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R v Philp[2015] QDC 262

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

R v Philp [2015] QDC 262

PARTIES:

R

v

HARLEY PHILP
(defendant)

FILE NO/S:

 

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Dalby

DELIVERED ON:

Ex tempore reasons delivered on 6 October 2015

DELIVERED AT:

Dalby

HEARING DATE:

6 October 2015

JUDGE:

Smith DCJA

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW- CONFESSIONS AND ADMISSIONS- whether inducement given- whether admissions were made- whether confession was unfairly obtained

Criminal Law Amendment Act 1894 (Q) s 10

Evidence Act 1977 (Q) s 130

Police Powers and Responsibilities Act 2000 (Q) ss 422, 423

Bunning v Cross (1978) 141 CLR 54

R v Clark, ex parte AttorneyGeneral [1999] QCA 438

R v Doyle, ex parte AttorneyGeneral [1987] 2 Qd R 732

R v LR [2006] 1 Qd R 435

R v Q [2003] QCA 421

COUNSEL:

Mr I. Munsie for the defendant

Mr D. Jones for the crown

SOLICITORS:

Macdonald law for the defendant

Office of the Director of Public Prosecutions for the crown

  1. [1]
    This is an application by the defendant, Mr Philp, for the exclusion of a record of interview conducted between he and the police between 1.30 p.m. and 2.14 p.m. at the Tara Police Station on 30 October 2014. 
  1. [2]
    The defence firstly submits that it cannot be proved that the interview was voluntarily obtained. It relies on s 10 of the Criminal Law Amendment Act 1894 (Q) and/or the common law.  Of course, the onus is on the prosecution to prove, on the balance of probabilities, the confession was voluntary.
  1. [3]
    Secondly, or alternatively, the defence submits in the exercise of the fairness discretion (s 130 of the Evidence Act 1977 (Q)), the defendant was intoxicated at the time of the interview, the police acted in breach of ss 422, 423 of the Police Powers and Responsibilities Act 2000 (Q), and in those circumstances, bearing in mind his being affected by alcohol, the interview should be excluded.  Of course, with that application the onus is on the defence to establish that.
  1. [4]
    With respect to the matter, the defendant gave evidence that prior to going to the police station, when he was at the property where he was located, Officer Ford said to him something like, “You can come to the police station of your own free will or we can get authority to arrest you and take you in for questioning”. He was then interviewed at the police station.
  1. [5]
    It is common ground that the Crown is relying on this interview because lies were told in it. A number of lies are relied upon, not the least of which is that the defendant had not gone to the Orchard Road property for two to three years and he was certainly not there the previous night. The Crown case is that he was there and assaulted the complainants.
  1. [6]
    Aside, though, from the lies, it could be said there are some admissions, certainly with respect to count 1. Count 1 involves an incident at a local club. The defendant is charged with assault arising from that incident. As to counts 2 to 4 he also made admissions he was involved in a fight at his own property. The jury may reject that part of the interview i.e. that they did not attend the property at Orchard Road, but could accept he was in an altercation with the complainants. So to my mind, there are both inculpatory and exculpatory portions of the interview.
  1. [7]
    In those circumstances it seems to me that the interview can be regarded as a confession such that s 10 does apply. 
  1. [8]
    In this regard I refer to the R v Q [2003] QCA 421, which examined the decision of R v Doyle, ex parte AttorneyGeneral [1987] 2 Qd R 732.  Q followed the decision of R v Clark, ex parte AttorneyGeneral [1999] QCA 438.  So I will proceed on the basis that s 10 and the common law do apply here in terms of the voluntariness issue.
  1. [9]
    Turning then to the evidence given, Detective Ford gave evidence that on 30 October 2014 he went to 5133 Tara-Chinchilla Road at about 1 pm. He said that at some point they spoke to Mr Philp, and Detective Harvey was recording this. Detective Harvey said they needed to have a chat about matters which occurred the previous night. The accused got into the police car. He did not seem intoxicated, and came to the police station voluntarily.
  1. [10]
    In crossexamination Officer Ford said that he was aware that Detective Harvey had a recorder, and he has had the chance to listen to the recording.  He said the accused did not appear unsure or unsteady on his feet.  He did not smell of alcohol.  He seemed fully coherent.  He denied saying to the defendant, he would be arrested if he did not cooperate.  He denied saying that he should go to the police station of his own free will or he would be arrested for questioning. 
  1. [11]
    Now, also during evidence, Exhibits D and E were tendered. Exhibit D was the field recording which Detective Harvey conducted with Ms Hopkinson. When they first arrived, Ms Hopkinson was spoken to. Mr Philp was asleep, and Fred (Ms Hopkinson’s husband) went to get Mr Philp. There was a break in the recording and then Exhibit E started. Turning to Exhibit D, it seems clear the police were saying they needed to speak to everyone at the police station. Police were informed Mr Philp was asleep. Fred went to get him and then Exhibit E commenced.
  1. [12]
    In that tape recording Detective Harvey said it was getting warm and he talked about Mick (Pollard, one of the other accused). Detective Harvey said that they needed to have a yarn about what happened last night. There was discussion with Mr Philp about getting jeans on. That was agreed to and the tape recording was deactivated whilst that happened. It was then reactivated in the police car. At that stage Detective Harvey said that they needed to speak about what happened the previous night prior to the police being called, which is a reference to Ms Hopkinson calling the police. The police were already at Orchard Road, investigating a complaint which had been made. Others at that location had injuries and knife wounds.
