two.35
The applicant sought the exclusion of the written statements.
There were further interviews and interactions between the applicant and police but it was not planned to lead evidence of them at the trial.
By the end of all the interactions between the applicant and police, the police had secured admissions by the applicant to both murders, including an admission that the applicant acted alone when he did the acts which killed,36 and a later, inconsistent admission that the applicant aided a co-offender (Thrupp) who did the acts which killed.37
The Crown’s position was that the truth was likely to be the version given by the applicant in the Ovreseth interview, which is represented in the applicant’s first written statement. Relevantly, this statement provides:38
“23.I recall Sunday the 24th of January 2016. I received a text message at approximately 9am saying something similar to ‘come to the Tav39 ASAP’. No name came up on my phone just a phone number.
24.At approximately half an hour later I arrived at the Tav in my green Toyota Hilux. I have parked my car inside the complex directly across from the carport to the Tav. l knocked on the door and Trent opened the door. As I walk in I have observed D-Lock, Stou, Puna, Tabita and Nate40 seated on the ‘L’ shaped beige/brown colour, suede material lounge chair.
I have drawn a picture of the Tav and where persons were seated and labelled it diagram one.
25.I have walked past all of them saying hello and followed Trent out to the back patio.
26.Trent said ‘oi brus I really need your car tonight, you are the only one with a ute’.
27.I have then said ‘Sweet as’. Trent has then said ‘'I will need you back here around 7:00pm’. I have then walked around to my car from the side entrance. I didn’t walk back through the house at all.
28.I have gone back home and I had another sleep. We had a family lunch at home at Tennessee Way, Berrinba. We usually have a big islander lunch on a Sunday.
Transcript of pre-trial hearing, T 3-3.
Exhibit 17 on this application.
Criminal Code, s 7(1)(a).
Criminal Code, s 7(1)(c).
With grammatical errors in the original statement remaining.
The unit at Kingston was called “the Tav”.
The co-accused.
29.I drove back to the Tav around 6:l5pm on Sunday the 24th of January 2016. I have then parked my car in the exact same visitor’s carpark.
30.I could hear loud music playing from the address, heavy rock and rap music. I knocked on the door, no one answered. Trent has come around to the side gate and we walked back around to the back patio area. Trent, Stou and I were the only ones in the back patio area at this time.
31.Trent has said ‘'I just stuffed two cunts in the box’. I have then said ‘Who who’. Trent has then said ‘Ssh’ and put his finger to his mouth to Ssh me. Stou has then said ‘What are we going to do man, what are we going to do with them’. Trent said ‘We have to be smart about this, real smart’.
32.Stou said ‘'What about Cleveland’. Trent said ‘We should just chop them up and get rid of their teeth so police can’t identify them’. Stou said ‘Fuck that bro’. Trent said ‘Let’s just take them out to Beauy and drop the box off, let them out and make them walk back. Stou said ‘We should just take them to Cleveland’.
33.Both of them asked ‘How big is your ute tray’. I have said ‘fifteen hundred by twelve hundred’. Trent has said ‘Fuck it’s not long enough’. Stou said ‘Unload your tools bruh’.
34.I have walked around the side, positioned my vehicle on an angle and unloaded my tools in the open carport area including my two tool boxes.
I have drawn a picture of my car and tools and labelled it diagram two.41
35.I have then walked back around to the back patio. When I returned to the back patio it was still just Stou and Trent there.
36.Stou then said ‘We are just going to take them Cleveland, there is going to be five cars going, Son42 your car is going to carry the tool box. There is going to be one car in front of you and three behind you’. I have then said ‘Ok, can we move the Civic then’.
37.Trent and I have then pushed the Civic from the carport to one of the visitor’s carpark across from the unit. We had to push the car as it doesn’t start.
38.I have then reversed my ute into the carport area. Trent has said ‘Stay in your car and blast the music’. I have then looked in my rear view minor and I could see the boys carrying the tool box to my ute. Webby, Stou, Puna and Trent were carrying the tool
Exhibit 18 on this application.
A reference to the applicant.
box. The garage light was on and I could see the shadow of the female cleaning. At this time I could smell bleach.
39.I had my music blasting and as I could see them lifting the tool box. Trent and Puna yelled at me ‘Get the fuck out of your car and help lift the tool box’.
