R v Bradshaw[2025] QCA 172

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  Mark Edward Petersen died from smoke inhalation in the early hours of 15 August 2019.  His body was found in his home in Hill Street, Lakes Creek near Rockhampton.  The house had been burned down in a fire.
2. [2]
   On 14 September 2019, the appellant drove from Rockhampton to the Roma Street Police Station in Brisbane and told a senior constable he had set fire to a house in Hill Street, and that he believed someone was in the house at the time.  Later that day, the appellant participated in an interview with three other police officers at the Mary Street Police Station (the interview), in which he gave details of how he set the fire at the house.  He said he did so as an act of vengeance.
3. [3]
   The appellant was charged, and later committed for trial for the murder of Mr Petersen.
4. [4]
   In advance of his trial, the appellant applied for an order excluding the record of the interview.^[1]  The application was heard over four days before the learned primary judge.  On 20 October 2022, the application was dismissed, and the primary judge’s reasons published.^[2]
5. [5]
   In April 2023, the appellant was tried before the learned trial judge and a jury over four days.  On the second day of the trial, four segments of the video recording of the interview were played to the jury and tendered as an exhibit.  For the appellant, it was submitted that the record of interview was important because it was the only evidence at the trial about the appellant’s intention in lighting the fire.
6. [6]
   On the fourth day of the trial, the jury found the appellant guilty of the murder of Mr Petersen.  The appellant was sentenced to imprisonment for life.

Grounds of appeal

7. [7]
   The appellant appealed against his conviction on two grounds.
8. [8]
   The first ground was that there was a miscarriage of justice caused by the refusal of the primary judge to exclude the record of the interview.  For the appellant, it was submitted that his Honour’s refusal to exclude the record of interview was an error of law because the police officers had conducted the interview in breach of s 422 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA).
9. [9]
   The second ground of appeal was that a miscarriage of justice was occasioned by the failure of the trial judge to give the jury a direction that the appellant had some mental disability that may affect his capacity to give reliable evidence.  For the appellant, it was submitted that the direction was required in accordance with the decision in Bromley v The Queen.^[3]
10. [10]
    The appellant also applied for leave to adduce further evidence.  However, that application was not pressed at the hearing of the appeal.

The first ground – failure to exclude the record of the interview

11. [11]
    Counsel for the appellant submitted that the circumstances were such that a person in the position of the police officers who conducted the interview ought to have reasonably suspected the appellant was a person with impaired capacity, before proceeding with the interview and questioning the appellant about the offence.  Counsel submitted that whether the individual officers subjectively held that suspicion was irrelevant.
12. [12]
    Counsel for the appellant relied on what the relevant officers knew before they began to question the appellant “in combination with” the answers the appellant gave on four topics at the outset of the interview.

The application of the PPRA

13. [13]
    The PPRA is not a complete codification of the law about the powers and responsibilities of police.  Save where it otherwise provides, it does not affect the powers, obligations, and liabilities of constables at common law, or the powers police officers may lawfully exercise as individuals.^[4]  It has been presumed that the common law prevails in respect of issues not dealt with in the PPRA.^[5]  At common law, a constable has general duties to preserve the peace, keep watch and ward, and bring criminals to justice.^[6]
14. [14]
    The PPRA was enacted to consolidate and rationalise the powers and responsibilities of police officers in investigating offences, to provide consistency in the nature and extent of those powers and responsibilities, to standardise the way they are exercised, and to ensure fairness to persons against whom police officers exercise powers under the PPRA and to protect the rights of those persons,^[7] amongst other purposes.  Police officers should comply with the PPRA in exercising powers and performing responsibilities under it.^[8]  The PPRA does not prevent police officers from speaking to a person or doing anything they may lawfully do when performing their duties without exercising a power under the PPRA or using any form of compulsion.^[9]  It is not the purpose of the PPRA “to affect the principle that everyone in the community has a social responsibility to help police officers prevent crime and discover offenders.”^[10]
15. [15]
    There are four provisions in Division 3 of Chapter 14, Part 3 of the PPRA, each of which sets out special requirements for police officers wanting to question particular classes of persons.  The first, s 420, applies to questioning someone an officer reasonably suspects is an adult Aboriginal person or Torres Strait Islander person.  The second, s 421, applies to questioning someone the officer reasonably suspects is a child.  The third, s 422, applies to questioning someone the officer reasonably suspects is a person with impaired capacity.  The last, s 423, applies to questioning a person who is apparently under the influence of liquor or a drug.  Although there are some similarities, each provision includes different terms and has a distinct operation.
16. [16]
    The appellant relies on s 422:

“422 Questioning of persons with impaired capacity

1. This section applies if—

1. a police officer wants to question a relevant person; and

2. the police officer reasonably suspects the person is a person with impaired capacity.

2. A police officer must not question the person unless—

1. before questioning starts, the police officer has, if practicable, allowed the person to speak to a support person in circumstances in which the conversation will not be overheard; and

2. a support person is present while the person is being questioned.

3. Also, the police officer must suspend questioning and comply with subsection (2) if, during questioning, it becomes apparent that the person being questioned is a person with impaired capacity.”

17. [17]
    The relevant meanings of “person with an impaired capacity”, “reasonably suspects”, and “support person” are found in schedule 6 of the PPRA:

“person with impaired capacity means a person whose capacity to look after or manage his or her own interests is impaired because of either of the following—

1. an obvious loss or partial loss of the person’s mental functions;

2. an obvious disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.