  1. [13]
    Mr Philp talked about a bat. Detective Harvey said the police were investigating allegations that Mr Philp, Ben (Hearn), Mick (Pollard) and Sonja (Hopkinson) had been involved at the Tara Road premises and they wanted to offer the opportunity to Mr Philp to be interviewed. He was told of his right to remain silent and his right to contact a solicitor to seek advice, and was asked if he had any questions. He did not. He was told they would talk some more when they got back to the police station.
  1. [14]
    The record of interview occurred at the police station. The transcript of that is Exhibit C. The interview itself is Exhibit B. I have had careful regard to this interview. Mr Philp was warned he had the right to remain silent (page 4). This right was explained to him. He was told (page 5 line 11) that he did not have to answer questions if he did not wish to. He understood this. Though I accept he only went to year 7 at school from what I saw of the interview, Mr Philp seemed to understand what was happening. He did not want to contact a solicitor.
  1. [15]
    He was reminded that a short time prior, Officers Ford and Harvey spoke to him back at the house, that they wanted to talk to him about what happened last night, and he came in of his own free will (page 6 line 2). He accepted that. He did talk about handcuffs in a joking fashion.
  1. [16]
    In his evidence the accused said that he felt forced to come in, by Officer Ford’s statement, but he never alleged this in the interview. Indeed, he was specifically asked whether he came in of his own free will, and he said yes. He certainly had the opportunity to raise any concerns at that point. He then, to my mind, answered in a very voluntary way the questions asked of him in the interview.
  1. [17]
    Now, at the end of the interview, he was asked whether there had been any threat, promise or persuasion held out to take part in the interview. He did seem to have some doubt about what this meant. I accept that he had difficulty understanding this to start with, but after explanation he accepted there was no promise and he accepted, ultimately, he took part in the interview of his own free will.
  1. [18]
    I have already referred to some of Officer Ford’s evidence.
  1. [19]
    In cross-examination Officer Ford accepted there was no further questioning about the defendant’s level of intoxication, despite information as to how much he had consumed. He accepted, and I think this was a fair concession, that in hindsight it probably would have been better to ask about thus, but he did not, because Mr Philp appeared coherent. With respect to the proposition that the man had been hit with a baseball bat on the head, again he said the accused seemed coherent and understood everything. I might say, that was my impression of the interview.
  1. [20]
    Detective Harvey also gave evidence as to his dealings with the accused. He also said that they arrived at the property and he spoke to Ms Hopkinson and Fred Hopkinson. Mr Philp was brought to them. Police introduced themselves to him. They wanted to speak to him and he got dressed and changed. They went to the police station. He does not recall any discussion about him being under arrest. Although he had been sleeping, he seemed fine. He appeared fine and not under the influence of liquor. His speech was normal and he was coherent. En route to the police station his rights were outlined to him. It was outlined to him that the police wanted to speak to him, which is consistent with the field recordings that I have mentioned.
  1. [21]
    The officer gave evidence he could not smell alcohol on the defendant’s breath and he did not ask him further questions about whether he was still intoxicated, because there was no indicia of this.
  1. [22]
    In crossexamination, he explained how it was he deactivated the recorder and reactivated it.  It makes sense to me that he would not have kept it on whilst Mr Philp was being fetched from the house or whilst he was putting his jeans on.  He denied the proposition that it was put to the defendant that he could come of his own free will or that he could be arrested for questioning.  Although, as things developed, that changed on the accused’s version, to Detective Harvey being tied up with Ms Hopkinson at a different location when Officer Ford said that to him. 
  1. [23]
    I accept, as I indicated in argument, that it seemed to me that a formal proof had not been taken from the defendant on these issues and that there might have been some loss of detail in translation. So I will not hold that against the accused man in respect of any inferred change of instructions because I think it is fair to say the substance of the allegation has been put.
  1. [24]
    In terms of the level of intoxication, Detective Harvey accepted that the accused had said he had been hit in the head and was intoxicated 12 hours earlier but, despite that, he appeared alert. It appeared that he had been sleeping but, from his responses, he assumed he comprehended everything.
  1. [25]
    He accepted that with drink driving cases there are 24 hour suspension notices but, ultimately, said it all depended on the individual as to what action would be taken.
  1. [26]
    Turning to the accused’s evidence, he said that what he told the police accurately described the amount of alcohol he had consumed. The next day he slept before the police arrived. My note of his evidence-in-chief was that he was still hung over and, in fact, a little intoxicated. He certainly would not have driven.
