R v Faumuina[2004] QSC 264

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

FRYBERG J

Indictment No 97 of 2004

THE QUEEN

v.

ARTHUR FAALII FAUMUINA

BRISBANE

..DATE 17/08/2004

RULING

HIS HONOUR:  The trial of Arthur Faumuina was listed to commence today.  This is the second time the trial has been listed to commence.  On the previous occasion it was adjourned at the request of the Crown in order to obtain further evidence from a medical practitioner who had treated the deceased.  That request was supported by the defence and at that time the defence informed the Court that it was ready to proceed.

Yesterday the defence gave the Crown notice of its intention to apply to the Court for a ruling pursuant to section 590AA of the Criminal Code that part of the evidence of Senior Constable Martin James Arnold should be excluded.  An outline of the argument was provided to the Crown and the application was brought on this morning before the jury was empanelled.

I should say at once that it is most unfortunate that an application of this nature should be made so belatedly.  The lateness of the application has resulted in the loss of most of the first morning of the trial, has required that the jury panel be kept waiting for this time and has been unnecessary, since the matter could have been dealt with and should have been dealt with much earlier.

In saying that, I am not intending to cast aspersions on Mr Devereaux, counsel for the defence.  Mr Devereaux frankly told me that the point - particularly in the form in which it was ultimately argued, which was not wholly included in the outline of argument provided to the Crown yesterday - had only recently occurred to him; but the lateness is, I think, indicative of a systemic failure by which counsel, often on both sides of the record, are given insufficient time to prepare for criminal trials in this Court.  Why such time is unavailable - and I have seen it on many occasions, both on the prosecution side as well as on the defence side - I am not in a position to state.  No doubt there are multiple causes, but one seems to be the lack of resources devoted to preparation of criminal trials.  One might have thought that trials for homicide were among the most serious in the Criminal Code.  The resources devoted to such trials at times seem to suggest that the offences are treated in a cavalier fashion.  Nonetheless, the lateness of the application does not entitle me to refuse to deal with it.

The evidence in question consists of a conversation between the police officer and the accused.  It is short and to the point.  To give it meaning, however, I must set out something of the context.

The deceased died as a result of hitting his head on a concrete path or kerb outside the Palm Beach Surf Club.  He hit his head on the concrete because, on the Crown case, the accused punched him.  Police officers arrived at the surf club to find the deceased lying on the ground with a group of people around him.  One of the witnesses told Constable Arnold, "I think what you are looking for is down there", pointing to Jefferson Lane.  Constable Arnold proceeded to the intersection of Eleventh Avenue and noticed a dark male person dressed in grey crouching and hiding behind some bushes.  He approached that person, who it transpired was the accused, and asked his name, address and telephone number.  He formed the view that this person was a suspect for the offence which he then regarded as an assault.  At that time, the deceased was conscious and Constable Arnold was aware that the deceased had refused to make a complaint.

He had a conversation with the accused.  He said, "What happened?"  The accused said, "He was mouthing off." Constable Arnold said, "How did you hit him?"  The accused said, "Punched him.  Sorry, it's my fault."  Constable Arnold said, "He doesn't want to make a complaint at this stage." The accused said, "Okay."  Constable Arnold said, "But if he changes his mind, you may be contacted, okay?"  The accused said, "Yeah."  It is that evidence which the accused now seeks to have excluded from the trial.

Constable Arnold did not tape-record that conversation.  It was not practicable for him to do so.  He had no tape-recorder.  He did, however, make a note of the conversation in his official police notebook shortly after the conversation occurred.

The accused was not taken into custody and was duly released, if that is the right word, and went about his business.  The deceased refused medical attention until several days later when he was persuaded to go to the hospital, and a few days after that, he died.  Presumably, he never made a complaint to the police.

Mr Devereaux, for the accused, submits that the evidence in Constable Arnold's statement of the conversation is inadmissible by reason of section 263(3) of the Police Powers and Responsibilities Act 2000.  That section provides that if a relevant person - and there is no doubt, I interpose, that, in the circumstances of this case, the accused was a relevant person within the meaning of the Act - makes a confession or admission to a police officer during questioning, the confession or admission is admissible in evidence against the person in a proceeding only if it is recorded as required by section 263(4), or section 264.  The former of those provisions has no application since there was no electronic recording.  The latter applies because section 264 prescribes the way a written record of a confession or admission is to be made.  Among other things, it requires that the note be shown to the person interviewed and that he be given a copy.  He must also be given the opportunity during and after the reading of the note to draw attention to any error in or omission from the record.  None of that was done.  It is hardly surprising that it was not done in the circumstances.  Be that as it may, the fact is that section 263(3) prohibits the admission of evidence of the confession or admission unless the section is complied with and it was not complied with.  Prima facie, therefore, the evidence is inadmissible.

