R v Purnell[2012] QSC 60

SUPREME COURT OF QUEENSLAND

1. The defendant is charged with trafficking in methylamphetamine and cannabis. This was an application made pursuant to s 590AA of the Criminal Code (Qld).  Four matters were raised by the applicant/defendant.  At the hearing of the matter I made orders in relation to the Crown’s giving particulars and a ruling that evidence could not be led from Detective Senior Sergeant Gough in terms of paragraphs 9, 13, 16, 17, 19 and 27 of his statement, which is exhibit 2 before me, on the basis that this evidence is not evidence of facts, but inadmissible opinion as to the meaning of conversations.  Two matters remain.  Objection is taken in relation to the Crown leading evidence of answers given by the defendant to police at the time of, and subsequently to, his arrest on 4 January 2008, and to the Crown leading evidence that the defendant was carrying $10,000 cash at the time of that arrest.  The objection by the defence is based on failures of the arresting officer to comply with the Police Powers and Responsibilities Act 2000 (Qld) (PPRA).  The second objection is to the Crown leading evidence of intercepted telephone conversations between one McConnell and persons other than the defendant on the basis that they are hearsay.  The Crown seeks to admit them on the basis of the rule in Tripodi v The Queen.^[1]

Arrest on 4 January 2008

2. At about 3.00 pm on 4 January 2008 Detective Sergeant Ayres was contacted by police who had been monitoring the phone of McConnell. DS Ayres was informed that police expected the defendant Purnell to visit McConnell at about 6.00 pm that day with the intent of buying drugs. As a result, DS Ayres formed the belief that “a drug transaction was imminent between McConnell and the defendant.”^[2]  At about 5.00 pm DS Ayres positioned his unmarked car near McConnell’s home and half an hour later he was advised that the defendant’s vehicle, a white Ford sedan bearing a particular registration number, had been observed heading towards him.  He was told that the driver of the sedan was the sole occupant and had been identified as the defendant.  After this DS Ayres saw the defendant’s sedan and began following it.  He followed it for 900 metres.  Once it entered the street where McConnell lived, DS Ayres activated his emergency lights and siren and the defendant’s car pulled over.  The following conversation took place between DS Ayres and the defendant, so far as DS Ayres can recall:

“A:‘I’m Detective Sergeant Andrew Ayres from Sandgate CIB could I see your driver’s license please’.

P:‘What’s this all about?’

A:‘What’s your name?’

P:‘You know who I am …’

A:‘No I don’t, can I see some identification please?’

P:‘Wayne Purnell, you all know who I am.’ (At this time, the defendant produced his driver’s license).

A:‘I’m not sure I’ve ever dealt with you before have I?’

P:‘I don’t know maybe.’

A:‘Wayne is there anything in the car that shouldn't be there?’

P:‘Like what?’

A:‘Guns, knives, drugs, bongs, needles?’

P:‘No I don’t do any of that stuff.’

A:‘Do you mind if I take a look?’

P:‘Go for it …’

A:‘I’ll get you to jump out if you would … do you have anything in your pockets … anything you shouldn't have?’

P:‘I’ve got ten grand.’

A:‘What?’

P:‘I’ve got ten grand.’

A:‘Where is that?’

P:‘Down my jocks.’

A:‘What’s it doing down there?’

P:‘It’s too big to fit in my wallet.’

A:‘Strange place to keep your cash isn’t it?’

P:‘Not for me.’

A:‘What’s the ten grand for?’

P:‘I was on my way to the Casino.’

A:‘Dressed like that?’

P:‘I was on my way home to get changed.’

A:‘From where?’

P:‘A friend’s house.’

A:‘Wayne, you’re under arrest because I reckon you are on your way to buy drugs with that money.  I want to advise you that you do have the right to remain silent; you do not have to say anything, answer any questions or make any statement, anything you do say is being recorded and can later be used as evidence against you.  You also have the right to speak to a friend, relative or lawyer and to advise that person where you are and to have that person present whilst being spoken to by Police, do you understand what I have just said?’

…”^[3]

3. There was a little more conversation and the defendant’s car was searched. DS Ayres then took the defendant to the Sandgate CIB office where he asked him to retrieve and produce the $10,000.  The defendant complied and told DS Ayres a story that he had received the money as part of a compensation payout several years ago and kept it under his mattress.  He persisted with his assertion that he was going to the casino.  DS Ayres seized the $10,000 cash produced by the defendant.

