The Queen v Read[2005] QDC 403

DISTRICT COURT OF QUEENSLAND

INTRODUCTION

1. [1]
   This is an application by Ms Thompson on behalf of the defendant, Lawrence Warren Read, to exclude from evidence four items of alleged confessional evidence.

2. [2]
   The relevant evidence sought to be excluded consists of:

1. (a)
   Electronic record of interview (“EROI”) 28 March 2004 at 8.51 am between the defendant, Detective Senior Constable Timothy Bosgra (“DSC Bosgra”) and Detective Sergeant Russell Jones (“Det Sgt Jones”) (“the first interview”);
2. (b)
   EROI 28 March 2004 at 9.22 am between the defendant, DSC Bosgra and    Det Sgt Jones (“the second interview”);
3. (c)
   EROI 29 March 2004 at 8.00 am between the defendant and DSC Bosgra (“the third interview”); and
4. (d)
   Unrecorded admissions made to DSC Bosgra on 4 May 2004 (“the unrecorded admissions”).

3. [3]
   The prosecutor, Mr Copley, opposed the application and submits that none of the relevant evidence referred to above should be excluded.

4. [4]
   The defendant has been indicted in respect of three charges, namely:

   1. (1)
      Unlawfully entering the vehicle of Kristy Shackell on 23 January 2004 at the Gold Coast with intent to commit an indictable offence while armed with a dangerous instrument and in company with another person;
   2. (2)
      Deprivation of the personal liberty of Kristy Shackell on 23 January 2004 at the Gold Coast; and
   3. (3)
      Stealing a street directory, the property of Kristy Shackell, on            23 January 2004 at the Gold Coast.

FACTS

Alleged Offences

5. [5]
   In summary, the prosecution alleges that the defendant, in company with others, drove up and parked in a white Ford Falcon, behind the complainant, who was in her car at a park at Runaway Bay on the Gold Coast.  A younger man from the defendant’s group came up to the complainant and asked her for directions.  The complainant attempted to assist by presenting the younger man with a Refidex.  The defendant then came to the complainant and requested that she show his group the way, physically, to the highway.  The defendant’s group was seeking directions to Gatton.

6. [6]
   The complainant refused the defendant’s request.  The defendant told her that they had a knife in the car.  That knife was then obtained and given to the younger man, who sat in the passenger seat of the complainant’s car.  The complainant was then told to lead the defendant’s vehicle to the highway.  The younger man remained in the passenger seat with the knife.  The defendant and his group followed in the white Falcon.  When they reached the highway, the younger man got out of the complainant’s car, got into the white Falcon and it left.  The complainant’s Refidex was last seen by her in the possession of the defendant.

7. [7]
   The defendant’s fingerprints were subsequently located on the complainant’s vehicle, and the complainant identified the defendant from a photoboard.

Defendant’s Custodial Status

8. [8]
   At 12.46 am on 28 March 2004, the defendant was arrested by                 Constable Klingsporn in Albion Street, Warwick, for being drunk in a public place^[1].  He was placed in the Warwick watch-house where, Constable Klingsporn states, “I arrested him for outstanding matters to be further questioned by the CIB”^[2] at about 5 or 5.15 am.

9. [9]
   Constable Klingsporn gave evidence that a police computer search revealed that the defendant was a person wanted for a kidnapping on the Gold Coast, and consequently, Constable Klingsporn contacted Det Sgt Jones of the Warwick CIB^[3].

10. [10]
    Constable Klingsporn stated that the defendant had been released at 5.15 am       28 March 2004 on cash bail for the offence of being drunk in a public place, and was then advised “that he was under arrest for the offences reported as kidnapping and other officers would speak with him later”^[4].  The defendant stayed in the watch-house, was not at any stage physically released from police custody, and was subsequently placed back in the cell he had previously occupied.

11. [11]
    The Watch-house Register relevantly records “Released from Drunk Detention 0515 hours 28/3/2004” followed by Constable Klingsporn’s signature and registered number (13121), and the entry immediately below notes “Arrested for kidnapping suspect – CRISP 04/27633 refers”^[5].  Both entries were made by                   Constable Klingsporn^[6].

