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  • Unreported Judgment

R v Fels

 

[2020] QSCPR 6

SUPREME COURT OF QUEENSLAND

CITATION:

R v Danielle Lee Fels [2020] QSCPR 6

PARTIES:

R

v

DANIELLE LEE FELS

(defendant)

FILE NO:

1339 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 March 2020

DELIVERED AT:

Brisbane

HEARING DATES:

24 and 25 February 2020

JUDGE:

Flanagan J

ORDER:

The application for a ruling that the police interview with the defendant on 22 May 2005 be excluded from evidence at her trial is dismissed.

COUNSEL:

D C Boyle with G Wong for the Crown

C L Morgan with C Smith for the defendant

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown

Legal Aid Queensland for the defendant

  1. [1]
    The defendant applies, pursuant to s 590AA of the Criminal Code, for a ruling that a police interview conducted with her on 22 May 2005 be excluded from evidence at her trial.  The defendant’s trial on two counts of murder and one count of arson is to commence on Monday 2 March 2020.  There is therefore some urgency in determining the present application. 

The decision of Dalton J

  1. [2]
    The present application follows an earlier pre-trial ruling of Dalton J.[1]  The particulars of the alleged offending, the case against the defendant and the police investigation called Operation Charlie Raze are summarised in the judgment of Dalton J at [4][12].
  2. [3]
    Dalton J ruled that two previous interviews conducted by police with the defendant on 25 January 2005 and a statement taken from her on 2 February 2005 should be excluded.  The primary basis upon which the evidence was excluded was unfairness.  As her Honour explained:

“As to unfairness here, it is said the applicant was aged 22 and had not been incarcerated prior to her being held on remand at the time for another ‘run in’ as at 25 January 2005.  It was said she was removed from custody, placed in a room with Wells, who she was in love with, and who sought to gain an advantage for himself by exerting pressure on her.  Unbeknownst to the defendant, Wells was a police informer with his own agenda – extracting something of value from the police.”[2]

  1. [4]
    Her Honour excluded the evidence “because they were the product of ‘a continuing course of conduct and, perhaps, a continuing course of manipulation’”.[3] 
  2. [5]
    Her Honour referred to a strategy which the investigating officer, Detective Senior Sergeant Kelly, instigated for the purposes of obtaining the defendant’s cooperation:

“Having regard to the evidence at the committal and before me I find that in midJanuary 2005 Wells was arrested (on an unrelated matter) and taken to a city watch-house.  There he asked to speak to Kelly and Kelly attended the watch-house and spoke to him.  Then Kelly and/or Elliott visited Wells in prison on 20 January 2005.  As a result of these visits, and the information Wells gave Kelly, Kelly came up with a plan to have both Wells and the defendant removed from custody and taken to police headquarters so that Wells could speak to the defendant and persuade her to co-operate with police.”[4]

  1. [6]
    It was the use of this strategy and the initial failure to warn the defendant which constituted the basis for her Honour’s exercise of discretion to exclude the interviews of 25 January 2005 and the defendant’s statement of 2 February 2005:

“The police deliberately told the defendant she was not a suspect at the beginning of the first interview when that was not true.  The police allowed Wells to influence the defendant and as a result of that influence she gave an unreliable version which is prejudicial to her.  Before the second interview she was given only a short warning and she was given no explanation to ensure that she understood her status was now that of suspect, contrary to the false information she had been given only a few hours earlier.  The behaviour of the police significantly diminished the defendant’s rights and privileges, including her right to silence, her right to seek legal advice before speaking to them, and her right to have her dealings with police put on an accurate basis: that she was being treated as a suspect.”[5]

The circumstances leading up to the interview

  1. [7]
    The circumstances leading up to the interview of 22 May 2005 are outlined in detail in paragraphs 19 to 47 of the defendant’s written submissions.  The defendant at the relevant time was known as Postlethwaite, not Fels. 
  2. [8]
    On 7 February 2005, an application was made and approved for the removal of the defendant from the Brisbane Women’s Correctional Centre to Police Headquarters at Roma Street.  The application indicated that police wished to speak with the defendant regarding “further information relevant to investigation”.  The defendant would be under the control of Kelly during the period of the removal.
  3. [9]
    In the “Running Sheet for Operation Charlie Raze” there is an entry (item number 1056) made on 7 February 2005, attributable to Kelly and another officer Johnson.  It states:

POSTLETHWAITE

Remove Postlethwaite from BWP.  POSTLETHWAITE stated that she Is prepared to speak with Minors (recorded) next week If she Is successful in her Supreme Court Bail application.  Postlethwaite not questioned about cell tower locations.  She does advise however that Danny WESLH may have had her mobile in the days leading up to this offence.  She has no knowledge of the wigs or Holden Statesman (refer to previous entries).  Letter that witness received in jail to be handed to Intel and to be seized.  BINNEY updated.”

