R v Dendle[2018] QDCPR 16

DISTRICT COURT OF QUEENSLAND

2. [2]
   Robert Dendle faces trial for assorted sexual offences reflecting a sexual assault upon a 13 year old boy, including sodomitic & oral rapes. Tragically the complainant has since died. His statement interview with police, recorded within hours of events, was the subject of an earlier application. It was ruled admissible pursuant to sections 111 and 113 of the Justices Act. On its face, evidence in support of the complainant’s account appears compelling, particularly the forensic evidence of penetrative acts and the child’s injuries.

3. [3]
   This application is for the exclusion of recorded statements made by Mr Dendle on the day of his arrest. Voluntariness and reliability are not in issue. The defence do not deny that Mr Dendle made the statements, and that he did so voluntarily. The court retains a discretion to exclude a voluntary confession on the grounds of unfairness or public policy in addition to the general discretion under s 130 of the Evidence Act.^. The application referred to both grounds, although unfairness was not pressed. Defence counsel, Mr Buckland, conceded it was difficult to find any unfairness that could arise from the use of Mr Dendle’s admissions. There is no suggestion that Mr Dendle falsely implicated himself. The main argument was about police impropriety and the public policy ground.

4. [4]
   Mr Dendle’s admissions were limited but acknowledged at least some sexual interaction with the complainant child on the night in question. They therefore have real probative value, notwithstanding the surplus of other evidence. Mr Dendle told police he was so drunk he could not remember more than the boy being naked with him in bed. He thought he may have touched him, but also offered an explanation of sorts as to why his condoms might hold seminal fluid from himself and the boy. He said he washed his sheets before going back to sleep, but only for housekeeping purposes. He did not comment on the allegation of force.

5. [5]
   The rights of a suspect and the specific duties of police to safeguard those rights are set out in chapter 15, Part 3 of the Police Powers and Responsibilities Act 2000 (the Act). S 415 enshrines a suspect’s right to silence and s 418 sets out the opportunity police must give for contact with a friend, relative or lawyer before questioning begins. Part 5 of the Police Responsibilities Code 2012 in the Police Powers and Responsibilities Regulation 2012[1] outlines the police powers and responsibilities for questioning about indictable offences. Model statements about the right to communicate with a friend, relative or lawyer, and the right to silence are set out in ss 23 and 26 of the Code. The obligation on the police officer is to inform or caution the person “in a way substantially complying with” those provisions.

6. [6]
   Furthermore the police power to detain for questioning is restricted. Division 3 of Chapter 15 of the Act limits the detention period to a reasonable time, but no longer than 8 hours unless extended by a Magistrate.

The field tape

7. [7]
   Mr Dendle did not give evidence on the application. The field tape was not tendered. The court was asked to make its ruling on a transcript.

8. [8]
   The transcript indicated Mr Dendle was sleeping in his bed when police arrived. He was woken and told he was under arrest for sexual assault. Police remained with him at the house for about an hour. He was repeatedly informed of his right to silence, and reference was made to a friend relative or lawyer, but for most of that time, attention was directed at Mr Dendle’s physical condition. He was hung over and reported feeling extremely unwell. He required a toilet and twice fell to his knees while making his way out of the house. Officers sought advice on the phone and an ambulance was called.

9. [9]
   There was this exchange at p 26 of the transcript:

SGT SANDERSON: I don’t know if …if you understood exactly what was going on, because you were half a sleep.

DENDLE: Mm

SGT SANDERSON: But, do you understand what you’re under arrest for?

DENDLE: Sexual assault

SGT SANDERSON: ….did you understand the warnings I gave you?

DENDLE: Ah, I think so

SGT SANDERSON: I’ll say them again just so you’re clear

DENDLE: Mmhmm

SGT SANDERSON: Before I ask you any questions --

DENDLE:  Mmhmm

SGT SANDERSON: I must tell you, you have the right to remain silent…

10. [10]
    Sgt Sanderson went on to caution Mr Dendle by following the model statements in ss 23 and 26 of the Code. She broke the information into digestible portions and Mr Dendle gave an acknowledgement at each point. Then, after informing Mr Dendle questioning could be delayed for a reasonable time to allow him to contact a friend, relative or lawyer, Sgt Sanderson asked:

SGT SANDERSON: Is there anyone that you wish to contact?

