R v Bell[2014] QSC 203

SUPREME COURT OF QUEENSLAND

1. McMeekin J: This is an application brought pursuant to s 590AA of the Criminal Code. Lucas Scot Bell is charged with the murder of Caine Hammond. He seeks rulings preventing the prosecution leading evidence of a conversation he had with a police officer Constable Joshua Wallace. The conversation was recorded. It was a “field conversation” held at the accused’s parent’s home between 1.45 am and 3.56 am on 28 April 2012.

2. The prosecution case is that Caine Hammond died at about 1 am on 28 April 2012 following a fight with the accused at that home, a fight in which the accused kneed the deceased in the head as he fell to the floor and then struck several powerful blows to the deceased’s head while the deceased was at least vulnerable and perhaps already unconscious and his head in contact with the concrete floor of the dwelling.

3. The impugned conversation includes statements by the accused indicating his animosity towards the deceased and statements indicative of the force that he used. Those statements are in some instances contradictory of the more exculpatory statements later made by him in a formal record of interview. The prosecution intention is to lead both statements in evidence.

4. The accused argues that the field conversation is inadmissible as it was not, at least in part, voluntary and even if technically admissible it should be excluded in the exercise of discretion. That discretion is enlivened, it is submitted, principally because the accused was affected by intoxicating liquor at the time and extremely emotional. There are several arguments but the essential matter urged is that there would be real concerns about the reliability of the admissions made.

5. No oral evidence was called on the hearing of the application.

The Field Interview

6. The police were called to the scene “in relation to a QAS assist job”, that is, not necessarily to investigate a crime let alone a homicide, but knowing that a person present was possibly unconscious following an assault. The officers were constables Burns and Wallace, Wallace being the junior of the two. The impugned conversation occurred principally between Wallace and the accused.

7. The tape recording was activated before the constables’ arrival at the scene and captures the interactions of the various persons present on their arrival and before the conversation with the constable commenced. It is evident that the accused is very emotional and apparently upset and angry at that stage. At the time of their arrival the deceased was lying on the kitchen floor unconscious but alive. Ambulance officers were in attendance.

8. One witness to the events was Lori Bell, the sister of the accused and the girlfriend of the deceased. Upon the arrival of the police she is recorded as saying: “I want him charged. I want him charged. … That’s my boyfriend. I want him charged.” The accused contends that is relevant in that the police plainly knew that at least the accused was a person of interest from the outset.

9. A short while later the accused is heard to say: “Too bad. Cunt wants to take a swing at me. [I put him on his arse. End of story.]^[1] Lock me up or I’m going to get a beer.”

10. Shortly after that and about six minutes into the recording the following exchanges occurred, the accused responding:

Constable Burns: “What I want you to do is sit down there and take it easy, all right? You give all your details to this officer here; or this officer here. All right? [Indistinct] make sure he’s all right. Don’t do anything fucking stupid. All right? All we want is your name and your details [indistinct] all right?

Constable Wallace: Stay nice and warm by the fire? ---- Yeah, I got that going just before [I come to the scene].^[2]

Wallace: What’s been going on man? Who are you anyway? Do you live here? --- This is my parent’s place.

Oh, okay what’s your name? ---- Lucas Bell.

Lucas Bell? --- Yep

Oh, you’ve got the name out – your name out the front, hey? What’s been going on, man? ---- He took [a swing].^[3]

Yeah. Who is he? The other guy? ---- He’s my sister’s boyfriend.

Sister’s boyfriend? ---- He can’t handle his piss and took a swing at me and I fucking levelled him.

Yep? ---- Hold the torch for you?

No. They teach us how to do that? So what was your name again, mate? Lucas, was it? ---- Yep. L-U-C-A-S.

11. The constable then takes relevant personal details and eventually asks, “Okay mate. What’s happened tonight?” to which the accused replies: “He can’t handle his piss. He took a swing at me and I fucking put him on his arse.” There then follows further questions in which the constable elicits more detail.

12. About 12 minutes after the recording commenced and so about six minutes into the conversation the following exchange occurred:

Wallace: Do you remember how many times you hit him?

Bell: Do I have to answer that?

Wallace: You don’t have to answer anything mate.

Bell: In that case I don’t remember how many times I hit him.

13. About 57 minutes into the recording the accused was cautioned as to his right to remain silent in accordance with the recommendation now to be found in the Police Powers and Responsibilities Regulations 2012 (Qld) – see s 26 of Schedule 9 and s 431 Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”).

