DISTRICT COURT OF QUEENSLAND

1. [1]
   This proceeding is concerned with an application pursuant to s 590AA of the Criminal Code 1989.  The relief sought is that admissions made by the applicant contained in a recorded interview with the police on 19 January 2012 be excluded from evidence against the applicant at trial.  Initially, the applicant also sought to have excluded from evidence that of two young men, Kyle Jennewein and Daniel Fuller.  The application in respect of the evidence of Jennewein and Fuller was not pursued on the hearing of the application.  For the reasons set out below, the order of the court is that the application be dismissed.

Background

2. [2]
   The applicant is charged that, on 31 October 2011, he wilfully and unlawfully set fire to a dwelling located at 39 Princess Street, Bundaberg.  The dwelling had been vacant for several years but had apparently been used from time to time by squatters and other persons.  The dwelling was totally destroyed by the fire.

3. [3]
   The forensic examination of the scene provided little evidence against the applicant or otherwise; the most likely cause of the fire could not be determined conclusively. However, at the time of the fire, the house was disconnected from the electricity supply and it was the opinion of a police officer, Sergeant Crawley, that the fire was the result of human involvement.

4. [4]
   On 19 January 2012, the applicant participated in a record of interview with Senior Constable Gordon Bruce Hard. A transcript of the record of interview was tendered during the hearing of the application^[1]and the record of interview was visually recorded.  During the interview, the applicant made a number of frank admissions concerning the fire.  By way of examples, he described how he lit the fire and the motive for it.^[2]During the interview, the applicant also made a number of admissions concerning a variety of property offences.  However, it is only that part of the record of interview concerned with the charge of arson that was in issue before me.  It is acknowledged that, in the event that this application was unsuccessful, the record of interview would have to be extensively edited.

5. [5]
   It is not in dispute that, at all material times, the applicant was under the care of the Adult Guardian and the Public Trustee as a consequence of intellectual impairment. It is also common ground that no attempt was made to contact the Adult Guardian until after the record of interview had been completed. The applicant has now been in custody for in excess of 320 days.             

The medical evidence

6. [6]
   During the hearing of the application a report of Dr Jenkins was tendered on behalf of the applicant.^[3]Dr Jenkins is a consulting psychiatrist who interviewed the applicant on 23 November 2012.  At the time of the interview the applicant was 19 years of age.  He was 18 at the time of the offence.  Dr Jenkins relevantly reported:

“The intellectual disability that Mr Anderson is suffering fits the DSM-IV TR diagnostic criteria for mental retardation (which is equivalent to the contemporary meaning of intellectual disability).

…

Mr Anderson’s intellectual disability will impair his decision-making ability regarding his own safety, health and well-being and he would have no capacity to give consistent direction to council [sic].  It is clear that he would also not be able to understand the proceedings in court and is unable to understand both his rights and responsibilities regarding due process of law.

Mr Anderson’s condition also means that he has no sense of what rights he has when being interviewed by police.  I believe that being under the Adult Guardian is a clear indication that when faced with important decisions or choices regarding his own care and safety, he is incapable and needs supervision by the Guardian.

It is likely as a result of his condition that he had no idea of the consequences or importance of any interview with police prior to his current charges.”

The applicant’s arguments

7. [7]
   On behalf of the applicant, it is contended that the admissions should be excluded on the basis of “voluntariness, and/or reliability, and/or fairness, and/or public policy exclusion”.^[4]In support of his submissions, the applicant relies on a number of acts and omissions on the part of Officer Hard.  And, in particular:

1. (i)
   the offer made to the applicant prior to and during the record of interview that he could call his girlfriend at the conclusion of the interview;

2. (ii)
   breaches of the Police Operational Procedures Manual;

3. (iii)
   alleged breaches of the Police Powers and Responsibilities Act 2000 and, in particular ss 397, 422 and 431 thereof;

4. (iv)
   the applicant’s mental health generally.

