DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant has been indicted on two counts of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, one count of armed robbery, two counts of deprivation of liberty, one count of breaking and entering premises and stealing and one count of unlawful use of a motor vehicle. All of the alleged offences occurred on 13 April 2011 in the course of the one incident which involved an armed robbery at the Tallai Country Club on the Gold Coast.

2. [2]
   This is an application pursuant to s 590AA of the Criminal Code (Qld) seeking the exclusion from evidence of the applicant’s recorded police interview which was conducted on 23 June 2011, on the basis that it was obtained unfairly.

3. [3]
   That interview was conducted with the applicant whilst she was remanded in custody on a number of unrelated charges including murder.

4. [4]
   The argument in support of the application is based on the following:

1. (a)
   that sometime prior to the date of the interview the applicant had, upon solicitor’s advice, told police that she was exercising her right to silence and did not wish to answer questions;

2. (b)
   that the applicant’s solicitor (Ms Debbie Kilroy) had also previously told police that her client should not be interviewed in her absence;

3. (c)
   that police lied to the applicant at the commencement of the interview by telling the applicant that her solicitor had contacted them the night prior to the interview and she was aware that police were coming to interview the applicant the next day; and

4. (d)
   that before the recorded interview commenced police told the applicant that her solicitor knew that they were going to interview her and that the solicitor had told the police officers that it was “fine for the defendant to speak to police without the solicitor being present”.

Summary of facts regarding offences

5. [5]
   On Wednesday, 13 April 2011, at approximately 10.45 pm, it is alleged that the applicant together with another male offender, tied up and robbed employees at the Tallai Country Club and stole alcohol after they were unable to access money in the safe. At the time of the offence both offenders were disguised by having t-shirts wrapped around their heads with only their eyes visible.

6. [6]
   One offender (alleged to be the applicant) was carrying a black sports bag whilst the co-offender held a fire-arm in one hand and a black fabric bag in the other. The offenders stopped two employees’ cars at gunpoint as the employees were leaving the club and the applicant allegedly then reversed both cars back into the car park and shut the gates. Both employees were then led back to the club and the offenders demanded to be told of the location of the safe.

7. [7]
   The female employee had her hands taped behind her back and both employees were then taken to the office where a demand was made for the safe to be opened. After the employees explained that they did not have access to the safe, the female employee was pushed to the ground, had her boots removed and her legs taped together. The male employee was also made to lie on the ground with his hands and legs bound together with tape.

8. [8]
   After both offenders rifled through draws in the office they stole approximately 10 bottles of spirits from shelving in the office, placing them in the black bag. They left after the male offender told the two employees to not move for at least half an hour. It is alleged that the applicant stole the female employee’s handbag from her car before leaving in the vehicle that was owned by the other employee.

9. [9]
   The male employee managed to free himself and he then removed the tape from his co-worker. They then activated a duress alarm and waited for the arrival of police. The stolen vehicle was located at Worongary the following day. A mobile phone, iPod and a battery charger had been stolen from that vehicle. The handbag was located by police and returned with no items missing.

10. [10]
    Police forensic examinations were unable to assist in the investigation.

11. [11]
    On 30 May 2011 police obtained a statement from a Chelsea Brown who lived with the applicant and others at a house at Nerang.

12. [12]
    On 21 June 2011 police obtained an addendum statement from Brown wherein she corrected some matters in her first statement and provided additional information. Part of this information included the allegation that the applicant had told Brown, on an occasion more than two weeks after 29 March 2011 and before 23 April 2011 (clarified, in a further addendum statement obtained on 21 September 2011, to be around a day or two after 14 April 2011) that the applicant and Ben Power “… went and done a job.”  Brown further alleged that the applicant said that the male and female there would not give them the combination to the safe and “… they only ended up getting alcohol.”

13. [13]
    After obtaining this addendum statement, police arranged for an interview to be conducted with the applicant on 23 June 2011. The admissibility of that interview is the subject of this application.

14. [14]
    The applicant was interviewed at Brisbane Women’s Prison on 23 June 2011 by Detective Senior Constable (DSC) Kevin Tudor and Detective Sergeant (DS) David Moore. The interview commenced at 9.02 am and concluded at 9.27 am. It was recorded on their digital audio device inside the prison. The applicant made full admissions to the offending, including driving both vehicles prior to the robbery, the robbery, entering one of the vehicles and removing the handbag, and driving the other vehicle from the scene.

