R v Kennedy[2015] QDC 246

DISTRICT COURT OF QUEENSLAND

1. [1]
   The Applicant is charged with drug offences. He has brought a pre-trial application pursuant to s 590AA of the Criminal Code (Queensland) to exclude statements against interest made in the course of the execution of a search warrant and subsequent search of a residence where he was an occupier.

The search warrant

2. [2]
   The search warrant was made out in the name of another person, namely Michael Tyler, described as an occupier of a residence at 8 Olsen Place, Jubilee Pocket. The offence was stated to be one of stealing by Tyler of a Honda jet ski. The property described as being subject to the search was a vessel compliance plate for a jet ski and some black paint. The warrant was issued on 07 March 2014 and executed on that date. The Applicant was not named in the search warrant but was present in the residence. The person Tyler was not present at the residence when the search warrant was executed.

Evidence

3. [3]
   The Applicant was detained by the police. He was informed of his right to remain silent, told that he had a right to speak to a friend or relative but was not informed that he had a right to contact a lawyer. The latter omission is the issue in this Application and the omission is conceded by the respondent.

4. [4]
   When cautioned the Applicant was told by PC Constable Colley “That’s if we go to question you in relation to any offences OK?”

5. [5]
   I heard evidence from PC Constable Colley and from the Applicant, each on a voir dire. I also heard the “field tape recording” of the relevant part of the search of the premises, including the impugned conversations. 

6. [6]
   The Applicant participated in some initial questioning about the residence and about Tyler. A group of Police Officers then commenced a search of the premises. Some twenty minutes after the first conversations with the police, it is apparent that some drug production and associated items were found in a spare room in the residence. They are described by PC Constable Colley as “small chemical containers and a blue cooler water bottle on the top shelf of a cupboard.  Inside the blue cooler bottle it contains small pieces of glass where wrapped up in cloth and other unknown substances.” 

7. [7]
   The Applicant was taken to the spare room and further more specific questions were asked of him. He made some admissions. He was not warned again in accordance with the Police Powers and Responsibilities Act 2000 (“the PPRA”) and the Police Responsibilities Code 2012 (“the Responsibilities Code”). He once again was not informed of the right to contact a lawyer.

8. [8]
   The relevant conversation between PC Constable Colley and the applicant took the following form:

“Colley: Righto.  Jump up here for me John.  Just follow me around this and just come in here.  Just tell me who’s, who uses this room?

Applicant: Ah, I do.

Colley: You do?  What do you use it for?

Applicant: Ahh.

Colley: Is some of this stuff yours in here?

Applicant: Yeh.

Colley:  What stuff is yours?

Applicant: Umm.  The jackets, umm …

Colley: Is the majority of stuff in in this room yours?

Applicant: Yeh.

Colley: What’s not yours in this room?

Applicant: … the furniture.

Colley: The furniture?

Applicant: Yeh.

Colley: What about all the other items beside the furniture?

Applicant: What items?

Colley: Is the TV yours?

Applicant: The TV?  No.

Colley: Yep.  Does Michael also use this room?

Applicant: No.

Colley: No he doesn’t?  Alright.  Mate I’ve just got some items that I want to have a speak to you about.  Mate.  Mate, I’ve just got some items that I want to speak to you about.  What can you tell me about that item there?

Applicant: That’s a portable gas cooker mate.

Colley: What do you use that for?

Applicant: Camping.

Colley: Camping, righto.  Mate, there’s some other chemicals up on top of the TV.

Applicant: No chemicals mate.

Colley: Hey? 

Applicant: There’s no chemicals.

Colley: I’ll just get the other officer to show you.  What can you tell me about that?

Applicant: Acetone? 

Colley: Yep. What do you use that for?

Applicant: Cleaning stuff mate.  Aye, cleaning CDs, same as you use metho.

Colley: What’s that for there?

Applicant: What do you mean mate?

Colley: What’s in that?

Applicant: There’s nothing in it.  Water …

Police Officer: Plus the needle in there?

Colley: Mate, we’ve just found this so what can you tell me about that?

Applicant: Nothing.

Colley: Is this yours?

Applicant: Hey?

Colley: Is this yours?

Applicant: Yeh, the box is.

Colley: Yep, is that?  What can you tell me about that?

Applicant: Yep, that needle is mine.

