DISTRICT COURT OF QUEENSLAND

1. [1]
   The accused applied to exclude a record of interview made with police officers on 10 January 2013, on the grounds of non-voluntariness (inducement by threats and promise) pursuant to s 10 Criminal Law Amendment Act 1894 (“section 10”); or alternatively, on an exercise of discretion (unfairness or public policy) pursuant to s 130 Evidence Act 1977; or on the ground that search warrant was not validly issued and evidence was unlawfully obtained.

Procedural history

2. [2]
   The accused was charged on 10 January 2013. A Registry committal was made on 29 October 2013 on charges of trafficking, possession of dangerous drugs and possession of a thing used in connection with a dangerous drug. All of the offences involved the dangerous drug cannabis sativa. An indictment was presented on 14 February 2014 charging trafficking, supply of the dangerous drug ecstacy (MDMA), producing a dangerous drug and possession of a mobile telephone.

Factual circumstances

3. [3]
   The police made application for a search warrant at an address of 14 Lanark Street, Kirwan, which was the residence of the accused’s mother and his step-father and where he was residing temporarily. The search warrant referred to possession and supply of dangerous drugs, namely cannabis. The application was made by Constable Bradford and police attended the address and executed the search warrant on 10 January 2013 upon the accused. The room occupied by the accused was in a building separate from the main house and a one week old infant child was also in that room. A search was conducted, the police took possession of a mobile phone and searched the messages on it and the accused subsequently accompanied the officers to the police station and participated in a record of interview.

The record of interview

4. [4]
   The record of interview contained admissions to the supply of the drug methyl-amphetamine and to production of cannabis sativa. The supply charge was supported by evidence of text messages found on the accused’s mobile telephone.

5. [5]
   However, the officer explained that he nevertheless exercised a “discretion” not to charge those offences, because ‘they may not have added to any penalty, given there was a trafficking charge made’.

6. [6]
   The record of interview, so far as is relevant and shortly after it started , commenced with the following questions and answers.

“BYE:    Okay.  Have you been interviewed by police in relation to any other matter within the last 24 hours?

TANNER:   No.

BYE:    Okay.  And as I … as you’re aware that we’re investigating some offences of supply of a dangerous drug namely cannabis and also possession of cannabis and some drug utensils.  …do you understand that?

TANNER:   Yeah.”

7. [7]
   The interview continued, so far as is relevant, in the following way (these extracts being what I have considered to be relevant to the issue on the application).

“BYE:    …are you taking part in this interview of your free will?

TANNER:   Yes.

BYE:    Has any threat or promise been held out to you to participate in this interview?

TANNER:   No.

BYE:    Do you understand…do you understand what I mean by threat or promise?

TANNER:   Yeah.

BYE:    Yeah?  And can you tell me in your own words what you understand of…the word threat?

TANNER:   What do you mean? Ah basically being told to do something or else I guess.

BYE:    Yeah.  Have I or any other police officer today done that?

TANNER:   No.

BYE:    Okay.  And in your own words can you tell me what the word promise means?

TANNER:   Promised anything for this interview.

BYE:    Have I or any other police officer done that today?

TANNER:   No.

BYE:    Okay.  And do you understand you are currently under arrest and you’re not free to leave?

TANNER:   Yes”.

……

“BYE:    …also a mobile phone due to some of the messages that were located on your phone and due to some other items in regard to some seedlings that were on a table in the outside area. You were placed under arrest for the supply and produce of a dangerous drug, namely cannabis.  Do you understand that?

TANNER:   Yes.

BYE:    And do you agree that so you come here today?

TANNER:   Yes.

BYE:    Thank you.  Alright….as I said earlier when we executed that warrant we located and seized some items which you have already been questioned about but we will go over them again…”

8. [8]
   It would be immediately apparent that the latter statement is potentially at odds with a previous question about whether the accused had been interviewed by police in relation to any other matter within the last 24 hours, although the word “interview” might not be used to include the questioning referred to subsequently in the record of interview by Bye.  The further relevant extracts are as follows:

“BYE:   The next item … we got two clear clip-seal bags…containing a quantity of seeds.  Can you tell me what…that item is?

