R v Wicks

[2012] QDC 104

[2012] QDC 104

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE BOTTING

Indictment No 811 of 2011
Indictment No 135 of 2012

THE QUEEN

v.

LEIGH CHRISTOPHER WICKS

BRISBANE

..DATE 17/05/2012

RULING

HIS HONOUR:  In this matter there are two indictments before me bearing the Court's reference 135 of 2012 and 811 of 2011.  The latter indictment charges the accused with about 16 separate counts of either burglary or attempted burglary or some variant thereof.  The former indictment charges him with over 50 charges, again of burglary with or without various circumstances of aggravation, and a few unlawful use matters.

The proceedings before me at the moment are by way of application pursuant to the provisions of section 590AA and they are applications by the accused for rulings that certain evidence sought to be led by the Crown be excluded.

Before going further I should perhaps set out a chronology in respect of this matter, and I should say that I am indebted to counsel for the preparation of the chronology.  I do not propose to refer to every item on it, but to pick out what appear to me to be the salient matters.

On the 3rd of June, 2010, police officers became suspicious that the accused might be involved in a number of burglaries.  This is following the analysis, as I understand it, of some DNA evidence which was  available to them.

On the 8th of June, 2010 police received information that the accused was on the Sunshine Coast and shortly after noon police became confident that they had located his whereabouts in a particular unit.  There was a meeting of police officers at 1 p.m. that day and shortly after that meeting they went to the unit.  They obtained a key to the unit by approaching the manager or owner of the units, and hence were able to enter the units by using no more force than was required to turn a key.  When they entered the unit they found the accused was lying on the floor.  If it wasn't immediately apparent, it certainly soon became very apparent that he had taken heroin and was experiencing the aftermath of the use of that drug. 
Also present in the unit was his then partner who is a witness called by him in this proceeding.

Police officers, on their entry, noticed paraphernalia, as I might call it, relating to drugs.  They arrested the accused on a warrant which had been issued by the parole authorities requiring his return to prison.  They also arrested him, as I understand it, on other charges at the time or shortly after their entry.

One of the officers had on him a tape-recorder.  That recorder was not activated at the time of entering, but about 36 minutes later, at 6 minutes past 2, the recorder was switched on.  By that time the accused had been arrested and handcuffed, as I understand it.  Shortly thereafter he was removed to the Maroochydore Watch-house.  

Prior to that an officer, being part of the party who had arrested the accused, decided to search the premises.  He did so, as I understand it, because he formed a belief that the search was likely to reveal evidence of the commission of offences and that, were the search not to take place forthwith, there was a risk that the evidence might be destroyed or removed or hidden.

As a result of that further search, as I understand it, further items were found which might be thought to relate to drug use or be drugs themselves, and furthermore numerous items which are said to have been stolen property were found.  That property was seized by the police.

At the watch-house that afternoon the accused was charged with a number of offences.  He refused the invitation of police officers to participate in an interview. 

The following day - that is Wednesday the 9th of June - he appeared in the Magistrates Court and was remanded until the 7th of July.  He was remanded in custody.

That afternoon two detectives came to him in order to take samples for DNA analysis, and also to refer further charges against him.  I think it is common ground that at this time the accused was demonstrating significant symptoms of withdrawal from his use of narcotics.

The next day - that is Thursday the 10th of June - the accused again appeared in the Magistrates Court and was again remanded until the 7th of July.

At about 9.25 three police officers - Celebicanin, Candale and Taylor - arrived, and at about 9.35, as I find, they spoke with the accused at the watch-house.  According to them, he then agreed to participate in what has been referred to as a “drive-around” or a “clear-up”.

At about 4 minutes past 10 that day a tape-recorder, which was in the possession of these police officers, was activated, and shortly after that time the accused left the watch-house in the company of the three officers.  He was, as I understand it, at all times shackled and was driven to various addresses in and around Brisbane and made numerous admissions.

They paused for lunch, as I understand it, at the Mount Gravatt Police Station and continued the drive-around in the afternoon.

At shortly before half-past 6 that evening the accused was returned to the Maroochydore Watch-house, he then had in his possession a brochure relating to the Drug Court.  He was issued with notices to appear by Detective Taylor.  The following day three further detectives, McLeod, Honeywood and Prior, arrived at the watch-house, and again had a conversation with the accused during which they say he consented to participate in a further drive around.