  1. [10]
    The applicant was released on bail on 18 February 2005.
  2. [11]
    On 1 March 2005, a witness, Clare Risdale, attended upon the Deception Bay Police Station to participate in a photoboard identification process with the aim of identifying a woman she saw in Tysoe Street, Deception Bay (near to the offence location) on 28 May 2004, being the date of the alleged murders and arson.  Risdale nominated the defendant as one of two women featured on the photoboard who “with hair made up would look like that woman on that day”. 
  3. [12]
    On 7 March 2005, physical surveillance of the defendant at her bail address commenced. 
  4. [13]
    On 18 March 2005, Jason Wells made an application to have the home telephone number of the defendant added to his prison call list. 
  5. [14]
    Between 23 March and the date of the interview, Wells made numerous calls to the defendant’s home telephone number.  It may be accepted from these calls that:
    1. (a)
      Wells and the defendant were in a romantic relationship which involved conversations regarding marriage and planning a future together;
    2. (b)
      the defendant was assisting Wells in his application for conditional release;
    3. (c)
      with the encouragement of Wells, the defendant was in contact with the police officers investigating Operation Charlie Raze; and
    4. (d)
      Wells was cooperating with Operation Charlie Raze (and perhaps other investigations) with the objective of achieving conditional release.
  6. [15]
    On 5 April 2005, an application was made and approved for the removal of Wells from Borallon Correctional Centre to police headquarters at Roma Street on 6 April 2005.  The application stated that police wished to speak with Wells regarding an unspecified criminal investigation.  The application indicated that Wells would be under the control of Kelly during the period of the removal.
  7. [16]
    On 6 April 2005, Kelly and Detective Senior Constable Elliott attended upon Wells at the Borallon Correctional Centre. 
  8. [17]
    On 7 April 2005, there is a recorded telephone conversation between Wells and the defendant in which there is the following exchange:

“JASON:  I spoke to Old Mate yesterday.

DANIELLE:  Yep.

JASON:  And he was shocked that I was still here.

JASON:  That – you know the other thing they were talking to me about, not that one at Depression Bay.

DANIELLE:  Yeah.  The other one, yeah.

JASON:  Yeah.

DANIELLE:  Okay.

JASON:  Mmm.

DANIELLE:  Cool.  Yeah?

JASON:  Yeah.  Sort of.

DANIELLE:  Oh, okay.

JASON:  But I’ll talk to you on the weekend and shit.”

It may be accepted that Wells’ reference to “Old Mate” is a reference to Kelly.

  1. [18]
    On 11 April 2005, there is a recorded telephone conversation between Wells and the defendant in which Wells asks the defendant to get in contact with “Old Mate” regarding making a push for Wells’ release.
  2. [19]
    There are further references to “Old Mate” and the assistance that he can offer to Wells in telephone conversations dated 12, 13, 15, 16, 17, 21, 22 and 24 April 2005.  Wells tells the defendant that he thinks it likely that he will be questioned regarding the alleged murders again.  In the call of 24 April 2005, the defendant says that she will be meeting with “Old Mate” on Tuesday. 
  3. [20]
    On Tuesday 26 April 2005, there is a further telephone conversation between Wells and the defendant in which the defendant states that she saw “Old Mate” and got a letter from the DPP saying they know she would report late until she had her bail conditions changed. This exchange follows:

“DANIELLE:  Yeah.  And Old Mate also said he’s going to ring the officer-in-charge at Redcliffe and tell them that they're not allowed to arrest me.

JASON:  But what did Old Mate say, that he’d try? 

DANIELLE:  Yeah, he said he's been trying and he'll keep on trying.  I think with me going in there, like, you know–    

JASON:   Yes.

DANIELLE:   That way he can't, you know, just tell me a heap of shit on the phone, like–           

JASON:   What did he say about us getting married? 

DANIELLE:   Oh, he thinks it's great.

JASON:   Mmm.”

  1. [21]
    On 26 April 2005, Detective Sergeant (now Detective Inspector) Stephen Blanchfield made notes in his police diary as follows:

“9am - Advised by D/S/S KELLY re: contact with Danielle POSTLETHWAITE. She attended office and was spoken to by KELLY. She was advising re: marriage arrangement to WELLS. Discuss speaking with WELLS to obtain info from/about POSTLETHWAITE.

1pm - Off at Redcliffe MIR and discuss use of WELLS and other strategies for LD. WELLS not accounted for over period and could be directly involved. Review precis of Arunta material from WELLS/POSTLETHWAITE. Discuss Class A application re: trafficking and informant. TSU to utilise their own install strategy. WELLS could be used as part of LD strategy and to wait to speak with him. Install should occur Wed next week or thereabouts.”

  1. [22]
    On 29 April 2005, Blanchfield made notes in his police diary as follows:

“Discuss with D/S STROHFELDT re: strategies for generating conversation including interviewing WELLS/TURNER. Re-interview POSTLETHWAITE. Arrange for GRAHAM to be at station at same time. Further discussions to be had re: this.”

