R v Knight (No 1)[2009] QSC 448

SUPREME COURT OF QUEENSLAND

1. Mark Dempsey Knight is charged, jointly with Wesley Robert Williams and Wayne Thomas Robertson, with the murder of Robert James Buckley. He has pleaded not guilty.

2. This is an application brought pursuant to s 590AA of the Criminal Code. The prosecution wish to lead evidence of confessional statements said to have been made by Knight at various times to police officers. Knight objects to their admission into evidence.

3. Although originally in dispute, a conversation that occurred on 13 April 2006 is conceded by the Crown to be inadmissible.

4. The grounds for objection are:

1. The statements were not voluntarily made as at the time they were made Knight was operating under an inducement. Section 10 of the Criminal Law Amendment Act 1894 is said to require their rejection.

2. The statements were illegally obtained.  There are two arguments.  The first is that the provisions of s 420 of the Police Powers and Responsibilities Act 2000 and s 36 of Schedule 10 to the Police Powers and Responsibilities Regulations 2000 were not complied with.  Secondly, it is submitted that the provisions of s 439(2) of that Act were not complied with.

3. On the assumptions that the statements were made voluntarily, but obtained unlawfully, in the exercise of a discretion under the Bunning v Cross principles,^[1] it would not be in the interests of justice to admit the statements because:

1. they are equivocal;

2. Knight is an Aboriginal person and the police failed to comply with the statutory provisions designed to safeguard his interests when being questioned;

3. Knight has a reading level of 2/5 on the National Reading Scale;

4. Knight had been removed from NSW against his will immediately before the disputed conversations commenced;

5. Knight had declined to speak to police on two occasions prior to the first of the relevant conversations that of 13 April 2006;

6. Knight had made known to the police on each occasion that he spoke to them that he would not speak to them without first speaking with his solicitor but despite that the police persisted in interviewing him;

7. the persistent attempts to question Knight were in breach of the provisions of s 35 of Schedule 10 to the Police Powers and Responsibilities Regulations 2000 and the police approach involved a failure to follow s 418 of the Police Powers and Responsibilities Regulations 2000;

8. whether there was an inducement by persons in authority in the legal sense or not the evidence indicates that Knight was operating under a powerful desire to get back to New South Wales from where he had been extradited in order to be close to his dying mother and his family which desire brings into question the reliability of the statements;

1. the disputed statements, on the Crown case, are false and so are conceded to be inherently unreliable, as Knight contends therein that he operated alone, but the Crown charge three with the murder.

10. the concerns about the equivocal nature of the conversations and the desire to return to New South Wales, are compounded by this inherent unreliability;

11. where there is a concern about the reliability of a claimed confession, or circumstances suggesting that but for the conduct of the police officers the statements would not have been made or not in the form that they were made, then there is a strong reason to exclude the confessions;

12. if the impugned conversations are admitted into evidence then they will be out of context given that evidence of the first conversation of 13 April will not be led, and further the admission of the conversation would throw onto the defence the task of explaining why Knight would be motivated to lie to the police about his involvement which would almost certainly require him to reveal that he is currently serving a 22 year sentence – a fact which is obviously highly prejudicial to his defence.

5. I will deal first with the question of the voluntariness of the confessions. The defence contends that Knight had held out to him by the detectives who questioned him the hope of being returned to NSW where he strongly wished to be. That, it is said, amounted to a “promise” within the meaning of s 10 of the Criminal Law Amendment Act 1894.

6. Section 10 of the Criminal Law Amendment Act 1894 provides:

“No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, that every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

7. The defence contend, accurately I think, that a “promise” can be a “hope of advantage” as described in Tofilau v The Queen [2007] HCA 39, where Gleeson CJ said:

“A confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused either by fear of prejudice or hope of advantage, exercised or held out by a person in authority.  That particular well established form of involuntariness was described by Dixon J as ‘the classical ground for the rejection of confessions and [that which] looms largest in a consideration of a subject.” (At paragraph 2)

8. The first reference to the desire to return to NSW is contained in the conversation of 13 April 2006. The police made a record in a notebook some six hours after the conversation occurred. They recorded Knight as saying, after indicating that he wanted to tell them what he knew about the murder, the following:

“However I want to go back to New South Wales and do my time down there because my mother and father are sick.”