DENDLE: No, I guess no. I should probably get a lawyer I’m guessing.

SGT SANDERSON: Well --

DENDLE: I don’t know.

SGT SANDERSON: You don’t know?  You’re not --

DENDLE: I can get --

SGT SANDERSON: Sure?

DENDLE: A hold of them, but.

SGT SANDERSON: So is there anything you wish to talk to me about in regards to your arrest for an, a sexual assault?

11. [11]
    Mr Dendle replied that he could only remember flashes of the previous night. He was asked whether he wanted to talk about the sexual assault. He said “I’m gonna exercise my right to silence at the moment…cause…I don’t even know what happened.”

12. [12]
    Paramedics arrived, Mr Dendle said he did not need to go to hospital. There was an assessment and a decision made to take him to hospital. Sgt Sanderson again invited him to say something.

SGT SANDERSON: …before you go, I do wish to offer you the opportunity once again, to speak with us about your arrest.       Is there anything you wish to say?

DENDLE: I don’t know what to say.

SGT SANDERSON: …basically trying to get your side of the story mate. That’s all..

DENDLE: Well I - -

SGT SANDERSON: It is, okay?

DENDLE: No, no, I know, I --

SGT SANDERSON: There’s --

DENDLE: Two sides to every story --

DENDLE: I know

SGT SANDERSON: And I feel it’s only fair and suitable that everyone has the chance to say theirs.

DENDLE: No, that’s fine. I know.

SGT SANDERSON: But you also are under the provision of exercising your right to silence if you wish to. So do you wanna--

DENDLE: like I said… I vaguely recall acting very inappropriately…very vaguely, literally flashes…

SGT SANDERSON: So what do you mean inappropriately?...

DENDLE: ah, there was inappropriate touching of Kyle.

Mr Dendle then continued to respond to questions.

13. [13]
    The defence do not allege any deliberate wrong doing by the officers. The submission was that under the pressure of “difficult and unusual circumstances” they had inadvertently deprived Mr Dendle of his right to a lawyer.

14. [14]
    Mr Dendle had been informed of his rights and cautioned in the terms set out in the Responsibilities Code. A partial version was repeated a number of times. Despite being woken up and nauseous and weak, he was responsive and rational. He demonstrated his understanding of the right to silence. Although he had exercised that right at one point, Sgt Sanderson offered him another opportunity to speak, before he was loaded into the ambulance. She also reminded him he could exercise his right to remain silent. He chose to speak. The defence do not contend an absence of free will. Mr Dendle gave Sgt Sanderson his version voluntarily.

15. [15]
    The real issue is in relation to Mr Dendle’s right to contact a lawyer before being questioned. He had been fully informed of that right. He was told questioning could be delayed for a reasonable time. Although he did not directly ask for a lawyer he indicated a preference for one. He told Sgt Sanderson he thought he should get a lawyer, but was unsure whether he could “get… a hold of them.” Sgt Sanderson did not offer him the opportunity to find out. They were at the house. There may or may not have been a phone book there but presumably police would have had access to the internet on their phones. Although Mr Dendle was being taken to hospital he still had the right to attempt to contact a lawyer before being questioned if he wished. After contemplating the need for a lawyer, he had earlier exercised his right to silence. The admission was obtained after Sgt Sanderson again invited him to give his version before he left in the ambulance, without clarifying whether Mr Dendle wanted to attempt to make contact with a lawyer. She had reminded him he had the right to remain silent but his position in relation to a lawyer still had not been clarified. Mr Finch pointed to earlier passages where Mr Dendle asserted himself. Even so, Mr Dendle’s physical condition would have been a distraction for him. Only shortly before the admission, he had elected to exercise his rights. A man may change his mind, but in my view it would be unfair to admit Mr Dendle’s statements against interest given the circumstances in which they were made at the house.

Police contact prior to the interview

16. [16]
    Mr Dendle was placed in the ambulance at about 11.25. Uniform police arrived. Paramedics had given him something. Constable Peters read the caution and rights to him again but observed Mr Dendle looked sleepy. He only nodded in response. By 11.52 he was being treated by medical staff. Before noon, he had provided his clothing to police.

