R v Hudson[2009] QDC 418

DISTRICT COURT OF QUEENSLAND

[1] HIS HONOUR:This is an application by the defendant, John William Glen Hudson, seeking the exclusion of a record of interview conducted on 8 July 2007, between Senior Constable Adam Fairhurst and the defendant. The defendant faces trial on an indictment alleging one count of burglary and one count of rape, allegedly occurring on 7 July 2007, at Kingaroy.

[2] The trial is listed to proceed at the Kingaroy District Court on 6 October 2009.

[3] The basis for the application to exclude the record of interview is that it was either involuntary, or was unfairly obtained and should be excluded in the exercise of my discretion.

Background

[4] The complainant, KD, and the defendant had been friends for some four or five years, as of 7 July 2007. On the evening of 6 July 2007, they met at the complainant's house at about 5 o'clock; went to the movies at about 6 o'clock; purchased a cask of wine at a bottle shop after the movie had finished, then returned to the complainant's house where each consumed a number of glasses of wine.

[5] The defendant left the complainant's house during the course of the night. It is then alleged that he subsequently broke in by breaking a louvre near the front door, and had sexual intercourse with the complainant without her consent. The complainant later spoke with the defendant by phone early that same morning, then called friends, family and an ambulance. The matter was immediately reported to police. On 8 July 2007, the complainant made a formal statement to police.

[6] Senior Constable Adam Fairhurst attended at the defendant's residence after the complainant's statement was taken, on 8 July 2007. The defendant accompanied Senior Constable Fairhurst to Kingaroy Police Station, where an electronic record of interview (video and audio) was conducted between 1.03 p.m. and 1.47 p.m. The interview contains admissions to the offences indicted before this Court.

Record of Interview

[7] Senior Constable Fairhurst administered the cautions in respect of the right to silence, right to contact friend or relative and have them present at the interview, and right to contact a lawyer and have them present at the interview. The defendant declined the opportunity to speak with or have a friend, relative or lawyer present at the interview. The defendant indicated his willingness to participate in the interview.

[8] After some questions about employment, Senior Constable Fairhurst then asked the following sequence of questions. I note that where I heard a conversation differently to how it was transcribed in the transcript (Exhibit B), I have relied on what I heard on the video tape.

[9] "Page 8, line 11 to page 10, line 41.

Senior Constable Fairhurst: Okay. What level of schooling have you achieved?

Hudson: Um, I finished my year 12.

Senior Constable Fairhurst: You did?

Hudson: Yeah.

Senior Constable Fairhurst: Finish year 12?

Hudson: Yes.

Senior Constable Fairhurst: Yep. How did you go?

Hudson: Um. I done all right. I passed.

Senior Constable Fairhurst: Okay. So do you have any difficulty in reading and writing the English language?

Hudson: No. Just when, like, like to keep things on simple terms where I understand because anything any more than simple I get confused.

Senior Constable Fairhurst: Okay. Now, you mentioned to me before that you suffer from um Aspergers was it, or autistic.

Hudson:Yeah. Well, both, mixed 

Senior Constable Fairhurst: Okay. Can you explain that to me a little bit further?

Hudson: Well, when I was born I was diagnosed with global [indistinct].

Senior Constable Fairhurst: Sorry?

Hudson: Global [indistinct].

Senior Constable Fairhurst: Yeah.

Hudson: That's what they called it.

Senior Constable Fairhurst: Yep.

Hudson: [indistinct]. And ah and at nine or 10 years old I was diagnosed with ADD. A year later I was diagnosed with ADHD.

Senior Constable Fairhurst:Yep.

Hudson:And around when I was about, like when I was 11 or 12 I was diagnosed with Aspergers/autism. And at 15 I was officially diagnosed with autism.

Senior Constable Fairhurst:Now when you say autism, what are the symptoms of autism?Do you know?

Hudson:Lack of concentration. Well that's the main one for me, um, I find socially [indistinct] difficult and I just see things in a different perspective to most other people.

Senior Constable Fairhurst:And what do you mean by a different perspective?

Hudson:Well I just - I had - sorry, I'll start that again.

Hudson:Well I just, I just have my own view on how I see things.

Senior Constable Fairhurst:Okay.

Hudson:Like some things that I'd done in the past like some things - like, for example, some things I had done wrong. Well I thought were wrong, were actually like [indistinct] and vice versa. That's pretty much it.

Senior Constable Fairhurst:Okay then, so how do you feel at the moment?Sitting here?

Hudson:I feel pretty guilty for what has, for what I have done.

Senior Constable Fairhurst:Okay. Well, before we get into why you feel guilty um - do you feel that you're lacking your concentration?Let's just say 

Hudson:No.