14. Much of the field interview concerned matters entirely unrelated to the subject of the investigation. As a general observation it is evident that Constable Wallace was endeavouring to simply make conversation much of the time and particularly when third parties were present, as they often were. Further many of the responses by the accused were not in response to a direct question on the subject but were volunteered.

15. The accused told the police that he had consumed a quantity of alcohol – perhaps in the order of 12 stubbies of Jack Daniels’ pre mix and perhaps up to 16 stubbies. He said he commenced drinking after he arrived at the house at about 7 pm and stopped drinking at about 12.30 am. He said he drank a few stubbies quickly at the start and apparently reasonably steadily thereafter. For the purposes of the argument the prosecution, I assume, accept that the accused had consumed a reasonable quantity of alcohol over the time period nominated.

Voluntary

16. This complaint here relates to that part of the interview from its inception to the exchange mentioned above where Constable Wallace replies: “You don’t have to answer anything mate.”

17. It is submitted that Constable Burns’ opening remark requiring that the accused give his details constituted an impermissible inducement by a person in authority and that continued to have effect up and until Constable Wallace says that he does not have to answer anything. It is submitted that Wallace’s immediately questioning Bell about both his personal particulars and the events in question imposed a requirement to provide information, the limits of which were not explained.

18. Section 10 of the Criminal Law Amendment Act 1894 (Qld) is invoked.  It 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, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

19. It is noteworthy that the provision requires the confession actually to have been induced by the threat or promise made by a person in authority, not merely that inducements of that kind were made.

20. The issue is not however restricted to whether inducements were made.

21. The wider rule, often described as “basal involuntariness”, has been expressed variously but the statement of Latham CJ, McTiernan, Webb, Fullagar and Kitto J in R v Lee,^[4] adopting the words of Dixon J in McDermott v The King, is regularly cited:^[5]

“… unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure.”^[6]

22. The issue then is whether the prosecution^[7] can show on the balance of probabilities^[8] that the statements were made voluntarily,^[9] that is “made in the exercise of a free choice to speak or be silent”.^[10] If there is nothing to indicate that the confession was involuntary there is a presumption that it was made voluntarily.^[11]

23. The only possible indication that the statements were not voluntarily made is that they followed after Constable Burns’ statement “You give all your details to this officer here; or this officer here” and his immediate clarification: “All we want is your name and your details … all right?”

24. That statement to the accused is neither a threat nor a promise in the relevant sense. It was a command but a limited one - to provide details. It could not rationally be seen as in any way commanding the accused to speak about the events of the evening, nor inducing him to do so.

25. Nor can I see that Constable Burns’ command constituted duress or intimidation in the sense propounded in R v Lee.

26. It is true that a little later in the interview Constable Wallace twice asked the accused questions designed to find out what had happened in the course of the evening (“What’s been going on man?”; “What’s happened tonight?”) and followed those general enquiries up with more detailed questions. But the very fact that the accused queried whether he had to answer the question about how many times he had struck Hammond demonstrates that he was not operating under some misapprehension that he was required to answer the officer’s questions. Effectively he challenged the officer’s right to ask and apparently asserted his right to say nothing that might assist the investigation. Plainly his will was not overborne.

27. There are other indications that suggest that the accused was a willing participant in the conversation. He offers to hold the policeman’s torch at one point, points out to him that he had best be carful of the nearness of the fire, and often volunteers information not specifically requested at all (for example see p 11 of the transcript).

28. It is submitted, accurately enough, that through the relevant time no warning was administered to the accused that he had the right to remain silent. Of course, the failure to administer any warning does not mean that the conversation was not voluntary. As Gleeson CJ observed of the argument put in Tofilau v The Queen concerning telephone intercepts: “The argument seems to equate the right to silence with a right to privacy and to treat as involuntary any statement made without a fully informed appreciation of the possible consequence. Neither step is consistent with legal principle”.^[12]

29. I observe that after being formally warned the accused was responsive, and with considerable detail, to questions relating to the incident. It is not irrelevant that before Constable Burns directed him to provide his details the accused had announced, apparently with full knowledge that the police were present, that the deceased had wanted to take a swing at him and he “put him on his arse.”

30. It does not seem to me that the direction of Constable Burns, which went to a different and defined purpose, in any way operated on the accused’s mind to lead him to think he was under some obligation to speak.

