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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Danielle Lee Fels  QSCPR 14
DANIELLE LEE FELS
No 1339 of 2018
Supreme Court at Brisbane
13 December 2019
16 July 2019, 16 August 2019, 11 October 2019, last written submissions received 24 October 2019
The two police interviews with the defendant on 25 January 2005 and the statement given to police by the defendant dated 25 February 2005 are not to be introduced into evidence by the Crown at the trial of this matter.
D C Boyle with G Wong for the Crown
C L Morgan with C Smith for the defendant
Director of Public Prosecutions (Qld) for the Crown
Legal Aid Queensland for the defendant
- The defendant stands charged with two counts of murder and one count of arson. The crimes are alleged to have been committed on 28 May 2004. While the defendant was a suspect at the time of the initial investigation, she was not charged until 2016. At all times material to this application the defendant was 22 years old and on remand for other offending.
- The defendant applies pursuant to s 590AA of the Criminal Code to exclude two interviews conducted with her on 25 January 2005 and a statement signed by her on 2 February 2005. The grounds relied upon are the Bunning v Cross public policy discretion and, separately, the discretion to exclude evidence which it would be unfair to admit against the defendant. The applicant accepted that the voluntariness of the interviews on 25 January 2005 was not in issue.
- During the course of the hearing the Crown accepted that the witness statement signed by the applicant on 2 February 2005 should be excluded. In my view that concession was correctly made. The remainder of these reasons deal with the two interviews with police on 25 January 2005.
Particulars of offending
- This case is concerned with the killing of siblings Ian and April Bailey. The Crown case is that the defendant is liable for both murders either because she enabled, aided or encouraged others to kill (s 7 of the Criminal Code), or because she formed a common intent with others to rob the premises where Ian and April Bailey lived, and the probable consequence of the robbery was murder (s 8 of the Criminal Code). The Crown case is that the defendant is liable for arson because after the killings she either wilfully set fire to the house where Ian and April Bailey lived or she aided or encouraged others to do so (s 7 of the Criminal Code).
- On 28 May 2004 a 000 call was received at 1.37 pm, and another at 1.49 pm. The persons making the 000 calls did not speak to the operator, though commotion, in particular banging, could be heard in the background on both calls. The first appears to have been made by April Bailey’s five year old daughter who was found unharmed in a shed near the crime scene with the relevant mobile phone. The second 000 call was made from the landline at the Baileys’ house.
- A neighbour heard banging coming from the Baileys’ house and noticed a white or cream coloured car with the boot open at the house soon before the fire.
- Police and firefighters arrived at the house at 2.12 pm. The bodies of Ian and April Bailey were found in the house. Each had a knife located near it, and Ian Bailey’s body also had a pair of scissors near it. There was petrol on both bodies. April and Ian Bailey died before the fire, although the cause of death was not able to be determined because of the damage the fire did to their bodies.
Case Against the Defendant
- The Crown case is largely based on the defendant having made various statements against interest. Several were to a friend, Jacqui Graham:
- (a)In the day or days closely preceding the offending the defendant told Jacqui Graham that “April had a large amount of speed and cash at her house and that they intended to do a ‘run in’ [robbery] on the house as they were an easy target.”
- (b)In the early afternoon of 28 May 2004 Ms Graham received a telephone call from the defendant who sounded hysterical and out of breath. The defendant said, “I think they have killed him … I think he is dead.” In the background she heard banging and heard a woman scream.
- (c)Later that evening when Ms Graham enquired as to what had gone on earlier, the defendant told her, “If they found out that I mentioned it to you, we are both dead” and “Just take it to the grave and if the coppers ask you, tell them I was with you.” The defendant also said, “The house was set on fire to hide the evidence of what happened”. She also said that there had been a “run in” with her and two men.
- (d)A few days later the defendant told Ms Graham, “It was just meant to be a run in, and they fucked it up and they went too far and killed them”. She also said, “They didn’t end up having any drugs or money at the house”.
- (e)During a prison visit to the defendant the defendant, made quite detailed statements about the offences, including that Ian Bailey was asleep on the lounge when she and her accomplices ran in and that he had his throat cut. That she was supposed to be with April, distracting her in the kitchen. When April saw what happened to her brother she stopped April from escaping “before they then killed her”. She said she tried to make a 000 call but someone pulled the phone from the wall socket. She also said that she took April’s daughter out of the house to save her from being murdered because she was a witness.
- There are significant coincidences between this information and the evidence that was found at the crime scene and other evidence in the Crown case; that is, it appears that the information came from someone who knows what went on at the crime scene at the time of the offending.
- As well as Ms Graham, a Mr Aaron Saunders will give evidence that the defendant said to him, “I drove the car to the house with two blokes. I lit the fire after they were killed. I was made to light the fire.” The defendant told Mr Saunders that she drove a Ford Falcon; that she was not the person who actually killed, and that the group of people went to the house in relation to drugs.
- After the contentious interviews of January 2005 the defendant said to another witness that she “lied the first time police spoke to her about it”. She said that the lie to police was that Tom Walsh had done the murders; that she implicated Tom Walsh because he had done something wrong to Billy T, and that she was “trying to get the police off the scent of who had done the murders”.
- She told a third witness that she had lied to police by blaming two blokes for the fire and the murders; that one of the people she nominated had been in prison at the time and she had not known it.
Early Statements by the Defendant to Police
- The defendant gave two interviews to police – 24 October 2004 and 4 November 2004 – to which no objection is taken. At these two interviews the defendant was not warned; the interviews are really in the nature of recorded witness statements.
- In the interview of 24 October 2004 the defendant says she is living at Kangaroo Point with a man named William Turner (Billy T). She knew where the house (scene of crime) was, but did not know the street name. She had met the deceased April Bailey and her de facto partner Jason Minors a couple of times, but did not really know them. She had never met Ian Bailey.
- At the time of the offending she was living with Jacqui Graham and her de facto partner at Deception Bay. She knew there had been a fire because Shane Topp was dropping her off at Ms Graham’s house and, as they were driving up Boundary Road, she saw “big smoke”. When she got home Ms Graham and her partner told her that, “It was there that was on fire”. She thought they knew because it was on the radio. She thought that was about three o’clock, after lunch.