Background and antecedents of applicant

15. [15]
    The applicant was 37 years of age at the time of the police interview and had a significant criminal history.

16. [16]
    That history revealed that prior to this alleged offending she had been sentenced by the courts on 19 prior occasions from 13 December 1994 through to 7 September 2010. Four of those appearances were for applications for or breaches of court orders. The remaining 15 appearances were for 13 drug related offences, 36 indictable dishonesty offences and four summary offences.

17. [17]
    The applicant was first sentenced to a term of imprisonment (six months suspended after 39 days) on 12 May 2006 and was sentenced to other terms of imprisonment on subsequent occasions.

18. [18]
    An analysis of the arrests of the applicant from 23 November 1994 to 8 December 2006 indicates that she participated in formal interviews with police and made admissions on the first 13 out of the total of 18 occasions that she was offered an interview by police. On the fourteenth occasion (3 January 2006) she participated in an interview and denied knowledge of the offence and was subsequently not charged. On the last four occasions the applicant declined to be interviewed.^[1]

19. [19]
    The applicant had been remanded in custody at Brisbane Women’s Prison after being charged with offences that occurred at the Pacific Pines Tavern on 29 May 2011, where a police officer was shot and killed.

20. [20]
    Prior to the 23 June 2011 interview, DSC Tudor and DS Moore had interviewed the applicant a number of times about the Pacific Pines incident. Those interviews occurred between 30 May 2011 and 2 June 2011.

The law

21. [21]
    In Cleland v The Queen,Gibbs CJ said:

“A confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or be silent.  But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he (or she) considers that it was obtained in circumstances that would render it unfair to use it against the accused.”^[2]

22. [22]
    It follows of course that a confession’s voluntariness is not necessarily relevant to the question of whether there are grounds for rejecting a confession as a matter of discretion.^[3]

23. [23]
    In R v Tietie(supra), Atkinson J at paragraph [28] states:

“For example, it is improper for a police officer to continue questioning a defendant when a defendant has said that he or she does not wish to further answer questions and any subsequent statement should be excluded.”

24. [24]
    Her Honour then set out the following statement by Brennan J in Duke v The Queen:

“If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.  Trickery, misrepresentation, omission to inquire as to material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification – to name but some improprieties – may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent.”^[4]

25. [25]
    In R v Szach, King CJ said:

“Such legitimate investigatory tactics are not to be confused with falsehood or dishonest trickery.  Honesty is to be demanded of the police and other law enforcement agencies at all times.  Falsehood, express or implied, or dishonest trickery must always bring the condemnation of the courts however worthy the end sought to be achieved by such methods.  The end can never justify such means, and the courts must be ever ready to use the discretion to exclude evidence obtained by such means, even if technically admissible, in order to preserve the stream of justice from pollution and protect the citizen from the possibility of oppression.”^[5]

26. [26]
    However, the High Court held in Van Der Meer v R that notwithstanding irregularities in the methods used by the police, the proper test of including a confessional statement is whether it would be unfair to the accused person to use his statements against him, not whether the police have acted unfairly.  In addition, there is a need to balance the public interest of ensuring that police have the freedom to conduct investigations and that people who commit criminal offences are convicted against the public interest of ensuring that defendants are treated fairly.^[6]Similar observations were made by Barwick CJ in R v Ireland.^[7]

27. [27]
    In R v Swaffield^[8]the High Court also observed that:

“The term ‘unfairness necessarily lacks precision; it involves an evaluation of circumstances’”.

The majority adopted the observations of Brennan J in Duke (as referred to in paragraph 24 above).

28. [28]
    The majority in Swaffieldthen point out that Brennan J:

“… emphasised that the fact that an impropriety occurred did not carry the consequence that a voluntary confession must be excluded.”^[9]

29. [29]
    They also observed that Brennan J’s conclusion in Dukewas that:

“The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case.”^[10]

Of course, s 130 of the Evidence Act 1977 provides a statutory power for the court to exclude evidence if satisfied that it would be unfair to the person charged to admit that evidence.