…

reasonably suspects means suspects on grounds that are reasonable in the circumstances.

…

support person means—

…

3. for a person with impaired capacity—a parent or another adult who provides or is able to provide support necessary to help care for the person by looking after or managing the person’s interests.”

18. [18]
    Like the other provisions in Chapter 14, Part 3 of the PPRA, s 422 applies to a person who is in the company of a police officer for the purpose of being questioned as a suspect about their involvement in the commission of an indictable offence.^[11]  For the appellant, it was conceded that the relevant prohibition in s 422(2) did not apply to the senior constable at the Roma Street Police Station to whom the appellant made admissions, because the appellant was not there to be questioned as a suspect.
19. [19]
    It was common ground that the appellant was with the three detectives at the Mary Street Police Station to be questioned as a suspect.  The relevant prohibition could apply to them, provided the condition in s 422(1)(b) was met.  It was also common ground that no support person was present with the appellant throughout the interview.
20. [20]
    The prohibition on a police officer questioning a person with impaired capacity unless a support person is present^[12] cannot be waived by the person with impaired capacity.  As the appellant’s counsel identified, the similar prohibition on questioning a child,^[13] cannot be waived by the child.  This distinguishes these provisions from the prohibition on questioning an adult Aboriginal or Torres Strait Islander person,^[14] which can be waived by the person.^[15]  There is no such prohibition in respect of an apparently intoxicated person.
21. [21]
    The lack of provision for waiver by a child is explicable.  The common law presumes a child to lack judgment and capacity.  It does not permit a child to be prejudiced by any act to the child’s disadvantage^[16] and so, a child does not have the legal capacity to bind themselves to their disadvantage.^[17]  Logically, the absence of a right for a person with impaired capacity to waive the protection in s 422(2) has a similar explanation.
22. [22]
    At common law, a confession by a person who was incapable of freely choosing whether to make the confession at the time it was made (or was incapable of understanding their right to choose between speaking and remaining silent), due to the existence of some disease or disorder, is inadmissible because it was not a voluntary confession.^[18]  A confession is inadmissible as involuntary “where the mind of the accused is so unbalanced as to render it wholly unsafe to act on the confession.”^[19]
23. [23]
    More broadly, at common law, the “degree or form of unsoundness” of mind caused by an impairment determines the legal effect of a person’s acts.  For example, an impairment of the person’s capacity to look after or manage his or her own interests that “neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result” does not “take away the power of making a will” or place the person “in a less advantageous position than others with regard to this right.”^[20]
24. [24]
    The statutory context in Chapter 14, Part 3 of the PPRA, and the common law context of the protection of persons incapable of choosing or understanding their rights to choose to make a confession, may assist in construing the definition of a person with an impaired capacity and the operation of s 422.

Common law consideration of questioning a person who may be of impaired capacity

25. [25]
    Counsel for the parties were unable to identify any decision of this Court on s 422 of the PPRA.
26. [26]
    The primary judge extracted part of the reasons of Keane JA in R v LR.^[21]  R v LR concerned the provision that was then s 254(2) and is now s 423 of the PPRA.  It required an officer to delay questioning “a relevant person apparently under the influence of liquor or a drug” until the officer was “reasonably satisfied the influence” no longer affected “the person’s ability to understand his or her rights and to decide whether or not to answer questions.”  There was no statutory definition of “reasonably satisfied”.
27. [27]
    The conclusions of Keane JA were as follows:

“[45] …it is my view, when examined objectively, there was no basis on which the officer could have been reasonably satisfied that the appellant’s level of intoxication was not affecting his ability to understand his rights or to decide whether or not to answer questions.  …That the appellant was affected by alcohol was obvious.  Moreover, the police officer was aware that the appellant had consumed a significant quantity of alcohol in the hours leading up to the interview.  That the appellant was displaying a disturbingly cavalier attitude to his right not to answer questions and to decide whether to exercise that right was also obvious, both by reason of what the appellant was saying and, more importantly, by reason of the contrasting attitude manifested by his father.  The attitude of the appellant was significantly different from what one might normally expect from a person who has been informed by the police that he or she is the subject of a complaint of rape.  Further, the only assurances the officer had that the appellant did understand the sense and gravity of the allegations being put to him were those proffered by the appellant himself.  The assurances of an obviously intoxicated person that he or she is not adversely affected by that intoxication are a cause for circumspection on the part of the interviewer.  To continue to conduct the interview in those circumstances meant, in my opinion, that the interview took place in contravention of s. 254(2).”^[22]

28. [28]
    The appellant relied on the following analysis of s 254(2) in R v LR, in the reasons of McPherson JA, with whom Douglas J also agreed:

“[5] The various formulas considered in this context vary slightly from statute to statute. Most of them use expressions such as reasonable cause to believe, or reasonable grounds for suspecting, or the like. In speaking of the police officer in s. 254(2), the formulation is “reasonably satisfied”. I cannot doubt, however, that it is designed to set up an objective criterion to be determined by reference to the external evidence or indicia of the influence of liquor rather than simply according to the officer’s subjective even if honest impression of the matter. Otherwise, I can see no reason why the expression used in s. 254(2) is “reasonably satisfied”. In view of the legislative and judicial history of similar expressions and the interpretation placed upon them, it would be astonishing if the legislative selection of the first of these expressions in this instance was not deliberate.