- Not long after that Danny Walsh telephoned her and told her that Ian and April had been killed. Danny Walsh asked her to pick up Jason Minors. In response to the telephone call she went to Tracey’s house and picked up Jason Minors. He did not seem upset about the death of his girlfriend; he tried to chat her up. She took him back to Jacqui Graham’s house and later dropped him at a friend’s, Johnny Chet or Chester. Then he came back to Jacqui Graham’s house, and after that she and Jason Minors went to visit Danny Walsh. Jason Minors stayed with her for a week after that.
- She had been to April and Ian’s place seven or eight times. She had been there the day before the fire with Shane Topp. She and Topp had gone to visit Allana where they were to meet April and Jason Minors, because April and Jason wanted to sell some gold and jewellery. However, April and Jason did not turn up. Then Allana rang April and Jason; they said they were on their way, so she and Shane drove along the route they thought April and Jason would have walked to Allana’s place. However, they did not see April and Jason. They arrived at April and Jason’s house and she thought that it felt “freaky”. Shane Topp made her get out of the car and she checked, but they were not at home, so then she and Shane Topp left. The house was unlocked at the time she visited.
- Shane Topp had told her that the person who killed April and Ian went to their house because April and Ian had three ounces of speed. Shane Topp was trying to pin the offending on her and Jason Wells. It was Shane Topp who thought that April and Ian had three ounces of drugs (and gold) before the offending.
- She makes many derogatory comments about April and Ian. She says that she and Jason Wells had nothing to do with the offending because they were “up the coast” although then says that they were up the coast after the offending.
- Perhaps it was not Shane Topp but Jason Wells who dropped her off at Jacqui Graham’s house initially because he was staying up the coast with “the other April” before returning to Jacqui Graham’s. Then she decides that it was in fact Shane Topp in a white car and that she did not go “up the coast” until the day after.
- She thought Topp was a bit odd. He had a white car and she thinks a white car was seen at April and Ian’s. Topp got rid of his white car within days after “it happened”. He gave it to somebody who still hasn’t paid for it and he didn’t care about that. That was very strange because normally Topp would be looking for his money. Also, Topp believed that April and Ian had drugs even though they didn’t. She thinks that the police should have a look at Topp and also someone called Stephen McConnaughey. She mentions several times that April and Ian were killed “for stuff they didn’t even have”.
- In the interview of 4 November 2004 the defendant commences by saying she realised she had made a mistake in her last statement and that it was in fact Billy T who dropped her off at Jacqui Graham’s house on the day of the offending. The first time she knew about the fire was, as she previously said, while being driven down Boundary Road on this trip. She adds the details that they were near the McDonalds when they saw the fire and that they were in Billy T’s red Ford.
- The trip to Jacqui Graham’s house was to drop off drugs and she ended up staying there because she had a fight with Billy in the car on the way. At the time she was living with Billy T although they were not sexual partners. She realises that she might have said this trip occurred in the late afternoon but she now realises it was actually in the early afternoon after lunch.
- The defendant gives the police some theories about people who might have carried out the offending and reports other suspicious behaviour on the part of various people. The theories involve white cars.
- She had sex with Jason Minors at Danny Walsh’s house on the night of the fire. They had used drugs – “we were off our faces” and she was consoling him. The defendant said that although Jason Minors wanted to pursue a relationship with her she would not let it go any further because she “felt bad for April”.
- She repeats various other parts of the information she has already given to police in the earlier statement.
The Contested Interviews
- Detective Jeffrey John Kelly was one of the officers investigating the offending. Both the interviews which the defence seeks to exclude occurred on 25 January 2005. Kelly was the senior officer at each interview. The first interview occurred at 11.45am and the second occurred subsequently that afternoon. The circumstances in which the interviews were given were unusual. Kelly was the architect of that situation which I discuss in detail below. For the present, I am simply concerned to record what was said in each interview.
- At the beginning of the first interview of 25 January 2005 Detective Kelly says:
“… Do you agree that … we’re only questioning you in relation to your knowledge of [the fire that killed the Baileys] and that you’re not a suspect in relation to it?”
The defendant agrees with this proposition.
- The defendant gives a more detailed version of how she and Shane Topp were at Allana’s house on the morning before the fire buying jewellery from Allana. Topp bought rings from Allana and then Allana said that there was other jewellery at Jason and April’s. Allana rang Jason and April and they said they were walking to Allana’s place. She and Topp got sick of waiting at Allana’s place so they drove to Jason and April’s. She knew the way although she thought Topp was able to get there without her having to do “a great deal of directing”.
- They arrived at Jason and April’s. She was told to go and see if they were home. She did not want to. The place felt creepy. The door was open but there was nobody home. She did not go inside.
- Shane Topp was simply going to take Jason and April’s jewellery without paying them. Topp would “rip you off if you’re an easy target, and two people walking on the side of the road is an easier target ...”.
- Topp dropped her at Lutwyche at William Turner’s house. He was there; so were various other people. She particularly remembers coming home to that household and showing off the ring that she stole from Allana when everyone was looking at the jewellery. It was a “pretty uneventful afternoon”.
- William Turner dealt drugs. On the morning of the fire he got a phone call from someone and told the defendant to hurry up and get in his car; a red Ford. He dropped her off at Jacqui Graham’s house and told her that he was going to Danny Walsh’s house. It was on the trip with William Turner to Jacqui Graham’s house, near the McDonalds, that the defendant saw a fire on the left‑hand side of Boundary Road. She did not know it was April and Ian’s house. She just saw a lot of smoke. She found out where the fire was either because she heard it on the radio in the car, or because she heard it on the radio at Jacqui Graham’s house.
- When pushed about the smoke she thought that it was thick black smoke and “the house looked like it was still burning … it wasn’t just smoke dwindlin’ away”. Further “… the smoke hadn’t drifted all through the sky. It was still rising in one solid clump. … so the fire had only just happened when I was coming up Boundary Road.”
