R v Huni[2013] QSC 145

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

ATKINSON J

Indictment No 268 of 2012

THE QUEEN

v.

MAAMALOA HUNI

BRISBANE 

11.06 AM, WEDNESDAY, 8 MAY 2013

RULING

HER HONOUR:   This is my ruling on whether each of three conversations that the defendant, Mr Huni, had with police officers is admissible.  Neither of these is the formal record of interview.  They are conversations which occurred prior to that record of interview.  In order to put those conversations into context, I shall set out a summary of the alleged facts, matters and circumstances upon which the prosecution relies.  The prosecution will allege that the defendant, Mr Huni, and the complainant, Garth Tetai, had been friends for about five years.  About three weeks before the offence, Mr Tetai, it will be alleged, moved in to live with the defendant and his then partner, Laupama Saua, also known as Rebecca.  It will be alleged that about two weeks later Rebecca moved out, thereby ending her relationship with the defendant, Mr Huni.  She took their then 16-month-old son, Jonah, that is, son of herself and Mr Huni, and moved in with her friend Melody Anaru at Cathedral Place in Fortitude Valley.  Ms Saua and Mr Tetai, it is alleged, met that night and declared romantic feelings for each other.  The defendant, Mr Huni, was not, in their view, taking the separation well and they decided to keep this development from him. 

Some time in the afternoon before the events in question in this trial, Mr Tetai admitted to Mr Huni that he was having a relationship with Mr Huni’s ex-partner, Ms Saua.  It will be alleged that Mr Huni’s poor reaction to this is reflected in a series of increasingly acrimonious text messages, exchanged between him and his ex-partner.  That evening, he invited Mr Tetai to go out drinking with him.  At about 1 am on the next morning, Tuesday, 29 September 2009, it will be alleged that Mr Tetai drove his ute, a black utility, to the drop-off area at Cathedral Place.  The only passenger, it will be alleged, was the defendant Mr Huni.  They telephoned and spoke to Ms Saua.  Ms Saua refused Mr Huni’s request to see his son. 

The attack that it will be alleged followed was, it will be alleged, captured by a CCTV camera and witnessed by four occupants of the building.  That evidence will suggest, the prosecution will submit, that the defendant got out of the car and walked to the driver’s side where he began punching the complainant.  He pulled the complainant, Mr Tetai, from the cabin onto the concrete driveway.  He repeatedly kicked the complainant, who was on the ground, and picked him up and repeatedly slammed him onto the driveway, leaving him apparently unconscious and on the ground.  The defendant, it will be alleged, then got into the driver’s seat of the complainant’s car, the utility referred to earlier.  He reversed, before driving forward over the complainant’s prone body. 

It will be alleged that the defendant then drove the car as far as Mary Street in the central business district where he collided with a tree near the corner of Felix Street at about 1.20 am.  It will be alleged that he was then intercepted by police whilst he was walking near the intersection of Mary and Albert Streets at about 1.40 am.  The first conversation is alleged to have happened when he first spoke to Federal Police officers at that point.  Queensland Police officers then attended and the second conversation, it is alleged, took place with Mr Huni then.  That second conversation was recorded on a portable digital recording device activated by one of the police officers.  At about 1.50 am his blood alcohol concentration was recorded as 0.196 per cent.  There was a further relatively informal conversation with those police officers when they returned to a police station and then later there, as I have said, was a formal interview with police. 

A confessional statement made to police must be excluded unless it was made voluntarily.  There is nothing in this case to suggest that the confessional statements were not made voluntarily.  However, that is not the end of the matter. 

I should refer to each of the interviews in detail and the circumstances in which they are taken to see whether or not any of those conversations were conducted unlawfully; that is, without the authority of the Police Powers and Responsibilities Act.  And if so, and indeed if not, whether or not it would nevertheless be unfair to admit those statements against Mr Huni.

The first conversation with the police occurred, according to the evidence given by Sergeant Beling and Federal Agent Robins, who is a senior constable, in the following circumstances.  Sergeant Beling said that he was, at that time, on secondment to the Federal Police.  His full-time position is with the Queensland Police and he is now a Sergeant at Warwick, but at the time he was on a two-year secondment to the Federal Police, based at the Brisbane Airport.  In the early hours of the morning, he was travelling inbound along Mary Street and noticed that a black utility had collided with either a tree or a pole at an intersection.  He said he spoke to the police officers at the scene and then drove on.

