R v Bond[2008] QSC 204

SUPREME COURT OF QUEENSLAND

BYRNE SJA: 

1. On the morning of Thursday, 5 January 2006, the body of 59 year old Mohammed Safik was found near bushes in a park at Inala. Gouge marks in the ground and the state of Mr Safik’s clothing showed that he had been dragged there, probably from a nearby walkway. He had been strangled, by manual compression of his neck.

2. Post-mortem examination revealed extensive bruising to both upper arms and minor injuries to the head, back and arms. Those injuries look to have been sustained in a struggle.

3. A pathologist puts time of death at between the early hours of darkness on the Wednesday night and the early hours of Thursday morning.^[1]

     Application for confession exclusion

4. Mr Bond is to be tried on a charge that he murdered Mr Safik. By this application, he seeks the exercise of a discretion to exclude his video-recorded confession to his participation in the fatal attack.

     Death

5. Mr Safik, who had lived near the park, was in the habit of walking in the evenings. On the prosecution case, he left his house before 10 pm on the Wednesday night and was attacked soon afterwards, near where his body was found. He had been robbed. Apart from house keys attached to his trousers by a cord and his clothing, no personal possessions were with his body. His mobile phone and wallet have not been found. His long-sleeved shirt was drawn partly over his head. An attempt to remove it altogether had, it seems, been hindered by buttons at the wrist.

      Investigations

6. DNA taken by an adhesive tape lift from inside the left cuff of Mr Safik’s shirt yielded a DNA profile. There was just one match on a national crime database: with DNA found at a house in Cherbourg. A serious crime had occurred there but Mr Bond is not suspected of complicity in it. 

7. In April 2006, covertly, Mr Bond’s DNA was extracted from material deposited on a cigarette he had smoked and a soft drink container he had used. That same month, police interviewed Aaron Clancy, an Aborigine in his late teens. He admitted to involvement in killing Mr Safik, in company with another man he did not name. Mr Clancy was not charged at that time.^[2]

     Mr Bond

8. On 15 May 2006, Detective Sergeant Barron joined Detective Senior Constables Maddock and O'Connor in Rockhampton. Mr Barron was based in Murgon. He knew Mr Bond and had his phone number. Mr Barron called him to find out where he was. After the conversation, Mr Barron told Mr Maddock that Mr Bond had been drinking with mates in a city park. Mr Barron could not tell how much Mr Bond had had to drink, although he sounded “fine over the phone”. It was decided to send Senior Constables Collings and Hill to see if he was affected by alcohol.

9. Mr Collings drove with Mr Hall to Council grounds in Rockhampton. They saw six aborigines sitting in a group. None was seen to be drinking. When the officers returned ten minutes later, the group had been reduced to about three. Soon after, at 8.45 am, they found Mr Bond among three men walking in a nearby lane.

10. Mr Collings introduced himself and asked Mr Bond where he had just come from. Mr Bond mentioned the park, pointing in its direction. He was asked if he had been “charging up that morning”. “No”, he replied, adding that they did not have any money to buy alcohol.

11. Mr Collings was close enough to detect, he testified, a “strong smell of bad hygiene – stale liquor”. Mr Bond’s speech, though slow, was not slurred. Mr Collings asked where he was living. “On the streets” was the reply. Mr Bond said that he came from Cherbourg, and gave his Cherbourg address.  He had been in Rockhampton for a few days.  He spoke of having been at the hospital the previous night for treatment in connection with cancer excised from his back.  He was taking medication to ease the pain. 

12. In Mr Collings’s assessment, Mr Bond did not appear to be alcohol-affected.

13. Mr Hall heard the conversation. He stood close to Mr Bond, “who smelt strongly of stale alcohol and poor personal hygiene, but did not smell of fresh liquor”. Mr Bond was dishevelled. His eyes, however, were not glazy and he appeared to speak normally, understanding what Mr Collings was saying.

