R v Vassallo[2011] QSC 359

SUPREME COURT OF QUEENSLAND

1. DALTON J: This is an application brought by the defendant pursuant to s 590AA of the Criminal Code to exclude an interview between himself and police on 3 December 2008 on the basis that it was not voluntarily undertaken by the applicant.  The onus is on the Crown to show that the confession was voluntary on the balance of probabilities.^[1]  The applicant has been indicted on six counts of supplying the dangerous drug methylamphetamine in 2008.

2. On 3 December 2008 police arrived at the applicant’s home and conducted a search. They took possession of $6,000 in cash, two mobile phones, a box of financial documents and a red and black notebook. At the beginning of the search police tape recorded the proceedings but, part of the way through the search the tape recording stopped. The officer concerned says he assumes the recording device was inadvertently turned off. During that part of the search which was recorded, the applicant denied any wrongdoing, denied there were drugs in the house, and said that the cash found at the house was received by him as payment for concreting jobs. The applicant ran a concreting business. At the conclusion of the search the police drove the applicant back to the police station and, one hour and 50 minutes later, commenced a record of interview with him. The applicant says that during that time inducements and threats were made to him so that the interview is inadmissible pursuant to s 10 of the Criminal Law Amendment Act 1894:

“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, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

3. The police officers say that during the hour and 50 minutes which preceded the record of interview they examined the financial documents and the mobile phones they had obtained from the house. They also ate some dinner. They say the applicant remained in an interview room during this time. From time to time they checked on him, offered him access to a toilet and a glass of water, but they had no conversation of any substance regarding the case. The applicant’s case is that during this time police offered various inducements and threats to him namely:

“1.Police promised to charge him with only one count of supply (inducement).

2. Police agreed to release him on bail to return to his family (inducement).
3. Police threatened to freeze assets (threat).
4. Police threatened to detain him in custody overnight (threat).
5. Police threatened to confiscate his work machines (threat).
6. Police promised to release to him cash found during the search (inducement).
7. Police promised to release the work telephone (inducement).
8. Police promised that if he co-operated, the sentence would not involve jail time (inducement).
9. Police threatened to report him to the Australian Taxation Office for investigation (threat).”^[2]

4. The record of interview was recorded on audio tape, but was not recorded on video. The police officer concerned explained this by saying that he forgot to insert the video cassette into the recording device. After very few preliminary questions, Detective Constable Risson asks the applicant whether or not he has ever supplied amphetamines. The applicant replies “yes” and without any further ado, describes the details of the occasions on which he supplied methylamphetamines. He discusses entries in the black and red notebook which he admits are records as to the supply of methylamphetamines and monies paid, or owing, for those supplies. The applicant maintains that the $6,000 is cash he received for concreting jobs and denies that it comes from the sale of drugs. At the end of the interview he agrees that no threat, promise or inducement has been held out to him to take part in the interview.

5. The police officers say that after the interview was over, there was a discussion with the applicant as to his becoming an informer for the police. It is said by the police officers that during that discussion the applicant asked what type of sentence he would receive and that a non-committal reply was made.

6. It is not controversial that the applicant was not arrested and given bail, but was given a notice to appear and driven home by police. The $6,000 seized was returned to him as were the business records, in the next day or so. The notice to appear contains the following after the standard form, “You are accused of the following offence(s):”

“Offence – 1 x supply dangerous drugs

Date – between 01/01/08 – 31/10/08”.

7. The applicant raised various circumstantial matters to support his case. There was no obvious reason for the applicant to have changed from denying any wrongdoing at his house to making a full confession in the record of interview. The length of time (one hour and 50 minutes) spent at the police station was overly long for the examination of financial documents and telephones. It was inherently unlikely that the police would not have arrested the applicant; would have returned the seized $6,000 to the applicant, and would have charged the applicant with one count of supply when he clearly confessed to six.

8. However, quite apart from such matters, the applicant produced very strong evidence to support his version of events in the form of recordings of telephone conversations between himself and Detective Constable Risson in the few days following the interview. During these telephone calls Detective Constable Risson was concerned to pursue his aim of recruiting the applicant as a police informer. The applicant, fairly clearly, was concerned to pursue evidence about what had happened on the night of the interview.