He continued to about the Albert Street intersection.  At about 1.40 am he saw a male person in the pull-in area and he called out to him, “Are you all right, mate?”  He said that the gentleman, whom he was later able to identify as the defendant, Mr Huni, came straight to the vehicle and headed into the back seat.  Sergeant Beling was getting out at the time Mr Huni was getting in.  Sergeant Beling referred to his notes of that conversation which were written by him within an hour of the conversation taking place.  Mr Huni volunteered the following information as soon as he got into the car, “I think you’re looking for me.  I’m giving myself up.”  Sergeant Beling asked him, “Did you prang your car?”  Mr Huni said, “Yes, but it’s not my car.  It belongs to my mate.”  Beling asked him if he was driving it and he said that he was.  Sergeant Beling asked him where his mate was and Mr Huni replied, “He was rooting my missus.  That’s not right.  What was I supposed to do?”

Because Sergeant Beling had noticed there were cuts to Mr Huni’s arms and hands, he said, “How badly are you hurt?”  Mr Huni said, “Just my hands.”  And Mr Huni repeated his statement about, “He was rooting my missus.  What was I supposed to do?” 

Sergeant Beling said the Queensland Police Service officers arrived and Mr Huni was transferred to the Queensland Police Service vehicle and he and the other Federal Police officer left the scene.  Sergeant Beling said he suspected that Mr Huni was the person who had been driving the vehicle that they had seen that had collided with the tree or the pole earlier in Mary Street.  Sergeant Beling knew nothing about any alleged assault at Cathedral Place.  He expressed the opinion that he did not think that Mr Huni appeared to be intoxicated.  He was quite lucid in his speech and moved freely but he did say that he smelt alcohol on Mr Huni’s breath in the back of the car.

Mr Huni cross-examined Sergeant Beling about whether he had ever seen a person in a dissociative state.  Sergeant Beling said that he had.  He had spent 30 years as a police officer and so had seen persons in a dissociative state, but expressed the view when questioned about it by Mr Huni, that Mr Huni’s condition was not consistent with being in a dissociative state.  Of course, none of these lay witnesses are experts in whether or not someone is in a dissociative state so their opinion evidence has to be discounted for that to that extent, except that it does show what the opinions were of those police officers and other police officers who were questioned about the same matter. 

Mr Huni showed photographs to Sergeant Beling of Mr Huni taken on that night, but Sergeant Beling maintained his opinion that they were not consistent with someone who was in a dissociative state.  Sergeant Beling was cross-examined about the numbering in his police notebook.  He was then cross-examined about whether or not he saw the vehicle that had been involved in the alleged collision.  Sergeant Beling agreed that it had fairly extensive damage and when he saw the cuts to the hands and arms of Mr Huni, he assumed that he had been involved in that accident.  He assumed the utility had been damaged in the accident.  There was some cross-examination of Sergeant Beling about street signs which was not useful in determining the matter I have to determine in this particular question of whether or not the conversation was admissible. 

Senior Constable Geoffrey Robins was the federal agent who was with Sergeant Beling.  His job then was on uniform duties at Brisbane Airport.  He gave evidence of what occurred on that night, how he noticed the single vehicle traffic accident and there were police nearby, stopped and had a brief conversation with uniformed and plain clothes officers.  He said he saw a man staggering along the footpath near the corner of Mary and Albert Street towards 61 Mary Street and he was approached and asked if he was okay, and then he said that he jumped in the back of the vehicle and said, “I think you’re looking for me.  I’m giving myself up.” 

Federal Agent Robins had a tape recorder with him in his pocket but was unable to quickly get it out because he was seated and the various accoutrements he was wearing prevented him from immediately getting the tape recorder out.  He then undertook a conversation on the police radio and he said the Queensland Police officers turned up very quickly after that.  He did that while the conversation was going on between Sergeant Beling and Mr Huni.  Federal Agent Robins said he could not tell if Mr Huni had been drinking but he did see that he was unsteady on his feet.  He was cross-examined about various matters.  It is unnecessary for me to go into the whole of the cross-examination except that he was also cross-examined about various photos and about the numbering of the notebooks of Australian Federal Police. 