  1. [23]
    On 14 May 2005, Blanchfield made notes in his police diary as follows:

“WELLS = yet to be eliminated

WELSH = Sth Side Bris with WHITE”

  1. [24]
    On 17 May 2005, Blanchfield made notes in his police diary as follows:

“Midday - CPO for cells with WELLS

Arunta call for Friday morning to collect at 10am

Checks to be made whether there's a contact visit for POSTLETHWAITE/WELLS”

  1. [25]
    On 17 May 2005, Wells was sent a letter from Queensland Corrective Services (“QCS”) advising him that the preliminary position of QCS was to consider not to grant him conditional release. Wells wrote a submission in reply on 6 June 2005 to which he attached a letter of support from the defendant. Wells was ultimately granted conditional release on 8 June 2005.
  2. [26]
    On 19 May 2005, approval was sought for removal of Wells to Redcliffe Police Station on 20 May 2005. This was approved by a Magistrate on the same day, with a note that Wells was “To be picked up at 8am 20/5/05 and returned 12MD 21/5/05”.  This application was made by a Redcliffe officer, Detective Senior Constable Gooley.
  3. [27]
    At 3:25pm on 20 May 2005, Wells participated in an electronic record of interview with two Redcliffe detectives, Detective Sergeant Strohfeldt and Gooley, in respect of the alleged murders.
  4. [28]
    There are references in the Arunta calls to Wells having contact with the defendant during his time at the Redcliffe Police Station or Redcliffe Watch House on 20-21 May 2005, particularly in a call between Wells and Sharon Duncan (the defendant’s aunt) at 5:49pm on 21 May 2005.
  5. [29]
    The defendant can be seen on video surveillance taken outside the Redcliffe Police Station on the morning of 21 May 2005.
  6. [30]
    There is a recorded telephone conversation between Wells and the defendant at 6:44pm on 21 May 2005.  The more relevant exchanges of that call are as follows:

“JASON:   Right?  But I want you to know right now – and I mean this Danielle – and if you love me, Danielle and you want the future and you want all this to happen, you will not say anything to anybody, you will fucking tell me …

DANIELLE:  Yeah

JASON:  ‘And I’m going to marry Danielle, but this might sound cruel but we can't get married with this hanging there, because they will rip us apart’, and then   this is what I’m saying.  They know, Danielle, they know for a fact   I’ve got to keep me voice down   they know for a fact, darl, that something   that you know something.

DANIELLE:   But I wasn’t involved, Jason.  They keep on saying I was involved.

JASON:   I know, Danielle.  Your involvement is knowing something.  That’s all it is.

DANIELLE:   I even said to Geoff that I would wear a wire to go and see Jason in gaol and he never set it up.”

  1. [31]
    On 22 May 2005, Blanchfield makes the following notes in his police diary:

“POSTLETHWAITE contacted HIG office requesting D/S/S KELLY - arrangements made for her to attend and provide fresh version to D/S/C ELLIOTT

Aunt - DUNCAN - stated she had been told who lit the fire but Danielle was scared to say and she is concerned for her family”

  1. [32]
    At 8:38am on 22 May 2005, there is a telephone record of a call from Queensland Police Service, 200 Roma Street (0408 989 356) to Danielle Postlethwaite (0419 769 623). The call duration is 40 seconds. 
  2. [33]
    It was the evidence of Kelly in the proceedings before Dalton J that he met the defendant on the Redcliffe foreshore and organised for her to participate in an interview with police officers who were rostered to work that day. Kelly was not working on 22 May 2005. 
  3. [34]
    The defendant was interviewed on video by Elliott and Campbell on the morning of 22 May 2005.  

The present application

  1. [35]
    It is accepted by the defendant that the statements made by her to police on 22 May 2005 were made voluntarily. 
  2. [36]
    The defendant submits that the statements should be excluded in the exercise of the Court’s discretion on the two following bases:
    1. (a)
      there has been impropriety on the part of the investigating officer sufficient to result in the exclusion of the statements on grounds of public policy; and/or
    2. (b)
      in all the circumstances, it would be unfair for the statements to be used against the defendant at her trial.
  3. [37]
    The defendant accepts that she bears the onus of establishing that there is a basis for the Court to exercise its discretion to exclude statements that were given voluntarily on the grounds of public policy or unfairness.  While the two classes of discretion often overlap, it is necessary to consider each separately.[6]
  4. [38]
    Six witnesses were called at the hearing of the application: Jason Wells, Mr Kelly, Detective Senior Constable Elliott, Acting Detective Senior Constable Campbell, Detective Inspector Blanchfield and Sharon Wallace, the defendant’s aunt.