[6] For the reasons given by Keane J.A., I agree that the present case was one in which in the circumstances the police officer carrying out the questioning must or ought to have been aware of the appellant’s ability to understand his rights and to decide whether or not to answer the questions; or, more precisely, that he could not have been “reasonably satisfied” that the appellant’s ability to do so was no longer affected by the influence of liquor. …”^[23]

29. [29]
    The prohibition in s 254(2) (now s 423(2)) prevents questioning until the officer reaches a state of satisfaction and does so on grounds that are reasonable.  The condition on the prohibition against questioning could not be satisfied unless the officer both subjectively holds the state of satisfaction and holds it on grounds that were reasonable.  There was no reason to think in R v LR that the relevant officer did not honestly hold the state of satisfaction.  The question was whether there was an additional requirement that the state of satisfaction be held on reasonable grounds.  The Court held that there was such a requirement and it was not met.
30. [30]
    The defined expression “reasonably suspects”, used in s 422(2), plainly requires the relevant officer both subjectively to have a suspicion of the relevant nature and to have that suspicion on reasonable grounds.  Both the actual state of mind of the relevant officer and the objective grounds for the state of mind must exist together before the officer could be said to “reasonably suspect”.  If the relevant officer’s subjective state of mind was such that the officer could not be said to have held the relevant suspicion, then the officer could not be said to reasonably suspect.  The same result would obtain if the relevant officer subjectively held the relevant suspicion but reasonable grounds for doing so did not exist.
31. [31]
    The appellant sought to rely on R v LR to construe s 422(1)(b) as though it provided an entirely objective test which permitted one to ignore whether the relevant officer actually held the relevant suspicion.  But s 422(1)(b) does not say “there are reasonable grounds for the police officer to suspect the person is a person with impaired capacity”.  That construction must be rejected as inconsistent with the use of text with the defined term.
32. [32]
    An officer who reasonably ought to have held the suspicion that a person was a person with impaired capacity but honestly did not do so would not be the subject of the prohibition in s 422(2).  However, that officer might well become subject to the obligation under s 422(3) to suspend questioning if, despite an initial (and possibly even continuing subjective lack of relevant suspicion) it had become apparent that the person being questioned was a person with impaired capacity.  There is no reason to regard the notion of becoming “apparent” as referring to anything other than an objective state of affairs.

Matters known to the interviewing officers before the interview

33. [33]
    At the beginning of the interview, at about 7.38 pm, a detective sergeant and a then detective senior constable were present.  At about 8.25 pm the interview was paused.  When it resumed at about 8.51 pm, the third officer, a detective senior sergeant, was also present.
34. [34]
    From the earlier exchanges between the appellant and the senior constable at Roma Street Police Station, the interviewing police officers at Mary Street Police Station knew the appellant had driven from Rockhampton to Brisbane to confess to setting fire to a house while he believed someone was inside.
35. [35]
    Through the same senior constable, the interviewing police officers knew that the appellant had not been a suspect for that crime until he volunteered information to the senior constable earlier that afternoon.

Matters known from the appellant’s answers at the outset of the interview

36. [36]
    Counsel for the appellant relied on the following things the appellant said at the outset of the interview.
37. [37]
    The appellant told the interviewing officers that he had been diagnosed with severe paranoid schizophrenia about three years before.  He told them he had a treating doctor and took medication for the condition.  He said he had been on medication most of the time since his diagnosis.  He told them that for 18 or 19 months he took medication by a monthly “depo needle injection” (presumably a long-acting anti-psychotic medication), as well as Mirtazapine (an oral anti-depressant medication), and Seroquel (an oral antipsychotic medication).  He said, when he found a job, he stopped taking that medication and moved onto “[L]ots of alcohol” and “then the drugs too.”
38. [38]
    The applicant said an immediate callout person from “Mental Health” had been contacting him for two or three days because he had been “runnin’ amok.  Going stupid. Being an idiot.”  When asked to explain the ways he had been doing this, he told the police officers that for a while there had been “siphon hose marks on the side of [his] car” and the fuel cap had been left open, and he had been “driving around tryna run the car out of fuel to try and work out how many kilometres I can get out of it.”  He said he “couldn’t run the car out of fuel, so … that I could get here today.”
39. [39]
    He told them he was currently taking Seroquel.  He said his daily dose of medication had been increased the previous day, presumably by a medical professional able to make such a change and prescribe accordingly.  He said he had taken less than half the increased daily dose in the last two days.  He then clarified that over the past three days he had taken, in total, only half the increased daily dose.
40. [40]
    He said he had gone for quite a few periods without taking medication in the past when he was using drugs and alcohol.  When asked about the physical or mental effects on him when he did not take his medication, the appellant said:

“Mm, well I’ve always had an issue with just rantin’ and raving, and with or without alcohol, I rant and rave.  Talk to myself.  Just, yeah.  Repeat life, life’s journeys.  Where I’ve been, what I’ve done.  Who I’ve pissed off.”