- Soon after she arrived at Jacqui Graham’s house she got a telephone call from Danny Walsh who asked her to pick up Jason Minors from Tracey’s house because his girlfriend had just been killed. Jacqui Graham drove her to Tracey’s house. They picked up Jason. She thinks this would have been just about lunch-time. Jason seemed “non-perturbed”. He refused her offer of a shot of methylamphetamine and after a while she and Jacqui Graham dropped him off at Johnny Chet’s place. Within an hour he was back at Jacqui Graham’s place; Johnny Chet drove him around, then she and Jason Minors walked around to Danny Walsh’s place. Danny asked her to unpack the boot of his car. There were sports bags and a box in the boot which contained Jason Minors’ clothes. When she came back inside everyone was sitting in the lounge-room talking. Jason Minors did not seem upset about the fire. He “was trying to talk nicely of April … but I could just tell that was forced”. They all used drugs. Jason Minors made sexual advances to her and they had sex. Jason Minors told her that he had gone out to obtain drugs when the fire occurred. He had been worried about the little girl and was glad she had gotten out of the house. He told her that someone had run through the door with a balaclava, told the kid to get out of the house.
- The next day, Jason Minors had wanted to have sex with her again but she said she couldn’t because she felt bad about his girlfriend just having been killed. He told her she was being stupid. She took him back to William Turner’s house at Lutwyche the next day, although he did not take any clothing with him.
- The defendant then had a huge fight with William Turner. As a result she left the house and stayed with Tom Walsh. Jason Minors stayed at the house of a Mark Nutly.
- The interview turns into a quite general discussion where the defendant is asked about various people and circumstances that do not seem to be related to the offending, in the course of which the following exchange occurs:
“SSGT KELLY: Where’s Toppy now?
[THE DEFENDANT]: I don’t know. I think he’s at home. I’ve been in jail, remember.
SSGT KELLY: That’s right.
[THE DEFENDANT]: But--
SSGT KELLY: Writin’ letters.
[THE DEFENDANT]: You know what I heard? That Toppy was in jail for murderin’ someone. But I don’t know if that’s true or not …”
- At the commencement of the second interview on 25 January 2005 the defendant was given an abbreviated warning. There is no explanation about why her status has apparently changed from the commencement of the earlier interview. She is not expressly told that she is now a suspect although Kelly swore that by this time she was (see discussion below).
- When asked about her knowledge of the offences, the defendant commences by saying that she received a phone call from Topp. She thought Topp told her that he had sold April and Ian Bailey three ounces of amphetamine through a third party who collected the drug on their behalf. In fact she misunderstood the information from Topp; what he really was communicating was that he had sold someone else three ounces of drug. Then she was told that April, Ian and Jason Minors had gold to sell, and she told Tom Walsh that April, Ian and Jason had three ounces of drug and gold. Later that day she says Topp told her that they had ordered another ounce of drug. Again she says she interpreted the information from Topp as relevant to April, Ian and Jason Minors but in fact it related to someone else. She telephoned Tom Walsh again and told him that April, Ian and Jason Minors were buying another ounce of drug. Tom Walsh told her that Clint Jessup and Tim were at his house and she suggested to Tom that he should organise a “run through on April and Ian and that Jason shouldn’t be home”. Jason Minors and Tom Walsh were mates and that Tom Walsh would have had Jason Minors’ mobile. She says she did not ask for them to be hurt in any way, just for the drugs and the gold to be taken.
- She told Tom that April, Ian and Jason Minors had drug and gold, “’cause he was the staunchest person that I knew and I wanted someone to run in on her”. She explains her motive. The result of this she says was, “I wasn’t told that he was or wasn’t gonna do it, but I knew that it would happen.”
- On the day of the offending she was at Lutwyche with Billy Turner when he got a phone call and they went to Deception Bay. When she was driving with Billy T to Jacqui Graham’s house she saw smoke from the fire which “looked like it had only just started because the smoke hadn’t – hadn’t filled the whole sky”. She was dropped off at Jacqui Graham’s house and Billy Turner said he was going to Danny Walsh’s house. When she and Billy Turner arrived at Jacqui Graham’s house she was told that April and Ian’s house had exploded. Later she got a phone call from Danny Walsh asking her to pick up Jason Minors from Tracey’s house. She did so; he was not upset. When Danny Walsh asked her to pick up Jason Minors she felt obliged to do it “because I asked them to run through on her”. When she heard that April and Ian had been murdered in a fire she thought it would be related to that run-in. They went back to Jacqui Graham’s house, then Jacqui dropped Jason Minors off at Johnny Chester’s house and then within the hour he returned. Later Jason Minors and she went to Danny Walsh’s place; she unpacked the boot of his car, putting a box and two bags of Jason Minors’ clothing in the garage. She slept with Jason Minors that night. The next morning she told him that she did not feel right about continuing any sexual relationship with him because his girlfriend had just died.
- The next night she had a big fight with Billy Turner; he kicked her out and she went to Tom Walsh’s place to stay. Clint Jessup and Tim were at Tom Walsh’s place and had a white Ford station wagon which belonged to Nutly.
- Her contact with Shane Topp on the day before the fire was at Allana’s house, where they looked at jewellery which Allana had to sell. She had telephoned Topp to tell him that Allana had jewellery to sell; Topp picked her up and took her to Allana’s house.
- Allana had told the defendant that Jason Minors and April had jewellery to sell. They were going to walk from their place to Allana’s place to show it to Topp. Topp became impatient with waiting so they drove in the direction of Jason Minors’ and April’s house to see if they could meet up with them. She says that “we wanted their gold”, and agreed that they we not going to pay for the gold. She and Topp did not encounter April and Jason Minors. They went to their house and she knocked at the door, it appeared nobody was there.
- It appears that Topp told her that he had sold the drug to April, and she assumed it was April, Ian and Jason Minors, when in fact it was someone else named April, the “other April”, see  above.
- After the offending “they all felt set up because there was no drugs, no gold there”. When asked how she knew there was no drugs or gold there she replies, “’cause they didn’t get any of it … that I didn’t get any of it, ’cause I know what I did and didn’t get … ’cause if they did they would have given it to me”. She says “they were all pissed off with me in a big way”. She gives a quite detailed example of how Tom Walsh was vengeful towards her as a result, including seriously assaulting Jason Wells.
- She says that in the past she had told the police things about Shane Topp because she was trying “to take the heat off” herself.
