R v Doran[2020] QDCPR 48

DISTRICT COURT OF QUEENSLAND

Introduction 

1. [1]
   The applicant is charged co-jointly on indictment with five counts of rape.^[1]  It is alleged that he and three other men engaged in non-consensual sexual activity with the complainant.  The offences are alleged to have been committed in a motel room in Runaway Bay, in the morning of 1 October 2019, following a night of excessive partying which included drug and alcohol consumption by the complainant and the four defendants.  The Crown case theory is that the four co-accused degraded the complainant for their own sexual gratification. 

2. [2]
   The applicant applies for a ruling under s 590AA of the Criminal Code 1899 that the evidence of the Questioning he had with police during the execution of a search warrant at his home on 3 October 2018 be excluded on the ground of unfairness. ^[2]

Relevant facts^[3]

3. [3]
   At around 3.30am, after a night of partying, the complainant got into bed. The four defendants were seated on the couch and chair next to the bed smoking methylamphetamine. The complainant then fell asleep. Around this time, the applicant wrote on a mirror in the room with black permanent marker the words “hope you don’t smell like fish”. One or more of the defendants also drew on the complainant as she slept: “what goes around comes around” was written on the outside and front of her left thigh; “BLAM” was written on the inside of her thigh; and a swastika formed by what appear to be penises was drawn on her lower abdomen with the letters “mmm” below it.

4. [4]
   The applicant recorded the complainant on his phone as she slept. This recording was played at the pre-trial hearing and shows the four defendants in the room during daylight hours.

Details of the sexual offending

5. [5]
   The complainant awoke at approximately 9.30am on 1 October 2019 to one of the defendants (Z) rubbing her vagina with his hand. She told him to “fuck off” and he got out of the bed. The complainant called her friend M (who had been at the unit previously) and requested he book the room for another night. M said that he would return to the motel shortly to speak to her.

6. [6]
   The complainant was then lying on her stomach on the bed. All four defendants approached the complainant on the bed. Z pulled back the sheets, grabbed her legs and flipped her onto her back. Z pulled the complainants underwear off and removed his pants. The complainant tried to scream, but the applicant held his hand over her mouth. Two other defendants (S and B) were on the bed at this time on opposite sides of the complainant. Z forced the complainant’s legs apart and inserted his erect penis into her vagina. This caused the complainant immense pain. She tried to wriggle away, but was being pinned down to the bed by an unknown person. As Z penetrated the complainant’s vagina, the applicant pulled his pants down and grabbed the complainant by the hair forcing his erect penis into her mouth. He forced the complainant’s head back and forward making his penis go in and out of her mouth. He did this approximately five times before gagging the complainant with a sock.

7. [7]
   At this time Z ceased having intercourse with the complainant and moved around to the side of her and ejaculated on her face. He then held the complainant down as B forced the complainant’s leg apart and commenced penetrating her vagina with his penis for less than one minute before he got off her and assisted to hold her down.

8. [8]
   At this time, the applicant moved on top of the complainant, forced her legs apart and penetrated her vagina with his penis for less than a minute.

9. [9]
   After the applicant finished, S got on top of the complainant and inserted his penis into her vagina for about two minutes.

10. [10]
    S then got off the complainant and there was a knock at the door at which time the complainant got up and went to the shower. At this point, the defendants all left the unit through the outside patio area. The complainant stayed in the shower for approximately five minutes. After she got out, she heard a knock at the front door of the room and she opened the door to find her friend M standing there with another male. She told both men that she had been raped.

11. [11]
    The unit manager followed the defendants out of the complex and reported the defendants to the police for loitering. Police subsequently took up with the defendants on Oxley Drive and ascertained their identities. Police then went to the motel at which time the rape complaint was made. The complainant was then transported to the Gold Coast University Hospital for examination.

12. [12]
    The complainant underwent a forensic examination. She was noted to have sustained bruising to the backs of both arms, the front of both legs and on the back and inside of her right thigh. The bruising to the legs included patterns of bruising consistent with pressure applied from finger pads. Further circular bruising was observed on the front of the complainant’s lower legs and front and back of her left forearm. The complainant was also noted to have vaginal injuries, including lacerations. It was not possible to conduct speculum examination as the injuries were too painful but swabs were taken from the complainant’s mouth, vulva, vagina and perianal areas and were subjected to DNA testing.