The interview of 22 May 2005

  1. [39]
    If the present application is unsuccessful, the parties have reached agreement regarding edits to be made to the interview of 22 May 2005.  These edits are reflected in Exhibit 2, which is the transcript of the interview.  These edits arise from the ruling of Dalton J excluding the two interviews on 25 January 2005 and the statement of the defendant given on 2 February 2005. 
  2. [40]
    At the commencement of the interview of 22 May 2005, Elliott states his understanding that the defendant had contact with Kelly that morning and that the defendant wished to provide additional information concerning the investigation.
  3. [41]
    Elliott warns the defendant in the following terms:

“SCON ELLIOTT:  Alright.  Danielle, just as a formality, I’ll just advise you of your, your rights, okay?  You’ve been advised of them previously.  Do you understand what I’m talking about when I say I’m advising you of your rights?

POSTLETHWAITE:  Mmhmm.

SCON ELLIOTT:  You know, you have the right to remain silent which you don’t have to answer any questions or make any statement unless you wish to do so.  Do you understand that?

POSTLETHWAITE:  Yep.

SCON ELLIOTT:  Everything is being recorded here today, could later be played to a court.  You’re also entitled to have a person present of your choice.  That person can be a relative, interview friend or a lawyer, okay?  You’ve got ah Sharon here this, this morning.  Is there anyone else that you wish to contact at present?

POSTLETHWAITE:  No.”[7]

  1. [42]
    Elliott then inquires of the defendant:  “What is it that you wish to talk a - , to us about today?”  The defendant thereafter identifies the information she wishes to give which concerns her whereabouts at the relevant time.  The following exchange occurs:

“POSTLETHWAITE:  I know that I told youse that I was at Lutwyche.

SCON ELLIOTT:  Yeah?

POSTLETHWAITE:  But I didn’t really elaborate on it.

SCON ELLIOTT:  Okay.

POSTLETHWAITE:  So I’ll just elaborate.

SCON ELLIOTT:  Yep.

POSTLETHWAITE:  So I was at Lutwyche with Billy T, which is William Turner.

SCON ELLIOTT:  Yep.

POSTLETHWAITE:  And Danny Walsh and Kim White was also there, but she wasn’t in the same room as us, but she was with Danny.”[8]

  1. [43]
    The defendant explains that it was while she was at Lutwyche that she learnt of the deaths of April and Ian Bailey following a phone call made by Danny to Jason Minors.  The defendant then outlines her movements subsequent to learning of the deaths. 
  2. [44]
    The interview was suspended for 23 minutes.  Prior to the suspension of the interview, the following exchange occurred between Elliott and the defendant:

“SCON ELLIOTT:  Okay.  Um, Danielle, are you here of your own freewill?  You’ve wanted to provide this information to us?

POSTLETHWAITE:  Mmhmm.

SCON ELLIOTT:  No one’s forced you to do it?

POSTLETHWAITE:  No.

SCON ELLIOTT:  No?  Alright.  Mate, the time now ah approximately 11.26.  I now suspend the interview.”[9]

  1. [45]
    When the interview recommenced, Elliott had the following exchange with the defendant:

“SCON ELLIOTT:  Time’s approximately ind 49 am.  It’s a recommencement of a record of interview with Danielle Postlethwaite.  Ah, persons present are the same as previously.  Danielle, do you agree we’ve had a, a break, during which time, yourself and your aunty have been in the room, um and that you’ve also had a toilet break?  Um, when we’ve walked back in the room, you’ve said to us there’s something else you wanna say?

POSTLETHWAITE:  Yep.

SCON ELLIOTT:  And we’ve now recommenced the tapes?

POSTLETHWAITE:  Yes.

SCON ELLIOTT:  Alright?  Ah, what is you wanna say?”[10]

  1. [46]
    The above analysis of the interview reveals that the defendant did not make any confessional statements as to her involvement in the offences.  The Prosecution, however, intends to adduce other evidence which proves that the defendant was not at Lutwyche with others at the time of the offences.  Evidence from the defendant’s mother will be that the defendant arrived at her place at 2.10pm.  The Prosecution will rely on the alleged lies told by the defendant in the interview as capable of amounting to lies going to consciousness of guilt.  While the defendant did not make any confessional statements in the course of the interview, the information conveyed is nonetheless prejudicial. 