4. DS Ayres says that at all these times he did have with him, and attempted to use, an electronic recording device but, unknown to him at the time, heavy rain experienced on the roadside had caused this device to malfunction such that it did not record the above conversations. He did write down the conversations later that night in his police notebook.

5. The defendant says that there was no search warrant applied for to search the vehicle – see s 150 PPRA, but conceded that this point mattered not, as nothing incriminating was found in the car. 

6. Defence counsel relied upon the failure to warn in accordance with s 431 of the PPRA.  In my opinion, at all times after DS Ayres pulled him over, the defendant was a suspect and was being questioned about the commission of an indictable offence within the meaning of s 415(1) of the PPRA.  Therefore he ought to have been cautioned by DS Ayres immediately after DS Ayres confirmed his identity.  I can see no reason why a caution was only administered after the defendant had admitted possessing $10,000, which must be the very admission against interest which DS Ayres hoped to obtain on questioning him. 

7. Non‑compliance with s 431 does not automatically exclude a statement made before the warning was given.^[4]  It allows exclusion of the evidence in the exercise of judicial discretion to ensure a fair trial.  The public interest in bringing to conviction those who commit criminal offences must be weighed against the public interest in having an individual treated fairly and lawfully by police officers.^[5] 

8. It is difficult to see how a Detective Sergeant who had plenty of notice of almost exactly what he would deal with when he pulled over the defendant would not have turned his mind to when a warning ought to be given. It is difficult to imagine that he thought it appropriate to give a warning only after he had obtained an admission of the very fact he hoped to gain after apprehending the defendant. On the other hand, the defendant’s admission of possession and ownership of the $10,000 was voluntary and obviously was true having regard to the fact that he produced that sum later at the police station. It is important evidence in the Crown case against the defendant.

9. It was expected from the intercepted telephone calls that the defendant would be carrying a large amount of cash. Had DS Ayres properly warned the defendant, and had the defendant declined to make any statement to him following that warning, DS Ayres would have had the power to search the defendant pursuant to s 29(1) of the PPRA and would no doubt, during that search, have found the $10,000 cash.  The defendant may then have continued to refuse to make any statement.  The state of the Crown evidence would have been that following telephone calls which indicated that the defendant was on his way to provide McConnell with funds to purchase drugs, the defendant was apprehended close to McConnell’s house with $10,000 about which he made no statement.  As it is, the Crown evidence is that following the telephone conversations, the defendant was apprehended near McConnell’s house and admitted owning and possessing $10,000 for which ownership and possession he gave reasons which the Crown rely upon as a lie indicating consciousness of guilt.  As between Crown and subject I think that the defendant’s position at trial is worse, but not substantially worse, than the most favourable it could have been for him had the PPRA been complied with.

10. In all these circumstances I would not exclude the conversation said to have occurred between the defendant and DS Ayres because the warning was given inappropriately late.

11. The questioning of the defendant by DS Ayres on 4 January 2008 was not electronically recorded. The reason is that the recording device failed and DS Ayres did not realise this. I think in these circumstances the questioning was not practicably able to be recorded within the meaning of s 436(2) of the PPRA, and I do not find that there was a breach of this sub-section.

12. Section 436(3) of the PPRA provides:

“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.”

13. Section 436(4) is not applicable because there was no electronic recording. DS Ayres did not comply with s 437.  Although he made a written record of the conversation he had with the defendant, he did not read it to him and otherwise comply with the provisions of s 437(5)-(7).

14. Section 439(2) of the PPRA allows a court to admit a record of questioning or a record of confession or admission despite non-compliance with the abovementioned provisions in the interests of justice.  Insofar as the defendant made a confession or admission to DS Ayres during questioning on 4 January 2008, it is inadmissible pursuant to s 436(3) unless I excuse non-compliance pursuant to s 439(2).

15. There is no confession in the record of questioning kept by DS Ayres.^[6]  The statements by the defendant that he owned and possessed $10,000 are plainly admissions.  Further, the statements by the defendant that he was on his way to the casino; on his way home to get changed after visiting a friend’s house, and explaining the history and origin of the money he was carrying, are statements which are admissions within the meaning of s 436(3) in my view.  No doubt these statements were made with the intention that they be exculpatory, but will be relied upon by the Crown as evidence tending to show guilt because they are lies.  Such incriminating statements were regarded as admissions for the purpose of the judges’ rules as to voluntariness at common law – see R v McKay.^[7]  They are admissions in the sense that they are statements by an accused admissible in evidence against him.^[8]  There are several statements in Edwards v R^[9] as to lies being admissions against interest.