13. [13]
    Relevantly, the results from the DNA testing later revealed evidence of the applicant’s spermatozoa fraction of DNA present in the complainant’s vagina and vulva. It was uncontroversial that these results were not known to police at the time they conducted the search at the applicant’s home.

The execution of the search warrant

14. [14]
    On 3 October 2018 a search warrant was executed by five police officers on the applicant’s house. During the execution of the search the applicant was spoken to and questioned by two officers - PCSC David Imhoff and PCC Matt Trezise. The process was audio recorded but not visually recorded due to the unavailability of any cam-recorders at the time.

15. [15]
    The recording was played during the pre-trial ruling and PCSC Imhoff and PCC Trezise were cross examined by senior counsel for the applicant.^[4]

Relevance of the Questioning

16. [16]
    During the course of the questioning (and contrary to the evidence later obtained) the applicant initially denied that he had sexual intercourse with the complainant in the motel room or that there would be any reason why his DNA would show up on or inside the complainant. But later during the Questioning, after he was told by the police that Z may have said something different, the applicant was more equivocal, stating that Z was probably right and that he could not remember. These responses suggested that the applicant may have had sex with the complainant.

17. [17]
    The Crown’s initial position was these statements are “Edwards lies”^[5] (made in consciousness of guilt) and therefore admissible at trial. 

18. [18]
    The Crown also submitted that another statement by the applicant (that he did not see anyone in the unit have sex with the applicant) was also relevantly admissible as a credit lie.

19. [19]
    After the first day of hearing, the Crown reconsidered its position and no longer contended that the Questioning is admissible as “Edwards lies” but rather that the Questioning remained admissible as “credit lies.”^[6]

The Issue

20. [20]
    It follows that the sole issue for my determination is whether the Questioning ought to be excluded on the grounds that it is unfair.

21. [21]
    The applicant identified three main deficiencies with the Questioning which justified its exclusion on the unfairness ground:

1. 1.First, insufficient cautions under the relevant legislative guidelines were given to the applicant;
2. 2.Secondly, the questioning of the applicant about DNA evidence was improper; and
3. 3.Thirdly, the applicant ought to have been cautioned separately about not having to comment on anything a co-accused may have said.

Relevant legal principles

22. [22]
    The court has a discretion to exclude statements that have been obtained unfairly. The onus is on the applicant to satisfy the court that the discretion should be exercised.^[7]   This discretion is soundly based on principles of fairness and the protection of the rights and privileges of an accused person.^[8] This discretion also includes a power to guard against a miscarriage of justice where in the circumstances of a particular case, the prejudicial impact of the statement is greater than its probative value.^[9]  The term “unfairness” lacks precisions but involves an evaluation of the circumstances of each case.

23. [23]
    In the present case the real question is not whether the police have acted unfairly but whether the applicant’s right to a fair trial may have been jeopardised or infected by unreliability because of the way the Questioning was carried out.^[10] Or, in all of the circumstances, whether it would be unfair to use the Questioning against the applicant.^[11]

Analysis

24. [24]
    Before addressing each of the matters raised by the applicant, it is necessary to observe at the outset that the applicant has not submitted that any conduct by the police in this case was deliberate or intentional. Having had the opportunity to listen to the recording of the Questioning and to observe PCSC Imhoff and PCC Tresize under cross-examination, I accept this submission. Both officers gave reliable and credible evidence before me and to the extent that I have found the Questioning unfair, I am satisfied that there was nothing deliberate or intentional in their conduct.

Warnings under the Police Powers and Responsibilities Act 2000

25. [25]
    When police arrived at the applicant’s residence, his mother and girlfriend were also present. The police handed the applicant’s mother a copy of the search warrant which set out that the police were investigating an offence of rape.^[12] But there was no evidence that she read this at the time or that the applicant knew what offence was being investigated when the police first arrived.

26. [26]
    The duration of the search recording which was taken by PCSC Imhoff is 39.48 minutes. At 0.348 minutes, the following exchange took place between the applicant and PCSC Imhoff:

“CON IMHOFF: Um you all do have the right to remain silent. This more applies to you James so I’ll get you to listen to this carefully for a second. Ah you do have the right to remain silent. It means you don’t need to say anything or answer any questions or make any statements unless you want to. If you do say anything or make any statements, they’re recorded and they can be used in Court as evidenced. Do you understand that mate? What does that mean to you, that warning?

DORAN: It means I can be quiet and keep me mouth shut or I can speak to a lawyer pretty much.

