R v Poynter[2006] QDC 19

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  Richard James Poynter is charged that on the 26th day of November 2004 at Palm Island he and others, being riotously assembled together, unlawfully began to destroy a police station, being the Palm Island Police Station.

Objection is taken to the admissibility of a police interview with Poynter which took place at the Palm Island State School on Saturday the 27th of November 2004.  The school was then being used as a temporary police station.  The defence submits that the interview was not voluntary and in the alternative it should be excluded in the exercise of the discretion.

Poynter was arrested at the Wotton house in Gribble Street, Palm Island, at about 6.15 p.m. on the 27th of November.  Twenty-four police officers attended the house.  They included 13 members of the Special Emergency Response Team (SERT), members of the Public Safety Response Team (PSRT), and Detective Sergeant Darren Robinson, the officer in charge of the Palm Island CIB.  The SERT officers were armed with automatic machine guns and wore black clothing, gloves and balaclavas with goggles.  They made a forced entry to the house through an upstairs locked door.  See the photograph, Exhibit 6.  Sergeant Robinson said the door was unlocked and opened by him, but I think he is mistaken about that.  From the bathroom Sergeant Robinson could hear the shower running.  The bathroom door was locked.  Entry to the room was forced by SERT officers who, with Sergeant Robinson, entered the room.  The shower curtain may then have been ripped off its rail.  Robinson told Poynter he was under arrest "for the riots yesterday".

SERT officers effected the arrest.  Guns were probably pointed at him and he was told in no uncertain and in forceful terms to put his hands up.  He was handcuffed behind his back.  At some stage he was allowed to put a pair of shorts on.

The SERT officers then took him to the school and he was handed into the custody of Detective Senior Constable Peter Betts at about 6.25 p.m.  Betts understood he had been arrested for questioning about arson and riot.  He remained handcuffed.

The Crown concedes that the circumstances of his arrest would have been an alarming and terrifying experience for him and that he clearly would, to some extent, have felt overborne by that experience.  That concession was properly made.

Commencing at 6.37 p.m. Senior Constable Betts, with Detective Senior Constable Trapnell, commenced to interview Poynter.  The interview was recorded on an audio tape, which I have listened to.

During the interview Poynter spoke quite well and in parts quite clearly, albeit fairly quietly.  He gave no impression of being overborne.  He appeared to understand questions about the offences and make sensible, responsive answers.  He did not, on occasions, agree with suggestions put to him.

Poynter was born on the 12th of April 1972.  He lives on Palm Island.  He completed grade 10 at school, but I doubt that he passed it.  He has a criminal history, Exhibit 4, and had previously been interviewed by police about some of those offences.

The following passages are taken from pages 1 to 4 of the interview:

"BETTS: Richard, myself and Detective Trapnell and other officers obviously are conducting investigations into an incident that occurred yesterday on Palm Island involving a riot outside the police station.  Subsequent to that riot um the Palm Island Police Station was burnt to the ground as was subsequently the Sergeant In Charge's residence which was across the road ah during the course of that riot myself and other officers were also assaulted by having rocks thrown at us by a number of persons from information we've received, interviews we've conducted today with other people, I believe that you are in part responsible for some of these incidences and I intend to ask you some questions about that and get your version of events.  Do you understand what it is we're talking about today, Richard?

POYNTER: Yes.

BETTS: Now Richard, before we speak any further I must advise you of certain legal safeguards and requirements.  First of all and most importantly is your right to silence.  I'll be asking you questions and asking you to provide your version and statement of events.  You do not have to say anything or make any statement unless you wish to do so.  Anything you do say will be electronically recorded on a tape deck that's on the table before us and may be used in future court evidence.  Do you understand that warning?

POYNTER: Yes.

BETTS: What does that mean to you, what I've just said?

POYNTER: Say the truth.

BETTS: Okay now if I ask you a question and you don't want to answer it what do you do?

POYNTER: Keep silence.

BETTS: Okay now Richard, I'll ask you a couple of background questions before I go any further.  What grade did you do to at um High School?

POYNTER: Year 10.

BETTS:   Year 10.  Do you read and write the English language?

POYNTER: Yes.

BETTS: At this stage do you have any difficulty understanding either myself or Detective Trapnell?

POYNTER: No.

BETTS: Okay whilst we are conducting the interview, we've asked any questions that you don't understand or use any words that you don't understand, I want you to bring that to my attention and I will rephrase any questions or anything I've said so that you can understand it okay?

POYNTER: Yes.

BETTS: So if I use a sentence with a great big long word that you don't understand, tell me and I'll

POYNTER: Break it down.