Senior Constable Fairhurst:Okay. Do you need to take any medication for any of this?

Hudson:Well I, I know that's - sorry, I know what's going on - I did take medication, but at 15 I stopped taking medication.

Senior Constable Fairhurst:Okay. Have you had to go to a doctor about your condition recently?

Hudson:No.

Senior Constable Fairhurst:When was the last time you did?

Hudson:When I was 15.

Senior Constable Fairhurst:Okay then so, you're 21 so it's been a fair while.

Hudson:Yeah.

Senior Constable Fairhurst:Have you had to go to hospital or anything like that about your condition recently or?

Hudson:No.

Senior Constable Fairhurst:Do you have like any episodes or anything like that?

Hudson:No, not really. I just have um - just - just mood swings from time to time.

Senior Constable Fairhurst:Okay.

Hudson:Like sometimes I get really upset. Sometimes I get really angry and sometimes I just want - you know.

Senior Constable Fairhurst:Okay. Now considering you've got this condition, are you sure that you don't want anyone to come and sit with you?

Hudson:No.

Senior Constable Fairhurst:Okay. I'm also gonna ask you why is that mate?

Hudson:Just because I, I was raised in a traditional moral, traditional good moral, moral household and my father, who is now deceased, raised me, raised me and said when you're 18 you're accountable for your own actions and anything that you do wrong, you deal with it on your own because, that's what you've done wrong, you are - are the one who has to deal with it, [indistinct].

Senior Constable Fairhurst:Okay then, do you know what the difference is between right and wrong?

Hudson:Yes.

Senior Constable Fairhurst:How do you know the difference between right and wrong?

Hudson:Hmm, trial and error has grown me very much, but when alcohol is in the mix it's kind of hard to dispute. "

Legal Issues

[10] Police Powers and Responsibilities Act 2000, part 3, is entitled "Safeguards ensuring rights of and fairness to persons questioned for indictable offences. "

Relevantly, ss. 414, 415, 422 and 441 provide as follows:

"- 414 Part applies only to indictable offences.

This part applies only to indictable offences.

- 415 When does this part apply to a person

1. (1)
   This part applies to a person (relevant person) if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.

2. (2)
   However, this part does not apply to a person only if the police officer is exercising any of the following powers—

1. (a)
   power conferred under any Act or law to detain the person for a search;

2. (b)
   power conferred under any Act to require the person to give information or answer questions.

- 422 Questioning of persons with impaired capacity

1. (1)
   This section applies if—

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

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

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

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

2. (b)
   a support person is present while the person is being questioned.

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

- 441 When sections 418–422, 432 and 434 do not apply

1. (1)
   Sections 418 to 422, 432 and 434 do not apply if a police officer reasonably suspects that compliance with the sections is likely to result in—

1. (a)
   an accomplice or accessory of the relevant person taking steps to avoid apprehension; or

2. (b)
   an accomplice or accessory being present during questioning; or

3. (c)
   evidence being concealed, fabricated or destroyed; or

4. (d)
   a witness being intimidated.

2. (2)
   Also, a police officer is not required to delay questioning if, having regard to the safety of other people, the police officer reasonably suspects questioning is so urgent that it should not be delayed.

3. (3)
   This section applies only for so long as the police officer has the reasonable suspicion. "

[11] The dictionary [schedule 6, Police Powers and Responsibilities Act] contains the following relevant definitions:

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

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

(a) an obvious loss or partial loss of the person's mental functions;

(b) an obvious disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour. "

- "support person"

…

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

[12] It is clear that if a police officer reasonably suspects a person is a person with impaired capacity, then PPRA S 422{2} applies, i.e.

"A police officer must not question the person unless —

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

(b) a support person is present while the person is being questioned. "

[13] There is, in addition, an obligation on a police officer to suspend questioning to comply with PPRA S 422(2) if "it becomes apparent that the person being questioned is a person with impaired capacity" PPRA s. 422(3).

[14] Non-compliance with PPRA s. 422 raises issues of voluntariness [Criminal Law Amendment Act (Qld) 1894, s. 10] and/or discretionary exclusion [Evidence Act 1977 s. 130].

Application of the Law to the Impugned Record of Interview

[15] Senior Constable Fairhurst was on notice prior to the record of interview that the defendant suffered from Aspergers or autism [Exhibit "B" p. 8 ll 36-37].

[16] In addition, during the interview, the defendant outlined a series of diagnoses, including Aspergers, autism, global development disorder, ADD [inferentially attention deficit disorder], and ADHD [inferentially attention deficit hyperactivity disorder].