I have drawn a picture of the boys carrying the box and where they were positioned and I have labelled it diagram three.43
40.I could hear loud kicks and screams coming from the tool box even over the top of my loud music. I have lifted the tool box from the back up onto my ute and Webby and Stou pushed it forward onto my ute. I have then observed Trent strapping the tool box down with two yellow ratchet straps that came from the motorbike in the garage.
41.I am aware a large car trailer in the garage contained a silver, red black road bike which was strapped down with the yellow ratchet straps prior to using these straps for the tool box. I looked in the garage and could see that the motor bike was now lying down on the trailer.
42.At this stage I was waiting in my driver’s seat. Trent jumped into my front passenger seat. A silver Peugeot hatchback has pulled up in front and was been driven by a Mouldy guy. I am not sure who he is. He was supposed to hold the gate open. I have then watched him drive the Peugeot out and I could see the car waiting for us on Juers Road. I observed the gates closed and we were stuck behind the gate waiting for it open again.
43.It was just the two of us in my car with the tool box on the back. I have then seen the Peugeot parked up on the left. I have then flashed my light and I started to follow the Peugeot. I have followed them down Juers on to Kington and then veered off to the Logan Motorway. The Peugeot accelerated and we lost them.
44.Just before the Drews Road exit on the Logan Motorway I pulled over, Trent and I waited for approximately twenty minutes for the rest of them to catch up. Trent was trying to call others but no one was answering.
45.A short time later Trent said ‘Let’s just go to Cleveland’. I said ‘No fuck that, these cunts ditched us. We are doing this job for them and they go and ditch us what the fuck. I then said ‘I am going to let them go right now’.
46.Trent said ‘Nah man don’t do that otherwise we will be the next ones’. I said ‘No fuck them let’s just let them go’. Trent has then said ‘hurry up cunt just drive’.
Not tendered before me on this application.
47.I have then continued to drive on the Logan Motorway and exited onto the Pacific Motorway travelling south. I exit at Beenleigh, turn at the round about and enter the Pacific Motorway northbound to head back to the Logan Motorway. At this time Trent said ‘Cunt let’s just go to the Quarry’. I have then said ‘Ok fine then’.
48.At this time Trent was trying to call the others. I think at this time he spoke to D-Lock and Lelan. I have entered the Logan Motorway and exited at Wembley Road exit. I have then turned right onto Wembley road and then left onto Illaweena Street. As we come around the corner I could see the carpark. Trent to1d me the gates were closed. So we turned right and went past the college to see if the other entry was closed.
49.At this time Trent said ‘Fuck let’s just go to Scrubby Creek’.
50.After checking the gate was locked, I turned back around and drove back to the Logan Motorway towards the Gold Coast.
51.I have then taken the Kingston Road exit and drove to Kingston Park Raceway. As I drove along Mudgee Road we looked around and saw mud tracks. We drove down a dirt track however there was a gate. So I reversed back and then drove off to the left.
52.Trent was saying ‘don’t worry Bruh I will do it all’. I just followed the four wheel drive tracks that were already there. I have driven down a track that led to the water. At this time Trent jumped out and yelled ‘This is deep enough here’. I have then turned my car around and Trent guided me back down the track in reverse. I came to a stop once I hit a large rock.
53.Trent cut both the yellow straps with a knife. He always carries a knife. At this stage I was still sitting in my car. Trent has then yelled ‘Oi cunt help me pull it off’. I have then got out of the car and helped him drag it off. It fell a little so it was upright half on my ute and half on the ground. I could hear both of them yelling from within the box - ‘Get me out of here, Punchy, Punchy get me the fuck out of here’. I went back and sat in my driver’s seat.
54.Trent has then jumped on the back of my ute and pushed the tool box with both hands so it has entered the water. I could see it was floating. I could see that Trent entered the water and he grabbed the handle to the tool box and he dragged it out further into the water. At this time the screaming within the box got louder.
55.Trent was yelling ‘Time to die’. Trent then said ‘Oi cunt let off a round to scare them’. I have then removed my home made shot gun from behind my driver’s seat, shot one round into the air. He was laughing. The screams got louder.
