The Queen v Pearsall
[2010] QDC 177
•29 April 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
The Queen v Pearsall [2010] QDC 177
PARTIES:
THE QUEEN
(Applicant)
v
JARED RAYMOND PEARSALL
(Respondent)
FILE NO/S:
982/09
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
Ipswich
DELIVERED ON:
29 April 2010
DELIVERED AT:
Ipswich
HEARING DATE:
25 January 2010, 2 March 2010, 24 March 2010
JUDGE:
Bradley DCJ
ORDER:
Order that evidence of any admissions made by the applicant in his unrecorded interview with Mercer and Allard, evidence of the applicant’s recorded interview with McCoombes and Watson, and the written statement given by the applicant on 5 March 2009, not be admissible at the applicant’s trial.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES – where a preliminary interview between police officers and the applicant was not recorded – where police officers did not follow the correct procedure before questioning the applicant – whether admissions made by the applicant are admissible in those circumstances.
Criminal Law Amendment Act 1894 (Qld)
Police Powers and Responibilities Act 2000 (Qld)
Police Responsibilities Code 2000 (Qld)Bunning v Cross (1977-1978) 141 CLR 54.
McKinney v R (1991) CLR 468.
R v Plotzki [1972] QdR 379.
REPRESENTATIVES:
E P Mac Giolla Ri of Counsel for the applicant/defendant
R J Copley of Counsel for the respondent/prosecution
Howden Saggers, Solicitors, for the applicant
Office of DPP, Ipswich for the respondent
Background
Ramon Beggs made a complaint to police that his Nissan Patrol had been stolen from Wildey Street in Raceview and set alight on 7 November 2008. During the investigation police learnt that Beggs had made an insurance claim from AAMI for his vehicle.
The applicant is a 22 year old soldier serving as a logistics truck driver in the Australian Defence Force at the Amberley RAAF base. He knows Beggs who also works at the base. On 5 March 2009 the applicant was called to the office of his commanding officer and told that he had to go to the Ipswich police station. The applicant was taken to the police station by a sergeant and met up with his immediate superior, Lieutenant Harding at the police station.
It seems two plain clothes police officers from the arson squad (Mercer and Allard), spoke initially in private to the applicant’s senior officers before his superiors left the police station.
The applicant was then spoken to in an interview room by Mercer and Allard. Although this room was fitted with recording equipment, the conversation between the applicant and these officers was not recorded.
Subsequently the applicant was interviewed in the same room by two uniformed officers (McCoombes and Watson) which conversation was recorded. In that interview the applicant made admissions to the police that at Beggs’ request he had driven the vehicle to Ripley Road, tipped fuel around the interior and set it alight. Some weeks later Beggs gave him $4000 in cash for burning the vehicle.
At the conclusion of the recorded interview Watson took a written statement from the applicant in which he again made admissions.
The applicant was charged with the offences of arson (wilfully and unlawfully setting fire to a motor vehicle on 7 November 2008) and fraud (attempting to dishonestly obtain money from Australian Associated Motor Insurers Limited).
Application
The applicant seeks an order that any admissions made during his unrecorded interview with Mercer and Allard; any admissions in his recorded interview with McCoombes and Watson; and the written statement he gave to Watson on 5 March 2009, be declared inadmissible in his trial, either on the grounds that any admissions were induced by the police or alternatively on the general grounds of fairness and public interest. The prosecution has indicated that it does not intend to rely upon the unrecorded interview or the written statement at the applicant’s trial.
Evidence
All four police officers who spoke to the applicant on 5 March 2009 and the applicant himself gave evidence in this application.
Ian David Mercer is a detective sergeant and the officer in charge of the Arson Investigation Unit which is attached to the Fraud and Corporate Crime Group at police headquarters. In November 2008 he became aware of the report to police that a 2005 Nissan Patrol motor vehicle had been stolen and burnt out in the Ipswich area. Such a report is viewed suspiciously by his unit because the security systems used in late model vehicles make them near impossible to start and move without the correct coded key.
Mercer gave a number of tasks to McCoombes with respect to the investigation. On 5 March 2009 Mercer and Allard (another officer from the Arson Investigation Unit) travelled to the Ipswich Police Station to assist McCoombes.
After talking to relevant witnesses, the police officers had information that the applicant may be responsible for burning the car which was reported as being stolen.