  1. [27]
    After he was woken up he walked out with Fred to the police. At that point, he said Detective Harvey was at the tattoo studio but Officer Ford was at the gate and said to him, “You can come in of your own free will or we can get authority to arrest you and take you in for questioning.”
  1. [28]
    He interpreted this to mean he needed to answer their questions or he would be arrested. He however seemed a little uncertain about this and later in his evidence-in-chief, he said that it related to his going to the police station. He did not want the police to come back out later with a warrant or authority to take him down to the police station.
  1. [29]
    But then, after some pressing, he returned to his proposition that he participated in the interview because of what Ford said. I might say, I did not find the accused’s evidence on that point very convincing because of that prevarication. Indeed, when one objectively looks at the statement alleged to have been made, even if it was said, there was nothing in the statement by Officer Ford to indicate that Mr Philp must answer questions.
  1. [30]
    Also, as I noted earlier, in both the field tape and in the interview Mr Philp was warned of his right to silence and appeared to understand that. He was then asked as to the effect of alcohol and said that he was “moderately under the influence of alcohol.”
  1. [31]
    He later said that the hit on the head gave him “major headaches and pain to the head.”
  1. [32]
    In cross-examination he was asked about what he had consumed in terms of alcohol and he said, “A six pack of mid-strength beer and half a bottle of rum from 6 pm to 11 pm.” After that, he went to the hospital for two to three hours.
  1. [33]
    He went home, had no drinks after that, a couple of glasses of milk, went to bed at 4 am and slept until the afternoon when the police arrived. He then met with the police, changed his clothes and went to the police station.
  1. [34]
    He said that he felt “pushed” by Officer Ford to do the interview. He conceded laughing after the handcuff comment but suggested that was more of a nervous laughter. He agreed he told the police at p 37 he had gone there of his own free will but then said that was not right, although this is contrary, I might say, to what he said twice in the record of interview.
  1. [35]
    He denied the suggestion put to him by the prosecutor he had made up this alleged inducement. As to his intoxication, he said he was “mildly intoxicated.” He understood the questions asked by the police and he said that the effect of the intoxication was whilst he did express his version, it did not help him recall things he needed to.
  1. [36]
    In re-examination he explained that it was Detective Harvey doing the talking at the interview which explained why he did not raise anything concerning Officer Ford and he interpreted the questions as relating solely to physical threats.
  1. [37]
    Mr Munsie in his submissions submitted that I should take into account that Mr Philp only went to year 7 and I do take that into account. He submitted I should also take into account the hit to the head which I do as well.
  1. [38]
    Turning then to the application to exclude on voluntariness grounds, having considered the evidence I prefer the evidence of Officer Ford. I found that he was forthright in the witness box and I find that his version, moreover, is consistent with the other evidence available, namely, that contained in the tape recordings and in particular, the field tape.
  1. [39]
    I also think it of moment that no issue was raised by the accused feeling forced to undergo the interview in the formal record of interview. I have also discussed issues which I consider relevant as to the accused’s prevarication at times in his evidence.
  1. [40]
    Therefore, on the balance of probabilities, I find that this alleged statement was not made by Officer Ford and, in those circumstances, consider the confession to be proved on the balance of probabilities to be a voluntary one.
  1. [41]
    But even if I am wrong in that conclusion and such a statement was made, for the reasons I expressed earlier I find the statement did not go to and was not likely to go to the accused’s understanding as to the requirement to be questioned. It only related to his going to the police station.
  1. [42]
    He was twice thereafter warned as to his right to remain silent, which he understood. My finding is that it is most likely that any inducement would have been dispelled by those warnings and, hence, the confession is a voluntary one in any case.
  1. [43]
    I next turn to the s 130 point. I have had regard, of course, to the written submissions made by Mr Munsie. I have had regard to, of course, the amount of alcohol the accused alleges that he consumed.
  1. [44]
    On that point, at pp 7 to 8 of the interview he says he had a six pack of mid-strength beer and half a bottle of rum mixed with Coke. He was pretty “blotto”. This was later clarified in the interview at p 25. 
  1. [45]
    He said he could not walk in a straight line. He was drunk but he knew what was going on. He could drink and still be alert and he understood what he was doing. He also seemed to have some experience with drinking as well, on the evidence.
  1. [46]
    I have already referred to his evidence as to how he felt during the interview. Now, the focus with regard to this issue is on whether the accused person understands their rights. (See The Queen v LR [2006] 1 Qd R 435). 
  1. [47]
    Turning to the relevant sections of the Police Powers and Responsibilities Act 2000 (Q), s 423 provides: 

