R v Bertomeu[2003] QDC 575

DISTRICT COURT OF QUEENSLAND

1. [1]
   The indictment charges all four defendants with six counts referable to a “home invasion” at [name withheld] Avenue, Woodridge at about 2.30 am on 5 January 2001, namely:

1. entering a dwelling with intent to commit an indictable offence (by means of a break);

2. robbing Robert Victor Keeble whilst armed, in company and with use of personal violence to him;

3. unlawfully assaulting Mr Keeble and doing him bodily harm whilst armed and in company;

4. a like offence against Lynne Maree Charters;

5. unlawfully detaining Mr Keeble against his will; and

6. a like offence against Lynnne Maree Charters (erroneously called Chambers, as the indictment stands).

The matter comes before the court under s 592A of the Criminal Code on applications of the defendants Bianco and Charters for exclusion from evidence of tape recorded records of interview which they gave separately to police on 7 February 2001 and consequential applications by the other defendants for separate trials as necessary to ensure that neither of them faces possible prejudice which might follow from one or both of the records of interview getting into evidence before a jury.

2. [2]
   Two co-offenders, JC, a juvenile, and Douglas Kirk have pleaded guilty to offences (the precise description of which was not made clear) and been dealt with. Each of them has provided police with a statement implicating the others, at least to the extent of being part of a group of six of them which met up at a McDonalds restaurant at Springwood, proceeded to [name withheld] Avenue in two vehicles and, after the home invasion incident, left together in those vehicles.

3. [3]
   The female complainant is the mother of JC and [related to] the defendant Charters. She was living with the male complainant. To the extent that possible explanations for the incident have been given, the dominant one is that he was to be given some kind of warning or lesson because of alleged inappropriate and persistent threatening conduct on his part towards her mother (Rachel Charters’ grandmother). As things stand, much remains uncertain. There are suggestions that the use of actual violence may have been unplanned, likewise the stealing of property, as to which each of the young female participants has presented that as an enterprise of the other one. Such versions as exist regarding which people entered the complainants’ house are not entirely consistent.

4. [4]
   The home invasion, as it is convenient to call the incident, occurred in darkness. The complainants, whose sleep was disturbed, had no idea who was responsible. Each of them was rendered insensible. Mr Bianco in his record of interview appears to acknowledge responsibility for that (more clearly in relation to the female complainant), but distances himself from anything to do with a firearm allegedly produced, or the use of a baseball bat with which the male complainant was allegedly struck numerous times.

5. [5]
   Whether the complainants, both of whom required hospitalization, would have pursued the matter with police had they known of the family connection is a matter of pure speculation. At least one other resident of [name withheld] Avenue observed four people running from the house to the vehicles before they sped off and found the complainants injured. Their door had been kicked in. The whole incident bore all the hallmarks of another instance of the serious home invasion offending which is causing consternation in the community in recent years.

6. [6]
   The breakthrough which the police needed came on 30 January 2001 when JC gave a signed statement to Detective Senior Constable Grey of Bega police at Eden Police Station. Not only did he witness that statement, the 16 year old’s father did as well. That statement has played an important (in my view crucial) role in persuading Bianco and Charters to participate in records of interview. The information given enabled police to execute search warrants and apprehend suspects in a series of raids on 7 February 2001. In the first, at 15 Caithness Street, Bundall, Bertomeu and Charters, who are a couple, were apprehended. Later in the day, in other raids, Douglas Kirk and the defendant Bianco were apprehended.

7. [7]
   Before proceeding to explain in some detail my reasons for declining to exclude either of the impugned records of interview, it is convenient to deal with the separate trial applications, which also fail. Those were argued on the fourth afternoon of the hearing, in anticipation that one or both of the records of interview might be admitted.

Authorities regarding separate trials

8. [8]
   The basic principle confirmed by Toohey J in Webb (1994) 181 CLR 41, with the concurrence of Mason CJ and McHugh  J is that :

“ ... when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others (Reg v Demirok [1976] VR 244, at p 254). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused (Reg v Harbach (1973) 6 SASR 427 at p 433).” (p 89)

9. [9]
   That approach is adopted by appellate courts throughout Australia, most recently in Tasmania in Marlow and Kelly (2001) 129 A Crim R 51; at 64 the Court of Criminal Appeal noted the reasons identified by the Full Court of Victoria in Demirok:

“In the first place, there is the question of the administrative matters of court, time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible;  and no system could function if it permitted the repeated re-trial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.”

Locally, see the Court of Appeal decision in Ronald Patrick Lewis and Peter James Baira (CA 252, 253 and 290 of 1996) 18 October 1996 at p4ff of the unpublished reasons. The situation was the common one (encountered here) in which the statement of one accused given to police is not admissible against another. That other will understandably harbour concern that, whatever warning is given to the jury, they may be influenced against him by contents of the statement. The following passage from the joint judgment of Pincus and Davies JJA at p 5 begins with the comment in Harbach regarding the lack of reported cases where the Court of Criminal Appeal had allowed an appeal on the ground that the trial judge wrongly refused to order separate trials:

“Instances in which there has been considered an argument similar to that presented to us include Palmer (1968) 90 WN (Part 1) NSW 188, and Harbach (1973) 6 SASR 427. It appears desirable to quote some of what was said in the latter case, in a joint judgment of Bray CJ, Mitchell and Sangster JJ:

‘It has been emphatically stated over and over again by courts of the highest authority that the question of joint trials or separate trials is a question for the discretion of the trial judge … As in the case of other discretions a court of appeal will not interfere merely because its members or some of them, think that they might have exercised the discretion differently, but will interfere if the bounds of a judicial discretion have been exceeded. In fact there is, as far as we can discover, no reported case where a court of criminal appeal has allowed an appeal on the ground that the trial judge wrongly refused to order separate trials, nor did counsel refer to any such case. …  that does not mean, of course, that such a case cannot arise. But three things are clear. The first is that when the accused are charged with committing the crime jointly prima facie there should be a joint trial … The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against the other, will be before the jury … and the third is that it may be ordered notwithstanding that one of the accused or each of the accused is trying to place the blame for the crime on the other … though both of these are highly relevant considerations to the exercise of the discretion …’ (432)”

In the following year a similar problem arose, in Stuart and Finch [1974] Qd R. 297, where each of the appellants, charged with murder, had applied for a separate trial, Stuart on the basis that there was evidence that Finch had made a statement to the police implicating Stuart. The judge’s initial decision to refuse a separate trial was upheld, as were the decisions to refuse separate trials on subsequent applications.

This case is one in which the Crown evidence, if accepted, showed that the appellants had the common purpose of inducing the complainant to go to the park with them and there raping her, which purpose they effected, in co-operation with each other. When accused are charged with offences committed by persons having a common purpose, separate trials are not commonly granted:  Kerekas (1951) 70 WN NSW 102,  Rountree (1958) 59 SRNSW 144;  the leading case on the subject is, at present, Webb and Hay (1994) 181 CLR 41.” 

(A new trial for Lewis was ordered – but on the ground that a Domican direction ought to have been given.)

10. [10]
    It was not long before a reported case of a successful appeal against refusal to order separate trials appeared. In Guldur (1986) 8 NSWLR 12 Street CJ (Maxwell and Campbell JJ agreeing) said at 16-17:

“We have been referred in the course of argument to the decision of the High Court in R v Darby (1982) 148 CLR 668 at 678, where in a joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ, it is said:

“… in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v The Queen (1979) 44 CCC (2d)481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence against the other. We would encourage the adoption of such a practice. In cases where there is no material distinction in the evidence admissible against both alleged conspirators, the trial judge’s advice to the jury that they will either convict or acquit both accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case.”

That observation was made in the context of a trial for conspiracy, as was the trial before the Supreme Court of Canada in Guimond v The Queen (1979) 44 CCC (2d) 481. There is admittedly an element of distinction between conspiracy trials and trials for substantive offences, but the broad thrust of the approach taken by the High Court must nevertheless be accepted as flowing over into trials for substantive charges.

In Guimond’s case nine judges of the Supreme Court of Canada held, with two of their numbers dissenting, that in a conspiracy trial:

“…whenever it is apparent that the evidence at the joint trial of two alleged co-conspirators is substantially stronger against one than the other, the better course is to direct the separate trial of each, particularly when the Crown is tendering in evidence a damaging statement made by one under circumstances which make it inadmissible against the other.”

It is, of course, necessary to avoid going too far in the requirement of separate trials where there may be separate bodies of evidence available against some but not all of the accused. The very concept of joint trials imports the likelihood that there may be particular pockets of evidence admissible only against one of the accused. At times those pockets may be substantial. At times the pockets may be constituted by record of interview.