14. To Mr Hall, Mr Bond “did not appear or sound” to be affected by alcohol.

15. The two officers reported their observations. Detectives then went looking for Mr Bond.

     Condition at interview

16. Mr O'Connor was with Mr Maddock when they encountered Mr Bond at about 9 am.

17. As Mr O'Connor approached Mr Bond, he saw that he was holding a plastic soft drink bottle containing a portion of white wine. He introduced himself and Mr Maddock. He said they were investigating the death of a man in Inala in January. Mr Bond was told that they wished to question him about that and invited him to come to the police station. “I don’t know anything about any dead man. I’m not coming anywhere”, Mr Bond replied. Mr O'Connor told him that he was “under arrest for the murder of Mohammed Safik in Inala in January …” and asked him to get into the police vehicle.

18. The journey to the police station took five minutes. Mr Bond walked into the station and climbed the stairs to an interview room where he was left alone.

19. Mr O'Connor realized that Mr Bond had been drinking. He detected alcohol on the breath. But he considered that Mr Bond was not intoxicated. Speech was coherent and not slurred. Gait had been steady walking. Mr Bond had negotiated the stairs leading to the first floor interview room without obvious difficulty.

20. Mr O'Connor’s assessment was that alcohol was not affecting Mr Bond’s ability to understand his rights or to decide whether to answer questions in an interview. ^[3]

21. Mr Maddock saw the container with wine in it. He also observed Mr Bond to walk steadily along Kent Street.  When Mr Bond spoke, he could be clearly understood.

22. Mr Maddock saw Mr Bond take the stairs to the first floor interview room, grunting with discomfort, apparently from back pain. The pain aside, Mr Bond evinced no difficulty in negotiating the stairs.

23. Mr Maddock assessed Mr Bond as tired, noticing yawning and rubbing of eyes. He thought that he had not slept, perhaps because he had been drinking earlier.

24. Mr Maddock thought that Mr Bond was not affected by alcohol.

25. Detective Sergeant Nicoll saw Mr Bond in Kent Street, from a distance of about 60 metres.  He watched him get into a police car.  At the police station, while close to Mr Bond, Mr Nicoll saw him walk in to the building and climb a flight of stairs. 

26. In Mr Nicoll’s assessment, Mr Bond did not appear to be affected by alcohol or any other drug.

27. While Mr Bond was in the interview room, Mr O'Connor and Mr Maddock spoke to Mr Nicoll and another officer. After discussion, the detectives decided to proceed with the interview.

28. When Mr O'Connor and Mr Maddock returned to the interview room at about 10 am, Mr Maddock told Mr Bond that they were “investigating the murder of a man in Inala in January” and wished to question him about that. Asked whether he was prepared to answer questions, he replied: “Yeah. I’ll talk to you. I want to get it off my chest. But I want to speak to my sister afterwards”.

29. The recording machine malfunctioned. So the three men moved to another room. A test indicated that the recorder there was operating correctly. At 10.04 am, the interview began.

     First interview

30. Mr O'Connor told Mr Bond that he and Mr Maddock were investigating “the death of man in Inala in January”. He was informed of his right to silence. He said he understood the warning. He was told that he had a right to contact a relative or friend and for such a person to be present. He was informed that he could contact a lawyer from any law firm or the Aboriginal and Torres Strait Islander Legal Service and arrange to have such a person present. Mr Bond wanted to contact his sister, after the interview. Then he said that he wanted to contact his brother immediately. The interview was suspended to permit that. Mr Bond could not find his brother’s telephone number in his mobile phone records and chose to do nothing further about contacting him. He wanted to contact his “missus”, he said, “after the interview”.

31. Mr Bond was asked if he had earlier said that he did wish to be interviewed about “the death of that man in Inala”. Mr Maddock intervened to say: “I think the words you used were, ‘I want to get it off my chest’”. Mr Bond replied: “I want to get it out of my mind”.

32. Asked if he felt threatened, Mr Bond said “I think so”. Asked what he meant by that, he replied “… I don’t know.” When asked if he was “doing this interview of your own free will”, he responded: “Yeah mate, I just want to get it off my chest”. He was then asked again, “Have I threatened you in any way today”. Yawning and looking tired, Mr Bond replied “… no … go on”. Asked if he was doing the interview of his own free will, he agreed, saying “Just doing it of my own free will; that’s all”.

33. Mr O'Connor next inquired about date of birth, address in Cherbourg, mobile telephone number and where Mr Bond was born.  He supplied those details without difficulty or hesitation. 