BETTS: Break it down and likewise you'll probably use some words that I don't understand in which case, I'm hearing words over here all the time I don't understand, I'll be doing the same for you, if you say something that I don't understand.  Are we clear on that?

POYNTER: Yes.

BETTS: Okay now I just have to advise you of your rights and representation.  Before I ask you any further questions, you have the right to have a friend, a relative or a legal practitioner, a member of the community justice group present.  Do you want me to advise a friend, a relative or a member of the community justice group?

POYNTER: Yes if you want to, yeah.

BETTS: Who would like present?

POYNTER: I don't know they, I don't know any justice group around or what.

BETTS: Mate I can get um is it Jacob.

POYNTER: Jacob Baira.

BETTS: Yeah.

POYNTER: No, no, no.

BETTS:   Okay who would you like from Community Justice Group.

POYNTER: Um Penna Geyer, Penna Geyer.

BETTS: Okay where do I contact her?

POYNTER: She's on Park Road, no Beach Road.

BETTS: Beach Road.  Has she got the phone on?

POYNTER: No no Beach road.

BETTS: Yeah but has she got the phone on?

POYNTER: Yeah she's got the phone on but I can't

BETTS: What's her first name?

POYNTER: Penna.

BETTS P I N A.

POYNTER P E N N A.

BETTS: P E N N A GEYER.  Okay would the Sergeant here, Sergeant Rob Robinson know know how to contact her?

POYNTER: You just have to drive around.

BETTS: So she's on Beach Road.

POYNTER: Beach road yeah, Beach road you can't miss the her.  Fence around the yard like UI outside.

BETTS: Alright well Richard, the time now is 1843.  I'm going to pause the tape whilst we go an get a member of the community justice group for you.

[TAPE PAUSED]

BETTS: Alright, the time is now 1851 pm, I've just reactivated the tape.  Richard I've made contact with Detective Sergeant ROBINSON from the Palm Island CIB, he'll be going around to Penna GEYER's place to pick her up and bring her here.  He'll be about 20 odd minutes.  Ah your as we were talking you also indicated that if she was unavailable you would like Agnes WOTTON um present whilst you're interviewed.  I'm just going to revamp what I've told you.  Agnes WOTTON is not a person that we will allow to participate in this interview due to her involvement in yesterday's events.  Now 1852, I'll turn the tape back off.

[TAPE PAUSED]

BETTS: Alright the time is now 1921, I'm recommencing the interview with Richard BUTLER, Ah Richard POYNTER sorry, at the um Palm Island School which is our temporary Police Station.  I'll just get, another person has now joined the interview room and I'll just get that person to state their full name please.

GEYER: My name is Penna GEYER.

BETTS: Okay and Penna, your role here is you're a member of

GEYER: I'm the chair of the Palm Island Community Justice Group.

BETTS: Now previously whilst I was speaking to Richard, he has asked for you to be present whilst the interview is being conducted.  Richard do you still ah you still wish for Penna to be present whilst I interview you?

POYNTER: Yes.

BETTS: Ok Richard what I'm going to do is I'm going to give you the opportunity to tell me in full, your version of what happened yesterday I won't ask any questions I'll let you tell me exactly what's happened.  Ah obviously when you've finished telling me, I'm going to ask you some questions about what you've told me.  There'll be points that I want to clarify.  Just tell me exactly what happened yesterday in your own words."

Mrs Geia's name is actually Peena.

When Poynter was asked by Senior Constable Betts what the caution meant to him and responded by saying "Say the truth", Senior Constable Betts said that he did not at that stage appear to understand the caution.

During the break between 1843 and 1851 Senior Constable Betts asked a police officer to wake Sergeant Robinson and ask him to go and find Peena Geia.  During that break Poynter said that if he could not get Peena Geia he was to get Agnes Wotton.  During the break Senior Constables Betts and Trapnell were waiting for Mrs Geia to arrive.  When she arrived Senior Constable Betts spoke briefly with her and advised her of what had happened.  He told her that Poynter had been arrested and that they were going to interview him.  Mrs Geia then went into the room and spoke with Poynter in the absence of the police.  She spoke with him for about five minutes.  The interview resumed and there were then questions and answers about the matters being investigated.  Towards the end of the interview the following was said:

"BETTS: have you got any further questions you want to ask me at this stage?

POYNTER: that's my statement and my version.

BETTS: any questions you want to ask?

POYNTER: that's my account

BETTS: yep, I appreciate that that's your account and I'll take it into consideration, so nothing you ask me at this stage?

POYNTER: UI

BETTS: sorry?

POYNTER: getting uncomfortable"

"BETTS: okay, I've got no further questions, I've already asked you ah in relation to threats an promises, Penna have you got any questions at this stage or any comment on the way the interview's been conducted?