It is not desirable to attempt to classify the various circumstances in which the policy enunciated by the High Court should be carried into effect by trial judges in exercising their discretion in this field.

In the present case, I consider that there is little difficulty in recognising that the policy ought to have been applied, bearing in mind the way in which the case ultimately unfolded. This was a case in which there were three quite separate bodies of evidence available against each of the three separate co-accused. There was no flow over whatever of the evidence admissible against each of Senbas and Tastan to the evidence admissible against Guldur. There was, in short, no common evidence adduced by the Crown pointing, to a greater or lesser extent, the finger of guilt at all three of the men. The body of evidence in each instance was severable and distinct. The fact of the fire itself was, of course, an objective event but it did not involve any inference of guilt in a sense which could be said to affect all three of the accused jointly. There was, in short, no basis for an evidentiary foundation of joint criminal liability. That was a conclusion which would have to be drawn from the evidence available against each of the three co-accused separately.

Bearing in mind the total inadmissibility of the records of interview of Senbas and Tastan against the appellant, and bearing in mind the overwhelmingly prejudicial effect for him of each of those record of interview, consummated, as the admissions therein were, by the verdicts of guilty against each of those two men, it is difficult to see how the prejudice could have failed to flow over and colour significantly the jury’s approach to the case against Guldur.

For those reasons I am of the view that in the way in which this trial unfolded, the conclusion should be reached that justice did miscarry and I propose that the appeal should be allowed and that the appellant should stand a new trial.”

Hunt J ordered separate trials in Farrell and Cotton (1990) 48 A Crim R 311 and Domican and Thurgar (1989) 43 A Crim R 24, expressing views far more doubtful of a jury’s capacity to disregard a co-accused’s record of interview than that endorsed in Marlow and Kelly at 65:

“Provided the trial judge’s instructions to put aside inadmissible evidence where necessary is reasonably capable of performance, a jury is to be trusted to carry out that obligation. If that were not so it would be a serious objection against the trustworthiness of the jury system as a whole.”

A disposition in favour of separate trials is emerging in New South Wales, exemplified by Piller, KJ Kramer, AC Kramer and Edwards (1995) 86 A Crim R 249, and cases discussed in Dowd J’s reasons. Electronically recorded interviews (called ERISPS) were seen as particularly potent. His Honour said at 354:

“The evidence of Karl Kramer and particularly his ERISP, although not admissible against the others, is damaging to himself and each of the other co-accused and would be heard by the jury. The law is clear that the record of interview as such is not admissible against other than the accused who has given that record of interview, unless another adopts the record of interview of a co-accused.

It is also said, quite cogently, that a jury, having available to it an electronic record of interview, is more likely to be influenced by that record of interview than evidence given orally and the former is obviously more likely to be remembered.”

The matter was a complicated one centering on an armed holdup at a Pizza Hut in which a man was shot and killed. There were issues as to whether the shooting was accidental and what knowledge particular defendants had of the gun’s being loaded. It is unsurprising that Dowd J thought there were enough complications in the possible verdicts on the murder charges (p 256) without introducing more to do with sorting out for the jury the evidence admissible against particular defendants. Mr Kimmins relied on his Honour’s statement at 257 of principles identified in an unreported Court of Criminal Appeal decision of Baartman:

“Briefly, the relevant principles are that:

1. Where the evidence against an applicant for separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him;  and

2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him;  and

3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.”

11. [11]
    A recent local example of a more traditional approach is Nguyen (2002) 1 Qd R 426.

12. [12]
    It should be accepted that every separate trial application must be determined on its own circumstances.

Swanson’s separate trial application

13. [13]
    Dealing first with Luke Swanson’s situation, the prosecution has evidence from JC and Kirk (who have offered cooperation) placing both of them and all four defendants (and also Mr Swanson’s younger brother) in a group which met at McDonalds then left in two vehicles for [name withheld] Avenue, leaving [name withheld] Avenue together in the same vehicles. JC placed Mr Swanson as leaving the cars and going “towards” the complainants’ residence with Bertomeu, Bianco and Kirk. She thought he was the one who took the battery out of a cordless phone allegedly taken from the premises after it began ringing. She gave oral evidence at the committal; her written statement was not used. Cross-examination appeared to expose some uncertainty which may or may not trouble a jury. I think she is capable of providing the prosecution with evidence of Mr Swanson’s membership of the group both immediately before and immediately after the home invasion. Kirk gave evidence that Swanson entered the residence (as well as being present with the group before and after the home invasion) but did not attribute any particular actions there to Swanson. Cross-examined, and challenged to say that he was able to say on oath that he saw Swanson in and around his own vehicle in [name withheld] Avenue, he said, as noted in Mr Kimmins’ submission, “Well, all of the rest were there so ...”. Challenged as to whether he could say on oath “at this stage” that he “actually” had “a memory of seeing Luke at [name withheld] Avenue”, he responded, “Yes, I knew he was there, yeah.” It is open to a jury to accept Kirk’s evidence as placing Mr Swanson inside the residence. At committal there was no evidence of his playing any identified role in planning. On the basis of her statement, JC may not have been an accomplice, but her evidence at the committal and her subsequent conviction reveal her as such, as was Kirk. While it can be anticipated that the jury will be instructed regarding the danger of convicting on the uncorroborated testimony of an accomplice, Mr Kimmins’ submission that the jury would also be told that they could not use the evidence of Kirk or JC to corroborate the other, as the Court of Criminal Appeal held in Lamb (1975) Qd R 296, may or may not have survived the changes that occurred in s 632 of the Criminal Code. It does not matter in the present application. JC and Kirk do not appear to be engaging in the classic ploy of accomplices of minimizing their own involvement by implicating Swanson.

14. [14]
    Given that the impugned records of interview are not to be excluded, it is appropriate to consider the prejudice to Swanson from their being placed before the jury, albeit with the usual strong warning that they are not evidence against him. The Charters record of interview generates no concern. Relevantly, she implicated only herself, her fiancé (a person easily identified as Bertomeu), and JC. Asked which of those went to [name withheld] Avenue from her place, she said, “Just [JC], me, my fiancé and somebody else.” She identified the same three (naming “Chris”) as eventually going back to her place. She appeared to be careful not to reveal the identity (if she knew it) of other participants.

15. [15]
    Mr Kimmins characterized Bianco’s record of interview as “on the face of it, a full confession to his involvement”. The references to Swanson’s involvement contained in were collected. They are:

• Swanson is apparently placed in the group at McDonalds (see Transcript Exhibit “G” p 9 ll 1-25)
• Swanson (“Luke”) is included in the group of four “who actually walked down to the house” (p 11 l 60)– at this stage Bianco (asked by the police about arms) said “I wasn’t able to see ... whether they had anything or not.” ( p 12 ll 3-10)
• Bianco confirmed that it was only the four (“including Luke”) who went into the house “immediately”; he saw Charters “just race in and then the next time I saw her, she was running out of the door.” (p 16 ll 1-15)
• “Luke” was identified as one of the group that ran from the house: “I got in and Doug’s car with – Brody was waiting there and Luke jumped in there as well and then we drove to Doug’s apartment.” (p 17 ll 11-15)
• from that place, a group went back to McDonald’s in “Chris’s car ... Luke, Brody, [JC] and Rachel and Chris.” (p 18 ll 15-20)
• it was “not specifically” worked out who was going to do what, but Bianco’s role was said to be “just to go in and subdue Moey (Mr Keeble).”  Bertomeu “wasn’t to have a role ... because they know his face I suppose, Dougie was “just going to help me” and “Luke’s role in the scheme of things was “to keep Minnie (Lynne Charters) away.” (p 20 ll 28-46). (On the account given, events unfolded very differently from what any planning along the aforementioned lines envisaged.)

16. [16]
    Mr Kimmins’ submission is that on the evidence of JC and Kirk there is no information whatever in relation to Swanson’s knowledge of what was to take place, nor any evidence of his participation in any common purpose or offences that were to take place at the complainants’ house. I think it is a jury question whether their evidence (which gets Swanson inside the residence, if it is believed) is “extremely weak” as contended. Mr Kimmins submits that Bianco’s interview “provides the prosecution with specific evidence or information that Swanson was present at the discussion at McDonald’s restaurant.” This is no more than a matter of inference. At p 9 of the transcript of the record of interview Bianco is recorded as indicating some discussion “outside” McDonalds about going in to “rough up” Mr Keeble. Swanson is not identified specifically as participating in any such discussion.