TANNER:   Marijuana seeds.

BYE:    What were they – and what are they for? 

TANNER:   …I wasn’t using them but I guess I was so used for growing I guess.”

……

“TANNER:   I just put a bit of dirt in the bottom of the pot and put a bit of mulch.  Put the seed between the dirt and the mulch”

……

“TANNER:   Just been watering them…once a day.

BYE:    And what was your intention for planting the seed.

TANNER:   So I didn’t have to pay for a smoke any more.”

……

“BYE:    Our last item is a set of…silver digital scales…whose are they?

TANNER:   Mine….for weighing up marijuana…so I can separate it for myself.”

……

“BYE:    …So are you saying…these are used to weigh up cannabis…prior to supplying?

TANNER:   Yes.”

……

“TANNER:   ...doing marijuana runs…go round, I grab money and then I go and grab some weed and then I go back and take it to everyone…roughly an ounce a day…$50 for three grams.”

……

“BYE:    How long has this been going on for?

TANNER:   For the past six months, 12 months.”

……

“BYE:   …What about I’ve seen prior to the – your phone download which is being downloaded…at the moment there were some conversations there relating to obtaining some green or white; can you tell me what they were about?

TANNER:   …occasionally people send a message saying they’ve got some stuff…and the other people send a message asking if I’ve got it.

BYE:    When you’re saying stuff; what are you talking about?

TANNER:   …The speed.

BYE:    Are you saying speed are you referring to that as the white.

TANNER:   As the white would be, yeah.

BYE:   Have you ever supplied speed to another person?

TANNER:   Oh probably more in the sense of actually going and getting it for ‘em, then, yes, I have.

BYE:    And how many people have you done that for?

TANNER:   Probably one or two, that was it…a month or two ago, at a guess.”

……

“BYE:    So are you saying you’ve only supplied another person speed on one occasion about a month or two ago.

TANNER:   Yeah.

BYE:    Do you know speed by any other names?

TANNER:   Gear and white I guess, and that’s it…that’s the only three that I really know.

BYE:    Methyl-amphetamine, have you heard of that.

TANNER:   I thought that was pills.

BYE:    That’s MDMA.

TANNER:   Right.

BYE:    What I’m gonna do at this stage, I’m gonna suspend the tape.

TANNER:   Yeah.

BYE:    I’m gonna review your phone download.

TANNER:   Yeah.”

9. [9]
   There was a suspension of the record of interview from 1.10pm to 1:40 p.m. The record of interview then continued, so far as is relevant:

“BYE:    We suspended it at 10 past 1.  It’s now approximately half an hour later.  During that time has there been any threat or promise held out to you to participate in this interview?

TANNER:   No.

BYE:   By myself or any other police officer?

TANNER:   No.

BYE:   Have we offered you have we promised you anything?

TANNER:   No.

BYE:   And we haven’t threatened you with anything?

TANNER:   No.

BYE:   And we’ve covered that I’m happy that you understood the definition previously?

TANNER:   Yes.”

The pre-trial proceeding

10. [10]
    During the first day of the hearing on 03 June 2014 evidence was adduced on a voir dire from the accused, his mother Mrs Pattel, Senior Constable Bye and Constable Bradford. Counsel had filed written submissions. When the evidence on the voir dire had concluded Mr Collins raised a further potential issue for determination on the pre-trial hearing, namely the validity of the search warrant. The hearing was adjourned for that issue to be investigated and to permit Ms Heywood to call further evidence if she considered it necessary.

11. [11]
    There was a short directions hearing on 01 August 2014. Counsel filed written submissions. On 05 September 2014 further evidence was adduced on a voir dire from Senior Constable Carter and Constable Dean. Counsel made further oral submissions to complement their supplementary written submissions.

The search warrant

12. [12]
    A copy - albeit not signed nor sworn - of the relevant search warrant was tendered by the prosecutor on the second day of the hearing of the application. Counsel made submissions about the meaning of words in the search warrant. The issue really was whether there was a “sworn belief” expressed by the officer in the application for the search warrant, in the context of sources of information and reasons for belief being sworn.