Mercer described the conversation between himself, Allard and the applicant as “an introductory chat”[1]. Mercer and Allard told the applicant that they were from the Arson Investigation Unit and outlined to him the security systems in late model vehicles. Mercer and Allard also told the applicant that he was implicated in the offence of arson. Mercer agreed that at that stage the applicant was a suspect in relation to the offence. In fact, Mercer’s evidence was that “…it’s the talk of the base that they burnt the car and they’re boasting about it”.[2]
[1] Transcript page 1-15; line 2
[2] Transcript page 1-22; line 10
Neither Mercer nor Allard advised the applicant of his rights or warned him that he was not obliged to answer their questions. The conversation was not recorded. Further, neither of the police officers made any contemporaneous notes of the conversation.
Mercer described his intentions in speaking to the applicant as follows:
“… it was information given to us. It wasn’t backed up by a statement or any other thing. It was information. That’s all it was at that stage. Simply talking to Jared, if Jared had denied the information, then he would’ve been released, let him go, but as it turned out, he gave us information in relation to the offence that has occurred.”[3]
Mercer conceded in cross-examination that he was seeking “feedback” or “confessions”[4] from the applicant.
[3] Transcript page 1-16; line 17
[4] Transcript page 1-16; line26
Mercer went on, “once Jared implicated himself in the offence”[5] he asked him if he would participate in a recorded interview and explained that process to him. When the applicant agreed, Mercer arranged with McCoombes to conduct the interview. Mercer conceded that neither he nor Allard advised the applicant that what he had confessed to police thus far would not be admissible in court. Mercer’s evidence was that the applicant told him and Allard that he had burnt Beggs’ vehicle and Beggs had paid him $4,000.00 for doing so.
[5] Transcript page 1 – 17; line 6
The investigating police had hoped to speak to Beggs on 5 March 2009 but he was working interstate and unavailable until the following Monday. Mercer denied telling the applicant that if he refused to speak to police they would obtain a version from Beggs the following Monday and then arrest the applicant.
The applicant was asked by either Mercer or Allard if he wished to contact anyone prior to being formally interviewed and he did telephone his father.
Jason Allard is a detective senior constable in the Arson Investigation Unit. His evidence was that at the time he and Mercer spoke to the applicant the police had no direct evidence against the applicant other than “rumours” and the applicant was only being spoken to because he was known to be an associate of Beggs. Allard admitted however that the police were aware that “an associate of Beggs had bragged at the airbase that he had arsoned the vehicle”[6].
[6] Transcript 1-32; line 39
Allard confirmed that he and Mercer told the applicant that the vehicle in question “cannot be stolen” without the keys and that both keys had been handed in. Allard admitted that prior to speaking with the applicant he and Mercer had information that the applicant may have been the person who set fire to the car or at least had knowledge of the offence.
Allard described the process of his and Mercer’s conversation with the applicant as follows:
“I didn’t ask him any direct questions about the offence. I gave him some statements in relation to what we were investigating and then he came forward with some information.”[7]
Allard confirmed that prior to speaking to the applicant police had information that the applicant was going to be, or had been paid, $4,000 by Beggs. When the applicant told Allard and Mercer that he had assisted Beggs in the burning of the vehicle and that he was to be paid $4,000.00 Allard immediately stopped the applicant and told him that any further conversation would have to be recorded. Allard denied either he or Mercer told the applicant that if he didn’t “come forward now” they would arrest him and put him in jail once Beggs had been spoken to.
[7] Transcript 1-34; line 19
Daniel McCoombes’ evidence was that he and Watson interviewed the applicant between 1.50 pm and 2.26 pm on 5 March. The interview was recorded both on audio and video tape. McCoombes agreed that at the time of the interview police had no formal statement from any other witness implicating the applicant in the commission of the offence of arson.
McCoombes’ evidence was that he first saw the applicant when he, McCoombes, entered the interview room and saw the applicant in the company of Mercer and Allard. McCoombes introduced himself and told the applicant that he wanted to interview him about the arson of a motor vehicle as he had received information that he may have been involved and he asked whether the applicant wished to be interviewed. McCoombes has no recollection of any conversation between the applicant and any police officer about the applicant giving a written statement to police.
Darren Watson assisted McCoombes in conducting the recorded interview and took the written statement from the applicant. Watson’s evidence was that he thought that he and McCoombes had information that the applicant had burnt the car prior to interviewing him.
It was Watson’s recollection that at the conclusion of the recorded interview he asked the applicant if he would mind making a statement in relation to the matter. Watson conceded in cross examination that he could quite possibly have told the applicant that whilst he didn’t have to make a statement it would look better for his defence if he did so.