CON IMHOFF: Pretty much, yeah. Um you can choose to answer some questions and not others, or none at all, and anything that you say is recorded.

DORAN: Yeah.

CON IMHOFF: It’s just. You also have that right to telephone or speak to a friend or relative, tell that person that you’re here with us and ask for them to be present during questioning.

DORAN: Yeah.

CON IMHOFF: And you have a right to telephone or speak to a lawyer of your choice to arrange or attempt to arrange for a lawyer to be present during questioning.

DORAN: Yep.

CON IMHOFF: Um we’ll go some questioning later on but is there anyone that you’d like to speak to before you talk to us?

DORAN: No, no, not really.” ^[13] [Emphasis added]

27. [27]
    The applicant was not told that the police were investigating a rape complaint until approximately two and a half minutes after he received this warning when PCSC Imhoff pulled him aside and said: “…I’ll just get you alone so we’re not sharing with the others what we’re doing here. We’re investigating a rape complaint."^[14] But the applicant submitted that it wasn’t until around 22.56, some 15 minutes later, after some “small talk was carried out” that the questioning resumed as follows:

“CON IMHOFF: Why do you think we’re here James?

DORAN: Well you said for a rape but I don’t really have anything about a rape.

CON IMHOFF: We’re, we’re investigating a rape.

DORAN: Yeah.

CON TREZISE: Ah I’ll let you know, we’ve already spoken to Steve if you’re tryna have a think about what Steve might of said. Just to save yourself some time, you know what I mean, like.

DORAN: Yeah, yeah. I’m fuckin’ tired though.”

28. [28]
    It was submitted on behalf of the applicant that the above process resulted in overall unfairness such that the Questioning ought to be excluded because:

1. (a)
   he was not told that he had the right to contact a lawyer and to have the questioning delayed for a reasonable period of time so that a lawyer could be present for questioning; and
2. (b)
   he ought to have been cautioned again during the search because there was a delay between when the applicant was initially told of his rights and then of the offence being investigated; and then an even longer delay before he was actually questioned about the offence.

29. [29]
    The effect of the applicant’s submission is that ss 418 and 431 of the Police Powers and Responsibilities Act 2000 (Qld), and ss 23 and 26 of the Police Responsibilities Code 2012^[15] were not properly followed as required by the Police Commissioners Operations Manual and that this noncompliance led to unfairness to the applicant.  

30. [30]
    Sections 418 and 431 of the PPRA (which appear in Chapter 15 of that Act) state as follows:

“418 Right to communicate with friend, relative or lawyer

3. (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
2. (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.

3. (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).
4. (3)
   If the person arranges for someone to be present, the police officer must delay the questioning for a reasonable time to allow the other person to arrive.
5. (4)
   What is a reasonable time to delay questioning to allow a friend, relative or lawyer to arrive at the place of questioning will depend on the particular circumstances, including, for example—

1. (a)
   how far the person has to travel to the place; and
2. (b)
   when the person indicated he or she would arrive at the place.

3. (5)
   What is a reasonable time to delay questioning to allow the relevant person to speak to a friend, relative or lawyer will depend on the particular circumstances, including, for example, the number and complexity of the matters under investigation.
4. (6)
   Unless special circumstances exist, a delay of more than 2 hours may be unreasonable.

…

431 Cautioning of persons

3. (1)
   A police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code.
4. (2)
   The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person can not hear adequately.
5. (3)
   If the police officer reasonably suspects the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in his or her own words.
6. (4)
   If necessary, the police officer must further explain the caution.
7. (5)
   This section does not apply if another Act requires the person to answer questions put by, or do things required by, the police officer.” [Emphasis added]

31. [31]
    Sections 23 and 26 of the Police Powers and Responsibilities Code 2012 relevantly state:

23 Right to communicate with friend, relative or lawyer

3. (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?’

3. (2)
   If the police officer reasonably suspects the relevant person does not understand the information, the police officer may ask the relevant person to explain the meaning of the information in the person’s own words.
4. (3)
   If necessary, the police officer must further explain the information.
5. (4)
   If the relevant person wants to speak to a lawyer, the police officer must, without unreasonable delay, make available to the person—

1. (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
2. (b)
   a telephone directory for the region.

3. (5)
   A police officer must not do or say anything with the intention of—

1. (a)
   dissuading the relevant person from obtaining legal advice; or
2. (b)
   persuading a relevant person to arrange for a particular lawyer to be present.