34. The inquiries turned to alcohol. Mr O'Connor asked, “Are you under the influence of alcohol at the moment?” “Yep”, he replied.^[4]  Asked if he had been drinking that day, he said “Yeah”, adding that his last drink had been at 7.30 am.  Before that, he had, he said, consumed three plastic water bottles of moselle.  He did not mention the period during which the alcohol was consumed.  O'Connor inquired: “Do you feel drunk right now?”.  “Nope.  Just tired” was Mr Bond’s answer.  

35. Mr Bond was asked where he was. “Rockhampton Police Station”, he replied. He understood, he acknowledged, that a “pretty serious matter” was being investigated. Mr O'Connor told Mr Bond that he needed to understand the questions being asked. If at any stage he was feeling overly tired, he could just say that he did not want to answer any more questions. He had the right “to answer all of our questions, some of our questions or none of our questions”. He answered “Yeah” when asked whether he knew he had “that right to answer them”. If he did not understand something the police asked, he should ask that the question be repeated until he did understand it. He acknowledged that. He was told that the interview was being recorded by tape which would be presented in court as evidence. Mr Bond indicated that he understood that.

36. The interview turned to the subject matter of the investigation.

37. Mr Maddock spoke of a man named Mohammed Safik who “was murdered”. Mr Bond was asked what he could tell about “the death of the man in the park at Inala in January.” He answered:

“I was on the train.  I was sleeping.  I was drunk.  I got off at Inala and seen this young bloke.  I don’t know his name.  He said ‘want to get some money?’  This other bloke here seen him.  He just walked up to him.  I held him while the young bloke was just getting into him.  And then I dragged him into the bushes, and the young fella took off with the wallet and phone.  Then I jumped on a train and went back home.  I went back to my sister’s place … I was drunk … got the bus the next morning.  Went home to Cherbourg”.

38. He described the “other bloke” involved in the attack as being aged about 14 or 15 and “fair” - in context, signifying that this person was not indigenous. Mr Bond said that he offered to help the other person “just roll somebody”. “I saw the old fella then”. “I just grabbed him”. Then “the young fella got into him”, “punching him”. The old man was yelling out: “Leave me alone…” Then, “…took his phone. Took his wallet”.

39. Mr Bond said that he “went through” the old man’s pockets. The man was left “just bleeding”, “awake”. Asked how he knew that the victim was conscious, Mr Bond referred to the fact that he had called out repeatedly to be left alone.

40. Mr Bond, who denied having met the “young fella” before, described his own role in the attack as holding the old man while the younger punched him in the face. Later, the young man kicked the victim “in the guts” as he “doubled up”.

41. Asked about having dragged the victim into the bushes, Mr Bond this time asserted that he did not see the man moved into the bushes, proceeding to say “I don’t know. I can’t remember”. Nor could he say at what time of night the attack took place, although it was “dark”.

42. Mr Bond said that the mobile phone was in the old man’s top pocket and the wallet in his back pocket. The younger man took the wallet and phone.

43. When Mr Bond left the scene, he walked “back to the train station” but did not know the name of it. Pressed with “Where did you get off?”, Mr Bond gave the curious response: “at 12 o’clock”. He was asked again about the station. This time, he mentioned one near Boggo Road.  He said that he had walked back to his sister’s house from there.

44. Mr Bond denied having withdrawn money from his bank account by using an ATM on the morning after the killing. He also said he stayed at his sister’s place before catching a train to Gympie at about 8 am.

45. Towards the end of the interview, Mr Bond was asked whether he could read and write. “Just a bit”, he said. With the aid of his glasses, he would, he said, have been able to read words on the front cover of a magazine in the room.

46. Mr Bond re-enacted his part in the attack. Standing to demonstrate, he showed how he had grabbed the victim from behind, put his arms under the man’s armpits, and grasped him.

47. He was asked whether he had taken the old man by the throat. He said, “No”. Asked, “Did the young fellow?”, he answered: “The young fella did, I think”.