The problems that arise with this conversation are obvious.  It was not recorded and it was not tape recorded.  The recording of it is in notes that were made within an hour but nevertheless, not at the time of the conversation.  He was given no warning that he did not have to answer questions and as later events showed, he was in fact intoxicated.  In my view, it would not be unfair to admit the conversation that Mr Huni had with those police officers, primarily because Mr Huni was not invited into the police car, he himself got into the police car and he volunteered information to them.

Their questions were minimal and were mainly designed to find out if he was the person who had been driving the utility that had clearly been in a motor vehicle accident and if he was injured and where his mate was and who was the owner of the motor vehicle.  There was no other way of them getting that information other than from him, and they certainly were not of the view that he was in a dissociative or psychotic state.  In those circumstances they were asking questions about a motor vehicle accident, they did not realise his level of intoxication and they certainly did not take the view that he was in any other state of impairment.  There is no reason to exclude that conversation, and I will allow it to be admitted. 

The next conversation occurred when the Queensland Police officers arrived.  Amongst those who arrived were two plain-clothes police officers, Peter Malcolm Scott and Richard Libke.  They had been driving along Mary Street in the early hours of the morning in question and saw the black utility which had been in a single vehicle traffic accident.  There are various photographs that have been marked for identification which show the utility, the tree that it obviously had impacted with, and the surrounding streets.  Some were taken on that night, and some at some later time, to show the various streets and the city environment.  They stopped at the scene of the single vehicle traffic accident. 

Detective Scott gave evidence that they saw the Australian Federal Police car driving past, it stopped, there was a short conversation with those police officers, and it drove off.  And then, shortly later, they were called to the place further up Mary Street where they saw Mr Huni with the two officers from the Australian Federal Police.  Detective Scott then, quite properly, activated his digital recorder, introduced himself to Mr Huni, told him he was under arrest for assault and cautioned him.  A transcript of the conversation is in evidence, as is the recording of the conversation.  That conversation commences with Mr Scott asking Mr Huni his name, and Mr Scott asking Mr Huni if he knows why he is in custody. 

Mr Huni says “my mate cheated on my missus”.  Scott explains to him that he is under arrest because the police suspect he might have run someone over tonight, and then all the usual and proper warnings are given.  Mr Huni says that he understands and from listening to the tape recording it does appear that he did.  Mr Huni tells the police officer about his extreme displeasure at the behaviour of his ex-girlfriend in sleeping with his friend, then talks about his concern for seeing his son that night, his love for his son, and more about the relationship and he was upset because he was not able to see his son that night and that he then lost it. 

He then continues about his friend, how he was sleeping with the woman he refers to as “my missus”, or “my ex”, and there is further conversation about those matters and his son, and then, inculpatory material about what he did.  The conversation took place over a relatively short period of time.  He gave evidence that Mr Huni was breathalysed, but that he, Mr Scott, was not quite sure of the reading.  He was investigating, he said, the traffic accident which had occurred.  He suspected there was injury to the driver and suspected that the driver, Mr Huni, may have run over someone.

The second conversation with Mr Scott was also recorded.  That occurred at 2.15 in the morning of 29 September 2009.  He asked questions about Mr Huni’s ex-girlfriend and where she was to ascertain, he said, that she was safe.  Her whereabouts were unknown to the police at that time.  By that time, he was certainly aware that Mr Huni was under the influence of alcohol and he was aware that there is a prohibition on questioning a person who is under the influence of alcohol to put it broadly until that person’s level of intoxication has decreased.  That section of the Police Powers and Responsibilities Act is section 423, which provides:

“Questioning of intoxicated persons 

(1)This section applies if a police officer wants to question or to continue to question a relevant person who is 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.”