Colley: It’s yours?

Applicant: Yep. 

Colley: What did you use that needle for?

Applicant: Injecting when I inject it.

Colley: Yeh, what sort of substance did you inject?

Applicant: Amphetamine.

Colley: Amphetamine and how long ago would you have used that?

Applicant: I don’t know, way over six months ago.

Colley: Yeh. I’ve just located this too …

Applicant: It’s all clean and everything.

Colley: What’s that?  Nothing in that?

Applicant: No.

Colley: How come there is stuff in there, like why would …

Police Officer: What would it be mate?

Applicant: Don’t know.

Colley: Did you place that stuff in there?

Applicant: No. 

Colley: And what’s this stuff here?

Applicant: That’s nothing mate.

Police Officer: Well there’s, there’s residue in the bottom.

Applicant: It’s glass thing like a syringe.

Colley: Ah yeh.

Police Officer: There’s white powders in there mate.

Applicant: There’s no, there’s no drugs in there.

Police officer: Righto mate.

Colley: Righto, do you know that it is an offence to umm fail to dispose?

Applicant: It’s glass mate.

Colley: Hey?

Applicant: It’s glass.

Colley: No, I’m talking about the needle.

Applicant: What needle?

……

Colley: Ok.  Mate I’m going to put this back up here ok?  I found it over there but I’ll … alright mate, come back out here and we’ll sit up on the couch hey?  Just have a seat back there for me.”

9. [9]
   There was some further conversation when both of them were seated elsewhere in the house but that related to needles and/or syringes found in a bag.

10. [10]
    Whilst at the residence several more experienced and senior police officers were present and interjecting in the initial conversation between PC Constable Colley and the Applicant, but did not refer to the omission by Colley or independently inform the Applicant of his right to contact a lawyer, despite the fact that they must have heard what PC Constable Colley had said by reference to the Responsibilities Code and ought to have realised his omission to refer to the right to contact a lawyer.

11. [11]
    PC Constable Colley subsequently obtained a “Crime Scene Warrant” pursuant to s 170 of the the PPRA with respect to an offence at the residence of “producing and possessing dangerous drugs”.  That Crime Scene Warrant was issued by a Magistrate on 10 March 2014.

12. [12]
    Subsequent forensic investigations revealed the following information relating to items found in the spare room in the residence: two latent fingerprints, one on the exterior of a butane gas stove and another on a butane gas canister removed from the stove, were located and have been identified as fingerprints of the applicant.

13. [13]
    Chemical analysis of items provided the following information: in the bottom of a drink esky where there was some residue there had been a chemical reaction which upon analysis revealed traces of methylamphetamine; in a plastic bottle there were traces of methylamphetamine in a residue of acetone; and in a plastic box containing stoppers and tubes, there was pseudoephedrine, a precursor to methylamphetamine in the production process; and traces of methylamphetamine.

14. [14]
    Hence this is not a case where the admissions against interest are the only evidence potentially implicating the applicant, although save for the two fingerprints there was no chemical residue information obtained from the butane gas stove or the butane gas canister.

15. [15]
    However, it is nevertheless a circumstantial case that the Applicant would have to meet. The admissions against interest would potentially strengthen that case and the explanations given by the Applicant (that the items were associated with camping or cleaning) might potentially be characterised as lies, the applicant having already given a false name when asked to identify himself when the police first arrived at the residence, but that he conceded when one or more other police officers who knew him as Kennedy, challenged him.

Legislation

16. [16]
    Section 5 of the PPRA provides as follows:

“5  Purposes of Act

The purposes of this Act are as follows—

1. (a)
   to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;

1. (b)
   to provide powers necessary for effective modern policing and law enforcement;

1. (c)
   to provide consistency in the nature and extent of the powers and responsibilities of police officers;

1. (d)
   to standardise the way the powers and responsibilities of police officers are to be exercised;

1. (e)
   to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act;

1. (f)
   to enable the public to better understand the nature and extent of the powers and responsibilities of police officers;

1. (g)
   to provide for the forced muster of straying stock.”

17. [17]
    Section 415 of the PPRA provides as follows:

“415 When does this part apply to a person

1. (1)
   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.

1. (2)
   However, this part does not apply to a person only if the police officer is exercising any of the following powers—

1. (a)
   power conferred under any Act or law to detain the person for a search;

1. (b)
   power conferred under any Act to require the person to give information or answer questions.

