R v McMillan[2010] QSC 309

SUPREME COURT OF QUEENSLAND

1. Beau McMillan is charged with serious drug offences, including that he carried on the business of unlawfully trafficking in cannabis sativa and 4-Bromo-2, 5 -dimethoxyphenethylamine.  By this application pursuant to s 590AA of the Criminal Code, he seeks a ruling that a conversation with Detective Sergeant Daniel Collins that took place shortly after 7.15 am on 29 April 2009 is inadmissible at his trial. 

Search

2. The circumstances surrounding the conversation were these:

3. At 11.50 pm on 28 April 2009, the police went to a house at Burpengary looking for Kurt Reynolds. The house was the residence of the applicant’s parents. Reynolds was a nephew. They allowed the police to search the house.

4. While looking for Reynolds, the police smelt burned cannabis. They saw a smoking utensil in a garage. The garage was the applicant’s bedroom.

5. During an emergent search of the bedroom, the police located a clip-seal plastic bag containing cannabis, coffee grinders, scissors and electronic scales Also in the garage was a locked safe. It held: 428 tablets containing 4.205 grams of pure 4-Bromo-2, 5-dimethoxyphenethylamine, 1187.3 grams of cannabis sativa, and $12,350 cash. The police also located a laptop computer in the garage. A document on it appeared to be a story about the author’s drug trafficking activities.

6. The applicant, informed of his rights, said that he did not want to answer questions and wished to speak to a lawyer. He was arrested.

7. All pertinent conversations to that point had been digitally recorded.

Recorded interview

8. At about 3.00 am, the applicant was taken to the Caboolture Police Station. There, at first, police spoke to the applicant’s parents and girlfriend. At 6.10 am, the applicant was interviewed by Collins and Constable Kelly Hutley, both of whom had been involved in the search. The interview was recorded.

9. The applicant told the police that a bong in the bedroom was his, and that he had smoked “probably twenty cones” with it the previous evening. He was asked where he sourced his cannabis. There was equivocation on that topic. The applicant also expressed reservations about answering questions, mentioning a fear of retribution if recorded incriminating others.

10. The interview was suspended at 6.30 am to allow the applicant to speak to his father. After that, the applicant was willing to resume the interview. It recommenced at 6.56 am.

11. The applicant told the police that he felt addicted to cannabis because of “life problems”. Asked about the safe, initially, he said that he had got it from Reynolds the previous Friday. When it was put to him that his parents and girlfriend had said that he had had the safe longer, he suggested that they must have been talking about a different safe. Eventually, however, he admitted that the safe was his.

12. During the interview, the applicant asked whether he could help himself to “look better in front of a judge”. The police would not give him legal advice. He raised the prospect of protection, which was, he said, “the only way I could ever say anything about these people.” No such promise was extended. The applicant was reminded that he could contact a solicitor for legal advice.

13. When asked if he sold drugs, the applicant said that he was going to be sick. The interview concluded shortly afterwards.

Other admissions

14. After the recording equipment was stopped but before the police and the applicant had left the interview room, the applicant made the admissions that are the subject of this application.

15. Collins made notes of the conversation at about 9.30 am, after he had finalised paperwork and the applicant, who remained under arrest, had been charged. Hutley signed the notes that evening, adopting them as an accurate record.

16. These are the notes:

“Start: 0656

Finish: 0715

Interview terminated by McMillan.

McMillan: Sorry, I just don’t want to talk on tape.  I am shit scared.  I will tell you stuff.  Just not on tape.

I said: What do you want to tell me?

McMillan: This is what happens right, I get the stuff, the pills & grass from these blokes.  I am not telling you who cause they will kill me.  They would.  I get the stuff and give it to my friends who go and sell it.

I said: When do you pay for it.

McMillan: At the end.  I get money back from my mates, who sell it, I take my cut and then I pay the blokes who gave me the stuff.

I said: What do you do with your share of the money.

McMillan: Just live you know.  Nothin much.

Collins said: How long have you been selling drugs?

McMillan: Since I had my car accident.  I owe some money so I started doing this

I said: Do you now owe money for the drugs & cash we seized tonight?

McMillan: Yes

I said: What will happen about that?

McMillan: I don’t know man.  I am fucked.  They are fuckin bad people man.  They will be after me.

I said: Are you prepared to give me this information on tape?

McMillan: No.  I don’t know what to do.  Tell me what to do.

I said: I can’t tell you what to do.  Your Dad is coming in, have a chat to him.

McMillan: Sorry, I am just scared.  You don’t know what these people are capable of.

