R v Zevenbergen[2021] QDCPR 79

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the applicant/defendant seeking an order excluding the evidence of all or parts of his responses to questions posed to him by police officers in the course of two interviews or such other order as the court deems appropriate. 
2. [2]
   The applicant contends that in neither of the two interviews did police officers comply with legislated mandatory requirements regarding the giving of cautions. The defence contends that in those circumstances, the failure by the police to comply with the statutory regime has the effect that:

   1. evidence subsequently garnered during the interviews was obtained unlawfully; and
   2. in all of the circumstances it would be unfair to the applicant to admit that evidence pursuant to s 130 of the Evidence Act 1977.
3. [3]
   The Crown’s position is that in respect of the first interview there was compliance with s 418 of the Police Powers and Responsibilities Act 2000 (PPRA) and there was substantial compliance with s 23(1) of the Police Responsibilities Code 2012. If the court finds there was substantial noncompliance, the interview should not be excluded as there was no unfairness to the applicant.
4. [4]
   In respect of the second interview, the Crown concedes there was no compliance with s 418 of the Act or s 23 of the Code but contends it is not unfair to admit the evidence in all of the circumstances. 

The charges

5. [5]
   The applicant is charged alone with two counts of sexual assault and one count of wilful damage and, with others, with committing multiple offences of rape on 1 October 2018. His defence to those charges is that any sexual conduct engaged in by him and his co-offenders occurred with the consent of the complainant. The applicant’s written outline confirms that his responses during the course of the two interviews are consistent with that defence.^[1]

The circumstances of the interviews

6. [6]
   The first of the two interviews were conducted at the Southport Police Station on the afternoon of 2 October 2018, the day following the alleged offending. This interview took 28 minutes^[2] and was led by Senior Constable Lamperd, with Constable Trezise present (‘first interview’). 
7. [7]
   The next interview was conducted was Southport Watchhouse about six hours after the first interview. By this time the applicant had been arrested and was in custody. The transcript of this interview suggests it was commenced at about 8.20pm and concluded at 10.16pm a duration of about one and three quarter hours. This interview was led by Constable Trezise and Sergeant Davis was present (‘second interview’).
8. [8]
   The parties urged me to watch the recordings of interviews and I have done so. 

The statutory framework

9. [9]
   By reason of section 415 of the PPRA, Chapter 15 Part 3 of that Act applied to the interviews conducted with the applicant, because the applicant was a relevant person in the company of a police officer for the purpose of being questioned as a suspect about his involvement in the commission of an indictable offence.

10. [10]
    That meant that the police conducting the questioning of the applicant were, relevantly:

    1. not to obtain a confession by a threat or promise;^[3]
    2. required by s 418(1), before the questioning started, to inform the applicant that he may: 
       1. 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. 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. required by s 418(2) to delay the questioning for a reasonable time to allow the person to telephone or speak to such a person;
    4. required to delay the questioning for a reasonable time to allow the other person to arrive, where the applicant arranged for someone to be present;^[4] and
    5. to caution the applicant in the way required under the responsibilities code.^[5]
11. [11]
    Further, in respect of the first interview (or part of it), the PPRA provides that where the police officer wanted to question or to continue to question a person such as the applicant who is apparently under the influence of liquor or a drug, the police officer must delay the questioning until reasonably satisfied the influence no longer affects the person’s ability to understand his rights and to decide whether or not to answer questions.^[6] 
12. [12]
    Section 23 of the Responsibilities Code provides: 

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

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

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

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

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

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

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

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

13. [13]
    Other parts of the Responsibilities Code include provision in section 26 for the method of providing the caution about the right to silence.

The first interview

14. [14]
    The police informed the applicant in the first interview of his right to silence and that the interview was being recorded.  They then advised him of his right to telephone or speak to a friend, relative or lawyer. The Crown accepts that the police failed to ask the applicant if there was anyone he wished to telephone or speak to. It contends police are not required to warn in verbatim terms set out in s 23 of the Code. That is apparent from the terms of the opening paragraph of s 23(1) which provides that the officer must inform a person in a way that substantially complies with the matters then set out (emphasis added).