31. In my view the conversation was a voluntary one in the relevant sense. The prosecution has discharged the onus.

The Unfairness Ground

32. Mr McInnes, who appeared for the accused, submitted that I should exclude the entire field interview on the ground that it operated unfairly to the accused to admit it.

33. At common law there exists a general discretion in a trial judge to exclude admissible evidence. This discretion has been preserved by s 130 of the Evidence Act 1977 (Qld). The onus is on the applicant to demonstrate that the discretion should be exercised so that the evidence ought to be excluded.

34. There are three bases for the exercise of that discretion. They can overlap. The first concerns the discretion to exclude confessional statements obtained because of some impropriety by the authorities. Mr McInnes expressly disclaimed any reliance on that ground, despite the arguable failure of the police to comply with the PPRA and the Responsibilities Code. 

35. The second derives in part from the statement by Latham CJ in McDermott v The King^[13] that the voluntary confessional statement made by an accused may be excluded if, “… in all the circumstances it would be unfair to use it in evidence against him.”

36. The third “discretionary” head is the application to confessional statements of the discretion to exclude evidence, the prejudicial effect of which is greater than its probative value.^[14] 

37. In R v Swaffield^[15] Toohey, Gaudron and Gummow JJ said this of the unfairness ground:

[53] The term "unfairness" necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear:

"[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."^[16]

[54] Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted.^[17] And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.”

38. The principal focus of the argument here was that there were several circumstances which tended against the account contained in the field interview being a reliable one. Those factors were submitted to be:

1. Bell was intoxicated;

2. Bell was emotional;

3. Bell was not attempting to be clear or precise, using expressions such as “have a chomp” and “put him on his arse” repeatedly;

4. Some of what was said appears to have been argumentative responses to things said by others, not all of which are intelligible;

5. Bell was young and not greatly experienced – he was 23 years of age; he had completed year 11 at Rosedale High School; he was employed in construction;

6. Bell had not had any significant previous dealings with police that might equip him with any advantage in these sorts of circumstances;

7. The lack of any warning and the inability, practically, to put in place any measure to protect Bell as provided for in the PPRA and the Responsibilities Code (such as have a member of his family present (as they were all witnesses), or have a lawyer present (it was in the early hours of the morning)) “did nothing to cure, and much to exacerbate, the factors which made the recording unreliable”;

8. One would expect fatigue to be relevant given the time of the morning (the interview finished at about 4 am);

1. The administering of the warning 51 minutes into the interview did not remove these concerns in that:

1. The passage of less than an hour was unlikely to have reduced significantly his level of intoxication or his fatigue;

2. This part of the conversation followed on from questioning which should not have been conducted in the form it was.

39. As the quotation from Swaffield above makes plain the reliability of the statements made against interest is of considerable significance when judging their admissibility. In R v Williamson [2010] QCA 277, Chesterman JA said:

“In cases concerning confessions or admissions, the chief focus is on the fairness of using the admissions against their maker.  See Tofilau v The Queen (2007) 231 CLR 396 at 432 per Gummow and Hayne JJ.  In R v Swaffield (1998) 192 CLR 159, Toohey, Gaudron and Gummow JJ observed that unreliability was a ‘touchstone’ of unfairness.  Where voluntariness is not in issue, the admissibility of confessional evidence is to be decided by reference to the reliability of the evidence and the rights of the accused.  Their Honours noted (197):

‘Unreliability is an important aspect of the unfairness discretion but it is not exclusive.  As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused.  Those rights include procedural rights.  There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.’”

Discussion

40. If I was satisfied that at the time of the field interview Bell was significantly affected by alcohol or seriously fatigued or operating in a highly emotional state I would have real reservations about the reliability of his statements. However I have come to the view that none of these apply. Several things have persuaded me.

41. The first is the manner in which Bell speaks during the conversation. The early emotion displayed when the police arrived completely disappears. He is calm. There is no slurring of speech or any apparent misunderstanding of the words spoken to him. There is an absence of pauses and no suggestion of a need to gather thoughts in order to make a response. He appears alert. He knows where a full packet of Winfield cigarettes can be found (p17 of the transcript); he completes the formal warning when it is eventually administered (see p 49 of the transcript); he discusses the effect on him, and his work, if he is charged. There are many examples.