30. [30]
    Finally, it is the defendant who bears the onus of establishing that there is a reason for a judge to exercise the discretion to exclude a confession from evidence.^[11]

Chronology of events leading up to the interview

31. [31]
    The day after police obtained the addendum statement from Brown, DS Moore and DSC Tudor contacted the Brisbane Women’s Prison and made a request to attend at the prison the following day for the purposes of interviewing the applicant. Arrangements were made to speak to her between 8.30 am and 9.30 am. DSC Tudor confirmed that appointment by facsimile sent to the prison at 10.09 am. At 12.55 pm he received an email from the Visits Processing Officer at the prison, confirming that the visit had been booked.

32. [32]
    The records of telephone calls from the Brisbane Women’s Prison show that at 4.53 pm that day (22 June 2011) the applicant telephoned the organisation “Sisters Inside” in an attempt to contact her solicitor.  It is clear that the applicant was aware that Ms Kilroy had some association with that organisation.  The person who answered that call (Yvonne) advised the applicant that Ms Kilroy was in Mt Isa on another case but that she (Yvonne) would email Ms Kilroy advising her of the reason for the applicant’s call.  The applicant told Yvonne that police were coming to interview her the next day and expressed some uncertainty as to whether she should participate in the interview.^[12]

33. [33]
    At approximately 5.44 pm that day an SMS message was sent from Ms Kilroy’s mobile phone in Mt Isa to DS Moore’s mobile phone.^[13]DS Moore then rang Ms Kilroy at 5.49 pm and left a 25 second message.  Records show that the next morning at 8.29 am, Ms Kilroy’s phone rang DS Moore’s phone and that call lasted 19 seconds.

34. [34]
    Detectives Moore and Tudor arrived at the Brisbane Women’s Prison at approximately 8.30 am on 23 June and the interview commenced at approximately 9.02 am and ended at 9.27 am.^[14]Prior to the commencement of the interview the applicant signed a document entitled “Prisoner Consent to be Interviewed”.^[15]That document stated that the purpose of the interview was:

“Further interview re armed robbery at Pacific Pines Tavern and armed robbery at Tallai Golf Club.”

The prison phone call

35. [35]
    During the telephone call to Sisters Inside, the applicant told Yvonne that police were coming to the prison the next day to interview her. She said that the police officers were the same two who had arrested her over the Pacific Pines incident and that she didn’t know why they wanted to speak to her because she had done everything that they had asked of her. She also indicated that previously two different officers had wished to question her but she refused to participate. The applicant asked Yvonne if she should tell the police that she did not wish to answer any questions and that they should make another time to see her when her solicitor can be present. Yvonne (who was not a lawyer) quite properly did not offer any legal advice, but she told the applicant that she would immediately email Ms Kilroy and advise her of what was happening and that she would expect that Ms Kilroy would ring one of the police officers involved and tell them that no interview was to take place in her absence. Yvonne also supplied Ms Kilroy’s mobile phone number to the applicant and advised her that she could telephone Ms Kilroy early the next morning.

36. [36]
    Yvonne did not give evidence and Mr Kilroy could not recall whether she received such an email from Yvonne or not, although she acknowledged that Yvonne was an experienced and reliable employee. Hence, there is no direct evidence as to whether such an email was sent.

Consideration of the issues

37. [37]
    The only evidence supporting the submission that the defendant herself had previously told police that she did not wish to answer any questions is found in the following passage:

“Now, had you prior to that date, that is, the 23^rd of June 2011, indicated to police that you would not answer further questions? --- Yes.^[16]

38. [38]
    No detail of when or where or how many times or to whom she spoke or whether others were present was given.

39. [39]
    Ms Kilroy said in evidence that towards the end of a re- enactment regarding the Pacific Pines incident conducted on 1 June 2011, both she and the applicant were informed by police that the police officer who had been shot during that offence had died from his injuries. Ms Kilory said that shortly after being given that information she advised the police that her client would not be participating in any further interviews, record of interviews, enactments or the like. She also said that those instructions were then conveyed to the police on numerous other occasions.^[17]

40. [40]
    When cross-examined, DS Moore however, said that he had no recollection of ever being told that the applicant would not speak to the police at any future time and that she did not wish to be interviewed again.^[18]DSC Tudor said that neither the applicant nor Ms Kilroy had ever told him or said in his presence that the applicant did not wish to answer further questions or be further interviewed.^[19]

41. [41]
    I note that towards the end of the interview on 1 June 2011 during the re-enactment, the following was recorded:

42. [42]
    That passage is quite inconsistent with the evidence of Ms Kilroy.

