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R v Harman QDC 239
DISTRICT COURT OF QUEENSLAND
R v Harman  QDC 239
GARRY PETER HARMAN
Pre-trial application pursuant to section 590AA
18 September 2015 (Order)
24 September 2015 (Reasons)
District Court at Brisbane
10 and 18 September 2015
Long SC DCJ
The application is dismissed.
CRIMINAL LAW – EVIDENCE – ADMISSIONS – vOLUNTARINESS – where applicant seeks exclusion of evidence in the form of a field tape recording and assertions made to police officers at the scene of an arson investigation – whether on the balance of probabilities the admissions upon which reliance is sought to be placed were made voluntarily having regard to the state of intoxication of the applicant at the time
CRIMINAL LAW – EVIDENCE – ADMISSIONS – dISCRETIONARY EXCLUSION – whether the court should exercise its discretion to exclude any of the evidence, having regard to the public policy considerations identified in Bunning v Cross or any unfairness in the in the use of the evidence against the applicant such as to warrant exclusion of it
Evidence Act 1977 s 130
Police Powers and Responsibilities Act 2000 s 415 and s 423
Bunning v Cross (1978) 141 CLR 54
Duke v R (1989) 180 CLR 508
Police v Dunstall  HCA 26
R v Batchelor  QCA 246
R v Lee (1950) 82 CLR 133
R v LR  1 Qd R 435
R v Sica  QSC 5
R v Swaffield (1998) 192 CLR 159
Sinclair v The King (1946) 73 CLR 316
State of Western Australia v Sillich  WASCA 135
Van der Meer v R (1988) 62 ALJR 656
J Crawford for the appellant
PJ McCarthy for the respondent
Richard Gray & Associates for the appellant
Office of the Director of Public Prosecutions for the respondent
- On 10 September 2015, the Court heard the application made by the applicant for a pre-trial ruling that evidence in the form of a recorded “field interview” on 28 September 2014 be excluded in the applicant’s forthcoming trial in relation to a charge of arson and which was then listed in the week commencing 21 September 2015. There was a secondary aspect to the application which sought the editing from the record of a subsequent formal interview, conducted with the applicant on 29 September 2014, of all references to the earlier field interview. That secondary aspect of the application was not separately opposed, in the sense that the respondent conceded that, if the primary application succeeded, the editing that was sought should also occur.
- On 10 September 2015, the application was only pursued in respect of the recorded field interview and the relevant evidence was placed before the Court in the form of written statements (including transcripts of both the field and formal interviews) and a disc containing the recording of the field interview.
- After the parties were advised of an intention to give a decision on that application on 17 September 2015, it was communicated to the Court that the prosecution had just disclosed additional evidence that was of relevance to the application and accordingly this application was relisted for further hearing on 18 September 2015 and, was enlarged to also include the interactions of police with the applicant, at the scene of the arson, then under investigation on 28 September 2014.
- Although other contentions and considerations were raised in the applicant’s written outline of submissions, as the matter was argued and pressed, the issues for determination are as to whether the respondent has established on the balance of probabilities that the admissions upon which reliance is sought to be placed, were made voluntarily and, if so, whether the applicant has persuaded the Court to exercise its discretion to exclude that evidence, having regard to the public policy considerations identified in Bunning v Cross.It was also identified that there would be need to consider the “Lee discretion”, as it was recently referred to by the High Court in Police v Dunstall.
- The underlying consideration in relation to each question is the state of intoxication of the applicant when he interacted with police at the scene of an arson that was under investigation, and immediately thereafter. Particularly in relation to the exercise of discretion, it is necessary to consider the application of s 423 of the Police Powers and Responsibilities Act 2000 (“PPRA”), which provides as follows:
“423 Questioning of intoxicated persons
- (1)This section applies if a police officer wants to question or to continue to question a relevant person who is apparently under the influence of liquor or a drug.
- (2)The police officer must delay the questioning until the police officer is reasonably satisfied the influence of the liquor or drug no longer affects the person’s ability to understand his or her rights and to decide whether or not to answer questions.”
- After the further hearing of evidence and submissions, on 18 September 2015, the application was dismissed in the following terms (with the publication of these reasons to follow):
“In this matter, the application will be dismissed. I am satisfied, on the balance of probabilities, that the admissions made by the applicant on 28 September 2014 and as evidenced by what was heard by Senior Constable Davis and Detective Ibbott and recorded in the field interview, were made voluntarily, and I am not satisfied that any of that evidence should be excluded in the exercise of discretion either on public policy considerations or having regard to any unfairness in the evidence being used against the applicant at trial.”
- The applicant is charged with the offence of arson of the dwelling house, at which he was residing on 28 September 2014. The prosecution case is that apart from any admission made by the applicant, investigations at the residence disclosed that there were two apparently unrelated seats of fire in the residence. Further, the prosecution case is premised on observations indicative of there being human involvement and deliberate, rather than accidental, ignition at both seats. In her statement Detective Senior Constable (“DSC”) Ibbott observed that, in respect of the front bedroom (as it was referred to on the application) and which had been extensively damaged by fire, she observed, on a cabinet that was outside the French doors that led to this room, a wad of tissues and a number of burnt matches on top. In another bedroom (referred to as the third bedroom), she observed (as demonstrated in the photographs marked as Exhibit 3) a largely unfurnished room with a burnt circle in the middle of the room that had electrical cords coming from it and an unlit match on the floor under a cord. It had the appearance of being a burnt electrical blanket but it was situated in a position where it was not apparently possible that it had been connected to a power source. She further observed a black-coloured Samsung mobile phone on a chair in that room and a smoke alarm, in a smashed state, and detached battery, on the floor of this room and she described that it appeared to have been removed from the wall and smashed on the floor.