- The defendant expected to get half the drugs and gold from the run-in from Tom Walsh. She had organised a run-in previous to this one. Tom Walsh had a reputation for organising run-ins and she knew that. She knew that Clint had guns and Tom had knives. Tim had knives and a screwdriver.
- When asked about a conversation between Jason Minors and herself on the night after the offending she says that she did not betray that she knew what was going on, “I did not want Jason to know that I’d killed his girlfriend in a roundabout way”.
- She cannot explain why Jason Minors would have got his clothes out of the house before the fire.
- As to the run-in the defendant says she thought it would be easy. She thought that “they’d run in, yell a lot, point their knives at ’em, they’d sit back, tell ’em exactly where everything was, and fuck off out of there”. She thought that they would wear black jumpers and balaclavas because everyone has balaclavas. She thought they probably would have used Nutly’s car because it visited April and Ian’s place all the time and would not alert neighbours.
Defendant’s Statement 2 February 2005
- On 2 February 2005 Senior Constable Elliott was told by Detective Kelly to take a Justices Act statement from the defendant, and he did so. It is a witness statement. The proceedings were not recorded other than by Senior Constable Elliott typing the statement as the defendant spoke. It is this statement which the Crown conceded could not be tendered at trial.
- It is remarkable that a witness statement could be taken from the defendant after she had been treated as a suspect in the second interview of 25 January 2005 and after she had incriminated herself in that interview. Elliott struggled to explain why a statement was taken:
“It wasn’t a challenge type situation so far as – by their inconsistencies or – or differences in – from that version to – to this typed version. It was more a case of just asking her what her recollection of events were for the – the time of the offences and clarifying questions just to – to further explain what she was – what she had given in – in her version, but not in regards to the earlier version from the 25th of January.” – t 1-47.
- Until the point in the narrative where the defendant says she has sex with Jason Minors on the night of the offending, this statement essentially (although with some variations in detail) gives the version of events which had been given in the recorded interviews with the defendant on 24 October 2004, 4 November 2004 and in the morning of 25 January 2005. There was simply no mention of the defendant’s involvement in procuring a run in on the home of Ian and April Bailey. There is no retraction; the matter is simply not mentioned. After that point in the narrative there are some differences which might be of significance were the statement to be led in evidence. As it will not be, I will not detail them.
Further Interview with Defendant, 22 May 2005
- On 22 May 2005 the defendant gave another interview to police. She rang Kelly and they met on the Redcliffe foreshore. She wanted to give further information. He was not working that day and he arranged to have other police officers attend to speaking to her – t 1-25. By the time of that conversation Kelly said he knew that the story the defendant had given in the second interview on 25 January 2005 about her procuring a home invasion was not true – t 1-26.
- During this interview the defendant was accompanied by her aunt. She was warned in a very cursory way.
- The defendant begins by saying that she wished to give information about her whereabouts “at the time”. She says that she realises she had told the police she was at Lutwyche and reiterates that she was at Lutwyche with William Turner and Danny Walsh and Kim White. Danny Walsh was visiting William Turner to buy drugs. In the course of that transaction Danny Walsh telephoned Jason Minors to ask Jason Minors how much he wanted and, “while he was on the phone to Jason, Jason told him, my God man, they’re all dead. They’ve been killed, it’s a fire, they’ve been murdered … so then Danny took off with Kim and Billy and I left shortly afterwards.” She reiterates that she and William Turner left shortly after that and that William Turner dropped her off at Jacqui Graham’s house and she thinks William Turner went to Danny Walsh’s place. The point of William Turner going to Jacqui Graham’s place was to sell Jacqui some drug. He stayed for a short time to accomplish this and then left; the defendant stayed at Jacqui Graham’s house.
- When she and William Turner were driving to Jacqui Graham’s house they saw the fire while they were on Boundary Road.
- She received a phone call from Danny Walsh asking her to pick up Jason Minors from Tracey’s place. Jacqui Graham took her to Tracey’s place. Jason Minors said that he had been fighting with April Bailey and that he had gone out to buy drugs and that by the time he got back to the house the fire brigade was there. She thought Danny Walsh was worried that whoever killed April might want to kill Jason Minors and that is why he asked her to pick up Jason Minors.
- Jason Minors asked to be taken to Johnny Chet’s place, and he was. The defendant and Jacqui Graham went back to Jacqui Graham’s house, and then Johnny Chet and Jason both came to Jacqui Graham’s house. Then she and Jason Minors were dropped at Danny Walsh’s house by Jacqui Graham.
- The defendant says she lied to police about organising a run-in on April and Ian’s place.
“[THE DEFENDANT]: ’Cause yous told me you were going to pinch Jason for it. Wells.
SCON ELLIOTT: So what’s the point in lying to us about something [indistinct]?
[THE DEFENDANT]: I didn’t want youse to pinch him for it.
[THE DEFENDANT]: Jason’s sitting out there in the room saying to me, Danielle, you’ve got to help me out. I didn’t fuckin’ know anything. I’m thinking, oh, how the fuck do I help you out? So I lied to you.
SCON ELLIOTT: So, what you’ve told us in the past, what’s the truth and what’s the lies then?
[THE DEFENDANT]: Pretty much, I told you most of that in the past … that’d be about the truth.
SCON ELLIOTT: That’d be about the truth? So you’re that worried about ah Jason getting in trouble that you would um bring yourself into it? Is that how it works?
[THE DEFENDANT]: Well, I knew that I had nothing to do with it and I figured that youse had figured that out.
SCON ELLIOTT: Mmm. How do you know Jason didn’t have anything to do with it? …
[THE DEFENDANT]: I don’t know. …
[THE DEFENDANT]: But I know that I didn’t, and if that’s what you’re going on when I lied to you in the statement, I lied to you, I lied to you in nearly every other statement that I gave you, apart from that bit, which is always true. And youse know that I done that, ’cause obviously, Jeff [Kelly] said to me one time, I’ve chased up everything that you’ve told us and you’ve been lying to us. Youse know that I was lying to you.”
- She then says several times for several different reasons that they can be sure she is telling the truth now, and her aunt corroborates her change of lifestyle and explains that she has exhorted the defendant to tell the truth.
- She says that she had earlier told them that Jason Minors stayed with her for about a week after the offending but in fact he stayed at Johnny Chett’s place.
