Bowers v R[2015] QDC 276

DISTRICT COURT OF QUEENSLAND

Facts

1. [1]
   The applicant has been charged that on or about 15 January 2015 at Redbank or elsewhere in the state of Queensland, he unlawfully supplied the dangerous drug methylamphetamine to another person. The prosecution relies on the extended definition of the term “supply”, namely that the applicant had done acts preparatory to the supply of the drug to another person.

2. [2]
   At about 12.15am on 16 January 2015 the applicant was located by police in the front passenger seat of a stationary vehicle, parked at McAuliffe Street, Redbank. Due to his suspicious behaviour, the applicant was detained by police for the purpose of a search, and items were found in the vehicle, and a clip seal plastic bag in the applicant’s underwear.

3. [3]
   The bag found in the applicant’s underwear contained methylamphetmine and another bag containing a pink crystal like substance, empty clip seal bags, a glass pipe and a set of digital scales were found in the vehicle.

4. [4]
   Police from the Ipswich Tactical Crime Squad were asked to attend and Sergeant Patch, from that squad, arrived and had a conversation with the applicant. The conversation was digitally recorded. The applicant told Sergeant Patch that he had obtained the methylamphetmine shortly prior to being searched, that he had not yet paid for it and that he intended to sell it.

5. [5]
   The applicant was taken to the Ipswich watch-house where he was taken to an interview room and spoken to by Sergeant Patch. Senior Constable Randle Thomas was also present. In that conversation, which was recorded, but only on audio, the applicant repeated what he had told Sergeant Patch at the road-side and that he intended to sell the methylaphetmine to other people and anticipated making $200-$300 from the sale.

Application

6. [6]
   The applicant seeks an order that both the recording of the conversation with him at the road-side and the recorded interview at the Ipswich watch-house be excluded from the evidence admissible at the applicant’s trial.

7. [7]
   The grounds of the application are firstly, that as the applicant is Aboriginal, s 420 of the Police Powers and Responsibilities Act 2000 (“the Act”) applied to his questioning but Sergeant Patch failed to comply with that section. Secondly, that the applicant was under the influence of methylamphetamine at the time of the questioning and Sergeant Patch failed to comply with s 423 of the Act which governs the questioning of intoxicated persons. Thirdly, that I should in any event, exercise my discretion pursuant to s 130 of the Evidence Act 1977 to exclude the recordings of each interview on the basis that it would be unfair in all the circumstances to the applicant to admit that evidence.

The Police Powers and Responsibilities Act

8. [8]
   Section 420 of the Act provides:

Questioning of Aboriginal people and Torres Strait Islanders

1. (1)
   This section applies if—

1. (a)
   a police officer wants to question a relevant person; and

1. (b)
   the police officer reasonably suspects the person is an adult Aborigine or Torres Strait Islander.

1. (2)
   Unless the police officer is aware that the person has arranged for a lawyer to be present during questioning, the police officer must—

1. (a)
   inform the person that a representative of a legal aid organisation will be notified that the person is in custody for the offence; and

1. (b)
   as soon as reasonably practicable, notify or attempt to notify a representative of the organisation.

1. (3)
   Subsection (2) does not apply if, having regard to the person's level of education and understanding, a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally.

1. (4)
   The police officer must not question the person unless—

1. (a)
   before questioning starts, the police officer has, if practicable, allowed the person to speak to the support person, if practicable, in circumstances in which the conversation will not be overheard; and

1. (b)
   a support person is present while the person is being questioned.

1. (5)
   Subsection (4) does not apply if the person has, by a written or electronically recorded waiver, expressly and voluntarily waived his or her right to have a support person present.

1. (6)
   If the police officer considers the support person is unreasonably interfering with the questioning, the police officer may exclude the person from being present during questioning.

9. [9]
   Section 423 of the Act provides:

Questioning of intoxicated persons

1. (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.

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.

Evidence

10. [10]
    At the hearing of this application, police officers Coutts and Hume, who detained the applicant in McAuliffe Street initially, and Sergeant Patch and Senior Constable Thomas, all gave evidence. The audio recordings of the two conversations between the applicant and Sergeant Patch were played. The applicant did not give any evidence.

11. [11]
    Each of the police officers gave evidence that they were, at all relevant times, unaware of the applicant’s Aboriginality. Sergeant Patch recognised the applicant from previous dealings with him when he had executed a search warrant at the applicant’s residence. Sergeant Patch’s evidence was that he at no stage knew or suspected that the applicant was Aboriginal. He knew the applicant’s father to be Caucasian and knew that the applicant had regular employment. Sergeant Patch did not, during either of the recorded conversations, enquire as to the applicant’s ethnicity.

12. [12]
    Constable Hume’s evidence was that once the police officers’ suspicions about the applicant were raised at McAuliffe Street, he conducted a police radio check on the applicant which revealed the applicant’s history and some warnings about him, but not any other of the applicant’s personal particulars. Specifically, the radio check did not reveal the applicant’s ethnicity.

