R v Morton[2022] QDCPR 11

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This application was heard on the 7^th of February 2022 in Townsville and, on that day, I indicated that the application was dismissed.  I further explained that that urgent determination in relation to the application related to the fact that the matter was listed to proceed as a Judge alone trial before Judge Lynham of this Court commencing on the 8^th of February 2022.  I indicated that I would deliver reasons in respect of this application to follow and these are those reasons.
2. [2]
   On the 31st of January 2022 an affidavit was filed in this Court under the hand of Julie Anne Kefford, a solicitor employed at the Aboriginal and Torres Strait Islander Legal Service North Queensland.  Ms Kefford acted on behalf of the applicant Millicent Agnes Morton.  It was noted that it was intended to file an application to seek to exclude any record of the conversations between the applicant and two police officers, who had conducted attendances with her on the 21st and 22nd of December 2017.  The first of those was a conversation between the Applicant and Detective Sergeant Dean Robert Faint on the evening of the 21st of December 2017, and the second related to a conversation between the Applicant and Senior Constable Shannon Luke on the morning of the 22nd of December 2017.
3. [3]
   The argument arose as a result of a concern that the information obtained in the exchanges between the applicant and the police officers was either contrary to the requirements arising pursuant to the provisions of section 415 of the Police Powers and Responsibilities Act 2000 (Qld) or, alternatively that, pursuant to the provisions of section 130 of the Evidence Act 1977 (Qld), that it would be a situation where the nature of the discussions were so prejudicial to the applicant that they should be excluded.
4. [4]
   I shall come to the second argument with regard to the provisions of section 130 of the Evidence Act 1977 (Qld) in due course, but it is necessary first and foremost to deal with the issues that arise as a result of the concern expressed in respect of section 415 of the Police Powers and Responsibilities Act 2000 (Qld).
5. [5]
   Section 415 of the Act is in these terms:

415 When does this part apply to a person

1. (1)
   This part applies to a person (relevant person) if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.
2. (2)
   However, this part does not apply to a person only if the police officer is exercising any of the following powers –

(a)  power conferred under any Act or law to detain the person for a search;

(b) power conferred under any Act to require a person to give information or answer questions.

6. [6]
   What is noteworthy, of course, is that the section specifically relates to a person known as a “relevant person”, if that person is in the company of a police officer for the purposes of being questioned as a suspect about his or her involvement in the commission of an indictable offence. 
7. [7]
   The argument on the part of the applicant in relation to this matter relates specifically to the conversations, admissions or confessions as they are described on the part of the applicant in her discussions with Detective Faint on the 21st of December 2017 and in respect of conversations between the applicant and Senior Constable Luke on the 22nd of December 2017.
8. [8]
   Some background information is important to be understood in relation to the nature of the application.  The indictment that has been presented is in these terms:

That on the 21st day of December 2017 at Townsville in the State of Queensland Millicent Agnes Morton wilfully and unlawfully set fire to a house.

