R v Taylor

Case [2016] QSC 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v Taylor [2016] QSC 116

PARTIES:

R
v
TAYLOR, Tyson John

(applicant)

FILE NO/S:

Indictment No. 473 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application filed on 29 April 2016

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

3, 4, 5 and 6 May 2016

JUDGE:

Burns J

ORDER:

Application dismissed on 6 May 2016

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – VOLUNTARY STATEMENTS – VOLUNTARINESS – GENERALLY – where the applicant was charged on indictment with attempted murder and murder – where the applicant applied pursuant to s 590AA of the Criminal Code 1899 (Qld) to have statements made by him to covert police operatives excluded on the grounds of lack of voluntariness – where the admissions were obtained by an undercover police operation – where “scenario evidence” was gathered by the undercover police – whether the admissions were made voluntarily.

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – POLICE INTERROGATION – DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS – PARTICULAR CASES – where the applicant was charged on indictment with attempted murder and murder – where the applicant applied pursuant to s 590AA of the Criminal Code 1899 (Qld) to have statements made by him to covert police operatives excluded in the exercise of judicial discretion because of unfairness – where the admissions were obtained by an undercover police operation – where “scenario evidence” was gathered by the undercover police – whether the admissions ought be excluded in the exercise of the court’s discretion on the ground that it would be unfair to admit them in evidence against the applicant at his trial.

Criminal Code 1899 (Qld), s 590AA
Criminal Law Amendment Act 1894 (Qld), s 10
Police Powers and Responsibilities Act 2000 (Qld), Ch 11

Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67, cited
Collins v The Queen (1980) 31 ALR 257; [1980] FCA 72, cited
Cornelius v The King (1936) 55 CLR 235; [1936] HCA 25, cited
Director of Public Prosecutions (Vic) v Ghiller (2003) 151 A Crim R 148; [2003] VSC 350, cited
Donai v The Queen [2011] NSWCCA 173, cited
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46, cited
Lauchlan v Western Australia [2008] WASCA 227, cited
MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, cited
McDermott v The King (1948) 76 CLR 501; [1948] HCA 23, followed
R v Cowan (2013) 237 A Crim R 388; [2013] QSC 337, cited
R v Cowan; R v Cowan; Ex parte Attorney-General (Qld) [2015] QCA 87, followed
R v Favata [2004] VSC 7, cited
R v Jelicic [2016] SASC 57, cited
R v Karakas (Ruling No 1) [2009] VSC 480, cited
R v Lee (1950) 82 CLR 133; [1950] HCA 25, cited
R v…

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Details
AGLC
R v Taylor [2016] QSC 116
Case
[2016] QSC 116
Decision Date

CaseChat Overview and Summary

The applicant, Taylor, was charged with attempted murder and murder and applied under s 590AA of the Criminal Code 1899 (Qld) to have statements made to covert police operatives excluded from evidence on the grounds of lack of voluntariness. The court was required to decide whether the admissions made by Taylor were voluntary and whether it would be unfair to admit them as evidence against him at his trial. The court heard evidence from five witnesses, all police officers involved in the covert operation. The covert operation involved 19 police officers from Queensland and Victoria and was carried out in Queensland, New South Wales and Victoria. Fourteen scenarios were enacted between 14 November 2013 and 5 February 2014. The operation was not intended to be a "controlled operation" within the meaning of Chapter 11 of the Police Powers and Responsibilities Act 2000 (Qld) and, accordingly, no authorisation pursuant to those provisions was sought or, in the event, was necessary. The covert operatives were not to engage in any unlawful activities. The court found that the admissions made by Taylor were voluntary and that it would not be unfair to admit them as evidence against him at his trial. The application to exclude the evidence was dismissed.