- It can also be noted that the observations of the police scientific officer, Mr France, are to similar effect and also to the effect of pointing out the apparent lack of connection between the two seats of fire. It can be noted, however, that there is no direct evidence on the prosecution case as to how each point of ignition occurred, including as to whether or not any particular accelerant was involved.
- In terms of the interactions of the investigating detectives with the applicant, DSC Ibbott described in her statement that after making an inspection of the building and the observations which have been noted, she and Detective Senior Constable (“DSC”) Mawdsley were outside the residence and on the front footpath, when:
“16. I then observed a male person approach us. He identified himself as Garry Harman, the defendant in this matter. Harman stated to DSC Mawdsley and me that he ‘deliberately set it on fire and I can show you where the petrol can is’.
- I observed Mawdsley then activate a digital voice recorder and caution Harman as to his rights in accordance with the Police Powers and Responsibilities Act. I heard Mawdsley tell Harman that we were investigating the offence of arson and I heard Harman say ‘I deliberately done it. My life is over.’ He also said that he could show us where some other stuff was.”
- In her evidence, DSC Ibbott disclosed that she had first seen the applicant on the footpath in the company of Senior Constable (“SC”) Davis, who introduced the applicant to her. She said:
“I heard him say – start off with, no one got hurt, did they? And then I heard him say, I deliberately set it on fire, and I can show you where the can is.”
- Subsequently she described that:
“… I saw Senior Constable Davis with a gentleman who I now know to be Mr Harman. Senior Constable Davis had a – one of those environmental shopping bags on him, and he said, this is Garry Harman, and that’s when I heard Garry Harman say what I heard him say, and then Detective Mawdsley activated the recorder.
- She also gave the following evidence:
“When you first made contact with Mr Harman, did you make any observations in relation to his appearance?‑‑‑He – to me, he was a little swayed on his feet. I could smell alcohol on him. I believed he had had some alcohol drinks. When he spoke, he appeared coherent, but there were words that were slurred, I did notice. In my opinion, I thought that he had had a few drinks, but, like I said, I thought he was coherent. He could understand what we were saying. He was walking relatively steady. A little swayed on occasion, but for the most part, he was mostly steady on his face.”
- In cross-examination, she confirmed that by the time she was introduced to the applicant, the fire was under investigation and a crime scene had been declared. Later she elaborated that:
“The smelling of the alcohol was when we were in the vehicle – in the car. I could smell the alcohol in the car. There’s a couple of words that he said – he sounded like he was – he might – he may have been slurring a little bit when he was speaking. Being unsteady on his feet was – I – I saw him when we were walking through the parkland through the long grass. He – he stumbled a couple of times in the – in the grass, but that’s – yeah. That’s about.”
“So when he talked about no one being hurt, was that a question? Did he ask you has anyone ‑ ‑ ‑?‑‑‑No. It was more of a statement. It was more like, no one got hurt, did they? It was more of a statement. Well, I took it as a statement”
- In his statement, DSC Mawdsley describes being on the footpath outside the residence, at approximately 7.45 p.m. on 28 September 2014, when he was approached by a uniformed police officer, who handed him a black Woolworths shopping bag and attracted his attention to the applicant, who was standing next to him. He described that the applicant identified himself by name and stated that he lived at the house, and DSC Mawdsley then described that:
“Harman was talking loudly without being asked questions. I activated a digital audio recording device to record what Harman was saying.”
- In his statement, DSC Mawdsley proceeds to then describe:
“8. At the commencement of activating the recording I cautioned Harman with his right to silence and right to speak with a friend, relative or lawyer. Harman continued to speak, and stated he wanted to show police where he had left the petrol tin.
- Harman appeared somewhat intoxicated, and because of this I did not ask him any direct questions relevant to the arson of 41 Cornwall Street. Harman volunteered information about where he had left the petrol tin and I asked him to direct us to that location.”
- That recording, in the main, then proceeds to record the interactions of the police with the applicant, in an attempt to locate that petrol tin by travelling with him in a police vehicle to a park. From the recorded conversation it is apparent that apart from locating a wine glass there, the petrol tin was not, due to the terrain and the darkness. However and as disclosed in their statements, the investigating police officers returned to the park, in daylight the next morning and located a backpack sitting in long grass at the far end of the park, which disclosed the following contents:
- a five litre fuel container,
- a pair of rubber thongs,
- a large bunch of tissues folded up,
- matches, and
- a key for a Ford motor vehicle.
- Otherwise, it is noted that after leaving the darkened park, on the night of 28 September 2014 and after the applicant declined an invitation to accompany the police officers to the Dutton Park Police Station, he was, at 8.07 p.m., arrested for the offence of arson and that subsequently, at that location and at 8.20 p.m., a portable alcometer was used to perform a breath test on the applicant and returned a reading of 0.173. DSC Mawdsley explained that whilst an alcometer is used by police to conduct roadside breath tests and to provide an indication of intoxication, it is not the same as a breath analysis machine which may be subsequently used, in such circumstances, to obtain a precise measurement of a person’s blood alcohol level.However, he described that he had used that instrument due to the applicant’s apparent intoxication and that, as a result, he “was deemed too intoxicated to be formally interviewed at that time”.The formal interview was not conducted until 1.05 a.m. on 29 September 2014.