13. [13]
    Rule 295(2) of the Uniform Civil procedure Rules (“UCPR”) refers to affidavits and statements of information and belief being admissible in an affidavit, if the deponent states the sources of information and reasons for the belief.

14. [14]
    Ms Heywood contended that there was no requirement for the search warrant to be sworn on ‘information and belief’. Rather, the information could be simply ‘declared’. She said that the expression ‘declared’ meant only that the officer concerned was ‘in receipt of the information’. Of course, the questions which immediately come to mind is why it was necessary for the officer to drive past the house if in fact he was not required to verify any information and form any belief; and more importantly, why the document was required to be ‘sworn’.

15. [15]
    Whilst this is an important issue that deserves judicial consideration and guidance to police officers, the primary basis of the application is the issue of voluntariness of the record of interview. Hence I will deal with the search warrant issue, as appropriate, later.

The evidence on the voir dire

1. (a)
   The accused

16. [16]
    The accused said he was awoken by police. His mother was nearby and the infant child was in the room that he occupied. He was wearing boxer shorts but subsequently got dressed. There were two officers, one being a Constable Bye and reference was made to searching the premises for marijuana. An old bong was found by the police. He said his phone was grabbed off the desk and he was asked if he had anything to declare. He told them there was a bong in the kitchen. Other items were found and a bag of seeds was located.

17. [17]
    The accused says that as the police moved from one room to another he was informed that “You realise that this is a room where a child sleeps and I have to bring Child Safety in”. He says he was told that if he made a statement to the police the seeds and reference in phone messages to methyl-amphetamine would be excluded. Subsequently he went to the police station and participated in the record of interview. He did so because he did not want to lose custody of his infant daughter. The police had said that if he did so they would not involve Child Safety.  He had never been seen or heard from Child Safety. He was not charged with possession of seeds or any charge in relation to the messages about methyl-amphetamine. 

18. [18]
    In cross-examination he said that he had only been asleep briefly after finishing a night shift at work. He was sure of what was said in the conversations and it all occurred before he went to a table in a patio area outside the building and before any video recording of the search was commenced. He said his partner was moving in that day with a view to re-establishing their relationship. He had on previous occasions participated in police interviews and responded to questions about that with the answer, “When someone is threatening my daughter I will say anything.”  He denied that he was not induced to cooperate in the way that he claimed. 

19. [19]
    In re-examination he said that the relationship with the child’s mother was, at the time of the hearing, at an end and that there was a custody issue being determined in the Federal Circuit Court.

3. (c)
   Mrs Pattel

20. [20]
    Mrs Pattel said that her son was asleep in her house when the police executed the search warrant. She was asked to leave the room where he had been sleeping. She next saw the police and her son together. The police had possession of a bong and a mobile phone. She heard a police officer (whom she described as being ‘bald’) say that they were at liberty to “bring family services in”. The police officer appeared to look at text messages on the mobile phone and again said they would “bring family services in”. She heard the police say the word ‘gear’ when looking at the messages. The police said a number of times that if the accused came to the station and made ‘statements’ they would not bring family services in. There was no conversation about ‘seeds’ or ‘cultivation’ between the police and her son in the lounge room when she was in there. She did not see any police officer with a recording device.

4. (d)
   Senior Constable Bye

21. [21]
    Senior Constable Bye did not have his personal recorder with him, despite being the senior officer present. He owned a recorder. The investigation was also a training vehicle for new officers and there was a real possibility that officers might need to talk to several persons who were separated from each other during the detention period, declared upon execution of the search warrant. There were two officers under training. He was the supervisor of Constable Bradford and he may have looked at the material said to have supported the application for the bench warrant.

22. [22]
    He said Constable Bradford had a video recording device attached to his clothing - a DVD record of the execution of the search warrant was played in court during the voir dire hearing.