17. [17]
    Mr Dendle had been in police custody from his arrest at about 10.20 am that morning. The medical records indicate the paramedics were called at 10.29 and arrived at 10.38. They began recording his condition at 10.42. He was put into the ambulance at 11.25 and arrived at the Caboolture Hospital at 11.43. His only complaint was a hangover. He was given 3 litres of saline solution intravenously and monitored in the short stay unit. At 17.45 he was discharged into the custody of police. There is no suggestion the hospital discharge was premature. There was no complaint then, or now, of any health concerns that would compromise Mr Dendle’s participation in the interview.

18. [18]
    The electronically recorded interview began at 17.56. Mr Dendle did not show signs of physical impairment. By that stage he had been in police custody for 7 hours and 36 minutes, with almost all of it spent under medical care. The maximum detention period under s 403 would run out just 24 minutes into the questioning. Senior Constable Hollywood had persuaded a magistrate to sign an order extending the time just minutes before the interview commenced.

Record of interview

19. [19]
    The defence submission for the exclusion of the interview was that the investigating officer’s conduct maintained only superficial compliance with his obligations to ensure Mr Dendle’s rights were preserved. “(E)ven though it is clothed as a superabundance of caution and transparency,(it) is, in fact, precisely the opposite” and designed to prevent or discourage Mr Dendle’s exercise of his substantial rights.

20. [20]
    At the commencement of the interview Mr Dendle had again been informed of his right to silence and his rights in relation to a friend or relative and a lawyer of his choice. Again, the information provided followed the model in the Responsibilities Code. Again, he demonstrated an appropriate understanding of his right not to say anything. But once again he gave an unclear response to the question of a lawyer. This time there was an attempt to clarify his answer. There was this passage:

SCON HOLLYWOOD: If you want to telephone or speak to any of these people, questioning will be delayed for a reasonable time for that purpose. So is there anyone you wish to telephone or speak to?

DENDLE: Ah I don’t know who lawyers are so I couldn’t, I wouldn’t even know who to ring --

SCON HOLLYWOOD: Yeah

DENDLE  Or how to get hold onto one. So do you --

SCON HOLLYWOOD: Okay

DENDLE: Guys have numbers for stuff --

SCON HOLLYWOOD: Yeah ---

DENDLE: like that?

SCON HOLLYWOOD: We can provide you with the um --

DENDLE: I don’t know.

SCON HOLLYWOOD: We can provide you with the phonebook to, to have a look, certainly.

DENDLE: Okay

SCON HOLLYWOOD: So is there anyone you wish to telephone or speak to?

DENDLE: Um obviously, yeah well, ah if I can get one, Im gonna need a lawyer obviously at some point. How many phone calls am I allowed, like two?

SCON HOLLYWOOD: If you wanna make a phone call to a lawyer, we can arrange …for that to happen.

DENDLE: I can’t make a second call?

SCON HOLLYWOOD: Well at this stage. We’re, we wanna do, we wanna give you an opportunity --

DENDLE: Okay

SCON HOLLYWOOD: To us. So at this stage you can make a phone call to arrange for somebody to be present during questioning okay? It’s not a time to just call.

DENDLE: Yeah ah

CON HOLLYWOOD:   Ah

DENDLE: Ah yeah, alright. It’s okay [indistinct]

SCON HOLLYWOOD: so do you wanna, is there anyone you wanna telephone or speak to?

DENDLE: Not at this direct moment in time, no.

SCON HOLLYWOOD: Okay. So you, in relation to the lawyer you sort of indicated that you, you wanted to speak to a lawyer at some point.

DENDLE: Yeah.

SCON HOLLYWOOD: So we can make --

DENDLE: Probably a wise ---

SCON HOLLYWOOD: Those arrangements ---

DENDLE: idea.

SCON HOLLYWOOD: For you to, speak to a lawyer now --

DENDLE: Yeah.

SCON HOLLYWOOD: If you want?

DENDLE: It’s um ah Sunday night, I doubt id get anybody now.