- It is convenient to note the transcription of the beginning of the recorded field interview:
|“SCON MAWDSLEY:||Time is 19:45 hours, Sunday the 28th of September 2014. Mawdsley from Dutton Park CIB. Partner for tonight is Ibbott.|
|SCON IBBOTT:||[INDISTINCT] speak too.|
|Unidentified male officer:||Yeah mate [INDISTINCT].|
|Unidenfied male officer:||2-1-2-0-3.|
|SCON MAWDSLEY:||Yep and Ibbott, rego number?|
|Unidentified male officer:||Alright.|
|Unidentified male officer:||Awesome, thanks a lot.|
|SCON MAWDSLEY:||Thank you.|
|HARMAN:||I can show you, I can show you where I put the petrol and stuff.|
|SCON MAWDSLEY:||Hey Gary.|
|SCON IBBOTT:||Just before you go any further.|
|SCON MAWDSLEY:||Gary my name’s Kevin Mawdsley I’m a Detective Senior Constable from the Dutton Park criminal investigation branch. This lady here is Caroline Ibbott, she is also a Detective Senior Constable, we’re from the Dutton Park criminal investigation branch.|
|HARMAN:||I can go show you, I’ll go show you [INDISTINCT].|
|SCON IBBOTT:||Hang on a second, hang on a second.|
|SCON MAWDSLEY:||Alright. I just want to say a couple of things to you before you say anything okay. I am going to give you a warning. First warning is you have the right to remain silent. That means you don’t have to say anything answer any questions or make any statement unless you wish to do so. However if you do say something or make any statement it may be recorded and later used as evidence. Do you understand that warning?|
|HARMAN:||My lifes over so|
|SCON MAWDSLEY:||Do you understand that warning Gary?|
|HARMAN:||Yes, my life’s over.|
|SCON MAWDSLEY:||Okay. You also have another warning or another caution that you need to be aware of umm you have the right to telephone or speak to a friend or relative to inform that person of where you are and to ask that person to be present during questioning. You also have the right to telephone or speak to a lawyer of your choice and arrange or attempt to arrange for that lawyer to be present during questioning. If you wish to telephone or speak to any of these people questioning will be delayed for a reasonable time for that purpose. Do you understand that warning?|
|SCON MAWDSLEY:||You understand, okay excellent. Now we’ve been called here to this house fire at 41 Cornwall Street. We suspect this fire was, has been deliberately lit, so we believe it to be an arson offence. So Police, well Caroline and I specifically but because we’re detectives with the Queensland Police Service we’re investigating the arson of this house.|
|HARMAN:||I deliberately done it.|
|HARMAN:||I deliberately done it.|
|SCON MAWDSLEY:||You deliberately done it.|
|HARMAN:||Yeah I can say where some other stuff is as well.|
|SCON MAWDSLEY:||Okay, what do you mean by other stuff.|
|HARMAN:||My life’s over, oh just, I’m done. I can show you where some other stuff is [INDISTINCT].”|
- From there it can be noted that, in the main, the conversation proceeds in relation to arrangements leading to the applicant directing police to the darkened park. However and despite the assertion in DSC Mawdsley’s statement, it can be noted that this was precipitated by him asking the applicant to “show us where this petrol is” and that at a later stage of the recording and after he had been arrested and was being taken to the Dutton Park Police Station, the following passage is recorded:
|“SCON MAWDSLEY:||Why that place? Why 41 Cornwall?|
|SCON MAWDSLEY:||Why 41 Cornwall Street?|
|HARMAN:||Well that’s where I was living. [INDISTINCT] actually we’ll get, we’ll get into say it when you, when you formally arrested me we’ll get into the details. The reason I done it for before is because the little cunt excuse my language miss.|
|SCON IBBOTT:||You’re alright.|
|HARMAN:||There’s this guy that like well I rented off him and his, and his shot through without paying the rent.|
|SCON MAWDSLEY:||You rented off him but he shot through?|
|HARMAN:||I’ll get into that soon now.|
|HARMAN:||Why? Is it a known place is it?|
|SCON MAWDSLEY:||No, no, no. Oh well you said that’s where you’re living so I was just wondering why you set your own place.|
|HARMAN:||Yeah that’s the only reason I’ve done it. The only reason I’ve done it because [INDISTINCT].”|
- Otherwise, it may be noted that there are a number of recorded statements made by the applicant, which appear to be proffered by him and not the result of any particular question asked by a police officer and which, in various ways, may be taken to, at least, imply a further admission that he set fire to the house. As well, the following passage may be noted:
|“SCON MAWDSLEY:||Well in a moment I’m keen to find whatever it is that you wanted to show us. We, we started walking from your address back from Cornwall Street and then you said oh it’s pretty far. So we’ve jumped in the car rather than walking and I’m glad we did that because it, it is a, would have been a bit of a walk. Then I just want to, you said something about might be petrol or something.|
|HARMAN:||Well I’m going to go outside anyway so it doesn’t really matter. Might as well go and decide for a while before I’m there.|
|SCON MAWDSLEY:||First thing I want to do is find whatever it is you’ve left behind.|
|HARMAN:||[INDISTINCT]. It’s only petrol can.|
|SCON MAWDSLEY:||I still like to, I still like to find it.|
|HARMAN:||I’m going to go inside anyway so I may as well go in for a good time I guess. I never been inside before. Might as well die in there. Umm you know [INDISTINCT] Corso?|
|SCON IBBOTT:||Yep. Do we go down to Corso?|
|HARMAN:||Yeah. Yes please.|
|SCON IBBOTT:||OK so I’ll turn right here?|
|HARMAN:||Yep and I was going to take this, it’s only cause I got to, I feel really bad about what happened when I lit, [INDISINCT] I felt, I’m not, it’s not really me and when I seen there with all the lights up there, I was like.|
|SCON IBBOTT:||What isn’t really you?|
|HARMAN:||[INDISTINCT] Anything I set, I set, I set alight to the house but it would, they did bad things to me. I’ll tell you the rest of it later. Umm why should they get away with it? Like they walk away with nothing and I get like, I’m going to get at least one count of arson and I’ve never been in prison before and like and I was deliberately going to go down to 23 Launceston Street and light it up with petrol and accelerant. I hold me hands up I would have done.”|
- When dealing with the application for discretionary exclusion of evidence it will be necessary to return to some aspects of DSC Mawdsley’s evidence as to his dealings with the applicant and particularly as to a distinction he sought to draw between the formal interview conducted with the applicant at the police station and the interactions with him, prior to that.