Mr Scott gave evidence that, although Mr Huni’s speech was somewhat slurred, he had no trouble speaking.  He could see that Mr Huni was sweating but he appeared to understand the warnings, the questions asked and freely gave the answers given.  He said that Mr Huni did not appear to be disoriented.  He was cross-examined about whether or not he had seen people in a dissociative state.  He was shown the photographs of Mr Huni from the night and he said that he was unable to comment on whether or not he was in a dissociative state from those photos.  Further matters were put to him which were not relevant to the question before me.

Mr Huni put to him that the street signs and the photograph of the utility that had been allegedly involved in a collision with the tree were all a fabrication and that one could tell that from those photos.  This seemed to involve putting to the police officer that the bark from the tree, which had adhered to the front of the utility at the point where it is dented from apparently hitting the tree, had been put there by wood glue.  The allegation appears far-fetched and the police officer did not agree with it.  The notes that he made that night were signed by Mr Huni, who put it to the police officer that his signature was forged.  I do not accept that.

Richard Libke was called to give evidence.  It is unnecessary for me to go into all of that evidence in detail, except to say that he came with Mr Scott upon the scene of the single vehicle accident.  He saw that there was blood in the car but there was no person there and he secured the scene.  He took some photos and a short video with his digital camera.  Those were played in evidence and are consistent with the description given by the police officers of what they saw.  He said whilst they were there two Federal Police officers stopped and then they continued on and once he received information from them, they drove further down Mary Street to about 25 Mary Street where there were some uniformed police officers and he said Mr Scott activated his digital tape recorder and talked to Mr Huni.

He was present when the breath test was conducted with Mr Huni at Mary Street, where his reading was 0.196.  That blood alcohol concentration clearly meant that he was intoxicated although there will be evidence led which seems to suggest that Mr Huni was a regular drinker and, of course, I have heard the tape recordings.  He does not appear from his voice to be overwhelmingly intoxicated.  Mr Huni put to him various matters about fabrication of the photos, fabrication of the scene and other matters.  Mr Huni then asked for the uniformed police officers who had arrived on the scene to be called and Mr Robson, the prosecutor, called Adam Barber and Anthony Shaw at Mr Huni’s request.  Both are relatively young police officers.

Adam Barber is a constable.  He said that he received details that Mr Huni had been found and he was likely to be the person involved in the traffic accident on the corner of Mary and Felix Street.  He headed with Mr Shaw, as he says in his notebook, on Margaret Street, located the vehicle that matched the vehicle in the Valley and located Mr Huni sitting in the rear of what he referred to as the “Feds’ vehicle” and told him he was under arrest for hit and run.  He put in his notebook that the police van was outside 61 Margaret Street.  This was important because the reason why Mr Huni wanted Barber and Shaw called was because his thesis about the fabrication of the evidence was related to the fact that, at least in no small part, the young uniformed police officers had recorded the address as 61 Margaret Street rather than 61 Mary Street.

Without prompting, Constable Barber then said that unfortunately he had made a mistake.  He thought he was in Margaret Street on the night but he had realised that, in fact, it was Mary Street and that it was a mistake to have recorded the address as 61 Margaret Street rather than 61 Mary Street.  The evidence by Constable Shaw was to similar effect.  There seems to be absolutely no reason to disbelieve those police constables that they made a mistake when they referred to it as happening at Margaret Street.  The two streets are parallel in the Brisbane CBD.  It was in the early hours of the morning and I accept that they made a mistake in the address that they recorded in the police notebook and that it is not evidence that, as Mr Huni said, the accident scene, street signs, the damage to the motor vehicle, et cetera, were fabricated because he was in a dissociative state.

I do accept that he was intoxicated and that section 423 applies to this case.  He appeared to deny, in his submissions, being drunk but I shall discount that.  He did say that he was hallucinating and delusional.  He pointed to evidence of that as being in the first conversation he had with Mr Scott at the roadside where he said, when he was asked what happened, he said of his ex de facto, “And then she got upset and then bloody, you know, she was in the way and that was it.  I lost it.  Yeah, I lost it.”  In discussion with Mr Huni I pointed out that that was at least equally if not more consistent with his having lost his temper and committed the offences of which he is accused.  Unfortunately, at that time, Mr Huni did become angry and I was obliged to adjourn the court. 