SCON HOLLYWOOD: Look, I’m sure there’s lawyers that ---

SCON EATHER: It, it’s up to you. I mean we’d like to speak to you about this to hear your ---

DENDLE: I’m happy --

SCON EATHER: Version.

DENDLE: Ah yeah, I’m, I’m happy to --

SCON EATHER: But um --

DENDLE: Talk, but I’m just --

SCON EATHER: But you have --

DENDLE: I don’t know --

SCON EATHER: We have to let --

DENDLE: What I’m --

SCON EATHER: You know cause a part of our --

DENDLE: I don’t know what --

SCON EATHER: Processes is--

DENDLE: I’m meant to do.

SCON EATHER: You understand police processes and processes in most jobs are we have to give you some warnings and some advi – like no, not advice but we have to provide you you with some knowledge about what your rights are.

DENDLE: Yep, I understand –

SCON EATHER: So we need to tell --

DENDLE: That.

SCON EATHER: You at the moment that you have, we’d like to talk to you about it. We’d like to give you an opportunity to tell us your side of things, but we do need to let you know that in order to do that, you do have the right to have a friend, relative or lawyer sit next to you while you tell us.

DENDLE: Okay

SCON EATHER: Okay? So --

DENDLE: I understand.

SCON HOLLYWOOD: If you do, if that’s what you want, if you wanna tell us, we’ll just keep going. If you would choose to have someone next to you, then we can pause this for a while and try and organise that.  But we just need to tell you, so are you happy to--

DENDLE: yep, no that’s --

SCON HOLLYWOOD: Keep speaking --

DENDLE: Yep I’m happy --

SCON HOLLYWOOD: To us now or--?

SCON EATHER: Do you want --

DENDLE: Yeah.

SCON EATHER: A friend, relative or --

DENDLE: No, no --

SCON EATHER: Lawyer –

DENDLE: I’m happy to --

SCON EATHER: sitting next to you?

DENDLE: Keep talking.

21. [21]
    The defence submit there was a deliberate attempt to subvert the exercise of Mr Dendle’s rights. I gained a different impression from the exchange. The transcript accurately shows that immediately prior to Mr Dendle’s agreement to answer questions, officers Eather and Hollywood both only referred to the option of having someone beside him. Nonetheless, it is unlikely that Mr Dendle did not appreciate his right to telephone or speak to a lawyer. When Mr Dendle first said there was no one he wanted to speak to, S.Con Hollywood volunteered that the police could make arrangements for him to “speak to a lawyer now”. When Mr Dendle expressed doubt about a lawyer’s availability, S.Con Hollywood began to tell him lawyers would be available. Eather’s interruption elicited Mr Dendle’s uncertainty about what he should he do. What followed next is best understood from a review of the recording. It seems to have been an attempt to explain that the police wanted to question him and were obliged to set out Mr Dendle’s rights, but could not advise him about how to exercise them. It was in that context that the officers used the term “sit next to you”. It was a shortened reference to the rights concerning friend, relative or lawyer that had already been set out, rather than a complete restatement. There is no reason to conclude Mr Dendle understood it differently. It was a continuation of the enquiry in which only seconds earlier Officer Hollywood had repeatedly used the term “speak” to a lawyer. The model statement in s 23 of the Responsibilities Code uses the term “telephone or speak to”, without using the term “legal advice”. Mr Dendle appeared to be an intelligent person. He claimed to be a business consultant. He had previously demonstrated some assertiveness with police. His rights had just been set out for him in the full terms of the Responsibility Code. It was the second time that day they had been explained in full. He has offered no evidence to suggest that he did not understand that he had the right to contact a lawyer.

22. [22]
    Hours earlier, Mr Dendle had contemplated the need for a lawyer. During the formal interview he again reflected that it was “probably a wise idea”. However, when told arrangements could be made and a phone book provided for the call to a lawyer, he declined the police offer. He said he was “happy to…keep talking.”  His demeanour did not suggest someone who was hesitant, undecided or unfairly influenced.