- However, and for present purposes, the following may be noted as to the observations of DSC Mawdsley as to the intoxication or the appearance of the applicant:
“Are you able to – thinking of that time, when you activated the digital recorder, what observations have you made up to that time of the level of intoxication of Mr Harman?‑‑‑Well, mainly because of the way he was conducting himself. He was talking loudly and being boisterous and gesturing with his hands. He appeared intoxicated. He certainly wasn’t falling down drunk, but he was conducting himself in a manner consistent with a person who had been consuming alcohol that evening.
Did you make any observations of the manner in which he spoke to you or was able to speak to you?‑‑‑Yep. He was able to speak fine with me. He articulated himself well. And all my conversations with him – by me talking to Harman were all recorded.
And can you make any comment upon his motor skills that he was existing [indistinct]?‑‑‑Yeah. He was fine. Like I said, he was standing there. He wasn’t stumbling. He wasn’t swaying around. When we walked to the police car he walked fine. He was able to walk unassisted. Yeah. Like I said, he wasn’t someone who
was overly drunk, but certainly appeared like someone who had been consuming alcohol that evening.”
- Given the contents of DSC Mawdsley’s statement and as the application first came before the Court, the respondent conceded that here had been a breach of s 423 of the PPRA and sought to contend that there was no actual questioning, until DSC Mawdsley said: “what do you mean by other stuff?”However, it was also acknowledged that having regard to s 431 of the PPRA and on the face of the written materials, an implication may arise that DSC Mawdsley had determined the applicant was to be questioned, as a basis for cautioning him.
- When called, DSC Mawdsley explained that when he was introduced to the applicant by SC Davies and because he was then loudly talking, he obtained a recorder from a uniformed officer. He explained this was:
“And what was your reason for obtaining a recording advice at that time?‑‑‑Because he was talking. He was saying things, and he lived in the house, so prior to my attention being drawn to him being at the scene we had considered him as being someone we would like to speak to. And him speaking freely, not necessarily talking to anyone, just talking – they were things that I thought need to be recorded.”
- Although and because this evidence was given subsequently to the evidence of SC Davies and therefore expressly raised with him, DSC Mawdsley also said that earlier at the scene, he had spoken with SC Davies about checks on a motor vehicle located there and which had been confirmed as being registered to the applicant.
- SC Davies discussed performing various duties at the scene and that when he was in the company of Constable Maguire he saw the applicant. He gave the following evidence:
“And what drew your attention to Mr Harman at that time?‑‑‑He was walking towards us and we were, basically, setting up a crime scene, so obviously we were looking at the foot traffic. He walked towards us. As he got close I recognised him, and he spoke to me, and asked me if anyone had been hurt.
And were they the first words that were exchanged between yourself and Mr Harman?‑‑‑Yeah.
And did you respond to him when he said that about anyone being hurt?‑‑‑I asked him if he lived at that residence. I just said do you live here?
And did he reply to you?‑‑‑He responded yes.
And what did you say to him then?‑‑‑I then asked him if he knew what happened, and his response to that was yeah, I did it.
Prior to this conversation were you aware of any connection between Mr Harman and that residence that was on fire?‑‑‑There was a vehicle parked underneath the residence, I believe, that was registered to Mr Harman. Other than that I had not had any dealings with him at that address.
After Mr Harman indicated to you that he did it, what did you do?‑‑‑Detective’s Ibbott and Mawdsley had arrived just prior to him approaching us. I then left Mr Harman with Constable Maguire, walked over to them and said, basically, this guy lives here. I think he’s going to be able to help you out with your investigation.
How far away from yourself and Constable Maguire were these detectives when you went to walk towards them?‑‑‑Probably the same distance between you and I now.
So that’s probably about eight or nine minutes. Eight – my learned friend’s nodding her head. But some distance away. Did you say anything else to the detectives at that time?‑‑‑Not that I recall. I may have said I’ll bring him over, something like that. And I’ve walked back to Maguire, and then told Mr Harman come over and have a chat with these guys.
And did you remain with Mr Harman whilst he spoke to the detectives?‑‑‑Yes. Briefly, they were speaking to him, because he was going to go to the vehicle. Just as a matter of procedure he was given a pat down search. So I stayed there for that.
Are you able to comment upon your observations of Mr Harman at that time in terms of his level of intoxication?‑‑‑He seemed quite unsteady on his feet and I could smell liquor on him, and he was kind of dishevelled a little bit. I’d say he was at least moderately intoxicated at the time.
Are you able to comment upon the tone of voice he was using whilst he was speaking to you?‑‑‑I would have said it was just normal speech, having spoken to him previously. It was no different to just a normal conversation.
And when you walked over to the detectives could you hear whether Mr Harman continued to speak?‑‑‑I don’t recall that he did. So I couldn’t really comment. I couldn’t hear him speaking.
Was your attention on him at that time?‑‑‑No. I had my back to him walking towards the detectives.
You then after handing Mr Harman over to the detectives remained at the scene and continued to guard the scene?‑‑‑That’s correct.”
- Not everything that SC Davies described was confirmed by Constable Maguire. In particular, Constable Maguire did not hear the applicant say “I did it”.He also described the applicant as saying words to the effect of: “Oh no. I didn’t mean to hurt anyone”.However, it is apparent that the evidence of each of these officers related to just one aspect of their involvement in a dynamic situation at this location and where their respective involvements with the applicant otherwise came in the course of other duties and for present purposes, nothing of any substance turns on any differences in their evidence.
- For the admissions made by the applicant and upon which the respondent seeks to rely, to be admissible in evidence they must be regarded as having been given or made voluntarily. Where any question as to the voluntariness of those admissions arises, the prosecution must satisfy the court on the balance of probabilities that the admissions were voluntarily made.
- The question that arises here involves the application of the test of voluntariness recognised at common law and which is concerned with the exercise of a free right to choose as to whether or not to speak or make such statements.