The applicant’s evidence was that Mercer and Allard spoke in private to his two superior officers for 5 to 10 minutes before they departed. He was then asked to go into the interview room. Mercer and Allard told him that they were investigating the complaint that Beggs’ vehicle had been stolen and that there was “no way possible that it could have been stolen like without a key”[8]. Mercer and Allard also told him that they had information that Beggs had paid him $4,000.00 from a defence credit account loan and that the vehicle’s gear box was broken prior to it being burnt.
[8] Transcript 3-5; line 29
The applicant said that he “just sat there in shock”[9] because he had not heard the allegations previously. The applicant went on: “After that I sitting there and they then said to me that if you were to come clean it would only look better on yourself in the future and that if I wasn’t to come forward that on Monday when Ramon Lyall Beggs got back from his trip that I would be arrested”[10]. In response to that the applicant told Mercer and Allard the rest of the story. The Applicant estimates his conversation with Mercer and Allard lasted 10 to 15 minutes.[11]
[9] Transcript 3-5; line 45
[10] Transcript 3-6; line 3
[11] Transcript 3 – 9; lines 24 - 32
Mercer then left the room to speak with the uniformed officers and Allard asked the applicant if he wished to make a phone call. The applicant called his father who said he would ring his solicitor and get back to him. The applicant’s father did not ring him back until the applicant had commenced making the written statement with Watson.
All four police officers then came into the room and McCoombes explained (mainly, it seems for Watson’s benefit), how the taped interview would proceed.
After the taped interview one of the uniformed officers left the room and the other asked the applicant if he would like to give a written statement. The applicant said that he was told that a written statement wasn’t needed but that it “would only look better on myself coming to court – the judge, and that it would be good for me to do a written [statement]”[12].
[12] Transcript 3-7; line 57
The applicant’s evidence was that he interpreted the statement by Mercer and Allard that they would arrest him upon Beggs’ return the following Monday, as a threat. It was the applicant’s understanding that if he was arrested he would be handcuffed and put in jail whereas if he co-operated with police and took part in the interview he would simply be charged with the offence and not put in jail. He therefore took part in the interview “to benefit me and so I wouldn’t get arrested”[13].
[13] Transcript 3-14; line 34
Recorded Interview
In his interview with McCoombes and Watson the applicant told police that he had been approached by Ramon Beggs at work and was told by Beggs that he had damaged his vehicle and could not reverse it. The applicant helped Beggs obtain some quotes to fix the vehicle but as it was going to cost $5,000.00 to fix the vehicle Beggs offered to pay the applicant $4,000.00 to burn it. Beggs had previously lived with the applicant for some months and as the applicant needed money he agreed to burn the vehicle. Beggs picked the date and told the applicant where his vehicle was and gave the applicant the keys to the vehicle that night. The applicant picked up the vehicle and drove it to Ripley Road where he burnt the car. The following Monday when the applicant saw Beggs at work Beggs told him that he would put the paper work in to make a claim on his insurance for the vehicle and that once the claim had been paid out Beggs would pay the applicant. Later however, as the claim was taking too long to be processed, Beggs obtained a loan and paid the applicant $4,000.00 in cash.
At the commencement of the interview the applicant confirmed in answers to questions put to him by the police that he was participating in the interview of his own free will and that no threat, promise or inducement had been held out to him to speak to the police. He confirmed that he had not been forced to speak to police and that he went to the police station of his own free will. The applicant stated that he understood that he was free to leave at any time unless he was arrested. The applicant was advised of his rights to telephone a friend, relative or lawyer and of his right to remain silent, but there was no reference to his having already telephoned his father who was to get back to him.
At the conclusion of the interview McCoombes asked the applicant why he agreed to answer the questions that had been asked of him and the applicant replied “to be honest, I dunno”. When McCoombes asked if he there was anything further he wished to say the applicant asked “is there anything else I need to say?”. The applicant confirmed that he was happy with the way he had been treated by police and again that no threat, promise or inducement had been held out to him to take part in the interview.
Written Statement of the Applicant
In the written statement taken by Watson the applicant gave the same version of events.
Induced Confessions
Section 10 of the Criminal Law Amendment Act 1894 provides:
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 is shown.
Once it has been shown that an inducement has been made by a person in authority the onus is upon the prosecution to prove on the balance of probabilities that the inducement did not operate at all upon the mind of the person to whom it was made.[14]
[14]R v Plotzki [1972] QdR 379
Was a threat or inducement made?
