Tipler v The Queen

[2009] QDC 240

DISTRICT COURT OF QUEENSLAND

CITATION:	Tipler v The Queen [2009] QDC 240
PARTIES:	Kane James TIPLER (Applicant ) and The Queen (Respondent)
INDICTMENT NO:	DCR 285/08
DIVISION:	Criminal
PROCEEDING:	Section 590AA Application
ORIGINATING  COURT:	District Court, Townsville
DELIVERED ON:	17 April 2009
DELIVERED AT:	Townsville
HEARING DATE:	21 January 2009
JUDGE:	Durward SC DCJ

ORDERS:	1.	The Application is granted
2.	The interview between the police and the Applicant on 20 August 2007 is inadmissible and is excluded from evidence

CATCHWORDS:	CRIMINAL LAW – EVIDENCE – CONFESSION - application to exclude record of interview – whether voluntarily – exercise of discretion – compliance with
statutory obligations – support person the applicant’s step- mother - she told her intellectually disadvantaged step-son he had to participate and had to answer questions – interview not voluntary – interview would otherwise have been excluded on exercise of discretion.
CASES:	R v Swaffield & Pavic (1998) 192 CLR 159 MacPherson v R (1981) 147 CLR 512 Duke v The Queen (1989) 180 CLR 508
COUNSEL:	Mr R W Griffith for the applicant Mr F Richards for the respondent
SOLICITORS:	Bevan & Griffin for the applicant Office of the Director of Public Prosecutions for the respondent

1. This is an application pursuant to section 590AA of the Criminal Code (Qld) to exclude a Record of Interview (“the interview”) on the ground of it not having been made voluntarily; and/or in an exercise of discretion to exclude it as being unfair.

   THE CHARGES

2. The Applicant is charged with a number of offences of dishonesty: One of breaking entering premises and stealing, three of unlawful use of a motor vehicle with damage, two of stealing and one of entering premises with intent to commit an indictable offence. All were alleged to have been committed on 18 August 2007 or on and about 18 and 19 August 2007, at Moranbah or elsewhere in the State of Queensland. The interview relates to these offences.

   THE FACTUAL CIRCUMSTANCES

3. During the evening of 18 August 2007 the business premises of McDonald Murphy at Moranbah was broken and entered and three motor vehicles were stolen using keys located within the premises. The vehicles when subsequently located were extensively damaged and one was destroyed by fire. The business operated a service station, mechanical workshop, car-wash, RACQ agency and an Avis car rental agency. The three motor vehicles were Avis hire cars.

4. The police subsequently located the Applicant in the company of other youths, including his two half brothers. All of the youths were arrested and taken to the Moranbah Police Station. The Appellant’s step-mother (Ms Leisa Carnes) was requested to attend the police station for the purpose of interviews with the youths and to act as a support person.

5. Ms Carnes was employed - as a console operator, in finalising hire car contracts and providing and receiving returned keys - in the complainant’s business. However, she was not working at the time of the offences and was not a witness to or in respect of the offences.

   SUBMISSIONS

6. It was submitted that the Applicant participated in the interview and made admissions because he believed he had no other choice, the interviewing police officer having failed to ensure that he knew and understood his rights and failed to inform the support person of the applicant’s rights. It was submitted that there was an employment relationship between the support person and the complainant that was known to the police at the time of the interview and compromised her ability to act in the best interests of the Applicant. It was also submitted that the support person was told that the Accused was required to participate in an interview and that she told the Applicant that he was required to do so.

7. Whilst the primary submission by Mr. Griffith for the Applicant was the issue of voluntariness and discretionary exclusion, he also relied on the non-compliance by the police with the Police Powers and Responsibilities Act 2000 (Qld) (“the Act”) and the Queensland Police Service Operational Procedures Manual (“OPM”).

8. The respondent submitted that the applicant agreed to take part in the interview prior to speaking with the support person, who gave effect to his decision. It was submitted that the interview was made voluntarily. The Applicant did not require a support person because he was not “a person with impaired capacity” as prescribed in section 422 of the Act, nor a “person in special need” pursuant to section 6.3.2 of the OPM. Further, it was submitted that the Applicant demonstrated sufficient understanding of the proceedings and that he knew his rights when they were explained to him. Finally, it was submitted that this was not a case where the discretion was enlivened on the “unfairness” ground.

   THE INTERVIEW

9. The applicant was aged 19 years (DOB 30 July, 1988). He had no criminal history. It is common ground that he was illiterate and appeared to have had learning difficulties at school. He had previously been diagnosed with ADHD but was not medicated at the relevant time.

[10]     The applicant was interviewed by Plain Clothes Senior Constable Zealey (“Zealey”). Shortly after the commencement of the interview the Applicant was warned in the customary terms. He was asked if he understood the warning and replied “yes”. The interview continued as follows:

ZEALEY: Tell me in your own words what you understand that

warning to be.

TIPLER:  I don’t have to go on.

ZEALEY: Sorry?

TIPLER:  I don’t have to keep, keep going

ZEALEY: No, you tell me what that warning means.