1. (3)
   … “

18. [18]
    Section 418 of the PPRA provides as follows:

“418 Right to communicate with friend, relative or lawyer

1. (1)
   Before a police officer starts to question a relevant person for an indictable offence, the police officer must inform the person he or she may—

1. (a)
   telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; and

1. (b)
   telephone or speak to a lawyer of the person's choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.

1. (2)
   The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person mentioned in subsection (1).

(3)-(6) …”

19. [19]
    Section 431(1) of the PPRA provides as follows:

“431 Cautioning of persons

1. (1)
   A police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code.”

20. [20]
    Section 26 of the Responsibilities Code provides, as far as is relevant here, as follows:

1. “(1)
   A police officer must caution a relevant person about the person’s right to silence in a way substantially complying with the following—

‘Before I ask you any questions I must tell you that you have the right to remain silent.

This means you do not have to say anything, answer any question or make any statement unless you wish to do so.

However, if you do say something or make a statement, it may later be used as evidence.

Do you understand?’

…

1. (4)
   If questioning is suspended or delayed, the police officer must ensure the relevant person is aware the person still has the right to remain silent and, if necessary, again caution the person when questioning resumes.

… “

21. [21]
    The right to communicate with a friend, relative or lawyer is also referred to in s 23 of the Responsibilities Code and hence is connected with the requirements of s 418 of the Act. Section 23 provides as follows:

“23  Right to communicate with friend, relative or lawyer

(1)  If a police officer is required to inform a relevant person of the matters mentioned in section 418(1) (a) or (b) of the Act, the police officer must inform the person in a way substantially complying with the following—

‘You have the right to telephone or speak to a friend or relative to inform that person where you are and to ask him or her to be present during questioning.

You also have the right to telephone or speak to a lawyer of your choice to inform the lawyer where you are and to arrange or attempt to arrange for the lawyer to be present during questioning.

If you want to telephone or speak to any of these people, questioning will be delayed for a reasonable time for that purpose.

Is there anyone you wish to telephone or speak to?’

(2)  If the police officer reasonably suspects the relevant person does not understand the advice, the police officer may ask the relevant person to explain the meaning of the information in the person’s own words.

(3)  If necessary, the police officer must further explain the information.

(4)  If the relevant person wants to speak to a lawyer, the police officer must, without unreasonable delay, make available to the person—

(a)  if the police officer has available a list of lawyers for the region and the person has not asked to speak to a particular lawyer—the list; or

(b)  a telephone directory for the region.

(5)  A police officer must not do or say anything with the intention of—

(a)  dissuading the relevant person from obtaining legal advice; or

(b)  persuading a relevant person to arrange for a particular lawyer to be present.”

Issues

22. [22]
    The grounds relied on by Mr McLennan are threefold: voluntariness, the fairness discretion and public policy.

23. [23]
    The applicant submitted that the admissions against interest should be excluded on one or more of those three grounds because of the failure of the police to observe the requirements of the Responsibilities Code.

The evidence on the voir dire

24. [24]
    PC Constable Colley conceded that he had failed to inform the applicant of his right to contact a lawyer. He said it was a simple error on his part. He was aware of the obligation and had been trained with respect to them. The more senior police officers with him did not advise him of the omission. He agreed that the applicant was a “suspect” with respect to the items that appeared to be associated with the production of a dangerous drug, located in the spare room. He denied any deliberate concealment of the offence being investigated being other than that referred to in the search warrant.

25. [25]
    In the course of cross-examination he was referred to documents from the DERIE Manual (the “Digital Electronic Recording of Interviews and Evidence Manual”), issued by the Queensland Police Service.  He agreed with those parts of the “Interview Reference Sheet” and its reference to the cautioning of all persons questioned for indictable offences, including the reference to the right to communicate with a lawyer.  He also agreed that the Manual provides that when field recordings (such as occurred here) are made, the relevant guideline under the interview reference sheet must be utilised. 

26. [26]
    It was put to the officer that he had failed to comply with the DERIE Manual [he responded that the applicant was detained and not under arrest]; it was put to him that the search was not empowered by the search warrant [the officer said that he had power to search the house]; it was put that the search warrant provided the power to detain in limited circumstances (listed under the warrant) [the officer agreed but said that the spare room and the property of the applicant had not been part of the initial search]; and it was put that the Code required a re-cautioning when the interview was delayed [the officer said he believed the applicant would have remembered the caution because of the relatively short time between those events].