Other matters stated by the appellant at the outset of the interview

41. [41]
    When cautioned about his right to silence, the appellant was able to explain to the officers in his own words, “I have the right to remain silent.  I do not have to answer specific questions.  I can answer what I am prepared to answer to you tonight.”
42. [42]
    When advised of his right to communicate with a friend, relative or lawyer, to get some advice and to have the questioning delayed for a reasonable time for that to occur, and his right to have a friend, relative or lawyer attend and be present during the interview, he said he had “no one available” to contact.  When pressed about whether there was anyone he wished to telephone or speak to before he continued with the interview, he said, “no that’s fine.”  When pressed about whether he wished to have anyone present at that time before he continued with the interview, he said, “That’s fine, we can carry on”.
43. [43]
    He gave his full name and date and place of birth, indicating he was then aged 39.
44. [44]
    He said he had completed Year 10 in 1995 and had no problems reading or writing in English and understood everything that had been said.
45. [45]
    He said that day he had moved out of private rental accommodation in Rockhampton, where he had lived alone for nearly a year, since October 2018.  He had lost his job as a domestic general cleaner with a business in Rockhampton about five or six weeks before the interview.
46. [46]
    He said he was not under the influence of any drugs or alcohol.  He said he had consumed “four rum cans” and a “tallie of V-B” the previous night.  He had last used drugs a week and a half to two weeks before the interview.  The drug was “ice, injection.”
47. [47]
    He said he had four or five or fewer hours sleep between the previous night and that morning.  He said he left Rockhampton at about 8.30 am or 9.00 am that morning and drove to Brisbane.  He said he was exhausted.

Findings of the primary judge

48. [48]
    The primary judge plainly drew on the conclusions of Keane JA in R v LR noted above in finding:

“The use of the word “obvious” in the definition of a person with an impaired capacity is important. … it is important to have reference to the circumstances as they appear at the relevant time.”^[24]

49. [49]
    The primary judge then summarised the “external evidence or indicia” in this case:

“[25] … At the relevant time, [the appellant] appeared calm and was able to provide what ostensibly appeared to be accurate answers, in a detailed manner, to the questions which had been put to him.  [The appellant] appeared in no way to be agitated, but to the contrary – to be quite calm and polite.  The officers had been explicitly told by [the appellant] that he had been suffering from severe paranoid schizophrenia for a period of about three years and had been on medication for that condition ‘most of the time’.  [The appellant] informed the officers that he was supposed to take Seroquel, 625mg, every night, but that he had not taken his medication for the preceding two days and had most recently taken a half dose of approximately 300mg approximately three days previously.  When questioned as to how [the appellant] was feeling, [the appellant] answered that he was miserable and then was asked on the first occasion by [the detective sergeant] whether he felt he was coping and could continue with the interview, to which [the appellant] responded in the affirmative.

[26] [The appellant] provided his history, that originally for approximately 19 months he was receiving monthly injections, before he stopped taking medications as he ‘got a job’ and then moved on to lots of drugs and alcohol.  [The appellant] provided the name of his medical practitioner and the first name of his mental health case worker.  [The detective sergeant] asked why the mental health case worker had been contacting [the appellant] and he answered because he had been ‘runnin’ amok.  Going stupid.  Being an idiot’ and then described the syphon hose marks on his vehicle.  Although the transcript suggests that the incident is unusual, I would conclude after having viewed the video of the interview, it would not be a comment such to have led a reasonable person to automatically jump to the conclusion that [the appellant] was paranoid at the time.  That was certainly the impression of the two interviewing officers.”^[25]

50. [50]
    His Honour explained the method he had adopted:

“[41] … I conclude that the approach articulated by [the detective sergeant] was correct, namely that people with mental health illness such as severe paranoid schizophrenia, can function in the community and are not to be automatically considered to be persons who have an impaired capacity, but it rather depends on the current mental status of that person at the time of the interview.

[42] A revelation by an interviewee that they suffer from a mental health illness such as severe paranoid schizophrenia puts the interviewing officers on notice that they ought to question the interviewee more deeply as to the [interviewee’s] current mental status, and it puts the officer on notice that they must continually reassess the interviewee and the status of the interviewee’s mental health capacity.  That is a direct legislative requirement of s 422(3) of the PPRA.”

51. [51]
    Consistent with the conclusion in [42] of his Honour’s reasons, the primary judge viewed and considered the whole of the interview.  His Honour concluded “it is apparent that [the applicant] was calm and polite during the entirety of the interview process of two hours”, “gave detailed, geographically accurate and consistent versions of his movements”, and “[I]n general, there is a chronologically and geographically logical sequence to the answers”.  His Honour observed “several matters in the interview which may or may not have been consistent with a degree of delusional thought” and two “examples of potentially paranoid thought”.  His Honour’s view was that these raised a question or may have raised a concern, but in making assessments of the appellant’s capacity, they were to be weighed with the other information provided by or about the appellant, the officers’ observations of him, and his demeanour.
52. [52]
    The primary judge expressed the conclusion in these terms:

“[39] Although, in my view, it is correct to conclude that there are parts of the interview that contain unusual or possibly delusional matters, those instances are very much in the minority of the interview.  For the vast majority of the interview [the appellant] showed himself to be calm, polite, consistent and logical in answering questions.  In my view, it is correct to conclude that there was no obvious loss or partial loss of [the appellant's] mental functions, nor any obvious disorder, illness or disease that affected [the appellant's] thought processes, perceptions of reality, emotions, judgment, or resulted in him having disturbed behaviour at the interview which would lead the interviewing officers to reasonably suspect that [the appellant] was a person whose capacity to look after and manage his own interests had been impaired.”^[26]

53. [53]
    At the appeal hearing, the appellant’s counsel contended that the primary judge should have excluded the whole of the interview, on the basis that the officers had breached s 422(2)(b) in proceeding to question the appellant after the initial answers noted above.  There was no alternative submission that part of the record of the interview, from some later point, should have been excluded.  For this reason, the appellant’s counsel submitted that his Honour should not have considered the appellant’s conduct during the balance of the interview (or, logically, the officers’ evidence about that conduct) and that such evidence was irrelevant to the appellant’s case in the appeal.