12. [12]
    A CRISP report, No. 04/55887, which forms part of Exhibit 9 (it appears to have been stapled in the Watch-house Register) relevantly states (in respect of the defendant) “Intoxicated otherwise appears in good health.  0515 hrs 28/3/2004 released from Drunk and arrested for questioning in relation to being listed as a suspect for a kidnapping in the Gold Coast.  CRISP 04/27633 refers.”          Constable Klingsporn, in cross-examination, accepted when referred to the relevant CRISP entry, that it was correct that the defendant had been arrested for questioning^[7].  Constable Klingsporn, in his evidence-in-chief, acknowledged that he was the arresting officer for the offence of kidnapping^[8].

13. [13]
    Constable Klingsporn’s statement dated 25 May 2005, relevantly^[9] states:

“At 5.15 am [28 March 2004] I released Lawrence Read from Drunk Detention (Release Notice A571540 refers).  Shortly after I spoke to Lawrence advising him that he was under arrest for a matter listed as kidnapping that had occurred on the 23^rd of January 2005 and being detained for questioning later in the morning by other Police Officers most likely the CIB.”

14. [14]
    The first interview with the defendant undertaken by DSC Bosgra and Det Sgt Jones, commenced at 8.51 am on 28 March 2004.  Within the first few minutes of the interview^[10], the defendant was twice advised by DSC Bosgra “You’ve been arrested for questioning”^[11].  On the second occasion, DSC Bosgra followed this statement to the defendant with the words, “Do you understand that?” to which he received what appeared to be an affirmative response^[12].

15. [15]
    In cross-examination DSC Bosgra claimed that the defendant “had been arrested for the offence for questioning”^[13], but conceded that in the record of interview he had, in fact, as set out above, used the term “arrested for questioning.”              DSC Bosgra asserted, however, despite conceding that he was not the person who arrested the defendant, that the defendant had been “arrested for the offence of kidnapping to allow questioning and investigation”^[14].

16. [16]
    In cross-examination, Det Sgt Jones also claimed that the defendant had not been “arrested for questioning”^[15] but rather, had been “arrested for that offence at the Gold Coast”^[16].  However, he also had to concede that it was “one of the uniform fellows from Warwick Police Station” who had arrested the defendant^[17].  There is no suggestion in Det Sgt Jones’ evidence that he was present at that initial arrest.

Defendant Arrested for Questioning

17. [17]
    It is, in my view, an inescapable factual conclusion that the defendant was arrested for questioning rather than being arrested for a substantive offence.  This flows from the evidence of Constable Klingsporn, the contents of the Watch-house Register and the attached CRISP report, and was confirmed by DSC Bosgra twice in the opening moments of the first interview.  Any attempt by DSC Bosgra and Det Sgt Jones to assert otherwise amounts, in my view, to an ex poste facto attempt to rewrite history.  I reject completely the claim that the defendant was arrested for a substantive offence.

Warnings to Defendant – first and second inteviews

18. [18]
    The transcript of the first interview^[18] discloses that the defendant, early on in the interview, was told (by DSC Bosgra) “You've got the right to remain silent.  You're not obliged to answer any questions or make any statement”^[19], but the reason for the warning (i.e. that if the defendant did “say something or make a statement, it may later be used in evidence”^[20]) was never explained to the defendant.

19. [19]
    The transcript of the first interview^[21] also discloses that the defendant was advised that he had “the right to telephone or speak to a friend, relative, or legal advisor and let them know that you're here with us” [i.e. investigating police]^[22].           DSC Bosgra further explained to the defendant that he could “make a telephone call and if you want to do that we can wait an amount of time, usually up to a couple of hours to … arrange or attempt to arrange to have someone here if you want someone to sit here during questioning”^[23].  Although the text of the warning is not, in its terms, a reproduction of the actual text of the right to communicate with friend, relative or lawyer^[24], it does, in my view, albeit somewhat clumsily, amount to substantial compliance with the relevant provisions^[25].

