R v Chandler[2011] QDC 279

DISTRICT COURT OF QUEENSLAND

1. [1]
   An application has been made by the applicant pursuant to s 590AA of the Criminal Code 1899 (Qld) to have certain admissions made by him during interviews with the police ruled inadmissible because they were induced and not voluntarily made. For the reasons set out below, the application fails.

Background

2. [2]
   The applicant is charged with a number of offences: unlawful use of a motor vehicle with circumstances of aggravation, entering premises and stealing, and armed robbery with personal violence. The robbery and enter premises offences relate to the same restaurant located in Sunnybank but occurred on separate occasions.

3. [3]
   On 21 June 2010 the applicant participated in a formal record of interview with the police at the Acacia Ridge police station and accompanied the police on a “drive around” style interview. During the course of those interviews the applicant made a number of admissions, including directing the police to relevant locations. The record of interview was not played at the hearing of the application.

4. [4]
   At the time, the applicant was already subject to a parole order and the supervision of probation and parole officers and was living with his parents. That parole order was due to expire some time around August 2010.^[1] On 21 June 2010 the applicant’s mother told him that some time previously she had received a call from a person who identified himself as being a representative of the Parole Board, and that a relevant parole officer was trying to locate him. Apparently this person (or some other person) had rung the applicant’s parent’s home on several occasions and on each occasion identified themselves as being from the Parole Board. On one of these occasions the applicant accepted the call. In his affidavit the applicant deposes as follows:

“14. I answered the phone, I cannot recall if the person identified themselves other than saying it was community corrections. They asked if I was home. I clearly was because I answered on the home number. They asked if they could come and see me. I asked if this could wait until after work. …

15. During this same conversation I said ‘could I come after my 4 o’clock shift finished’. They agreed to this suggestion. After the call ended I handed the phone back to my mother and continued to get ready for my work shift.

16. I returned to my room, and immediately on my return to the room, I recall a knock on the door. I recall mum called out to me. I walked out to the lounge room and saw two men who I now know are police officers. I am not sure about whether or not they stated anything about a search warrant.”

5. [5]
   It is not disputed that police officer McNeill contacted the applicant at his parent’s home prior to attending that address, nor that during his telephone conversation with the applicant he represented himself to be a person from the relevant probation and parole authorities. According to Officer McNeill he often used this ruse to ensure that persons of interest would be at home when he and/or other police officers attended their premises.

6. [6]
   What occurred when the police arrived is deposed to in the affidavit of the applicant in the following terms:

“17. I recall that they told my mother that they wanted to talk to me. I recall something to the effect that they asked my mother if a third person could come into the house. My mother left the room and let the person through the back door. I then understood them to be police officers. There was some conversation about a search warrant looking for some tools in my bedroom. This conversation was held between myself and two of the officers. The third officer was talking to my mother.

18. I walked into my bedroom with two of the officers. I believe one of the officers was police officer McNeill. They were generally asking me questions about a car that was found and they also found some items in the car and a bag of clothes that belonged to me.

19. I concede I was a bit belligerent to them and my have said to them words to the effect ‘Stop jerking me around’. I do recall one of the officers responded by saying ‘Stop being a dickhead. Don’t make this any worse than it has to be.’ I believe the conversation was getting a bit aggressive or certainly felt they weren’t mucking around.

20. They then asked me to go to the police station with them. I explained that I had to go to work and that work was important to me. They told me that I have to come and I have to cooperate. I still tried to bargain with them about my work.

21. Accordingly, in the same conversation in which they said ‘you have to come. You have to cooperate’, they told me ‘don’t make this any worse than it has to be. You don’t want to mess up your parole’. I understood this to mean that they knew I was still on parole. I understood this comment to mean they were effectively playing the parole card, putting pressure on me about the consequences of not complying with them and the adverse effects that would have on my parole.

22. The parole issue was foremost in my mind since leading up to the knock on the door and the presence of the police in my lounge room. There were these previous calls about parole looking for me.