Public policy discretion

  1. [47]
    The unlawful conduct identified by the defendant is the failure by the interviewing officers Elliott and Campbell to comply with the requirements of s 249 of the Police Powers and Responsibilities Act 2000 (“PPRA”) and reg 34 of the Police Powers and Responsibilities Regulation 2000 (“PPRR”) – Schedule 10, Part 5, Division 1 (as at the time of the interview).
  2. [48]
    Section 249 of the PPRA provides:

249 Right to communicate with friend, relative or lawyer

  1. (1)
     Before a police officer starts to question a relevant person for an indictable offence, the police officer must inform the person he or she may—
  1. (a)
     telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; and
  1. (b)
     telephone or speak to a lawyer of the person's choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.
  1. (2)
     The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person mentioned in subsection (1).
  1. (3)
     If the person arranges for someone to be present, the police officer must delay the questioning for a reasonable time to allow the other person to arrive.
  1. (4)
     What is a reasonable time to delay questioning to allow a friend, relative or lawyer to arrive at the place of questioning will depend on the particular circumstances, including, for example—
  1. (a)
     how far the person has to travel to the place; and
  1. (b)
     when the person indicated he or she would arrive at the place.
  1. (5)
     What is a reasonable time to delay questioning to allow the relevant person to speak to a friend, relative or lawyer will depend on the  particular circumstances, including, for example, the number and complexity of the matters under investigation.
  1. (6)
     Unless special circumstances exist, a delay of more than 2 hours may be unreasonable.”
  1. [49]
    Schedule 10, Part 5, Division 1, reg 34 of the PPRR provides:

34 Right to communicate with friend, relative or lawyer

  1. (1)
     If a police officer must advise a relevant person of his or her right to contact a friend, relative or lawyer, the advice the police officer gives must substantially comply with the following—

‘You have the right to telephone or speak to a friend or relative to inform that person where you are and to ask him or her to be present during questioning.

You also have the right to telephone or speak to a lawyer of your choice to inform the lawyer where you are and to arrange or attempt to arrange for the lawyer to be present during questioning.

If you want to telephone or speak to any of these people, questioning will be delayed for a reasonable time for that purpose.

Is there anyone you wish to telephone or speak to?’

  1. (2)
     If the police officer reasonably suspects the relevant person does not understand the advice, the police officer may ask the relevant person to explain the meaning of the advice in the person’s own words.
  1. (3)
     If necessary, the police officer must further explain the advice.
  1. (4)
     If the relevant person wants to speak to a lawyer, the police officer must, without unreasonable delay, make available to the person—
  1. (a)
     if there is a regional lawyer list available and the person has not asked to speak to a particular lawyer—the regional lawyer list; or
  1. (b)
     a telephone directory for the region.
  1. (5)
     A police officer must not do or say anything with the intention of—
  1. (a)
     dissuading the relevant person from obtaining legal advice; or
  1. (b)
     persuading a relevant person to arrange for a particular lawyer to be present.”
  1. [50]
    Before I consider the competing submissions, it is necessary to consider the oral evidence concerning the circumstances leading to the police interview of 22 May 2005.
  2. [51]
    Kelly recalls that on 22 May 2005 he spoke to the defendant.  It was a Sunday and was his day off.  He received a phone call from the Homicide Squad informing him that the defendant wished to speak to him.  He met with the defendant at Redcliffe Police Station.  He believes he spoke to the defendant and her aunt, Ms Wallace, in the park across the road from the police station.  The defendant informed Kelly that she wanted to enlarge on what she had spoken about on the previous occasion.  Kelly arranged for a number of detectives who were working at the Homicide Squad to travel to Redcliffe in order to speak with the defendant.[11]  As a result, Elliott and Campbell travelled to Redcliffe to interview the defendant. 
  3. [52]
    Kelly has very little recollection of the conversation between himself, the defendant and her aunt.  Having arranged for the two other officers to conduct the interview with the defendant, Kelly does not recall whether he remained at the Redcliffe Police Station.[12]
  4. [53]
    Elliott’s recollection is that he commenced his shift on 22 May 2005 at the Homicide Squad in Brisbane.  At some point, he received a telephone call from Kelly with instructions to attend Redcliffe Police Station to interview the defendant.[13]  He recalls Ms Wallace (who was then known as Duncan) being present at the interview.  Elliott has no recollection of either seeing or speaking to Kelly when he arrived at Redcliffe Police Station for the interview.[14]  Elliott conceded that he may have spoken to Kelly at the Redcliffe Police Station but simply did not have a recollection of it.[15]
  5. [54]
    Elliott’s recollection is that the interview ended prior to the 23 minute break and then recommenced after the defendant indicated that she had something further to say.[16]
  6. [55]
    Elliott accepted that the warnings he gave to the defendant were not “precise”, but noted that a warning was given at the start of the interview in addition to indicating what was being investigated.[17]  It was not his practice to expressly inform a person that he or she was a suspect.[18]  Elliott’s explanation for not re-stating the warnings after the 23 minute suspension of the interview was as follows:[19]

“Well, I think we went through a process where there was a period of time where we felt, if an interview was a continuation of some sort – I mean, we’ve learnt since that that’s not the case.  Any new tape is another set of warnings.  But whether that was still in my mind at that time, I can’t put that into context now specifically of where a lot of our thinking was at.”