- She tells the police that she thought that perhaps William Turner had something to do with the offending based on a lot of circumstantial theories. She also thought it was strange that Jason Minors would say that he had left the house before the fire to buy drugs when Danny Walsh was buying drugs from William Turner on behalf of Jason Minors at the same time.
- Towards the end of the interview police told her that they have Danny Walsh’s statement and that they have corroborated that he was not at Billy Turner’s place when the defendant said he was. She has no answer to this. The police also confront the defendant with the fact that Jacqui Graham says she had no contact with her on the day of the offending. She attributes this to Jacqui Graham wanting to help her.
- In November 2015 Jason Wells gave a statement to police which included the information that William Turner had a fair bit to do with someone called April Howard. Shane Topp also dealt with April Howard. On the material I have seen this is “the other April”.
Statement on Arrest
- On her arrest on 10 September 2016 the defendant says to police:
“[THE DEFENDANT]: I just don’t even understand, I just can’t get it in my head how [indistinct] put me there. I thought I’d be fine. It was just ’cause I was a stupid smartarse when Jason Wells was freakin’ about himself, why I put myself in it. That’s where it all started. But I was actually not even there. I thought it’d be fine [indistinct]. I just don’t understand how you got this [indistinct]. Who do you think was there [indistinct]?
Circumstances of Interviews on 25 January 2005
- Detective Kelly made a Justices Act statement saying:
“4. The first occasion was on the 25th of January 2005 when I arranged the removal of [the defendant] from Brisbane Women’s Prison and had her conveyed to the office of Homicide Investigation Group in order to speak with her and clarify some points she had previously provided to other investigators during this investigation.
- On this same date I have also arranged the removal of Jason Robert Wells from prison as well and had him conveyed to the Homicide Investigation Group office as well.
- I subsequently took part in a conversation with [the defendant] in an interview room along with Detective Senior Constable Elliott. …
- At the conclusion of this conversation Wells and [the defendant] were allowed to speak privately in the interview room.
- At the conclusion of this conversation Wells told me something. (He said that [the defendant] wanted to speak with us and tell the truth).
- As a result of this I have again attended the interview room in the company of Elliott and conducted a formal record of interview with [the defendant] as a suspect in which she was cautioned as per the provisions of the Police Powers and Responsibilities Act. …
- I recall the 22nd of May 2005, I had contact with [the defendant] and met her on the waterfront opposite the Redcliffe Police Station, she was in the company of an older female I think it may have been a relative. [The defendant] has told me that she wanted to tell everything that happened.
- As a result I have arranged for Elliott and Campbell to conduct an interview with her that same day.” (my underlining)
- This description is the bare bones of a strategy which Kelly came up with in order to obtain more information from the defendant. Having regard to the evidence at the committal and before me I find that in mid‑January 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.
- At the committal hearing in this matter Jason Wells gave evidence about what happened on 25 January 2005. Detective Kelly brought him out of custody to police headquarters because, “he wanted me to talk to Danielle” about the Deception Bay murders. Kelly wanted Wells to bring about the result that the defendant gave further information to police. I accept that evidence as true. Both Kelly and Elliott gave evidence to like effect – t 3-23 committal transcript, and tt 1-15 and 1-53 of the transcript of 16 July 2019 (before me).
- In November 2015 Jason Wells gave a statement to police which contained the following paragraphs:
“I remember sometime after the murders I was in police headquarters at the request of police officer Detective Jeff Kelly. At the time I was in custody in prison. I was asked by Detective Kelly to speak with Danielle who I was at this stage in a relationship with to tell the police what she knew about the murders. …
I remember providing some letters written by Danielle to Detective Kelly, Danielle would have given these letters to me, I would not have pinched them. I remember that Danielle was shitting herself a bit over the letters when she found out that the police had the letters.”
- Wells said that he had a choice about whether or not to assist Kelly. I accept that. Wells said there was nothing in it for him – t 1-29 of the committal transcript. I do not accept that. Wells was a police informer. He initiated contact with Kelly from the Watch House earlier in January. He was in trouble and was looking to gain any advantage he could. I accept Kelly’s evidence that Wells would have co-operated with him on that day because he would be “looking for some benefits down the track” – t 3-21 committal transcript. Before me he said, “He’s not some model citizen who’s doing it because that’s the – the right thing to do”. – t 1-28.
- I am quite comfortable finding on the balance of probabilities that the discussions between Kelly and Wells at the watch-house and then Elliott and/or Kelly at the prison laid the groundwork for this strategy of Kelly’s to have Wells talk to the defendant in order to get her to further co-operate. On the evidence before me, it must have been the case that Wells and Kelly anticipated that Wells could bring about the defendant’s co‑operation because the defendant was in love with Wells and Wells would therefore have influence over her. Wells thought that the defendant had more information to give and that it might incriminate her, see  below. It must also have been the case that Kelly believed (either independently or because Wells persuaded him) that the defendant had more information to give - why else would he have organised the events of 25 January 2005.
- There was a dispute on the evidence before me as to when Wells gave Kelly a bundle of letters written by the defendant. All but one of the letters are love letters in which the defendant expresses her love for Wells, and in many of which she reproaches him for not reciprocating that. Emotional inequality between them is very evident. One conclusion to be drawn from them is that the defendant would likely be influenced by Wells and that she would likely assist him if she thought she could.
- With the letters which Jason Wells gave Detective Kelly is one page, perhaps the second page, of a letter which, it was accepted by the Crown and defence, was written by the defendant to William Turner. It reads in part:
“The police questioned me about April and Ian’s (from Deception Bay) murder again the other day. They wanted to know where I was. I told them you dropped me at Jacqui and Jamie’s hope you don’t mind. Toppy lead them to me the dog he is. Anyway they think I was there at the time I told them we saw the smoke from the car on the way to Jacqui and Jamie’s. There’s no way I could have been there. Anyway, that’s all I said. I needed an alibi, just so you know, what else is going on, Cookie is going to steal Toppy’s car and burn it, good for him.”
- The defendant submitted that from the time the police received this alibi letter the defendant must have been a suspect. I accept that as correct having regard to the contents of the alibi letter and to the other indications that the police were very interested in the defendant – for example, they were receiving and logging her Arunta calls from prison. I do therefore need to determine when Wells gave the bundle of letters to the police.