The legislation and operation procedures

8. [8]
   The Police Powers and Responsibilities Act 2000 (‘PPRA’) identifies^[5]that it was the intention of parliament that the police should comply with the provisions of the Act in the performance of their duties.  Relevant to this application, ss 397, 422 and 431 provide:

9. [9]
   Schedule 6 of the PPRA provides the following relevant definitions:

10. [10]
    The Queensland Police Operations and Procedures Manual^[7]deals with the preparation of interviews.  Section 2.14.1 relevantly provides:

11. [11]
    Section 6.3.2 of the manual requires an interviewing officer to evaluate the ability of the person to be interviewed to look after or manage their own interests. Section 6.3.2 provides:

12. [12]
    Section 6.3.2 then goes on to provide factors that an officer is required to take into account in making an evaluation of the person’s ability to look after and/or manage their own affairs.

Were the admissions voluntary?

13. [13]
    To be admissible, a confession must be voluntary and the onus is on the Crown to prove that it is. Section 10 of the Criminal Law Amendment Act 1894 effectively provides that no confession shall be received into evidence in circumstances where it has been induced by a threat or promise made by some person in authority.  The position at common law was summarised in the decision of the High Court in The Queen v Lee^[8] where it was said:

“….

Such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in exercise of a free choice and not because the will of the accused has been overborne or his statement made as a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure….  A statement must be voluntary in order to be admissible.   Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character. ....”

And at page 149:

“….

The word ‘voluntary’ in the relevant connection does not mean ‘volunteered’.  It means ‘made in the exercise of a free choice to speak or be silent’.  But a full understanding and correct application of the common law rule that confessional statements must be voluntarily provides…. extensive protection to accused persons….”

14. [14]
    In considering s 10 of the Criminal Law Amendment Act 1894in The Queen v Kassulke,^[9]Davies JA said:

“…. 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 in McDermott v R (1948) 76 CLR 501 at 511:

 ‘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 preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made .’”

15. [15]
    It was submitted on behalf of the applicant that the admissions were not voluntarily made because of the offer to the applicant that he could call his girlfriend at the conclusion of the interview,^[10]and/or because of the applicant’s mental health generally,^[11]and/or because of a failure to comply with s 422 of the PPRA.^[12]

16. [16]
    The medical evidence makes it sufficiently clear that the applicant was a person with impaired capacity. However, that a person is of impaired capacity does not mean that he or she is not capable of making a voluntary confession. In Collins v R,^[13]Brennan J (as he then was) stated:

“…. A confession is not to be held to be involuntary merely because the confessionalist is by nature or temperament predisposed to confess and is furnished with an opportunity to do so….  There is nothing in Sinclair v R (1947) 73 CLR 316…. to the contrary.  In that case, although the accused was mentally abnormal, his particular abnormality was relevant only to the reliability of the confession…. Not to its voluntary character.”

17. [17]
    In R v Pfitzner^[14] Doyle CJ stated:

“On the basis of such reasoning a submission that the appellant’s mental condition meant that his admissions were not made voluntarily would seem doomed to failure.  This mental state might have been such that he felt and believed himself compelled to speak to the police, or it might have been such that he was incapable of making a proper choice, with due consideration of his own interests, whether to speak to the police or not.  But such matters could not, on the approach discussed, render his admissions involuntary.  Such matters may, of course, be relevant to the exercise of the discretion which the trial judge had to exclude the admissions on the grounds that their use in the trial would be unfair to the appellant.”

18. [18]
    During the course of the application, I had the opportunity to view the recorded interview of the defendant. Whilst during the interview the applicant from time to time appeared a little slow to process questions, at no time did he appear not to understand the usual warnings and rights given at the commencement of the interview and questions asked of him. When asked questions, the applicant answered in a responsive way and was capable of providing a considerable amount of detail. As was the case when being interviewed by Dr Jenkins, the applicant understood that he was being interviewed by a police officer,^[15]and it appeared to me that he understood the purpose and seriousness of the interview.  The conduct of the applicant during the interview was, in my view, broadly consistent with the medical evidence.  According to Dr Jenkins, he expected (subject to testing) that the applicant’s IQ would be in the order of 65 to 70.^[16]A person with that intellectual capacity would be capable of holding a conversation,^[17]which accords with my observation of the applicant during the interview.  While the doctor did not have the opportunity to observe the visual recording of the interview, or hear the audio, he did read the transcript and agreed that the applicant was able to give an intelligible account of recent events in his life.^[18]The doctor’s evidence accords with my conclusions based on my observations of the recording of the applicant’s interview. 