- It is recognised that a state of intoxication may be relevant to that question and as summarised by Byrne J in R v Sica, it was concluded in Sinclair v The King that when “the degree of intoxication is so great as to deprive [the confessionalist] of understanding what he was confessing” a confession will be excluded as involuntary. However, his Honour also reviewed more recent cases, including State of Western Australia v Sillich and in which the issue was identified as to whether the state of intoxication was such as to make the person incapable of choosing whether or not to answer the questions or to understand the questions being asked, or as Buss JA observed:
“When the accused is intoxicated, to some extent, a confession will not be voluntary unless the evidence demonstrates that, on the balance of probabilities, the accused was capable of appreciating that he or she had a free choice as to whether to speak or remain silent and was capable of exercising sufficient volition to give effect to what he or she knew was this right.”
- In Sica and because the admissions in issue were not made to police officer, no reference is made to s 423 of the PPRA, or any earlier analogue of that provision. However, such a provision is referred to in R v LR,but in that case the issue was as to discretionary exclusion of evidence and not voluntariness. Accordingly, the references to Sinclair v R, in R v LR and to the effect that there had been an alteration in the law effected by s 254 (an earlier analogue of s 423) of the PPRA,must be regarded as referable to the yardstick to be applied to any issue of police impropriety or more generally as to issues of unfairness in the use of evidence against an applicant and not as directed at any different test to be applied on the question of voluntariness.The terms of s 423are not applicable to the issue of voluntariness.
- In the subject recording and when the breath test was administered to the applicant and a reading of 0.173 was obtained and after it was then explained to the applicant that he would be put in a holding cell, there was the following exchange:
|“HARMAN:||How long before I get interviewed?|
|SCON MAWDSLEY:||Well your level of intoxication is a little bit of an issue with that. I mean your conversing with us fine. I am surprised by the reading of this device. This thing’s not a hundred percent accurate, it just gives us an indication. We have some things to do, we can’t just sit around and wait for you to sober up but we do have other things to do. We need to get a crime scene warrant going, liaison with the guys at the scene, their’s still [INDISTINCT] there. Talk to our [INDISTINCT] etcetera. So we still, we still do have things as part of our investigation umm so once we’ve umm done sort of stuff we’ll check in with you again but umm.|
|SCON IBBOTT:||And give you time to.|
|SCON IBBOTT:||For your reading to come down a little bit anyway.|
|SCON MAWDSLEY:||Collect your thoughts and once you’ve had that time we’ll see if it’s appropriate to do an interview with you.”|
- The expressed surprise at a reading which would have particular significance, if the applicant had been found driving a motor vehicle, appeared genuine. Moreover, such surprise appeared consistent with the audio recording of the field interview. There was an absence of any particular indicia of any gross intoxication. For instance, no marked slurring of words or particular lack of intelligibility in what the applicant had said. It is true that he was distractible, somewhat garrulous and that not everything he said necessarily made perfect logical sense but then he was also in an obviously emotional state and the evidence suggests some effect of intoxication.
- The breath test reading is only some indication of such intoxication and not as to the any particular effect of it.It is recognised that questions of fact and degree will arise and that as is common knowledge, the effects of alcohol vary to significant extent from person to person.As Byrne J observed in Sica:
“An unguarded admission made under the disinhibiting effects of alcohol may be voluntary”.
- In the circumstances it should be concluded that it is more likely than not that the applicant had the capacity to understand what he was saying and that he was capable of appreciating his free choice as to whether to speak or remain silent and of exercising sufficient volition to give effect to his rights.
- From the recording, it may be noted that immediately after his rights were explained to him in accordance with the requirements of the PPRA, including a right to remain silent, the applicant indicated his understanding of those rights.Whilst there appeared to be no reason for doubting or questioning his response, the situation does not simply depend upon the answers of a person who was intoxicated to some extent. This is because it may also be noted that:
- (b)on the way to the park, there is the following recorded interchange:
|“HARMAN:||What will happen to me now?|
|SCON MAWDSLEY:||Well in a moment I am keen to find whatever it is that you wanted to show us. We, we started walking from your address back from Cornwall Street and then you said ‘oh it’s pretty far. So we’ve jumped in the car rather than walking and I’m glad we did that because it, it is a, would have been a bit of a walk. Then I just want to, you said something about might be petrol or something.|
|HARMAN:||Well I’m going to go inside anyway so it doesn’t really matter. Might as well go and decide for a while before I’m there.|
|SCON MAWDSLEY:||First thing I want to do is find whatever it is that you’ve left behind.|
|HARMAN:||[INDISTINCT] It’s only petrol cans.|
|SCON MAWDSLEY:||Well stop.|
|SCON MAWDSLEY:||I still like to, I still like to find it.|
|HARMAN:||I’m going to go inside anyway so I may as well go in for a good time I guess. I never been inside before. Might as well die in there. Umm you know umm [INDISTINCT] Corso?|
|SCON IBBOTT:||Yep. Do we go down to Corso?|
|HARMAN:||Yeah. Yes please.|
|SCON IBBOTT:||Okay so I’ll turn right here?|
|HARMAN:||Yep and I was going to take this, it’s only cause I got to, I felt really bad about what happened when I lit, [INDISTINCT] I felt, I’m not, it’s not really me and when I seen there with all the lights up there, I was like.|
|SCON IBBOTT:||What isn’t really you?|
|HARMAN:||[INDISTINCT] Anything I set, I set I set alight to the house but it would, they did bad things to me. I’ll tell you the rest of it later. Why should they get away with it? Like they walk away with nothing and I get like, I’m going to get at least one count of arson and I’ve never been in prison before and like I was deliberately going to go down to 23 Launceston Street and light it up with petrol and accelerant. I hold my hands up I would have done”; and|