17. [17]
    In my opinion, the case comes nowhere near satisfying the tests Mr Kimmins relies on, as indicated in Piller. I would not foresee any difficulties in the way of the trial judge summing up effectively, and instructing the jury that, as things stand that, the only evidence admissible against Swanson is that of JC and Kirk. Exposure to the “further information” in Bianco’s record of interview, in my view, is far from enhancing the Crown’s case to the dramatic extent required to overcome the operation of the ordinary rule in favour of a joint trial of persons jointly accused.

Bertomeu’s separate trial application

18. [18]
    Turning to Bertomeu’s situation, although both impugned records of interview implicate him, the ultimate conclusion I reach is the same. At this stage, it should be assumed that both JC and Kirk, who gave evidence implicating Bertomeu at the committal, will be available to do so at the trial. Mr Copley, for the Crown, indicated that other evidence was available, including a red cap located at the scene of the home invasion which was said by JC to be similar to one worn by Bertomeu. I do not think it useful or appropriate to speculate that the Crown case may be strengthened by the location of further witnesses, in particular one Jennifer Charters, asserted by Mr Copley to be a possible witness. I do not think it is for me in this application to evaluate Mr Donaldson’s criticisms of the Crown case, such as it is, as to Kirk’s being “often equivocal as to who did what, or whether they were involved at all” – or JC’s agreeing that, as the red cap was marked with the name “Jimmy” inside, Bertomeu would not have been wearing it.

19. [19]
    To the extent Bertomeu is mentioned expressly or implicitly in the records of interview, no particular actions are attributed to him. If, impermissibly, the jury regard themselves entitled to use information contained in the records of interview in deciding whether Bertomeu’s guilt is established, contrary to directions they will certainly get from the judge, at the most, it would be information emanating from accomplices to the same effect as the evidence it is anticipated they will hear from witnesses called and cross-examined whose evidence is properly admissible. In my opinion, there is nothing like the dramatic improvement of the prosecution case, or the introduction of any new substantially inadmissible body of evidence having such an effect for the jury to hear, of the kind contemplated in the New South Wales authorities. It is nothing like the situation in Guldur, in which the records of interview of two co-accused contained assertions that they had set fire to a building on instructions from the appellant, who operated a business there.

20. [20]
    I think Mr Donaldson may be overstating things in asserting that there is a settled line of authority established in Darby, referring to Guimond, which ought to be followed. The New South Wales cases are consistent with such a proposition, and contain statements to the effect that the High Court’s statement is not limited to conspiracy cases. That statement was, nevertheless, made in an exceptional context of conspiracy charges, in which quite anomalous, and perhaps unjust results may be reached where alleged co-conspirators (one or more of whom has given an incriminating statement admissible against him but not against others) are tried together. See the comments in the leading judgment in Darby at 677. The Canadian solution of separate trials was given strong endorsement. In Darby, the outcome was not that a conviction was vitiated.

21. [21]
    Mr Donaldson is right that there is a real risk that a jury will “fill in the blanks” or attempt to rationalize Kirk’s evidence to Bertomeu’s prejudice by resorting to the records of interview of Charters and Bianco which are not admissible against him. That risk is the reason for the directions which must be given. Bertomeu’s situation is one acknowledged in most of the authorities that have been discussed to be common, as it is in my own experience. Mr Donaldson referred to Annikin (1987) 37 A Crim 131 at 139:

“In the ultimate, each case must be dealt with according to the evidence and by reference to the considerations relevant to whether prejudice will be caused so as to prevent an accused being given a fair trial and, of course, this is essentially a matter for the trial judge. It is not possible to lay down rules which will be applicable to every case.”

22. [22]
    There is no sufficient basis shown here for reaching the view that the total body of evidence, admissible and inadmissible against Swanson and Bertomeu will be so altered by the usual course of joint trials being followed that either of them would be denied the “fair trial” referred to. I would note that no party suggested there ought to be four separate trials, Swanson’s application being directed to ensuring he was not tried with Bianco, should his record of interview be let in, Bertomeu’s being directed to obtain the same protection for him, and also protection against a joint trial with Charters, should her record of interview be held admissible against her. For the moment, there is no separate trial application from Charters. If either applicant had shown a case for a separate trial, it might have been appropriate to consider a sophisticated set of orders of the kind made in Piller.

Authority regarding admissibility of “confessional” statements

23. [23]
    Those concerned with the applications to exclude the records of interview accepted that Swaffield (1998) 192 CLR 159 indicated the general approach to be taken. Of the five judges who sat in Swaffield, Toohey, Gaudron and Gummow JJ wrote a joint judgment which records that, early in the argument:

“the Chief Justice asked   counsel to consider whether the present rules in relation to the admissibility of confessions are satisfactory and whether it would be a better approach to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations  of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards.”  (at 194).

Their Honours went on to say at 195 that:

“....the approach suggested by the Chief Justice in argument already inheres in the common law and should now be recognised as the approach to be adopted when questions arise as to the admission or rejection of confessional material. The qualification is that the decided cases also reveal that one aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained.”

At 196 their Honours adopted an earlier statement of Toohey J that “a finding of voluntariness does not preclude the exercise of the discretion to exclude evidence by reason of unfairness or public interest.”  They went on to record what is probably a truism that “it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues.”  At 202, their Honours said:

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

24. [24]
    In Queensland, the Charters and Bianco applications do not involve any unlawful arrest, as in Foster (1993) 113 ALR 1.

25. [25]
    In Queensland, the initial inquiry is usually one regarding the effect of s 10 of the Criminal Law Amendment Act 1894:

10. Confessions. No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

Both Charters and Bianco rely on s 10 as a basis for exclusion of their records of interview. The common law requirement of voluntariness for a confessional statement to be admissible is also said not to be satisfied. (The old Queensland case of McKay (1965) Qd R 240 is an illustration of the continuing relevance of the common law test. There, it was held, where a defendant alleged a confession had  been forced out of him by physical violence, that this involved no threat or promise, but the Crown had to overcome the defendant’s assertions to establish the requisite voluntariness.)  That each of them acknowledged at the end of the recorded interview that there had been no threat, promise or inducement held out to take part (only Bianco indicated he had taken part of his own free will) cannot be treated as determinative here; the applicants were content, and it has seemed appropriate here, to roll together the concepts of threat, promise and inducement, although Mr Bianco went so far as to say there had been a “deal” - which would import a promise.

26. [26]
    The effect of s 10 is that once a threat or promise (I suppose one may add “inducement” – a word not found in the section) is asserted, and some basis for the claim under the section is shown, it is incumbent on the Crown to prove the negative, namely that there was nothing along those lines. It was not asserted this must be done on the criminal standard of proof, rather that the court should be brought to a feeling of satisfaction in that regard, considering the seriousness of things. If it appears there was any threat or promise, a presumption arises, which it is for the Crown to rebut, that any confession which comes afterwards is so linked to it that it cannot be received in evidence. Plotzki (1972) Qd R 379 shows that the court should not resort to “fine analysis” to minimise the effect of a threat or promise actually made. The whole of the contacts between the defendant and police and other background circumstances bearing on Charters’ and Bianco’s states of mind were gone into. Such considerations were said to bear on the severity with which alleged wrongdoing by the police should be assessed and the likelihood of the defendants’ succumbing to the police tactics and participating in records of interview.

Rachel Charters’ record of interview

27. [27]
    Regarding Ms Charters, Mr Reilly’s outline of submissions offers the following chronology:

“Background:

4.The accused woman is charged with a number of offences arising from an alleged home invasion of premises at Woodridge. This was alleged to have occurred about 2.30 am on 5 January, 2001. It was alleged that some of the intruders were armed and caused personal injury to 2 occupants of the residence.

5.Police allege that on 30 January, a [JC] attended at the Eden Police station in NSW and provided a statement which, inter alia, implicated the accused.

6.At 8.41 am, on 7 February, a number of police officers attended at a residence at Caithness Ct, Bundall. A search warrant was executed. The accused woman was located at that residence and, within a short time of the arrival of police, she was placed under arrest. Ms Charters was then conveyed to Beenleigh Police Station.

7.The interview with police commenced at 1.43 pm – about 5 hours after she had been taken into police custody. Prior to the interview it is common ground that Ms Charters requested a solicitor and police arranged for a Bruce Affleck to attend. It does not appear that Ms Charters was given a choice of lawyers or provided with a telephone book. Mr Affleck later told Det Frame that Ms Charters did not wish to give an interview ( p 68 deps). Mr Affleck left the station. Subsequent to this, the interview occurs.

8.Also present with the accused throughout the interview was her aunt, Michelle Charters. Michelle was told that it was her role to act “as support for Rachel” – p 4p ROI.