15. [15]
    The Crown contends that when the warnings given are read as a whole there was substantial compliance with the requirements of s 23(1).
16. [16]
    A review of the transcript shows that the police officer expressly said to the applicant that if he didn’t have a lawyer that police could find one for him. I observe that that is a matter which goes beyond the requirements in s 23(1) of the Code. 
17. [17]
    A number of the other requirements of Chapter 5 Part 3 were met: 

    1. the police officer asked him whether any threats had been made to him to participate in the interview and he confirmed no;
    2. the applicant was asked whether he had been promised anything to participate in his interview and he answered no;
    3. the applicant was asked if he was under the influence of any drugs or alcohol and he identified he had taken some medication, being Lyrica and Paxam which were for pain in his back and his anxiety. He told police he had taken that medication ‘this morning’ and that it makes him feel buzzy and a bit light in the head. He was expressly asked whether it affected his understanding of what was going on and he replied no^[7];
    4. the applicant was then further asked whether he understood that what was happening today and he understood all his cautions and he said yes;
    5. the applicant was asked whether he had all his faculties about him and he said yes. He was asked whether he had had any illegal drugs and replied no or any alcohol and replied no; and
    6. he was asked whether he understood that he was not under arrest at that time and he said yes. He also asked whether he understood he was free to leave at any time until he was arrested and he said yes. At that point the interview commenced.

18. [18]
    The Crown submits in those circumstances the applicant was aware of his right including his right to communicate with a friend, relative or lawyer and able to effectively exercise his rights as was demonstrated by his later discussion with police when he asked to cease the first interview.^[8] He is also someone who has completed year 12 education and can read and write English, as is evidenced by his understanding and response to the police asking him if he has his faculties. 
19. [19]
    The Crown did not lead evidence from the police officers who conducted the first interview on this question but made submissions based on the first interview itself as to what was ‘apparent’ about the applicant’s state of intoxication.  The Crown does not accept it was plain on the face of the first interview that the applicant was intoxicated, from the way he conducts himself in the interview.^[9]  To accept the submissions for the applicant that he was intoxicated from the outset of the interview, the Crown contends, is to draw an inference contradictory to what the applicant was telling the police.^[10] The medication is medication he had taken that morning, it is medication he takes regularly and he does not volunteer that it is medication that affects his memory.^[11]
20. [20]
    The Crown submits that taking the first interview in total after he discussed with the police about his medication at the outset, he continued to participate in the first interview, he was able to provide background details in the lead up to the offending and that he first raised the issue about medication affecting his memory when he was queried about how he arrived at the location where the offending occurred, and he changed his version. At that point he said he was “freaking out” due to the allegations. After further discussion about the offending he told the police he was “fucked” on his medication which, the Crown submits, represented a significance change in his position to earlier in the interview and police stopped the interview shortly thereafter.

21. [21]
    Counsel for the applicant submitted it is apparent from the recordings he was clearly more affected by drugs in the first interview than he was in the second interview^[12]. The applicant’s mannerisms and behaviour suggest what appears to be a state of drug induced intoxication.  Whilst the police asked him if he understood his cautions, and he said he did, they did not test that in the form of a statement such as “Can you use your own words now and tell me what I mean by …”. Further, after some discussion with the Court, Counsel for the applicant also contended that at points in the first interview involving statements such as  “It’s important to tell the truth …”^[13] that the questioning was improper, and perhaps in the form of a direction.^[14]
22. [22]
    Counsel for the applicant, basing his application on the discretion to exclude for unfairness, referred me to the observations of Brennan J in Foster v R^[15] where his Honour said relevantly:

“… the distinction between the … bases of exclusion [inadmissibility because it as involuntary or in the exercise of the judicial discretion on the grounds of unfairness] is clear enough in principle but not in practice. … If the conduct of police departs from appropriate standards of fair conduct in an investigation but it has not resulted in the overbearing of the confessionalist’s will why is it unfair to use a voluntary confession ?  … where the evidence of a confessionalist’s reaction to police conduct has not sufficiently demonstrated an overbearing of the will, but the conduct itself has had such a grave tendency to unfairness as to lead the court to think that there is a real risk that the will may have been overborne, a rejection of a confession has sometimes been founded on upon the discretion rather than upon a finding of involuntariness. And so the discretion has butressed the protection of the confessionalist”.  