GEYER: no, no questions at all"

Poynter's statement about "getting uncomfortable" is a reference to the handcuffs.  He remained handcuffed during the interview.

Senior Constable Betts said that Poynter was "just quiet" when presented to him by the SERT officers and his demeanour did not change during the interview.  He said he is "just a quiet person".

Senior Constable Betts said that notwithstanding that he had told Poynter he had the right to have a legal practitioner present during the interview, he did not ask him if he wanted him to contact a lawyer because he was told none were present on Palm Island.  There was, he said, "no point in offering one".

In the context of the caution, Senior Constable Betts agreed that Aboriginal people "can be very acquiescent and just agree to things".  I am satisfied, judged by reference to some of his responses during the interview, that this was not the case with Poynter, at least when it came to the questions about the offences being investigated.

Senior Constable Betts also gave the following evidence:

"At the time we were operating under some difficulties with phone lines.  We were having a lot of communication difficulties where we were."

"Well, you didn't allow him or give him any sort of opportunity to telephone a lawyer because you say you're operating under difficulties over there?-- That's correct.

I take it there was at least a phone working?-- Yeah, there was.

But it was - what - tied up with other things?-- We had a hundred and fifty police there at the time.  We had one phone line.  It was just impossible to get - get communications.

Right. So, so far as you were concerned that wasn't an option?-- No.

And consequently, of course, you didn't attempt to phone one yourself either?-- No."

"Now, there was no urgency in interviewing him there and then, was there?-- Well, he'd been arrested for questioning.

Well, as you believed it.  But there was - there was no urgency, was there?-- Yeah.  He'd - he'd - well, he'd been arrested in relation with a serious violent offence and I intended to interview him in relation to that and if responsible, have him arrested and removed from the island.  At that point we were removing any - any violent offenders on that island.

Mmm.  I mean, obviously there were the proper facilities available back in Townsville?-- Yes.

There was no urgency in - in interviewing him that night.  That could have waited until he got to the mainland, correct?-- Well, that would be - be logistically difficult for a number of reasons.

Well, were you aware that any number of people throughout the course of the day that had been apprehended had been taken back to Townsville-----?-- Yes.

-----and interviewed over there?-- Yes.

Why was Mr Poynter in any different position from them?-- By the time he had been arrested there were no more flights out of that island that night.

Well, you - eventually went back by boat?-- That's correct.

So, you're saying that because you understood he had been arrested for questioning, you thought it was imperative that that be done straight away?-- Yes."

"We had nothing policewise to work with at all over there in relation to the stationery, computer access or any relevant paperwork.

HIS HONOUR:  So, you were working in-----?-- Chaos, your Honour.

-----fairly basic, trying conditions?-- We were using the computers from the school and trying to get emailed over to us our forms that we needed.  And that wasn't working very well either."

Sergeant Robinson said:

"Can you give me any idea of how many phones were operating as of that evening?  Obviously there was one at least in the school.  Was there more than one in the school?-- I know there was one in the school.  I know only CDMA works on the island.

Right.  Did you have one - did you have a CDMA mobile phone?-- Prior to that day - the-----

Well, did you have one on you that evening?-- No.  No, no I did not.  Who else - I'm not sure which police officers had CDMAs.  Gary Campbell may have had one.

Yes.  I'll suggest he certainly did?-- Yeah, as coordinating the staff.  And I don't know who else actually - I assume a couple of the inspectors that were present would have had CDMA phones."

As to the role of Mrs Geia, Senior Constable Betts said:

"I take it from the very limited conversation that you say you had with Pina Geia, you did not inform her at all of what her role was in the interview?-- I was of the belief that Pina had participated in a number of interviews before on the island and was well aware of her role.

All right.  So, you - you just assumed that she was well aware of what her function was-----?-- Yes.

-----so you didn't - you didn't feel the need to inform her of that?-- No.  I was of the belief that she had participated in this role frequently in the past."

Mrs Geia gave the following evidence, which I accept, having first said that she was the chair of the Palm Island Community Justice Group from 1993 until late 2004:

"Do you know the person before the Court, Richard Poynter?-- Yes.

You were contacted by police-----?-- Yes.

-----the day after the riots occurred last - in November last year?-- Yes."

" What information did the police tell you when they contacted you?-- They asked if I would go and help assist with sitting in on an interview and by request the young gentleman asked that I be there.

All right.  Were you told any information about the topic police wanted to question Mr Poynter about?-- All they said was they wanted me to go and sit with regards to the riot, yeah.

Okay.  Had you been involved in many interviews before this one with Mr Poynter?-- Prior to this you're referring to?

Yes?-- Well, this was the first one with Mr Poynter.