42. The second factor is the content of the conversation. The accused covers a wide number of subjects. He does so with apparent full comprehension. He speaks of his work, his supervisor, his schooling, house values where he lives, places to socialise in Rockhampton, how well these establishments are doing, their owners, how his parent’s house was constructed with some considerable detail, the septic and water arrangements at this parent’s home, the wisdom of police officers’ drinking when on duty, the Prime Minister’s salary and pension rights for a Minister of the Crown. I have not exhausted the list of subjects covered. The conversation lasted two hours and ten minutes more or less. By far the bulk of that time was spent talking intelligently enough about matters unrelated to the events of the evening.

43. When one turns to his description of the relevant events it is noteworthy that when Bell deals with the incident he provides detail that suggests good recall – for example see the descriptions at p11 and p 61 of the transcript. Some of what the accused says is exculpatory. For example he asserts that it was the deceased who first attacked him and that he defended himself. The lack of any apparent confusion on the part of the accused speaks in favour of the admission.

44. All this bespeaks reliability.

45. Mr Cummings pointed out that other matters also supported the impression that the accused was not significantly affected by alcohol at the time. No witness suggests that he was. The two ambulance officers present do not. The witnesses Greg Bell (the accused’s father) and Clarke record that the accused had consumed alcohol but that his level of intoxication was not great (“not that bad”, “didn’t seem that drunk”).

46. I observe that the quantity of alcohol consumed over the period of its consumption does not inevitably lead to the conclusion that the accused’s capacity must have been significantly impaired. I have no evidence of the alcoholic content of the stubbies. But the consumption of 12 to 16 stubbies over five and a half hours with then over an hours delay before the conversation commenced suggests that there was significant time for excretion of the alcohol from the accused’s system to have occurred.

47. It is relevant to note the principles that apply where there is concern about a confession because of the effect of the consumption of alcohol. They were considered by the Court of Appeal in R v LR^[18]. While Keane JA, as his Honour then was, gave the principal judgment the observations of McPherson JA are pertinent here. McPherson JA said:

“In speaking of the common law rule in Sinclair v The King (1946) 73 CLR 316, Dixon J said that a confession made by a defendant “more or less” under the influence of intoxicating liquor “is not inadmissible as evidence unless the degree of intoxication is so great as to deprive him of understanding what he was confessing”.^[19]

And

“But, as Keane JA has pointed out, s 254 of the Police Powers and Responsibilities Act 2000^[20] has altered the law in this respect. The criterion applied is different from the common law test adopted by Dixon J in Sinclair v The King, under which the intoxication must be such as to destroy the capacity to know ‘what he was confessing’…Under s 254(2) the focus is the person’s ability to understand his rights and to decide whether or not to answer the questions being or about to be put to him. It is enough for this purpose if his ability to do either of those things is ‘affected’ by the influence of alcohol.”^[21]

And

“It may be added that s 254 is directed specifically to a case where a police officer “wants to question or to continue to question a relevant person”. On the face of it, the section would therefore appear to have no application where the confession was made spontaneously to a police officer who had, when it was made, no wish to question or intention of questioning the person making the confession or admission. … In such a case, the common law rule as stated by Dixon J in Sinclair v The King presumably continues to apply.”^[22]

48. Mr McInnes expressly disclaimed any reliance on the public policy ground, albeit arguing that the lack of compliance with the PPRA and the Regulations made there under (whether there be a breach or not) remained relevant under the unfairness ground. Hence I do not need to resolve the question whether there was non compliance with the Act and the Code. But it is relevant to note that there is no allegation of any deliberate impropriety by the police officers. And while there may be an argument that the Act was not complied with, and Mr Cummings did dispute that, the point here in issue is whether any failure has led to sufficient disquiet to exclude otherwise admissible evidence.

49. I interpose that even if I had been persuaded that the accused was a “relevant person” for the purposes of the PPRA and that the police therefore came under a duty to comply with the PPRA and Code then any breach was not egregious. The only ways of determining whether the accused was relevantly affected were to talk to other witnesses about his condition and talk to him to assess it. As already discussed both enquiries would have suggested that he was not affected.

50. If the common law rule applies then it is patently clear that the degree of intoxication was not “so great as to deprive [Bell] of understanding what he was confessing.” If s 423 of the PPRA was engaged then the passages in the conversation already adverted to make clear that the accused seems to have been cognisant of his rights and more than willing to speak. There is no evidence that his ability to understand his rights and to decide whether or not to answer the questions being put to him was ‘affected’ by the influence of alcohol.