56.I have then watched Trent jump on top of the tool box. He yelled ‘Oi cunt it’s not sinking throw me the claw hammer’. I have then grabbed the claw hammer from the back seat. I would describe the claw hammer as red and black in colour with a black head. I threw this hammer out to him.
57.I then observed Trent hitting the claw hammer into the tool box once maybe twice and then he threw it back towards my car, landing in the my back tray. At this stage I closed my tail gate door. I think this hammer is now in my tool box in the back of my ute. I went back and sat in my car. I waited until he jumped back into my car and we drove off.
58.I would describe my shot gun as three quarter inch pipe, about five hundred millimetre in length. One inch pipe that sleeves straight over the three quarter inch with a pipe cap with a screw in the end of it. The casing to the shot gun round remained in my firearm which I later disposed of.
I have drawn a picture of my firearm and labelled it diagram four.44
59.My car got bogged in heavy mud on the way out of the dirt track. In the process of this, Trent has made a phone call to either D-Lock or Lelan asking them for assistance.
60.Whilst waiting Trent was in my driver’s seat and I pushed it. The tyres were spinning so I was getting covered in mud. Eventually we managed to get it free.
61.I drove out to Mudgee Road, drove to Kingston Rail station to look for the Lelan. I then drove back to Mudgee road all the way to the end, turned around and as I was driving back I saw Lelan driving a white dual cab utility with a white canopy. D- Lock was in the front passenger seat. Lelan said ‘How did you guys go’. I have then said ‘It’s done bro’. Lelan said ‘Do you think we can dump some of the rubbish here from the Tav’. I have said ‘Do what you want bro’. I am not sure if there was anything in the back of his utility as I just saw the front.
And later:
“68.On the 3rd or the 4th of February between 5pm and 6pm I received a texted from a number without a name attached. The sms said ‘we have to check on that thing’.
69.I drove to an address at Woodlands Estate off Willow Rise in Waterford West. I then called the number that texted me. At this time I heard a missing person report on the radio mentioning Lelan and others. As a result of the phone call Trent and Stou came out. l have then said ‘I just heard on the radio in
Not tendered before me on this application.
the car, things are getting hot with the three missing persons’. Stou said ‘yeah I know I heard it on the news’.
70.Stou drove off with a female in a blue four wheel drive. Trent said ‘Let’s go check on that thing’. I have then said ‘ok’. A short time later Puna came out and put his shoes on and got in the car.
71.I drove out of Woodlands Estate, on to Kingston road, Station road and entered the Logan motorway, we drove slow so we could look towards to the water. Trent has then said ‘Oh shit it is floating’. I then took the Wembley Road exit, and re-entered the Logan Motorway exiting at the Kingston road exit. I drove back to Mudgee Road.
72.We drove back through the four wheel drive track where we stopped at a pile of bricks and large rocks. We filled my tray with rocks and I drove back down to the water. The area stunk real badly. I slipped and fell in so my shorts were wet.
73.Trent entered the water, Puna and I passed him rocks in order to sink the toolbox again. When Trent jumped back in my car he stunk it out. I stunk it out too. I then drove my car back to Sunshine car wash where I sprayed it with the deodoriser and cleaned the interior of my car.”
If a jury accepted that the applicant made the written statement, and accepted that what was said was true, then there was a clear basis to conclude against the applicant that Thrupp murdered the two deceased as he was the one who did the act which caused the death of the victims (submerging the toolbox)45, while holding an intention to kill them.46 There was also then a basis to convict the applicant as an aider of Thrupp,47 knowing that Thrupp was murdering them.48
The admissibility of the oral and written confessions: the issues
Section 10 of the CLA is in these terms: “10 Confessions
No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”
Prima facie, a confession is a hearsay statement and therefore inadmissible. However, a common law exception to the hearsay rule is a confessional statement made voluntarily.49 As voluntariness is a precondition to the admission of evidence of a
Criminal Code ss 2 and 7(1)(a).
Criminal Code ss 293, 300 and 302(1)(a).
Criminal Code s 7(1)(c).
Giorgianni v The Queen (1985) 156 CLR 473.