- Detective Kelly swore before me that he received the letters from Wells on 25 January 2005, but only after the interviews on 25 January 2005 with the defendant – t 1-12 and t 1‑15. I must say that it seems inherently unlikely that Wells would bring the letters in from prison for Kelly, and speak to Kelly at least before the second interview with the defendant, and not give the letters to Kelly. Wells must have known how relevant the alibi letter was, he was in effect selling his services to Kelly, the letter had great value as part of this transaction. As well, I find that Wells had discussed the letters with Kelly. If Kelly had not obtained them before 25 January 2005 it defies belief that he would not ask for them at the beginning (not end) of the day.
- Elliott could not say when the letters were given to Kelly – t 1-50; he had no first-hand knowledge. The evidence shows that throughout these events he was very much the junior officer acting on instructions from Kelly.
- Kelly, in argument from the witness box, said that if he had the letters on 25 January 2005 he would have put the letters to the defendant. He also relied upon the fact that the letters are not shown as received in the police log of events until 3 February 2005.
- The difficulty with the first of these propositions is that the letters were on Kelly’s account received before the interview of May 2005, yet they were not put to the defendant then. Further, the police spoke to the defendant on 2 February 2005. If the alibi letter had been received the next day it is difficult to know why police did not take up with her again immediately.
- As to the second proposition, the police log of events in this matter has been shown to be unreliable. I think this is most likely a product of the fact that the investigation is so old. The evidence was that there was a running sheet kept for the investigation. However, it no longer exists and it appears that matters from the running sheet have been amalgamated into a log of events – it is this amalgamated log which shows the letters received on 3 February 2005. There were significant chronological difficulties shown with this log in relation to other matters – see, for example, tt 1-8-9 of the transcript of 11 October 2019 and t 1‑11 of that transcript. This was in relation to the issue of whether or not the defendant was removed from custody on 7 or 8 February 2005. Based on Elliott’s evidence I find she was not, but that matters relating to her removal from custody on 25 January 2005 were incorrectly logged as occurring later than they in fact did. In addition, the log records both the interviews with the defendant from 24 October 2004 and 4 November 2004 as being logged in November 2004; once again, later than their actual occurrence.
- Implicitly at least, Kelly accepted that if he had the letters before the interviews of 25 January 2005 he should have treated the defendant as a suspect. However, he said that the first time he regarded the defendant as a suspect was after Wells and the defendant spoke together. Kelly’s evidence was that at the conclusion of this conversation between Wells and the defendant, Kelly met privately (ie., the defendant was somewhere else) with Wells, and Wells told Kelly that the defendant was prepared to give the police information which was to confess her involvement in the offending - t 1‑22. For this reason, Detective Kelly set up an electronic record of interview for the second interview with the defendant on 25 January 2005 and gave a perfunctory caution to her at the beginning of that interview - t 1‑24.
- One major difficulty with that version of events is that it is contrary to Detective Kelly’s Justices Act statement - see the underlined parts at paragraph  above. If all Wells said was that the defendant wanted to tell the truth, that did not make the defendant a suspect when she otherwise was not. Paragraphs 8 and 9 of Kelly’s Justices Act statement imply that the defendant was a suspect before the conversation recounted at paragraph 8, ie., when Detective Kelly knew the defendant was going to tell the truth, he realised she should be warned.
- In any case, having regard to the fact that Detective Kelly asked Senior Constable Elliott to take a witness statement from the defendant just a few days later and that was done without a caution being administered, at a time when the defendant was, on Detective Kelly’s evidence and Senior Constable Elliott’s evidence, a suspect, I have no faith that Detective Kelly or Senior Constable Elliott would have insisted on a caution at the beginning of the first interview on 25 January 2005 had the defendant been a suspect. Having regard to those matters, I reject Detective Kelly’s evidence that he did not have the alibi letter before the first interview on 25 January 2005 and proof of that can be found in the fact that the defendant was not warned in the first interview on 25 January 2005.
- I approach the evidence of Wells with appropriate scepticism given his criminal record and the real potential for him to have reasons to dissemble about the matters bearing upon his activities on 25 January 2005.
- Wells gave evidence before me by video-link. He was generally unco-operative with the applicant’s counsel. His evidence was that he gave the letters to Detective Kelly before the interviews with the applicant on 25 January 2005:
“… In January 2005, you had some conversations with an officer called Detective Senior Sergeant Jeffrey Kelly?--- Yes.
Did that conversation take place, to the best of your recollection, at Borallon Prison or at the watch-house?--- Herschell Street, I believe.
… You had previous dealings with Detective Senior Sergeant Kelly?--- Yes.
And you passed on some information to Kelly in January of 2005 in relation to [the defendant]?--- Yes, in regards to the letter.
… Just tell me if you disagree with this. I’ll just put something to you. You had a conversation with Detective Kelly about letters that had come into your possession, supposedly written by [the defendant]?--- Yes.
And one of those letters discussed an alibi for the Deception Bay murders, the Deception Bay fire?--- Yes.
And that was a letter purportedly written by Danielle to a guy called Billy T, William Turner?--- Yeah.
And you gave that to Jeffrey Kelly around the middle of January 2005?--- I think so. I think that’s correct.
As a result of you giving that letter to Senior Sergeant Kelly, you understood that you were going to brought into headquarters to talk to [the
defendant]?--- Yes.” – t 1-32.
- In re-examination on this topic Wells confirmed that his memory was the letter the defendant wrote to William Turner about an alibi was given by him to Jeff Kelly on a visit before the interviews of 25 January 2005. He admitted to some difficulty with memory – t 1-39. Nonetheless, his recollection was that there was some arrangement regarding the letter made before he was brought into police headquarters on 25 January 2005 because he thought that he either gave the letter to Kelly before this on a jail visit or he was told to bring it into police headquarters with him – t 1-40. He seemed confident as to this in re-examination – t 1-40. When he had contact with Kelly and Elliott at the watchhouse and at Arthur Gorrie he told them that they should be looking at the defendant because of the letter she had sent – t 1-4.