[17] In my view, either prior to the formal record of interview, or at the least, as at the point in the interview reached by page 9 of Exhibit "B", there was a mandated obligation on Senior Constable Fairhurst to comply with PPRA s. 422.

[18] In particular, it was not a situation were Senior Constable Fairhurst had to assess impairment, but rather a situation where the police officer was told, explicitly and in some considerable detail, the diagnoses of the defendant.

[19] Mr Perros, psychologist, at page seven of his seven page report dated the 27 July 2009 (Exhibit 5) states "he [the defendant] has a number of symptoms of pervasive developmental disorder and ASD [autism spectrum disorder]. Mr Hudson is socially naïve, has poor psychosocial skills, is immature psychosexually, prone to misconstrue non-verbal cues and his poor language skills place him at risk of misunderstanding complex language. His symptoms of inattention and poor impulse control place him at risk of not being able to properly assess social situations. This is amply demonstrated in Doctor Hurley's reports [a reference by Mr Perros to a series of reports provided by Doctor Tom Hurley, consultant paediatrician contained in Exhibit 5 and dating between 1 April 1998 and 3 November 2004].

This Mr Hudson [sic] suffers from a hidden handicap, and to a lay person he can appear normal. "

[20] Mr Perros at page three of his four page report of 27 July 2009 (Exhibit 5) states "the primary medical condition is autistic spectrum disorder (ASD) or Asperger's Syndrome with features of inattention, depression and anxiety. This is a developmental disorder associated with subtle cognitive, social and language impairment that impact on the sufferer's ability to interact effectively with the world. "

[21] At page four of the four page report of Mr Perros dated 27 July 2009 (Exhibit 5) Mr Perros further states "Mr Hudson's primary condition is autistic spectrum disorder (ASD), a condition that is difficult to diagnose. There is a significant comorbid medical history of learning difficulties, poor attention, poor control of impulses, interpersonal clumsiness, anxiety and depression. "

[22] Finally, in commenting on the record of interview, Mr Perros states (page four of his four page report dated 27 July 2009 - Exhibit 5):

"Mr Hudson told Senior Constable Fairhurst that he suffered from global delay (p. 8, line 44), ADHD (p. 8, line 57), and autism (p. 9, line 4). It was at that point, I believe, that the interview should have been paused and a support person called in. Mr Hudson did not tell Senior Constable Fairhurst that he had also been treated for depression. Even after Mr Hudson advised Senior Constable Fairhurst of his disabilities, Senior Constable Fairhurst elected to continue the interview. As stated by Doctor Berney, Senior Constable Fairhurst probably overestimated Mr Hudson's capacity; the correct thing to do in accordance with part three of chapter 15 of the Police Powers and Responsibilities Act would have been to pause the interview until a support person experienced in working with autistic people could be in attendance. "

[23] I note the reference to "Doctor Berney" is a reference to a document that does not appear to be in the material placed before me. I note further that although it might be said that Mr Perros is at that passage "swearing the issue" he does encapsulate in my view a neat summary of the obligations of the investigating police officer at that point.

Voluntariness

[24] The purpose of PPRA s. 422 is clearly to provide safeguards for persons with impaired capacity. Senior Constable Fairhurst, to his credit, asked questions which elicited, explicitly, that the defendant was a person with impaired capacity. In my view the test in PPRA S 422 was clearly satisfied (i.e. the police officer "reasonably suspects").

[25] What then occurred was that Senior Constable Fairhurst failed to act in accordance with PPRA s. 422 (despite eliciting information relevant to his consideration of that legislative provision) and from that point on, despite the defendant's acquiescence in the process, it could not in my opinion be said that the defendant's interview was "voluntary" i.e. given in a free choice whether to speak or to remain silent.

Discretionary Exclusion

[26] Even if I am in error in respect of the issue of voluntariness, I would have excluded the interview pursuant to Evidence Act s. 130.

[27] The interview was, in my view, clearly obtained unfairly, in direct contravention of a legislative provision clearly directed at persons such as the defendant, who suffer from conditions which impair their capacity, in terms of both limbs of the definition of "person with impaired capacity" in PPRA schedule 6.

[28] Despite the serious nature of the offences, especially the rape count, I conclude that it would be unfair to the defendant to admit the record of interview given the non-compliance with PPRA s. 422, and the consequent considerations of reliability and the defendant's right to remain silent (see R v LR [2006] 1 Qd R 435, per Keane JA p 452, paras 52 and 54, and see also R v Swaffield (1998) 192 CLR 159. )

Order

[29] I order that the record of interview conducted between Senior Constable Fairhurst and the defendant John Hudson on 8 July 2007, be excluded.

[30] It follows that the field tape (also conducted 8 July 2007), to the extent that it might contain anything that is inculpatory, is also excluded.