27. [27]
    The applicant gave evidence that he believed the police presence was about the jet ski. He did not believe he was a person being investigated and the search was of no concern to him. He confirmed that he was never told about a lawyer and said that he would have called a lawyer if he had been informed. He asserted that he did not know about that right, otherwise. When he was asked to attend at the spare room he thought the investigation was still about the jet ski. If he had been told that he was being investigated in respect to drugs and had a right to consult a lawyer he would have done so, referring specifically to a lawyer, Ms Mead. If she had advised not to answer questions he would have taken that advice. When he was at the watch house he was told that he was being investigated about the production of a dangerous drug and when invited to participate in an electronic record of interview, he declined.

28. [28]
    In cross-examination he agreed that in the past, that is, before this particular search, he had been told by police that he had a right to contact a lawyer. He said he understood that he did not have to answer questions on this occasion. However, he asserted that he was “pressured” into answering questions, that he had been half asleep when the police spoke to him, that he had no phone, that he did not think that he was in trouble, he did not know anything about a jet ski and he had given a false name initially because there was an outstanding warrant for his apprehension and he was on a previously suspended sentence. He said that he had “come up” to this locality to “hand himself in”. He said that the answers he made about staying in the spare bedroom and the presence of some of his property in that room were true. 

29. [29]
    In re-examination he said that he had no opportunity to “go through” items in the spare room, piece by piece. 

Submissions

30. [30]
    Mr McLennan submitted that several breaches of the PPRA and Responsibilities Code have been breached by PC Constable Colley, including a delay between the caution about the right to silence and the questioning that took place in the spare room; and the failure to twice comply with the requirement about contacting a lawyer. 

31. [31]
    He submitted that the applicant was induced to participate in the questioning on the basis that he was being questioned in relation to the offence specified in the search warrant. Mr McLennan referred to a number of authorities dealing with the issue of voluntariness, including R v Tietie and Wong-Kee [2011] QSC 166. Mr McLennan directed my attention to statements of principle from well-known authorities that were cited and discussed in that case.

32. [32]
    With respect to the unfairness discretion, Mr McLennan submitted that one of, or a combination of some or all of, a number of factors meant that the admissions ought to be excluded on the ground of unfairness, namely:

3. “(i)
   Kennedy was told, and was given a notice to the same effect, that the police were investigating another man for a stealing offence and were searching for property in relation to that offence;

2. (ii)
   the warnings Kennedy was given were given immediately after reference to the stolen jet ski and it was not made clear that those warnings were applicable in relation to any offence, not just the offence being investigated;

2. (iii)
   importantly, Kennedy was never advised that he had a right to speak to a lawyer, in clear contravention of the PPRA and PRC;

2. (iv)
   a pre-condition was applied to the warnings, namely ‘That’s if we go to question you in relation to any offences okay?’;

2. (v)
   when that pre-condition was triggered upon the discovery of the drug-production items Kennedy:

2. (a)
   was not advised that the pre-condition was triggered and that the police were now go to question him in relation to drug production offences;

2. (b)
   was not informed of his right to a lawyer; and

2. (c)
   was not cautioned again in relation to his right to silence and his right to a friend or relative in contravention of r 26(4) of the PRC;

2. (vi)
   Kennedy was not informed before questioning commenced that he was being investigated for producing dangerous drugs and not in relation to the stealing offence on the search warrant; and

2. (vii)
   Kennedy was deliberately asked general questions locking him into answers about the bedroom before the police revealed the drug items that they had discovered.”

33. [33]
    Mr McLennan submitted that there was significance in the applicant having declined subsequently to participate in an electronic record of interview when he was at the police station. It was submitted that the investigation had covertly become one in respect of the offence of producing dangerous drugs and that an inference was open that but for the conduct of the police the applicant would not have made any admissions earlier at the scene had he understood that the investigation had moved in that way.

34. [34]
    With respect to the public policy discretion, it was submitted that if the evidence against the applicant had been unlawfully obtained, it would be necessary to weigh the competing public interests against the interests of the applicant and to consider whether judicial approval ought be seen to be given to conduct of police officers who have breached the obligations imposed upon them by the PPRA and the Responsibilities Code. 