9. There are parts of these tape recorded conversations which, if they stood alone, I would regard as neutral – that is not favouring either party to this application such as:

“D:Yeah I’m just really worried about me fucking like you said me I’m caught up in it through association and fucking this aren’t me man…I run a business…When ya’s said ya’s would cease me machines and that…And I can’t work like straight away I think my family is fucked…

R:Nah we are not going to be doing that mate…Hey my partner just wants to have a quick chat to you…”^[3]

In circumstances where Detective Constable Risson was attempting to steer the conversation to the applicant’s becoming an informer, it may be that he would not be concerned to refute the allegations made by the applicant in this passage but instead to let them pass, reassure the applicant, and steer the conversation towards a topic which he (Risson) was interested in. 

10. However, there are parts of the tape recorded conversations which are not amenable to such an explanation. The most compelling part of the conversation is this:

“DSo so what happens here, like I done what ya’s more or less wanted

RYep

DWhat happens here now like

RHave you gone to solicitor yet

DNo not yet, what does ya’s want you said ya’s would call me and let me know what ya’s wanted me to

RYeah that right pretty much why I’m just touching base with you now mate work out a plan of attack pretty much

Dand, and ya’s you still don’t think I’ll do jail time

RMate no

RNO

DNo

RNup

RNah I’ve been talking about that with Chris and mate nah yeah you’re looking sweet as for that

DNo so ya’s weren’t trying to trick me I’m just worried that ya’s were trying to trick me…that’s all

RNo mate after everything we said that whole night mate I’m not a bullshit artist I just play it straight down the line and mate we pretty much could of charged you with trafficking and at the end of the day you walked away with one charge of supply and for each of those for each occasion that you supply there is a separate charge of supply but we have just gone just one supply…”^[4]

11. The first point of significance is that the applicant asserts that he has done what the police wanted and Detective Constable Risson assents to this proposition. It is difficult to see what this could refer to except the giving of the interview. At this stage, while the police have tried to persuade the applicant to become an informer, he has not yet agreed to that, and has not provided them with any significant information in train of that. The second point of significance in this passage is that Detective Constable Risson reassures the applicant unequivocally that he will not do jail time. This is quite contrary to his evidence in which he said he gave guarded and equivocal answers to such questions when they were posed by the applicant. This is more than just a credit point, it goes to the substance of the case the applicant makes as to an inducement being held out to him that he would not do jail time if he co-operated and gave admissions in an interview.

12. The third and most compelling point from this passage is that following on from the discussion of the likelihood of jail time the applicant says:

“No so ya’s weren’t trying to trick me I’m just worried that ya’s were trying to trick me.” (my underlining)

13. First of all, the underlined word “so” links the conversation about jail time to the trick. This link is more apparent when the recording itself is listened to than it is from the transcript. The second point is that the applicant talks of a trick in the past tense – a trick which he is worried has already been played. On the police case, the only way to understand this reference to a trick is that the applicant is suspicious regarding the conversations which were held after the interview as to him becoming an informer. The police case allows for an inducement being held out to the applicant after the interview to the effect that, if he became an informer, a letter of comfort would be provided in relation to his sentencing on the subject supply charge. If the applicant were worried about his involvement, in the future, as an informer, it is difficult to see how the words he has used in the telephone conversation are apt to express that worry. However, in my opinion the matter is put beyond all doubt by Detective Constable Risson’s reply. He does not interpret what the applicant says as relating to the applicant being worried about his future involvement as an informer, but responds to reassure the applicant that he was “playing it straight” the night before and as evidence of that, explains to the applicant the accommodation made to the applicant the previous night in charging him with one count of supply rather than separate counts of supply for each occasion of supply, or trafficking.

14. In my opinion the passage extracted is very clear evidence that there was an arrangement made the night before involving the police charging the applicant with only one count of supply and that if he co-operated by giving a recorded interview his sentence would not involve jail time. In light of those findings it is not necessary for me to go further to consider the other threats and inducements alleged by the applicant. The interview of 3 December 2008 was not voluntary within the meaning of s 10 of the Criminal Law Amendment Act 1894 and I rule that it is not admissible on the trial of this matter.

15. I should add that, unusually, at the committal in this matter the legal representatives for the applicant ran this point on a voir dire and the Magistrate came to the opposite conclusion to that which I have reached. Counsel for the applicant and counsel for the Director of Prosecutions agreed that the Magistrate ought not to have embarked on the voir dire and that I was not bound by the Magistrate’s decision in that regard.