23. [23]
    When Constable Bradford arrived at the granny flat area the accused was seated at a table on the patio outside. He had not been present when the accused was awoken by him. That part of the entry and search was not recorded. He said that he did not have any individual (that is, separate) conversation with the accused – he had no reason to do so. He located a water-pipe in the kitchen area of the granny flat during the search. He was aware of text messages being found on the mobile phone that indicated a supply of a dangerous drug. He said that Child Safety was usually contacted if there was concern about a child, but that was not the case here. He explained ‘child-in-danger’ reporting and agreed that he would be obliged to raise the matter with the Department of Child Safety or its equivalent. He agreed that a child in danger would be one that looked unwell or didn’t appear quite cared for as well as one exposed to other risk factors. He agreed that in some circumstances, reporting would occur if a child was in an environment where people were using illicit substances.

24. [24]
    In evidence Senior Constable Bye said that the accused had been arrested, for the supply charge at the house but not for the production charge. However in the record of interview he had said that the arrest was in respect of both offences. He said in evidence that that statement in the record of interview was an error. He charged the accused. Those charges did not include methyl-amphetamine or cultivation, despite the interview referring to those matters.

25. [25]
    Mr Collins in cross-examination suggested that the “training” aspect of the investigation caused Senior Constable Bye to create the scenario of a record of interview being conducted, in which one of the training junior offices participated. However, I do not accept that suggestion. A declining of an interview by an accused would provide a training experience of itself; and it seems to me to be a quantum leap to accept such a suggestion.

26. [26]
    I asked a number of questions of Senior Constable Bye. He informed me that he owned a personal recorder for use in executing his duties as a police officer, the purpose being to record all conversations with persons present. I asked him why he didn’t have one with him on the day in question and his answer was, “the practice of our office is the person who executes the warrant, who is the person who is going to be doing the questioning of the defendant is the one who carries the recording device.  Not all persons carry a recording device.” He told me that he was in charge of those who were on this training exercise with him and agreed that investigations such as this including the execution of a search warrant, police officers may be required to talk to a number of people who might need to be separated whilst they are being detained. He was asked if he was talking to someone whilst they were separated whilst being detained would he want to have a personal recorder to record conversations and he responded ”that can be done, yes”. When asked if it would be prudent to do that he responded “in the perfect world, yes.” 

27. [27]
    With respect to the record of interview Senior Constable Bye agreed that it contained a number of admissions to offences including admissions about supply of amphetamine which would have been sufficient to charge the accused with an offence involving that drug. He said he used his discretion not to charge. When asked what the discretion was based on he replied “I was aware that there was other offences that I could have charged the defendant, but I chose not to in that regard, due to the fact I charged him with trafficking, and I believe that the defendant may not have received any further penalty for those offences, so I chose not to go down that line.” He agreed that the trafficking was in relation to cannabis not methyl-amphetamine. He said that generally when he conducted records of interview he would ask questions about threat, promise or inducement at the commencement of an interview. He said that the accused was arrested at the residence. For supply and possession of a dangerous drug not supply and production, despite the record of interview containing the following statement:  “You were placed under arrest for the supply and produce of a dangerous drug namely cannabis.” He said that may have been a misuse of the word.

28. [28]
    Senior Constable Bye said that he just had a quick look at messages on the mobile phone, at the dwelling. He said that the messages located on the phone, amongst other things, were enough to make the arrest that he had referred to. He agreed that evidence about methyl-amphetamine and/or production not only arose from admissions made at the interview but also hard evidence of messages on the phone. He also agreed that after a suspension of the interview and when it resumed he went through the process of giving a warning again and also making a statement about whether any threat or inducement had been held out. He said that it was customary for him to do that.

5. (e)
   Constable Bradford

29. [29]
    Constable Bradford said the search and the investigation was also a training event. He turned on his recording device as he entered the house. It ceased recording after 30 minutes and he was unaware that it would do so. He could not recall what his colleagues did. He was not aware of any conversation about contacting government departments. He did not involve himself in the search. He spoke to the step-father of the accused (in the front house) and to the accused (on the patio). He did not enter the rear of the premises. It follows that he was not in a location where the alleged conversations occurred.

30. [30]
    The material upon which the search warrant was issued was given to him. He said that the information given to the Justice who issued the search warrant was not from his own knowledge. Rather he said “we get given information and we look through it with our senior officer”. He could not recall if it was Senior Constable Bye in this instant but all of the material placed before the Justice had been given to him by someone else.