Sinclair v The King (1946) 73 CLR 316 at 334 and Cleland v The Queen (1982) 151 CLR 1 at 18.
statement that would otherwise be hearsay, it falls upon the Crown to prove the voluntariness of the statement.50
The common law recognises that a confession induced by threat or promise is not voluntary.51 In McDermott v The King,52 the High Court held that a confession may be involuntary even if it was not “induced by any threat or promise”.53 That would be the case where the will of an accused was overborne by some factor other than a threat or promise.54
Here there is no suggestion that the applicant’s confessionary statements were involuntary for any reason other than they were induced by the alleged promise. As already observed, in raising involuntariness Mr Minnery relied upon the alleged breach of ss 436 and 437 of the PPRA and the applicant’s state of fatigue, drug intoxication and tiredness. However, those factors were not said to be independent of the alleged promise.55 Rather, the failure of the police to act in accordance with ss 436 and 437 were suggestive that police had taken the opportunity to offer the promise while the recording device was not recording. Section 10 of the CLA provides that once a promise or threat is followed by a confession, the confession is “deemed to have been induced” by the threat or promise. Mr Minnery submitted that the applicant’s fatigue, drug intoxication and tiredness explained why he acted upon the promise and confessed to murder. By that submission Mr Minnery did not intend to take on the burden of proving a causal connection between the promise and the confession. His submission was that, in light of the earlier denials, the vulnerabilities of the applicant made it more likely that he would act upon a promise, and therefore make it more likely that a promise had been made.
It is clear that if the statements were not voluntarily made, then they are simply inadmissible and no question of discretion to exclude them arises.
There is no argument that s 10 of the CLA would not apply to strike down the statements as inadmissible if the promise was in fact made. Police officers Tunks and Kidd were clearly “person(s) in authority”.56 Mr Meredith, counsel for the respondent, did not suggest that if the promise was made, then the statements were anything other than involuntary and inadmissible. He did not attempt to discharge the onus cast upon the Crown to show that any promise did not induce the confessionary statements. Therefore, by force of s 10, if the promise was made, the confession is deemed to have been induced by it and the confessions were not voluntarily made and the evidence of them is inadmissible.
The first confession was the one that was not recorded and occurred between
10.22 pm and 10.55 pm on 10 February 2016. Mr Minnery submitted that if the
See generally, Ajodha v The State [1982] AC 204, R v Walbank [1996] 1 Qd R 78 at 82-84 and
McDermott v The King (1948) 76 CLR 501 at 511.
Ibrahim v The King [1914] AC 599 and R v Swaffield; Pavic v The Queen (1998) 192 CLR 159.
(1948) 76 CLR 501 and Tofilau v The Queen (2007) 231 CLR 396 at 411.
At 511-512.
R v Burt [2000] 1 Qd R 28 at 36-37.
Transcript of pre-trial hearing, T 4-84 to T 4-86; applicant’s written submissions at paragraphs 38 and 55.
Tofilau v The Queen (2007) 231 CLR 396 and R v Cowan; Ex parte Attorney-General (Qld) [2016] 1
Qd R 433.
promise was found to have been made, then all confessionary statements thereafter were infected by it and were effectively induced.
For the reasons which appear below, I found that no promise was made. There are various reasons which account for the applicant’s change of tactic from denial to confession. These are explained below.
In case those findings are challenged on appeal, it is necessary to explain what orders I would have made had I found that the initial confession (made between 10.22 pm and 10.55 pm on 10 February 2016) was induced. In those circumstances, I would have found that all further confessions were infected by the inducement and I would have excluded them. If a promise was made, they were all (including the walkthrough) made “after the … promise” and would therefore be “deemed to have been induced” by the promise. 57
Further, if the unrecorded confession was induced by a promise, then it would be reasonable to find that the promise must have played a role in the applicant’s decision to participate in the third instalment of the Tunks interview. The Ovreseth interview and the written statements are partial withdrawals from the confession made in the third instalment of the Tunks interview. The necessity to speak to Ovreseth and make the written statements only arose because of the confessions made in the unrecorded interview and in the third part of the Tunks interview. It would follow that they were all induced by the promise. It would also, if a promise had been made, be unfair to admit those confessions if the initial decision to confess was induced, so the later oral and written statements would also be excluded on the fairness discretion.58
The first issue for determination was a factual one: whether a promise was made to the applicant in the period between 10.22 pm and 10.55 pm on 10 February 2016.
Was the promise made?