48. Reflecting on the incident, Mr Bond felt, he said, “just ashamed basically”.

49. Asked why he had decided to answer police questions, he responded: “Get it out of the road. Get it off my chest.”

50. Asked why he did not want to contact a lawyer, he said that he did not need one.

51. At the end of the interview, he agreed that he had been treated fairly.

     Second interview

52. Mr Bond was told that the police proposed to ask him to look at a photoboard to see if he could recognize “the boy that you were with” on the night. He was told “the same warnings still apply”. Reference was made to his right to remain silent, that anything he said was to be of his own free will, that he did not have to answer any questions, that the interview would be recorded and may be used in evidence, that he had a right to contact a solicitor or family member or friend and that the interview would be delayed to permit him to contact someone. He wished to contact “my solicitor”, he said, “after” the interview. Mr Bond was told that Maddock wanted to ask more questions about “the murder of that man in Inala”. Mr Bond said he understood that. He was asked whether he had been threatened. He answered, “No”.

53. Mr Bond initially expressed some reluctance to look at the photoboard. However, he soon indicated that he was willing to “try” to see if he could recognize “the boy”.

54. Aaron Clancy’s photograph was on the board.

55. Mr Bond did not claim to recognize him.

      Discretionary Grounds

56. The first interview is sought to be excluded on three bases: that it would be unfair to the applicant to use it against him at trial; that public policy considerations make it unacceptable to admit the confession into evidence; and that the prejudicial impact of its reception would be greater than its probative value.^[5]

Unfairness

57. Five contentions are advanced in connection with unfairness: that (i) Mr Bond was affected by alcohol at the time of the interview; (ii) he was in a sleep-deprived state; (iii) he was on medication; (iv) the Police Powers and Responsibilities Act 2000 and the Police Powers and Responsibilities Regulation 2000 were not adhered to;  and (v) Mr O'Connor and Mr Maddock referred to their inquiries as concerning a “death” rather than a “murder”. 

Medication

58. Mr Bond said he was taking medication for pain relief. However, there is no evidence concerning the drug or its propensities. Nor does Mr Bond say that he was affected by his medication. And nothing else suggests that medication had any impact on Mr Bond’s decision to participate in the interview or in what he said during it.

Death not murder

59. If it matters, there were occasional references to the “death” of Mr Safik. But the police also spoke to Mr Bond of “murder”. That word was used when Mr Bond was arrested and during the interview.

60. In any event, there is no reason to suppose that Mr Bond was disadvantaged by adversions to “death” as well as “murder”. He understood the seriousness of what was under investigation.

Alcohol and sleep deprivation

61. It may be accepted that, as Mr Bond said in the interview, over some unspecified time before 7.30 am that day, he drank about a litre of moselle, although he had not consumed alcohol in the 2½ hours or so before the interview began.

62. But Mr Bond himself said that he was not drunk: “just tired”.^[6]  None of the five police officers who assessed his condition considered that he was under the influence of alcohol.  And he did not present during the interview as a man whose faculties were adversely affected by alcohol. 

63. His physical co-ordination does not look to have been impaired. He handled the contents of a wallet with dexterity. He stood and demonstrated the way in which he had held his victim without difficulty. His speech was not slurred.

64. Mentally, he presents as a generally responsive adult who, perhaps with a few exceptions, understood the questions put to him: inquiries to which he mostly gave thoughtful responses.^[7] 

65. Mr Bond has not testified^[8] that his decision to participate in the interview or what he told the police was influenced by feeling tired or through alcohol consumption.

66. Three times, Mr Bond gave the same reason for participating in the interview. Before the interview started, shortly after it began, and near the end, he explained that he had chosen to incriminate himself because he wanted “to get it off my chest”.

67. There is no adequate foundation for a conclusion that alcohol or tiredness disinhibited Mr Bond, depressed his faculty to judge where his interests lay, or pre-disposed him to confess when otherwise, despite his contrition, he might not have done so.^[9] 

68. The evidence does not establish that alcohol or tiredness affected any relevant capacity.

     Police Powers and Responsibilities Act 2000^[10]

     Alcohol

69. At the time of the interview, s. 254 of the Police Powers and Responsibilities Act 2000 stipulated:

“(1)This section applies if a police officer wants to question or to continue to question a relevant person who was apparently under the influence of liquor or a drug.

2. The police officer must delay the questioning until the police officer is reasonably satisfied the influence of the liquor or drug no longer affects the person’s ability to understand his or her rights and to decide whether or not to answer questions.”

