The Queen v Wilson[1997] QCA 265

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 182 of 1997.

Brisbane

[R v. Wilson]

THE     QUEEN

v.

VINCENT PATRICK WILSON

Appellant

Macrossan C.J.

Pincus J.A.

Byrne J.

Judgment delivered 29 August 1997

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS: CRIMINAL LAW - manslaughter - appeal against conviction - whether confessional evidence in interview with police should have been rejected on grounds of unreliability and lack of voluntariness - appellant under the influence of alcohol when interviewed - whether trial judge should have excluded evidence of interview on basis that police did not observe rules for interrogation of Aboriginal persons - Queensland Police Service Operational Procedures Manual para. 2.14.11.

Anunga (1976) 11 A.L.R. 412

Counsel:  Mr A Rafter for the appellant.

Mrs L Clare for the respondent.

Solicitors:  Legal Aid Queensland for the appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing date: 23 July 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 29 August 1997

The appellant was convicted after a trial at Townsville of manslaughter, on the basis that he unlawfully killed one Pompey.  There is a notice of appeal against conviction which contains two grounds, the only one pressed being that the judge should not have admitted evidence of a conversation between the appellant and police, during which the appellant made incriminating statements.

Pompey was, on the Crown evidence, killed as a result of being punched and kicked by the appellant.  Pompey was attacked on 7 November 1995 and on the following morning one Brown spoke to the appellant about Pompey, who was then said to be in a coma;  the appellant said to Brown, "I kicked him in the head and I kicked him in the guts.  I think I killed him."  On that same day the police had two conversations with the appellant;  that which is relevant to the ground being discussed occurred at the office of the Townsville CIB about 10.30 pm.  A Ms Douglas, a niece of the appellant, was present.

After evidence was taken in a voir dire the primary judge declined to exclude evidence of the interview at the police station;  his Honour had been asked to do so on the grounds of lack of voluntariness, unfairness and unreliability.  The judge treated the appellant as an unsophisticated man, not well educated, and one who spoke in what the judge understood to be Aboriginal English.  His Honour remarked that this was "not easy to understand, either on the tape, which may be a product of the quality of the tape . . . or even when giving evidence before me".  The judge accepted that the appellant was to some extent affected by alcohol at the time he was interviewed.  His Honour found that the answers given in the interview were coherent and sensible and given without prompting, to the extent that "[the appellant] purported to have a recall, and included detail".

It appears that the judge accepted evidence of Ms Douglas that the appellant had "got over the worst of the alcohol by the time he was interviewed by the police, and, . . . he was no longer drunk, but . . . he was shaking . . . ".   The interviewing police officer, Sergeant Drinnen, asked the appellant at a point close to the beginning of the interview whether he agreed that he had come to the police station of his own free will.  Ms Douglas explained that to the appellant by saying, "They never forced you or anything, you came here on your own free will?".  The appellant replied, "Yeah".  Sergeant Drinnen then gave a warning in conventional terms and asked whether the appellant understood;  he replied that he did.  After answering some questions the appellant told the police he did not want to answer any more.  From that point the police asked no more questions relevant to the circumstances of Pompey’s death.

It does not appear to us that there is any substance in the contention that the judge should have rejected the confessional evidence on the ground of unreliability.  It is true that on the judge’s findings there was some difficulty in understanding what the appellant intended to convey and it is also true that the appellant was to some extent under the influence of alcohol when interviewed by the police.  One could hardly have confidence in all the details of what he told the police;  but this is not a case in which the precise accuracy of details matters much.  There seems no reason to doubt the truth of the appellant’s statements to the police to the effect that he bashed and kicked Pompey into unconsciousness, because Pompey was "too smart" and because the appellant was drunk.  Nor does it appear to us realistic to suggest that the confession should have been rejected as not having been given voluntarily.  It is true that, the circumstances being as they were, it would have been prudent for the police to have tested the appellant’s understanding of his right to remain silent;  but he appears to have understood that well enough, as he demonstrated when, apparently tired of the interview, he told the police he did not want to answer any more questions.

The only remaining question is whether the judge should have excluded evidence of the interview on the basis that the police did not observe the rules for interrogation of Aboriginal persons, set out in Anunga (1976) 11 A.L.R. 412.   The rules are set out in para. 2.14.11 of the Queensland Police Service Operational Procedures Manual, at the front of which Manual one finds the following:

"The Operational Procedures Manual is issued pursuant to the provisions of Section 4.9 of the Police Service Administration Act 1990.".

The Manual is issued with the Commissioner’s authority and s. 4.9(3) of the Act mentioned makes the Commissioner’s directions binding on every officer or staff member to whom they are addressed.  The rules are reproduced in the Manual following an introductory text which explains that they are "guidelines".  Of Anunga, the text remarks:

"Although this case does not purport to make new rules of law about the interrogation of suspects, it may be said that it lays down guidelines designed to ensure that Aboriginal suspects are treated fairly."

This description of the rules suggests that they are not intended to be binding as a matter of law.  However, whether or not breach of the guideline is, strictly speaking, an illegality, it appears to us that any such breach must be taken into account in determining whether it is fair to admit the results of the interrogation of an Aboriginal person.

On behalf of the appellant reliance was placed upon guideline (iii) which urges "great care" in administering the caution and that, having explained the caution in simple terms, the police should ask the Aboriginal "to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent".  This process was not followed in the instant case, but it does not appear to us that this breach of the guidelines should have been regarded by the primary judge as a compelling reason to reject the confessional evidence.  As has been pointed out, it appeared that the appellant regarded himself as having a right to decline to continue to submit to interrogation about Pompey’s death;  he did so.

It is argued, also, that the spirit of guideline (vii) was not observed.  This requires that people not be interrogated when they are disabled by illness, drunkenness or tiredness.  The word "disabled" introduces a question of degree and plainly does not mean absolutely disabled.  Here there was presumably some disability;  one might think that the appellant’s moderate state of drunkenness interfered with the accuracy of his recollection of what occurred.  It does not appear that the guideline is designed to prevent interrogation of people who are in any way affected by alcohol and the question whether it is fair to proceed with an interrogation of a person who has obviously been drinking alcohol must be a matter of judgment.  It does not appear to us that this guideline was breached, in letter or in spirit.

It should be mentioned that there are questions, the answer to which may not be completely clear, as to the way in which the Court should weigh the considerations just briefly discussed, reliability and fairness, in determining whether to let in confessional evidence.  In the present case it is unnecessary to discuss these issues of law and to consider in what circumstances a confession, thought to be reliable, should be excluded on the ground of unfairness.  Here, the primary judge’s discretion was, in our view, correctly exercised, as there was no reason to doubt the reliability of at least the substance of what the appellant said in the interview, nor was there any such unfairness as could justify, or require, the exclusion of the confessional evidence.

In short, it is our opinion that the exercise of the judge’s discretion in admitting confessional evidence was correct and the appeal must be dismissed.