- (c)also and when it became apparent that there was difficulty, in the darkened situation, in locating the items at the park, there was the following exchange:
|“SCON MAWDSLEY:||Now Garry, we’d like to go back to Dutton Park Police station.|
|SCON MAWDSLEY:||Umm and see if we can arrange a, have a bit of a chat about this in a more formal setting. Umm now you’re under no obligation to accompany us to DUT-, Dutton Park Police station voluntarily. Umm.|
|HARMAN:||Okay I’m staying home.|
|SCON MAWDSLEY:||As I said in the car, you haven’t been arrested, you haven’t been detained, you voluntarily offered to show us where a petrol tin was so.|
|HARMAN:||I’ll stay home then.|
|SCON MAWDSLEY:||Okay. Well what I’m about to ask you is are you prepared to (sic) us to Dutton Park Police station?|
|HARMAN:||No. I’ll stay home.|
|SCON MAWDSLEY:||You don’t want to come with us to Dutton Park Police station?|
|SCON MAWDSLEY:||Okay. The time by my watch seems to be umm I think I’ve got 8.06pm. Actually I’ll go from my iPhone.|
|SCON MAWDSLEY:||I got sorry 20:07 hours on Sunday 8th of September 2014. So at that time I’m not placing you under arrest for the offence of arson okay.|
|HARMAN:||Oh it might have been an accident or something.|
|SCON MAWDSLEY:||We’ll now go to the Dutton Park Police station.|
|SCON MAWDSLEY:||Okay. What’s this placed called? The, the Yeronga Corso way?|
|HARMAN:||The umm [INDISTINCT].|
|SCON IBBOTT:||Brisbane the Corso.|
|SCON MAWDSLEY:||Brisbane Corso.|
|SCON IBBOTT:||Brisbane Corso. [INDISTINCT].|
|HARMAN:||Can’t I just stay home?|
|SCON MAWDSLEY:||What street is that? Where is home for you? Is it still 41 Cornwall Street?|
|HARMAN:||Can’t I just stay at home?|
|SCON MAWDSLEY:||Umm not at the moment ‘cause you’ve been arrested.|
|HARMAN:||[INDISTINCT] Tomorrow. You can come by tomorrow.”|
- It may be noted that subsequently in the recorded formal interview which commenced at 1.05 a.m. on 29 September 2014 the applicant provided an account that the fire at 41 Cornwall Street was the consequence of him accidentally knocking over a candle on the bed in his bedroom and that when he woke up, the bed was alight and he panicked and left the house. He otherwise explained that he had been drinking wine over a period of days beforehand and how he had earlier come into contact with one of the police officers at the scene due to a complaint made against him by his former female partner and how he was annoyed about the other male tenant at the residence leaving him with the commitments under the lease, without notice.
An exercise of discretion to exclude?
- It should be noted that s 130 of the Evidence Act 1977 recognises the power “to exclude evidence if the Court is satisfied that it would be unfair to the person charged to admit that evidence” and as has been noted, the applicant particularly pressed for the exclusion of the admissions by exercise of discretion based on public policy grounds.
- In the joint judgment of Toohey, Gaudron and Gummow JJ in R v Swaffield,it was observed:
“ One matter which emerges from the decided cases is that it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues. The overlapping nature of the unfairness discretion and the policy discretion can be discerned in Cleland v The Queen. It was held in that case that where a voluntary confession was procured by improper conduct on the part of law enforcement officers, the trial judge should consider whether the statement should be excluded either on the ground that it would be unfair to the accused to allow it to be admitted or because, on balance, relevant considerations of public policy require that it be excluded. That overlapping is also to be discerned in the rationale for the rejection of involuntary statements. It is said that they are inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable. That rationale trenches on considerations of fairness to the accused. And if admissibility did not depend on voluntariness, policy considerations would justify the exclusion of confessional statements procured by violence and other abuses of power.”
- Also and as recently noted by the High Court in Police v Dunstall, there is a particularly recognised application of a “fairness discretion” according to the principles explained in R v Leeand which “forms part of the special body of rules applying to the admission of confessional statements”. Whereas, “the Bunning v Cross discretion” applies where “evidence has been tainted by illegality or impropriety on the part of the law enforcement authority” and upon a rationale that “is not so much a concern with fairness to the applicant as with the public policy of not giving the appearance of curial approval to wrong doing on the part of those whose duty is to enforce the law.”
- In R v LR and in a case that was focused on a question of discretionary exclusion of evidence, having regard to breaches of the PPRA, including a provision equivalent to s 423, Keane JA observed:
“ The circumstance that the record of interview was obtained in contravention of the PPR Act does not of itself mean that it should have been excluded by the learned trial judge. Illegality or impropriety on the part of law enforcement officers that results in the making of a confession merely enlivens a discretion to exclude the confession on the grounds of unfairness. The provisions of the PPR Act to which I have referred do not purport expressly to govern the admissibility of evidence, but the authorities suggest that they are to be ‘regarded as a yardstick against which issues of unfairness (and impropriety) may be measured’.
 The decision of the High Court in R v Swaffıeld, 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 silent. 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.’”
“The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. 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.”
- Earlier again in the same judgment in R v Swaffield and in specific reference to the decision in Van der Meer v R,as well as the same passage in Duke v R, it was also observed:
“ The term ‘unfairness’ necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear: ‘[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.’
 Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.”
- In respect of discretionary exclusion of evidence, the applicant bears the persuasive onus and the burden of proof, on the balance of probability, of facts that would justify such an exercise of discretion.
- In terms of any breach of s 423 of the PPRA, the applicant was able to point to the fact that DSC Mawdsley administered the breath test to the applicant and then delayed the recorded formal interview for some five hours and also that officer’s notation in his statement that, at the scene, the applicant appeared somewhat intoxicated and that because of that he decided not to direct questions relevant to the arson under investigation, to the applicant.