  1. [56]
    According to Elliott, the defendant was a suspect at that time.[20]
  2. [57]
    Elliott explained why the warning was not more precise:

“Probably just a little bit of lack of care by myself in – in attending to the warning.  You know, there was no – no other reason.  I mean, I had familiarity with – with Danielle but that wouldn’t have been the reason why I didn’t nail the warning precisely.  Yeah.”[21]

  1. [58]
    Elliott further explained why he amalgamated the warning in respect of “friend, lawyer and relative”:

“So is there any reason you cut that part of the thing down?----  No, it was – there was no reason for it.  There wasn’t a conscious decision.  It was just a poorly worded warning in that sense of not splitting up the – the two parts to the – to the relatives interview friends and then the – solicitor or legal representative.”[22]

  1. [59]
    Campbell’s best recollection is that the defendant was treated as a suspect which resulted in the record of interview being recorded and the defendant being warned.[23]  Campbell has some recollection of speaking to Kelly when he arrived at the Redcliffe Police Station.  He recalls Kelly being very casually dressed.  He cannot, however, recall being given any guidance by Kelly in relation to the purpose of the interview.[24]  Like Elliott, Campbell could not identify any specific reason why the warning was delivered as it was.[25]  Campbell could not recall why there was a 23 minute suspension of the record of interview.[26]
  2. [60]
    Ms Wallace’s recollection is that as at 22 May 2005, the defendant was living with her.  She recalls meeting a police officer outside the Redcliffe Police Station and having a conversation with him “about Danny going over and giving a statement”.[27]  She recalls saying, in the course of this conversation, to the defendant, “If it was my child that anything had happened to, I would like somebody to come and tell what they knew if they knew anything”.[28]  Ms Wallace’s recollection is that the defendant did not wish to speak to police but agreed to do so.[29]
  3. [61]
    Ms Wallace thought that the interview was suspended for 23 minutes so that police could check on the defendant’s whereabouts on a particular day.[30]  Her recollection of the interview was, however, somewhat limited.
  4. [62]
    The warnings given by Elliott to the defendant are outlined in [41] above.  The defendant submits that Elliott’s explanation to the defendant of her right to communicate with a friend, relative or lawyer was unclear or “at worst, presented in a way that made it appear her choice was mutually exclusive – Sharon or a lawyer”.[31]  The defendant further submits that the nature of the illegality, that is, a failure to advise the defendant that she was a suspect and to comply with the requirements of the legislation, affects the cogency of the evidence.  A failure to comply with the requirements was, according to the defendant, more egregious because of her previously being treated inconsistently by police as to whether she was a suspect or a witness.[32]  It is also submitted that the cautions ought to have been reiterated when the interview was resumed following the suspension of 23 minutes. 
  5. [63]
    It must be accepted that the warning given by Elliott did not comply with s 249 of the PPRASection 249(1) requires a police officer to inform the relevant person that he or she may telephone or speak to a friend or relative and ask the person to be present during questioning and telephone or speak to a lawyer of the person’s choice and arrange or attempt to arrange for the lawyer to be present during the questioning.  There are two conjunctive limbs to the information that must be conveyed.  This is reflected in reg 34 of the PPRR, which requires a police officer to “substantially comply” with the required wording.  This wording identifies two separate rights: the right to have a friend or relative present and the right to telephone or speak to a lawyer.  Elliott wrapped these two separate rights into one right, namely that the defendant was entitled to have a person present of her choice and that person could be “a relative, interview friend or a lawyer”. 
  6. [64]
    However, in my view, Elliott did substantially comply with the requirements of reg 34.  While the warning did not identify two discrete rights, the defendant was nonetheless informed that she was entitled to have a relative, interview friend or a lawyer present.  I do not accept the defendant’s submission that Elliott’s reference to the defendant having her aunt present made it appear that the defendant’s choice was mutually exclusive.  Elliott, having noted that the defendant’s aunt was present, still inquired of the defendant, “Is there anyone else that you wish to contact at present?”  These words were sufficient to convey to the defendant, who already had a relative present, that she was also additionally entitled to have a lawyer present if she wished.  The question having been asked by Elliott, the defendant answered in the negative.
  7. [65]
    Even if it is thought that Elliott did not substantially comply with reg 34, a failure to comply with this provision does not necessarily result in the exclusion of the evidence.[33] 
  8. [66]
    By reference to the matters relevant to the exercise of the public policy discretion as discussed in Bunning v Cross[34] I decline to exclude the interview.  It is evident from the evidence of Elliott outlined above[35] that in giving the warnings as he did, there was no deliberate disregard by him of the requirements of either s 249 or reg 34.  The defendant appreciated that she was a suspect in the investigation.[36]  It was the defendant, however, who instigated the interview.  At the interview the defendant did not make any confessional statements but rather elaborated on her whereabouts at the time of the offences.  The defendant was accompanied by her aunt who had encouraged her to tell the truth.[37] 
  9. [67]
    It is difficult to see how any inadequacy in the warnings affected the cogency or reliability of the evidence obtained from the interview.  The Prosecution case is that the version of events provided by the defendant in the interview was unreliable.  It is therefore relevant and admissible against the defendant because of the alleged lies told.  Another relevant factor that tells against a favourable exercise of discretion is the seriousness of the offences charged, namely two of murder and one of arson.
  10. [68]
    It follows that the public policy discretion should not be exercised so as to exclude the interview.