70. Mr Bond was a “relevant person” because he was 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. ^[11]

71. Mr O'Connor and Mr Maddock were, as Mr Bond accepts, satisfied that alcohol did not influence Mr Bond’s ability to understand his rights or to decide whether to answer questions. It is contended, however, that that satisfaction was not reasonable as (i) Mr Bond had consumed three 375 ml bottles of moselle; (ii) he gets drunk, he told the police, after about four such bottles; (iii) he was found in a park frequented by people who engage in public drinking; (iv) he was carrying a bottle holding white wine when located; (v) he smelt of alcohol; (vi) he looked dishevelled and was living on the streets; and (vii) Mr Maddock had previously accepted that Mr Bond was tired and suffering the residual effects of alcohol when the interview began.

72. The satisfaction of Mr O'Connor and Mr Maddock that Mr Bond was not relevantly affected by alcohol is not shown to have been unreasonably entertained.^[12] 

73. It is not more probable than not that Mr Bond was “apparently under the influence of” alcohol when questioned about the killing of Mr Safik.

74. Obviously, Mr Bond had been drinking and was tired. He still smelt of alcohol at 10 am. And there was no reason to doubt that, as he told the police, he had consumed about 1.1 litres of moselle before 7.30 am. Other considerations, however, previously mentioned, also matter - especially, what Mr O'Connor and Mr Maddock saw of Mr Bond and what they heard from him.

75. All considered, there were reasonable grounds for their satisfaction that Mr Bond understood his rights and had the ability to decide whether to answer questions.

     Questioning of Aborigines

76. In May 2006, s. 251 of the Police Powers and Responsibilities Act stipulated:

“(1)This section applies if –

(a)  a police officer wants to question a relevant person; and

(b) the police officer reasonably suspects the person is an adult Aborigine or Torres Strait Islander.

(2)Unless the police officer is aware that the person has arranged for a lawyer to be present during questioning, the police officer must –

(a) inform the person that a representative of a legal aid organisation will be notified that the person is in custody for the offence; and

(b) as soon as reasonably practicable, notify or attempt to notify a representative of the organisation.

(3)Subsection (2) does not apply if, having regard to the person’s level of education and understanding, a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally.”

77. There was no attempt to notify a legal aid organization about the proposal to interview Mr Bond. And he was not informed that a legal aid organization would be notified that he was in custody.^[13]

78. Mr Bond accepts that Mr O'Connor and Mr Maddock both suspected that he was “not at a disadvantage in comparison with members of the Australian community generally” within the meaning of s. 254(3). It is said, however, that the suspicion was not reasonable.

79. The argument focused on Mr O'Connor, who asked most of the questions. The case is that (i) Mr O'Connor was unable to state his knowledge of Mr Bond’s education; (ii) working as a teacher’s aide at Cherbourg State School, teaching art, would not require a level of education usually attained by Australians; (iii) Mr O'Connor had not satisfied himself that Mr Bond could read and write with any particular facility let alone at a level generally achieved; (iv) Mr Bond’s understanding was adversely affected by alcohol and sleep deprivation; and (v) Mr O'Connor knew that Mr Bond was on medication but chose not to explore the effect of it upon his capacities.

80. Nothing more need be said about alcohol, sleep deprivation or medication.

81. Mr O'Connor and Mr Maddock knew that Mr Bond was an Aborigine. Before speaking to him, they had made inquiries about him with Detective Sergeant Barron, whom they believed had extensive experience in communities at Palm Island, Murgon and Cherbourg.

82. Mr O'Connor asked Mr Barron whether Mr Bond was “a disadvantaged person as per the PPRA”^[14]. 

83. Mr Barron led Mr O'Connor to understand that Mr Bond was educated, held a job at a school at Cherbourg as a teacher’s aide, teaching art, possessed a blue card to work with children, could read, and expressed himself well.  After hearing from Mr Barron, Mr O'Connor considered Mr Bond was not at a disadvantage in comparison with members of the Australian community generally in dealing with the police.^[15] 