43. [43]
    Resolution of this dispute is however, unnecessary. Whatever discussions took place between the police officers and the applicant and or her solicitor prior to 23 June 2011 quite obviously only concerned the Pacific Pines incident. Accordingly, even if the police had been advised that the applicant did not wish to participate in any further interviews, that position only related to that incident. No advice had been given to the police regarding any other alleged offending behaviour and there is no evidence that the police were told that the applicant did not wish to be interviewed in relation to any other matter.

44. [44]
    Senior counsel for the applicant has submitted that the significance of such a distinction is dependent upon individual circumstances. He has submitted that in circumstances where the applicant is on remand on a charge of murder, for the police to go ahead and interview that person without ascertaining why she is now willing, contrary to earlier indications, to speak to them, constitutes a breach of regulation 35(3) and (4) of the Police Powers and Responsibilities Regulation 2000(“PPRA 2000”)^[21]. That regulation stated:

45. [45]
    No authority has been provided to support the proposition that if a suspect for an offence states on an earlier occasion that he/she does not wish to be interviewed regarding that offence, then the provisions of regulation 35(3) and (4) would have application regarding attempts to question that person on a later occasion about a totally unrelated matter.

46. [46]
    That absence of authority is not surprising. In this matter, the applicant at no stage during the interview said that she did not wish to answer any questions. Furthermore, I can’t discern any legislative impediment to the police seeking to interview her regarding this matter in the circumstances.

47. [47]
    Accordingly, I can perceive of no unfairness to the applicant for this reason and there has been no breach of regulation 35(3) and (4) of the PPRR 2000.

48. [48]
    It has also been submitted on behalf of the applicant that unfairness arose as a consequence of the police officers alleged untruthfulness when they told the applicant at the commencement of the interview that her solicitor had contacted them the previous night and was therefore aware that police intended to interview the applicant the next day. That part of the interview is repeated below:

49. [49]
    In evidence before this court, Ms Kilroy said that she had no recollection of having been told (either personally by Yvonne or by email or by message left on her phone) that the police intended to interview the applicant the following day. She was also unable to offer any evidence as to why she texted DS Moore’s phone at 5.44 pm on 22 June.  The details of that text were not able to be recovered.  She also could not remember why she rang DS Moore at 8.29 am on 23 June.  In fact she could not remember that phone call at all.^[23]

50. [50]
    DS Moore was also unable to remember the content of Ms Kilroy’s text message.^[24]He said however that immediately after receiving that message he rang DSC Tudor to ask if he had contacted Ms Kilroy to advise her of their intentions to interview her client the next day.  When he was advised by DSC Tudor that that had not been done, DS Moore then rang Ms Kilroy and left a message on her phone to that effect.^[25]Ms Kilroy could give no evidence to the contrary as she was unable to recall that message.

51. [51]
    Neither police officer gave evidence regarding the phone call from Ms Kilroy at 8.29 am on 23 June, hence there is no evidence as to the purpose or content of that phone call.

52. [52]
    In evidence before this court, DS Moore said that he and DSC Tudor had assumed, because Ms Kilroy had texted DS Moore late the previous afternoon and because DS Moore had left his message on Ms Kilroy’s phone shortly thereafter, that she was aware of their intentions for the following day, hence DSC Tudor’s comment at the commencement of the interview that “she knew we were coming to see you today”. DSC Tudor was not questioned regarding this issue.

53. [53]
    In all of the circumstances, I do not accept that DSC Tudor was intentionally trying to mislead the applicant when he made that comment. The claimed assumption does not seem unreasonable and one can readily understand how it was formed, although DSC Tudor should have been more careful in ensuring that the information that he put to the applicant was accurate. That inaccuracy however, upon a full consideration of all of the circumstances, does not in my opinion, result in an unfairness to the applicant such that the otherwise voluntary confession should be excluded.