At about 5 past 8 he was taken out of the watch-house and the procedure was repeated again the accused made numerous admissions.  The drive around was completed, as I understand it, about half-past 11, he was then taken to the Indooroopilly Police Station and later transported to the Sandgate Watch-house where he was later picked up and returned to the Maroochydore Watch-house.

On Saturday, the 12th of June much the same happened again.  Further officers arrived, had a conversation with the accused, during which they say he consented to accompany them on a drive around.  That commenced at about 7.25, and concluded at about half-past 12.

On the 13th of June the accused was charged with further matters by one of the officers who had driven him around the previous day.  On Monday, the 14th of June 2010, which I understand was the Queen's Birthday holiday, further officers arrived, again spoke with the accused, during which they say he consented to be taken out on a drive around, and much the same activity occurred and again further admissions were made.

The accused again appeared in Court on the 15th of June, and on the 16th of June,  he was taken to the Arthur Gorrie Correctional Centre.  On the 19th of July 2010, Officer McLeod obtained a post-search approval from the Magistrates Court in respect of the search which had been effected on the 8th of June 2010.

As I have already said, these proceedings are by way of an application pursuant to the provisions of section 590AA.  In those circumstances, my usual practice is not to descend into a detailed analysis of the evidence or all of my conclusions in respect of the evidence.  It seems to me that that is usually inappropriate as the matter may go to trial.

What I seek to do is to give the parties sufficient information to explain the conclusions that I have drawn.  If at the end of my reasons either party wishes me to touch upon any matter further, I invite them to do so.

The first matter that arises is the question of the search, and that I think can be disposed of fairly quickly.  I am quite satisfied that it was appropriate that the police officers, having made entry into the unit and having discovered evidence of drug use there,  decided to search the premises further.

In an ideal world perhaps they might have obtained a search warrant beforehand.  It is not hard to imagine that they might have perceived a likelihood of it being desirable to make a search.  But, in any event, as I say, it seems to me that they were perfectly entitled, having entered the room, to search further, and I am satisfied that the officer's opinion which he expressed was a genuine one, that is, that he was concerned that if there was not an immediate search then there was a risk that evidence relating to offences might be removed or destroyed.

The matter that concerns me about the search is the fact that the post-search approval was not obtained until the 19th of July 2010, many, many weeks after the search.  It seems to me, with great respect, that the officer's explanation or purported explanation for that delay was ludicrous.  It is fanciful to suggest, it seems to me, that one can rely upon an authorisation on the 19th of July 2010 as having been obtained “as soon as reasonably practicable”.  So to that extent it is clear that the officer has not complied with the law.

On the other hand it seems to me that no good reason has been demonstrated to me why I should, because of that unlawfulness, indicate to the Crown that the evidence should not be led.  It does not seem to me that it is such a contumelious disregard of the law as to require this Court to make clear its disapproval of the tardiness of the making of the application.

In so far as the application relates to seeking to exclude evidence of that which was found during the search, I dismiss the application.

The next matter I should deal with is the admissibility of the admissions made by the accused to various police officers during the four drive arounds that I have referred to.  So far as this issue is concerned, the first question that must be addressed is whether or not the confessional material is admissible.  That is, pursuant to the provisions of section 10 of the Act, and, indeed, at common law was it obtained voluntarily.

If it was not obtained voluntarily then it is inadmissible and that is the end of the inquiry.  On the other hand, if it is admissible, then the second question arises as to whether I should indicate to the Crown that the evidence should not be led.  In other words, should I rule that the admissions of the accused should be excluded in the exercise of the well-known judicial discretion?

The accused in this case alleges that an inducement was held out to him during the conversation between him and police officers at the Maroochydore Watch-house between about 9.35 a.m. and 10.04 a.m. on the 9th of June.  Right date?

MS MORREAU:  It was the 10th of June, your Honour.

HIS HONOUR:  10th of June, thank you, yes.  Sorry, on the 10th of June. 

It is common ground that it is for the Crown to establish on the balance of probabilities that there was no inducement.  It is equally common ground, I think, that if I should hold that there was an inducement, then any subsequent admission made by the accused will be inadmissible against him unless the Crown can show, again on the balance of probabilities, that the effect of the inducement no longer weighed with the accused.  In this case, there is a clear conflict of evidence between the accused on the one hand and Officers Celebicanin, Taylor and Candale on the other. 