9.In the course of the interview, Ms Charters indicated that she was at the subject premises at the time of the offences and had attended there with a number of others. She denied that anyone was, to her knowledge, armed. She indicated that the purpose in going there was to “warn” one of the occupants to cease harassment of her grandmother. Ms Charters did admit that prior to entering the residence, one person had mentioned stealing some property.”

28. [28]
    It is worthy of mention that she knew some days prior to the attendance of police that JC had made her statement. The submission goes on:

“Prior to the interview occurring, Ms Chandler (sic) claims that

• (a) She was, for the bulk of the time, kept in an interview room;
• (b She was in a fragile emotional state and had cried on a number of occasions;

• (c)She was informed that her cousin, Ms [JC], had implicated her and was shown portions of an alleged statement;

• (d)Police informed her that they had a videotape from a McDonalds restaurant which recorded her presence with others a short time prior to the offence;

• (e)She was never afforded the opportunity of seeking to contract a solicitor of her own choosing;

• (f)She was told by police that “cut off” time was approaching and that if she did not provide an interview she would be detained in custody as no court was available;

• (g) That it would be in her interests to co-operate and tell the truth;

• (h) She was told by police that she had better tell them everything because if she lied the Judge ‘would not even look’ at her;

• (i) Police also commented that ‘they love girls like you in gaol’;

• (j)That she was not provided with any food whilst in police custody and only had 1 glass of water;

• (k)As a consequence of these matters and the general oppressive nature of her treatment by police officers, she was in no position to exercise a free choice when it came to the interview.”

(The lower case letters have been added)

Having considered Ms Charters’ evidence, that of her aunt (who was with her not only during the interview but also for the couple of hours leading up to it) and that of the police officers who had contact with her, I would accept most of those claims. However, I think that Ms Charters is not reliable in interpretations she has put on the statements she attributes to the police in the course of conversations that happened. In particular, as to (d), the likelihood is that no more happened than allusion to the potential of video surveillance evidence becoming available in circumstances where JC had identified Rachel Charters as being at McDonalds – I am not satisfied that the relevant police officers knew on 7 February 2001 that the tape for 5 January 2001 had almost certainly been reused and taped over or that any police officer told Ms Charters they had a videotape recording her presence. Not until receipt of the JC statement did the police know of the relevance of McDonalds. Taking (g) to represent a statement by police, I am not persuaded that any of those dealing with Ms Charters made such a statement – which would, of course, be one of the classic improprieties anyone would expect experienced police to avoid. I find the meaning of (h) somewhat difficult to fathom. If something along those lines was said, which I am not prepared to find, I cannot accept this account of it. In any event, I am satisfied that the statement had no effect on Ms Charters. That was also the case in respect of (i), as to which Ms Charters was corroborated by her aunt. But Ms Charters said at p 236 of the transcript:

“My reply to that was I turned around to Kidston and I said, ‘I already have my liquor licence’ (which I would take to be a punning reference to ‘lick her’ licence).”

It is for the court to decide whether “k” is correct and not simply to accept an assertion, which is easily made in retrospect by a person who may regret having participated in a record of interview. Likewise, the court ought not to accept uncritically the assertion (or all implications of an assertion) about “a fragile emotional state”. A person is likely to be in a troubled state who knows that police are aware of his or her involvement in serious offending and who is taken into police custody in connection with it.

29. [29]
    Mr Reilly organized the evidence in another way in another section of his written submissions:

“It is submitted that there are a number of facts which are either common ground or which ought be found to be established by the evidence. These include:-

1. (i)
   That Ms Charters had been in police custody since approximately 8.50 am;

2. (ii)
   that she had awoken at the time of the execution of the search warrants.

3. (iii)
   That she had noting to eat up to the point when the interview was conducted at 1.43.

4. (iv)
   that she was confined in a room at the police station and a significant amount of this was in an interview room.

5. (v)
   that recorded on a tape of the proceedings at the residence of Ms Charters is a reference by her to Mr Potts, a lawyer

6. (vi)
   that she requested legal advice at the police station and was, ultimately, provided with access by a Mr Affleck from Harris Sushames;

7. (vii)
   That she had not requested that solicitor and his presence there was at the request of police officer Frame. It is submitted that convenience for police seemed the primary reason for this.

8. (viii)
   Ms Charters was not provided with a telephone book or access to a telephone during this process;

9. (ix)
   Mr Affleck provided advice to Ms Charters and indicated to police that there would be no interview

10. (x)
    Within a short time of that occurring, the interview commences.

10. (xi)
    During her detention, Ms Charters had cried.

10. (xii)
    Officer Kidston, although charged with the welfare of Ms Charters did nothing to ensure she was adequately nourished.

10. (xiii)
    police officer had told Ms Charters why she was being detained or what the time limit was.” [Numbers added]

Whilst these matters, of themselves, do not establish a lack of   voluntariness, it is submitted that there are relevant to the question of whether the ultimate actions of Ms Charters bore that character. It is submitted that these circumstances created an atmosphere within which the will of any person would be susceptible to being overcome.”

There is a certain amount of repetition here – (iii), (iv) and (xi) repeat (j), (a) and (b); (v) to (x) expand on (e). While (xii) is technically correct, in the sense that the named officer was charged with considering the matters listed in s 235(1) of the Police Powers and Responsibilities Act 2000, on the evidence there was nothing done to trigger particular reference to (e) and (g) of sub-s (1), which are apparently being invoked here, to place him on notice that anything needed be done. It must be recalled that Michelle Charters was present, and able to take herself or request police to take steps to obtain appropriate sustenance, had that been asked for or appeared advisable. As to (xiii), I will assume that Ms Charters was not advised of the time limit in s 234 (which may be extended under s 236). There appears to be no obligation on police to provide information of that kind, although one would hope they would do so upon request by a suspect detained for questioning. These matters can cut both ways. Unsolicited information from police that detention may last for eight hours, subject to extension, might be seen as oppressive or threatening. In (f), Ms Charters complains of being placed under pressure by advice that time was running out if she were to be taken before a magistrate that day.

30. [30]
    I note and agree with the statement that the matters listed do not of themselves establish lack of voluntariness as it appears to be understood. It would be totally unrealistic to treat voluntariness as applying only where a confession has the attributes indicated by the Macquarie Dictionary definition of “voluntary”:

“1.done, made, brought about, undertaken, etc., of one’s own accord or by free choice:

2.acting of one’s own will or choice;

...

6. having the power of willing or choosing: ...

7.proceeding from a natural impulse;  spontaneous”

Where, as here, there is a confession elicited by police questioning of a person taken into custody, a person who may be presumed to be anxious to be returned to the community as soon as possible, there will not be many situations in which the confession was “voluntary” to the extent that, if the recording equipment malfunctioned, say, the suspect would be expected to be willing to engage in a new record of interview to similar effect on another occasion. It is interesting to note this exchange early in Rachel Charters’ record of interview:

“CONST KIDSTON:   Is it right we had a solicitor here for you and you spoke to that solicitor?--  Yep.

Okay. And he’s given you certain advice in relation to whether or not to do this interview?--  Yeah.

Okay. And you’re happy enough to continue with doing the interview after receiving his advice?--  Yeah.

Okay. [Indistinct]. All right. If we could just start, Rachel, by asking you what happened on that morning?--  Do I have to do that?  Can’t you just ask me questions?

It’s just a broad question to try and get your – a general summary from you about what happened on that morning?--  Well, I don’t want to do that. I’d just prefer to answer your questions if that’s all right.”  

31. [31]
    Toohey, Gaudron and Gummow JJ in Swaffield at 196 said:

“... A finding of voluntariness does not preclude the exercise of the discretion to exclude evidence by reason of unfairness or public interest.

...

... it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues.

...

In McDermott (146), Dixon J spoke of voluntariness in terms of the free choice to speak” and expressed doubts “whether ... in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will” (147), And in Cleland (148) Murphy J said:

‘It may be a question of classification whether a confession induced by false representations or other trickery is voluntary.’

His Honour referred to older decisions which treated trickery as negating voluntariness (149).

The wider the operation given to the principle that, to be admissible, a confession must be voluntary, the less scope there is, in practice, for the exercise of the unfairness discretion. Particularly is that so in relation to improprieties calculated to cause the making of an untrue admission. It may be expected that improprieties calculated to have that effect will often impact on the exercise of a free choice to speak if that notion is given its full effect.”

In this case, the only concerns regarding reliability of the record of interview relate to the correctness of the detail of Ms Charters’ and others’ involvement. There is a huge conflict with JC’s account(s). So far as voluntariness is concerned, as I understand the Australian approach, it is for the prosecution to show that the defendant’s will was not overborne. The Crown has succeeded in establishing that negative proposition.

