SUPREME COURT OF QUEENSLAND

[1]  FRASER JA:  I agree with the reasons of Chesterman JA and the order proposed by his Honour.

[2]  CHESTERMAN JA: The appellant was arraigned on a five count indictment which charged him with unlawfully trafficking in the dangerous drugs methylamphetamine, methylenedioxymethamphetamine and cannabis sativa between 15 May 2004 and 5 December 2006; unlawfully possessing over 200 grams of the dangerous drug methylamphetamine on 4 December 2006; unlawfully possessing over two grams of the dangerous drugs methylenedioxymethamphetamine and methylenedioxyethylamphetamine on 4 December 2006; unlawfully possessing over 500 grams of the dangerous drug cannabis sativa on 4 December 2006, and unlawfully possessing the dangerous drug cocaine on 4 December 2006.  On 17 March 2010, after an eight day trial, the appellant was found guilty on all counts except the last and sentenced to a head sentence of 13 years’ imprisonment.

[3] The appellant appeals his convictions on the basis that certain evidence was wrongly admitted.  The evidence in question was the subject of a pre-trial hearing.  It concerned a conversation the appellant had with an off duty police officer at a hotel in Toowoomba, during which the appellant impliedly admitted involvement in and knowledge of the storage of drugs and cash at a storage shed complex.  The statements were confessional in nature and as such were admissible.  The defence sought to have them excluded pursuant to s 130 of the Evidence Act 1977 (Qld). 

[4] Section 130 provides:

“Nothing in this Act derogates from 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.”

[5] The trial judge declined to exclude the evidence.

[6] Before considering whether her Honour erred in admitting the evidence, it is necessary to say more of the circumstances in which the conversation took place.

[7] Police had been conducting a drug investigation which involved surveillance of the storage shed complex.  On 4 December 2006 police intercepted Mr Shane Laurie and took possession of his vehicle.  Inside his vehicle was a quantity of cocaine and methylamphetamine.  Laurie had keys in his possession which unlocked the padlocks of two storage sheds at the complex.  Inside storage shed number 20 police found weapons, ammunition, over $4,000 in cash, cannabis seeds and over five kilograms of cannabis packaged for sale in various weights.  There were over 2,500 tablets that variously contained methylamphetamine, methylenedioxyethylamphetamine and methylenedioxymethamphetamine, bags of methylamphetamine crystals, a small quantity of cocaine and some papers bearing the appellant’s name.  Inside the other storage shed, number 28, was a shopping bag containing $564,162.15 in cash.

[8] Police intercepted the appellant on 6 December 2006.  In his possession was a bum bag containing keys that unlocked the padlocks to storage sheds 20 and 28.

[9] Shed 20 was rented in the name of a Russell Harding and specified a post office box at Bribie Island as the mailing address.  The subscriber of that post office box was William Williamson, the appellant’s father.  Shed 28 was rented to a William Williamson.  Kelly Alexander, a family member associated with the storage shed business, gave evidence that the appellant regularly paid the rent of this shed by means of delivery of an envelope bearing the name “Bill Williamson”.  Surveillance footage purported to show the appellant at shed 28 from February to April 2005.

[10] On the evening of 16 December 2006, the appellant was at a hotel in Toowoomba.  Senior Sergeant Michael Newman was also there with colleagues.  The appellant and Mr Newman knew each other but were not friends.  Both had been drinking.  In his witness statement, Mr Newman estimated that at about 1.30 am or 2.00 am on 17 December the appellant approached him and stated he believed he would be charged as a result of the investigation but that “nothing would stick”.  The appellant was concerned about his “best mate” Mr Laurie and did not was to see him “do 10 years”.

[11] During the conversation the appellant asked how much money was located at the shed as he was concerned about corrupt police officers in Toowoomba.  The appellant said he “didn’t know personally” but had been told money had gone missing “and winked at the time”.  Mr Newman told him $570,000 was found in the shed, that being the amount that had been reported in the media, and asked the appellant how much he thought was missing.  The appellant held up four fingers, which Mr Newman believed indicated $400,000, and stated he thought police had taken the money.

[12] The appellant asked Mr Newman whether he would “sit in gaol for $2 million per year”.  Mr Newman responded that he wouldn’t.  The appellant said he believed Mr Laurie would.  He repeated that he wanted to help Mr Laurie and Mr Newman advised him to come in and speak to police.  Mr Newman said the police wanted “the people above (the appellant)” to which the appellant replied “they can’t be got”.