All right?-- But I'd been involved in many others.

Over the years?-- Yes.

All right.  To take you back to the Palm Island Justice Group, what was your role as the chair of the Palm Island Justice Group?-- My role was to help assist the police and help assist our people whenever - you know, troubles came up and they needed assistance themselves by all means and - and assist where help was needed all around in the community.

All right.  Were you the chair of the Palm Island Justice Group at the time this interview with Richard Poynter took place?-- Up until then, yes, I was.

All right.  What happened once you arrived at the Palm Island School, where the interview took place?-- I went inside and waited and - and Mr Poynter was there.

He was in one of the classrooms?-- Yes.

A music room, I think?-- Yes, it was.

When you arrived were police with Mr Poynter in the room?-- There was one sitting there.

All right.  And no doubt a police officer took you to that room?-- Yes.

Were you given any further information about the interview or your role on the way to the classroom?-- On - I've - just to know that I - I'm there to assist.

Okay.  And what did you understand your role to be at that time?-- My understanding is that I'm to sit there and of course as you - as always, I would inform our people - you know, their rights.

What rights did you inform-----?-- That-----

-----Mr-----?-- -----you know, if they don’t wish to say anything they don't have to, they could stop and not say anything.  They could call for legal rep or would he be happy with me sitting there.

Okay.  Did you tell those things to Mr Poynter?-- Yes.

When did you do that?-- That was when we were sitting ourself that I spoke."

"How long did you get to speak with Mr Poynter alone, without the police present?-- Was just a - a couple of minutes.

How did he appear to you when you spoke to him?  What was his mood like?-- He was normal.

Okay.  Do you recall if he was handcuffed?-- No, he wasn't.

Did he speak to you at all?-- No, not much.

Did he say anything?-- No.

Who called the police back into the room?  How did that happen?-- They came back in themselves.

All right.  Did you speak to Mr Poynter throughout the interview at all while the police were questioning him?-- Only if he needed assistance in understanding, but he was - you know, quite eligible of answering questions.

All right.  Do you recall what happened at the end of the interview once it finished?-- They just said that they didn't need me anymore and that Mr Poynter would be charged.

Okay.  Had you known Mr Poynter before this interview?-- Yes.

How long had you known him for?-- I've known him since he was a little boy.  We're related. 

And what's the nature of the relationship?-- We're relatives through his dad."

"Now you had been the chair of the Community Justice Group from 1993 until 2004?-- Mmm-hmm.

You said part of your role is to sit with people when the police need someone to sit with them.  I take it you mean by that, that you go down and sit with the person when the police interview them?-- Yes.

What else did you do as chair of the Community Justice Group?-- Dealt with many issues in the community, domestic violence.

Mmm-hmm?-- Many things, dealing with children.

Okay.  What - what about the Court process?-- I've sat in Court with, yeah, Magistrate Glasgow.

Okay.  You used to do that quite regularly, did you?-- Yes.

That is, you sit up on the bench with the Magistrate?-- Yes.

And you have some input into the Court process?-- Yes.

You make suggestions as to what an appropriate punishment might be?-- Yes.

That would have been well known within the community?-- Yes.

And you would expect that Richard Poynter would have known that?-- Yes.

Your position then within the community, would be a very much a respected position, wouldn't it?-- Yes.

And you would be seen to be somebody in some sort of position of authority?-- Yes.

Now you arrived down to do the interview with Richard.  Do I understand from what you were saying that you understood that an interview was going to take place?-- Yes.

And basically the police needed you to sit there on the - in the interview?-- Yes."

"Now - so you go in and have a quick talk to Richard?-- Not straight off.

All right.  Well you spoke to the police first.  They - they didn't give you any directions as to what you should do, you'd done it a hundred times before?-- Mmm-hmm.

All right.  I - I - you say that, you know, what you normally do is that you inform them of their rights, that they can stop if they want to, that they can call for legal representation if they want to.  Were you aware of the fact that there was no legal representation on the island that day?-- No.

So you never knew of that fact?-- No.

Were you aware of any - or was any - it ever suggested to you that there was any problems with phones, the ability for Richard to use a phone?-- Well, as - when I speak to them, they have the rights.  They know that they have the rights to ask to use a phone if need be."

"HIS HONOUR:  So when you told Poynter of his rights, what did you say to him?-- Just said that, "You know that if you don't want to say anything", you know, "you" - "you have the right not to."  And being the person like he is, he's very quiet-----

MR McGUIRE:  Mmm?-- Just wanted to just get on with things.

All right.  Well I think you said that he said nothing to you.  So obviously then, you didn't ask him to repeat back what you were telling him.  He just - just sat there and said nothing?-- Well he just said he just wanted to get things over with, that's all.  Get things - just talk.