32. [32]
    Ms Charters give a picture of police importuning her to participate in a record of interview. She suggests there was a concerted attempt to induce her co-operation by different police playing “good cop/bad cop” roles, that she met a certain amount of obstruction in being provided with a solicitor, and was denied the services of her solicitor of choice, Mr Bill Potts. Whatever psychological pressures might have been applied to her (in which regard I think Ms Charters overstated her case) she was resistant to participating in the record of interview; that was her position after the interview with the solicitor Mr Affleck, which he communicated to police. She says she and her aunt confirmed that to police – “and that’s when me and Ian Frame had words”. Her evidence in chief contains the following at 265-66:

“Do you remember when that happened -----?--  That happened about 10 minutes before I gave my record of interview. That was the last straw, basically, that they showed me because I wasn’t giving an interview so they went and got her statement.

Do you remember who it was that showed -----?--  It was Detective Kidston and Knowles that showed me the statement. They were both in the room and I think it was Kidston that was holding it but Knowles was standing next to him.

And how much of it did you get to see?--  It was a – I counted the pages. I’m a 100 per cent sure it was a 12-page statement. I got to see my cousin’s name, her signature, I got to see my uncle which is [JC]’s father signature and he had the statement on the table with a blank piece of paper on the top page and I just got to see little bits of it and then I flicked through, make sure there was a signature on every page.

Well then, what happened between that time and the interview commencing?--  Okay. After I was shown a statement, I was crying – I was actually – I was a mess and I looked at my aunty and I said to her, ‘What should I do?’ and she said to me, ‘Rachel, it’s up to you what you do.’  And I looked at the police and I was crying and I said I didn’t know what to do, I was unsure what to do and the police officers said to me that I’ve – my cut off time was coming close because I only had, I think, till 2 o’clock to make a statement or I would be spending the night in the watch-house, and he said I have got to make my mind up now basically. And with the police officers and my aunty both speaking to me, I then decided to give an interview after about 10 minutes of discussion.

And why did you decide to give an interview?--  I felt like I had to give an interview. I was pressured all day and, basically, I was in the room all day, the coppers came in several times and each time they came in they basically said to me – asked me if I was giving an interview, and by that stage, after looking at [JC]’s statement, I just felt I had to.” 

33. [33]
    Even making allowances for Ms Charters’ mind being in a turmoil, bearing in mind all the circumstances, including her having had three or four previous experiences of being arrested, and the realization that she must have had that conviction arising from her participation in a home invasion in which two victims were injured would likely lead to much longer incarceration than a night in the watchhouse, I am quite unable to conclude that her will was or may have been overborne.

34. [34]
    Michelle Charters, in relation to the topic of a solicitor, said at 315:

“Rachel asked for her solicitor Bill Potts and the police said they weren’t aware of him, they didn’t know of him by name. Rachel then asked for a Yellow Pages. They wouldn’t give one. I questioned as to why. They said that they have to use a local solicitor that they used from across the road. Rachel then said, ‘His number’s in my phone. If you ring it and then tell what’s happened and then I’ll talk to him’, and they wouldn’t let us do that either, and with that, she got more upset.”

She was there when Mr Affleck turned up, but said she did not listen to what he said. She was trying to “place him”, and realized he had been and perhaps still was the male complainant’s solicitor. She said she told Mr Affleck to leave the room and followed him out, where she spoke to detectives (it does not appear she did or said anything about contacting Mr Potts or any other solicitor) before returning to the interview room. After that, police returned:

“...Well, they asked Rachel to give the interview. They said, ‘You’re going to have to give this interview or you’ve only got a little bit longer. There’s been enough time  wasted today. You’ll be taken to the watch-house and you may not even get bail.’  And I looked at Rachel and I told her to give the interview.

Now, do you recall there ever being any conversation by police about evidence that they had?--  Yes.

What -----?--  they said – they said, ‘We have evidence. [JC] had made a statement’, which is Rachel’s cousin. She was involved too. ‘She’s made a statement.’  I said to the detectives, ‘If you’ve got this statement, why don’t you show it to her instead of threatening tactics’, you know what I mean. So they went out, they got the statement. So they turned it over to the back bottom page so we couldn’t see the writing but we saw [JC]’s signature appeared there besides her father and it had been prepared by Bega detectives. That’s when I said to Rachel, ‘Make’ – ‘Give them the statement’, yep. I advised her to do that.”

She described her niece as “a wreck from the time I walked in there (p 316).”

35. [35]
    Her cross examination contains the following at 323:

“Do you agree that the record of interview commenced at about – at or about 1.43 in the afternoon?--  It would have been then because we were there for hours, mmm, It was more towards the afternoon when I said – finally said to her, ‘Rach, you’ve got no choice but to give the interview.’, yeah.

This was on your assessment of the fact, or your assessment was based on the fact that you thought that [JC] had given a statement?--  Yes.

Do you know how long that statement was, how many pages; do you recall?--  Well, I don’t know, as I said, because it was – as I said, because it was turned over and I seen the signature of [JC] and her father appear. That was all really. I then turned to Rachel and said, ‘Rachel, you’ve got no choice at the end of the day but to give this statement because I really don’t want to see you go over to the watch-house, not be bailed and go to gaol.”

36. [36]
    In the end, I am comfortably satisfied that it was the demonstration by police of the fact of their having a statement from JC that led Michelle Charters to advise and Rachel Charters to offer participation in a record of interview. I appreciate that the two of them put a different emphasis on matters at other points in their evidence. Michelle Charters said at T 318 that she had advised her niece to give an interview:

“And you advised her to give an interview?--  Yes. Yes, I did.
And you did that because you saw that there was  a statement from [JC] there?--  Well, I did that because the police were threatening to put my niece in a watch-house, not even get Bill Potts, which is her legal solicitor that she asked for before she even ----”

37. [37]
    It is convenient to note here some troubling features of this body of evidence. Mr Potts was not Rachel Charters’ solicitor. She did not know him. He may have been Bertomeu’s solicitor; Rachel Charters told the court he had acted for a “friend” of hers. If engaging him had the importance now attributed to it, I simply cannot believe that Michelle Charters did nothing about contacting him, particularly if Rachel had said that “his number’s in my phone” (as asserted by Michelle, but not by Rachel at any time). Michelle Charters asserted (p 319-20) that, notwithstanding never having been arrested, she knew “the law” and her “rights”. It seems clear (and she expressly adverted to it at p 315) that she understood that bail might be available from the watch-house keeper. She was adamant that on the day she made diary notes of the names of the three police officers involved, namely Frame, Knowles and Pannowitz. This is at variance with the true cast of characters involving her niece, which did not include Pannowitz at all, but, in his stead, Kidston, playing a central role.

38. [38]
    In my opinion, Rachel Charters’ record of interview must be accounted “voluntary” as that concept is presently understood and applied in Australia. The contents of it confirm that conclusion. She was extremely voluble in her criticisms of the male complainant, even of the female complainant, to a lesser extent. She was astute to minimize the extent of her own involvement in events, and to insist that, while there was no reason why the female complainant should not have seen and recognized her, she herself had seen nothing, really, of what was done by those who entered the complainants’ house. However, Ms Charters does not appear or sound particularly distressed in the tape. When asked by Kidston at the end of the record of interview the standard question, “Are you happy with the way you’ve been treated by police today?”, she did not simply respond in the affirmative, but added “Youse have been really good.” To my ear, there is nothing ironical or sarcastic in the delivery of that line. She embellished her account in the s 592 Application to the extent of seriously undermining its reliability. For example, she asserted at T 263-64 that Kidston had told her, before she gave her record of interview, that Bianco had made a statement which she “couldn’t see because he didn’t have a spare portable cassette player from them to bring up from the watch-house to listen to his cassettes.” This became “the officers had told me that Chris Bianco and JC, which is my cousin, had given statements. One was a voice cassette and one was written statement.”

39. [39]
    An assertion by police along those lines would have been a blatant lie, given that Bianco had not even been detained by them at that time. Such a statement would be akin to a suspect being informed, untruthfully, that his fingerprint had been found at a crime scene, or the like. It would vitiate any ensuing confession. Nothing regarding a statement by Bianco was put to police in their cross examination; nothing was said about it by Mr Reilly in the detailed opening which he gave, outlining the complaints of police misconduct which were to be relied on as vitiating the record of interview. I reject this evidence entirely, finding it incredible that police would state that Bianco, whose residence police did not attend until about 1.05pm, had made a statement. He did not get to Beenleigh Police Station until 2.40 pm. The Charters record of interview occurred between 1.43 pm and 2.26 pm. Michelle Charters says nothing regarding Bianco.