16. Therefore in my opinion the statements made by the defendant to DS Ayres on 4 January 2008 as to his ownership and possession of the $10,000, and as to how he came by the money and what he was planning to do with it are admissions caught by s 436(3).  Turning to s 439, there is no record of these admissions except for the notes in DS Ayres’ police notebook.  These notes are not admissible at general law and thus must be excluded for the same reason that the evidence of admissions was excluded in R v McMillan.^[10]  I endorse the remarks of Byrne SJA in McMillan as to the need for reform of s 439 of the PPRA to avoid what seems to be an unintended consequence flowing from the drafting of that section.

17. That leaves the evidence that the defendant produced $10,000 in cash to DS Ayres after he was apprehended on 4 January 2008. After the conversation which is extracted above, DS Ayres informed the defendant, “I don’t believe your story about the money” and the defendant said, “It’s my money.” DS Ayres then handcuffed the defendant and searched his car. Nothing was found in the car. At the end of the search DS Ayres returned to the Sandgate Police Station with the defendant where DS Ayres removed the handcuffs and asked the defendant to retrieve the $10,000 from his shorts. The defendant did this and DS Ayres took a photograph of the cash as produced by the defendant. Questioning then continued with DS Ayres asking, “Where did you get the ten grand?” There were some dozen or so questions as to the origin and history of the defendant’s ownership and possession of the cash, which the defendant answered before the defendant refused to further co-operate.

18. My view is that the production of the cash on request to DS Ayres was an admission by conduct and that it is an admission to a police officer during questioning of a relevant person within the meaning of s 436(3) of the PPRA.  I am of the view that s 436(3) applies to admissions by conduct as much as admissions made by speaking.  I have no doubt it would apply to an admission made by nodding or shaking of the head or producing something relevant in response to questioning, whether that be money, drugs, or something else incriminating in a particular case.  I think the admission by conduct in producing the money is just as much caught by s 436(3) as statements made by the defendant. An admission by conduct is quite capable of being electronically recorded if the means of electronic recording are visual as well as sound recording.  Furthermore, such an admission is capable of being recorded even if the only electronic recording is sound recording, because the question or demand to produce the cash will be recorded and the defendant can be asked to agree that he has in fact complied with the request, just as persons subject to questioning are routinely asked to acknowledge their non-verbal responses to questions.  Similarly, the production of the cash could be recorded in writing in much the same way so that, having regard to the terms of s 436(3), s 436(4) or s 437 could be complied with. 

19. Turning to s 439 of the PPRA, it may be that there is some record of the admission by conduct of the defendant of possession of the $10,000 cash which is independently admissible in evidence.  If there is, a Court may well be satisfied it should be admitted pursuant to the provision in s 439(2).  I refrain from venturing further into that field as that point was not argued before me.

Conversations between McConnell and Third Parties

20. There are before me transcripts of intercepted telephone calls, (a) between Purnell and McConnell, and (b) between McConnell and third parties.^[11]  The Crown wishes to lead them in support of the trafficking charges against Purnell.  The defendant objects to the calls between McConnell and third parties being led against him.  Without anything more they are hearsay.  However, the Crown says that Purnell and McConnell were engaged in a common unlawful enterprise to traffic methylamphetamine and cannabis and that calls made by McConnell to third parties as part of that trafficking business are admissible against Purnell under the principles in Tripodi v The Queen.^[12]  In Ahern v The Queen^[13] the High Court explained the reason for the admission of what would otherwise be hearsay evidence:

“That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others.  The combination implies an authority in each to act or speak on behalf of the others: Tripodi. …. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. … The implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination.”

21. In this case there is reasonable evidence^[14] that Purnell and McConnell were pursuing a common unlawful object of buying and selling drugs and precursor material, and making drugs.  This can be seen from the transcripts of the conversations between McConnell and Purnell.  There is no doubt these conversations are admissible against the defendant.