Officers Kidd and Tunks both gave evidence before me. As to what occurred between
10.22 pm and 10.55 pm, Kidd said:
“All right. Now, at - when you turned - when the tape says you’re going to terminate the interview, what happens then?---Yeah. So terminated the recording. Mr Tahiata said, ‘So what’s happening now?’ I said, ‘You’re going to be charged.’ At that point in time, he became extremely emotional. He put his -if I can gesture for you - he put his hand in his head -head in his hands on the desk, commenced to cry and said, ‘I did it. I killed them,’ or I think that’s the words that he used. ‘I did it. I killed them.’ He continued to cry and, at that point in time, I sort of was looking at Detective Tunks and I - I can’t recall if I said to her, ‘Can you go and get some interview discs,’ or she said, ‘I’m going to get some interview discs,’ but, either way, it was worked out that we were hoping to interview him further or, at least, capture what’s - what was happening on a recording. Detective Tunks left the room. I sat down in a chair, not directly next to Mr Tahiata, but one - one separate from him, and said something along the lines
Criminal Law Amendment Act 1894, s 10.
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at 189-190.
of, ‘It must be - must be a weight to say that or to get that off your shoulders.’ He continued to cry. He was saying things that I couldn’t quite understand.”59
Tunks’s evidence was:
“Right. Now, what happened - you decide that that’s the end of it and you’re terminating the interview. What happens when you turn off the tapes at 10.22?---Pretty much immediately Tuhi sort of breaks down, puts his face into his hands and like he’s sort of wiping his eyes and he -and he -and he said, ‘I did it. I killed them. I murdered them.’ And at that point I remember - I remember watching him and then I looked and seen the tapes -they’re burning. Then I’ve looked at Chris and then I’ve sort of gone like this ... had a look on my recorder and then told Chris, ‘I need to go and get some interview discs.’”60
As previously mentioned, the Tunks interview was conducted in an interview room in the Logan Child Protection Unit. That is situated upstairs in the building. Other detectives (including Tunks) occupy a lower level. This explains why, when the discs were burning, Tunks not only left the interview room but had to walk to a different part of the building to obtain more discs.61
This evidence of an unrecorded confession clearly gives rise to initial alarm.62 After being interviewed, and making denials for some time, the applicant allegedly confessed to murder while the recording devices were not recording the conversation.
What was put to Kidd in relation to this period is as follows:
“I suggest that you said to my client that he could or he would get a good deal if he cooperates with police?---No.
Now, I suggest that you said to my client in that same period I’ve just described you might get a reduced sentence, or he would get a reduced sentence if he cooperated. So less of a sentence?---No.
Now, I suggest to you that you indicated to him that if he cooperated, that is, cooperated with police, particularly in relation to finding the bodies - so taking police to where the bodies were - he would get a - words to the effect of a good deal?---No.”63
What was put to Tunks was:
“So I suggest to you that in your presence Detective Kidd said to my client something to the effect of, ‘You’ll get a good deal if you assist police.’?---No, that didn’t happen.
Transcript of pre-trial hearing, T 1-87.
Transcript of pre-trial hearing, T 2-37.
Transcript of pre-trial hearing, T 2-39.
See generally, the line of cases commencing with Carr v The Queen (1988) 165 CLR 314; Duke v The Queen (1989) 63 ALJR 139; McKinney v The Queen; Judge v The Queen (1991) 171 CLR 468.
Transcript of pre-trial hearing, T 1-119.
And I suggest to you that occurred before any confession?---No, that didn’t happen.”64 (emphasis added)
In evidence in chief the applicant said:
“All right. And you -and I suppose it’s fair to say that up till that point
- up till 10.22 when the tapes are turned off- - -?---Yes.
- - - you -you essentially told the police you weren’t cooperating, you weren’t helping, you weren’t - - -?---Yep.
- - - doing anything other than what we can see in the tapes?---Yes.
What changed your position? What changed your mind? What was the tipping point?---When he said he’d give me a big discount.
All right. Now, did he say what he meant by a big discount?---No. Did he say numbers or anything like that?---No.
All right. And when he said that, what was the significance of that to you? What did it mean to you?---It was like immunity, I guess.
All right. So when he says something about a big discount, were you still - you told us already about very tired. Were you still tired?---Of course.
When he says something about a big discount, were you affected by cannabis?---Yes.