20. [20]
    At 9.22 am on 28 March 2004, just six minutes after the conclusion of the first interview, the defendant, DSC Bosgra and Det Sgt Jones commenced the second interview.  According to DSC Bosgra, when he told the defendant after the first interview that he “intended to charge him with the offences associated with the complainant’s version … [the] defendant immediately requested to be heard in a second interview”^[26].  Det Sgt Jones has no recollection of what occurred between the first and second interviews^[27], although he accepted that the second interview adopted conversation with the defendant which occurred when the tapes were off^[28].

21. [21]
    The transcript of the second interview^[29] commenced with the defendant adopting various topics of conversation off tape which occurred in the break between the first and second interviews, put (in brief terms) by DSC Bosgra.  DSC Bosgra then continued with warnings in the following extract from the transcript of the second interview^[30]:

“BOSGRA:  Okay, I want to cover very clearly the rights you have, the right to remain silent, the right to make a telephone call and all these things, that all still exists, okay?

READ:  Mm.

BOSGRA:  Your rights are intact as I read them to you in the beginning, ah, and I also want to cover – are you under any threat, promise or inducement now to answer questions?

READ:  No.

BOSGRA:  Okay.  Is that very clear in your mind because if you now say something different it is entirely of your choosing.  It’s up to you.

READ:  Right.

BOSGRA:  Is that the way it is?

READ:  That’s the way it is, yeah.”

22. [22]
    It is immediately apparent from the above extract of the second interview that there has been no attempt to provide, in full, either the warning in respect of the right to silence^[31] or the right to communicate with a friend, relative or lawyer ^[32].  It follows, therefore, that the failure of  DSC Bosgra and Det Sgt Jones to explain the reason for the warning in respect of the right to silence has infected the second interview, as it did the first interview, a point which was acknowledged by      DSC Bosgra in cross-examination^[33].  In my view, in addition, the right to communicate with a friend, relative or lawyer should have been re-communicated in full^[34].

23. [23]
    It is also clear that neither prior to, nor during the second interview, did the defendant’s status, as a person arrested for questioning, change.  The defendant was told he was going to be charged in between the first and second interviews^[35] and was, in fact, charged after the preparation of bench charge sheets which were prepared some time subsequent to the conclusion of the second interview^[36].  It is not clear, either from DSC Bosgra’s statement^[37] or his cross-examination^[38], or from any other evidence placed before the Court on the voir dire, just when the charging process took place, although it appears to have occurred some time on  28 March 2004, after the conclusion of the second interview at 9.42 am.

Warnings to Defendant – third interview

24. [24]
    On 29 March 2005, after contact from watch-house staff, DSC Bosgra attended on the defendant in the watch-house, without any corroborating officer, but with a C90 compact cassette player recording the conversation^[39].  This conversation is the third interview^[40], and the defendant had been charged the day before.

25. [25]
    The defendant provided a detailed version in respect of the events giving rise to the charges^[41] before the following exchange took place^[42]:

“BOSGRA:  Right, I’ll just remind you that you don’t have to answer my questions.  You don’t have to say anything further.

READ:  Mm.

BOSGRA:  Okay, you've got the same right to telephone a friend, relative, legal advisor that you had yesterday and I just want to make you aware of that before I do ask you any questions about it.  What you do say will be recorded by the tape here.”

26. [26]
    DSC Bosgra, in re-examination, stated that there was no reason why the third interview could not have been done on videotape (and, presumably, simultaneous triple-deck audiotape), in the police station, other than that by the time of the third interview, DSC Bosgra was “fairly tired of [the defendant] by [that] point”^[43].

27. [27]
    The third interview mirrors the first and second interviews in its failure to provide comprehensive warnings in accordance with PRC s 37 (right to silence) and    PRC s 34 (right to communicate with friend, relative or lawyer).  In particular, DSC Bosgra again failed to advise the defendant of the potential evidentiary use of anything said by the defendant during the interview.

Warnings to Defendant – the unrecorded admissions

28. [28]
    DSC Bosgra gave evidence that on 4 May 2004 he was contacted by the defendant by phone.  The defendant said he was coming in to the Warwick Police Station.    DSC Bosgra had a brief conversation with the defendant at the counter of the Warwick Police Station^[44] which was not recorded, although brief notes were made in DSC Bosgra’s notebook^[45].  The conversation relates to what is asserted by the prosecution to be the complainant’s Refidex^[46].