Consideration of ground 1

54. [54]
    Counsel for the appellant submitted that the matters referred to in [34]-[35] and [37]-[40] “gave rise to a reasonable suspicion” that the appellant was a person with an impaired “capacity to look after his own interests, notably his interest in availing himself of his right to silence” because of his severe paranoid schizophrenia.  Counsel submitted it was obvious the appellant was such a person because he had told the officers of his diagnosis.
55. [55]
    The appellant’s counsel put the case on ground 1 in this way:

“given the disclosures about his severe paranoid schizophrenia, the medication regime, the fact that he’s been avoiding his case worker, running amok, going stupid and the comments about the fuel and trying to run the car out of fuel, against a backdrop of knowing that this is a gentleman who’s driven a long way to confess to a crime for which he is not a suspect, our submission is that it’s at that point the reasonable suspicion arises.”

56. [56]
    In the context of the interviewing officers’ prior knowledge, it is doubtful the appellant’s initial answers, summarised above, would cause a person in the position of the interviewing officers to have a reasonable suspicion that the appellant was a person whose capacity to look after or manage his own interests was impaired because of an obvious disorder, which affected the person’s thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour.^[27]
57. [57]
    It is not necessary to finally resolve this doubt, because any doubt is removed by the other evidence before the primary judge and this Court relevant to whether there were reasonable grounds to suspect that the appellant was a person with impaired capacity.  That other evidence was in answers the appellant gave to other questions posed by the interviewing officers at the outset of the interview and the evidence those officers gave of their factual observations of the appellant at the pretrial hearing before the primary judge.

The evidence of the officers

58. [58]
    At the pretrial hearing, the primary judge heard evidence from the two officers who were present throughout the interview.  Both were cross-examined by the appellant’s trial counsel.
59. [59]
    The more senior officer, then a detective sergeant, had been a police office for about 24 years as at the date of the interview.  He had “plenty of experience with mental health people.”  He was aware of his obligations under s 422.  He had experience of suspending an interview with a person with an impairment.
60. [60]
    Both he and the other more junior officer (a detective senior constable at the time of the interview) were aware of the section of the Queensland Police Service Operational Procedures Manual (OPM), which explained:

“Persons who suffer from schizophrenia, schizoaffective disorders, bipolar disorder, severe mood disorders, and delusional disorders may become extremely agitated, irrational, impulsive and paranoid which may lead to the person behaving in an aggressive and/or violent manner.  Persons suffering from an acute episode can rapidly develop an excited delirium condition which can result in death.”

61. [61]
    The detective sergeant observed the appellant to be acting rationally in the interview, displaying a rational response, and not exhibiting any signs that raised his concern.
62. [62]
    The more junior officer said the appellant did not display any of the behaviours listed in the OPM.  He said the appellant was not agitated, aggressive and did not show any paranoia or delusions.
63. [63]
    The more junior officer considered his obligation under s 422 and made an ongoing assessment throughout the whole of the interview in relation to s 422.  He did not believe the appellant had an impaired capacity during the interview and did not think the appellant’s mental health condition affected his ability to take part in the interview or understand his rights.  He made this assessment on the answers and the responses the appellant was giving during the interview, which were before the primary judge.
64. [64]
    His view was that people can function in the community with a mental health illness.  Whether a person has an impaired capacity would depend on whether the person is having a psychotic episode or a mental health breakdown, which would manifest in agitated, aggressive, irrational, delusional or paranoid behaviour.
65. [65]
    Considering the relevant factual evidence summarised above, not the subjective views of the police officers, the Court is not persuaded that there were reasonable grounds for the interviewing officers on 15 September 2019 to suspect that the appellant was a person whose capacity to look after or manage his own interests was impaired because of an obvious disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour.^[28]

Whether the interviewing officers held a ‘reasonable suspicion’

66. [66]
    There are many decisions on whether a suspicion held by an officer (or a person before whom a complaint is sworn) is reasonable.  There are fewer challenging an officer’s statement that a reasonable suspicion was not held.
67. [67]
    As the primary judge noted, in R v Bossley, Dalton J explained:

“There is also well-established common law authority in relation to both the concept of suspicion and the concept of reasonable suspicion. The meaning of suspicion in this context is discussed by the High Court in George v Rockett. A suspicion and a belief are different states of mind. A suspicion is a state of conjecture or surmise. It is more than idle wondering. It is positive feeling of apprehension or mistrust, but it is a slight opinion without sufficient evidence. Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief. Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist. There must be sufficient factual grounds reasonably to induce the suspicion. The facts must be sufficient to induce the suspicion in the mind of a reasonable person. The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced.”^[29]

68. [68]
    The primary judge also referred to the following part of the reasons of Philippides JA in Commissioner of Police v Flanagan:

“As the respondent correctly submitted, there is a different intellectual threshold to be met depending on whether a reasonable suspicion or a reasonable belief is required as a condition precedent for the exercise of a power. Suspicion and belief are both concerned with a state of mind as to the existence of things, reached without actual proof. Further, while they involve different degrees of assuredness as to their existence, both states of mind are concerned with the circumstances as they appear to be at the relevant time, rather than the circumstances as they actually are at that time.”^[30]