 I do not agree with Mr Huni that it is clear that he was in a post-traumatic state of automatism and it certainly would not have been and was not the view taken by the police officers who attended at the scene. 

His allegation about his psychotic or dissociative state raises section 422 of the Police Powers and Responsibilities Act.  That section provides: 

“Questioning of persons with impaired capacity

(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 a person with impaired capacity. 

(2) A police officer must not question the person unless–

(a)before questioning starts, the police officer has, if practicable, allowed the person to speak to a support person in circumstances in which the conversation will not be overheard; and

(b)a support person is present while the person is being questioned.

(3) Also, the police must suspend questioning and comply with subsection (2) if, during questioning, it becomes apparent that the person being questioned is a person with impaired capacity.” 

The police officers did not suspect that Mr Huni was a person with impaired capacity.  In my view, there was no reason for them to so suspect and so section 422 has no operation.  However, that does not deal with the operation of section 423 because Mr Huni was apparently under the influence of liquor when he was questioned by police officer Mr Scott and that questioning was not delayed until the police officer was not reasonably satisfied that the influence of the liquor no longer affected his ability to understand his rights or to decide whether or not to answer questions.  Prima facie, that makes the questioning unlawful under the Police Powers and Responsibilities Act. 

However, there is another section which applies in these unusual circumstances and that is section 56 of the Police Powers and Responsibilities Act which provides that it is lawful for a police officer to make any reasonably necessary inquiry, investigation, inspection, examination or test to obtain information about a vehicle or other property involved in a relevant vehicle incident or to obtain information about the cause of a relevant vehicle incident and the circumstances in which it happened. 

It is also lawful for a police officer to make any reasonably necessary inquiry or investigation to obtain information about a person involved in a relevant vehicle incident.  A police officer may require a person to answer any question put to the person by the police officer or provide information relevant to the incident and the person who is required by a police officer to provide information relevant to the incident must not provide any information the person knows to be false.  A relevant vehicle incident is defined in schedule 6 of the Police Powers and Responsibilities Act to mean an incident involving a vehicle on a road in which death or injury was caused to a person or damage was caused to a vehicle or other property.

This was such an incident.  An injury had been caused to Mr Tetai.  Mr Huni was apparently injured and damage had been caused to a vehicle.  In those circumstances, the questioning limited to the matters set out in section 56 is lawful.  It is a nice question whether or not section 56 is subject to section 423 or 423 gives way to section 56. It would appear that the power given in section 56 must apply even if the person of whom questions are being asked is intoxicated as it is obvious that a person who is intoxicated may well have been involved in a relevant vehicle incident.  In fact intoxication might be thought to make it more likely.  In those circumstances, it is my view that questioning limited to the matters set out in section 56 would be lawful, notwithstanding the person being asked questions would be intoxicated.  However, whether or not it is lawful, I must consider whether or not it is fair to the defendant to allow these conversations to be admitted and I make this ruling whether or not the conversations were lawfully conducted.

In my view, the warnings were properly given, the conversations were recorded, the need to obtain information was urgent, the offence that occurred was serious, the conversations were brief and he was, as I have said, given all the appropriate warnings which he appeared to understand.  His answers are responsive and he does not appear so affected by alcohol that he is unable to give coherent, responsive, voluntary answers.  He was able to correct incorrect statements put to him by the police and, given all of those factors, in my view there is no unfairness to the defendant in admitting the conversations where his answers appear to be reliable. 

The only other question is a question of public policy and whether or not the conversation should be excluded on public policy grounds.  Not excluding these conversations should not be seen as a ruling that the police can or should ignore the very important protections for accused persons set out in the Police Powers and Responsibilities Act, in particular that set out in section 423, “Questioning of intoxicated persons”.  I do not have the view that the police officers wilfully ignored that section.  As I remarked during the evidence given by the police officers, they appeared to be being particularly careful when they were giving their evidence to be truthful and accurate.  Their behaviour on the evening was not oppressive and there does not appear to me to be any reason on public policy grounds to exclude the conversations.  Accordingly, my ruling is that the prosecution may lead evidence of each of those three conversations with the police.