…

26 Cautioning relevant persons about the right to silence

3. (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?’

3. (2)
   If the police officer reasonably suspects the relevant person does not understand the caution, the police officer may ask the person to explain the meaning of the caution in the person’s own words.
4. (3)
   If necessary, the police officer must further explain the caution.
5. (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.
6. (5)
   If a police officer cautions a relevant person in the absence of someone else who is to be present during the questioning, the caution must be repeated in the other person’s presence.” [Emphasis added]

32. [32]
    I accept that when the applicant was given a warning about having the right to a lawyer, it did not include the right to inform a lawyer about where he was or that the questioning could be delayed for a reasonable time so that a lawyer could be present. The applicant was also asked whether he wanted to speak to anyone before he spoke to the police and he said “no, no not really”. I accept that the officers also failed to ask the applicant what he meant by “not really.” But given that the applicant had stated that he understood he could call a lawyer; I am not satisfied that there is any unfairness to the applicant arising from these oversights. The applicant clearly understood the warning given to him meant that “I can be quiet and keep me mouth shut or I can speak to a lawyer pretty much.”^[16]      

33. [33]
    Leaving aside (at this point) the issue about what Z had already told the police, I reject the applicant’s submission that there was unfairness to him arising from the fact that he was only cautioned once during the Questioning.

34. [34]
    The gravamen of s 431 is to inform an accused of their right to decline to speak with police. This was done. PCSC Imhoff told the applicant of his rights and the applicant explained his understanding of the warning, exhibiting an awareness that he could “be quiet” and “keep me mouth shut”. It was also explained to the applicant that the conversation was being recorded in the context of the earlier warning and that the recording could be used in court as evidence.

35. [35]
    The applicant submitted and I accept that that the clear intention of the purpose of Chapter 15 of the PPRA is that a suspect being investigated in relation to an indictable offence must be informed about the offences under investigation. The applicant was not critical of PCSC Imhoff for not advising him at the outset that the search warrant related to a rape investigation. The applicant accepted that the officer’s approach was thoughtful and appropriate given his mother and girlfriend were present at the time. Rather the applicant submitted that the “right moment” came shortly afterwards when the offence under investigation was revealed (some 2½ minutes later) and at that point, the applicant’s rights ought to have been revisited - given the serious allegations under investigation. I reject this submission. The applicant had been told of his rights a few minutes earlier. I am not satisfied that by the time he was told of the rape allegation only a few minutes later that he would have forgotten those rights.

36. [36]
    The applicant submitted that the long delay before the actual questioning about the rape offence started, resulted in unfairness. I accept that s 26(4) of the Police Responsibilities Code contemplates that in the event of questioning being suspended or delayed, the caution regarding a right to silence should be revisited. The applicant submitted that as a matter of law and fairness to the applicant there were a number of times during the search when it would have been appropriate to revisit the cautions. For example, “remember getting stopped by police recently”^[17] and later “so what happened at this place where Kristal was, mate.”^[18] I reject the applicant’s submission.

37. [37]
    Whilst it is true that there was some 15 minutes or so of rather innocuous exchanges between the police and the applicant before he was questioned more specifically about the rape, this fact must be considered in the context that the Questioning occurred over a relatively short period of time. There was no delay or suspension of the questioning as contemplated by the section. Whilst the applicant knew at the time his rights were given that the police had a search warrant, he did not ask what the warrant was about and it was not until a few minutes later that the applicant became aware exactly what the investigation related to. There is no reasonable basis for an inference that the applicant had forgotten the earlier warning or that he did not understand his rights at the time the police then started questioning him about the rape.

38. [38]
    It follows that I am not satisfied that there was any unfairness to the applicant in not being warned again after the police told him that they were investigating an allegation of rape or that it was necessary or appropriate to provide the applicant with another warning some 15 minutes later when the specific questioning about the rape started.

39. [39]
    The applicant’s submissions also raised an issue of unfairness arising from the applicant with not being informed that the police were also investigating the offence of wilful damage at the time. This issue is diminished by the fact that the charge of wilful damage – which relates to the writing on the mirror, has been severed from the rape indictment. But given the applicant was provided with a warning about the more serious offence of rape, I am not satisfied that this oversight caused unfairness to the applicant.

Questioning with respect to the DNA evidence

40. [40]
    The relevant questioning of the applicant about his DNA potentially being found is as follows:^[19]

“CON TREZISE Yeah. Is there any reason your D-N-A’s gonna be found on the bed?