I said: Alright, just sit in here & I will bring your Dad up when he gets in.

McMillan Father attend and bought to i/view room.  McMillan and father have private discussion refused to be further i/viewed.

McMillan taken to w/house & charged.”

Statutory regime

17. The relevant provisions of the Police Powers and Responsibilities Act 2000 (“the Act”) are:

“436Recording of questioning etc.

1. This section applies to the questioning of a relevant person.
2. The questioning must, if practicable, be electronically recorded …
3. If the person makes a confession or admission to a police officer during the questioning, the confession or admission is admissible in evidence against the person in a proceeding only if it is recorded as required by subsection (4) or section 437.
4. If the confession or admission is electronically recorded, the confession or admission must be part of a recording of the questioning of the person and anything said by the person during questioning of the person.

“437Requirements for written record of confession or admission

1. This section applies if a record of a confession or admission is written.
2. The way the written record of the confession or admission is made must comply with subsections (3) to (7).
3. While questioning the relevant person, or as soon as reasonably practicable afterwards, a police officer must make a written record in English of the things said by or to the person during questioning, whether or not through an interpreter.
4. As soon as practicable after making the record –

1. it must be read to the person in English and, if the person used another language during questioning, the language the person used; and

2. the person must be given a copy of the record.

(5)Before reading the record to the person, an explanation, complying with the responsibilities code, must be given to the person of the procedure to be followed to comply with this section.

(6)The person must be given the opportunity, during and after the reading, to draw attention to any error in or omission from the record he or she claims were made in the written record.

(7)An electronic recording must be made of the reading mentioned in subsection (4) and everything said by or to the person during the reading, and anything else done to comply with this section.

438Access to electronic recordings of questioning etc.

(1)This section applies to the electronic record of the questioning, confession or admission, or confirmation of a confession or admission, of a relevant person that is made under section 436 or 437(7).

(2)A police officer must, without charge –

1. if the recording is –

1. an audio recording only – make a copy of the recording available to the person or the person’s lawyer within 7 days after making the recording; or

2. a video recording only – make a copy of the recording available to the person or the person’s lawyer within 14 days after making the recording; or

2. if both audio and video recordings were made –

1. make a copy of the audio recording available to the person or the person’s lawyer within 7 days after making the recording; and

2. notify the person or the person’s lawyer that, if the person asks, an opportunity will be provided to view the video recording; or

3. if a transcript of an audio recording is made – on request, give to the person or the person’s lawyer a copy of the transcript.

(3)Subsection (2) applies subject to any other Act.

439Admissibility of records of questioning etc.

(1)Despite section 436 and 437, 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.”

Statutory inadmissibility

18. By s 436(3), the “confession or admission” recorded in Collins’s notes is not “admissible in evidence” because what the applicant said was not “recorded as required by subsection (4) or section 437”.

19. Section 436(4) is inapplicable: what was said was not electronically recorded. None of the requirements of s 437(3), (4), (5), (6) or (7) was satisfied. It was reasonably practicable for Collins to have made his notes within the two hours or so that elapsed between the confession and when he composed notes. And as the applicant remained at the station, under arrest, for at least an hour after the conversation took place, there was ample time for Collins, after making his record, to have complied with the requirements of s 437(4) – (7).

20. At the committal hearing, Collins acknowledged that he was aware of applicable requirements in the Act: in particular, to have shown the notes to the applicant and invited him to sign them. He acknowledged that he had ready access to a handheld recorder of the kind that had been used during the house search. His explanation for not asking the applicant to consider the notes was a desire to finish work. Collins spoke of having completed a ninth hour of overtime over two days and that he was “just starting five days off”.

21. In the circumstances, in the absence of an order or direction under s 439(2), the police officers cannot testify to the applicant’s post-interview admissions. The prosecution seeks the favourable exercise of the s 439(2) discretion to allow them to do so.

Section 439

22. Section 439(2) requires the Court to have regard, among other factors, to the nature of the non-compliance and the reasons for it.

23. The non-compliance was extensive: indeed, it was complete. It was also deliberate, not the product of inadvertence or an inability to perform the s 437 duties. Moreover, Collins had the time to have made his notes, promptly shown them to the applicant and otherwise satisfied the s 437 requirements^[1] before completing what he called “other paperwork” and finishing his shift.

24. In short, compliance was both practicable and not unduly bothersome.

25. Those considerations tend against the exercise of discretion – if there be one – to admit evidence of the recorded confession.