9. [9]
   A brief explanation, as I have said, is important to understand the background in relation to this matter. The complainant is Ronson Stephen Pickles.  He and the applicant were in a relationship for a short period of time though there does appear to be some degree of confusion as to whether it might be three months, six months, seven months or 10 months in duration, depending upon certain statements made either by the applicant, the complainant or by the applicant’s daughter, April. 
10. [10]
    The complainant resided at a residence at 5 Willis Street, Vincent.  He had resided at that home for a period of approximately 40 years, the home being owned by the Department of Housing, and the residence previously occupied by the complainant’s mother and then by the complainant.
11. [11]
    During the period of the relationship, though again it is not entirely clear for what period, the complainant and the applicant resided on occasion at the residence at 5 Willis Street, Vincent.  On the 21st of December 2017, the complainant indicates that he left his residence at about 5 pm and prior to departing had secured the home upstairs and downstairs and, as was his practice, had disconnected or turned off all electrical items. 
12. [12]
    What also appears to be accepted is that a little later, at or about 6.30 pm the complainant attended the applicant’s daughter’s residence and stayed at the residence awaiting the return of the applicant.  The applicant was not present at the time and about an hour after the complainant arrived at the applicant’s daughter’s residence, his home was engulfed in flames.  The home was completely destroyed.
13. [13]
    Neighbours in residences that were in the same locality as the home at Willis Street told police that they had observed a woman, who had an appearance consistent with that of the applicant, leaving from the direction of the complainant’s home a short time prior to the fire first being noticed.  The complainant became aware of a fire at his residence, and he returned by bicycle at about 8 pm to see the home engulfed in flames. 
14. [14]
    He was distressed and had to be restrained by police.  His distress in no small part, no doubt, arising from the fact that whilst the residence was the property of the Department of Housing, he had no personal contents insurance and all of his possessions were destroyed in the fire.
15. [15]
    The applicant was noted as a person who had, on occasion, been residing at the home.  The complainant advised police of the fact that the applicant had resided at the home and that he had some concerns in relation to, it would seem, both the well-being of the applicant, but also a concern expressed by him, albeit as described by two of the police officers, “in an hysterical state” as being the person who may have been responsible for lighting the fire. 
16. [16]
    As a result, it was said of concerns held by police officers in relation to the welfare or well-being of the applicant, steps were taken by police officers to locate the applicant. Police officer Faint and the investigating officer, Charlene Joy Saunders, a detective senior constable, became aware of the fact that the applicant was suspected of then being at her daughter’s residence at 43 Hodges Crescent, Vincent and therefore attended for the purposes of what was described as, a welfare check.
17. [17]
    When attending at the residence of April Saunders at 43 Hodges Crescent, Vincent on the evening of the 21st of December 2017, both Detective Senior Constable Saunders and Detective Sergeant Faint indicated that they were there for the purposes of a welfare check.  Reference was made specifically to notes that were prepared by both those police officers in relation to their communications with the complainant and other witnesses from whom some form of statement was taken or information was obtained and, as a result of that, the police officers set about to locate and ensure the welfare of the applicant. 
18. [18]
    It is noteworthy that Detective Sergeant Faint made reference in his typed notebook records prepared later on the evening of the 21st of December 2017, that the complainant noted that the applicant may have been at the house and may have set it on fire. 
19. [19]
    It was also noteworthy, that the typed notes specifically made reference to the fact that there was a concern with the emotional state of the complainant, noting as I did before, that both he and Detective Senior Constable Saunders referred to him as hysterical and that the notes of Detective Sergeant Faint go on to note as follows:

At this stage cause of the fire is undetermined but it may be suspicious due to no-one supposed to be at home at the time and the possible seat of the fire, vehicle underneath house containing no ignition sources.

20. [20]
    What was emphasised for the Crown in that regard is that the specific indication given in the notation prepared by Detective Sergeant Faint is that the cause of the fire was undetermined.  Detective Senior Constable Saunders also noted that the agitated state of the complainant meant that it was difficult to establish who might otherwise have been at the residence and that there were therefore concerns as to the welfare of the applicant, leading to the efforts to locate the applicant.
21. [21]
    The reliance upon section 415 of the Police Powers and Responsibilities Act to seek to exclude the interview conducted between Detective Sergeant Faint and the applicant relates to whether or not there was a suspicion held by Detective Sergeant Faint and/or Detective Senior Constable Saunders as to whether she may or may not have been responsible for the fire at the residence.  What is also clear, however, from the recording is that at all times Detective Sergeant Faint indicated that it was his desire to ensure that she was safe and that she was not injured or otherwise harmed.
22. [22]
    The nature of the conversation between Detective Sergeant Faint and the applicant is one of inquiry and concern as to the welfare of the applicant.  The recording of the exchanges between the police officer and the applicant are telling in my assessment because at all times it was clear that the police officer was concerned with the issue of welfare. 
23. [23]
    I note the argument put specifically on the part of the applicant that the question of the welfare of the applicant could have been determined within moments of meeting with her, identifying her as Millicent Morton and her acknowledgement that she was not in any way injured or harmed. At the early stages of the exchange between Detective Sergeant Faint and the applicant he indicates as follows:

Someone told me that you’d been over at Ronson’s place.  I wanted to make sure you hadn’t got injured or anything.