84. Mr Maddock, who thought that Mr Bond had no difficulty understanding his rights or in deciding whether to answer questions, recalled Mr Barron’s having said that he knew Mr Bond quite well, describing him as a teacher’s aide at Cherbourg school who had “a fair bit” to do with community youth programs.  Mr Bond was said to be an associate or friend of the Aboriginal and Torres Strait Islander Legal Service officer in the Cherbourg area.  Mr Barron was able to communicate with Mr Bond without a problem.  According to Mr Barron, Mr Bond was of reasonable intelligence and spoke English well.  Mr Barron related that Mr Bond had started consuming a lot of alcohol after the death of Mr Blackman, another Cherbourg teacher’s aide, with whom Mr Bond had been in a “relationship”. Mr Bond had, without confusion, provided a witness statement about Mr Blackman’s death.  With Mr Barron’s information and his own observations, Mr Maddock concluded that Mr Bond was not “at a disadvantage …”.

85. Mr O'Connor and Mr Maddock had pertinent information about Mr Bond from Mr Barron. They made their own observations and inquiries of Mr Bond himself before questioning him about Mr Safik’s death. In the light of that information, those officers had reasonable grounds for their suspicion that Mr Bond was not at a relevant “disadvantage”. ^[16] 

     Knowing Mr Bond

86. Schedule 10 of the Police Powers and Responsibilities Regulation 2000 contains a Responsibilities Code.  Section 36 of that Code stipulates:

“(1)A police officer who is about to question a relevant person the police officer reasonably suspects is an adult Aborigine … must, unless he … already knows the relevant person, first ask questions necessary to establish the person’s level of education and understanding. 

(2)The questions the police officer must ask include questions, not related to the relevant person’s involvement in the offence, but may help the police officer decide if the person -

1. is capable of understanding the questions put to him …, what is happening to him …, and his … rights at law; and

2. is capable of effectively communicating answers to the questions; and

3. is aware of the reason the questions are being asked."

87. Section 36(1) is said to have been contravened. That illegality is relied on to contend that it would be unfair to admit the interview at trial (as well as to argue that the high public policy considerations adverted to in authorities in the Bunning v Cross ^[17] tradition warrant its exclusion ). 

88. Mr O'Connor asked Mr Bond questions directed to his “understanding” of his predicament, his rights, and his capacity to respond to questions. He did not, however, question Mr Bond about his level of education as such.

89. Mr O'Connor and Mr Maddock had not met Mr Bond or otherwise had dealings with him until about an hour before the interview began. They did not already know him. They did know of him - through what Mr Barron had told them.   Mistakenly, they thought that knowing about him and the prospect of his “disadvantage” satisfied s. 36(2).  That was to misinterpret the regulation.  Because Mr Bond was not himself questioned about his level of education, there has been a contravention of s.36. 

90. Mr O'Gorman SC accepted that the infraction was not a deliberate disregard of the regulation: rather it resulted from a misunderstanding of its requirements.

91. There is no evidence to show that an inquiry of Mr Bond about his education might have yielded information tending to raise a concern about his capacity to appreciate his predicament, to understand the explanations given of his rights, to protect his own interests, or to communicate effectively.

92. Mr Bond appreciated the serious nature of the inquiry. He understood the questions. He realized what was happening. And he was not relevantly disadvantaged.

93. The inadvertent contravention of s.36 is not shown to have affected Mr Bond’s decision to be interviewed or what he said and did during questioning.

     Corroboration

94. Other evidence tends to confirm that Mr Bond’s description of his part in the fatal attack is, essentially, reliable.

     Ms Munroe

95. In her statement, Carol Munroe says that Mr Bond, drunk at the time, confessed to her within about 24 hours of the fatal attack that he had recently robbed a man in a park in Inala.

96. Ms Munroe has known Mr Bond all her life. They are both from Cherbourg.  She also knows Aaron Clancy.  She first met him in late December 2005 while she was in Brisbane for treatment in hospital.  Mr Bond introduced him to her at a park in Inala, describing him as “my brother, Aaron.  They call him Boots”. 

97. According to her statement, at Wondai, at about 10.30 pm on the day Mr Safik’s body was found, Mr Bond called to her from a park. She asked him how he came to be there. He had hitch-hiked, he told her, from Caboolture. He also mentioned having taken a train. She asked him why he did not catch a bus, inquiring whether he did not have money for the fare. He told her that he did have money. Indicating that he had been involved in a robbery in company, Mr Bond told her: “I just did a roll – me and the young fella”.