Did he say that to you?  Because you said a moment ago that he said nothing?-- Well nothing before.  But in the way that like, he - he's so quiet in his way, all he said was he just wanted to get things over with and talk."

"Now, what you knew was that he was going to speak to the police about the riot?-- Beg your pardon?

What you knew is that he was going to speak to the police about the riot.

HIS HONOUR:  Well, what you knew from what?

MR McGUIRE:  From what the police had told you, is that they were going to speak to him about the riot.  Is that right?-- Well, that was my understanding."

"HIS HONOUR:  From what the police told you?-- Well, anyone would know and understand it would be with regards to the riot and that - that was my understanding when I went there.

MR McGUIRE:  You've told us what you said to Richard.  Is that the extent of what you can remember telling him, that is, that he could stop if he wanted to and he had the - the right to call legal representation.  Is that the extent of what you remember-----

HIS HONOUR:  And if he didn't want to say anything he had the right not to.

MR McGUIRE:  Yes?-- Yes.  That's all I could remember, yeah.

So, I take it you never told him anything about the seriousness of the position that he was in?-- I can't recall right back to there.  I may have.  I can't recall, to be honest.

All right.  That he could be in a lot of trouble, that is, that he understood the consequences of speaking to the police about the riot.  You never spoke to him about that?-- I can't recall."

"It may well be that you didn't?-- Well, I may have, but like I said I can't recall.  It's, you know, like, being there, I just remember what I said to him about, you know, him - need - if he needed someone but he was quite happy for me to sit there with him.  That's all I could-----

Would you agree with this proposition that generally you view your role in the community as someone who obviously tries to bring about a better way of life for the people?-- Yes.

And that people who have done wrong - or make reparation for that, that - that is, that they should own up to what they've done?-- Yes.

Is that right?-- Yes.

And you often exhort people to tell the truth?-- Yes.

Right.  To get things off their chest?-- That's right.

The shaming process, if I can use that - that's an important part of-----?-- Yes, it is.

-----of the punishment system, isn't it?-- Mmm.

Might you have then exhorted Richard to tell the - or told Richard to tell the truth?-- No.  Like I said, I may have said that and I - I'm pretty sure I did but everyone knows, you know, that when they come in here it's up to them, it rests entirely upon them to be honest about things."

In my view it is likely that when Poynter said to Mrs Geia that he "just wanted to get things over with and talk" to the police he was still labouring from the effects on him of the circumstances of his arrest.  Mr Greggery properly conceded that given the circumstances of his arrest there was a higher obligation on the interviewing police to ensure that those circumstances were not continuing to act on Poynter's mind during the interview.  He also properly conceded that this was an added reason why sections 249 and 251 of the Police Powers and Responsibilities Act and section 37(4) and (5) of the Responsibilities Code (schedule 10 of the Police Powers and Responsibilities Act) should have been complied with.  I will deal with those provisions shortly.

I think that Poynter would have perceived Mrs Geia to have been a person in authority for the purposes of section 10 of the Criminal Law Amendment Act 1894, notwithstanding that they were related, but I am satisfied that her exhortation to him to tell the truth was not a promise or threat such as would render his confession inadmissible.  That statement by her was made at the same time as she told him that if he did not want to say anything he had the right not to.  Mr Greggery did though properly concede that coming from someone in the position of Mrs Geia such an exhortation would tend against Poynter exercising his right to silence, given also the circumstances of his arrest.  In addition, such a statement could give the interviewee the impression that he should take part in the interview.

"Voluntary" means made in the exercise of a free choice to speak or be silent.  The authorities referred to by Mr McGuire indicate that the choice of the interviewee must be made completely free from pressure or fear.  If the person's will has been overborne by pressure it does not matter that the police have not consciously sought to overbear the will.  Cases can be envisaged in which the removal of a free choice may, in a practical sense, clearly derive from the very pressures stemming from the situation in which a person may have been placed by the actions of the police, including police other than those conducting the interview.  The present falls within this category, having regard to the circumstances of Poynter's arrest and to his continued handcuffing during the interview.  The questioning of a suspect who is under arrest and in custody tends naturally to the conclusion that he is not acting in the exercise of free choice in answering questions.  In such circumstances a caution is virtually an indispensable condition of the admissibility of the answers.  The duty of police officers is to be scrupulously careful and fair, more so when interviewing persons of special need.

Statutory Provisions

Operational Procedures Manual, Queensland Police Service

As an Aboriginal Poynter was to be considered a person with a special need because of cultural and sociological conditions (section 6.3.6).  He was to be considered as a person with a reduced capacity to look after or manage his own interests (section 6.3.1) because he was likely to be not fully aware of the consequences which may result from questioning and incapable of understanding his rights at law (section 6.3.2).