24. [24]
    Thereafter, the applicant makes statements which are of an exculpatory character as well as statements relating to her whereabouts and, in particular, not being at the residence of the complainant. 
25. [25]
    As the exchange continues, it is noteworthy that, whilst the applicant is the one who raises and makes comments about the fire at the residence at Willis Street, it is a recurring theme that Detective Sergeant Faint acknowledges that he wishes to just make sure that she is okay and, in fact, makes reference to her attending at the Townsville Aboriginal and Islander Health Service to ensure that she is well.
26. [26]
    To suggest that a perfunctory inquiry and then to walk away would be a suitable basis to establish whether or not the welfare of the applicant had been met, flies in the face of the obvious concerns that were shown particularly by Detective Sergeant Faint in respect of her welfare.  I am satisfied that that was, in fact, the only basis upon which the attendance was made by Detective Sergeant Faint and Detective Senior Constable Saunders on the 21st of December 2021. 
27. [27]
    I shall come to the consequences of that in a moment but would firstly refer to the second of the interviews and recordings which were the subject of this application.  It related to the attendance by Senior Constable Luke at the residence of the applicant’s daughter, April Morton at 43 Hodges Crescent, Vincent.  That occurred the next day and arose specifically as a result of a triple O telephone call made by the applicant at about 8.45 am on that morning, requesting police attendance at her residence. 
28. [28]
    Senior Constable Luke, in cross-examination, was asked whether he had any knowledge of the fire the previous evening, and he specifically indicated that he had no knowledge and had attended at the residence at Hodges Crescent purely for the purpose of dealing with the concerns expressed by the applicant.  I had the opportunity of seeing Senior Constable Luke give his evidence and also to specifically view the body-worn camera footage of the attendance and the residence at 43 Hodges Crescent, Vincent on the morning of the 22nd of December 2017.
29. [29]
    It is clear, and it became more clear as time passed, that Senior Constable Luke was there for the sole purpose of investigating the domestic violence complaint that had been made.  It was further apparent that Senior Constable Luke had no knowledge of the incident the previous evening noting that it was the applicant who raised the issue of the fire at the residence at Willis Street, and it was the applicant who raised the fact that it was the complainant who was blaming her for that. 
30. [30]
    Notwithstanding that indication given by the applicant of the reason for the complainants attendance at her residence, which then led to the triple O call, Senior Constable Luke maintained a focus directly on issues with regard to the complaint with regard to domestic violence and his appropriate inquiries there.
31. [31]
    As argued by the respondent in relation to this matter, it was the applicant who repeatedly made reference to the fire, and it was Senior Constable Luke who sought to obtain details in relation to the concerns expressed with regard to the threats made by the complainant.  That is further shown by the fact that Senior Constable Luke extended his inquiry to take information from the applicant’s daughter, April Morton and her partner Jonathan Roy, and that the sole focus of any inquiry by him related to the incident on the morning of the 22nd of December 2017. 
32. [32]
    Perhaps most telling of all in that regard is that it was Senior Constable Luke who took steps to issue a police protection notice naming the applicant as the aggrieved and the complainant as the respondent.
33. [33]
    Senior Constable Luke was, like Detective Sergeant Faint and Detective Senior Constable Saunders, a believable and in my assessment entirely honest witness.  All police officers were involved for the purposes of interviews with the applicant for reasons other than those that in any way related to suspicions held in respect of the fire at Willis Street on the evening of the 21st of December 2017. 
34. [34]
    Arguments were put on behalf of the applicant to suggest that the mere mention by the complainant of a suspicion held by him, without any factual basis able to be shown, to the effect that the applicant had commenced the fire, meant that out of fairness, the applicant should have been cautioned in relation to the inquiry as to her welfare.  I could not, however, disagree more.
35. [35]
    The police officers categorically denied that there was any suggestion that there was a basis upon which it could have even been suspected that the applicant was possibly involved in the starting of the fire at Willis Street.   Subsequent inquiries clearly gave rise to some suspicions in that regard, but the attendance on the 21st of December 2017 related purely to the concerns expressed with regard to the welfare of the applicant. 
36. [36]
    Arguments that chapter 15 of the Police Powers and Responsibilities Act 2000 are in place to ensure that there are safeguards, so as to ensure the rights and fairness of persons questioned in respect of an indictable offence, do not arise in circumstances where an inquiry is being made as to the welfare and well-being of a person who may have been, on the limited information available, at the residence and particularly in circumstances where, as was described by Detective Senior Constable Saunders the fire officers present were unable to inspect the property and therefore ensure that there were no persons there.  Appropriate inquiries were therefore required to be made.
37. [37]
    There were similar arguments also put in relation to the provisions of section 418 of the Police Powers and Responsibilities Act which is in these terms:

418 Right to communicate with friend, relative or lawyer

1. (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 –

(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

(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.