- The applicant relies upon the reference to letters in what Detective Kelly said to the defendant during the first interview – see paragraph  above – as showing that Kelly had the letters by them. I acknowledge that this submission is somewhat speculative but I am inclined to accept it. There is no other reason for the remark about letters to be made except that Kelly was in some way trying to flag to the defendant that he had letters she had written and therefore perhaps unsettle her. It seems consistent with Detective Kelly’s personality style as displayed in the interviews and also in his evidence. He seems keen to display his worldliness, understanding of the drug world and demonstrate that he is one step ahead of those he deals with.
- I find, on the balance of probabilities, that Wells gave the letters to Detective Kelly before Kelly’s first interview with the defendant on 25 January 2005. Further, I find that the likelihood is that Kelly read the letters, including the alibi letter, before the first interview. This was Wells’ recollection and he maintained that recollection in his evidence, including in re‑examination, notwithstanding that his evidence generally was fairly perfunctory and certainly not aimed at assisting the applicant. Wells’ evidence about this is sensible in the overall scheme of things. From the time he asked to speak to Detective Kelly in the watch-house, Wells was trying to gain an advantage for himself of some kind. The strategy of interviewing Wells and the defendant together at police headquarters rested on the bases that (1), Wells would have some influence over the defendant and (2) the defendant had something significant to say. The letters showed the potential for Wells to influence the defendant and that the defendant might be involved in the offending. That is, Wells had an interest in giving the letters to Kelly. Once he had the letters, Kelly had an interest in reading them in order to see whether the exercise he was contemplating was worthwhile and to gain information about the defendant and her thinking before interviewing her.
- Once Kelly had read the alibi letter the defendant was a suspect and should have been treated as one. She should have been given a full warning at the beginning of the first interview on 25 January 2005. This was not done. Instead she was told she was not a suspect – see  above. In light of my other findings, this was a deliberate and dishonest ploy by Kelly. Not only this, but at the start of the second interview the defendant is given an abbreviated warning only; she is not expressly told she is a suspect, and she is given no explanation as to her status having changed from that advised to her only a few hours before.
- As appears from the outline of events in Detective Kelly’s Justices Act statement, in furtherance of Kelly’s arrangement for Wells to influence the defendant, after the first interview with the defendant on 25 January 2005, Wells was left alone with the defendant in a room. There was an officer at the door and they were given something (KFC) to eat for lunch; allowed to have cigarettes and a cuddle – t 1-30 of the committal transcript. Detective Kelly said and that Wells’ task was to persuade the defendant to tell the police the truth – t 3‑23 committal transcript. Wells said he told Danielle that he needed her to help him by telling police what she knew about the Deception Bay fires – t 1-31 committal transcript.
- Another contentious part of the evidence revolves around whether or not police told the defendant that Wells was a suspect for the offending. Kelly and Elliott both swore that in fact there has never been any suspicion that Mr Wells is involved in this offending. There is no evidence to contradict this and I find that is true.
- In the interview of May 2005 the defendant said that she lied about organising a run in on the Bailey’s home because police told her that they were going to arrest Jason Wells for it – . She says this to Elliott who does not deny it, although I accept that must be of little weight. The idea that Wells considered himself a suspect did emerge in his evidence: Wells continually denied that he hoped for a benefit in terms of early release or something similar but conceded that he was hoping for a benefit: that the police would not suspect him of having been involved in the offending – t 1-37. There was more evidence to this effect on 11 October 2019 – t 1-5.
- Kelly swore that there was never any discussion with Wells or the defendant about the fact that Wells was possibly a suspect – t 1-9. Elliott said he never suggested to the defendant or Wells that Wells was a suspect and that he was never party to a conversation along those lines – t 1-45.
- For reasons which I think sufficiently appear above I do not consider the evidence of the defendant, Wells or Kelly particularly reliable. I consider the evidence of Elliott more reliable, but as explained, I am not convinced that he was aware of everything Kelly was doing during the events I am discussing. I am not in a position to make any finding about whether or not the police told the defendant that Wells was a suspect for the offending.
- However, I do find that the defendant probably was of the view that Wells was a suspect. He may well have conveyed that to her. Even if he did not, she may well have inferred it from the fact that he was at police headquarters in the custody of Kelly who was investigating the offending. On the evidence before me there is no other reason for the defendant to think she could help Wells by giving information about the offending to Kelly. At times Wells has said that he was hoping for a “conditional release” in return for his assistance in persuading the defendant to speak to Kelly. Even if he was, his desire for early release was hardly likely to persuade the defendant to talk to (or confess to) Kelly. On the evidence the only realistic motive for the defendant to give information to Kelly was to exculpate Wells because she believed him to be a suspect.
Public Policy Discretion
- It was submitted that the police conduct in obtaining the defendant and Wells from prison was illegal in the sense that a wrong procedure was used. In each case the police applied for warrants under the Police Powers and Responsibilities Act from a Magistrate. Such warrants are only appropriate if the person to be removed from the custody of Corrective Services is a suspect. If the person is not a suspect the procedure under s 55 of the Corrective Services Act must be used. The Corrective Services Act procedure involves the prisoner consenting to be removed from custody by the police. Further, the Police Operations Manual at cl 2.5.8 provides that if the Corrective Services procedure is used and, while the prisoner is in police custody, the prisoner becomes a suspect, Corrective Services must be consulted as to what ought happen.
- In this case I have found that at the time she was removed from custody, the defendant was a suspect. There was no breach of the Police Powers and Responsibilities Act or the Police Operations Manual in her case.
- Wells was not a suspect. He should have been removed under the Corrective Services Act. Had an attempt been made to use this procedure there is no doubt Wells would have consented to be removed. He was actively trying to assist police in any way he could.
- The defendant and Wells were left alone in circumstances where they would not have had the opportunity to so speak to each other alone had they remained in Corrective Services’ custody.
- It was Senior Constable Elliott who organised the removal of both the defendant and Wells from prison. His evidence was that he did not know of the Corrective Services Act procedure. I believe him. It is not as though he used a shortcut, nor is it as though he used some surreptitious method. He applied for warrants to Magistrates to remove both Wells and the defendant.