The applicant argues that the way in which he was brought to the police station on 5 March, that is by the police contacting his superiors at the Amberley base and requesting that he be brought to the police station, the fact that he was brought to the police station by two superior officers and that those officers were spoken to by Mercer and Allard before he was spoken to, and the way in which the applicant was questioned by Mercer and Allard amounts to a threat or inducement being offered to the applicant as a result of which he made admissions to the police.
In particular the applicant argues that informing the applicant that if he refused to speak to police they would obtain a version from Beggs the following Monday and then arrest him, amounted to a threat or inducement to the applicant to make admissions to the police.
The preliminary issue therefore is whether such a statement was made to the applicant by either Mercer or Allard. The applicant asserts such a statement was made to him. Mercer emphatically denied telling the applicant he would be arrested after police had spoken to Beggs or that the applicant was told it would look better for him if he took part in an interview.
Allard also emphatically denied that either he or Mercer told the applicant that if he did not make admissions to the police then he would be arrested and put straight in jail once Beggs had been spoken to. Similarly Allard denied telling the applicant that he might as well come forward now and tell them everything and get some leniency for doing a statement.
Whether or not such a statement was made by either of the plain clothes police officers to the applicant is therefore a question of credit. The only evidence in that regard is from the applicant himself. The applicant’s evidence as to his understanding of the difference between “being arrested” and “being charged” does sound plausible, particularly in light of his young age (he had just turned 21 when interviewed and was 22 when giving evidence in this application).
However the applicant’s assertion that he was “in shock” when the bare allegations of the offending were put to him did not have the ring of truth about it. The applicant did in fact telephone and speak to his father prior to being interviewed and repeatedly stated during the recorded interview that he was at the police station of his own free will and had not been offered any threat or inducement to take part in the interview.
There was another aspect in which the applicant’s evidence differed significantly from that of Mercer and Allard. The applicant’s evidence was that when he was giving his written statement to Watson, the younger of the two plain-clothes police officers (Allard) came in, gave him a coke and said goodbye. The evidence of Mercer and Allard was that they had no further contact with the applicant once the taped interview was underway.
The applicant did not impress me as having a good and accurate memory of the chronology of events at the police station which would no doubt be influenced by his youth, his “shock” and his anxiety and concern about being questioned by police about a serious criminal matter.
There was some conflict between the evidence of Mercer and that of Allard in that Mercer said that he and Allard were unaware the applicant had been paid $4000.00 by Beggs until the applicant told them, whereas Allard’s evidence was that they had information about the payment prior to speaking to the applicant. Such conflict is explicable by the passage of 12 months time since 5 March 2009 and did not cause me to have concerns about the police officers honesty.
The reluctance of both Mercer and Allard to admit that they viewed the applicant as a suspect is another aspect of their evidence which could raise suspicions as to their reliability. However each conceded in cross-examination that the applicant was a suspect and ultimately the issue did not reflect negatively on their evidence.
Of course, the fact that the conversation between the applicant and Mercer and Allard was not recorded in any way, despite it being easy to do so, means that the police officers’ version of the conversation cannot be independently verified, and in the same way that alleged admissions made to police in unrecorded conversations should be treated with caution, so should the police officers’ denial of making a threat in this case.[15] The police evidence does need to be scrutinised with care.
[15] See McKinney v R (1991) 171 CLR 468.
In the circumstances, even exercising appropriate caution, I prefer the evidence of Mercer and Allard to that of the applicant and I accept their assertions that the applicant was not told that unless he “came clean” he would be arrested on the following Monday.
Without that threatening statement being made to the applicant, the other circumstances regarding his being questioned by Mercer and Allard cannot amount to a threat or an inducement and I am satisfied that the admissions made in the recorded interview to McCoombes and Watson by the applicant were not induced as a result of a threat.
Turning to the written statement made by the applicant as taken down by Watson, I accept that (as conceded by Watson) the applicant was told that it would be to his benefit to make such a statement. That does clearly amount to an inducement. However Mr Copley for the prosecution advised me that the prosecution would not be intending to rely upon the applicant’s written statement at his trial.
Should the Applicant’s Recorded Interview with Police not be admitted on the Grounds of Fairness and Public Interest?
Both Mercer and Allard conceded that when they spoke to the applicant they considered him to be a suspect. The applicant’s evidence was that their conversation with him spanned 10 to 15 minutes (neither Mercer nor Allard were asked to estimate how long the conversation took). The applicant said that after he was told about the suspicious nature of the theft and burning of the vehicle he “then gave up and filled in the blanks after all” or “finished off the story – they only said bits and pieces of what happened and then I told them the rest”.[16]
[16]Transcript 3-6; lines 10-36.