69. [69]
    The appellant’s counsel submitted it was obvious the appellant had a relevant disorder because he told the police officers about his earlier diagnosis.  The fact of a diagnosis is relevant.  To satisfy paragraph (b) of the definition of person with impaired capacity, the diagnosed disorder must relevantly affect a person’s thought processes, perceptions, emotions, judgment, or behaviour.  The evidence of the interviewing officers is that they observed no relevant consequence of the appellant’s diagnosis.
70. [70]
    In addition to their evidence, the primary judge viewed the video recording of the interview.  His Honour’s conclusions, noted above, identify some conduct of concern, but none that rises to the level of being reasonable grounds to suspect the appellant was a person with impaired capacity during the interview.
71. [71]
    The appellant’s counsel also submitted that if a person, who is not a suspect, talks to a police officer about having committed an offence, that is a “flag” that “warrant[s] the cessation of the questions at that time” under s 422(2).
72. [72]
    This submission and its underlying assumption should be rejected.  Many offenders facilitate the administration of justice by making early admissions of guilt.  Such conduct is to be encouraged, not stigmatised as a sign of mental incapacity.  As the then Justice Brennan observed in Collins v R:

“A confession is not held to be involuntary merely because the confessionalist is by nature or temperament predisposed to confess and is furnished with an opportunity to do so”.^[31]

73. [73]
    The use by the legislature and the courts of terms about choice (and perhaps, in this instance, about capacity), as Gleeson CJ observed, in relation to a confession made in different circumstances, “may provoke scientific or philosophical protest”:

“Generally speaking, however, the law, as a normative science which must evaluate human conduct for practical purposes, accepts certain working hypotheses, one of which is the existence of free will. It judges the conduct of people upon assumptions of personal autonomy that may be rejected by a psychiatrist or a philosopher.”^[32]

74. [74]
    The preferable approach is that articulated by the junior interviewing officer, which the primary judge found to be correct.  A police officer should begin with the premise that people with mental health illness, such as severe paranoid schizophrenia, can function in the community and have the capacity to look after and manage their own interests.  To do otherwise would be to hold a suspicion that is “arbitrary, irrational or prejudiced.”
75. [75]
    With the benefit of any available information about the person’s circumstances, and any obtained from preliminary questioning of the person, the officer should consider whether the person appears to be a person whose capacity is impaired by an obvious loss of mental functions or an obvious disorder, illness, or disease that relevantly affects the person.  This is consistent with the approach in Bossley and in Flanagan.
76. [76]
    This approach is also consistent with the requirement in R v LR that there be external evidence or indicia to constitute reasonable grounds for a relevant suspicion.  In the present case, such things were necessary to provide reasonable grounds for an officer to suspect the appellant had a relevantly impaired capacity.
77. [77]
    As the junior officer also noted, again with respect correctly, this assessment is not made definitively at the outset of questioning.  It depends on the apparent current mental status of the person.  An officer should continue to assess the person’s apparent capacity as the interview progresses.  However, as noted above, the appeal does not concern an assessment at any later point in the interview.

Conclusion on ground 1

78. [78]
    At the end of the preliminary questions, there were not objective external evidence and indicia to constitute reasonable grounds for a person in the position of the interviewing officers to suspect that the appellant was a person whose capacity to look after or manage his own interests was impaired because of an obvious disorder, illness or disease.
79. [79]
    The appellant did not advance any other basis on which the primary judge ought to have excluded the interview.  Counsel for the appellant properly conceded that if the officers who questioned the appellant during the interview did not contravene s 422(2) or (3), then the appellant would fail on ground 1.
80. [80]
    For the above reasons, the first ground of appeal fails.

Ground 2

81. [81]
    The appellant’s second ground concerns the failure of the trial judge to give the jury a direction that the appellant had some mental disability that may affect his capacity to give reliable evidence, of the kind referred to in Bromley.
82. [82]
    The determination in Bromley may be found in the reasons of Gibbs CJ.  His Honour’s analysis of the law begins with Reg. v Spencer.^[33]  In that case, Gibbs CJ noted, the prosecution case depended wholly on uncorroborated evidence of patients in a secure hospital each with a criminal record and a mental disorder.  His Honour explained:

“What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is ‘Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?’ There is nothing formal or technical about this rule.”^[34]

83. [83]
    The conclusion of Gibbs CJ on this topic was:

“If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.”^[35]

84. [84]
    In separate reasons, Brennan J expressed the position in this way:

“When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage, none need be given. The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content. It cannot be said that a conviction on the uncorroborated evidence of a person suffering from a mental disorder, whatever the kind or degree of the disorder may be, is generally, in the absence of a warning pointing out the danger, a miscarriage of justice. If the mental disorder is quite trivial and transient, it may be quite irrelevant to the credit which might properly be given to the witness’s evidence. And if the nature, severity and significance of the witness’s mental disorder is deposed to by persons qualified to do so, that may bring home to the jury more vividly and more authoritatively than a judicial warning the danger of acting upon the witness's evidence without corroboration.