13. [13]
    The evidence of all four police officers was that they were unaware of the applicant’s ethnicity at the time they dealt with him on 16 January 2015.

14. [14]
    The Queensland Police Service Court Brief was tendered in evidence. It notes the applicant’s “self-defined ethnicity” as “Aboriginal”. Senior Constable Thomas was responsible for compiling the court brief but was unsure as to whether he inputted the information about the applicant’s ethnicity or whether it would have been inserted automatically from previous Queensland Police Service records. The Court Brief describes the applicant’s hair as “brown”, his complexion as “Light/fair” and his occupation as “Landscaper”.

15. [15]
    The applicant was present in court during the hearing of his application and it is the case that his Aboriginality is not immediately obvious from his appearance. The applicant’s recorded responses to questions during both conversations with Sergeant Patch reveal that he does not speak with an obvious Aboriginal accent and does not use Aboriginal English.

16. [16]
    It is the case that Sergeant Patch failed to ask any question of the applicant regarding his ethnicity or regarding his standard of education, and certainly it would have been prudent for him to ask such questions, particularly during the interview at the watch-house.

Consideration

17. [17]
    On the evidence led during the hearing of this application there was no basis for Sergeant Patch, or indeed any of the other police officers, to reasonably suspect that the applicant is an “adult Aborigine”. In any event, there was, even if he should reasonably have suspected that the applicant is Aboriginal, a basis for Sergeant Patch to reasonably suspect that the applicant “is not at a disadvantage in comparison with members of the Australian community generally”. Section 420 of the Act did not apply to the circumstances of the applicant’s questioning by the police.

18. [18]
    Senior Constable Coutts’ evidence was that when he first approached the applicant, he observed the applicant to have blood-shot eyes and that the applicant “appeared oddly nervous and agitated as he kept fidgeting with the waist band of his denim jean shorts and crotch area”. Constable Hume said that the applicant “appeared nervous to speak with me, his verbal responses were stuttered at times and he was fidgeting with his hands and was reluctant to make eye contact”. However, both officers said that once the bag was found in the applicant’s underwear and he was told to sit down, the applicant’s demeanour changed and he became calm and quiet. It was Senior Constable Coutts’ evidence that the more he spoke with the applicant, the more it became evident that the applicant was not under the influence of anything and he concluded that the applicant’s initial demeanour was attributable to his attempt to hide the bag of methylamphetamine.

19. [19]
    During the interview at the watch-house the following exchange occurred:

20. [20]
    Later in the interview, when the applicant was asked about the glass pipe and what he had used it for, the applicant replied that he had some “meth” through it just before the police arrived.

21. [21]
    It would have been prudent for Sergeant Patch to ask further questions of the applicant regarding his consumption of intoxicating substances prior to his being interviewed, but the evidence of all four police officers is consistent in that none observed any indicia in the applicant indicating that he was “apparently under the influence of liquor or a drug”.

22. [22]
    In the recordings of both of the conversations between the applicant and Sergeant Patch, the applicant gave clear, responsive answers to all questions. He enunciated clearly and appeared to understand both the questions and the explanations given to him of his rights. When questioned about the bag containing the pink crystal-like substance found in the vehicle, the applicant quite quickly and clearly denied any knowledge of it. Also, when, during the interview at the watch-house the applicant was asked if he knew the weight of a “point” he admitted that he was not sure and conceded that he sounded “like a dickhead right now”. All of this indicates that the applicant was thinking clearly and was able to articulate coherent and sensible answers to all questions put to him.

23. [23]
    It would have been easier to assess the applicant’s behaviour and demeanour had the interview at the watch-house been visually recorded. The room in which the interview took place was equipped with audio-visual recording equipment. It was Sergeant Patch’s evidence that it is his normal practice to offer interviewees the choice of being recorded audio-visually or only on audio. He made such an offer to the applicant and the applicant chose to be recorded on audio only. This offer and response was not recorded, despite Sergeant Patch’s evidence that it took place in the interview room. Offering interviewees such a choice is, at best, imprudent, and best practice would dictate that all interviews should be recorded visually if at all possible, for the protection and benefit of both police and interviewees.

24. [24]
    However, there is nothing in either audio recording to indicate that the applicant was under the influence of liquor or a drug, and in the absence of any evidence as to how much of the drug he had consumed and when, and what his usual reaction to it may be, there is simply no evidence that the applicant was “apparently under the influence of liquor or a drug” at the time of either of his conversations with Sergeant Patch.

25. [25]
    There is no reason to exclude the recordings of either of his conversations with Sergeant Patch from evidence at the applicant’s trial on the basis that the provisions of the Act were not complied with. There is nothing raised on the evidence to justify a finding that the two recordings should be excluded on the basis that it would be unfair to the applicant to admit them. The application is refused.