DORAN: ‘Cause that’s--

CON TREZISE: Are you gonna be able to explain that?

DORAN: From me like sweatin’ on it, just like sittin’ on it that night ‘cause we were inside drinkin’ and shit. I don’t remember vomitin’ on that [INDISTINCT].

CON TREZISE: Any other liquids?

DORAN: Shouldna been.

CON IMHOFF: When somebody um makes allegations of rape, we obviously have to con-.

DORAN: Take it seriously.

CON IMHOFF: Yeah. And conduct a pretty comprehensive um examination of the person who is making those allegations.

DORAN: Yeah.

CON IMHOFF: Um would there be any reason why your D-N-A would show up on that person or otherwise say, inside them?

DORAN: That’s.

CON IMHOFF: That’s that?

DORAN: Nuh.

CON IMHOFF: No?

CON TREZISE: It’s all good. Like have a think about it. There might be some reason, some reason it might be there.

DORAN: No.

CON TREZISE: Did you see anyone um have sex with Kristal?

DORAN: Nuh.”

41. [41]
    The applicant submitted that his fair trial is prejudiced by these denials which were made at a time when ought to have been clearly told of his rights and were elicited through improper questions. For the reasons stated above I reject that the applicant was unaware of his rights at the time of this questioning. The issue is then whether this questioning was improper.

42. [42]
    It is not in dispute that the DNA analysis had not been completed at the time of the search. I accept the Crown’s submission that no false proposition was made to the applicant. In my view, there was nothing improper in PC Tresize providing the applicant with an opportunity to comment on whether his DNA might be found on the bed or on the person of the applicant. It follows that I do not accept the questioning of the applicant about the presence of his DNA was unfair to him.

Further questioning about what Steve had said

43. [43]
    Near the end of the interview the applicant was placed under arrest for rape after being told by PCSC Imhoff that: “I think we’re done for the search,”^[20] and that he was “gonna have to come with us for now.”^[21] The following exchange then took place between the applicant and PCC Trezise:^[22]

“CON TREZISE: Mate, what would you say if I said that Steve has told us a different story?

DORAN: Oh well I wouldn’t argue with him like ‘cause I was pretty fucked up that night.

CON TREZISE: Okay, so you’re, are you saying there’s a chance you did have sex with ah Kristal?

DORAN: I’m not saying [INDISTINCT].

CON TREZISE: You don’t remember? Okay.

DORAN: Yeah.

CON TREZISE: But you can’t say you didn’t, you just can’t remember?

DORAN: I wanna say I didn’t ‘cause I was.

CON TREZISE: With her?

DORAN: Yeah, but I was pretty fucked up.

CON TREZISE: So obviously at the moment she’s not here and it just needs to be--

DORAN: Yeah, I know.” [Emphasis added]

44. [44]
    The applicant submitted that he ought to have been cautioned again and that he ought to have been told that he’d need not comment on anything his alleged co-offender may have said. The applicant submitted that even though PCSC Imhoff did not tell the applicant what the co-accused Z had said, the implication was clear – that what the applicant had said earlier was inconsistent with what his co-accused had said [when in fact, Z had never admitted rape – only consensual sex].

45. [45]
    PCSC Imhoff and PCC Trezise gave evidence before me on the application. When PCSC’s attention was drawn to the above extract, he was asked whether the applicant motioned towards where his girlfriend Vanessa was located in the house. His response was that “It’s – I can’t – I don’t remember exactly, visually that. But from reading this and listening to that, that makes sense that it’s unfolded that way.”^[23]  Similarly this passage was brought to the attention of PCC Trezise and he agreed at the time that the applicant had motioned towards Vanessa.^[24]

46. [46]
    It follows (and the Crown conceded) that at least at that point of the Questioning, the applicant’s answers were potentially guarded as they were given in the context that he was concerned that his girlfriend was within earshot.

47. [47]
    It was after this context to the applicant’s answers was given by the officers that the Crown identified that it would not be relying on the applicant’s denials [about not having had sex with the complainant] as being lies showing a consciousness of guilt. As stated earlier in these Reasons, the Crown now relies on these statements as lies going to credit only.