19. [19]
    In addition to being able to hold an appropriate conversation including giving responsive answers to questions, the applicant gave no signs that might have indicated the existence of impaired capacity. As Dr Jenkins observed, to the untrained eye, the applicant’s physical appearance and characteristics would not have indicated the existence of his condition.^[19]Officer Hard is probably not a lay person in the sense that he is an experienced police officer who has carried out hundreds of interviews.^[20]However, I do not consider that that his experience, even coupled with his limited previous dealings with the applicant, would give him reason to be materially more perceptive than any other untrained and unqualified person.

20. [20]
    Reference was made by Dr Jenkins to the applicant’s confusion about the time at the beginning of the interview.^[21]It seemed to be suggested that the confusion about time was indicative of the applicant’s inability to respond to complex questions.  I have some difficulty with this evidence.  Being asked what the time was is not a complex question.  Also, if the applicant’s condition was such that he could not understand the question or, if he could understand the question, did not have the ability to answer it, it is difficult to understand how he could otherwise carry out the balance of the interview in an apparent cogent and responsive way.  On balance, I consider the applicant’s response to the question of time was more likely an episode of momentary confusion and/or nervousness and was not indicative of a more serious underlying condition which should have been recognised by Officer Hard.  For the balance of the interview, the applicant appeared oriented in time and place.

21. [21]
    As to the offer by Officer Hard to the applicant that he could call his girlfriend after the interview, I do not consider that it amounted to any inducement or promise which was intended to, or, in fact, affected the applicant’s exercise of free choice. According to Officer Hard, prior to the interview, he had a conversation with the applicant about contacting his girlfriend after the interview and before being taken to the watch-house.^[22]Prior to the substantive interview commencing the following exchange took place:^[23]

Officer Hard: “Okay.  You also have the right to telephone and speak to a friend or relative to inform the person of where you are and ask him or her to be present during questioning.  You also have the right to telephone and speak to a lawyer of your choice, to inform that person of where you are and 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 and speak to at this point?

Applicant: My girlfriend.

Officer Hard: Yeah, where’s she at the moment?

Applicant: Victoria.

Officer Hard: Yeah. Did you, well she obviously can’t be present here during the interview.

Applicant: Oh Yeah [indistinct].

Officer Hard: Do you want to speak to her after the interview?

Applicant: That’d be good.

Officer Hard: Yeah. No, I, I, I already that’s – that’s no dramas at all. Is there anyone you wish to speak to but, in relation to this interview?”

22. [22]
    The applicant’s response to the last question was indistinct but it seemed tolerably clear that his indication was that there was no one else that he wished to telephone or otherwise contact prior to the interview.

23. [23]
    When asked whether such an offer might have impacted on the applicant’s decision to involve himself in the interview, Dr Jenkins stated that that it was possible in that it might have been interpreted as an act of kindness and thereby that everything was “okay”. But the doctor went on to say that he “probably does not have a clinical opinion on that one in this case.”^[24]

24. [24]
    On the evidence, I am sufficiently satisfied that the offer made concerning the phone call after the interview did not amount to any inducement or promise as contended for on behalf of the applicant. Indeed, from my observation of the interview, consistent with the evidence of Officer Hard to the effect that he was told that the applicant wanted to be interviewed in respect of certain matters,^[25]I formed the impression that the applicant knew fully what he was doing and that he intended to make admissions in respect of his past offending including the arson charge and various other property offences. 

25. [25]
    For the reasons given, I do not consider there is any basis for concluding that Officer Hard ought to have had reasonable suspicions about the applicant’s impaired capacity and I am satisfied that the admissions made by the applicant during the interview were voluntarily made in the sense that they were made in the exercise of his own free will and choice.

Reliability, public policy and fairness

26. [26]
    There is no basis for excluding the evidence on the basis that it is so unreliable that it ought be excluded. As I have already stated, the applicant understood the nature of the questions that he was being asked and was capable of giving responsive and detailed answers including about how and why he lit the fire in a mattress located in the subject dwelling. The defendant also appeared to grasp the seriousness of the arson offence, explaining to Officer Hard towards the end of the interview that he understood his actions could have endangered the lives of others. And, as Dr Jenkins observed, the transcript indicated that the applicant was capable of giving an intelligible account of recent events in his life.^[26]

27. [27]
    Notwithstanding that an admission may be apparently reliable and voluntarily made, the Court still retains the discretion to exclude it in circumstances where it is in the interests of justice and/or it would be unfair to the person charged.^[27]In R v Swaffield,^[28] Brennan CJ said:

“... the purpose of the exercise of the fairness discretion would be to constrain the police or other law enforcement officers in their dealings with a suspect, so that the suspect should be fairly treated in the investigation.  If a suspect were unfairly treated by the employment of illegal or improper methods and a confession were thereby obtained, the Court would reserve a power to exclude the confession from evidence and thereby deprive the police or law enforcement officers of the fruit of their legal or improper methods.