9. In the second of the conversations, held on 20 April which was electronically recorded, Knight is recorded as saying, after being warned that he had the right to remain silent:

“…remember what I asked yous, or asked the other officer…now I’ve agreed to help yous solve this case…remember I asked yous…well I don’t want to be in Queensland…I want to [do] me time in New South Wales…all I want to see from yous is something that says well that Mark [i.e. Knight] will be sent to New South Wales.”

10. Further in that conversation after informing the police that he wanted legal advice Knight is recorded as saying:

“I wanted to see a piece of paper that says that, cause you had the power to get me up here …you got the power to get me straight back down again.”

11. Again in the conversation Knight is recorded as saying:

“As soon as this matter is done with I want to leave…go back to where I belong and getting help down there you know…that’s where my family is…yep and I want to get, that’s where my relatives are, all are you know what I mean…I want to go back to New South Wales.”

….

“Well I don’t know but this is it…you fellas got a lot of power…”

12. The following exchange also occurred between Detective Walker and Knight:

“Walker:  I remember you asked on Thursday [a reference to the conversation of 13 April] how could you go back to New South Wales to serve your time is that right, you want to know.

Knight:  I want to go straight back.

Walker:  Okay because this is what we’ll do, we’ll find out exactly the process that you’re asking so that on Monday when we’re speaking again we’ll have all that information for you.”

13. Later in the conversation the following exchange occurred:

“Walker:  The distinction I want to make here is the information that you want to provide us about the, about the death of the inmate Buckley is it the truth?

Knight:  Yes.

Walker:  Cause I don’t want you to feel compelled to say something to us that’s not true just to go back to Sydney because it doesn’t work that way.

Knight:  No, I know, this is between me and this young fella [apparently a reference to the deceased Buckley].

Walker:  I know I am stating the obvious Mark but I want to make that absolutely clear…I don’t want you to feel compelled that’s all…

Walker:  And I just want to make that distinction that I don’t, in your mind it to appear we are trying to buy your assistance or anything like that.

Knight:  No, no, no, no.

Walker:  No inducement that’s what I am trying to make clear.

Knight:  There’s no inducement at all.  This is for me, you know what I mean too, like I said. Told you the other day, people think about things you know what I mean …”

14. Later in the conversation:

“Knight:  The reason why…if there’s a definite, ‘cause yous, when I came down here, you said to me, what’s the big fella, Minister of Corrective Services?

Walker:  The Attorney-General yeah it was an agreement between the Attorney-General Queensland and the Attorney-General New South Wales to exchange you, that’s correct.

Knight:  When I first came you had a copy of that, when I, when I’m with you and my solicitor I want to see a copy of something like that if I can, where yous will say that you know that I can go back to New South Wales.

Walker:  The clarification I suppose is that the Attorney-General between Queensland and Attorney-General New South Wales agreed to transfer, the police are not the Attorney-General obviously and this is something I can discuss with your lawyer as well, because when we meet again I will have an itinerary of what is required including all the information you want re New South Wales.

Knight:  Because I just want an agreement to say that yous do everything in your power to get me down there you know.

Colless (another police officer):  Yep, we’ll make those enquiries definitely.”

15. The next conversation occurred on 1 June 2006, again was recorded and on this occasion the first thing recorded that Knight said is:

“I don’t really want to talk to anybody today.”

16. There was then discussion about the arrangements to have a solicitor from Ryan and Bosscher present.

17. The next conversation occurred on 23 August 2006 and was again recorded. Knight’s first statement is that he had “seen me legals yesterday” and then “I’ve got to ring up my legals the decision is still mine” and then “I want to try and work out how long I’ll be up here for; I don’t want to be up here I want to go home rightio, the decision is mine, I’ve got to ring the legals”.

18. The next recorded interview occurred on 22 September 2006 when Knight’s first statement is to inform the detectives that he hadn’t had a chance to speak yet to his lawyer and a little later repeated “I want a lawyer present when I speak to you” and then at page 10 of that record, Knight was recorded as saying:

“I do want to help you help me right, but I want, I want a lawyer present, I want a good lawyer.”