48. [48]
    The Crown submitted that it is a matter for the jury to decide if the applicant lied when he denied having sexual intercourse with the complainant or seeing others have sex with her. The Crown also submitted that if the jury are satisfied that it was a lie, it is a matter for them how they assess the credit of the applicant regarding other things that he said in the interview. For example: his explanation that his DNA may be present on the bed from him sitting on the bed and sweating;^[25] that he wanted to “get with” the complainant but “she was saying some fuckin fuck shit so I avoided her;”^[26] and that it was only when the applicant was told that Z said something different to the police that the applicant resiled from his earlier position replying “Ok well I wouldn’t argue with him cause I was pretty fucked up that night,” and later on, ”I wanna say I didn’t cause I was [with Vanessa].”  

49. [49]
    The Crown relied on the decision of R v Sudusinghe [2020] QCA 74 to support its submission about the relevance and admissibly of these statements in the Questioning as going to credit only.  That case is an example of circumstances where lies which went only to credit were admitted into evidence but in my view the facts are distinguishable to the present case for three main reasons.  First, because it is not a case about the exclusion of evidence in the exercise of a discretion.  Secondly, the defendant in that case was not being asked to comment on a co-accused’s version – only earlier apparently inconsistent statements he had made to the complainant during a pre-text call. Thirdly, the defendant was given the opportunity to respond after the excerpts of the covert recording of his earlier conversation with the complainant were played to him.

50. [50]
    I accept that the matters identified by Crown could generally be regarded as questions of credit for the jury. But the issue of whether the lies emerged in the Questioning in such a way that the applicant will not receive a fair trial, remains a live one.

51. [51]
    The authorities establish and the Crown accepted that ordinarily a defendant ought to be warned that he need not comment on statements made by his alleged co-offender.^[27]  The Crown submitted that the failure to warn in this case was a mere oversight and it has not resulted in any unfairness to the applicant. I accept the evidence of both officers that that they were not aware of any specific requirement that they were have to give a caution before putting questions to a suspect about what a co-offender has said.   But I reject the Crown’s submission that this line of questioning did not result in any unfairness to the applicant.

52. [52]
    In my view there are three aspects to the unfairness to the applicant in this case. First, the applicant was not warned that he did not have to comment on what Z had told the police. Secondly, the applicant was not told what it was that Z had told the police. Thirdly, the applicant was challenged on his earlier answers having been told on two occasions that Z had said something different and that he needed to think about what was said.

53. [53]
    In my view, it was not fair to tell the applicant that Z had told a different story without telling him what that different story was. For example, whether Z had admitted to rape or admitted that one or all of the co-accused had consensual sex with the complainant. This, combined with the fact that the applicant was not told, as he ought to have been, that he did not have to comment on what a co-offender had told the police, has led to unfairness in this case - most particularly that the answers might be seen as a retraction of the applicant’s earlier denials. I also do not consider it was intentional in this case but it is not the role of police officers to engage in cross examination of an accused. This was effectively what this line of questioning was about.

54. [54]
    In my view there is, in this case, an overlap between the discretion to exclude on the basis of the unfairness discretion and the discretion to reject evidence which is more prejudicial than probative. The probative value of the alleged evidence of lies is arguably limited by questions of reliability given that the answers were given in the context that the applicant was clearly concerned (at least at one point) about the presence of his girlfriend. There is also is a real risk that the jury may misuse the inconsistencies in the answers to infer (contrary to the Crown case) a consciousness of guilt on the part of the applicant. In the circumstances of this case, such a risk may not necessarily or adequately be addressed by an appropriate trial direction.

55. [55]
    It follows that the admission of the questioning of the applicant about what Z had said is unfair and may jeopardise the applicant’s right to a fair trial.

Conclusion

56. [56]
    Both the Crown and senior counsel for applicant submitted that if I found that this aspect of the Questioning ought to be excluded than it followed that all of the Questioning must be excluded because it would not be possible to edit the transcript fairly. I accept this submission.

57. [57]
    In the circumstances, I am satisfied that the overall effect of the admission of the Questioning would result in unfairness to the applicant in this case that can’t be adequately remedied by a satisfactory direction. I am also satisfied that in the circumstances of this case, the probative value of the Questioning, as evidence of credit lies, is diminished when considered in the context of the prejudice that could result to the applicant in this case. Ultimately, in my view, the applicant may not receive a fair trial unless the Questioning is excluded.

Order

58. [58]
    I therefore order that the evidence of the questioning of the applicant conducted during the execution of a Search Warrant on 3 October 2018 at 13 Geoffrey Miller Avenue, Pimpama be excluded on the ground of unfairness.