...  The purpose is, of course, to safeguard a person from the unfairness of using his confession in evidence against him at his trial.  The relevant unfairness is not so much in ‘the use made by the police of their position in relation to the accused’ ... but in the admission into evidence against an accused of a confession obtained by improper or illegal means…”

28. [28]
    In considering the respective discretions concerning public interest and unfairness, Brennan CJ in R v Swaffield^[29] went on to say:

“Of course, the two distinctions do overlap and in a sense it is immaterial whether a trial judge considers the facts of a case under one heading rather than another.  But a consideration of the nature and degree of the conduct of law enforcement officers under the heading of public policy clarifies the significance of any illegal or improper conduct on the part of law enforcement officers.  If the confession is voluntary and apparently reliable, the only unfairness to an accused in admitting his confession against him is that he was induced to make the confession by conduct which is contrary to the statute or to public policy.  For example, if a confession is obtained in breach of an important statutory directive to law enforcement officers or by their deliberate or reckless disregard for the law or for proper standards of conduct, the public interest may require the rejection of a voluntary and apparently reliable confession.  In such a case, the public policy discretion will be exercised in much the same way as Dixon J contemplated in McDermott …..”

29. [29]
    In R v LR^[30], Keane JA (as he then was) made the following observations:

“The decision of the High Court in The Queen v Swaffield and in particular the joint judgment of Toohey, Gaudron and Gummow JJ, requires that the discretion to exclude confessional evidence should be exercised, where voluntariness is not in issue, by reference to considerations of reliability and respect for the right of an accused to stay silence.  As their Honours said:

‘… the purpose of that discretion is the protection of the rights and privileges of the accused.  Those rights include procedural rights.  There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.’

[…]

There may be cases where, despite a confession being obtained in breach of the requirements of the PPR Act, there is no real reason to doubt that the accused was willing and able to give a reliable account of events.  This case was not such a case.  In my respectful opinion, the learned trial judge should have exercised his discretion to exclude the confession.”

30. [30]
    For the reasons already given, I am satisfied that Officer Hard was not in breach of s 422 of the PPRA.  I am also satisfied that he gave the appropriate warnings, which were understood by the applicant, before commencing the interview.  However, what is also tolerably clear is that if Officer Hard had, consistent with s 2.14.1(vi) of the Police Operations Manual, conducted a computer search of the applicant, he would have discovered that the applicant was a person who had a impaired capacity for the purposes of s 422 of the PPRA.

31. [31]
    According to Officer Hard, at the conclusion of the interview with the applicant, he was doing some more paperwork in respect of the applicant’s offending when he discovered a “flag” which identified that the applicant was the subject of an Adult Guardianship Order.^[31]Officer Hard was prepared to accept that had he carried out that investigation prior to interviewing the applicant, he would have become aware of that supervision..  He also accepted that there was no reference to him doing “paperwork” after the interview in any of his earlier statements or his diary and/or other official documentation.  Notwithstanding these matters, I accept Officer Hard’s evidence that the flags were not detected until after the interview and that that was not the result of some deliberate untoward behaviour.

32. [32]
    I accept that there may have been a failure by Officer Hard to strictly comply with the requirements of the operations manual. However, this interview has to be seen in context. First, it is tolerably clear that Officer Hard was proceeding on the basis that the applicant had expressed a desire to be interviewed by the police.^[32]Second, it is clear that he did take some preparatory steps prior to the interview including obtaining “a few reports” concerning the applicant.^[33]I also have no reason to doubt that the applicant was willing and able to give a reliable account of his involvement in the subject charge.  The admissions were voluntarily made, are apparently reliable and are concerned directly with a serious offence.  Weighing the relevant competing factors, I have concluded that the breaches identified do not warrant grounds for exclusion on the basis of public policy and/or fairness.  Accordingly, the application ought be dismissed.

Order

33. [33]
    The application is dismissed.