[Citations omitted] 

23. [23]
    Foster is a case which is factually far removed from the present one. There the appellant was charged with setting fire to a school in a country town. The prosecution case rested on a seven line typed confession which the appellant had signed whilst he was held in custody at the police station, it was the only evidence of his involvement in the fire. Some 10 days after the fire (on 4 August 1987), the appellant, a 21 year old indigenous man, was unlawfully picked up by police in the place where he lived, which was about half an hour away from the town where the school was. He was ordered into the police vehicle and taken to the police station where he was questioned by either two or three police. Before and at the commencement of the interrogation he denied any involvement in the fire. Within less an hour, he had signed the confessional statement in which he unequivocally admitted he and some unnamed companions had broken into the school and set it alight.  The applicant maintained he had signed the confession because he had been threatened by the police with being bashed and that the police would pick up his younger brother. Before the High Court it was common ground that the appellant’s arrest was unlawful and that he signed the confessional statement whilst he was being unlawfully held in custody.^[16] Brennan J observed that the police acted unlawfully in taking the appellant from his home to the police station for interrogation and they kept him in custody and interrogated him in isolation. The confession they procured was the only evidence they had against him. There were a number of police with him at all times and there was no independent witness to confirm or deny the truth of what the police said. There was no exigency in the investigation which made it necessary or desirable for the police to act as they did. These circumstances made it unfair to use the confession. 

24. [24]
    By contrast, this is a video and audio recorded interview, where the applicant is a voluntary participant and where the applicant’s demeanour and participation can be objectively and dispassionately assessed. To my mind, whilst the applicant is a little clearer in the second interview, he presents still as ‘slouching’, he does on occasion mumble, and his answers are at times vague. Of course, though, the assessment of whether s 423 of the PPRA applies must be made, in my view, on an assessment of the first interview alone, because it is those circumstances which confronted the interviewing police and it is those circumstances which have to be assessed to ascertain if the applicant was ‘apparently under the influence’ such that questioning should have been delayed. 

25. [25]
    Counsel for Mr Zevenbergen accepted he was a willing participant in each interview viewed objectively. However, he submitted, the circumstances of the first interview, given his intoxication, raised the spectre of unfairness.^[17] Counsel contended that whilst the Responsibilities Code didn’t require the police to pause to clarify if the applicant was understanding the cautions he was being given, the purpose of the Responsibilities Code is to ensure that he understands and a way to test it was to ask him what to explain it.^[18] This submission was advanced in respect of the first interview, on the basis of the impact the medication was having on him.^[19] Whilst Counsel accepted the police had tried to assess whether he understood and police did not have any obligation in s 23 of the Responsibilities Code to truly test whether he understood the cautions which have been explained to him, they were required by s 423 of the PPRA to cease the interview if they formed the view he was suffering from a degree of intoxication.
26. [26]
    In the event that I was not minded to exclude the entire first interview, Counsel for the applicant contended that at page 28 line 19, where the applicant said “I’d rather be clear” that if not already on notice, the police should have been on notice that they were dealing with a man with an impediment.^[20] The Crown accepted that if I determined to exercise my discretion at a point in the first interview by reason of what the applicant is then saying, the point identified by the applicant is the appropriate point.^[21]

27. [27]
    Having watched the first interview, I observe that the applicant was mostly looking at the police. He was hunched over in his seat. His speech was, on occasion, indistinct, through mumbling. He said he understood what was going on. He was generally responsive to questions (although his answers were often vague and cast in imprecise and crude language). He was clearly following the questions the police were asking. He was sometimes slow to respond. On occasion, he asked the police to repeat the question.^[22] His demeanour at the outset of the interview (particularly where the police were administering the cautions), coupled with the answers he was giving to questions, suggests he was fully comprehending what was occurring. Accepting those observations, there was nothing in his presentation per se, to my mind, to have put the police on alert at the start of the first interview, that he was under the ‘apparently influence of medication’ such that the first interview should not have proceeded at that time.