23. [23]
    In the absence of any evidence from him to the contrary, I am satisfied Mr Dendle understood that in addition to having a lawyer attend the interview, he had the right to speak with a lawyer prior to interview and that police would provide him with the means of doing so. Knowing of his rights, he still chose to speak to police. I am not persuaded the police behaved improperly in the way they informed Mr Dendle of his rights. This was a materially different case from the one cited by the defence, R v Ford [2017] QSA 205. Like Mr Dendle, Ford had expressed uncertainty about whether he should call someone, but the police never properly resolved Ford’s position. He was only 18 years old. He had been stopped on the street for drug offending. He was not told of the nature of the charges under investigation. Incriminating evidence had been obtained on Ford’s phone after police had asked for the PIN number, and before any warning was given. He was still considering who to call when police at first offered his companion as a support person, and then shortly after excluded the companion for being possibly involved. It was that materially different combination of circumstance which called for the protection of the individual from unfair treatment above the public interest in bringing offenders to justice.

24. [24]
    The power to detain for questioning is set out in Division 3 of Chapter 15 of the Act. Under s 403, it is confined to a reasonable time up to a maximum of 8 hours. The defence do not suggest 8 hours was unreasonable here. It is the period after the expiration of 8 hours that was challenged.

25. [25]
    An application for extension of time can be made under s 405 of the Act. Pursuant to s 405 (5) the person or his lawyers have the right to make submissions. S 406 (1) confers on a magistrate the power to extend the time provided he is satisfied of 4 things, namely: the extension was required by the seriousness of the offence and the need to continue questioning, the investigation was conducted properly without delay, and the person was given opportunity to make submissions. The first 3 preconditions were not controversial, but Mr Dendle was never told of the application for an extension of time. Therefore he never had an opportunity to make submissions.

26. [26]
    SCon Hollywood made the application. He filled out a police pro forma document. His evidence on voir dire was not entirely easy to follow and unfortunately he was not pressed to clarify. The prosecutor argued SCon Hollywood may have misapprehended the legal requirements for the extension of the detention period, but that was not a claim made by the officer. His testimony in fact suggests that he did know Mr Dendle should have been given notice of the application. He accepted that he had been aware of the requirements for an extension of time at the time of making the application, although he did not reread the legislation. A section of the proforma document was headed “Grounds for application”. S Con Hollywood had filled it out in some detail. Above that section were various options that could be ticked. Those options focused on any request for friend relative or lawyer and the person’s opportunity to make submissions on the application. None of those boxes had been ticked. Printed on the form immediately below them was this: “The person wants/ does not want to make submissions or say anything to the justice or magistrate.”  S Con Hollywood understood the bold type related to an important requirement. He had not selected either option on the form. He said he did not know why. His evidence was that Mr Dendle was still at the hospital when the application was made. S Con Hollywood had not spoken to Mr Dendle. He could not recall if he had asked other police to talk to Mr Dendle about the extension of time application, or if he had told the Magistrate he had not done everything required for the application. On the other hand, he did recall telling the Magistrate Mr Dendle had not been advised of the application.

27. [27]
    The claim that S Con Hollywood had so informed the Magistrate was not challenged and there is no evidence that the Magistrate was otherwise misled. The form was left incomplete. There was no notation by the Magistrate to indicate he relied upon any information outside of the written application. The logical inference is that the Magistrate did not have a reasonable basis for being satisfied that Mr Dendle had been given the opportunity to make submissions. He therefore did not have the power to make an order extending the detention period.

28. [28]
    The Magistrate’s error did not absolve police of all responsibility. While it was for the Magistrate to be satisfied of the 4 essential matters, the onus was on police to seek a lawful order by providing information capable of so satisfying a Magistrate. SCon Hollywood’s application had no legitimate prospects unless Mr Dendle was at least given the opportunity to be heard. It was not the Magistrate, but police who were in the position to inform the applicant. Because SCon Hollywood was unable to apprise Mr Dendle prior to the making of the application, upon making the application, he should have asked the Magistrate for time to address the legislative requirement. He could then have afforded Mr Dendle his opportunity to address the Magistrate, before the application was determined. It is not clear whether SCon Hollywood was aware of that option. Providing the opportunity for Mr Dendle to be heard in accordance with s 405 (5) after the application was made, would necessarily have delayed any questioning, but it would not have deprived the Magistrate of the opportunity to consider the merits of the matter because, when an application for an extension is brought within time, the detention period will continue until a Magistrate refuses the application.^[2] 

29. [29]
    But for the exclusion of Mr Dendle, this was a straight forward application for the extension of the detention period. It would have been very difficult for Mr Dendle or his lawyer to resist the police application for more time to question him, even if inclined to argue the point. The allegations were very serious. There had been no formal questioning. The only purpose of the delay in questioning had been to allow Mr Dendle medical treatment. The interview was to commence after the hospital had discharged him. By the time of the interview, Mr Dendle’s presentation was alert and capable. Any submission from Mr Dendle would have prolonged the process but was unlikely to diminish the merits of the application.