If a person is being questioned as a suspect involved in the commission of an indictable offence then the Police Powers and Responsibilities Act 2000 (the Act) imposes on a police officer a number of obligations before questioning of the person begins. These include:
1.The police officer must inform the person he may telephone or speak to a friend or relative to inform them of his whereabouts and ask them to be present.[17]
[17]Police Powers and Responsibilities Act s 418(1)(c).
2.The police officer must inform the person he may telephone or speak to a lawyer and arrange for them to be present.[18]
[18]PPRA s 418(1)(b).
3.The police officer must caution the person as set out in section 33(3) and (4) of the Police Responsibilities Code 2000 (the Code).[19]
[19]Schedule 10 to the PPRA.
4.The police officer must caution the person about his right to silence.[20]
5.The police officer must “if practicable”, electronically record the giving of the above information and caution.[21]
[20]PPRA s 431, PR Code s37.
[21]PPRA s 435.
Neither Mercer nor Allard even attempted to comply with these requirements. The decision not to record their conversation with the applicant is of particular concern. The conversation took place in an interview room at the Ipswich police station which was fitted with recording equipment. In fact, only minutes later McCoombs and Watson effectively utilised that equipment when they spoke to the applicant.
Section 436 of the Act gives examples of scenarios when electronic recording of questioning may not be possible, as follows:
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.
Clearly, no excuses were available to Mercer and Allard for failing to record their questioning of the applicant.
Mercer and Allard took the view that they knew evidence of their questioning of the applicant would not be admissible and therefore there was no need for them to comply with the legislation. But they failed to inform the applicant that what he told them could not be used against him at his trial. Further, there is no evidence either of them informed McCoombes and Watson in any detail of the applicant’s admissions. Certainly, admissions made by the applicant to Mercer and Allard were not recited to the applicant and adopted by him during the recorded interview.
The situation is that the applicant made admissions to police without being informed of his rights and cautioned as required by the legislation. He was then asked to take part in recorded questioning in which he was properly informed of his rights, but not told that what he had said to the other police officers could not be used against him. He then took part in an interview in which he made extensive and detailed admissions.
It would be unsurprising if someone in the applicant’s position believed there was little point in not answering the questions put to him by McCoombes and Watson, when he had just “come clean” with two other police officers, despite finally being given information as to his rights. Particularly if he did not appreciate that what was said to the first police officers was not admissible against him.
The provisions of the Act and the Police Responsibilities Code are stated in mandatory terms. Section 5 of the Act states that one of its purposes is “to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act”. Section 7(1) notes that it is Parliament’s intention that police officers “should comply with this Act in exercising powers and performing responsibilities under it”.
In the circumstances of this case, clearly the admissions obtained by Mercer and Allard were obtained in contravention of the Act and the Code and where the applicant was not told that evidence of what he had said to them was not admissible and where he was immediately interviewed by two more police officers, the second interview was tainted by the illegality of the first.
In Bunning v Cross[22] the High Court held that when considering whether to exclude evidence obtained in contravention of the requirements of the law it is relevant to consider whether the unlawful conduct of the police officers results from a mistake or from deliberate or reckless disregard of the law.
[22](1977-1978) 141 CLR 54.
In this case it cannot be said that Mercer and Allard were deliberately ignoring their responsibilities in an attempt to trick the applicant into making confessions. Nevertheless, both are senior and experienced police officers who were well aware of the provisions of the legislation. Their actions do amount to a “reckless disregard of the law by those whose duty it is to enforce it”.[23]
[23]Bunning v Cross Stephen and Aickin JJ at 78.
Another consideration referred to in Bunning v Cross is the ease with which the law might have been complied with, as “a deliberate cutting of corners would tend against the admissibility of evidence illegally obtained”.[24] Here, compliance could not have been easier.
[24]Ibid at 79.
The cogency of the evidence and the seriousness of the offence charged are other factors to be taken into account. Clearly, the charges are serious and the applicant’s admissions probably true. However, the complete lack of compliance with the legislation and the unfairness that it led to, in my view, outweighs such considerations.
This is a case in which the public interest in having persons suspected of committing an indictable offence treated fairly by police outweighs the public interest in having admissions to the commission of an indictable offence admitted at a person’s trial, despite the non-compliance with the relevant legislation.
I order that evidence of any admissions made by the applicant in his unrecorded interview with Mercer and Allard; evidence of the recorded interview with McCoombes and Watson, and the written statement given by the applicant on 5 March 2009, not be admissible at the applicant’s trial.