28. [28]
    Working from the transcript of the first interview^[23] at page 17, after a particularly vague answer to the simple question of how the applicant got to the location where the complainant was the night before, the police officer said to the applicant “Mate your memory seems a bit fuzzy, why is that ?” Thus it can be seen that it is the police who first introduce the subject of the memory difficulties.  The applicant replied  “It’s from my medication. I’ve had a lot o’ medication this morning” and he says that it affects his memory “Like I’m not on point today, you know, I’m a bit slow”. He confirms he understands what the police are doing. When the officer said  “You’re just having a bit memory lapses” he responded “ …not memory lapses, ...like it’s a bit hard for me to like… well I someone, I’m freakin’ out, like going what the f***, you know what I mean as well like”.  The questioning and answering continued for about another eight pages, where the topics covered are how they arrived at the complainant’s location, what happened when they got to the complainant’s location,  what the complainant was doing, and the turn of events the night took. 
29. [29]
    The interview then got to the point of when the applicant got into bed with the complainant. I infer from the entire transcript of both interviews that this is the point in the first interview which precedes and is proximate to the events the subject of the rape counts. At that point, the police officer conducting the questions said it was important that they were very clear on what he was saying. In response,  the applicant said to the police that he would prefer to do the interview when he’s not so much under the influence of his mediation. That appears at the top of page 27 of the 32 page transcript of the interview, that is substantially after the bulk of the matters in the interview have been provided. In that passage he again confirms that “I was like, I do understand what’s goin’ on you know… In a way like we’re gettin’ interviewed about fuckin’ somethin’ that’s bullshit … You know what I mean. A complaint … and it’s fuckin’, and that shit did not happen mate, you know”.  He confirms further to police that he understands what’s going on and he then goes on to answer some more simple questions about the offending and is plainly able to give an account differentiating between the points in time as to when he had sex with the complainant.

30. [30]
    On one view of it, when assessing the applicant’s answers, the applicant could be said to have participated fully in the whole of the first interview. However, in the face of his express indication that he wished to answer those further questions when he was not so much under the influence of his medication, in my view, the police should have ceased the first interview at that time. 
31. [31]
    In my assessment: 

    1. the applicant was oriented as to time, place and circumstance when the first interview started;
    2. whilst the police failed to ask him whether there was someone he wanted to talk to, this is somewhat ameliorated by the fact they said they could arrange someone if he didn’t have someone. This statement should have assisted the applicant to understand he could have someone present if he wanted;
    3. he explained that he was on medication but he said that he understood what was occurring. His general ability to follow the police questions and answer them suggests that he understood what was occurring; 
    4. the questioning on the occasion when the police officer said to him it is important to be one hundred percent honest^[24] is not improper. It arose after an answer which was improbably vague. The questioning was cast in terms of the importance of getting the best detail possible; and
    5. he was able to say to the police that he wished to stop answering questions, by reason of his medication.  Whilst my assessment is that he continued following what was going on, in view of the indication he gave, at that point (being the point jointly agreed by the parties) the interview should have stopped. 
32. [32]
    In these circumstances I rule: 

    1. there was compliance with s 418 of the PPRA and substantial compliance with the requirements of s 23 of the Responsibilities Code; 

2. that section 423 of the PPRA was not applicable at the start of the interview; 
3. the obligation under s 423 of the PPRA was triggered at page 28 line 19 because, at that time, it was apparent that the applicant was at least claiming to be under the influence of medication. As a matter of fairness, the police should have ceased the first interview at that point; 
4. the first interview should be excluded from evidence at the point of the interview which accords with page 28 line 19 of the transcript to the end; and
5. the application in respect of the first interview is otherwise dismissed. 

