R v Tahiata

This matter principally concerned an appeal against two murder convictions. There was no dispute that the trial judge erred in admitting into evidence a confession which the appellant made to police after the end of a video recorded interview whilst the DVD of the record of interview was being transferred to the DVD and so was no longer recording. The issue for determination by the Court was whether the wrongful admission of the “off-camera” confession actually caused a substantial miscarriage of justice. Flanagan JA, with whom Bowskill CJ and Buss AJA agreed, held that, notwithstanding the use of the inadmissible evidence, no actual miscarriage of justice occurred because, upon a consideration of the whole of the evidence, the Court could be satisfied of the appellant’s guilt beyond reasonable doubt.

Bowskill CJ, Flanagan JA and Buss AJA

19 April 2024

On 21 February 2020, after a 14-day trial in the Supreme Court of Queensland at Brisbane before Davis J, a jury found the appellant guilty of two counts of murder. [2] Prior to the commencement of the trial on 4 February 2020, the appellant applied for a pre-trial ruling pursuant to s 590AA Criminal Code 1899. The appellant sought the exclusion of evidence of confessions made by him to police including an off-camera confession. [9]. The trial judge dismissed the application and all the confessional evidence, including the off-camera confession which was subject of the first ground of appeal, was led at trial. Prior to making this ruling, both counsel had informed Davis J that the reasons for the ruling were not required prior to the commencement of the trial. The appellant was subsequently convicted of two counts of murder. On 3 June 2020, Davis J delivered written reasons for the pre-trial ruling. In those reasons, his Honour “accepted that he erred in permitting oral evidence from a police officer, Detective Sergeant Tunks, as to the off-camera confession”. His Honour considered that the oral evidence of the off-camera confession did not constitute a record of the confession for the purposes of s 437 of the Police Powers and Responsibilities Act 2000 (“PPRA”). [10].

The appellant appealed against his conviction. He raised two grounds of appeal:

“1.there was a wrong decision of a question of law by the trial judge in that his Honour misconstrued the phrases ‘a record of questioning’ and ‘a record of a confession or admission’ in s 439(1) of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”), and consequently wrongly ruled that the oral evidence of Officer Tunks as to the off-camera confession was admissible in the trial; alternatively, a miscarriage of justice in relation to the admission of that evidence has occurred in circumstances where the evidence was inadmissible;

2.the verdicts were unreasonable or cannot be supported by the evidence in circumstances where the four accounts provided by the appellant to the police differed in such material ways that the jury could not have been satisfied beyond reasonable doubt as to the truth of any account provided by the appellant.”

The respondent conceded that the learned trial judge committed the error of law identified in ground 1. [6]. Therefore, the primary issue in the appeal was whether the Court considered that, notwithstanding the error of law, no substantial miscarriage of justice had actually occurred. [8].

The Crown case

For context, it is important to understand the Crown case and the nature of the evidence against the appellant. The Crown alleged that the appellant acted in concert with other persons who were also charged with the two murders but were tried separately. The Crown’s case was that Breton and Triscaru were lured to a unit at Juers Street, Kingston. A number of persons whom the appellant had known since school resided at this unit, including Trent Thrupp and Lelan Harrington. The unit was often used as a meeting place and was referred to as “the Tav”. [11]. After Breton and Triscaru were lured to the unit they were tortured and subsequently placed in a large toolbox. There was no evidence that the appellant was involved in these acts. [12].

The appellant attended the unit after receiving a text message from an unknown number that his vehicle, a green Toyota Hilux, was required. He removed two smaller toolboxes from the tray of his Hilux and assisted in loading the toolbox containing Breton and Triscaru onto the tray. He then drove his vehicle in company with Thrupp to Scrubby Creek. Thrupp then caused the toolbox to be submerged in Scrubby Creek, causing Breton and Triscaru to die of either asphyxia or drowning. The appellant was alleged to have aided Thrupp “by removing the toolbox from the Hilux, throwing him a claw hammer to punch holes in the toolbox to assist it to sink, and by letting off a round from a home made gun to silence Breton and Triscaru”. [13].

The families of Breton and Triscaru reported them missing and an investigation was commenced. The appellant became a person of interest in the investigation. On 10 February 2016, the appellant was intercepted by police and informed he was being arrested in relation to both murders and that he was being detained. He was taken to the Logan Central Police Station. [14]. Whilst in custody, the appellant participated in four interviews and made an off-camera confession to the murder. The timeline of the interviews is as follows: the first interview commences at 19:28 and after being paused briefly at 19:33, was resumed at 19:42 and suspended at 20:59 (“the first interview”). The appellant then had a short sleep between 20:59 and 21:41. The second interview commenced at 21:41 and terminated at 22:22. In the course of the first interview, the appellant denied any involvement in the offences but said that he would let “the boys borrow” his green Hilux. During the second interview, the appellant sought to establish an alibi that he was four-wheel driving with his cousin and some friends on the day of the offences. [17].