In what way? Can you tell us about that, please?---He - he was talking to me about a lot of things. We were talking about a lot of things. Like, he was asking me about footy and he was talking to me about what sports I have experience in and all this.
All right?---Like, we were talking about a lot of things.
And this is in the room at 10.22 onwards or is this - - -?---Yes.
- - - before then? Okay. Now, as I understand what you’re saying by way of chronology: tapes go off. Detective Kidd said some things about families’ need some closure, conversation moves on to him talking about a big discount?---Yes.
There’s discussion about all sorts of other things: football and sport and so forth. Is that before the big discount discussion or - - -?--- That’s after.
- - - after or - - -?---After.
So before the discussion about big discount - - -?---Sorry. And be - and before. It was before and after.
I’m sorry. I didn’t understand. Okay. So before the bit where Detective Kidd said words to the effect of ‘Big discount’, was Detective Tunks in the room?---I’m - I’m not quite sure.
Transcript of pre-trial hearing, T 3-27.
Okay. Do you remember her leaving at a particular point?---Yes. All right. What point was that, do you remember?---I’m not sure, sir.
All right. So she wasn’t there the whole time but you don’t know when she left?---No.
Okay?---I just remember Kidd talking to me.
Okay. Now, is your memory that most of the time you were talking with just Kidd alone or was it mostly both of the Detectives or - - -?-
--Yeah. It was -it was mainly Kidd - Kidd - Kidd was asking me all the questions.
All right. Now, when the tapes went off at 10.22, do you remember who was closest to you of the police officers?---Pardon?
Who was closest to you of the police officers? Tapes go off - - -?--- As in like - - -
Where were they in the room? Is a better question?---Kidd was right across from me.
All right. So he’s, sort of, facing right at you?---Yes.
And was your focus on him or both detectives or how did that go?--- I guess it was more on him.
Okay. You have talked a little bit about the process of you hearing this talk about a big discount - - -?---Yes.
- - - and taking the rap for the boys?---Yes.
Can I ask you a little bit about that, please?---Pardon? Can I ask you a little bit about that if I could?---Yes.
So can you explain the reasoning behind taking the rap for other people because of - well, in relation to this discussion about a big discount?--- I was thinking it was going to get everyone out.
So explain that if you could?---Like, I was thinking, like, if I took the rap everyone would be able to go home to their families, I guess.
All right. Were your thoughts clear at this stage?---It was a bit- scattered everywhere.
You know? I was frustrated, was hungry. I just wanted to really just get out. I was telling them, really, anything they wanted to know. You know what I mean?
And in the period leading up to 10.22, do you remember saying to the police anything about, ‘I'm hungry’, or, ‘Can I have some food?’, or anything like that?---Yes.
Can you tell us when or how or - - -?---When we were in the - I think it was at the start when they first brought me in I was telling them
- - -
So you were brought in from the traffic stop before an interview; is that what you mean or - - -?---Pardon?
So before the first interview or - - -?---Yes. Okay?--- [indistinct] before the - - -
So please go on?--------- first.
What did you say [indistinct] what did you do?-- 1 was just saying,
‘I’m a bit hungry’ - - -
Saying - - -?--------- ‘A bit thirsty’.
Saying to whom - - -?--- ‘A bit hungry and thirsty’.
- - - do you remember?--- Pardon?
You said that to whom?--- I don’t remember.
Police officer? Civilian?--- It would have been a police officer.
Okay. But you don’t know male or female or anything like that?--- No.
Rank - I just remember saying, ‘I’m hungry’?--- Okay.
And you say it once or more than once?--- I think it’s maybe once or
twice.
Okay?-- Yeah.
Same person?--- I’m not sure.
Or at separate times or - - -?---I think the second time was to Ms Tunks.
Okay. Do you remember when that was?-- No.
All right. And you don’t remember before first interview? Between the first and second? Anything like that?------------------ No.
Okay. So you’ve, using my words, taken the rap for everybody?--- Yes.
In this break between 10.22 and 10.55?--- Yes.”65 (emphasis added)
Mr Meredith cross-examined the applicant at some length. The line of cross- examination was clearly designed to demonstrate that in the questioning leading up to the end of the second Tunks interview, the applicant told a number of lies which he must have realised police could disprove. He then put this to the applicant:
“MR MEREDITH: What was the thing that you say Kidd said to you?-
--So he was saying about Mudgee Street, that we kind of know that
- - -
Sorry?---He says that - - -
Transcript of pre-trial hearing, T 3-107 to T 3-110.