- Consequently, the respondent conceded that there had been a breach of s 423 of the PPRA, at the time of this recording and particularly in that the field interview had continued in pursuit of the location of the petrol and, as has been noted, did include some limited questioning in relation to the arson. However, there is some imprecision in this because the respondent, correctly, points to the evidence that the applicant was otherwise heard, at the scene of the arson under investigation and before the commencement of the recording, to be telling those present that he had deliberately set it on fire and could show where the petrol can was. Further, and in respect of the recording, the respondent relies upon the applicant volunteering the statement:
“I can show you, I can show you were I put the petrol and stuff”; 
Before anything was directed to him and further, that after he was then cautioned and advised of his rights, in the usual form, and before any question was directed to him, his immediate response was:
“I deliberately done it”.
Further, and only after DSC Mawdsley sought to confirm what he had said, the applicant immediately responded by saying:
“Yeah I can say where some other stuff is as well”.
- However, the evidence indicates that the spontaneity of this has to be viewed in the context that some impetus for the applicant’s further assertions might be seen in SC Davis’ question asking him if he knew what had happened. Further, and notwithstanding the imprecision in the evidence as to when there was an actual appearance of the influence of liquor or a drug in respect of the applicant, the preferable course that was adopted is to consider this application on the basis that s 423 was engaged and not complied with from the point that SC Davis asked that question of the applicant.
- As the respondent further pointed out, and as McPherson JA observed in R v LR,s 423 “is directed specifically to a case where a police officer ‘wants to question or to continue to question a relevant person’”. As was further noted by his Honour, it would not appear to be applicable to the instance of a confession or admission “spontaneously made to a police officer who had, when it was made, no wish to question or intention of questioning the person”. It was also noted by McPherson JA that such a situation had arisen in R v Batchelor,and also that in that case, the appellant had “in due course made clear that he was well aware of his rights”.
- The applicant sought to place emphasis upon the mandatory nature of the directive in s 423(2), when the police are dealing with a person “who is apparently under the influence of liquor or a drug”. However, and in addition to the aspect noted by McPherson JA, it may also be noted that the section applies to a desire to question or continue questioning “a relevant person”, and that concept is relevantly defined by s 415(1), as follows:
“This part applies to a person (relevant person) if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.”
- Further, it is of significance to note that the mandated delay in questioning is only “until the police officer is reasonably satisfied the influence of the liquor or drug no longer affects the person’s ability to understand his or her rights and to decide whether or not to answer questions”.
- It has to be noted that s 423 of the PPRA is not necessarily an easy provision for police officers to apply. On the one hand, it is an “appearance” that a suspect is “under the influence of liquor or a drug” that triggers the obligation to delay questioning. Although the concept of being under the influence of liquor or a drug has a particular statutory meaning in the context of policing the driving of motor vehicles,it is not the same concept which is engaged under s 423. This is because the concern is with such influence, insofar as it affects a particular person’s ability to understand his or her rights and to decide whether or not to answer questions. More particularly, the mandated delay in questioning is only required until the police officer is “reasonably satisfied” that such influence no longer has any such effect, rather than to any point where there is no affect or influence of liquor or a drug, at all.
- In this case, it might be observed that whilst this is a more stringent requirement than that applied in determining whether the applicant’s admissions were made voluntarily, had the position been, at least before the breath test was administered, that a police officer had asserted that he or she was reasonably satisfied that the applicant’s apparent intoxication was not affecting his ability to understand his rights and to decide whether or not to answer questions, similar considerations to those noted above in respect of the applicant’s capacity to have a similar understanding,may well have provided reasonable grounds in that regard.
- However, that was not the position presented on the face of the statement of DSC Mawdsley and in his evidence a somewhat contradictory complication was introduced. This is because DSC Mawdsley sought to introduce his understanding of a distinction between his investigations in the field and “formal questioning” of the applicant, as occurred in the early hours of 29 September 2014, at the Dutton Park Police Station. For instance, in cross-examination, there was the following passage:
“Right. And the only reason that you were recording what he was saying is because it was an interview?‑‑‑No. I don’t think it was an interview at all.
You were asking him questions. You asked him questions. You gave him warnings, didn’t you?‑‑‑His right to remain silent?
And his relevant cautions in relation to having a person with him?‑‑‑Yes.
To delay questioning?‑‑‑That’s part of the warning, yes.
But the purpose of the warning is so that the person can delay questioning?‑‑‑Yes, that’s right.
So you wouldn’t give a person a warning if you were not questioning?‑‑‑I wasn’t asking questions.
So why did you give him the warning?‑‑‑So that he was aware that he didn’t have to say anything if he didn’t want to.
Because you were questioning him?‑‑‑I don’t think I was asking him questions.
You asked him a question right at the beginning of the interview, practically immediately after you had given him his questions and warnings: “What do you mean by other stuff?” Didn’t you?‑‑‑Yes. Yes.
And are you suggesting that that’s not a question?‑‑‑I don’t believe it’s a question in respect to conducting a formal interview.
But it’s a relevant question for an investigation of an arson?‑‑‑Yes.
Which is recorded?‑‑‑Yes.
Which you know you’re going to rely on down the track when we come to press this matter at trial?‑‑‑Yes.
And, yet, you still insist that it’s not a formal question?‑‑‑I don’t believe it was a formal interview, no.
But you did recognise his level of intoxication?‑‑‑As I said before, he appeared to me as someone who had been consuming alcohol earlier in the evening.
And, in fact, when you got him back to the station, you delayed questioning him for five hours?‑‑‑ For a formal interview, yes.
But there was no reason to delay questioning when you had recognised that he was intoxicated at the scene?‑‑‑Again, I don’t believe the field recording is an interview.
So you’re under no obligation to delay questioning if it’s a field tape. Is that what you’re saying?‑‑‑I’m under an obligation to inform him of his rights and cautions, which I did.