31. [31]
    He said the following in cross-examination by Mr Collins on the first day of the hearing:

“Right.  So you weren’t able to verify that was accurate? – We drove past the house, I believe, to get a description of the house – and I believe that’s about all.  I can’t recall much.

All right.  And I don’t want you to go into any sensitive operational matters, but in so far as the materials which were placed before the justice for the justice to be able to have a reasonable suspicion which would have justified they provide a search warrant – you couldn’t verify any of that.  That had all been just been given to you by someone else – is that right? – Yes.”

6. (f)
   Constable Carter

32. [32]
    Constable Carter gave evidence and could not recall any mention of family services or child safety when the accused was spoken to at the house. In cross-examination by Mr Collins he said he had made two witness statements the last being the day after the first day of the hearing of this matter in June 2014. He had been asked for the purpose of that witness statement to refer to the locating of the mobile phone and as to whether he had any recollection of conversations involving child safety. He said he had not activated any recording device but agreed that it was proper to record or make any notes of conversations with persons of interest to the police. He agreed that the Operational Procedures Manual (OPM) has procedures if there is a child at risk in the course of an investigation. He agreed that there had been a baby in the room where the drugs were located but that there was no discussion about the fact that the child was there with the accused.

7. (g)
   Constable Dean

33. [33]
    Constable Dean had no recollection of any references in conversation to child safety or any other government agency. In cross-examination by Mr Collins he said that he did not activate a recording device but relied on Bradford’s recording. He did not recall speaking to the accused. He was not in a position to hear any conversation when the search warrant was executed.

Discussion 

1. (1)
   Voluntariness

34. [34]
    I am satisfied that the conversation included statements that amount to threats or inducements, on two bases: firstly, that Child Safety would not be involved if the accused made a statement at the police station; and secondly, that charges involving production and supply of amphetamines the latter being relevant to text messages accessed by the police on the mobile phone of the accused would not be made, if the accused made a statement at the police station.

35. [35]
    The accused in fact participated in a record of interview at the police station and made admissions against his interest. I am satisfied that he did so as a result of the threats and inducements made and not otherwise.

36. [36]
    I am satisfied on the balance of probabilities that the record of interview and the relevant admissions were not made voluntarily.

2. (2)
   Discretionary exclusion

37. [37]
    I do not need to consider the alternative grounds of an exercise of discretion. Nor do I consider that public policy considerations are material in my determining this matter.

3. (3)
   Statutory exclusion

38. [38]
    The court has a general discretion to exclude evidence in the interests of justice: s 130 Evidence Act 1937. Given the findings that I have made, it is not necessary for me to consider this ground of an exercise of discretion.

The validity of the search warrant

39. [39]
    In my view the evidence adduced on the second day of the hearing, including the tender of the search warrant material, do not improve the position of the prosecution so far as the issue of lawfulness of the search is concerned. Indeed, it seems to me that the search warrant was not lawfully issued because the officer making the request did not provide material to the issuing justice that had been sworn on information and belief in the application. The swearing of such a document is not a mere ‘declaration’. There is in my view no difference in swearing the application and the swearing of an affidavit that is subject to stringent requirements that state the source of the ‘information and belief’.

40. [40]
    This is an important matter that in another case may require more detailed consideration. However, I do not need to deal conclusively with this issue, beyond those observations, because the application has been determined on the issue of voluntariness of the record of interview.

Conclusion

41. [41]
    I am satisfied that the conversations between Senior Constable Bye and the accused were not recorded by electronic device or otherwise. I am satisfied on an assessment of the evidence that the content of the conversation was as described by the accused in evidence on the hearing.

42. [42]
    Constable Bradford used a recording device for part of the time. However, on his evidence he was not recording any of the conversation referred to by the accused.

43. [43]
    I note that Child Safety (which has responsibility for children) did not subsequently become involved with the accused; that the charges relating to production of or supply of amphetamines were not made (albeit they subsequently were added by the ODPP on the indictment); and that the record of interview nevertheless contains admissions to these two offences.

44. [44]
    The record of interview is excluded.

Orders

1 Application granted.

2 Evidence in a record of interview between police and the accused on 10 January 2013 is excluded.