…

24. [At the police station] … the officer asked me did I know anything about a car, about some number plates? He said we will just take you into an interview room. He asked me if I was on medication. I responded that I was on for some mood disorders. I have been previously diagnosed with a pervasive mood disorder. I told him ‘I am not on medications at the moment’. I told him that when I am not on medication I told him that [sic] I can become erratic and I have heightened anxiety attacks. When I told him about my medical issue he said something to the effect ‘Oh, well, this is what we’ll do, we will bring that up on the interview.’

25. At this stage I had had enough. I felt boxed into a corner. I gave a record-of-interview. I was close to parole finishing. I did not want to jeopardize the parole order. I would not have given this record of interview if I did not think my parole was in jeopardy.”

7. [7]
   During the hearing of the application the applicant gave evidence in more detail than that set out in his affidavit. In response to a series of questions the applicant said:

“Yeah, they also told me about how if I didn’t cooperate with them that they could just revoke my parole, have me returned to gaol and then they would just issue a removal order and they would still get to talk to me anyway.”^[2]

And later:

“Q: You’re suggesting, are you not, that by the suggestion that you thought they would ask you some questions in relation to some matters – the police, that is – that if you answered the questions you wouldn’t have your parole revoked?

A: Yeah.

Q: Your response to those questions was in relation to you saying that you had conducted two offences, one armed robbery and one entering the premises – the same premises a few days later and stealing a till?

A: That – see, I wasn’t even aware that that was the matters that they were talking about until they got me to the police station.

Q: That’s okay, that’s okay. That’s right. So when you spoke to them, though, when you answered questions you told them various things which – in response to their questions willingly?

A: Yeah.

Q: You knew those answers that you were giving them directly implicated you in those two offences.

A: Yes.

Q: You knew that those offences were serious?

A: Yes.

Q: You knew that if you were convicted of that sort of offence you would be liable to potentially serious gaol time?

A: Yes.

Q: That you would have the court believe that by making those admissions to those offences you would not have your parole revoked?

A: No, that came after the fact.

Q: What do you mean?

A: It was only once I got taken to the police station and the police took me into that secure area that they first made mention of any of that other stuff. At first they had only mentioned that they were there to look for tools and that they wanted to talk to me about a car and I refused to go and it was only after they forced me and felt that I had no choice to go with them to the police station that when they took me to the secure area they first mentioned the other stuff and I realised I had tied myself into a neat knot by realising that I was forced to go to the police station with them in the first place and give the interview.

Q: Well, you were warned, weren’t you, before you gave the interview, that you didn’t have to say anything. Is that correct?

A: In the moment I refused …

Q: Well, were you warned?

A: In the moment I refused, my parole would have been pulled.

Q: No, no. I’m asking you were you warned before – at the time of the commencement of the record-of-interview that you didn’t have to say anything?

A: That’s like telling someone they don’t have to make house repayments. There’s always a consequence if you don’t do something.

Q: Is that correct?

A: Yes.

Q: Were you asked if any threat was made to you?

A: Yes.

Q: What did you say?

A: No.

Q: Were you asked if any promise was made to you?

A: Yes.

Q: What did you respond to?

A: No.

Q: You had no idea until you got to the station that this was the topic – these robberies or thefts, that that was what you were there to talk about?

A: Yes.

Q: No suggestion had been made to you prior to it?

A: No.

Q: It was not in your mind that that was in issue?

A: No, I was just thinking about my parole.

Q: Right. The reason you were thinking about your parole is because you – on your account you had been belligerent to them. You weren’t answering their – like, helping them?

A: It was a condition of my parole to comply with any direction given to me by a police officer.

Q: All right. You knew when you were given that right to remain silent that you didn’t have to answer, didn’t you?

A: No, I felt that I had to answer otherwise it would have been in contrary to my condition of my parole.”^[3]

8. [8]
   On behalf of the applicant it is submitted that by virtue of the matters stated in paragraph 21 of his affidavit (and as expanded on in his oral testimony), the applicant believed that he was compelled to be interviewed by the police, or, to put it another way, was induced into making the admissions. It was submitted that the assertions made to the applicant amounted to an inducement and as such the confession the subject of the application is inadmissible.^[4]

9. [9]
   The respondent’s position may be fairly summarised by reference to its supplementary written submissions where it is asserted:

“26. The whole premise of involuntariness in the Applicant’s account is an absurdity: Knowing that his admissions would breach his parole, he made them anyway – because he would breach his parole if he did not speak. So, rather than be silent and breach his parole, he made admissions to two further offences knowing they would also result in “serious gaol time” if he was convicted of them.