Orders

Orders of the court

Application dismissed on 6 May 2016

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

These, then, are my reasons for dismissing the application to exclude the evidence obtained in consequence of the covert operation.The evidence on this application Five witnesses, each of whom was a serving police officer, were called by the prosecution to give evidence on the hearing of the application. They were:(a)Detective Sergeant Southey – At the time of the covert operation, DS Southey was attached to the Covert Operations Unit, Intelligence Counter Terrorism and Major Events Command (“Covert Operations”) in Brisbane. As the controller for the operation, he formulated 14 separate scenarios and allocated the necessary human and other resources to implement them. He also liaised with the Homicide unit. After each scenario was “played out”,[1] DS Southey met with the covert operatives to plan any necessary modifications to the next scenario, and this pattern was followed until the final scenario was concluded;(b)Brad – The person known to the applicant as “Brad” was an undercover police officer attached to Covert Operations at the time of the operation. He reported directly to DS Southey who briefed him at the commencement of the operation, and subsequently. He knew that the applicant was a “possible suspect for [the] murder”[2] and that he was unemployed and living out of his car. He understood that his initial task was to attempt to befriend the applicant and “gain his trust”.[3] Apart from his initial contact with the applicant, Brad recorded all of the conversations between them that took place in Queensland. When in New South Wales, he made contemporaneous written notes of their conversations. There was no dispute as to the accuracy of his recollection regarding those conversations as aided by his notes;(c)Mark – An officer from Covert Operations posed as the head of the crime syndicate and was known to the applicant as “Mark”. In this role, Mark met with the applicant at the Stamford Plaza Hotel on the evening of 4 February 2014 and, during the second of two conversations that evening, a series of admissions were made by the applicant regarding the murder; (d)Mal – The person known to the applicant as “Mal” was another police officer who was attached to Covert Operations at the time of the operation. His role was to act as a “cleaner” who was responsible for locating and then disposing of any remaining evidence of the alleged offences. In this capacity, Mal participated in a “drive around” on 5 February 2014 with the applicant as well as Brad that resulted in the applicant making further admissions about the murder and a series of admissions about the attempted murder; and(e)Detective Sergeant Lawler – DS Lawler of the Dutton Park Criminal Investigation Branch was one of the principal investigating officers with respect to both the attempted murder and the murder. He liaised with officers attached to the Homicide unit as well as Covert Operations.[1]T. 1-18.[2]T. 1-30.[3]T. 1-30. The applicant also gave evidence on the hearing of the application, and was cross-examined. Although his evidence is considered in more detail later, he maintained that the admissions to the covert operatives were falsely made by him. He swore that he was pressured into thinking that they believed he had committed the offences and that the only way he could gain membership of the crime syndicate and secure protection against what he described as “harassment” by the police was to advance a version consistent with that belief. He said that he was in need of the income that membership of the crime syndicate would provide and that he believed that both he and his family would be in danger if he did not tell the covert operatives what he thought they wanted to hear.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

By the time the covert operation commenced, the police had exhausted all conventional lines of enquiry in the course of their investigation over the preceding six months. By then, both Stewart and the applicant were suspects with respect to both of the alleged offences, but the police had insufficient evidence to charge any person with respect to either offence.The covert police operation The covert police investigation involved 19 police officers from Queensland and Victoria and was carried out in Queensland, New South Wales and Victoria. Fourteen scenarios were enacted between 14 November 2013 when contact was first made with the applicant and 5 February 2014 when the applicant was arrested. As these scenarios progressed, it would have become obvious to the applicant that he was being asked to participate in what was portrayed as criminal conduct. Only relatively few details regarding the alleged offences were provided by the Homicide unit to Covert Operations but a criminal intelligence profile with respect to the applicant was amongst the information that was passed on. Before the covert operation commenced, a decision was made for the covert operatives not to engage in any unlawful activities.[9] As such, the operation was not intended to be a “controlled operation” within the meaning of Chapter 11 of the Police Powers and Responsibilities Act 2000 (Qld) and, accordingly, no authorisation pursuant to those provisions was sought or, in the event, was necessary.[9]T. 1-17. As touched on already, Covert Operations knew that the applicant was unemployed and living out of his car and the scenarios were devised with these circumstances in mind.[10] In particular, they were designed to exert the “most pressure on him to become part of the [criminal] organisation by the use of inducements of money”, and sums of money were in fact paid to him over the course of the operation.[11] Otherwise, it was known that the applicant was a suspect with respect to the murder and that he had a connection to Stewart who was also a suspect.[10]TT. 1-20, 1-21.[11]T. 3-21.Initial contact Acting on information obtained from the criminal intelligence profile, the applicant was surveilled over a period of weeks before an undercover female police officer posing as a person conducting a market survey made contact with him on 14 November 2013. She approached the applicant with an offer to complete the survey in exchange for a free buffet meal at a local Golf Club and the applicant agreed. On the evening of 25 November 2013, the applicant attended at the Coolangatta and Tweed Heads Golf Club for his free meal and, while there, Brad approached him. They struck up a conversation. The applicant told Brad that he was undertaking a course to become a security guard. He mentioned that he hoped to get “four days a week work”[12] as a patrol car driver by Christmas. He also mentioned that he “had been having dramas with money”.[13] Later in the evening, the applicant told Brad that he had been issued with a traffic infringement notice because his vehicle had a cracked windscreen. The applicant asked Brad about his employment. Brad told him that he did “odd jobs for a fellow, pickups and deliveries and whatnot”.[14] Brad said that it was “pretty easy work and the pay is pretty good”.[15] He said that the “boss is good”[16] but that another employee he was working with was “not working out”.[17] Brad spoke about the importance of respect and loyalty before asking the applicant whether he would be interested in any “cash in hand work if it came up”,[18] and the applicant indicated that he was. The applicant was told that the work would consist of “mainly collects and deliveries, [some] security type work, meetings, a little bit of everything really” and “nothing too hard or risky”.[19] Brad then asked for, and received, the applicant’s mobile telephone number and promised to speak to the “boss”. Within a couple of days, Brad made contact with the applicant to offer him some work.[12]T. 1-31.[13]T. 1-31.[14]T. 1-31.[15]T. 1-31.[16]T. 1-31.[17]T. 1-31.[18]T. 1-32.[19]T. 1-32.The first scenario