[13] (Mr Laurie was charged on the same indictment as the appellant.  He was tried separately and convicted on five of six counts.)

[14] When Mr Newman left the hotel he returned to the police station and made electronic notes of the conversation.  These notes formed the basis of his later written statement dated 8 June 2007 which was admitted into evidence.  Mr Newman also gave oral evidence at the trial.

[15] Whether or not the primary judge erred in exercising her discretion to admit the evidence is to be determined according to the principles outlined in House v The King (1936) 55 CLR 499.  An error will have occurred where the judge has acted upon a wrong principle, or has taken into account irrelevant considerations, mistaken the facts, or failed to take into account some material consideration.

[16] In cases concerning confessions or admissions, the chief focus is on the fairness of using the admissions against their maker.  See Tofilau v The Queen (2007) 231 CLR 396 at 432 per Gummow and Hayne JJ.  In R v Swaffield (1998) 192 CLR 159, Toohey, Gaudron and Gummow JJ observed that unreliability was a “touchstone” of unfairness.  Where voluntariness is not in issue, the admissibility of confessional evidence is to be decided by reference to the reliability of the evidence and the rights of the accused.  Their Honours noted (197):

“Unreliability is an important aspect of the unfairness discretion but it is not exclusive.  As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused.  Those rights include procedural rights.  There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.”

[17] It should be mentioned there was no suggestion, either before the trial judge or this Court, that the appellant’s statements to Mr Newman were made involuntarily.  The evidence indicated that the appellant had himself approached Mr Newman and initiated the conversation.  It will be necessary to return to the context and nature of the conversation later when considering the overall fairness of admitting the evidence. 

[18] Counsel for the appellant conceded the trial judge made no error of law in arriving at her ultimate conclusion but submitted that the conclusion itself was unsupportable.  Counsel submitted firstly that the evidence was unreliable due to the appellant’s level of intoxication at the time of the alleged conversation as well as the police officer’s inaccurate recollection of the conversation.  Secondly, the appellant argued the reception of the evidence was unfair due to the police officer’s delay in making a formal statement and providing that statement to the appellant.  It was said that the evidence pertained to the appellant’s control over and knowledge of the contents of the shed, issues which formed the cornerstone of the prosecution’s case.

[19] The appellant’s counsel pointed to several factors that were said to indicate the unreliability of Mr Newman’s evidence.

[20] At the committal hearing, Mr Newman initially could not recall but when prompted remembered having a telephone conversation with the appellant the day after they had met at the hotel in which they made a tentative arrangement to meet at Picnic Point.  On the advice of the investigating team, Mr Newman did not in fact meet the appellant.  The appellant points to the omission of this detail from Mr Newman’s earlier written statement as indicative of the disputed evidence’s unreliability.

[21] Mr Newman’s failure to include the phone call and proposed meeting in his written statement hardly casts doubt upon the reliability of his evidence as a whole.  As already mentioned, Mr Newman went to the police station after the hotel closed and made a prompt note of his encounter with the appellant.  He estimated the appellant had approached him at about 1.30 am or 2.00 am and he created the computer file at 3.25 am.  The close proximity in time between the actual conversation and the note speaks strongly to the reliability of Mr Newman’s evidence.  The telephone conversation occurred after this note was created.  The later telephone conversation was merely a tentative agreement to meet, with which the parties did not follow through, and did not contain details of important matters such as those discussed at the hotel.  It was not part of the evidence against the appellant.  Its omission from the written statement is not glaring and does not detract from the statement’s reliability.

[22] Counsel for the appellant also argued Mr Newman’s recollection as to the appellant’s level of intoxication was imperfect.  Mr Newman’s evidence at the pre-trial hearing was that he himself had been under the legal limit for driving at the time of his conversation with the appellant.  His evidence was that the appellant had been drinking and although he appeared to be affected by liquor he was not slurring his words. 

[23] At the trial, Mr Newman’s evidence was that the appellant

“would have gone over on a roadside breathalyser and possibly even toward a major charge, which is .15 per cent.  His eyes were bloodshot, his speech was a little slurred. … he wasn’t overly unsteady on his feet.  He was certainly able to stand up most of the time.”

[24] The suggestion is twofold: that Mr Newman’s memory was inconsistent as to the appellant’s level of intoxication, and that the appellant was so intoxicated so as not to understand the significance of what he was saying so the admission of the evidence was particularly unreliable or unfair.