29. [29]
    DSC Bosgra’s recollection of the conversation on 4 May 2004 (assisted by refreshing his memory from his notebook) was that the defendant “said something along the lines ‘Now you've got the Refidex back it’s all right now, isn’t it, that the girl will be happy or it will be all over, won’t it?’”^[47].  By reference directly to the notebook, DSC Bosgra read out his actual notes which indicate the defendant said “The book is the book from the Gold Coast.  The man who he refers to as old mate knows it, but was trying to protect me”^[48].  DSC Bosgra gave evidence that the context of this conversation was that the Refidex^[49] had been handed over by a Mrs Joy McKay, and the defendant’s reference to “old mate” in the conversation on 4 May 2004 was understood by DSC Bosgra to be a reference to Mrs McKay’s husband, John McKay^[50].

THE LAW

Unlawful Custody

30. [30]
    Ms Thompson submits that, at the time of the first and second interviews, the defendant was not in lawful custody.

31. [31]
    The starting point is Police Powers and Responsibilities Act 2000 (PPRA 2000)    s 198(2), which confers powers on police to arrest a person reasonably suspected of committing an indictable offence, for questioning under PPRA chapter 7^[51].

32. [32]
    PPRA s 229 provides:

“This part^[52] applies only to a person who-

1. (a)
   is lawfully arrested for an indictable offence;
2. (b)
   is in lawful custody for an offence that has not been decided; or
3. (c)
   is in lawful custody under a sentence of imprisonment or, for a child, a detention order.”

33. [33]
    Ms Thompson submits that neither PPRA 2000 s 229 (a) or (c) apply.  I have found, as a question of fact, that the defendant had, on 28 March 2004, been ‘arrested for questioning’ and had not been arrested for any substantive offence, indictable or otherwise.  It is also clear that, as of 5.15 am, 28 March 2004, the defendant had been released from Drunk Detention (see statement of Constable Klingsporn^[53]).  I therefore accept Ms Thompson’s submission that neither s 229(a) or (c) apply.

34. [34]
    The question that remains is whether the defendant “is in lawful custody for an offence that has not been decided”^[54].

35. [35]
    Mr Copley submits that PPRA 2000 s 229(b) covers not only persons on remand, but also persons arrested for questioning, pursuant to PPRA 2000 s 198(2).  However, the decision of Hoath DCJ in Clarke v Bristow^[55] in respect of s 35(2) of the Police Powers and Responsibilities Act 1997 (PPRA 1997) (which is relevantly an analogue provision to PPRA 2000 s 198(2)), held that PPRA 1997    s 35(2) does not authorise the arrest and detention of a person solely for questioning^[56].  Wall DCJ, in R v JT [2001] QDC 36 followed the decision in Clarke v Bristow and adopted the reasoning of Hoath DCJ in reaching a decision in respect of the PPRA 2000 provisions relating to arrest for questioning, custody and police interviews.  In particular, Wall DCJ held that PPRA 2000 s 198(2) did not allow “police to simply arrest or detain a person for questioning”^[57].

36. [36]
    Wall DCJ held, further, in R v JT that “the powers set out in [PPRA 2000]           s 234(1) can only be exercised in the case of persons to whom [PPRA 2000] s 229 has application”^[58].

37. [37]
    Applying that analysis to the situation before me, I find (relevantly):

1. (a)
   that the defendant was not in lawful custody as of 5.15 am 28 March 2004;
2. (b)
   the purported “arrest for questioning” was, in any event, clearly not for questioning by Constable Klingsporn, and was no more than a device to restrain the defendant physically (and in my view, unlawfully) in the Warwick watch-house for some uncertain period of time;
3. (c)
   the defendant was not, therefore, a person “in lawful custody for an offence that has not been decided” (PPRA 2000 s 229(b)).  I adopt Wall DCJ’s interpretation in R v JT that the words “offence that has not been decided” in PPRA 2000 s 229(b) mean “an offence which the person has been charged with and which has not been determined by a Court”^[59];
4. (d)
   the provisions of PPRA 2000 s 234 do not apply because the defendant was not in lawful custody pursuant to PPRA 2000 s 229^[60];
5. (e)
   the defendant was unlawfully detained in custody throughout the duration of the first and second interviews, until he was charged (which appears to have occurred at some unspecified time after the conclusion of the second interview)^[61].