98. Ms Munroe recalled Mr Bond showing her “a lot of money”. He was upset and started crying. She asked him why:

“He told me the man he did the roll on didn’t move after he did it and he kept saying he didn’t mean it and that he shouldn’t have done it.  He told me that they punched him and kicked him in the guts and also kneed him and jumped on him.”

99. Ms Munroe asked Mr Bond whether he had stabbed the victim. He said that they had just kicked him and punched him.

100. Ms Munroe asked what had happened to the “young fella”. Mr Bond said they had had an argument and that he had left him at the train station.

101. Ms Munroe asked Mr Bond about the person attacked. He spoke of a man 50-60 years old with a beard^[18], and that he knew him “from hanging around Inala.”

102. According to Ms Munroe, Mr Bond was frightened about being charged by the police. She told him he should have called an ambulance. He was going to do so, he claimed, but “they heard people coming so they took off”.

103. Ms Munroe’s statement was taken 11 months after the conversation. And, at the committal, Ms Munroe admitted to defective memory. However, there is nothing inherently improbable in her account. Nor are her recollections contradicted in a significant respect by the facts.^[19] 

DNA

104. The quantity of DNA derived from the cuff of Mr Safik’s shirt^[20] was not enough to establish an interpretation definitely linking Mr Bond to that sample  applying criteria used by the forensic scientist, Ms Cave.  But all the components of DNA present in the cuff sample are present in Mr Bond’s DNA.  So there is nothing in his DNA to suggest that he had not supplied the DNA on the cuff. 

105. Mr Walsh, another forensic scientist, has used different criteria from Ms Cave in his evaluation of the analysis of the cuff sample. In his opinion, it is about 100 million times more likely that the major component of the DNA profile from the cuff has originated from Mr Bond than from another individual unrelated to him randomly chosen from the Australian Caucasian population.

106. Mr Walsh thinks that the DNA results “provide extremely strong scientific support for the proposition that the major component” of the cuff sample “has originated from” Mr Bond.^[21]

     Reliability of the confession

107. Some of what Mr Bond said looks to have been motivated by a concern to protect Aaron Clancy who, a month earlier, had confessed his own guilt in the killing of Mr Safik but had not inculpated Mr Bond.

108. Mr Bond asserted that he had not met the “young bloke” before. This man was described as “fair”. And Mr Bond did not identify Mr Clancy’s photo on the board. According to Ms Munroe, however, Mr Bond knew Mr Clancy well enough.

109. Some other things Mr Bond said about the attack may not be accurate. His reference to punches to the face, for example, is not easily reconciled with Mr Safik’s injuries.

110. However, much of what Mr Bond told the police does conform to the facts.

111. Mr Safik was attacked in a park at Inala. His body had been dragged to bushes. Mr Bond, who was not 40, might well have thought Mr Safik “old”.^[22]   Death was caused by neck compression, which is consistent with the young man having put his hands around the victim’s throat, as Mr Bond had said.  The mobile phone and wallet have not been found.  And Mr Bond’s demonstration of how he had held his victim satisfactorily explains the bruising to Mr Safik’s upper arms.

No unfairness in reception of the confession

112. In his anxiety to tell the police what he had done, Mr Bond made a substantially reliable confession to involvement in a serious crime in circumstances where his faculties were not impaired by alcohol, medication or sleep deprivation, and where the police impropriety – the inadvertent contravention of regulation 36 – had no effect on Mr Bond.^[23]

113. It would not be unfair to admit the interview at trial.

     Illegality ^[24]

114. The contravention of regulation 36 was not deliberate or reckless. It had no impact on Mr Bond’s decision to participate in the interview or on the content of what he said. His confession, which is essentially reliable, relates to a serious crime.

115. In these circumstances, the discretion enlivened by the illegality should be exercised against excluding the confession.

     Prejudicial impact disproportionate to probative value? ^[25]

116. There is no reason to think that the jury would accord undue significance to the confession or otherwise misuse it.

117. As the confession seems to be a substantially reliable account of Mr Bond’s role in the attack on Mr Safik, the prejudicial effect of what he said lies in its distinct tendency to prove the prosecution case.

118. This ground also fails.

Disposition

119. The application is dismissed.