But you’re not under an obligation to delay questioning?‑‑‑I don’t believe I have any obligation to consistently remind the person that he doesn’t have to speak to me.
But you would know that when someone is intoxicated, that they may require additional assistance to make up their mind about what they were doing or ‑ ‑ ‑?‑‑‑Yes. I don’t think I can be too clear about the fact that the field recording was not an interview.”
- Such a distinction cannot be accepted and is a mistaken understanding of the effect of s 423. That section is engaged when a police officer wants to question, or continue to question, a relevant person and s 415 makes a person a “relevant person” if he or she is “in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence” and the express exclusions in s 415(2) clearly relate to powers that might be expected to be performed in the course of a police investigation that would not constitute such a “formal interview” of the kind referred to by DSC Mawdsley. Clearly, the requirements of s 423 are capable of being engaged when dealing with a “relevant person” outside of a “formal interview” at a police station and once there is an observable appearance that the person is under the influence of liquor or a drug. In such circumstances the requirement of a police officer is to turn his or her mind to the test that is required under s 423.
- The circumstances of this case differ from those in R v LR, particularly in relation to the largely spontaneous nature of the applicant’s assertions to police officers, prior to and at the commencement of the recording made by DSC Mawdsley. In addition and unlike the position here, there was also in R v LR,a notation that the responses of that appellant “while generally responsive to the questions asked, teetered on the edge of incoherence”.
- Accordingly, this case is complicated by the considerations that, as was contended by the respondent and as far as SC Davis’ sudden and brief dealings with the applicant were concerned, the requirements of s 415 of the PPRA may not have been engagedand that in respect of the recording made by DSC Mawdsley and in the context of his explanation for commencing the recording and giving the cautions to him, the applicant made the critical admissions before any question was asked by a police officer. The apparent force of those contentions may be exemplified by understanding that there would at least have been very different considerations, if any, in respect of discretionary exclusion of his voluntary and largely spontaneous assertions as to the applicant’s responsibility for the offense of arson, if all that had happened was that a police officer had recorded what he was then saying at the scene.
- As to the public policy considerations, and notwithstanding the obvious legislative intent of providing for an important protection of the rights of a suspect in such circumstances, any unlawfulness or illegality, in the sense of noncompliance with s 423 of the PPRA, is properly to be regarded as more towards inadvertence or mistaken understanding of the nuanced requirements of this section, rather than any deliberate or reckless disregard of the law. Further, this occurred in the investigation of a serious offence and the actions of the police officers must necessarily be seen in the context of the particular circumstances that were presented to them. Such circumstances do not present the need to be concerned with giving curial approval to any particularly serious departure from legal requirements. In particular and although the approach of DSC Mawdsley did become more confused and indicative of lack of full understanding as to the operation of s 423, in his attempts to explain himself in evidence, it is to be expected that any misunderstanding, or lack of understanding, of the lawful requirements may be corrected by having regard to these reasons.
- Moreover, and in circumstances where, as has been decided here, the admissions were made voluntarily, it may be seen that the actions of the police have not been calculated to affect the cogency or reliability of the evidence obtained and, if necessary, it would of course be a question for a jury, in due course, as to whether the admissions are to be regarded as true.
- Further, and in the circumstances of this case, it should not be concluded that it is unfair for the prosecution to rely on this evidence, at the applicant’s trial.
 (1978) 141 CLR 54 at 77-80.
  HCA 26.
 T 2-59.39-45.
 T 2-28.2-3.
 T 2-28.25-28.
 T 2-28.34-41.
 T 2-32.27-32.
 T 2-29.23-25.
 Statement of DSC Mawdsley signed 10/12/14, .
 T 2-45.8-13 and statement of DSC Mawdsley signed 10/12/14, .
 Statement of DSC Mawdsley signed 10/12/14, .
 T 2-36.32 – 2-37.2.
 T 3.39.
 Cf: s 431 of the PPRA.
 T 2-37.4-8.
 Statement of DSC Mawdsley signed 10/12/14, .
 T 2-22.44 – 2-24.5.
 T 2-21.29.
 T 2-17.26.
Wendo v R (1963) 109 CLR 559.
 See: McDermott v R (1948) 76 CLR 501 and cf: Toflau v R (2007) 231 CLR 396.
  QSC 5 at -.
 (1946) 73 CLR 316, at 336.
  WASCA 135.
  1 Qd R 435.
 As above n 22, at - and .
 Ibid at .
 Or earlier analogue, such as s 254 and as set out at  in R v LR.
 T 21.40-22.1.
 It is different in respect of driving of motor vehicles, due to statutory prescription, see: s 79(1) & (3) of the Transport Operations (Road Use Management) Act 1995.
State of Western Australia v Silich  WASC 135 at  and R v Ostojic (1978) 18 SASR 188 at 196-7.
  QSC 5, at .
 T 3.14-20.
 T 6.49-56.
 T 10.10-20.
 T 11.46-12.45.
 T 16.29-17.32.
 i.e. as recognised in Bunning v Cross (1978) 141 CLR 54.
 (1998) 192 CLR 159 at .
  HCA 26, at .
 (1950) 82 CLR 133 at 159.
  1 Qd R 435, at 51-52.
 (1998) 192 CLR 159, at .
 (1989) 180 CLR 508 at 513.
 (1988) 62 ALJR 656, at 662 and 666.
MacPherson v R (1981) 147 CLR 512, at 519-520.
 T 2.29-30.
 T 3.29-35.
 T 3.37.
  1 Qd R 435, .
  QCA 246.
 See Transport Operations Road Use Management Act, s 79(1) and (3).
 See para  above.
 T 2-39.1-2-40.14.
  1 Qd R 435, at .
 In this regard it may be necessary to note the provision of s 8 of the PPRA.
- Published Case Name:
R v Harman
- Shortened Case Name:
R v Harman
 QDC 239
24 Sep 2015