40. [40]
    Authority that there is a promise within s 10 where a police officer tells a suspect that “any statement made would be for his benefit” is McNamara v Edwards (1907) Qd R 9. Likewise a “promise” of immediate bail (not made here, on the basis of Michelle Charters’ statement) amounts to an inducement by a person in authority, or may do so: Zaveckas (1970) 1 All ER 413, where the statement was made in response to an inquiry made of police. There is authority that pressure placed on a suspect by a family member to make statements to police may come within s 10, as coming from a “person  in authority”. See R v Cleary (1963) 48 Crim App R 116. In Cleary, police were present when the suspect boy’s father urged him to “Put your cards on the table. Tell them the lot.”  In Bentley (1963) QWN 10, where there was no evidence that police were present at pertinent discussions between a young suspect and his father, the headnote is:

“A police officer questioned a boy aged 16 years in the presence of his father concerning the commission of an offence and later the boy wrote out a confession in the presence of his father. Before he was questioned the boy was advised by his father “If you do not tell the truth you will get yourself into a tangle” and his father also told him that he would not be able to correct himself later on. On seven or eight occasions the father advised the boy to “tell the truth”. When the boy asked his father for advice with regard to making a written confession the father said “Do what you like”. The boy acknowledged in writing that no threat, promise or inducement had been held out to induce him to make the confession.

Held:  The confession was fairly obtained without any threat or promise being made and was admissible upon the boy’s trial.”

41. [41]
    On the evidence before the court, it is impossible to characterize Michelle Charters as in any way the agent or ally of the police. Whether she was right or wrong in taking the view that the police were pressuring her niece, that pressure was withstood by both of them. What made the difference to both of them, I find, was the demonstration by police that they had JC’s statement. Whether or not anything happened which amounted to a “promise by some person in authority” within s 10, this “confession”, which by definition was made afterwards, was not “induced” by it. These are circumstances in which the court should accept the statement at the end of the interview that no threat, promise or inducement was held out to take part in it.

42. [42]
    Notwithstanding those conclusions the court must, as requested by Mr Reilly, consider whether or not the confession should be excluded because of unfairness to the accused or public policy considerations.

43. [43]
    As to unfairness, “unreliability” is an important aspect of the discretion (Swaffield at 197). It is not the only aspect. Unfairness focuses not on whether the police have acted unfairly, but whether it would be unfair to the accused to use her statement against her – “unfairness” in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardized if a statement is obtained in circumstances which affect the reliability of the statement” (per Wilson, Dawson and Toohey JJ in Van der Meer (1988) 82 ALR 10, at 26, quoted in Swaffield at 189). Their Honours in Swaffield went on to note other touchstones of unfairness than unreliability:

“It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted ... And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.”

44. [44]
    Having considered the circumstances relied on by Mr Reilly as supporting exclusion of his client’s record of interview for unfairness, my view is that it would not be a proper exercise of the discretion to exclude the record of interview on this basis.

45. [45]
    There remains the “policy discretion” which still may require exclusion of confessional evidence even where no unfairness to the accused is shown. In Ireland (1970) 126 CLR 321, 335, the High Court acknowledged the “competing public requirements (that) must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.”  The foregoing passage is set out in Swaffield at 190.

46. [46]
    I accept the approach of Fitzgerald P in O'Neill (1996) 2 Qd R 326, 422, quoted in Swaffield at 198:

“I do not consider it necessarily improper to use deception in law enforcement activities to detect, investigate or prevent crime. Nor will evidence obtained in the course of, or through, such activities necessarily be excluded. However, that is not the issue. Lally’s conduct, at police instigation, entrenched on the appellant’s privilege against self-incrimination, which was a basic personal right and it  did so for that express purpose. The appellant was deliberately tricked into surrendering her right to silence at the instance of law enforcement personnel by an implicit misrepresentation that Lally sought her confidence as a friend, not a police agent. That being so, in my opinion, it was unfair to the appellant to receive evidence of her recorded statements to Lally at the appellant’s trial.”

47. [47]
    The issue is whether there was impropriety by the police here. It is regrettable that an observer such as Michelle Charters in retrospect should develop the impression (I think genuinely) of pressure being applied: that does not decide the issue. While I am not satisfied Rachel Charters ever indicated a determination to consult Mr Potts, it is clear that the police did not comply with s 34(4) of the Police Powers and Responsibilities Regulation 2000, which calls for making available to a relevant person a “regional lawyer list” or telephone directory (it is claimed the latter was requested). Further, the police breached sub-s (5)(b) by “persuading a relevant person to arrange for a particular lawyer to be present” - in the sense that police selected Mr Affleck, without giving Rachel Charters any choice in the matter. As things turned out, it can safely be assumed that Mr. Affleck gave proper advice, notwithstanding his potential conflict in the matter. The emergence of that conflict was a suitable opening for the services of another lawyer to be sought, but any interest in pursuing that was abandoned. I do not accept that this can be attributed to other factors such as a genuine belief that there was no time.

48. [48]
    It is arguable that the police failed to comply with s. 35 of the Police Powers and Responsibilities Regulation 2000 as well. Rachel Charters had indicated through Mr. Affleck that she did not wish to answer questions, and she may have given such an indication herself. In those circumstances, the police were obliged under subsection (2) to clarify her intention to exercise her right to silence – which I am satisfied they intended to do on tape. Because Rachel Charters changed her mind (whether of her own volition, or under encouragement from her aunt) the prohibition against questioning in subsection (2) did not come about. Subsection (4) provides:

”(4)However, if the person later indicates he or she is prepared to answer questions, a police officer must, before questioning or continuing to question the person, ask the person –

(a)why he or she has decided to answer questions; and

(b)if a police officer or someone else in authority has told the person to answer questions.”

There seems to have been no effort made to comply with those requirements, which, it seems to me, would have been desirable. It may be that, on its proper interpretation; (4) qualifies (3) and so is irrelevant because “confirmation” never came;  it may be that it qualifies (2) – again, it does not appear that police complied with the very detailed requirements of (2).

49. [49]
    In my opinion, neither the limited “impropriety” identified, nor other improprieties asserted, nor anything else about the circumstances calls for the exercise of the “policy” discretion to exclude the record of interview. The joint judgment in Swaffield expressly indicates in more than one place that “contemporary” or “prevailing” community standards should be consulted here (194, 202). It is my view that the serious nature of the offending and present day community concern regarding home invasions and a concomitant wish to have offenders identified and brought to trial may be considered by the court, alongside the more frequently mentioned public concern that police and prosecution procedures be acceptable from the point of view of the fairness of criminal trials.

50. [50]
    I do not think this is a case for exercising the “policy” discretion to exclude Rachel Charters’ record of interview from evidence at the trial.

Police failure to record on tape conversations with suspects

51. [51]
    It might be mentioned that the police have invited allegations of the kind encountered here by their failure to embrace the reasonably available course of recording conversations with suspects. The Court of Appeal considered it was “improper of the police not to have recorded these conversations” in Robin Ware, 121/96, 19 July 1996;  BC 9603807. In Williams (2001) 1 Qd R 212, the Court, dismissing an appeal, said at 216:

”Admissions to police

[9]It is astonishing that 22 years after the Lucas Commission of Inquiry, 10 years after the Fitzgerald Report, and eight years after McKinney, police still fail from time to time to take advantage of relatively inexpensive recorders when interviewing suspects in the field.

[10]As the appellant eventually declined to take part in an electronically recorded interview, there are disputed oral admissions to the effect that the shirt was his. This was not a case where the oral statement could be relied on as a sole basis of conviction. Indeed it was one item in a substantial circumstantial case. Further, the circumstances surrounding the field interview were not as stark as those at a police station where the special position of vulnerability and disadvantage of an accused is recognised. Even so, the undesirability of relying upon notes in a notebook in a day and age where mechanical a recording is readily available is a matter of some concern. Whether this was the fault of a system which failed to supply proper equipment to its members or of individual failure does not matter. If such practices continue, courts may find it necessary to exclude such alleged oral statements or alternatively to give McKinney-style directions in relation to such statements, highlighting the failure of the police to act reasonably in a well-known problem area. Judges might well tell juries that where no sensible reason is given for failing to record such a conversation, the jury should regard it with suspicion.” 

This is not a case in which the Crown seeks to rely on incriminatory statements which were not recorded. The existence of a recording of all contacts would, hopefully, have provided an indisputable record of contacts in the course of which the police are alleged to have acted improperly and provided them with means of demonstrating the falsity of allegations against them which were false. There was something of a chorus from police witnesses to the effect that field tapes were often inaudible, and invited conflicting versions being put up of things which were said. As it happens, the quality of the field tape made when police visited the residence of Rachel Charters and Mr. Bertomeu is good. One of the things that can be heard on it is a reference by her to Mr. Potts. I would find this referred to him in his capacity as the solicitor for Mr. Bertomeu or someone else. I think this view is supported by the note Mr. Affleck made on the basis of information from police to the effect that Mr. Potts might have been coming, which seemed to indicate he was coming to see Bertomeu.