51. As to the other matters specifically argued by the applicant:

(a)The expressions used by the accused and mentioned in the submissions, while obviously imprecise, do not suggest any cause for concern. They reflect his manner of speech. They are perfectly explicable in context and any imprecision will not, in my judgment, operate unfairly to the accused. The expressions mentioned generally appear in that part of the conversation where he is not attempting to provide the detail – eg “He took a swing at me and I fucking levelled him” (p7); “he can’t handle his piss, he took a swing at me and I fucking put him on his arse” (p8); and “he came back for a second chomp and I put him on his arse” (p9);

(b)While there are passages where his statements do not seem to follow the question it is, as the submission suggests, apparently due to things being said by third parties. It seems to me that these passages are not common, are not particularly incriminatory and that it is reasonably clear, and will be to the jury, that other things are going on around the conversation between the officer and the accused.  They do not suggest to my mind any reason for concern that the incriminatory parts of the conversation are unreliable;

(c)Bell’s background may not have prepared him for dealing with the police but he handled himself with apparent confidence through the conversation. There is no suggestion that he was overborne by the situation;

(d)The absence of any of the protections provided for in the PPRA and the Responsibilities Code could in some circumstances be a compelling concern, but not, in my judgment, here. The purpose of these protections is to ensure that an accused knows that he (or she) faces or potentially faces a charge, that he (or she) has a right to remain silent, and to provide him (or her) with independent advice and support. The accused plainly knew of his right to remain silent for the vast bulk of the conversation, if not for all of it, and indeed effectively exercised that right when he was concerned about the questioning. He knew that the consequences could be serious and that he might be charged, as he discussed that with Constable Wallace.  His girlfriend was often present during the conversation and so some support – and she seems to have been, and continues to be, his principal support - was available. And as observed above there is no suggestion that he was overborne by the situation.

(e)While in one sense it can never be known how the accused might have responded to the formal warning had the earlier conversation not taken place all the indications here are that he was perfectly willing to speak and answer questions, warned or not. Much of the detail before the warning was volunteered without any specific enquiry. Detail was offered after the warning. He agreed to speak with the officers many hours later in a formal record of interview.

52. Mr McInnes argued that “the unfairness which would be occasioned by the admission of the field recording in this case arises from the risk of a miscarriage of justice. That is to say, if the eyewitness accounts and formal interview are insufficient it would be unfair for a flawed piece of evidence to tip the scales.”

53. I cannot see that the field interview is a “flawed piece of evidence”. Many of the criticisms that Mr McInnes makes are properly matters for the jury to weigh up – the extent, for example, to which the statements were mere bravado, or were more emotive than informative. He can of course argue that alcohol and fatigue may have impacted on the choice of words used. But in my judgment these factors do not render the evidence unfair to use against the accused.

54. Mr Cummings has drawn my attention to the remarks of Brennan J in Collins v R:

“The factors relevant to guide the exercise of the discretion cannot be exhaustively stated but two factors which always weigh in favour of admission …first, that it is generally desirable that probative and admissible evidence in proof of crime be admitted for consideration of the tribunal of fact; and second … that any failure to accord fair treatment to the confessionals has not overborne his will.  The weight of these factors will vary and other factors will appear in the circumstances of each case.”^[23]

55. There is no suggestion of the accused’s will being overborne.

56. Here the general desirability of admitting the evidence is of some weight. While not the only evidence that the prosecution has, the field interview is plainly significant. There is a deal of force in the prosecution submission that the jury will obtain a somewhat skewed view of the accused’s own recollection of events and perhaps his credibility if they are not given the field interview and have only the formal interview.

57. As I have mentioned there was no oral evidence led. The accused therefore has not asserted that he was relevantly affected. The accused did not ask that the police officers be called for cross examination – presumably it is accepted that no useful admissions could be obtained. While there are tactical reasons not to call an accused on a voir dire, and it would not be appropriate to draw any Jones v Dunkel^[24] inference, the fact is that there is an absence of any direct evidence on the point and the accused bears the onus. The argument therefore depends on inferences to be drawn from the known facts.

Conclusion

58. In my view there are cogent arguments why the evidence should be admitted and no strong argument that it should not.

59. The field interview is admissible.