30. [30]
    Ultimately, there was a failure by police to secure Mr Dendle’s right to be heard on the application and to ensure that everything required to be done for a valid order extending time, was done. Mr Buckland contended that SCon Hollywood’s conduct was so reprehensible that as a matter of public policy the subsequent admissions should be excluded from evidence.

31. [31]
    The public policy discretion was explored in Ridgeway v The Queen.^[3]

“The weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved…The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence – the public interest in maintaining the integrity of the Courts and in ensuring the observance of the law and the minimum standards of propriety by those entrusted with powers of law enforcement – will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.”

32. [32]
    The strongest matters favouring admission of the evidence are as follows:

1. (i)
   The gravity of the alleged crimes. The anal rape of a child is one of the most heinous crimes in this court. The maximum penalty is imprisonment for life. There is a strong public interest in the conviction of those who commit the offence.

2. (ii)
   Mr Dendle’s admissions are probative.

3. (iii)
   They were made voluntarily.

4. (iv)
   He does not challenge their reliability;

5. (v)
   The expiration of the 8 hour detention period was not due to any unreasonable delay by police;

6. (vi)
   Police did apply for an extension of time;

7. (vii)
   The interview commenced within the detention period;

8. (viii)
   The most significant admission was made if not within the 8 hour period, only minutes outside of it;

9. (ix)
   The interview was finished only an hour outside of the 8 hours;

10. (x)
    There was no suggestion the failure to properly present the application for extension of the detention period was institutionalised or tolerated by the Queensland Police Service. Indeed the police pro forma is designed to help focus attention of both the applicant and the Magistrate on essential matters; and

10. (xi)
    If S Con Hollywood had properly assisted the Magistrate, the same outcome was likely. His Counsel did not argue to the contrary on the application.

33. [33]
    The matters that would support the exclusion of the interview are:

1. (i)
   The time limit for detention and the process for extending it, including the right to be heard, are not mere formalities. They are statutory limitations on the powers of police designed to protect against unfair interrogation. To detain after 8 hours, the police must persuade a Magistrate to exercise his discretion in accordance with the legislative test. The maintenance of such safeguards is in the interests of justice.

2. (ii)
   While S Con Hollywood may have made a full disclosure, he did not direct the Magistrate’s attention to the significance of the outstanding requirement. The Act did not expressly place that responsibility on the police applicant. It was for the Magistrate to satisfy himself. Nonetheless when police make an application, there is an implied representation that the application is sustainable.

3. (iii)
   If S Con Hollywood had been more explicit the Magistrate could not have overlooked Mr Dendle’s right to be heard under s 406 (1) (d); and

4. (iv)
   SCon Hollywood should have known that the order purporting to extend time was beyond the power of the Magistrate because the section had not been satisfied. Yet he continued to question Mr Dendle for more than an hour on the basis of that order.

34. [34]
    It was for Mr Dendle to show that the discretion should be exercised in his favour. He has failed to do so. SCon Hollywood’s conduct in relation to the extension of time is deserving of censure, but I am not persuaded the public interest warrants the exclusion of the confession in this case. It seems to me the balance weighs more heavily in favour of the admission of the evidence in furtherance of the prosecution of these serious offences.

Conclusion

35. [35]
    The rulings will be:

1. The field tape of 22 November 2015 recorded at Ningi by Sgt Sanderson with the applicant from approximately 10 .11 until 11.21 is excluded from evidence at the trial.

2. The electronically recorded interview of 22 November 2015 at the Caboolture police station, between S Con Hollywood and the applicant, commencing at 5.56 pm is admissible at the trial.