Intoxication

38. [38]
    It was submitted by Ms Thompson (but not pressed) that questioning of the defendant should have been delayed because of his intoxication (PPRA 2000        s 254).  I watched and listened to both the first and second interviews and could not see or hear any indicia of intoxication at the relevant times.

Warnings to the Defendants

39. [39]
    It is clear, in my view, that in both the first and second interviews there was a failure to caution the defendant in terms that were in substantial compliance with the provisions of PRC s 37, which is mandated by the provisions of PPRA 2000    s 258.  Critically, in both interviews, DSC Bosgra failed to advise the defendant that “if you do say something or make a statement it may later be used as evidence”^[62].  I accept Ms Thompson’s submission that the failure to advise the defendant of the use to which any statement could be put, means that the choice whether to speak or not is not informed.  In addition, I find there was a failure to substantially comply with the warning required by PRC s 34 in the second interview.

40. [40]
    DSC Bosgra had, at the time of first and second interviews, been a police officer since 1996, in plain clothes since 1999 and a detective since 2002.  He was aware of his obligations under the PPRA 2000 and had received significant training^[63].  He did not utilise any aide-mémoire to administer the cautions and relied on his own memory^[64], even though he was clearly aware of the significance of the warnings^[65].  His failure to follow the simple requirements of PPRA 2000 s 258 to ensure substantial compliance with the required warnings in PRC ss 34 and 37, in the context of a police station video/audio record of interview is, in my view, utterly inexcusable.  In short, DSC Bosgra failed to accept the important responsibility that the PPRA 2000 required him to accept, in return for the significant powers that the PPRA 2000 bestowed upon him^[66].  DSC Bosgra’s failings were not corrected at any time by his corroborator and senior officer,     Det Sgt Jones.

41. [41]
    The third interview, conducted by DSC Bosgra alone, saw the defendant making substantial admissions before any caution was administered.  Once again, when the caution under PRC s 37 was administered, there was a failure by DSC Bosgra to inform the defendant of the use to which any statement made could be put, i.e. as evidence.  The required warning under PRC s 34 was also incomplete and inadequate.  It was also of no assistance for DSC Bosgra to have referred to equally inadequate warnings administered the previous day.  Again, there is, in my view, no acceptable explanation for DSC Bosgra’s failure to substantially comply with PRC ss 34 and 37 at the commencement of the interview, at a time when DSC Bosgra was clearly sufficiently cautious enough to have commenced recording and (presumably) was hoping to capture relevant and admissible evidence.

Discretionary Exclusion

42. [42]
    It is, in light of the conclusions I have reached above, a situation where:

1. (a)
   the first and second interviews were conducted while the defendant was unlawfully in police custody;
2. (b)
   there was a significant delay in commencing the first interview, despite the defendant being arrested for questioning, a delay which was not justified pursuant to PPRA 2000 s 235;
3. (c)
   there was a clear failure to ensure substantial compliance with PRC s 37 in respect of the first, second and third interviews when significant admissions were obtained, either before any cautions were administered or, alternatively, after the administration of only partial cautions;
4. (d)
   there was a substantial failure to comply with PRC s 34 in the second and third interviews.

43. [43]
    In the light of these findings, I need to decide whether to exclude the alleged confessional statements of the defendant.  Pursuant to Foster v R^[67], such confessional statements can be excluded on the basis that:

    1. (a)
       the reception of the statements would be unfair to the defendant^[68]; and/or
    2. (b)
       the statements, if unlawfully obtained, should be excluded on public policy grounds^[69].

44. [44]
    The High Court observed in Foster v R^[70] that:

“The focus of the two discretions is, however, different.  In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on ‘large matters of public policy’, and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case.”