52. [52]
    I found some assistance from the New South Wales Court of Appeal’s decision in Kerrie Anne Clarke (1997) 97 A.Crim.R. 414, which arose in a context, like the present, governed by statutory rules. Hunt CJ at Cl said at 417:

“We were referred to a line of authority in South Australia which states that it is not permissible for a police officer to persist in interrogating persons in custody beyond the point at which they say that they wish to say nothing or no more, and particularly so when that  person declines to speak unless his or her  solicitor is present.”

and at 419:

“In my view, those sections provide appropriate and sufficient protection for suspected persons, and it would be mischievous to engraft upon those sections a rule of practice such as exists in South Australia. It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any  suggestion of intimidation, persistent importunity or sustained or undue insistence of pressure.”.

53. [53]
    Smart J said at 431:

“It is not uncommon for an accused to intimate that he does not wish to answer any questions and then to decide to answer some questions or to make a summary of the situation which the accused regards as wrong and needs correction or something which needs explanation. There are many possibilities. It would be unwise to hold that every time an accused states that he does not want to answer questions, some further questions are put and answers are given or explanations or statements made such answers, statements or explanations are inadmissible. Everything depends on the circumstances. There may, for example, be no challenge to the truthfulness or accuracy of the alleged replies.”  The second full paragraph in the judgment”

Mr Bianco’s record of interview

54. [54]
    Mr. Glynn SC, representing Mr. Bianco, relied on s. 10 of the Criminal Law Amendment Act 1894 as the basis on which his client’s record of interview should be kept out of evidence and also on the lack of voluntariness. He did not rely on the court’s exercising any discretion to exclude the record of interview if the court came to the conclusion that it was voluntary and not excluded by s. 10. However, other circumstances, of the kind that Mr. Reilly had relied on in support of the proposition that one or both of the discretions ought to be exercised were relied on as background, described as “the softening up process to make the threat and the inducement effective”.

55. [55]
    Mr. Bianco is a man in his late 20’s, who may be presumed to have no previous experience with the law. He went voluntarily to Beenleigh Police Station. Unlike Ms. Charters, he did not require the police to arrest him. When police attended his premises with a warrant about 5 past 1 in the afternoon of 7 February 2001, four officers being present, a firearm was located there. Mr. Bianco informed police he understood their advice that they were investigating a break and enter at [name withheld] Ave, Woodridge, and subsequent assault of the occupants, but said he knew nothing about the matter. There was evidence of English not being his first language, and Mr. Glynn asked that the court take this into account. From the course of his evidence in the court and what may be heard in his taped record of interview, it must be concluded that Mr. Bianco uses English effectively and without difficulty.

56. [56]
    Events at the residence took some time, in particular because arrangements had to be made for a vehicle to be towed away. At about 2.23 p.m. Mr. Bianco agreed to accompany police to Beenleigh Police Station without arrest. The party arrived there at about 2.40 p.m. Mr. Bianco said he did not recall whether Detective Sergeant Pannowitz (as he asserted) had administered a caution at his house. He denied Pannowitz said to him: ‘Police are presently speaking with Rachel Charters and Chris Bertomeu at the station”. Essentially, he denied all of the conversation at his residence sworn to by Pannowitz on the basis of reference to notes in his note book, saying that “Oh, that’s going to hurt” (his own comment) was “the entire conversation as regards the pistol”.

57. [57]
    He agreed he was told it was his choice whether to go to the police station voluntarily or be arrested. His and police versions of where he was held at the police station, which included some time in a room where he was able to watch a one day cricket match on television with some police, are at variance, but nothing particularly turns on that. He said that while there:

“… Detective Pannowitz presented me with a statement of Rachel Charters and told me that it was Rachel’s statement and for me to have a look over it, they know that I was there, they know everything about it, they have got video footage from McDonalds. I then had a look – had a quick look over the statement and I – I said to the – to Pannowitz, I believe it was, that I don’t know anything about it, and I handed the statement back to him and he said to me something like, “oh, you sure?”, and I said, “Yes””.

I do not think anything more definite was said about McDonalds’ video footage than general comments about the time of video surveillance.

He said the next thing that happened was that he was conveyed to the watchhouse.

58. [58]
    According to Pannowitz:

“Okay. And what was the tenor of that conversation?--  I said to Bianco, “Chris, I’m now arresting you on suspicion of breaking into the residence situated at number [name withheld]  Avenue, Woodridge, on the 5^th of the 1^st, 2001 and assaulting the occupants. It is my intention to convey you to the Beenleigh watch-house where you can be held for a maximum of eight hours. At this stage you are not being officially charged. Do you understand that?”  He said, “Yes”. I said, “All it is, Chris, is that we need to conduct some  inquiries and they need to put you somewhere while we conduct those inquiries. I’ll come back and see you as soon as I finish those inquiries, okay?’ and he said, “Yes.”

Why was it that you arrested him at that time?--  In the interim time between I left him in that room and returned I had conversations with other investigators as to the status of their investigations. There were also other inquiries and offenders which needed to be located and interviewed regarding these matters, and the holding area downstairs is an area which you’re meant to supervise persons. As I said, I briefed the duty sergeant regarding Bianco and the nature of him being held there. However, that’s not an indefinite thing. You can’t leave someone there for several hours unattended. So I had formed the opinion that there was sufficient evidence to arrest Bianco on the charges which are before the Court and used the detention period available under the Police Powers and Responsibility Act to convey him to the watch-house, which is an area which he can be monitored and also held. They have a detention book there for that purpose.

What time did you convey him to the watch-house?--  4.20 p.m.

What happened then?--  Between then and I think 7.45 p.m., from memory, I assisted other police and conducted inquiries and completed some paperwork in relation to this matter. Part of that paperwork included some bench charge sheets regarding the offences that Bianco has been charged with. Detective Frame and Knowles had interviewed and were in the process of charging a male person I know as Douglas Kirk and were in the process of conveying him to the Beenleigh watch-house. I provided my paperwork for Bianco to Detective Frame with a view of Frame charging him at the watch-house. Approximately 10 minutes later Frame returned from that location and advised me that Bianco indicated to him he’d like to speak with police. Possibly five minutes after that, myself and Detective Waugh attended the Beenleigh watch-house and spoke with Bianco where we later conducted a record of interview with him.”

59. [59]
    Mr. Bianco was then moved from a cell known as F4 to an interview room, also in the watchhouse. According to Pannowitz (at p. 179):

“…..I said we were told that you wanted to speak with us, Chris.”  Bianco said, “Can I see the statements made by Rachel and Doug?’”  I said to Bianco, “I’m prepared to show you a typewritten statement obtained from a [JC]. Both Rachel and Doug actually gave audio statements. I’ll see if I can find those for you.”  And upon saying that, I then left the watch-house and returned to the CIB.

What did you do at the CIB?--  Yeah, at that location I located a statement of [JC] and the C90 audio cassette from the interview between Frame and Douglas Kirk.

What happened next?--  I had a conversation with Frame regarding that interview and took a period of time where I familiarised myself as to certain aspects of the interview, and by that I mean I fast forward it, rewound to different bits that I was prepared to play to Bianco should the need arise. I had a conversation with – I can’t recall who now, an investigator regarding the statement of [JC] – of Rachel Charters, sorry, and as a result of that conversation, I decided not to permit Bianco to listen to that audio cassette of Rachel Charters. After that period of time elapsed where I was listening to the statement made by Douglas Kirk, I returned to the watch-house  where Bianco was still seated in the same room with Detective Waugh.

What happened then?--  I provided the statement of [JC] to Bianco. From memory, it was a fairly lengthy statement. He read that statement or appeared to me to be reading that statement and at the conclusion of that, I played certain aspects of the interview of Doug Kirk to Bianco”

60. [60]
    Frame ’s cross-examination contains the following at p 26 ll 29-63:

“I suggest that about half an hour later you returned to the cell and you said that everyone else had supplied statements?--  No, I only went in there once. I never said that.

Okay. That you said that you knew that either Bertomeu or he was holding the bat?--  No.

That you said that if he didn’t supply a statement, he’d be charged with attempted murder?--  No.

And that would be on the basis that he was the person wielding the baseball bat?--  That didn’t happen.

And that you told him that he would be sentenced to eight to 10 years’ imprisonment?--  No, I didn’t say that.