It follows that there is no universal rule of practice that a trial judge should give a warning - much less a warning according to a prescribed formula - whenever a jury might convict on the uncorroborated testimony of a witness who is suffering or who has suffered from some form of mental disorder. It may be that the circumstances will require some caution to be given - not because of a particular rule of practice affecting witnesses suffering from some form of mental disorder but because a warning is necessary to put the defence case fully and fairly. Perhaps no more can be said than this: when the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence as to the witness's mental disorder are such that the jury may not have fully perceived or the jury's attention may have been diverted from the danger, a warning should be given.”^[36]

85. [85]
    His Honour explained that a warning was appropriate about the evidence of the witness Carter at the trial considered in Bromley because:

“There was no medical evidence as to the nature, severity and significance of Carter’s mental disorder, yet it seems that he suffered some delusions on the night of the crime and some of his evidence was clearly inaccurate. In the absence of expert evidence, the jury might have given too much emphasis to his appearance in the witness-box without having regard to the possible effect of his condition in his capacity to observe and recollect.”^[37]

86. [86]
    Unlike the evidence of the witness in Bromley, the appellant’s statements in the interview were not completely uncorroborated.  However, in important respects, including his intention in setting the fire, it was uncorroborated.
87. [87]
    In this appeal, the appellant’s counsel also relied on the final item in a summary of the principles relevant to the resolution of difficulties by Gleeson CJ in R v Parker^[38] with whom Hunt and Loveday JJ agreed:

“If a Crown case is based in whole or in part upon the confession of a person suffering from some mental disability which may affect the reliability of the confession then a trial judge in his summing-up should use appropriate means to bring to the attention of the jury the possible danger of basing a conviction on such evidence unless it is confirmed by other evidence.”

88. [88]
    His Honour cited Bromley, as authority for this proposition.
89. [89]
    Parker was an appeal to the New South Wales Court of Appeal against the conviction of a defendant who gave confessional evidence in an interview with police.  The defendant was a person with an IQ of 58 who, although aged 27, had a mental age of a child of six or seven years.  The Chief Justice noted, “He was not suffering from any disease or disorder of the mind, but had a significant degree of intellectual handicap.”
90. [90]
    In R v GW,^[39] the High Court placed Bromley in the context of other important decisions on warnings:

“The requirement of the common law explained in Bromley, Crofts and Longman is to warn the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice. A perceptible risk of that kind arises when there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury. The risk is perceptible to the court because judicial experience has shown that evidence of this description may be unreliable. Subject to any statutory prohibition, where there is a feature of that kind the fair trial of the accused requires the judge to draw it to the jury’s attention, explain how it may affect the reliability of the evidence and warn the jury of the need for caution in deciding whether to accept it and the weight to be given to it.”^[40]

91. [91]
    For the appellant, it was submitted that the features of the appellant’s evidence that may affect its reliability were that he had been diagnosed with severe paranoid schizophrenia, was not compliant with his medication at the time of the interview, and he made some unusual or possibly delusional statements in the interview.

The position at the trial

92. [92]
    The prosecutor invited the jury to consider the “two hours or so of recording to make an assessment of [the appellant]”, how he said things, what he said, how he reacted to questions, and whether what he said was reliable.
93. [93]
    At the beginning of his address, the appellant’s Defence counsel told the jury the case required them to undertake a careful analysis of the record of interview, and that such an analysis would lead the jury to conclude “that that interview was so unreliable that you could not use it to advance the Crown case”.  Defence counsel told the jury:

“There’s a plain reason for that unreliability, and it appears on the face and immediately into the interview. He has a diagnosis of severe paranoid schizophrenia.  He was prescribed medication for that condition. And at the time of the interview, he was taking, at best - and not recently - at best, a quarter of that prescribed medication. And we know the effect of that. The effect of being unmedicated, and also exhausted over driving from Rockhampton to Brisbane, as so [sic] there were no police stations in Rockhampton.

He rants and raves. Now, the Crown tries to qualify those words, but, respectfully, it’s qualified in the matter of context. When you hear a person being described as ranting and raving, that is not a foundation of a truthful statement. It imports within it, just through the words alone, a degree of irrationality. Something, whether emotive or otherwise, which doesn’t correspond entirely with the truth.”

94. [94]
    The Defence counsel then took the jury to passages in the transcript of the interview to highlight inaccuracies, oddities, references to delusions, and to ranting and raving.  He then put to the jury:

“It simply is submitted that from what I’ve taken you to, from those internal delusional statements, from those internal falsities, how can you rely upon the contents of the interview, as the Crown asks you to, to that high standard, to prove beyond reasonable doubt these critical factors. A correspondence at points in reality does not make it all real; it leaves you with a doubt as to its reliability of his essential account. The effect of that is a doubt as to the truthfulness of what he’s saying. You should have a doubt on that basis, a doubt which infects the entire way the case has been presented to you. You cannot untangle on the basis of what Mr Bradshaw has said where his reality begins and end. You are left with a reasonable doubt, and it’s a doubt as to whether David Bradshaw lit that fire at all.”

Directions given by the trial judge

95. [95]
    In summing up, the trial judge told the jury that, although the appellant was not a witness, all the directions about assessing a witness’s evidence were relevant to how the jury might assess what the appellant said in the interview “in particular, in relation to the reliability of it.”  Her Honour had directed the jury about the difference between credibility and reliability, about their ability to accept all, some or none of a witness’s evidence, about how the witness presented when answering questions, and comparing the witness’s evidence to other evidence that the jury accepted.
96. [96]
    Returning specifically to the appellant’s interview at the Mary Street Police Station, the trial judge directed the jury:

“If you are satisfied that the [appellant] made these statements and that they indicate his guilt, then you must consider whether the statements the prosecution relies on as indicating guilt, are truthful and accurate statements. As you have heard, defence counsel argues for the [appellant] that what he said about lighting the fire and the reason for doing that, was not reliable as to the truth of what he said, so you could not rely on what he said as proving, to the requisite standard, beyond reasonable doubt, the charge against him.