54. [54]
    That is particularly so given that the police appropriately warned the applicant at the commencement of the interview and advised her that the interview would be delayed for a reasonable time if she wished to have a support person, including her solicitor, present. Furthermore, the applicant had a lengthy history of participating or refusing to participate in police interviews and is unlikely to have been unfairly induced or tricked into participating in the interview by virtue of that comment.

55. [55]
    That comment may take on a more persuasive and sinister character however if the allegation that the police told the applicant before the commencement of the recorded interview, that Ms Kilroy had told them that it was fine for the defendant to participate in such an interview in her absence, is accepted. In fact, the applicant attested that she only participated in that interview because she believed what she was told by the police in that regard.

56. [56]
    In evidence the applicant said:

“Now, can you take us through, Donna, bit by bit, what your contact was with them and what they said to you, and what you said to them, of course? --- When I got up to the visits area, they were coming, and before we even got into the room, they said to me that they – they were there to ask me about another crime, and they said to me that Debbie – they’d spoken to Debbie Kilroy and told her that they were coming in to see me, and she had told them that that was fine.  And then they told me that she couldn’t be there because she was away on – on another – on another business thing and that she said it was fine for me to speak to them.

OK.  And did you believe them? --- Well, yeah, because they told me that she was away.  So I figured that they must have been in contact with her.

Had you yourself been able to contact Debbie Kilroy? --- No.

OK.  Now, leaping forward, would you have spoken to them if they hadn’t told you that they’d spoken to Debbie Kilroy ---? --- No.

--- and it was OK? --- No.

Why? --- Because I was instructed not to speak to them at all without her present.

OK.  Now, Ms McAvoy, what else did they say to you in that preliminary period? --- When I said to them no, that I didn’t want to speak to them because Debbie wasn’t there, they – they were like, come on, you’re not a hard cunt, you know?  You can speak to us.  Don’t become someone who’s hard just because you’re in jail now.

Did they tell you what they wanted to speak to you about? ---  Yeah, about another armed robbery.

How are you feeling at this stage? --- I was a bit scared.

Why did you speak to them? --- Because they told me that Debbie had said that it was OK to speak to them.

And then you made full admissions to that robbery? --- Yep.^[26]

57. [57]
    DS Moore gave evidence that neither he nor DSC Tudor told the applicant that they had spoken to Ms Kilroy and that she had said that it was fine for them to interview her client.^[27]DSC Tudor was not questioned on this topic.

58. [58]
    Of relevance to the determination of this dispute is the fact that towards the start of the interview DSC Tudor asked the applicant if she wanted her solicitor to be present and a short time later asked the applicant if she was happy to speak to police without her solicitor being present.^[28]On both occasions the applicant indicated that she did not wish to have her solicitor present and did not make any comment to the effect that the police had already told her that Ms Kilroy had said that it was fine to do so. Such an omission is surprising in the circumstances.

59. [59]
    Furthermore, at the commencement of the interview DSC Tudor asked the applicant if she agreed that the police had told her before the interview commenced that her solicitor had contacted them the previous night as she somehow knew of their intended visit the next day. The applicant agreed with that being an accurate summation of the conversation. If the police had said something different only a few moments earlier, given the applicant’s experience with police, it would be reasonably expected that she would immediately correct the error.

60. [60]
    It has been submitted that the mere fact that she agreed to participate in an interview in such circumstances is suggestive of her having been tricked into doing so. I disagree. The applicant has participated in many police interviews over the years. Also, in her conversation with Yvonne the previous afternoon, the applicant did not say that she wouldn’t participate, rather she said that she couldn’t understand what they would want to talk to her about given her recent co-operation.

61. [61]
    The applicant carries the onus of proof in this application. Her lengthy criminal history involving offences of dishonesty makes her task of satisfying that onus of proof even more difficult in circumstances where the only evidence upon which she relies is her own testimony. Even if I put the issue of her criminal history to one side, I nevertheless find her evidence on this point to be unpersuasive particularly given the evidence of the police officers and the comments made by the police and her during the recorded interview. I am not therefore persuaded that the police officers made the pre- interview comments as alleged.

62. [62]
    Accordingly, I am not satisfied that the police officers have acted inappropriately or in any way that has resulted in an unfairness arising of such a nature that would justify or require the exercise of the discretion to exclude the interview from evidence.

Order

63. [63]
    The application is dismissed.