As I said, I do not propose to go through a detailed analysis of the evidence, but I must make some observations to explain my conclusions.  The accused, if I can deal with him first, is a man in his early 30s.  So far as his demeanour when giving evidence is concerned, I perhaps should say that nothing impressed me one way or the other in that respect.  By that I mean that there was nothing about his demeanour that persuaded me that he was obviously being truthful.  There was nothing about his demeanour which led me to think that he was obviously being untruthful.  So far as his evidence is concerned, it did not seem to me that in cross-examination or otherwise he was "caught out" in any significant way.  Of course being the accused in this case, he has not been required to furnish statements or give evidence at the committal and really no issue arose of his having made any prior inconsistent statement or the like. 

Having said that, I think it is proper to observe, as it were against him, that he has a long criminal record; although, his actual criminal record was not put before me, he was
cross-examined and it is clear that he has been convicted in the past of offences of several kinds including offences of dishonesty. 

It seems to me that I should take into account that, on any view, he is a user of illicit narcotics and would appear to have been so for some time, perhaps even some considerable time.  I have no doubt that in order to sustain that habit, he would have to had lived on his wits as it were for many years.  I think I am entitled to draw upon my own experience, both at the Bar and on the Bench in respect of people who are addicted to narcotics, that they will often be quite manipulative and often very convincing liars.

The police officers; I now turn to their evidence.  I am going to speak generally of them.  In general terms, I think it is fair to say I was impressed with their evidence.  So far as is material, they denied offering any inducement or being present when any inducement was offered.  A number of them did, however on occasions, use such expressions as, "I do not recall that being said," which at the time I thought perhaps a little concerning.  I accept that the officers who have given evidence before me are men and a woman of varied experience who were required to perform difficult work and I suspect have to do so with a number of pressures upon them.  They are, I might suppose, all trained investigators.  Unlike the accused, I assume them to be people of good character.

There were a number of occasions on which officers gave evidence which was inconsistent with their evidence at committal or in their statements.  I think it is fair to say that without exception, when the inconsistency was pointed out to them, they accepted it without demur. I have concluded that such inconsistencies as were demonstrated were indicative of innocent loss of memory rather than any deliberate attempt to hide the truth and one can well understand, it seems to me, why busy officers might well have difficulty now recalling events which occurred almost three years ago. 

Having said all that, I must now comment on a matter which has trouble me enormously throughout this protracted hearing.  It seems that on the 8th of June, as I think I have already touched upon, when the warrant was being executed, a police officer had a tape recorder.  It was not activated until the unit had been entered and the accused arrested.  As I have already indicated, I think the warrant shows on its face that it was executed at 1.30 p.m. and according to the officer who first speaks into the tape, the recording commenced 36 minutes later at 6 minutes past 2.  In short, there is no recording of the first 36 minutes of contact between the police and the accused.

On the 10th of June, the day of the first drive-around, again police officers came with a tape recorder.  It was not activated until 10.04 a.m., yet the first contact with the accused was said to be shortly after 9.30.  In other words, the first 20, maybe 25, maybe 30 minutes of the contact between the police and the accused was not recorded.  As it turns out, this is the critical period so far as this ruling today is concerned. 

Likewise, when officers took the accused for a drive-around on the 11th of June, they did not record their initial discussions with the accused and again, on the 12th of June and again on the 14th of June.  On every occasion during the drive-arounds, the officers turned off the tape recorder at various times.  Their evidence is, generally speaking, that they would drive to a residence, sometimes the accused giving directions and other occasions he did not, and on arrival outside a residence, the tape would be switched on and the conversation (usually, but not always, containing admissions by the accused) would be recorded.  The tape recorder would then be turned off and they drove on to the next address. 

I am at a total loss to understand why experienced officers of the police service should adopt a practice of selective recordings of their conversations with the accused.  The recordings they made were largely of the admissions made by the accused and these were, on numerous occasions, preceded by a reminder to the accused of his right to remain silent.  The fact that tapes were not turned on at times invites suspicion about what was said during the unrecorded conversations.  The position is not, it seems to me, improved by the fact that on numerous occasions, the accused confirmed, whilst the tapes were running, that no "threat, promise or inducement" have been held out to him.  If, in fact, the accused had joined with the police in some cosy arrangement whereby he would help them with admissions in exchange for assistance in being diverted to the Drug Court, then so long as he believed that arrangement was in force, he is hardly likely he would sabotage it.