35. [35]
    The Crown prosecutor Ms Cupina focussed her submissions on the unfairness and public policy parts of the application. I infer that she does not consider that any issue of voluntariness arises in the circumstances of the case.

36. [36]
    Ms Cupina, whilst conceding that there was non-compliance in respect of the failure to inform the applicant of his right to make contact with a lawyer, submitted that the breach was a mistake rather than a deliberate disregard of the obligation, the applicant had been advised of other rights which he chose not to exercise and the fact that he subsequently declined to participate in a record of interview demonstrated that he was aware of his right so to do. Further, she submitted that everything that had occurred within the house by way of conversation had been recorded on a field tape. The implication of that submission is that it would be difficult to conclude that the police had acted deliberately when they were tape-recording what was said to the applicant.

37. [37]
    Further, the applicant had on past occasions been informed that he could contact a lawyer (in respect to previous matters). Insofar as the cautions generally were concerned, there was no delay, there being no more than 20 minutes between the caution and statement by PC Constable Colley and the impugned questioning.

38. [38]
    Ms Cupina submitted that non-compliance by police with the obligation did not of itself warrant the evidence so obtained to be excluded at trial and that in balancing competing interests, an exercise of discretion should favour the right of the community to have serious offences prosecuted and tried and, therefore, allow the evidence to be adduced at the trial of the applicant.

Consequences of non-compliance

39. [39]
    There is no doubt that the intention of the PPRA and the Responsibilities Code is that police officers will comply with their requirements. That much is made clear by s 7 of the PPRA, which provides as follows:

“7  Compliance with Act by police officers

(1)  It is Parliament’s intention that police officers should comply with this Act in exercising powers and performing responsibilities under it.

(2)  For ensuring compliance with Parliament’s intention, a police officer who contravenes this Act may be dealt with as provided by law.”

40. [40]
    Mere breach of the statutory requirements is not usually the definitive issue. It is the question of unfairness to the accused that is critical. Section 7 of the PPRA contemplates disciplinary or penal consequences for non-compliance: R v Cho [2001] QCA 196 at [6]. 

41. [41]
    In R v LR [2006] 1 Qd R 435, Keane JA (as he then was) wrote that:

“[51]  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’.”

42. [42]
    His Honour then referred, at [52] and at [53] – [54] respectively, to The Queen v Swaffield (1998) 192 CLR 159; and to Van der Meer v The Queen (1988) 62 ALJR 656. His Honour also referred to Duke v R (1989) 180 CLR 508 (at 511 - 513).

43. [43]
    In R v Swaffield (supra), Toohey, Gaudron and Gummow JJ wrote, at [74]:

“One matter that 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.”

 Discussion

1. (a)
   Were the statements against interest made voluntarily?

44. [44]
    The starting point is that confessions made by a defendant will not be voluntary if the defendant’s free choice as to whether to speak is actually overborne by police conduct: McDermott v R (1948) 76 CLR 501, per Dixon J at 511; Collins v The Queen (1980) 31 ALR 257, per Brennan J at 307. Hence a court is required to assess a number of circumstances that provide the context in which the impugned confessions were made, including the conduct of the police and matters personal to the defendant, such as age, background and psychological status: Collins, per Brennan J at 307-309. To those circumstances can be added the defendant’s experience or familiarity with police investigation and questioning. Further, “statements will not be held to be involuntary simply because the defendant by nature or temperament is predisposed to confess or tell the truth”: Tietie and Wong-Kee, at [12], citing Collins, at 307.

45. [45]
    In Tietie and Wong-Kee both defendants were 17 years of age (adult age in Queensland but juvenile age in other jurisdictions) and had specific cultural backgrounds and circumstances that in combination contributed to their confessions being excluded, circumstances that are quite different to those of the applicant.

46. [46]
    The applicant said he was affected by reason of his having just woken up from sleep and by his awareness that the search warrant named Tyler and specified stolen property. He nevertheless was told, in effect, that he might be questioned if there was anything that implicated him in any offence.