The second interview

33. [33]
    The next interview commenced at the Southport Watch House at approximately 8.30pm. It lasts for about one and three quarter hours. It is conducted by one of the officers who was present at the earlier interview, and a different officer. 
34. [34]
    Counsel for the applicant submitted that it was apparent from watching and listening to this interview, the applicant was no longer affected by whatever had been affecting him before. However, he submitted that because the applicant was never asked or tested on his recollection of what he’d been told earlier about the cautions and rights, we do not know what understanding he had in the second interview of his rights.^[25]
35. [35]
    Counsel for the applicant submitted that the interviewing officer did not approach the second interview on the basis that it was a resumption of the first interview because he doesn’t talk about it being a resumption of the interview.^[26] There are two interviews, separate in time, circumstance and location.
36. [36]
    Whist the account the applicant gave to the police in the interview will be entirely consistent with the conduct of the applicant’s defence at trial, the applicant’s counsel submitted the unfairness arises from the context in which the interview was conducted, the language the applicant used “not so much what he says but how he says it”,^[27] observing that the applicant presents as arrogant, sexist and obnoxious. The applicant’s counsel submitted the second interview will not be well received by a jury.^[28] The applicant will be prejudiced if the jury hears what he says and how he said it.^[29]

37. [37]
    The Crown accepts that police did not comply with the requirements in s 418 of the Act or s 23 of the Code and thereby that the discretion to exclude the interview is enlivened. It points to the fact that this interview was voluntary.^[30] The Crown also submits that the question on exclusion for unfairness is the effect of the unlawful conduct on the defendant. There is no link the Crown submitted between the unlawful conduct (being the failure to give him the information required in s 418 of the PPRA) and what the applicant complains of, which is how he presents in the interview   
38. [38]
    The Crown submits that non-compliance does not of itself mean the interview should be excluded relying on the decision in R v LR [2005] QCA 368 at [51]. 
39. [39]
    There Keane JA observed the following:

“…The circumstance that the record of interview was obtained in contravention of the PPR Act does not of itself mean that it should have been excluded by the learned trial judge. Illegality or impropriety on the part of law enforcement officers that results in the making of a confession merely enlivens a discretion to exclude the confession on the grounds of unfairness. The provisions of the PPR Act to which I have referred do not purport expressly to govern the admissibility of evidence, but the authorities suggest that they are to be "regarded as a yardstick against which issues of unfairness (and impropriety) may be measured”.

40. [40]
    Keane JA observed that the purpose of the provisions concerning the right to consult with a lawyer was to ensure a suspect is able to obtain advice about what should be said to the police, such that they are aware of and can exercise their right to silence in the face of police questioning.^[31]
41. [41]
    At [52] Keane JA observed that the discretion to exclude confessional evidence should be exercised where voluntariness is not an issue, by reference to considerations of reliability and respect for the rights of an accused to stay silent.  His Honour set out the following passage from The Queen v Swaffield:

“… the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.”

42. [42]
    In LR, (which was an appeal against conviction for two counts of rape), Keane JA observed at [53] and [54] that:

    1. the interview showed the appellant to be quite seriously affected by alcohol when he gave it;
    2. the appellant’s father had sought, unsuccessfully, to have a solicitor present before the interview proceeded (the police had simply ignored the father); 
    3. the appellant’s interview contained passages prejudicial to the appellant which went beyond and contradicted the complainant’s evidence in a manner which was highly prejudicial to the appellant, including referring to the complainant having been crying (which may give rise to lack of consent issues) and the appellant’s invitation to ‘lock him up’ which may have been taken as a consciousness of guilt; and
    4. the judicial discretion fell to be exercised against the background that the interview had proceeded in breach of provisions of the PPR Act, designed, not merely to protect against the possibility of coerced confessions but also to ensure the reliability of what an accused may say against his own interest and to ensure the free exercise of the right to remain silent. 
43. [43]
    At [55] he observed that there may be cases where, despite a confession being obtained in breach of the requirements of the PPRA, there is no real reason to doubt that the accused was willing and able to give a reliable account of events. However, in LR he held the confession should have been excluded in the exercise of the fairness discretion. 
44. [44]
    I turn now to the specifics of this interview. At the outset of the second interview the police introduced themselves. They then administered certain of the cautions required by the PPRA: 

    1. that there was no threat or promise to participate in the interview (including asking the applicant to explain what a threat or a promise is); and
    2. that he has the right to remain silent. They ask him to explain it back and he says “Anything  I say can be used as evidence” and he confirms he does not have to answer any of the police questions.^[32]
45. [45]
    The applicant is asked if he can read and write English and he confirms he can.^[33] After traversing the events of the day, there is the following exchange:

46. [46]
    Whilst the police officer does not use the words “delayed” or “resumed” the use of ‘stopped’ and ‘go ahead’ might suggest a resumption. I accept that the police did not specifically indicate at any point in this interview that it was a resumption of the first interview which had been delayed earlier that afternoon. As such, I proceed on the basis that it is a second interview, rather than a resumption of the first interview. 
47. [47]
    The fact that the applicant had been provided with some of the information required by s 23 of the Responsibilities Code earlier that same day, in circumstances where I have found that that interview is not unfair when it commenced, is not wholly irrelevant to the question of overall unfairness.  In these circumstances, at the start of the second interview the applicant cannot be taken to have been wholly unaware of his right to ask for a lawyer or other person to be present at the interview.     
48. [48]
    Other relevant aspects to the interview, to my mind are: 

    1. the applicant is keen to get his version of events on the record. As the police commence subject matter specific questions he says: “ … can I just explain this whole situation …”^[34] and proceeds to give his version of the events of the night, uninterrupted by the police; 
    2. at various points the applicant refuses to provide names of others involved when asked to do so;^[35]
    3. the applicant gives a reason for speaking with the police. At page 68 the transcript records: “… I never even do these fuckin’ interviews you know but I wanna get this story straight so I can get my point across to youse to what has happened. It’s not you know. … So you can fully understand what’s happened that night you know. So, …  well, my recollection of what has happened that night”;^[36]
    4. At the end of the interview the applicant again says the allegations are absolutely bullshit and this was all consensual sex.^[37]
49. [49]
    There is force in the applicant’s barrister’s submission that the applicant presents in this interview as arrogant, sexist and obnoxious.  Those circumstances do not, however, impact in any way on the issue of the reliability of the interview identified by Justice Keane.  
50. [50]
    As can be seen from the above, the factual circumstances of LR were significantly different from those here in several respects. In this instance: 

    1. the applicant was not affected by any substance at the time of this interview;
    2. the applicant expressed a positive desire to tell the police what occurred; 
    3. the applicant had the caution concerning the right to silence explained to him and he repeated back what it meant and the use that could be made of answers he gave; 
    4. the applicant was someone who understood that it was possible not to do these interviews and that normally, in fact, he did not do them; 

5. at points in time the applicant exercised his right to silence by refusing to answer the police questions; and 
6. the applicant was stout in maintaining his innocence of the charges because the sex was consensual. 

51. [51]
    As noted in LR, the purpose of the caution concerning the right to have a lawyer or other person present is for a person to be able to obtain advice about the right to silence and its exercise.  The applicant demonstrated, during the interview, a clear understanding of the fact of the right to silence and he exercised it on occasion. 
52. [52]
    This is, to my mind, a factual situation within that contemplated by Keane JA where there is no reason to doubt the applicant was willing and able to give a reliable account of events.
53. [53]
    I decline to exclude the second interview from the trial of the applicant.