We have spent a great deal of time during the course of this hearing listening to the tapes of what was said after his arrest and during parts of the drive-arounds.  In many ways, that was wasted time.  What was said is not in issue.  It is common ground.  It is incontrovertible.  It is all these things because we can hear what was said when the tape was played.  Unfortunately, that is not the case with the initial contact.  Had the officers recorded their initial conversations, then we would have been spared the hours that have been spent listening to the largely, but not wholly irrelevant tapes. 

Why did they not do so?  Senior Constable Celebicanin refers to page 10 of the transcript to his not having much battery left.  I dismiss that as a cause for his not recording the initial contact because firstly, he did not know, I would suppose, that the accused would consent to a drive-around. 

Secondly, in any event he thought the drive around, if agreed to by the accused, would take place the next day and, thirdly, in any case, the battery seems to have held up well for the rest of the day, admittedly with long periods when the recorder was turned off.

No other reason has been proffered for not recording, at least, the initial contact with the accused.  Several officers asserted that it was their usual practice to turn off recorders during a drive around, as was done in this case.

If, indeed, it is the usual practice, then it seems to me, absent any other facts which have not been drawn to my attention, that it is a stupid practice.  Honest officers who follow that practice have nothing to gain by following it and, as I have indicated, leave themselves vulnerable to allegations of misconduct.

These considerations do not resolve the question of whether or not an inducement was, in fact, proffered to the accused on the morning of the 10th of June 2010.

Thus far I have touched upon the fact that there is conflicting evidence between the accused and the three police officers.  Since we do not have a tape-recording of the relevant conversation, I must see if there is other objective evidence or, indeed, any other evidence, which tends to support either the accused's or the police officers' accounts.

In my view there is such evidence.  It is clear that prior to the first drive around the accused had not been prepared to cooperate with the police in their investigations, yet shortly after the police speak to him, he becomes cooperative.  It is clear that by the time the accused returned to the watch-house after the first drive around, he had in his possession a pamphlet on the Drug Court on which one of the police officers had written a phone number.

I am minded to accept the evidence of the accused's witnesses, that during phone calls they had with the accused during the first drive around, he spoke of going to the Drug Court.

Several officers recall there being discussion of the Drug Court with the accused at some time or are prepared to concede that there may have been such discussion.

Officer O'Donnell said at the committal that the accused was talking about the Drug Court "constantly".  That, of course, was on the occasion of the last drive around.

In my view, it is more probable than not that the accused was offered the inducement he describes as a quid pro quo for his cooperating with the police in their investigations.  In my view, the inducement was still operating at the time of the final drive around.  One only has to have regard to Officer O'Donnell's evidence to conclude that.

It follows that the evidence of things said and done by the accused after the first contact with Officers Celebicanin, Candale and Taylor may not be led.

In those circumstances, of course, it is not necessary for me to consider whether the evidence might be excluded on discretionary grounds.

I have had considerable discussion with counsel as to whether or not the practice which then appears to have been accepted of detectives removing people from the watch-house with the approval of a senior officer was, in fact, a lawful practice.  We have had much discussion with counsel about the provisions or the application of section 7 and 8 of the Corrective Services Act and of section 399 of the Police Powers and Responsibilities Act.

As I have indicated, it is  not necessary for me to make any ruling in respect of the proper construction of those sections or, indeed, any other sections.  I think I should however, say that I think there is force in the submission made to me by Ms Morreau that a proper construction of section 399 is not dependent upon whether or not the person is said to be in police custody or the department's custody or the Commissioner's custody.

It seems to me that it is strongly arguable in this case that the old practice was not, in fact, one that was permitted by law, but, as I say, I do not rule that and it is not necessary for me to do so in all the circumstances.

Mr Glenday, Ms Morreau, are there any particular matters that either of you would wish me to touch upon which I have not touched upon?

MR GLENDAY:  No, your Honour.

HIS HONOUR:  Ms Morreau?

MS MORREAU:  No, your Honour.

HIS HONOUR:  Okay, well, can I thank you both for your assistance during this matter.
THE COURT ADJOURNED AT 3.11 P.M.