47. [47]
    There is nothing in the field tape recording of the conversations between the police and the applicant that persuade me that his will was overborne in any material or relevant way or that he was induced to make the statements by the conduct of the police. The applicant had previous experience with police investigation, he had previously been informed of the right to contact a lawyer and he said that had he done so in this case and been advised (as was the most likely outcome of a contact with a lawyer) not to answer questions he would have exercised that right. He in fact exercised that right without, it seems, any contact with a lawyer at all when he was asked if he would participate in an electronic record of interview when he was at the police station, having been detained and taken to the police station as a consequence, as I understand it, of the outstanding warrant which had been a reason for his initial provision of a false name to the police.

48. [48]
    I do not consider that any of the conduct of PC Constable Colley or other police officers, constituted an inducement to make statements against interest. The ground of the application that relies on the issue of voluntariness has not been made out.

49. [49]
    Accordingly, it remains for me to determine whether I should exercise a discretion to exclude the statements against interest on the unfairness or public policy grounds.

1. (b)
   The unfairness discretion

50. [50]
    The High Court has previously distinguished between the application of the unfairness discretion and the application of the principles arising out of Bunning v Cross (1978) 141 CLR 54, where the focus was on impropriety on the part of the investigating police and the determination as to whether the evidence obtained ought to be excluded or not: R v Lee (1950) 82 CLR 133 (at 154); and Cleland v R (1982) 151 CLR 1 (at 36). 

51. [51]
    However, in Duke v R (1989) 180 CLR 508 Brennan J expressed the view that the latter distinction was too narrow.  He wrote (at 511):

“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. Trickery, misrepresentation, omission to inquire into 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. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case.”

52. [52]
    The decision of the High Court in Swaffield and in particular the joint judgment of Toohey, Gaudron and Gummow JJ, requires that the discretion to exclude confessional evidence should be exercised, where voluntariness is not an issue, by reference to considerations of reliability and respect for the right of an accused to stay silent.  See also EM v R (2007) 232 CLR 67.

53. [53]
    In R v Adamic [2000] QSC 402, a confession was excluded where the defendant had indicated a desire to contact a lawyer but police delayed the exercise of that right and the defendant in the meantime made admissions against interest. That circumstance is quite different to that of the applicant. I make the same observation with respect to R v Ajax [2010] QSC 338; R v Benton [2011] QSC 14; R v Thomas [2015] QSC 28; Pollard v The Queen (1992) 176 CLR 177; and R v Pinkstone (unreported WASC 10.03.97, BC9701581), each having been provided to me by Mr McLennan with his written submissions.

54. [54]
    There are cases where the focus of a police investigation changes and a defendant becomes a suspect in the investigation of an offence. Fairness dictates that the defendant should be warned or a warning be iterated because of that change: See by way of illustration R v Szach [1980] 23 SASR 504 and R v Kirk [2000] 1 WLR 567, both cited and discussed in R v Tietie and Wong-Kee at paragraphs [34] to [41. Mr Mclennan referred to this line of authority in his submissions, but the circumstances of the applicant are quite different – he was not ‘interrogated’ about the stolen property but initially simply asked general questions, and had been told that the warning (albeit deficient in respect of the right to contact a lawyer) was given if he was to be asked questions about any offences.

55. [55]
    On the other hand, the discretion to admit evidence unlawfully obtained is exercised in accordance with the principles in Bunning v Cross and subsequent cases which expanded the number of relevant considerations. Stephen and Aicken JJ identified five matters in Bunning v Cross, at pp 78-80:

• Was the unlawful act the result of mistaken belief that the act was lawful, or a deliberate disregard of the law?
• Does the nature of the illegality affect the cogency of the evidence obtained?
• Was the illegal act the result of a process of deliberate cutting of corners to make the task of the investigators easier?
• How serious is the offence charged?
• Does an examination of the legislation indicate a deliberate intent on the part of the legislature to circumscribe the powers of the police in the interest of the public?

56. [56]
    The authorities published since Bunning v Cross reveal other matters relevant to the exercise of the discretion:

• Is the evidence unlawfully obtained the only evidence of guilt?
• Would evidence likely be removed or destroyed if its seizure is seriously delayed?
• Would admission of the evidence cause no unfairness to the accused?

57. [57]
    I will deal with both the issues of the unfairness discretion and the public policy exclusion, together.