22. McConnell had conversations with third parties which also involved his buying and selling drugs, or precursor materials, or at least making arrangements to do so. In respect of some of these, there is no evidence that the transactions which McConnell discusses with third parties are part of the business which McConnell and Purnell pursued in common. From the transcripts of all the calls, it is quite conceivable that McConnell had several common unlawful enterprises with several different people. That he and Purnell sometimes worked together does not mean that Purnell was engaged in every unlawful enterprise McConnell was engaged in. In my view there is not sufficient evidence that Purnell was involved in a common unlawful purpose with McConnell in relation to the calls McConnell makes to third parties numbered 22, 32, 107, 120, 354, 687, 757, 828, 885, 957, 961, 970 and 1723.

23. On the other hand, some of the conversations between McConnell and third parties are clearly related to the joint enterprise between McConnell and Purnell and there is reasonable evidence that this is so from conversations between McConnell and Purnell. Applying this test it seems to me that:

1. Calls numbered 260 and 279 are conversations which are part of the enterprise between Purnell and McConnell having regard to the contents of the calls between Purnell and McConnell numbered 246, 256, 272 and 280.

2. Calls numbered 283, 285 and 293 are admissible because they are calls with third parties about a problem McConnell and Purnell are having in the course of their common enterprise viz., removing wax from tablets.  That McConnell and Purnell are having those problems in the course of their common enterprise is evident in telephone calls between McConnell and Purnell viz., calls numbered 272, 280, 282, 284 and 347.

3. For the same reason, calls numbered 304, 485 and two parts of call numbered 303 are admissible, viz., “talk about the other and stuffing the wash up.”  And “Lyle says not to throw anything out from the attempted cook etc, etc, etc.”  Part of call numbered 485 relates to police attention which is the subject of calls numbered 390 and 474.

4. Calls numbered 966, 973, 991 and 995 are part of the enterprise engaged in between McConnell and Purnell.  This is evident from the telephone calls between McConnell and Purnell which are numbered 963, 969, 992, 1004 and 1013.

5. Calls numbered 1294 and 1305 are admissible.  They are clearly part of the enterprise between McConnell and Purnell and this is evident from the calls between McConnell and Purnell which are numbered 1295 and 1304.

6. Calls numbered 1637, 1671, 1691, 1700, 1704, 1715 and 1717 are admissible against Purnell.  They are calls with a third party, but the arrangements made with that third party are clearly part of the common enterprise which McConnell had with Purnell.  That is clear from calls between McConnell and Purnell numbered 1640, 1692, 1694, 1710 and 1713.

7. Part of call numbered 2146 is admissible, viz., that part from “Steve wants to see male about some of the other things …” to the end of the call.  The conversation is between McConnell and a third party but it is clearly part of the enterprise between Purnell and McConnell.  This is evident from the call between McConnell and Purnell numbered 2147.

8. In the same category is call numbered 2479.  It is between McConnell and a third party but is clearly pursuant to an arrangement made with Purnell as part of their common enterprise.  That is clear from call numbered 2476 between Purnell and McConnell.

1. In the same category is call numbered 2749.  It is between McConnell and a third party, but having regard to the contents of the call numbered 2748 between McConnell and Purnell, it is admissible against Purnell as it is clear that it is part of the enterprise between McConnell and Purnell.

24. In my opinion, the calls listed at paragraph 23(a)-(i) are admissible under the rule in Ahern v The Queen.  The defence submitted that even if I so found, I should exclude the calls in the exercise of my discretion pursuant to s 130 of the Evidence Act 1977 (Qld) on the basis that it would be unfair to the defendant to admit the evidence having regard to the facts that: he was not party to any of the calls and was therefore not in a position to challenge anything said during them; the Crown is not intending to call the third parties to the telephone calls, so they will not be available for cross‑examination (in fact one of the third parties is dead), and the calls are in cryptic language and somewhat difficult to understand.  The case of R v Omar^[15] was relied upon.  In my view the calls which I view as admissible are closely related to transactions or arrangements between the defendant and McConnell.  They are, except for the calls about removing wax, very much transactional calls, so that they can be seen to be parasitic on the calls between the defendant and McConnell rather than the other way around.  It seems to me in these circumstances that their probative value is high and that, because of their close relation to calls between McConnell and Purnell, difficulties in understanding their content are much reduced.  I refuse to exclude them pursuant to s 130 of the Evidence Act.