In interviewing Poynter, Senior Constable Betts was required to "take whatever action is necessary to compensate for that special need or to comply with the relevant legislative requirements" (section 6.3.3).

Poynter was being interviewed about serious offences which could have serious consequences for him.  In these circumstances section 6.3.2(iv) provides:  "An interview that may substantially affect the rights or liberty of a person should be subject to greater efforts to address the person's special need than an interview that is likely to have only a minor impact."

In making an evaluation as to the interviewee's capacity to look after or manage his own interests, the interviewing officer is required to consider whether the person had been subject to a life event that may impact on the person's capacity to look after or manage his own interests (section 6.3.2).  The circumstances of Poynter's arrest are capable, in my view, of amounting to a "life event" for the purposes of this section, and those circumstances could very well have impacted on his capacity to look after himself during the interview.

Senior Constable Betts was, in particular, required to ensure that his interview with Poynter was conducted under circumstances where Poynter was "not oppressed or overborne by any condition, circumstance or person" (section 6.3.3).  To ensure this he was required (also by section 6.3.3.):

"(i) to avoid any situation of circumstance which may give rise to a suggestion of oppression, unfairness, fear or dominance by a police officer, or to any other injustice to the person being interviewed;

2. (ii)
   to avoid any situation or circumstance whereby the person being interviewed may be overborne, oppressed or otherwise unfairly or unjustly treated; and

3. (iii)
   to ensure that the person being interviewed is provided with sufficient assistance to enable them to exercise their legal rights."

One way of complying with these requirements is to have an independent or support person present during the interview.  Such a person "should be in a position to assist the person with a special need in order to overcome the condition or circumstance creating the special need" and is to "safeguard the rights" of the person being interviewed (section 6.3.4).  The independent person is "to ensure that the condition which creates the special need does not disadvantage the person being interviewed" (section 6.3.5).  The person is to ensure, for example, that the person being interviewed is fully aware of the consequences which may result from questioning and is capable of understanding his rights at law (section 6.3.5).

An independent person to be someone who is "not likely to overbear or overawe the person with a special need" and who has "an understanding and appreciation of the condition causing the special need".

Upon the arrival of the independent person the interviewing officer is to explain to that person the role of the independent person (section 6.3.4).  This was not done here because Senior Constable Betts considered (as I have set out from his evidence) that Mrs Geia was well aware of her role.  That is not correct in all respects.

Poynter was being investigated for indictable offences and as such Senior Constable Betts was "required to comply with the provisions of section 251 of the Police Powers and Responsibilities Act and section 36 of the Responsibilities Code" (section 6.3.6).  In this context, preference is to be given "to arranging for the attendance of an independent person who is a legal practitioner or representative of the Queensland Aborigines and Torres Strait Islander Legal Service" unless the person being interviewed "clearly and expressly indicates that he does not wish such a person to attend", in which case "a relative or another person nominated by him should act as the independent person, where possible" (section 6.3.6).

Police Powers and Responsibilities Act and the Responsibilities Code

One of the purposes of this Act is "to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act" (section 4(e)).  Parliament's intention is that police officers should comply with the Act in exercising powers and performing responsibilities under it and a police officer who contravenes the Act may be dealt with as provided by law (section 5).  Section 5 "therefore contemplates disciplinary and penal consequences if a police officer contravenes its provisions". (See R. v. Cho, unreported, Court of Appeal [2001] QCA 196 at paragraph [6].)  The legislature obviously takes seriously the requirement that police officers comply with the Act. 

So far as is relevant, section 251 (2) and (3) provide as follows:

"251 (2) Unless the police officer is aware that the person has arranged for a lawyer to be present during questioning, the police officer must -

1. (a)
   inform the person that a representative of a legal aid organisation will be notified that the person is in custody for the offence; and

2. (b)
   as soon as reasonably practicable, notify or attempt to notify a representative of the organisation.

3. (3)
   Subsection (2) does not apply if, having regard to the person's level of education and understanding, a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally."

Subsection (2) applies here, there being no evidence as to the matter referred to in subsection (3).  The absence of a representative or lawyer of a legal aid organisation on Palm Island is not a sufficient reason for the failure of Senior Constable Betts to comply with the mandatory requirements of section 251(2).  Similar considerations apply to section 249 in its reference to a lawyer.  Section 249 is in the following terms:

"249 (1) Before a police officer starts to question a relevant person for an indictable offence, the police officer must inform the person he or she may-

1. (a)
   telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; and

2. (b)
   telephone or speak to a lawyer of the person's choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.