Questioning of intoxicated persons

  1. (1)
    This section applies of 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.
  1. (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.”

I do not consider the accused was“…apparently under the influence of liquor or a drug.”

  1. [48]
    I have paid close regard to the interview. The accused was forthright in answering questions, added detail when required and asked questions himself.
  1. [49]
    Additionally, he did not drink an overly large quantity of alcohol for him. It was normal for him to drink that much every weekend.
  1. [50]
    I accept he might have been fairly affected by alcohol but he only had a six pack of mid-strength beer and half a bottle of rum which, admittedly, is a fair amount of alcohol but the drinking had stopped some 12 hours prior.
  1. [51]
    I have already referred to the cross-examination as to his movements. Certainly, he was most likely hung over and may even have been affected to a slight degree. But, as I say, the focus is on whether the person understood their rights.
  1. [52]
    He did understand those rights. I have already referred to the rights given to him at the commencement of the interview and, also, the questioning at the end of the interview. This is not a case where he was so intoxicated that he did not understand his rights.
  1. [53]
    Even if there was a procedural breach of the section, I have regard to the principles expressed in Bunning v Cross (1978) 141 CLR 54.  It seems to me the police acted honestly and without deliberate breach of the law in this case.
  1. [54]
    Officer Ford conceded that, in hindsight, it may have been better to ask further questions about this issue but the defendant seemed coherent and I agree with that observation, having seen the interview. He understood everything and even asked questions himself.
  1. [55]
    Officer Ford’s evidence was corroborated by Detective Harvey’s evidence. I accept their evidence.
  1. [56]
    In those circumstances, I do not find that the defendant has established it would be unfair to admit the statement and, in those circumstances, I refuse the defendant’s application.
Close

Editorial Notes

  • Published Case Name:

    The Queen v Philp

  • Shortened Case Name:

    R v Philp

  • MNC:

    [2015] QDC 262

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    06 Oct 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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