19. On a number of occasions throughout these conversations Knight repeated that he wanted a solicitor present.

20. Mr Maguire, who appears for Knight, submits that Knight made plain to the police officers that he had a powerful desire to go back to NSW to see his dying mother, that he believed that the police could assist him in doing so, and, at least, that he would talk to them on the basis they would do all in their power to get him back to NSW. He was not disabused of this hope until far too late (at page 9 of the transcript which is 11.5 pages long in the course of the conversation of 20 April). Thus, it is submitted, the disputed statements were made at a time when he had a hope of advantage from a person in authority. Mr Maguire submits it is clear from the recording that Detective Walker’s statements disclaiming any inducement did not in fact disabuse Knight of that hope of advantage given that in the next conversation of 1 June 2006, Knight again spoke of wanting to get back to New South Wales (I should note that by the time of that conversation Knight’s mother had died).

21. The Crown contends that no person in authority held out any inducement to Knight. He may have held a belief that the police could assist him but nothing said by the police induced that belief and further Detective Walker made that plain. There was no change in attitude by Knight after the disclaiming statement by Walker. He still expressed his desire to speak with police. Hence it is said that if there ever was a perception of an inducement it was never operative.

22. Section 10 of the Criminal Law Amendment Act 1894 speaks of a confession “induced by any threat or promise by some person in authority”.  It is accepted that no express promise was made here by the police officers, although at one point, and late in the conversations, Detective Walker said that they would see what could be done (“Okay because this is what we’ll do, we’ll find out exactly the process that you’re asking so that on Monday when we’re speaking again we’ll have all that information for you”).  The debate centred on whether a belief, held and expressed by an accused, of a hope of advantage from a person in authority, without encouragement from the detectives, can amount to a “promise by some person in authority”.  The only example that counsel could cite was a decision of Brennan J (the Central Judge) in R v Maynard [1933] QWN 17.

23. It is trite law that silence can amount to consent to or acceptance of a proposition put by the other party. Whether it does so in any particular circumstance will depend on all the facts. Here Knight had a “hope of advantage”, he made it plain that that was his hope, he made it expressly known to the police that he expected their assistance in exchange for his information, and the investigating officers did not act promptly to disabuse him of that hope.

24. Much of the incriminatory matter that the Crown wishes to rely on was in place before there was any attempt to disabuse him. Indeed the fact that Detective Walker did attempt to disabuse him of that expectation makes plain that it was evident to the investigating officer that Knight was operating under the impression he had that hope of advantage.

25. These facts combined with the continued silence of the police in the face of the repeated statements that Knight expected assistance from them, and the actions of the police in returning to speak with him, knowing that he had made it a condition of his talking to them that he either be returned to NSW, or that the police do all in their power to assist him to return, leads strongly to the conclusion that Knight perceived that his beliefs were well founded. Detective Walker’s statement that they would do what they can could only suggest confirmation of the belief. That conclusion is reinforced by the later statement made on 1 June where he said, “I want to, you know, get it done and get back to New South Wales”. To my mind that demonstrates that Knight was still operating under the impression that he would gain an advantage by speaking to the police. I am confident that Knight perceived that the detectives were holding out the hoped for advantage and that his perception was an active inducement at the time of the disputed statements.

26. I bear in mind the observations of the Court in Plotzki [1972] Qd R 379 that the effect of the words used are not to be minimised by any fine analysis.

27. In my view the statutory test for involuntariness is satisfied.

28. Section 10 deems that a statement made after a relevant “promise” has been induced thereby “unless the contrary be shown”. The onus is on the Crown and whilst the question is decided on the balance of probabilities the onus is a heavy one. The Courts are “cautious” in admitting into evidence a confession where its reliability is in doubt: R v Swaffield (1998) 192 CLR 159 at 161 per Brennan CJ. 

29. The later statement of 1 June seems to me to establish that Knight still held out the hope of advantage from talking to the police. The disclaimer of Detective Walker did not, and I suspect could not, undo the effects of the continued conduct of the police in persisting in interviewing Knight and without disabusing him of his perceptions at the earliest possible time. I am not persuaded that the effects of the inducement were not operative at material times.

30. The alleged confessional statements should not be admitted into evidence.

31. That makes it unnecessary for me to consider the remaining grounds argued.