3. (2)
   The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person mentioned in subsection (1).

3. (3)
   If the person arranges for someone to be present, the police officer must delay the questioning for a reasonable time to allow the other person to arrive.

3. (4)
   What is a reasonable time to delay questioning to allow a friend, relative or lawyer to arrive at the place of questioning will depend on the particular circumstances, including, for example -

1. (a)
   how far the person has to travel to the place; and

2. (b)
   when the person indicated he or she would arrive at the place.

3. (5)
   What is a reasonable time to delay questioning to allow the relevant person to speak to a friend, relative or lawyer will depend on the particular circumstances, including, for example, the number and complexity of the matters under investigation.

3. (6)
   Unless special circumstances exist, a delay of more than 2 hours may be unreasonable."

I am satisfied that a lawyer would not have been able to attend Poynter's interview within a reasonable time, but that is no excuse for not affording him the opportunity to speak to one by telephone.  A phone call was feasible, notwithstanding the stretched conditions under which police were operating at the time.  Poynter was informed of his right to have a lawyer present but he was not asked if he wanted to telephone one, nor did Senior Constable Betts include a lawyer when he asked if the plaintiff wanted to "advise a friend, a relative or a member of the Community Justice Group".

Section 34 of the Responsibilities Code is related to section 249 and provides as follows:

"34  (1) If a place officer must advise a relevant person of his or her right to contact a friend, relative or lawyer, the advice the police officer gives must substantially comply with the following -

'You have the right to telephone or speak to a friend or relative to inform that person where you are and to ask him or her to be present during questioning.  You also have the right to telephone or speak to a lawyer of your choice to inform the lawyer where you are and to arrange or attempt to arrange for the lawyer to be present during questioning.

If you want to telephone or speak to any of these people, questioning will be delayed for a reasonable time for that purpose.

Is there anyone you wish to telephone or speak to?'

3. (2)
   If the police officer reasonably suspects the relevant person does not understand the advice, the police officer may ask the relevant person to explain the meaning of the advice in the person's own words.

3. (3)
   If necessary, the police officer must further explain the advice.

3. (4)
   If the relevant person wants to speak to a lawyer, the police officer must, without unreasonable delay, make available to the person -

1. (a)
   if there is a regional lawyer list available and the person has not asked to speak to a particular lawyer - the regional lawyer list; or
2. (b)
   a telephone directory for the region.

3. (5)
   A police officer must not do or say anything with the intention of -

1. (a)
   dissuading the relevant person from obtaining legal advice; or

2. (b)
   persuading a relevant person to arrange for a particular lawyer to be present."

In my view subsection (1) was not substantially complied with here. 

Section 36 of the Responsibilities Code is to an extent related to the first part of section 6.3.2 of the OPM.  It is in the following terms so far as is relevant:

"Questioning of aboriginal people and Torres Strait Islanders

36  (1) A police officer who is about to question a relevant person the police officer reasonably suspects is an adult aborigine or Torres Strait islander must, unless he or she already knows the relevant person, first ask questions necessary to establish the person's level of education and understanding.

3. (2)
   The questions the police officer must ask include questions, not related to the relevant person's involvement in the offence, that may help the police officer decide if the person -

1. (a)
   is capable of understanding the questions put to him or her, what is happening to him or her, and his or her rights at law; and

2. (b)
   is capable of effectively communicating answers to the questions; and

3. (c)
   is aware of the reason the questions are being asked.

3. (3)
   If the police officer considers it is necessary to notify a representative of a legal aid organisation that the relevant person is about to be questioned in relation to an offence, the police officer must inform the relevant person of the intention to notify the legal aid organisation, in a way substantially complying with the following -

'As you have not arranged for a lawyer to be present, a legal aid organisation will be notified you are here to be questioned about your involvement in an indictable offence'."

In my view Senior Constable Betts was required by section 251(2)(b) to notify a representative of a legal aid organisation that Poynter was about to be questioned, but he did not inform Poynter in the manner required by section 36(3) or substantially comply with that subsection.

There was a 30 minute break in the interview while Mrs Geia's attendance was arranged.  When the interview resumed Senior Constable Betts failed to comply with section 37(4) and (5) of the Responsibilities Code in that he did not repeat the earlier caution in the presence of Mrs Geia.  Section 37(4) and (5) are in the following terms:

"Cautioning relevant persons about the right to silence

37   (4) If questioning is suspended or delayed, the police officer must ensure the relevant person is aware he or she still has the right to remain silent and, if necessary, again caution the person when questioning resumes.

3. (5)
   If a police officer cautions a relevant person in the absence of someone else who is to be present during the questioning, the caution must be repeated in the other person's presence."