[25] Whatever perceived inconsistencies there may have been in Mr Newman’s evidence as to the appellant’s level of intoxication, the trial judge made a decision based on the evidence available at the time.  That evidence was contained in Mr Newman’s written statement and his oral evidence at the committal proceeding.  The appellant bore the onus of establishing that the discretion should be exercised in his favour so as to have the confession excluded.  He chose not to give evidence at any pre-trial proceeding as to his level of intoxication but could have done so.  The appellant cannot now complain that the evidence upon which the trial judge proceeded was flawed or inconsistent with other subsequent evidence.

[26] Further, the trial judge had proceeded on the basis, consistent with Mr Newman’s evidence, that the appellant had been drinking and appeared to be affected by liquor.  However, there was “no suggestion” the appellant’s level of intoxication impaired his ability to decide whether to volunteer information to the officer.  He approached Mr Newman voluntarily and initiated the conversation.  The admissions were also far removed from the situation in R v LR [2006] 1 Qd R 435 where the appellant was so intoxicated that in his interview with police his answers “teetered on the edge of incoherence”.  On any account, the appellant was not so intoxicated such that his statements to Mr Newman were, to any extent, incoherent. 

[27] (Another issue was Mr Newman’s evidence at the committal given without reference to his note, that the amount found was $639,000 whereas in his written statement he had said the amount was $570,000.  This was not pressed on appeal but, like the evidence of the telephone conversation, does not materially affect the reliability of Mr Newman’s evidence.  As already mentioned, the contemporaneous nature of the note strongly supports the reliability of Mr Newman’s evidence.  In any case, it was proven at trial that the amount of cash found in shed 28 was about $570,000.)

[28] The trial judge also considered whether the admission of the evidence was unfair, particularly given the delay in providing Mr Newman’s statement to the appellant.  Although Mr Newman made a note almost immediately after the conversation, the note was not given to the appellant for some time.  A formal statement was not taken from Mr Newman until June 2007 and not provided to the defence until November 2007.  The indictment was issued on 8 August 2008 and the pre-trial hearing relating to the evidence of the conversation occurred on 4 March 2010.  The trial commenced on 8 March 2010.

[29] Although there was a delay between when the conversation took place, Mr Newman’s production of a written statement, and the provision of that written statement to the appellant, the appellant was put on notice from on or about January 2007 when he was arrested that the prosecution would be relying upon a conversation he had with a police officer at a Toowoomba hotel.  As the trial judge noted, the appellant was likely to remember a conversation he initiated with police officers in a hotel, discussing his knowledge of illegal drug operations so that, when put on notice of the conversation about one month later, he would recall it readily.

[30] Although it would have been preferable for the appellant to have received the written statement at an earlier date, the overall circumstances of the case indicate the admission of the evidence was not unfair to the appellant. 

[31] The appellant sought out Mr Newman in a public place, knowing he was an off duty police officer, in what appears to have been an endeavour not to assist police but to provide or obtain information in order to assist himself and/or Mr Laurie.  Mr Newman had not approached the appellant, was not questioning or interviewing him and did not induce him to say the things he did.  Provisos and requirements under the Police Powers and Responsibilities Act 2000 (Qld) were not relevant.  It was not necessary for Mr Newman to give the appellant any warning as to his right to remain silent or the potential use of his statements against him.  It was not a field interview where the appellant was being questioned on suspicion of involvement in the commission of an indictable offence and where an on duty police officer could have readily activated a field tape recorder.  As Mr Newman himself stated at the committal, “(he) wasn’t questioning (the appellant)”.  It was a conversation at a hotel where both men had been drinking and was initiated by the appellant out of self interest.  The trial judge thought it difficult to see how it would be unfair to the appellant to admit evidence volunteered in those circumstances.  I respectfully agree.

[32] One final point should be mentioned.  Counsel for the appellant suggested that the appellant may not have had personal knowledge of the information he provided to Mr Newman, but could have been relating information he had obtained from someone else.  However, counsel also conceded the case against the appellant was “strong”.  Evidently the jury agreed.  Even without Mr Newman’s account, there was significant evidence personally implicating the appellant in drug dealing.  In all the circumstances, it seems highly unlikely the appellant would have approached a police officer and volunteered information that implicated him in drug trafficking if he had only heard the information second hand.

[33] The trial judge was correct in her assessment of the reliability and fairness of the evidence.  It has not been shown that the judge’s discretion miscarried.  The evidence was rightly ruled admissible.  This conclusion makes it unnecessary to consider the application of the proviso.

[34] The appeal should be dismissed.

[35] CULLINANE J:  I have read the draft reasons of Chesterman JA in this matter.  I agree with those reasons and the order proposed.