Mr Parker for the Crown sought to avoid that consequence by proposing to tender not oral evidence of the conversation, but the police officer's note itself.  He proposed to do that pursuant to section 266 of the Act.  That section says:

"(1)Despite sections 263 and 264, the Court may admit a record of questioning or a record of a confession or admission ("the record") in evidence even though the Court considers this division has not been complied with or there is not enough evidence of compliance

(2)However, the Court may admit the record only if, having regard to the nature of and the reasons for the non-compliance, and any other relevant matters, the Court is satisfied in the special circumstances of the case admission of the evidence would be in the interests of justice."

It is to be observed that section 266 does not permit evidence of the fact of the admission or confession as such; that is to say, it does not purport to reverse the effect of section 263(3) in so far as that provision prohibits the admission of a confession or admission directly.  What it does is provide that the Court may admit a record of the confession in evidence even though the division has not been complied with.

The conditions for the admission of the record are that in the special circumstances of the case, admission of the evidence would be in the interests of justice.  If the section applies, I would be inclined to the view that it would be in the interests of justice to admit this conversation in evidence - or, more accurately, the note of the conversation in evidence. There is no challenge to the fact that it was a note made shortly after the conversation.  There is no suggestion that the conversation did not happen.  There is no suggestion that what the accused said was untrue or inaccurate in any way. There is no suggestion that the accused was overborne.  There is no suggestion that the accused was unwell or in any way disadvantaged by the questioning and there is no evidence from the accused to suggest that any factor affecting the interests of justice would warrant a favourable exercise of the discretion to him.  The only point made on his behalf is that he was not given a caution.  That would not, I think, be sufficient to outweigh all the other matters. 

However, the issue which arises is whether or not section 266 can permit the tender of the police notes.  Mr Parker submitted that section 266 confers a power to admit the record of the questioning provided the requirements of the section are fulfilled.  He submitted that that is the only condition which must be satisfied for the record to be admissible.  He submitted that the section is not simply designed to permit an exception to be made to the prohibitions set out in sections 263 and 264, but that it is wide enough to permit the admission of evidence which would be otherwise inadmissible. He conceded that if the Police Powers and Responsibilities Act did not exist - that is, sections 263, 264 and 266 did not exist - the notes made by the police officer would not be admissible, at least not at the tender of the Crown. 

The question therefore is whether, despite the fact that even apart from sections 263 and 264 these notes would be inadmissible, they may be made admissible if section 266 is complied with.  No authority has been cited which is directly on the point.  I have been referred to the decision of Justice Mackenzie in The Queen v. Dien Cong Duong [2000] QSC 266 and to the decision of the Court of Appeal in The Queen v. Smith [2003] QCA 76.  The former was a case concerned with the previous police responsibilities code.  A copy of that code has not been put before me and I am not satisfied that it is in terms the same as the present provisions of the Police Powers and Responsibilities Act.  For that reason, I am not satisfied that Justice Mackenzie's decision has any application in the present circumstances.

As far as the Court of Appeal decision is concerned, it does not seem to address the issue.  Reliance was placed by Mr Parker on paragraph 19 in the judgment of Mr Justice McPherson, but it does not seem to me that his Honour was addressing the issue presently before the Court in that passage.  Indeed, it is clear that in that case, there was no attempt made to tender a record of questioning or a record of a confession or admission.

Looking at the section in its context, it seems to me that it is designed to provide a limited exemption to the operation of sections 263 and 264 and no more.  I do not read it as entitling a party to tender evidence which is otherwise inadmissible, even if the requirements of subsection (2) are complied with.  It may be thought unfortunate that the Parliament has enacted legislation which excludes evidence which the Court might think it is in the interests of justice to put before the jury.  Excluding such evidence may bring the law into disrepute.  It means the jury must decide the case on a false basis.  Nonetheless, that, it seems to me, is the intent of sections 263, 264 and 266.  Section 263(3) seems clearly designed to exclude evidence of a confession or admission if it is not recorded.  It does not matter whether it is in the interests of justice that the confession should be put before the jury.  The interests of justice are to be subordinated to the correct following of procedure by the police force.

The use of section 266 to evade that consequence is, in my view, not permissible if the evidence is not otherwise admissible.  For that reason, I uphold the application and I direct that the evidence which I have quoted in these reasons be excluded from the prosecution case.