26. There are, however, “other relevant matters” pointing in a different direction.^[2]

27. First, the accuracy of the notes as a true account of the conversation is not challenged.

28. Secondly, it is not suggested that the confession to selling drugs was either equivocal or in any respect unreliable.^[3] 

29. In those circumstances, admission of the conversation would not conflict with the main policy considerations that underpin the legislative regime: put shortly,^[4] ensuring the accuracy of evidence of confessional revelations and avoiding the trouble and expense of a dispute about what was said. 

30. Thirdly, drug trafficking is a serious offence. Admitting the confession would increase the chances of a conviction. The prosecution case would no longer be circumstantial. And social costs commonly attend the acquittal of someone guilty of a serious criminal offence.^[5]

31. Fourthly, the confession was not recorded electronically only because the applicant, for his own purposes, wanted things that way.

32. All considered, in the special circumstances of this case, it would be in the interests of justice to admit the evidence of the inculpatory conversation.

33. The applicant contends, however, that, on the proper construction of s 439, there is no discretion to do so.

34. At the trial, the prosecution would wish to call the officers to testify to what they heard the applicant say in the post-interview confession. Their recollections might be refreshed by reference to the notes, which is the conventional way of adducing evidence-in-chief of an oral, incriminating statement by an accused where the statement is neither electronically recorded nor acknowledged by the accused as a substantially accurate. The notes themselves would not go into evidence – at least not unless they became admissible and were let into evidence because of the way in which the defence chose to conduct the case.^[6]

35. According to Dr Forbes, there is a statutory discretion to permit testimony to be given of oral confessions that are not electronically recorded in compliance with the legislative prescriptions:^[7]

“...there is now a statutory requirement that police interviews with persons in custody be electronically recorded whenever possible. There is a discretion to admit statements not so recorded – for example, where the recording apparatus fails to work, or when a spontaneous statement is made before recording equipment can be activated or reactivated.  An unrecorded statement may also be admitted when the defendant prefers to speak “off the record”…[8]

36. On the applicant’s case, however, there is no such discretion.

Setting

37. If s 439(2) has the effect attributed to it in the Explanatory Notes that accompanied the Police Powers and Responsibilities Bill 2000 (“the Bill”) when it was before the Legislative Assembly, the provision would confer a judicial discretion to admit into evidence at trial testimony of Collins and Hutley about the confession recorded in the notes.

38. Clauses 226 – 229 of the Bill became ss 436 – 439 of the Act.

39. The Explanatory Notes^[9] described the Bill as completing a “process of consolidation of police powers” that had commenced with the Police Powers and Responsibilities Act 1997 (the “1997 statute”).  “[A]dditionally”, those Notes said, “the Bill seeks to rectify any technical defects contained in the [1997 statute]”.

40. Of cl 229, which became s 439, the Explanatory Notes said:

“Clause 229 provides that if this Division is not complied with or there is a lack of evidence of compliance, the court may still admit the evidence in the interest of justice.”

41. Apparently, the author of the Notes thought that the Parliament was being asked to legislate for just such a discretion as the prosecution now seeks to invoke.

42. When the Bill was considered in Committee, clauses 226 to 229 provoked no discussion.  Hansard merely records:

“Clauses 221 to 231, as read, agreed to.”[10]

43. No mention was made of clauses 236 – 239 in the Second Reading speeches.

44. These are distinct indications that Parliament enacted s 439 on the basis that the Explanatory Notes accurately summarised its effect.

45. In a statute that largely consolidated other legislation on police powers, it might have been expected that s 439 would adopt the language of its statutory precursor. However, new words were chosen.

46. Sections 436 – 439 of the Act were based on s 104 of the 1997 statute. Section 104 was restricted in its reach to a “person in custody”. Section 436 operates more broadly, extending to a “relevant person”: that is, someone “in the company of a police officer for the purpose of being questioned as a suspect…”.^[11]  Apart from that and two or three other, presently immaterial, differences, s 104 of the 1997 statute imposed an identical regime.  By s 104(3), a confession or admission during questioning was “admissible as evidence against the person in a proceeding only if it is recorded as required by this section.”  If written, the record had to comply with subsections (6) to (10).^[12]  During the questioning or as soon as reasonably practicable afterwards, a written record had to be made.^[13]  As soon as practicable after the record was made, it had to be read over and a copy given to the person.^[14]  An opportunity had to be given to draw attention to any error in or omission from the record.^[15]  An electronic recording had to be made of that reading.^[16]

47. Section 104(11) and (12) contained the same provisions as were to become s 438 in 2000. 

48. Importantly, s 104 concluded with:

“(13)If a court considers this section has not been complied with or there is not enough evidence of compliance, the court may, despite the noncompliance, admit evidence to which this section applies if, having regard to the nature of and the reasons for the noncompliance 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.”