…

I have directed you already that you must first be satisfied that the [appellant] said the things that the prosecution contends and that those things constitute admissions to elements of the crime alleged, and then, you must also be satisfied that those things he said are true. And in considering that question, you must consider the alternative explanation put to you on behalf of the [appellant], that the [appellant] was not telling the police the truth when he said he lit the fire, and that it is possible that Mr Petersen caused the fire given the content of his messages to Ms Rhule the day before.

…

The Crown submits you would accept that what the [appellant] said to the police was truthful … Defence counsel says it is not reliable – what he said to the police was not reliable; that there are things in it that are plainly wrong; delusional; and that that affects the whole of the interview, such that you could not act on it as a reliable account or as being the truth of what occurred.

…

[Defence counsel] submitted the plain reason for that is unreliability; that the [appellant] said in that interview he has a diagnosis of paranoid schizophrenia; he was prescribed medication for that illness; and at the time of that interview, he was taking a quarter of that medication. He submitted that the [appellant] said in the interview the effect of him being unmedicated and also exhausted was that he rants and raves.

[Defence counsel] said that notion of ranting and raving imports within it irrationality, and saying things that does not correspond with the truth…. [Defence counsel] said you could not be satisfied on that interview that it is reliable and, effectively, truthful, in respect of the two critical things the Crown relies on; firstly, that the [appellant] started the fire; and secondly, that he did it for the purpose that the Crown asserts.”

97. [97]
    The trial judge recounted some of the examples from the appellant’s interview to which Defence counsel took the jury to demonstrate its unreliability.  This included “the reference to seeing a green flare fly across the road” which Defence counsel reminded the jury the appellant himself had described “as delusional”, the reference to “the issues with his phone and his car that the [appellant] described” and “part of the interview where the [appellant] himself said he had lost the plot big time”.
98. [98]
    The trial judge summarised Defence counsel’s position that those examples do “not fit with any rational analysis of the facts” and:

“…those qualifiers to his statement, … in the context of these other things that he submitted were not true or delusional, would give you, at the least, a reasonable doubt about the reliability of what he was saying in that interview.”

99. [99]
    The trial judge then directed:

“…that it is not for the [appellant] to prove that those things that he said were not true. It is, at all times, a matter for the prosecution to persuade you to accept that the critical things he said were true.”

100. [100]
     The trial judge recounted Defence counsel’s submission to the jury that:

“the entire account in that police interview is affected by the various, what he called, “delusional statements”, and, for example, pointing to the last statement when the [appellant] is asked if everything he had said is true and correct, and he says “at the present time, yes” – [Defence counsel] submitted that is not a statement that is true; that is a statement of perception that the [appellant] holds at a point in time when he is exhausted and is expressing delusional statements.  [Defence counsel] submitted you would be left with doubt as to the reliability of the [appellant’s] account, which leads to doubt about the truth of what he is saying, and that that doubt affects the entire case.

He said you cannot untangle, from what the [appellant] said, where his reality begins and ends, and you would be left with a reasonable doubt whether he lit the fire at all.”

Conclusion on ground 2

101. [101]
     The jury had the appellant’s evidence that he had been diagnosed with severe paranoid schizophrenia, and that at the time of the interview he was non-compliant with his prescribed medication.  The jury also had the appellant’s evidence about what he said happens to him when he does not take his prescribed medication.  These features, which might have affected the reliability of the evidence he gave in the interview, were the subject of submissions in the addresses of the prosecutor and the defence counsel.  The trial judge reminded the jury of them in her Honour’s summing up and their relevance to the reliability of what the appellant said in the interview.  Her Honour did so in the context of directing the jury they must be satisfied the prosecution had proved that the critical things the appellant said in the interview were true, having considered the alternative explanation that they were not true because they were said by a person with a mental illness, not compliant with his medication, and ranting and raving.
102. [102]
     The features that might affect reliability were evident to the jury.  In the circumstances a further direction, of the kind given in Bromley, or a direction referred to in R v GW, was not necessary to avoid a perceptible risk of a miscarriage of justice.  Ground 2 fails.

Other matters

103. [103]
     For the sake of completeness, two other matters should be mentioned.
104. [104]
     Counsel for the respondent contended the requirement in s 422(2)(b) that a support person be present, like that in s 422(2)(a), was limited to circumstances in which it was “practicable”.  That construction should be rejected, having regard to the text, its context and purpose.^[41]  The contention was not pursued at the hearing.  The respondent accepted that if s 422 was “triggered”, then an officer cannot question a suspect unless a support person is present.
105. [105]
     Counsel for the respondent noted that the appellant referred to the diagnosis of a disorder only after the interview had commenced; so the appeal concerned the officers’ obligation under s 422(3) to suspend questioning and comply with s 422(2), rather than any obligation under s 422(1) to comply with s 422(2)(a) before the questioning started.  Although a correct observation, nothing turns on it.

Final disposition

106. [106]
     The Court should order:

1. Appeal dismissed.