The unfairness discretion

  1. [69]
    In R v Swaffield, Toohey, Gaudron and Gummow JJ observed:[38]

“In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.”

  1. [70]
    As well as the common law discretion, the Court has a statutory discretion under s 130 of the Evidence Act 1977 which recognises the power of the Court in a criminal proceeding to exclude evidence if the Court is satisfied that it would be unfair to the person charged to admit that evidence.
  2. [71]
    The defendant identifies two bases for the exercise of the discretion.  The first is the inconsistent treatment of the defendant as both a suspect and a witness prior to the interview of 22 May 2005, which it is asserted disadvantaged the defendant in assessing whether she ought speak with police again or seek legal advice prior to any further interview.[39]  The second basis is the assertion that police unfairly obtained the cooperation of the defendant by adopting a strategy whereby Jason Wells was offered assistance concerning conditional release in exchange for him seeking to influence the defendant to speak to police in relation to the investigation.
  3. [72]
    The first basis may be dealt with briefly.  The circumstances of the interview of 22 May 2005 are starkly different to those considered by Dalton J in respect of the 25 January 2005 interviews and the witness statement of 2 February 2005.  As noted by her Honour, on 25 January 2005, the defendant was interviewed by police first as a witness and then, later in the day, as a suspect.  This was in circumstances where Kelly could give no cogent explanation for the defendant’s change in status.  Subsequent to being warned in the second interview conducted on 25 January 2005, investigators again treated the defendant as a witness by taking a witness statement from her on 2 February 2005.  This is to be contrasted with the interview of 22 May 2005.  This was the only interview conducted on that day.  It was an interview instigated by the defendant.  She knew as at 22 May 2005 that she was a suspect.  She was treated as a suspect by Elliott and Campbell.  This is evident from the fact that the defendant was warned at the beginning of the interview.  Further, it was known both to the defendant and to the investigating officers that the defendant had not been truthful in previous interviews.
  4. [73]
    As to the second basis, there is, in my view, no proper evidentiary foundation for the Court to find that police obtained the cooperation of the defendant to participate in the interview as a result of the alleged strategy. 
  5. [74]
    Blanchfield was the investigating officer who contacted the Homicide Squad to obtain the contact details for the defendant after she had mentioned that she wished to contact Kelly.  Blanchfield did not know of any strategy to use Wells as a means of encouraging the defendant to cooperate with the investigation.[40]  He believed there were a number of strategies in the course of the investigation with respect to talking to associates in order to try and elicit more accurate information.[41]  Blanchfield, however, had no recollection of Wells being brought to the Redcliffe Police Station between 20 and 21 May 2005.  Nor did he have any knowledge of a contact visit between Wells and the defendant or of Wells being interviewed by Redcliffe detectives on 21 May 2005.  He was not aware of any role police were to play in having the defendant visit Wells while he was in custody at the Redcliffe watchhouse.
  6. [75]
    Kelly agreed that for the purposes of the investigation, Wells’ involvement was as a tactic to arrange for the defendant to cooperate with the investigation.[42]  This was a tactic which Kelly used in January 2005.[43]  It was Kelly who made those arrangements for Wells and the defendant to meet in January 2005.  Kelly was, however, adamant that he had no knowledge of any strategy which involved Wells being removed from the prison to the Redcliffe watch-house and being interviewed by Redcliffe detectives in relation to the investigation.  He suggested that in light of his relationship with Wells, that if Wells was to be brought into the Redcliffe Police Station for interview, Kelly would have interviewed Wells himself.[44]  Kelly specifically denied that there was any strategy or tactic to bring Wells to the Redcliffe Police Station with a view to obtaining the defendant’s cooperation.[45] 
  7. [76]
    Elliott’s evidence was that he was at Redcliffe on 20 and 21 May.  He may well have been aware that Wells was being held at Redcliffe.  He was not, however, aware of any particular strategies that were being employed with Wells over the weekend of 21 and 22 May 2005.[46]  Elliott was not of the understanding that the involvement of Wells was as a tactic for the defendant to feel obliged to cooperate with police.[47]  Elliot stated:

“I don’t recall at any stage that we were pushing Wells to get Postlethwaite to take a particular view or provide certain information.  It was just, as I said, to – to be advised of anything that – that Postlethwaite said that – that, you know, assisted us with our investigation.”[48]