At the conclusion of the second interview an off-camera confession was made. At trial, officer Tunks recalled that while the recording of the second interview was being recorded to a DVD, the appellant put his hands to his eyes and said “I did it. I killed ‘em, I murdered both of them”. [18]. Notwithstanding the appellants pre-trial application seeking to exclude the evidence of the third and fourth interviews, the walk-through, and his three signed statements, for the purposes of the appeal the appellant only challenged the trial judge’s ruling in relation to the admissibility of Tunks’ oral evidence concerning the off-camera confession. [20].

The third interview commenced at 22:55 and terminated at 23:40. At the commencement of the third interview, Tunks sought to confirm what had happened upon the termination of the second interview. [21]. It appears that Tunks sought to do this to capture the off-camera confession. Subsequent to the third interview in which the appellant took sole responsibility for the murders, he participated in a walk-through with police. In the course of the walk-through, the appellant showed police where the toolbox was submerged in Scrubby Creek and even offered to retrieve it. [22]. 24 hours after the walk-through the appellant asked to speak with police again at which time he participated in a fourth interview. The appellant proceeded to give a detailed version of what occurred which included the loading of the toolbox containing Breton and Triscaru onto his Hilux at the unit and accompanying Thrupp to Scrubby Creek where the toolbox was unloaded into the water. This version included details involving the appellant providing a claw hammer to Thrupp and the appellant letting off a round from a home made gun. [23].

Was the off-camera admission admissible

Sections 668E(1) and 668E(1A) Criminal Code 1899 required the “Court to form its own opinion as to whether there was a wrong decision of any question of law”.

Sections 436 and 437 of the PPRA provide how confessions are to be recorded. Pursuant to s 436(3) if a person makes a confession or admission to a police officer during the questioning, the confession or admission is admissible in evidence against the person in a proceeding only if it is recorded as required by subsection 436(4) or section 437. The “off-camera confession”, was lead in evidence in chief of officer Tunks. It was not admissible pursuant to s 436. In circumstances where a confession is made and unable to be recorded because it was not in contemplation, the confession may be admissible under s 437, but only if it constitutes “a record of a confession or admission” which is written. [30].

In this case, s 437 did not apply as there was no written record of the off-camera confession and the procedure in ss 437(4)– (7) was not followed. [31]. Further, Tunks’ oral evidence of the off-camera confession did not constitute “a record of a confession or admission” for the purposes of an exercise of discretion pursuant to s 439. [32]. The effect of which is that the admission of Tunks’ oral evidence as to the off-camera confession constitutes a wrong decision of a question of law for the purposes of s 668E(1) Criminal Code 1899. [33].

It was noted that in circumstances where there has been a wrong decision of law, the “question of miscarriage of justice arose only under the proviso”. [38].

The appellant did not have to show that the error of law was material for the purposes of s 668E(1) Criminal Code 1899. The materiality of an error of law is a matter to be assessed by a court of criminal appeal in considering whether the proviso may be applied and, if so, whether no substantial miscarriage of justice has actually occurred. [63]. The onus is on the Crown to show the proviso applies. [60]

Did a substantial miscarriage of justice occur

Notwithstanding the wrongful admission of the off-camera confession, Flanagan J found that upon an application of the principles of law relevant to the application of the proviso, identified at [42]–[58] of his judgment, no substantial miscarriage of justice actually occurred. [164].

In reaching his decision, his Honour considered the whole of the record, including the other admissible confessional statements made by the appellant. Of note was his Honours comment that if the off-camera confession had been the only evidence of the appellant admitting his culpability, it would have been very difficult to consider that no substantial miscarriage of justice had actually occurred. [164]. Although, that was not the case here. There was no challenge on appeal to the admissibility to the body of confessional evidence, which includes the appellant confirming the effect of his off-camera confession at the commencement of the third interview. [165].

The appellant’s primary submission as to the application of the proviso was that upon a consideration of the whole of the record, the Court would not be satisfied of the appellant’s guilt beyond reasonable doubt because of the inconsistencies in his four interviews. [166]. This submission was rejected by his Honour who logically reconciled the inconsistencies between the four versions provided by the appellant to police. [168].

Disposition

In the result, the appeal was dismissed. [1], [190], [193].

K Mythen of Counsel