TIPLER: That means, I’m still gonna get put back in the cell if I do

speak, until we’ve finished this.

TIPLEY: No. What it means, ok, what it means is, if you don’t want

to answer a question you don’t have to. Do you understand

that?
TIPLER: Yeah.

1. The applicant was told he had a right to speak to a friend or relative or a lawyer and to have them present during questioning, that he had his mum there and was asked if there was anyone else he wanted present. He replied “nup”. He said he could only read “a little”.

2. The support person was the Applicant’s step-mother, Leisa Carnes. She was asked about the Applicant’s capacity to understand the interview process:

ZEALEY:	[INDISTINCT] oh, ok right. Alright, but he’s able to
understand everything that, that he does, he doesn’t
need--
CARNES:	Pretty much, yeah.
ZEALEY:	Cause there’s, I understand there’s some learning
difficulties, but is there ay difficulties in understanding
what is going on.
CARNES:	No.
ZEALEY:	Ok. Would that be the case Kane?
TIPLER:	Mm, Yeah.

1. The Applicant agreed that he had understood everything that had happened so far that day and everything he had been asked so far. At the end of the interview there were further questions asked about the conduct of it:

ZEALEY	…do you agree at the start of the interview I warned you of your
right to remain silent?

TIPLER: Yes relative, friend or lawyer, and you decided not to take that

opportunity on board?

TIPLER: Yes

ZEALEY:  OK, have you taken part in this interview of your own free will?

TIPLER: Yes

ZEALEY:  Have you been threatened in any way, shape or form?

TIPLER: No

ZEALEY:	Have I offered you any promise or inducement to take opart in this
interview.
TIPLER:	What’s that?
ZEALEY:	What I mean by that is, did I say to you something like, I’ll give
you a hundred bucks if you do this interview?
TIPLER:	No, you didn’t.
ZEALEY:	Did anyone else offer you that?

TIPLER: No

ZEALEY:  Are you happy with the way you’ve been treated so far?

TIPLER: Yes.

EVIDENCE IN THE HEARING

1. Evidence was given in the hearing about what was said to the Applicant prior to the interview and to Ms Carnes by Zealey. The officer said he was told by Ms Carnes that the applicant suffered learning difficulties. He said that he told her that he needed to interview the applicant. In evidence he said the following:

   ZEALEY: Okay, that I needed to interview Kane. I had previously spoken to Kane and he’d indicated that, yes, he did want to be interviewed.

   I’ve spoken to her and told her that I need to interview Kane and
   she had previously informed me, when I had spoken to her about
   one of the other boys, that he had learning difficulties.’

2. The Officer said that he had explained to Ms Carnes what was required of a support person. In evidence he said the following:

GRIFFITH:	Yes, All right. See – so pursuant to the responsibilities code,
your OPM’s and so on, you’ve actually done part of the job.
ZEALEY:	Yes.
GRIFFITH:	You know, you’ve explained to her all of the obligations
that apply to her, that restrict her activity.
ZEALEY:	Yes
GRIFFITH:	But you failed to explain to her anything that could make
her proactive in preventing her son from giving an interview?
ZEALEY:	Yeah. Look I concede that there are some things that I didn’t
tell her.
GRIFFITH:	Well, you left out all of the bits about rights and you put in all
the bits about obligations and restrictions, didn’t you?
ZEALEY:	Yes.

GRIFFITH: Why?

ZEALEY:	Again my explanation is that the warnings et cetra I gave at
the start of the interview were to be understood by not only
Kane but also his stepmother who was the [indistinct] person.
GRIFFITH:	Well, look – okay. That’s--
ZEALEY:	She was present for all those warnings.
GRIFFITH:	But at the time she had the conversation with her son, that
she’s entitled to, she was not aware of any of that, was she?
ZEALEY:	No.

1. The Officer also said that he had explained to Ms Carnes the applicant’s rights. In evidence he said the following:

GRIFFITH:	Do you understand that you have an obligation to
explain to her his rights?
ZEALEY:	Yes, I do and it was information that I convey at the start
of the interview.

GRIFFITH: No. You have an obligation to let her speak to him

before the interview starts.

ZEALEY:  Yes, I’m aware of that.

GRIFFITH: And you have an obligation to explain to her her role

and his rights before they have the conversation?

ZEALY:  Yes.

GRIFFITH: You didn’t explain to her that did you?

ZEALY:  I didn’t explain to her that - his particular rights no.

1. The Officer said that he had told the applicant, off tape and prior to the commencement of the interview, that he ‘could either be interviewed or not.’ In evidence he said the following:

GRIFFITH:	…….Why didn’t you tell him that you’re free not to be
interviewed at all rather than “You’re free not to
answer any particular question”, [indistinct]
ZEALEY:	When I asked him – well, when I asked him initially if
he wanted to be interviewed he was told that he had -
he could either be interviewed or not.
GRIFFITH:	Sorry when’s this?
ZEALEY:	When I spoke to him initially before his mother arrived,
when I asked him if he wanted to be interviewed, he
was told then that he could either take part in an
interview or not.