Speak up. I’m sorry?---He was saying that we kind of know where it is, around those lines, not those exact words, and then he goes, ‘Look, mate, if you can show us where the bodies are, we can give you a big discount.’
Now, who was present?---I think it was just Kidd. I believe it was just Kidd on his own.
So on that basis, Tunks has left the room?---Yes.
Right. See, I suggest to you, Tunks left the room only after you had confessed and said words to the effect, ‘I killed those people’?---No, sir.
So - - -?---She wasn’t there when I con - when I basically took - confessed.
So she’s left the room before you make any - whether true or not, any admission that you did it?---Yes.
Right. See, I put it to you, it was only after you said that, ‘I did it, I killed those people,’ or words to that effect, that she left. Make it very clear?---No.
Right?---No, sir. Sorry.
What happens before she leaves? Going back to page 80, you see the tapes are turned off. Tunks says very - she’s saying- the last thing that’s recorded there:
Yep. I’ll just terminate the interview.
You see that?---Yes.
What happens immediately after that?---I think Tunks leaves the room to go and find discs or something.
So there’s nothing said before she leaves the room?---No. Right. Now - - -?---Not that I remember, anyway.
Now, do you remember yesterday - - - HIS HONOUR: Page?
MR MEREDITH: Is 108, your Honour. No, it’s not in there. Sorry. It’s not in that.
HIS HONOUR: Okay.
MR MEREDITH: It’s in the transcript of the evidence that you gave yesterday. All right. So can - Mr Minnery asked:
Can you explain the reason behind taking the rap for the other people because of- well, in relation to this discussion about a big discount?---I was thinking it was going to get everyone out.
?---Yes.
What did you mean by that?---I thought everyone could go home and I’ll just take the rap for it.
Well - - -
HIS HONOUR: Sorry. What line is this?
MR MEREDITH: The bottom of the page, your Honour. Very last question.
HIS HONOUR: Sorry. Sorry. Yes. I’m sorry. I have it.
MR MEREDITH: Yes. So explain that, if you could. Like - top of the page - next page I’m referring to, your Honour:
Like, I was thinking, like, if I took the rap, everyone would be able to go home to their families, I guess.
?---Yes.
Right. So you then - the motivation, you say, was to take responsibility for everyone else’s actions?---Yes.
And you then tell the police a version of events. Is that correct? Which - - -?---Yes.
Which implicates you, but nobody else?---Yes.
You mention Trent, don’t you, as dropping him off?---Yes. In - in that interview, yes.
Yes. But he never - you asked him a question, did you ever - had he ever murdered anyone, and he says no, and you let him - and you say you’ll - in effect, you say you’ll do it. That’s what you said in the interview?---Yes. In the transcript.
Right?---Yes.
So you were willing to - I’m sorry. The next question:
Were your thoughts clear at this stage?
And your answer:
I was a bit scattered everywhere, you know. I was frustrated, hungry, just wanted to get out. I was really telling them really anything they wanted to know, you know what I mean.
Right?---Yes.
Right. Now, are you saying you were frustrated and hungry so you confessed to this - confessed to this - you gave a confession - whether it’s true or not, you gave a confession to being the only one involved because you were frustrated and hungry?---No. No, sir.
Continuing:
And I just wanted to really - I just wanted to really just get out.
What did you mean by that?---I just didn’t want to - I just wanted to get out of there, I guess, you know what I mean.
Get out of where?---Get out of the police station.
Well, by confessing to two murders, you weren’t going to be released. You knew that, didn’t you?---I don’t remember what I - what I was feeling.
Well, you couldn’t have possibly thought that, could you?---No.
You couldn’t have thought that they were going to let you go after you’ve just confessed to doing two murders?--I don’t know, sir. I’d never been involved in the legal or - or anything to do with police.”66 (emphasis added)
It is necessary to look at what was said before the interview concluded at 10.22 pm and what was said as soon as it recommenced.