45. [45]
    I am required to consider the first discretion (unfairness) from the position of the defendant.  The defendant was picked up by police for being drunk in a public place, nominally released at 5.15 am on 28 March 2004 but in fact, as I have found, pursuant to a purported arrest for questioning, was unlawfully detained from that point, until he was charged at some uncertain and unspecified time after 9.42am on 28 March 2004.  The defendant was questioned after a significant delay (3½ hours from the purported arrest for questioning), was provided with significantly insubstantial cautions in respect of his right to silence, and then subsequently charged, and his right to communicate with a friend, relative or lawyer, after the second interview.  All of this took place in the context of powerful forensic evidence (fingerprints and photoboard identification) in the possession of investigating police which placed the defendant at the scene of the crime^[71].

46. [46]
    In my view, it would be unfair to the accused to use the statements in the first and second interviews against him, in the light of the matters set out above.  In respect of the third interview, there was still a failure to substantially comply with the warning in respect of the right to silence and a delay in administering the caution until after the defendant made significant admissions.  In addition, the third interview flowed on from, and was (in my view) inextricably bound up with the first and second interviews.  In those circumstances it would still, in my opinion, be unfair to use the statements in the third interview against the defendant.

47. [47]
    The second discretion that I have to consider is public policy, i.e. considering the nature, seriousness and effect of the police misconduct, and balancing that against the seriousness of the offence and the public interest in bringing to conviction those who commit criminal offences.  As the High Court stated in R v Ireland^[72], “Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.  Hence the judicial discretion”^[73].

48. [48]
    In the case before me, investigating police had the defendant within their physical control (drunk detention in the watch-house), were in possession of powerful forensic evidence (fingerprints at the scene of the crime) and had access to a police station appropriately equipped for their role (e.g. video/audio recording equipment, computers, fax machines, etc).  With more than 30 years’ experience between them, it was simply a matter of investigating police (DSC Bosgra and      Det Sgt Jones) complying with their legal obligations under PPRA 2000.  There was no impediment to them so doing.  The flaws in this police investigation have been entirely the doing of DSC Bosgra and Det Sgt Jones themselves, and those flaws were entirely capable of being avoided.  As I put to Mr Copley in submissions, “the practical cost of compliance [by investigating police] … [was] a marginal cost of zero”^[74].  Mr Copley, to his credit, while conceding flaws in the police investigation, strenuously maintained his position that the failures of investigating police, as set out above, should not result in the exclusion of the impugned evidence.

49. [49]
    Unfortunately, I cannot accept the submission by Mr Copley.  I consider that there is a significant public interest in requiring investigating police to comply with their legislative obligations and my view is reinforced by PPRA 2000 s 4(e) which provides:

“The purposes of this Act are as follows-

…

(e) to ensure fairness to, and protect the rights of, persons against whom police

     officers exercise powers under this Act.”

In my view, unlawful and unfair practices by police must have appropriate consequences.  I would, therefore, on public policy grounds, exclude from evidence the first, second and third interviews.

50. [50]
    I note for the record that, even if I am wrong on the issue of the unlawfulness of the detention of the defendant in respect of the first and second interviews, I would still exclude the first, second and third interviews from evidence, both on unfairness and public policy grounds. 

51. [51]
    The remaining matter is the application to exclude the unrecorded admissions made to DSC Bosgra on 4 May 2004.  The precise detail of these purported “admissions” is confused and uncertain, the conversation was (partially) noted in a police notebook, but not adopted by the defendant, the conversation was not recorded, and no warnings of any kind were administered.  In those circumstances it would be unfair to the defendant, in my opinion, to admit such evidence and accordingly, it is excluded.

CONCLUSION

52. [52]
    In conclusion, I note that prior to the charging of the defendant, police had a strong case.  The strength of that case, despite my rulings in respect of the various admissions, remains.  None of the time, effort and delay arising out of the voir dire in this matter would have been necessary if investigating police had complied with their basic statutory obligations.  I trust that a careful perusal of these reasons by those in the Queensland Police Service responsible for such matters will result in a clear message that full compliance with statutory obligations underpins successful policing in the 21^st century.