1. The Officer gave Ms Carnes an opportunity to speak with the child in private prior to the commencement of the interview. She said that she spoke to the applicant. In evidence she said the following:

CARNES:	Okay. I just spoke to him and said that he had to go in
and – well not “had to”, but it was better for him to go
and tell the truth rather than lie and – be honest.

1. Counsel for the Respondent Mr Richards provided some further clarification, from his conference instructions, that complements the evidence. Ms Carnes recollection was that Zealey had said that the Applicant “had to be interviewed, that he had a right to a support person and to a solicitor or to contact a solicitor”. Her recollection was that she told the Applicant that he “had to make a statement…don’t lie, tell the truth… you’re entitled to have someone with you. Are you happy to have me with you as the support person?”

2. Apparently she did not tell the applicant of his right to silence and she had said to him “you don’t have to answer questions but it’s in your best interests to answer them.”

3. The Applicant gave brief evidence in the hearing. He said that he answered the questions in the interview because his step-mother told him to. She had not told him that he did not have to answer any questions if he didn’t want to.

4. It also appears that Ms Carne may have been concerned about her job, when she was involved in the interviews as support person. Apparently, after the interviews she contacted her employer and asked him if she still had a job. She was told she did because she was not the person said to have committed any offence. She has since continued that employment.

   DISCUSSION

5. Section 10 of the Criminal Law Amendment Act 1894 proscribes the admission in evidence of any interview that arises as a result of any threat, promise or inducement. The common law makes inadmissible any confessional statement that was not voluntarily provided.

6. In MacPherson v R (1981) 147 CLR 512, Gibbs and Wilson JJ in their joint judgement said as follows:

   ‘…..a confessional statement made out of court by an accused person is not admissible in evidence unless it was made voluntarily, that is, in the exercise of a free choice to speak or be silent. A confession will not have been voluntary if it has been obtained from the accused by fear of prejudice or hope of advantage exercised or held out by a person in authority, or as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure - anything that has overborne the will of the accused. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.’

7. The level of understanding of the Applicant on its own would not have persuaded me to exclude the interview. The officer complied with some of the statutory obligations once he knew that the applicant had a history of learning difficulties, but not all of them. There is no satisfactory explanation for this omission and he frankly conceded, in effect, that he could have done so. Nor am I persuaded that the mere fact that the support person was an employee of the complainant is a vitiating factor in the circumstances of this case.

8. However, I am persuaded that the Applicant answered questions because he was told he should do so but an authority figure, his step-mother. He also was not given any overt choice about his participation in the interview, by the officer. Ms Carnes may unconsciously have been concerned about her employer’s attitude. Nevertheless, whilst I am satisfied that she did what she thought was proper and in the Applicant’s interests, she simply reinforced the officer’s stance: that is, an interview had to be done. Her exhortation to him to not lie and to tell the truth alone is not a vitiating factor. However, in combination with the statements to the effect that he had to participate and answer questions it is sufficient to make the interview inadmissible. The applicant may have agreed to be interviewed at an early stage but he was never subsequently given a choice about that. Indeed, his rights were never explained to Ms carnes before she spoke to the applicant. In addition, he was arrested before being taken to the police station. He was in custody – a fact he was aware of because his unsatisfactory answer to the question about his understanding of the warning he was given referred to his being returned to the cell. His step brothers were also interviewed and Ms Carnes was the support person in their interviews. They were all arrested together and taken to the police station for the purpose of “questioning’ it seems.

   CONCLUSION

9. In my view the Applicant has discharged the onus he carries with respect to the issue of voluntariness. The Applicant was induced to answer questions because he believed he had to – he was told as much to that effect. In that circumstance I find that the interview was not made voluntarily. Accordingly it is inadmissible and I exclude it.

   OTHER GROUNDS

10. In the circumstances I do not need to further consider the secondary grounds submitted, namely the non-compliance with the Act and the OPM.

11. In R v Swaffield & Pavic (1998) 192 CLR 159 the majority of the High Court referred to Brennan J ( as he was then) in Duke v The Queen (1989) 180 CLR 508 at 513 where his Honour said:

    "The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded."

12. If I had been required to resort to an exercise of discretion to exclude the interview I would have excluded the interview on the ground of unfairness on the same basis as I have on the voluntariness ground. In addition, the Applicant’s understanding of the customary warning was not satisfactorily resolved by the Officer. I am not persuaded that the Applicant really knew the meaning of the warning, at the time. The explanation of the meaning of “an inducement” was also unsatisfactory. I cannot think of a more remote or unlikely occurrence than that referred to by the officer. It was completely meaningless in fact. A more likely example would be a suggestion that there may not be any charge or that a more serious charge would be made, depending on the suspect’s co-operation in participating in an interview. There are many other more appropriate explanations than the one that was given to the Applicant.

13. In the premises the Application should be granted.

    ORDERS

1.	The application is granted.
2.	The interview between Police and the Applicant on 20 august 2007 is inadmissible and is excluded from evidence.

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