R v Workman
[2014] QDC 59
•20 MARCH 2014
[2014] QDC 59
DISTRICT COURT OF QUEENSLAND
CRIMINAL JURISDICTION
JUDGE R S JONES
Indictment No 456 of 2013
THE QUEEN
v.
DEAN JOHN WORKMAN
SOUTHPORT
2.47 PM, THURSDAY, 20 MARCH 2014
ORDER, EX TEMPORE
HIS HONOUR: I am concerned with an application to exclude from evidence a record of interview given by the applicant at the Robina police station on 6 March 2012. The applicant is charged with two counts of arson. Arson of course is an extremely serious offence. The applicant has no previous criminal history and therefore it can be assumed, for the purposes of this application, that he is unlikely to have any meaningful knowledge of police procedures and powers, and not a lot of knowledge about his rights in respect of participation in a record of interview.
Initially, it was contended that the police had failed to comply with their statutory requirements in two respects. First, a failure to comply with section 418 of the Police Powers and Responsibilities Act 2000, and regulation 23 of the relevant regulations. Section 418 requires the police to inform an interviewee of his right to telephone a friend and to telephone and/or speak to a lawyer. That alleged breach was not pursued before me and having regard to the transcript of the record of interview, it is understandable why that matter was not pursued. However, the second matter was pursued, and that relevantly was to the effect that section 431 of the Police Powers and Responsibilities Act was not complied with, and that accordingly, the record of interview should be excluded on the basis that it would be unfair to the applicant to admit it and/or on the broader public policy issues, namely that the courts should be careful to ensure that the police comply with their duties and obligations and be reluctant to act in a way which would be capable as being seen as condoning such conduct.
In this context, it should also be noted that sections 5 and 7 of the Act and the use of the word “must” throughout the Act tends to reinforce the notion that the police are expected to act in compliance with their obligations and duties, and that ramifications may flow if they do not. It is clear that at the time of the record of interview that the applicant was a suspect. Section 431 of the Act falls under division 6, dealing with the cautioning and rights of persons and relevantly provides:
1. A police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code.
3. If the police officer reasonably suspects the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in his or her own words.
4. If necessary, the police officer must further explain the caution.
The so-called code, as I understand it, is set out in regulation 26 of the Police Powers and Responsibilities Regulations. It relevantly provides:
A police officer must caution a relevant person about the person’s right to silence in a way substantially complying with the following –
Before I ask you any questions, I must tell you that 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. However, if you do say something or make a statement, it may later be used as evidence. Do you understand?
The section then goes on to deal with various situations including that where the police officer reasonably suspects that the relevant person does not understand the caution. It is of course clear that the applicant here is for the purposes of that regulation a relevant person. According to Mr Lynch, counsel for the applicant, the central or real issue is that the police failed to give the warning before questioning the applicant and acted in a way that would have caused the applicant to consider that the record of interview was going ahead regardless, and that it was, in effect, a fait accompli.
In dealing with the application, it is necessary to have regard to some parts of the record of interview. At pages 2 to 4, the following exchanges take place.
Police officer:
All right, Dean, what I’m doing is I’m – I’m conducting an investigation, and it’s in relation to um a couple of fires or a fire that occurred down at number 7, Newcastle Street, Burleigh Heads, the other morning.
Applicant:
Yes.
Police Officer:
Okay. It’s at a factory there. Um, I believe it’s on the morning of the 2nd of the 3rd. Um, I think Saturday morning, from memory, if I think it was somewhere.
Applicant:
I think …
Police Officer:
Saturday or Sunday, sorry.
Police Officer:
I think, off my memory, yes.
Applicant:
I think, off my memory, yes.
Police Officer:
Yeah. Saturday, mate. What I’d like to do with that. You’ve been nominated as part of that, all right, so what I’d like to do is ask you some questions.
Applicant:
Yes.
Police Officer:
These questions, I’d like to do it in a form of a record of interview, all right. What that means I’m going to ask you questions.
Applicant:
Yes.
Police Officer:
These questions, together with the answer you give, will be recorded on this electronic recording equipment. Okay.
Applicant:
Yes.
Police Officer:
At the conclusion of that …
Applicant:
Yes.
Police Officer:
You can get a copy of this later on or when we burn it. There’s a bit of a [indistinct] but I’ll …
Applicant:
Yep.
Police Officer:
We’ll sort that out.
Applicant:
No drama.
Police Officer:
All right. What you’ve got to understand is that it can be used in court.
Applicant:
Yes.
Police Officer:
Okay. So do you know what I mean?
Applicant:
Yes.
Police Officer:
All right. Before we do get underway, there’s a few things I have to ask you. Firstly, have you been drinking?
Following that passage of quotes, there’s a discussion about whether the applicant had been drinking alcohol on the day, and whether he was capable of understanding the questions. Thereafter, the following exchange took place.
Police Officer:
All right. If there’s anything you don’t understand just, please, stop me. Please make sure you’re clear on my answer or any question I ask and any answer you give. Do you know what that means?
Applicant:
Yes.
Police Officer:
You don’t have to answer any questions. You don’t have to make any statement, all right. Anything you say or make will be recorded, as I said, and will be able to be used in court.
Applicant:
Yep.
Police Officer:
So if you’ve not clear, you don’t understand, please …
Applicant:
Put my hand up.
Police Officer:
All right. In saying that, you also have the right to contact a solicitor or a member of the legal fraternity, and either seek advice from them, or arrange to have them present before we go any further with this interview.
Applicant:
That’s not necessary.
The police officer then goes on to advise that he also has the right to contact a friend or relative. The purpose of the relevant warning is primarily concerned with telling people that they have the right to refuse to answer questions where such answers may tend to incriminate them. That is to warn against self-incrimination. In this case, no questions or answers occurred which, in my view, could reasonably be said to have amounted to admissions against interest before the subject warning was given, save perhaps for some answers concerning whether the events occurred on a Saturday or a Sunday at page 2 of the record of interview, between lines 30 and 40. However, in this context, as My Lynch effectively conceded, nothing really turned on those particular questions and answers.
In the circumstances, I consider that there has been substantial compliance with section 431 of the Act, in that the police warned the applicant of his right to remain silent and not answer any questions asked of him. In my view, the applicant’s right to refuse to incriminate himself was not violated. Further, I cannot agree that the police led the applicant to believe that the record of interview was going ahead regardless as a fait accompli. After being advised of his right to remain silent, his right to contact a lawyer and/or a friend, he was also told that he was free to leave (and that would obviously terminate the record of interview) at any time. That appears at page 5 of the record of interview where it is clear that the applicant well understood his relevant rights, well understood what the questions were concerned with, and, on a number of occasions, expressed the view that he was happy to proceed with the interview.
On balance, I consider that there has been substantial compliance with the relevant provisions of the legislation sufficient to ensure that the applicant’s fundamental right not to incriminate himself was not compromised. For the reasons given, I can see no reason why the record of interview ought to excluded, and, accordingly, the application is dismissed.
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