49. Unlike s 104(13), s 439(2) does not speak of a discretion to “admit evidence…if…admission of the evidence would be in the interests of justice.”  Instead, it allows the Court to “admit a record …if… admission of the evidence would be in the interests of justice.”^[17]

50. The explanatory notes that had accompanied the Bill for the 1997 statute described the effect of s 104(13) in this way:

“…a court may admit evidence obtained in non compliance with this clause if it is the interests of justice.”

51. The similarity of purpose to that stated in the Explanatory Notes concerning cl 229 of the 2000 Bill is obvious.

Interpretation of s 439

52. The extrinsic material^[18] does not suggest that s 439 was intended to alter the effect of s 104(13).  There is nothing to indicate that s 104(13) was thought to suffer from some technical defect; nor to suggest that the change in language was designed to restrict the width of operation of the judicial discretion that s 104(13) had conferred.

53. If the applicant’s argument is right, however, s 439 has emasculated the s 104(13) discretion.

54. On the applicant’s case:

• Testimony of the police officers concerning the admissions would not be a “record”.  So s 439 would not allow that evidence to be adduced. 

• No other statutory provision^[19] nor any principle of the general law of evidence would make the notes admissible in the prosecution case.^[20]  And s 439 does not change the rules of evidence to permit them to go before the jury.

55. The legislative history and other extrinsic material – in particular, the 2000 Explanatory Notes – indicate that no such alteration to the breadth of the s 104(13) discretion was envisaged.

56. But if Parliament did not intend new consequences to be attached to them, what accounts for the different words in s 439?  Why, in other words, has “a record” been substituted for “evidence”?

57. The likely explanation is no compliment to the drafter.

58. It rather looks as though the author of s 439 did not realise that, while oral evidence about a confession would be admissible, usually the written record would not;^[21] and, acting on that misapprehension, chose what s 14C of the Acts Interpretation Act 1954 (“the AIA”) calls a “simpler style” of expression. 

59. Where that happens, “the ideas must not be taken to be different merely because different words are used.”^[22]  Taking that legislative command in combination with the purposive approach mandated by s 14B of the AIA, s 439 might have been construed to the same effect as s 104(13).  Even different words in the one statute may bear the same meaning.^[23]  And, as the Court of Appeal has said:^[24]

“…

“Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object…The days are gone when judges, having identified the purpose of a particular statutory provision, can legitimately say, as Lord Macmillan said in Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641, of the means used to achieve the purpose: ‘The legislature has plainly missed fire’.  Lord Diplock, in an extrajudicial comment on that decision has said, that ‘if…the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed’: ‘The Courts as Legislators’, The Lawyer and Justice (Sweet & Maxwell) (1978) at 274.”

These words of McHugh JA, though contained in a dissenting judgment, have often been approved in judgments of authority.  They accord with s. 14A(1) of the Acts Interpretation Act, which provides that “the interpretation that will best achieve the purpose of the Act is to be preferred”…” [25]

60. That approach, however, is yet to prevail in relation to s 439.

The issue decided

61. R v Smith^[26] concerned an admission by a suspect during police questioning.  The statement was not electronically recorded.  Notes were not made of it until months afterwards.  The non-compliance with the statutory regime meant that testimony about the admission was not admissible.  The trial judge had, however, allowed a police officer to testify to hearing the admission spoken.^[27]  The Court of Appeal held that s 439, then s 266 of the Act, did not confer a discretion to permit the testimony to be given.

62. McPherson JA, with whom Mullins J agreed, said:^[28]

“Section 266 is directed to the admissibility of records of questioning.  It provides in s 266(1) that, despite the provisions of ss 263 and 264, the court may admit a record of questioning or a record of a confession or admission even though the court considers that Div 5 has not been complied with or there is not enough evidence of compliance: see s 266(1).  However, the record may be admitted 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”.