27. The court would reject the allegations of the Applicant for the foregoing reasons and would be satisfied on the balance of probabilities that the admissions arising in the formal interview and the subsequent “drive around” were voluntary.”

Criminal Law Amendment Act 1894

10. [10]
    Section 10 of the Criminal Law Amendment Act 1894 relevantly provides:

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

11. [11]
    It is not disputed that the onus is upon the Crown to establish that a confession is voluntary on the balance of probabilities once evidence has been raised to challenge its voluntariness.

12. [12]
    In R v Kassulke^[5] Davies JA said in respect of s 10 of the Criminal Law Amendment Act:

“This exclusionary rule probably represented the common law at the time of its enactment. But it must be accepted that it did not exclude the common law rule which continued in force and may be somewhat wider. It was stated in the following way by Dixon J in 1948:

‘At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is proceeded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made.’”

13. [13]
    As can be seen by the nature of the application, its grounds are relatively narrow and there are no allegations to the effect that otherwise the records of interview carried out by the police were not conducted in accordance with the Police Powers and Responsibilities Act 2000 (PPRA) and/or its associated Regulations.

Consideration of the arguments

14. [14]
    At the heart of the applicant’s case is that he was induced into making the admissions because of threats made by the police, probably by Officer McNeill. The effect of the threat was that if he did not cooperate with the police by attending the police station and participating in an interview, his parole would be cancelled. Acting under that threat he made a number of admissions concerning the offences referred to in paragraph 2 above.^[6]

15. [15]
    According to the applicant when the police confronted him at his parent’s home, he thought they were only concerned with “trivial matters” involving “some tools and a car” and not about any particular offence or offence he might have been involved in.^[7] The evidence given by the police officers was that the applicant was told that they were there as a part of their investigation of armed robberies.^[8] Notwithstanding that the police made no record (either by notes or tape recording) of their conversation with the applicant at his parent’s house, I found their evidence on this topic preferable to that of the applicant. The applicant’s evidence about this is not only inconsistent with that of the police officers but also with his own evidence that the police were carrying out what appeared to be a search of his room.^[9] That the police would conduct a search, even if a cursory one, is not in my view consistent with the police being there to speak to the applicant about trivial matters or matters “peripheral” to him. At no stage was it suggested to any of the officers who gave evidence that the applicant was not told that they were investigating armed robberies and, in fact, that such information was conveyed to the applicant appeared to have been accepted during the cross-examination of Officer McNeill.^[10] Finally, the applicant’s version does not sit comfortably with his reception of the police at his parent’s home where he said words to the effect “I know why you are here.”^[11]

16. [16]
    On balance, I find that it was far more probable than not that when the applicant attended the police station, he was aware that he would be questioned about armed robbery and related offences.

17. [17]
    All of the police officers denied making any threat or threats of the kind alleged by the applicant.^[12] Despite the thorough cross-examination of these officers by Mr Hoare, counsel for the applicant, I found their evidence to be far more convincing than that of the applicant. Unlike the applicant, notwithstanding their use of the ruse, I found the officers to be honest and reliable witnesses. I also found that the applicant’s version of why he participated in the record of interview to be improbable. It seems to me to be highly unlikely that a person with some previous experience with the police would, after being given the warnings and advice required by the PPRA, make admissions implicating him in serious offences, in particular armed robbery, because he believed if he did not participate in the interview his parole would be cancelled. That is, according to the applicant, in order not to breach his parole he admitted to matters which of themselves would be a breach of parole and have even more serious consequences.^[13]

18. [18]
    In my opinion it is more likely that not that when the applicant made the admissions he did so voluntarily and was not acting under any threat of inducement. Accordingly the application should be dismissed.

Order

1. The application is dismissed.