1. (c)
   Public policy exclusion

58. [58]
    Quite apart from the unfairness grounds for exclusion, there remains an issue of whether a confession should be excluded on public policy grounds, even though no unfairness to the applicant is demonstrated. Competing public requirements ought to be considered and weighed against each other. In other words, there needs to be a balance between the public interest in convicting those who commit criminal offences and the public interest in the protection of an individual from unlawful and unfair treatment: R v Ireland (1970) 126 CLR 321; and R v Cleland (supra) per Deane J at 19-20, 26, 27. 

1. (d)
   Burden of Proof

59. [59]
    In an application based on a discretionary exclusion of evidence, the onus of proof is borne by the applicant. It is for him to persuade the court, on the balance of probabilities, that the factual circumstances support and justify the exercise of the discretion to exclude, on one of the unfairness, Bunning v Cross or public policy grounds.

1. (e)
   Discretionary exclusion generally

60. [60]
    The non-compliance with the Responsibilities Code and the PPRA by PC Constable Colley might at first to some observers appear to be inexplicable. He said that the omission was an oversight. If it was then he should be counselled about his future adherence to and observance of what is a standard and simple matter of police procedure and practice that is set out in plain terms in police service documents (including the DERIE Manual) as well as in the PPRA and the Responsibilities Code, all of which police officers ought to be well acquainted with. However, that omission per se does not mean that the evidence of the admissions ought to be excluded.

61. [61]
    The failure of the more senior officers present at the residence to notice the omission might be explained by a focus on other matters to do with the search or the dogs that were inside and about the residence and were plainly a concern for the police when they entered the residence and for a period following. However, they did not give evidence and I cannot say any more about that.

62. [62]
    It was implicit in Mr McLennan’s submission, or at least it seemed to me to be so, that the police did not refer to the right to contact a lawyer because their past experience with the applicant (whom they obviously knew by name and appearance) may have meant that he would have exercised that right.

63. [63]
    The applicant has had past dealings with police investigation. He seemed to me to be reasonably articulate and to understand the questions put to him on the voir dire proceeding. He has exercised the right to consult a lawyer in the past. He must have known he could exercise that right when the police asked him to go to the spare room in the residence to assist their enquiry. The applicant was clearly going to be asked questions – his going there would have been a pointless exercise otherwise. He was not going there to merely hold the door open. He knew the search warrant named Tyler and was made with respect to stolen property, a matter about which he seemed to be unconcerned.

64. [64]
    There were items in the room that aroused the police interest in respect of drugs. They had found drug related items in the search. The applicant must have known that he had at least handled some items, even though they may have in other circumstances had an innocent purpose. I infer that he knew there were drug related items in the spare room, a room he had been associated with and which contained some of his property. Regardless of what he had been told by the police, he must have known that he was now a person of interest, even in the adventitious sense. He told the police that a substance about which he had been questioned was ‘acetone’, a substance used in the production of amphetamines.

65. [65]
    The applicant admitted to amphetamine use. His excuse for possession of the gas cooker and the gas canister, normally perfectly innocuous items that may well have been usable for ‘camping’, might in the circumstances here be regarded by some as risible.

66. [66]
    The 20 minute passage of time between the first conversation with PC Constable Colley and the applicant, and their conversation in the spare room, is very short and could not be characterised as being an unreasonable delay. The applicant must have been aware of the possibility that he might be questioned “in relation to any offences”: the police officer said as much to him.

67. [67]
    Finally, I do not consider that the conversation – the manner or the content of the questions – between the applicant and the police in or about the spare room was objectively, unfair.

Conclusion

68. [68]
    Whilst there was clearly a breach of the requirement of the Responsibilities Code by PC Constable Colley, I am not persuaded that the applicant was subjected to any unfairness by virtue of his, or the conduct of other police, so as to compel an exercise of the unfairness discretion.

69. [69]
    I do not consider that the Bunning v Cross discretion is enlivened in the circumstances of this case.

70. [70]
    I do not consider that the public policy ground of exclusion is enlivened.

71. [71]
    There is other evidence implicating the applicant in the production of a dangerous drug. The charge is a serious one. The public interest clearly outweighs the interest of the applicant.

72. [72]
    With respect to discretionary exclusion generally, the circumstances of the applicant and his previous involvement with police investigation are such that a discretionary exclusion of the admissions has not been shown to be justified. The applicant has not discharged the onus of proof.

Orders

1 Application refused