…

Under s 266(1) it was nevertheless open to the court to exercise a discretion to admit in evidence “a record of questioning” or “a record of a confession or admission” even though it considered that Div 5 had not been complied with or there was not enough evidence of compliance.  The word “record” in this context is not defined, but it is not easy to equate it with Kitching’s unrecorded recollection of the conversation at any time before to 16 May 2002, when he first wrote it down in his witness statement.  After that date, there was a “record” in the form of the witness statement which he prepared for the proceedings against the appellant.  However, it was not that “record” or written statement that the trial judge was asked to admit in evidence at the trial.  Instead, it was Kitching’s oral evidence based on his recollection of the conversation that was tendered and admitted.  He may in fact have refreshed his memory by reading his statement again before giving evidence at the trial on 7 August 2002. He did not, however, ask for leave to do so at the trial, but gave his evidence of the conversation as something he was able to do of his own unaided and independent recollection.  It was something he was not questioned about.  According to the decision in King v Bryant (No 2) [1956] St R Qd 570, he was not obliged to seek leave to refresh his memory in that way.  Doing so would not in any event have made his statement or “record” of the conversation admissible unless defence counsel had chosen to make it so by cross-examining him and then tendering it, which it was hardly likely he would have wished to do.

The result is that his Honour had no power or discretion under s 266 to admit, or for that matter to reject, the evidence of Det Sgt Kitching.  It was not “a record of questioning” or “a record of confession or admission” that was tendered at the trial, but Kitching’s independent recollection of what had been said to him in the course of the conversation on 21 October 2001.  In consequence, s 266 did not apply so as to authorise the court to admit the evidence if it was not otherwise admissible under the Division.  Even though it was not a “record” of the questioning or the confession or admission, was it otherwise not admissible?  That inquiry must in my opinion be answered in the affirmative.  Section 263(3) renders a confession or admission admissible in evidence in a proceeding against the person making it only if it is recorded as required by s 263(4) (electronically) or s 264 (in writing).  The confession or admission here was, for the reasons I have given, not recorded as required by s 264(4) and by force of s 263(3), was not admissible in evidence at the appellant’s trial.  Under s 266(1), the judge had no power or discretion to admit.”

63. That literal interpretation^[29] of s 439 obliges me^[30] to conclude that there is no discretion to allow Collins or Hutley to testify to their recollections of what the applicant told them in the unrecorded conversation.^[31]

Notes admissible?

64. The Smith interpretation would not matter so much if s 439 confers a discretion to allow the written record into evidence despite non-compliance with s 437.  Does s 439 allow Collins’s notes to be adduced in the prosecution case?

65. There are curiosities about the notion that the notes may go into evidence in circumstances where the Act prohibits testimony that the words recorded were spoken.

66. First, why would the legislature forbid oral evidence of the confession – typically, with the witness refreshing recollection by looking at the notes while testifying – yet stipulate that the notes themselves might go into evidence? No satisfying answer occurs to me.

67. Secondly, it is not easy to conceive of circumstances in which it would be in the interests of justice to admit a written record of a confession – a disputed one at any rate – if the witness cannot be cross-examined about what was said and recorded.

68. Moreover, there is no indication in the legislative history or other extrinsic material that, in enacting s 439, the Parliament was intending to alter the law of evidence to render admissible a record which is otherwise inadmissible.

69. In view of the restrictive interpretation of “record” in Smith, however, s 439 has very little work to do unless it has amended the law of evidence to permit the record to go in.  There may be a handful of cases where s 93 of the Evidence Act would sustain admissibility of the notes.  And in the course of a trial, conduct of the case by the defence could allow the notes to be admitted.^[32]  Such circumstances will be rare.  Otherwise, it is difficult to identify circumstances in which the discretion might be enlivened. 

70. Mr Callaghan SC contends that s 439 could be invoked where the requirements of s 438 had not been satisfied.  Non-compliance with s 438, however, is not expressed^[33] to impact on admissibility of any record, which would explain why s 439 begins with “[d]espite sections 436 and 437”, not s 438.

Faumuina

71. In R v Faumuina, Fryberg J held that s 439 does not change the rules of evidence to allow into evidence a record that is otherwise inadmissible, saying:^[34]

“Looking at the section in its context, it seems to me that it is designed to provide a limited exemption to the operation of ss 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 subs (2) are complied with.

It may be thought unfortunate that the Parliament had 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 ss 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 s 266 to evade that consequence is, in my view, not permissible if the evidence is not otherwise admissible.”

72. I am obliged to follow Faumuina unless convinced that it is wrongly decided.  Despite the highly inconvenient consequences, it will be apparent that I am not so persuaded. 

Ruling

73. In the result, testimony may not be adduced from Collins or Hutley concerning the admissions in question; nor, as things now stand, may the notes be put into evidence.

Reform

74. Unless, happily, this ruling is reversed on appeal, s 439 deserves the attention of the legislature. Otherwise, people guilty of serious crimes will likely go free.