- There is a very curious Corrective Services Act form which must, it seems, have been made after the event, for it refers to the Corrective Services Act 2006. Senior Constable Elliott could not explain this form. He did not make it, and I cannot attribute any bad practice, or poor practice, to the police in this case because of its existence.
- The CMC produced a report in July 2009 which dealt with allegations of police misconduct. Part of that report dealt with police improperly removing prisoners from custody. I have read the relevant part of the CMC report. I am not convinced that it deals with conduct of the type which occurred in this case.
- In conclusion, so far as breaches of the law relating to the removal of the defendant and Wells from custody are concerned, I cannot see that there were anything more than unintentional and minor breaches by the police.
- The most serious breach of procedure is that the defendant was not warned before the first interview. She should have been given a full caution, for by that stage she was a suspect. Not only was she not cautioned, she was told she was not a suspect. As recorded above, I find this was a deliberate and dishonest ploy by Detective Kelly as part of a rather complicated (and, in my view, not very compelling) plan to first have a friendly interview with the defendant, then let her talk to Wells, and then have a more serious interview. In my view, this was very poor practice. Having said that, it could not be said that the defendant says anything much different in the first interview of 25 January 2005 to what she has said in the interviews in October and November 2004.
- The discretion to exclude evidence for unfairness is a separate discretion to the Bunning v Cross discretion (considered above). 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. When these type of matters were suggested to Detective Kelly in evidence he scoffed rather theatrically and expressed disbelief that defence counsel would seek to portray the defendant as an innocent.
- The defendant certainly was not an innocent having regard to her lifestyle, her personal conduct and her criminal conduct prior to 25 January 2005. However, her youth, with its associated arrogance and impetuousness and antisocial behaviour, along with her feelings for Wells did mean that she responded to Kelly’s ploy of allowing Wells to influence her in a way which is very prejudicial to her interests on a trial.
- It might be supposed that Kelly hoped the defendant would respond to his ploy by confessing her involvement in the offending. In fact, her response to the ploy was to tell a false story to police. The story exculpated Wells and inculpated Tom Walsh who Wells, and the defendant, had grievances against. In this way, the story the defendant told can be seen to be motivated by, and a direct consequence of, Kelly’s ploy: the defendant did wish to demonstrate her love and loyalty towards Wells by assisting him. She did not, however, wish to implicate herself, so she told a story which appeared to implicate her in some offending, but was so far from the truth that she was confident it would not in fact implicate her because she realised police would easily disprove it.
- Telling the false story that she and Tom Walsh were behind the offending was not in the defendant’s interests. This can clearly be seen now, as the Crown seeks to rely upon the information given to police as not only lies going to credit, and lies showing consciousness of guilt, but as partial admissions to the offending.
- The defendant submitted that the conduct of the police affected the cogency or reliability of the evidence that was obtained from the defendant. I think this is the strongest argument the applicant has. On its face, the defendant’s story to police in the second interview of 25 January 2005 was simply false: Tom Walsh, Clinton Jessup and Tim did not carry out the run in which resulted in the deaths of April and Ian Bailey. However, the false story reveals a motive for the run in: the belief that April and Ian Bailey were in possession of three (or four) ounces of drug and some gold. It reveals that the defendant believed that April and Ian Bailey were in possession of these items before the run in. It provides material from which a jury might conclude that there would be significant financial benefit to the defendant sharing that information with others, bringing about, and participating in, a run in. It provides information which the jury might use as an explanation for why a simple robbery was not committed at the run in, but that matters escalated so that April and Ian Bailey were murdered: the belief that April and Ian Bailey had significant amounts of drug and gold was false based on the defendant’s confusion between April Bailey and April Howard. Therefore, when persons demanded drugs and gold from April and Ian Bailey they would not have been produced, for they did not have them. The false version the defendant gives about her organising a run in performed by Tom Walsh contains the detail that Jason Minors was not to be hurt in the run in. In fact, the run in which occurred happened at a time when Jason Minors was absent from the house and he was not hurt in the run in. The defendant seems to have held some affection for him. Lastly, the defendant’s false version includes the details that the persons who performed the run in on April and Ian Bailey’s house had knives (inter alia). In fact, the evidence is that April and Ian Bailey’s bodies were found with knives very close to them.
- The Crown’s purpose in leading evidence of the defendant’s having given this false version to the police is to rely upon factors such as these as partial admissions. It can be appreciated that the jury might well accept such a submission by the Crown. The details given by the defendant are capable of being understood to show that she had knowledge of the motive for the run in; knowledge of the reason the run in escalated to offending of murder and arson; and knowledge of other salient details of the offending and surrounding circumstances. Obviously one explanation for such knowledge is that the defendant was involved in the offending. The fact that there are other logical explanations, for example, that the defendant knew someone who carried out the offending and received details of it from them, makes the reception of the evidence very much to the defendant’s disadvantage.
- The applicant submitted that both the contentious interviews with the defendant should be excluded because they were the product of “a continuing course of conduct and, perhaps, a continuing course of manipulation”. I accept this submission. In my view the reception of the two interviews conducted with the defendant on 25 January 2005 would be so unfair to the defendant that they should be excluded from evidence.
- 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 see 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.
- Although it featured significantly at the hearing of this matter, my view is that the conduct of allowing the defendant to speak to Wells is only one concerning aspect of the police behaviour on 25 January 2005. In my view the failure to protect the defendant’s right to silence and right to legal advice and the unreliability of the version which the police behaviour produced add much to the emotional manipulation involved in Wells influencing the defendant. I exercise my discretion to exclude both interviews because their reception into evidence would be unfair to the defendant.
 Page 56 of the transcript of the interview.
 Segment 2 of the report which is exhibited to the affidavit of Radford, filed 8 October 2019.
 R v Playford  2 Qd R 567, ; considerations relevant to each separate discretion are likely to overlap and do in this case.
 There are reasons to suspect the police never believed this false story. The defendant was not charged after revealing complicity in offending on 25 January 2005, or in the days following this. Certainly by May 2005 the police tell the defendant they know that her story was false.
 Unreliability has been said to be the touchstone of unfairness – see the case cited at  of Playford above.
 Transcript 16 July 2019, p 1-68.
- Published Case Name:
R v Danielle Lee Fels
- Shortened Case Name:
R v Fels
 QSCPR 14
13 Dec 2019