38. [38]
    They make reference to the specific requirements that arise where an Aboriginal person is concerned and that that person should not be questioned unless a support person is present and other specific steps are taken with regard to ensuring representation of an appropriate nature if necessary.  Such requirements are, of course, understandable and appropriate but the fact is here that there was no basis upon which it could be argued that the police officers attending with the applicant on  the 21st of December 2017 were doing other than making inquiries as to the welfare and well-being of the applicant.  It was the applicant who raised issues which were never the subject of inquiry by Detective Sergeant Faint or Detective Senior Constable Saunders until such matters were raised by the applicant. 
39. [39]
    It was not a situation where Detective Sergeant Faint or Detective Senior Constable Saunders had a suspicion that the applicant was involved in some way with the offence.  Their attendance was purely for the purposes of a welfare check and to suggest that an exchange of eight minutes or so was excessive and utilised for the purposes of gathering information, fails to appreciate that proper inquiry was being made by the police officers. 
40. [40]
    As I have previously noted, were it to have been the case that a perfunctory inquiry was made only to then subsequently find that there were some underlying injuries sustained in some way by the applicant, would no doubt have given rise to complaints as to the police officers failing to properly assess the welfare and the well-being of the applicant. 
41. [41]
    An argument of a somewhat similar nature arises in relation to the inquiry by Senior Constable Luke on the morning of the 22nd of December 2017.  There, Senior Constable Luke assessed that, as the applicant had consumed liquor and appeared to be under the influence of some substance, he was not prepared to take a statement.  To suggest that this showed, in some way, a lack of appreciation of the fact that no inquiry should have been made, flies in the face of the fact that it was the applicant herself who sought the attendance and involvement of the police. 
42. [42]
    To suggest, as appears to flow from what was argued in respect of this matter that as there might be a suggestion of intoxication no inquiry should further be made is, with respect, unable to be justified. Rather it was the case that particulars were taken at the time when they were clearly fresh in the applicant’s mind, and it was the clear intention of Senior Constable Luke to, at another time when there was no suggestion of impairment of the applicant, to obtain a sworn statement.  It was not a case of evidence gathering and no such suggestion could arise in relation to these particular proceedings.
43. [43]
    I am satisfied, as I have indicated that, therefore, that there is no basis upon which it could be considered that the applicant was a relevant person pursuant to the requirements arising in section 415 of the Police Powers and Responsibilities Act as argued for the respondent.  It is the threshold question for determination and, if there is no suggestion that the applicant is, or was a relevant person at the time of those interviews, then obligations that otherwise flow do not exist.
44. [44]
    I was referred to a number of cases by both the applicant and respondent and note, in particular, the applicant’s reliance upon the R v Bondareff [1999] 74 SASR 353 at 369.  Of greater assistance, however, in my assessment of this matter was the reference to the basis for there to be a factual character behind a suspicion.  None is shown in relation to this matter, noting particularly that Detective Sergeant Faint had indicated very clearly that there was little if any reliability and certainly no reliance placed upon the statements made by the complainant at that early time.
45. [45]
    In George v Rocket and Another [1990] 170 CLR 104 at 115, reference was made that there must be a factual basis for a suspicion to be shown.  More particularly, in R v Bennett [2017] QSC 181 and R v Sika [2013] QCA 247 there was strong support for the fact that there needs to be that factual basis for suspicion, before it is a situation where a person could be considered to be a relevant person, pursuant to the provisions of section 415 of the Police Powers and Responsibilities Act. 
46. [46]
    The clear position in relation to each of these interviews that they were conducted in circumstances in which there was no basis upon which it could be factually asserted that there was a basis for suspicion to be held and that therefore the person was a relevant person and should have been subject to the various cautions warnings and protections that arise pursuant to the legislation.
47. [47]
    More particularly, there is also the argument pursuant to the provisions of section 130 of the Evidence Act, as I have already noted, which relates to whether or not the Court should exclude the evidence contained within the respective interviews, it being unfair to the applicant to admit such evidence.  What that requires is an exercise of discretion on the part of the Court as to whether there is such an inherent injustice in the admission contained within the interviews that they should be excluded, notwithstanding that they related to matters raised specifically by the applicant in her exchanges with the police officers. 
48. [48]
    In this case, no such injustice arises as would give rise in any way to a suggestion that the evidence should be excluded. As submitted on the part of the Crown, there is no unfairness to the applicant such that the prejudice to her of the admission of the statements would in any way be so prejudicial as to outweigh the benefits that would flow from the evidence being admitted. 
49. [49]
    In particular, the Crown submits that as the applicant was not a relevant person being questioned in relation to an indictable offence, but rather a person for whom inquiry was being made as to their welfare, or a person to whom information was being obtained in relation to a complaint made by the applicant, meant that there was no breach, deliberate or otherwise of the provisions of the Police Powers and Responsibilities Act. Additionally, it was argued that as each of the officers acted in good faith, and I find that to be the case, that again there was no breach of the requirements to caution or warn the applicant. 
50. [50]
    Ultimately, as I have already ruled in relation to this matter, I am satisfied that the evidence is admissible and that in all respects the conduct of the police officers, including the explanations as to their reasons for speaking with the applicant clearly favour the exercise of the discretion open to the Court to admit the interviews into evidence.  As I ruled therefore the application of the applicant is dismissed.