The obligation on Senior Constable Betts to recaution Poynter was, in my view, greater having regard to his non-compliance with his other statutory obligations.  Senior Constable Betts said it was an "oversight" that he failed to comply with section 37(5).  Mr Greggery accepted, as he was bound to, this as a "breach of the obligations of the officers".  Further, I think that he should have, in fairness to Poynter, explained to Mrs Geia what he saw as the difficulty in relation to contact with a representative of a legal aid organisation.  There was no need to be secretive.  Mrs Geia said she told Poynter he "could call for legal representation" but she was not aware there was no such representation then available on Palm Island.  In my view it was incumbent on Senior Constable Betts to tell Poynter and Mrs Geia that contact with such a person could be made by telephone if that was desired.  It was, in any event, his obligation to notify a legal aid organisation.  Little was done, in my view, to compensate for Poynter's position of special need.

In my view the limited involvement of Mrs Geia in the interview, notwithstanding her limited knowledge (as I find it was) of an interviewee's rights in all respects did not go sufficiently far to compensate or balance Poynter's position of special need or disadvantage, more so when the circumstances of his arrest and his handcuffing during the interview are also taken into account.  Poynter was clearly in a captive situation and it was incumbent upon police to comply with their statutory obligations.  In real terms the involvement of Mrs Geia was relatively token and, with respect to her, she did not provide the support or assistance envisaged by the OPM and the Police Powers and Responsibilities Act.  One reason for that is that she was not fully aware of what rights Poynter had and what obligations the police had with respect to him and she was not fully informed by the police.

The impression I got was that if the police had fully informed him of his rights and themselves complied with their statutory obligations he may very well not have spoken to them and it was for this reason that minimal compliance was paid to statutory obligations.

By failing completely and in all respects to comply with his statutory obligations, Senior Constable Betts did not, as he was required to do by section 6.3.3 OPM, take the action necessary to compensate for Poynter's position of special need.  Because of the offences being investigated greater effort was required by Senior Constable Betts.

Senior Constable Betts was presented with a handcuffed prisoner by SERT officers.  If he did not then have some idea as to how Poynter may have been arrested he should have made inquiries, and had he made those inquiries it would have been readily apparent that he had to be astute to ensure that the circumstances of Poynter's arrest did not impact on his capacity to voluntarily participate in an interview very shortly afterwards.  In my view Poynter would have clearly felt oppressed or overborne by the way in which he had been arrested and the condition he was in when presented to Senior Constable Betts.  Senior Constable Betts was obliged to ensure that at the time of the interview Poynter was not still so suffering.

The assistance provided to Poynter by the involvement of Mrs Geia was not sufficient assistance, in view of the circumstances of his arrest and the failure of police to comply with relevant statutory obligations, to enable Poynter to exercise his legal rights.

Also, Mrs Geia was not able to ensure that Poynter was fully aware of the consequences which may result from his questioning because she had not herself been made aware of those consequences.  She was also not aware, in my view, of the obligation imposed by section 251(2)(a) of the Police Powers and Responsibilities Act and was therefore unable to ensure that Poynter also knew that.  For a support person to satisfy him or herself that the person to be interviewed is capable of understanding his rights at law that person must first be aware of what those rights are and then that the interviewee is capable of understanding them.  Mrs Geia did not know the full extent of those rights.  She should have been informed of them and then she could have properly, adequately and sufficiently provided the requisite support for Poynter, otherwise she was effectively just a presence.  The police were required (by section 6.3.4) to explain to Mrs Geia what her role was.  Had they done so she would have been able to properly support Poynter and ensure he was fully informed of his rights and the obligations of the police with respect to those rights.

Bearing in mind the obligation imposed on the police by section 6.3.6 OPM to give preference to a legal representative from Aboriginal Legal Aid attending the interview, if one was not conveniently available the opportunity should have been given to contact such a representative by telephone, otherwise Poynter was incapable of "clearly and expressly" indicating he did not want such a person.

For these reasons I incline to the view that when he was interviewed Poynter was labouring under a degree of pressure or fear as a result of what had earlier happened to him and that he was not speaking voluntarily.  This was not the fault of the interviewing officers, but had they inquired, as I think they should have, they would have become aware of circumstances which would have highlighted the need to ensure that they properly complied with their statutory obligations to Poynter.  It is not, however, necessary for me to express a definitive view on this aspect of the objection to the admissibility of the interview because I am satisfied by reason of the cumulative effect of the instances of non-compliance with the provisions of the OPM, the Police Powers and Responsibilities Act and the Responsibilities Code, coupled with the circumstances of his arrest, that it would be unfair to admit the interview in evidence against the accused, and I would exercise my discretion to exclude it.