I suggest that you – that you said to him that you weren’t looking to implicate him to that extent provided he supplied a statement?—That did not occur.

And you said that if he supplied a statement, that he wouldn’t be charged with attempted murder and he would get bail that night?--  No, that is not right.”

61. [61]
    Frame acknowledged he had been told Mr Bianco did not wish to participate in an interview. As in the case of Chambers, the steps indicated in the Police Powers and Responsibilities Act where there is a change of heart were not followed. After the record of interview, Mr. Bianco was officially charged. My impression is that the charges that had been prepared against Mr. Bianco that day went beyond those to do with the home invasion, and extended to weapons and drug matters (see p. 176 of the transcript).

62. [62]
    Mr. Bianco estimated he was left alone in the watchhouse, after being relieved of his shoes, belt, phone, et cetera, “for three or four hours” in a room with a small television. He said at p. 204:

“Well, during that period Detective Frame came over maybe a couple of hours or so after I was in there and he came in, said to me, “Look, Chris, we – we’ve conducted further investigations”, something like that, “We know you were there. We have spoken to Chris. He’s – he’s given us a written statement and he’s waiting” – I think he said to me something like they were waiting to get an address of the car off him, or something like that. He asked me whether I knew where the car was. I said to him I didn’t. And he said to me that he had statements from Doug as well, that Doug had given a statement and that they had said that I was holding the bat. He said to me that the sooner I – how did he put it – exactly how he put it I can’t recall but it was something like it is better for me to get on it early and not to be left holding the bat “because everyone’s talking and the last one will be the one with the bat”.

That dramatic image attributed to Frame (an allusion to the supposed circumstance that the most serious injury to the male complainant had been inflicted by use of a baseball bat) is highly memorable. It was not put in such a graphic way to Frame when he was cross-examined by Mr. Glynn regarding it, from which I conclude that it was a “recent improvement” of Mr. Bianco’s account. It casts doubt on all of his assertions, and, in particular, to the assertion that “Chris” (Bertomeu) was said to have given a written statement, contrary to the fact. Mr. Bianco referred to what he said was a later conversation with Frame:

“He said to me that – you know, that it was getting late now that I was being left – like everyone was putting a favourable version for themselves forward and that I was being left in a bad situation. He said that the offences were serious and that being left in a bad situation I would be charged with attempted murder, and that carried a sentence of eight to 10 years. He asked me again do I want to speak to him about it and I said no. I said, “Can I speak to Chris?”, and he said “No, you can’t.”  And then he left again.

Did you have any further conversation with Frame?--  He came back a final time with some papers. They were green and pink, I think I remember seeing colours. He said that I was now being officially charged.

Did he tell you what the charges were?--  He didn’t’ tell me the full charges. He said I was being charged with the home invasion and assault at [name withheld] Street or Avenue, and – where was I – he said I was being charged with them. He then said to me, “Do you want to speak to the officers?”, and I said, “I don’t know, maybe I should speak to someone.”, and he said “How about I go get someone and they will come and have a talk to you.”  And I said, “Okay”, and he left.

Was there ever any discussion about telephone calls with him?--  There was – I spoke with him – I said to him that I wanted to call my father and he said that he will try and arrange that, or I wanted to call home. I wanted to speak to my mother, actually, but it was getting late and she would be at work so I would have to speak to my father, and he said he would arrange that – he would try to arrange that for me when he can.

Did he put any conditions upon that?--  He didn’t put conditions on that. Later on – like the last time he was there with the charges, I said to him will I be able to – you know, “What’s going to happen?”, because I didn’t know what was going to happen. I said to him can I – “I need to get in touch with my family, let them know. Can I go home and let them know, you know, and I will come back if I need to”, and he said, “Look, we can’t let you go, but”, he said “we’ll see what we can do. How about you speak to some officers and we’ll see what we can do after that. Maybe we can go then.”

63. [63]
    Mr. Bianco agreed he was allowed to make a phone call to his parents’ home. He agreed he was shown JC’s statement, and had parts of Kirk’s record of interview played to him. His own record of interview then commenced. He asserted that there was some problem with the recording of it, that the tapes malfunctioned and that Pannowitz went off to get a fresh set. He asserted (p.206 of the transcript) that during the period before new tapes were inserted, Waugh and Pannowitz made statements to him (which if they happened would clearly have been most improper) to dissuade him from seeking legal advice, suggesting, for example, that at that hour of night, a lawyer could not be called anyway. The suggestion that an initial set of tapes somehow malfunctioned and that others had to be obtained, in the course of which police improprieties occurred has never been ventilated before and I treat it as another “recent invention” by Mr Bianco. The gravamen of his evidence was at p. 208:

“Can I ask you this:  in the record of interview you recorded this question and answer – well, before I get to that, why did you agree to take part in the record of interview?--  Because Detective Frame had said to me that he would arrange for me to be able to go home and visit my family and let them know what had happened.” (209)

64. [64]
    He ended by saying “I was never so anxious and I just wanted to get it over with and go see my family”. I agree with Mr. Copley’s submission that Mr. Bianco in his record of interview appears to give a detailed account implicating himself in unlawful assaults and detainings perpetrated on both complainants (while denying the use of any weapon); he does not attribute any particular unlawful conduct to any other person, apart from identifying those who were present for the home invasion by name. In the record of interview Mr. Bianco presents as saying what he did willingly. He was capable of refining the way he put things in ways that might have been helpful to him, such as changing a disclosed intention to “rough up” the male complainant (p. 9 of the transcript of the record of interview) to intending to scare him with no intent to assault (p. 19). I am grateful to Mr Glynn for his note of 24 September 2003, referring to Swaffield at 171 (paragraph [13]), Collins (1980) 31 ACR 257, 307 and Walland (1996) 1 Qd R 78, 81, as “suggesting that some regard suggesting that some regard can be had to the Record of Interview, at least for the purpose of assessing internal inconsistencies and inconsistency between the external facts (clearly for or against the Crown) for the purpose of assessing whether or not an accused’s will has been overborne by a threat or inducement The record of interview exhibits the “spontaneity” referred to by Coldrey J in Gojanovic (No 1) (2002) 130 A Crim R 167, 174. If there had been any threat or promise of the kind claimed by Mr. Bianco, the Crown has shown that it did not influence his participation in the record of interview to my satisfaction. I disbelieve his evidence to the effect there was some agreement. In my view, any reference to “attempted murder” would have been no more than information Mr Bianco was anxious to have about charges he might face.

65. [65]
    While it is accepted that Mr. Bianco would have been undergoing a certain amount of emotional turmoil in the unusual and difficult circumstances, he is unable to establish involuntariness or the applicability of s 10. Those do not arise on the basis of something “produced from within, such as by fatigue or emotion, except where such condition … has been brought about or aggravated by some other person to the end that a confession shall be made” (Maniseni (1971) NZLR 269, noted in Carter’s Criminal Law of Queensland 1245.15). Mr Copley’s argument that it strains credulity that Mr Bianco would admit to serious offences likely to attract significant imprisonment on conviction so that he could be with his mother for one night is persuasive.

66. [66]
    I am totally unpersuaded that any threat or promise was made, as alleged. The duration of Mr. Bianco’s detention in the watchhouse (and prior to that in the police station) seems to me not unreasonable given the circumstances prevailing on the day, when at least four of a greater number of suspected offenders in a serious home invasion had been picked up by police at no less than three different locations. Conflicting accounts were coming to police as to the involvement of the supposed participants. The finding of a pistol at Mr. Bianco’s place might well have been seen as confirming the complainants’ assertion of use of a gun or guns. The appropriate investigations were complex and, in my opinion, served to make it inappropriate to regard the police here as having improperly kept the defendants waiting in breach of the requirements of the Police Powers and Responsibilities Act 2000, s. 234ff.

67. [67]
    It is difficult to accept that expressed concerns regarding the safety of police officers justify the failure (Mr. Glynn at one point even questioned whether there had truly been a failure) to use field tape recording equipment at Mr. Bianco’s residence. I think there is justification in respect of some of the police evidence presented before the court for Mr. Glynn’s characterisation of police officers cross-examined by him as “half smart”. At times I thought some of the police evidence involved reconstruction of what the witness thought should have happened, if proper procedures had been followed and had no basis in any recollection: it would have been preferable to have answers in terms of knowledge or recollection. On the other hand the defendant’s claims of impropriety were unpersuasive. Notwithstanding the availability of criticisms along those lines, I think the Crown’s evidence is persuasive that Mr. Bianco’s record of interview ought not be excluded under s. 10, nor under the common law principles whereby a confession which is not voluntary is inadmissible.