Before 10.22 pm, the applicant said that he lent his car to Thrupp and then went four- wheel driving (which he called “forbying”) on the evening of the 24 January 2016 with Tupara Wilson in Wilson’s car and that he had lent his Hilux to Thrupp. 67
Tunks and Kidd then asked the applicant questions about loaning out the Hilux and, in particular, questions about it being insured if it was crashed. This exchange occurred:
“SGT TUNKS: If he crash-- TAHIATA: You won’t--
SGT TUNKS: It gets crashed. I just, just-- TAHIATA: You wouldn’t--
SGT TUNKS: Insurance.
SCON KIDD: Insurance wouldn’t cover it. SGT TUNKS: Insurance wouldn’t-- TAHIATA: Oh if it doesn’t--
SGT TUNKS: Cover it.
TAHIATA: Cover it, well fuckin’ tough shit. You know, get back up, try and do something else, I’ll fix the car. I know how to fix cars.
SGT TUNKS: Where do you think I was going with that? TAHIATA: Oh I don’t care. Just wanna go home.
SGT TUNKS: Alright. Is there anything you wanna say?
TAHIATA: No ma’am. There’s nothing else, I’ve already snitched my mate, so fuckin’ may as well just kill me now.
Transcript of pre-trial hearing, T 4-69 and T 4-72.
Part of Exhibit 3 on this application (dated 10 February 2016, 7.28 pm to 11.40 pm, p 70).
SGT TUNKS: If, I’ll get you to look at the time there, it says ah-- TAHIATA: 22:22.
SGT TUNKS: Yep. I’ll just terminate the interview.” (emphasis added)
The interview then recommenced at 10.55 pm. This exchange occurred:
“SGT TUNKS: The time is 10:55 P-M on Wednesday the 10th of February 2016. Tuhi, if you look up, at that time up on the screen there. Do you agree with that time?
TAHIATA: Yes.
SGT TUNKS: Just um currently in ah, in the interview room at Logan Central Police Station. For the purposes of the recording, I’m Acting Detective Sergeant Nicky Tunks. My rego’s 2-0-1-1-6, and I’m attached to the Logan District C-IB. I’ll get my partner to introduce himself.
SCON KIDD: Yeah, my name’s Chris Kidd, I’m a Detective Senior Constable with the Homicide Investigation Unit, and my registered number is 1-8-8-0- 1.
SGT TUNKS: Now Tuhi, I’ll just get you to state your full and correct name, please.
TAHIATA: Tuhirangi-Thomas Tahiata. SGT TUNKS: And your date of birth? TAHIATA: 16th of August 1991.
SGT TUNKS: Um and just your home address again. TAHIATA: Ah 6 Milbun Street Woodridge 4-double-1-4.
SGT TUNKS: Okay. Before we go any further, I’ll just give you those um cautions again, okay. So before I ask you any questions, I must inform you, you have the right to remain silent. This means you do not have to say anything, answer any question or make any statement unless you wish to do so.
TAHIATA: Mmhmm.
SGT TUNKS: However, if you do say something, it may later be used as evidence--
TAHIATA: Yep.
SGT TUNKS: Do you understand that? You also have the right to telephone and speak to a friend or relative, to inform that person where you are, and to arrange or attempt to arrange for that person to be present during questioning.
TAHIATA: Mmhmm.
In the circumstances of this case, the failure of police to comply with s 437 did not give rise to unfairness. That the specifics of the oral confession were not put to the applicant did not disadvantage him. As already explained, there was ample opportunity given to the applicant during the third instalment of the Tunks interview to allege that a promise was offered.
Although not argued, the failure to comply with s 437 gives rise to public policy considerations independently of any alleged unfairness to the applicant.142 Here, for the reasons articulated at paragraphs [130] and [131] of these reasons, there was no basis to exclude the confessions on Bunning v Cross considerations.
Conclusions
The confessions were voluntarily made. There was no unfairness warranting exclusion and subject to what I have said about ss 436-439 of the PPRA (and the unrecorded confession) it was appropriate to admit all the evidence. For those reasons, I dismissed the application.
Subject to what I have observed about ss 436 to 439 of the Police Powers and Responsibilities Act
2000.
Tofilau v The Queen (2007) 231 CLR 316 at 432, [112].
Bunning v Cross (1978) 141 CLR 54, followed since I made these orders in Smethurst v Commission of Police [2020] HCA 14.
16
4