  1. [77]
    I accept the evidence of Blanchfield, Kelly and Elliott that there was no strategy through Wells for him to influence the defendant to participate in the interview of 22 May 2005.  As I have already found, it was the defendant who instigated the interview.  There is no evidence that the defendant was pressured by Wells or unduly influenced by Wells to participate in the interview.  In arriving at this finding I have had regard to the recorded telephone conversations between Wells and the defendant, which occurred on 21, 22 and 23 May 2005.  Mention is made in the telephone call of 22 May 2005 to the defendant asking the investigating officers, “if they would be helping Wells with his application for conditional release” and that the response of Elliott was, “Well, why?  I’m not going to help someone who doesn’t help me.”[49]  The content of the recorded telephone conversations is hearsay.  Further, the alleged conversation referred to between the defendant and Elliott was not put to Elliott in cross-examination.  Even if such a conversation did take place, it does not constitute a proper evidentiary foundation for a finding that Wells, through the investigators, impermissibly influenced the defendant to participate in the interview. 
  2. [78]
    There was no evidence from Wells that he sought to pressure the defendant to give a further interview with police.  Wells had regular telephone contact with the defendant.  The transcripts of these recordings do not support a finding that Wells was pressuring the defendant to speak to police in relation to the investigation.  To the contrary, in Wells’ telephone call with the defendant immediately prior to her interview on 22 May 2005, he advised her not to “say anything to anybody”, but to give the information to him.[50]  As correctly submitted by the Prosecution, no telephone call has been identified by the defendant where Wells asked her to give an interview with police about the alleged murders.[51]
  3. [79]
    It follows that the unfairness discretion should not be exercised to exclude the interview. 

Disposition

  1. [80]
    The application for a ruling that the police interview with the defendant on 22 May 2005 be excluded from evidence at her trial is dismissed.

Footnotes

[1]R v Danielle Lee Fels [2019] QSC 299.

[2][2019] QSC 299 at [107].

[3][2019] QSC 299 at [113].

[4][2019] QSC 299 at [70].

[5][2019] QSC 299 at [114].

[6]R v Playford [2013] 2 Qd R 567 per Dalton J at 591, [63] and 597, [86].

[7]Exhibit 2, page 2 line 41 to page 3 line 2.

[8]Exhibit 2, page 3 lines 18-35.

[9]Exhibit 2, page 26 lines 41-51.

[10]Exhibit 2, page 26 line 59 to page 27 line 6.

[11]T 1-28, lines 1-10.

[12]T 1-42, lines 1-15.

[13]T 1-46, lines 1-5.

[14]T 1-57, lines 29-43.

[15]T 1-59, lines 23-25.

[16]T 1-60, lines 1-16.

[17]T 1-62, lines 35-37.

[18]T 1-62, lines 35-45.

[19]T 1-61, lines 38-42.

[20]T 1-63, line 14.

[21]T 1-65, lines 34-37.

[22]T 1-65, line 46 to T 1-66, line 2.

[23]T 1-69, lines 22-26.

[24]T 1-70, lines 18-47.

[25]T 1-72, lines 10-13.

[26]T 1-72, lines 30-46.

[27]T 1-93, lines 1-4.

[28]T 1-93, lines 6-10.

[29]T 1-93, lines 10-16.

[30]T 1-104, lines 24-26.

[31]Outline of Submissions on Behalf of the Applicant, para 62.

[32]Outline of Submissions on Behalf of the Applicant, paras 63 and 64.

[33]R v LR [2006] 1 Qd R 435 per Keane JA at [51]; Outline of Submissions on Behalf of the Respondent, paras 4.5 and 4.6.

[34]Bunning v Cross (1978) 141 CLR 54 at 78-80 per Stephen and Aicken JJ.

[35][53] to [55] above.

[36]Affidavit of Alisha Radford, affirmed 20 February 2020, exhibit AAR-12, page 224 of 250; Exhibit AAR‑20, page 27 of 29.

[37]Exhibit 2, page 20, line 10.

[38](1998) 192 CLR 159 at 202, [91].

[39]Outline of Submissions on Behalf of the Applicant, para 79.

[40]T 1-89, lines 43-45.

[41]T 1-89, line 45 to T 1-90, line 2.

[42]T 2-6, lines 5-9.

[43]T 2-6, lines 20-25.

[44]T 2-6, line 44 to T 2-7, line 2.

[45]T 2-7, lines 8-16.

[46]T 2-15, lines 15-20.

[47]T 2-16, lines 5-8.

[48]T 2-16, lines 12-15.

[49]Supplementary Outline of Submissions on Behalf of the Applicant, para 11(a)(ii).

[50]Outline of Submissions on Behalf of the Respondent, para 5.8; affidavit of Alicia Radford, affirmed 20 February 2020, exhibit AAR-20, page 22 of 29.

[51]Outline of Submissions on Behalf of the Respondent, para 5.9.

Close

Editorial Notes

  • Published Case Name:

    R v Danielle Lee Fels

  • Shortened Case Name:

    R v Fels

  • MNC:

    [2020] QSCPR 6

  • Court:

    QSCPR

  • Judge(s):

    Flanagan J

  • Date:

    02 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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