R v Appleton[2016] QSC 250

SUPREME COURT OF QUEENSLAND

Introduction

1. The Crown alleges that on or about 16 June 2014 the defendant and her partner John Edward Harris tortured and murdered Ms Tia Landers at their residence in Brighton.
2. The defendant now applies^[1] pursuant to s 590AA of the Criminal Code (Qld) for an order that:
   1. the recording of admissions made to a covert police officer by the defendant during the detention of the applicant at the Redcliffe Police Station on 3 July 2014 be ruled inadmissible at trial; and
   2. the recording of admissions made by the defendant to Gina Biancofiore and Rita Cacambow at the Brisbane Women’s Correctional Centre on 7 July 2014 be ruled inadmissible at trial.
3. Both conversations are alleged by the Crown to contain admissions inculpating the defendant in the alleged offences against Ms Landers. 
4. I turn first to record the Crown case, apart from the impugned evidence.  Obviously, that case is presently untested.

The Crown case apart from the impugned evidence

5. The defendant and Mr Harris were in a romantic relationship.  They were drug dealers.  They knew Ms Landers through the use of drugs and through associates. 
6. The defendant had been in prison from 17 or 18 May 2014 until 10 June 2014.   On about 13 June 2014, a witness saw a scuffle or argument between Mr Harris and Ms Landers at the Brighton home of the defendant and Mr Harris.
7. On 16 June 2014 the defendant and Mr Harris were at their home.  Ms Landers drove there in her Commodore station wagon, together with Jake McKenzie and Ryan Morgan.  A witness saw Ms Landers leave home in the station wagon with them that morning.  She and Mr McKenzie got out of the wagon and went to the house.  Ms Landers asked Mr McKenzie to leave and get something from the car. 
8. After the front door closed behind him, both Mr McKenzie and Mr Morgan heard screaming and banging from inside the house.  Mr McKenzie banged on the door and the defendant opened the door armed with a machete.  She held the machete to his face.  He was dragged inside and the defendant bound his hands, feet and mouth with tape and forced him to sit on the couch. 
9. Whilst this was occurring Mr Harris was standing over Ms Landers.  He had hold of her throat with one hand and was brandishing a machete in the other hand.  She was on her back kicking and attempting to get him off her.  As she was struggling, the defendant struck her right upper thigh with the machete, causing a major cut that bled profusely.  Both the defendant and Mr Harris struck Ms Landers in the head several times.
10. The defendant then went outside to the car, where Mr Morgan was seated.  She threatened him with a knife, told him to come in the house, but also assured him that he would not be harmed.  She forced him into the house and tried to bind him with tape.  He pleaded with her not to do so because he said he got claustrophobic.  The defendant and Mr Harris agreed to remove the tape from both witnesses on the proviso that they did not move. 
11. The defendant and Mr Harris continued to attack Ms Landers with a machete, cutting her legs and ankles.  By this time, she had lost a significant amount of blood and her movements had slowed down and she was incapable of fighting back.  The defendant and Mr Harris forced Ms Landers to hand over gold necklaces, chains and gold rings which she was wearing.  They cut her hair from her head and continued to hit her with fists, knives and machetes.  They then took her to the shower and put her under running water. 
12. Whilst Ms Landers was in the shower, Mr Harris prepared drugs to inject while the defendant kept an eye on the two witnesses who were still in the living room.  Mr Harris injected drugs into the defendant and himself. 
13. Ms Landers came out of the shower and tried to walk into the living room.  Mr Harris took a large sword and again attacked Ms Landers, who fell to the floor.  The defendant stomped on her and then dragged her to the kitchen.
14. Mr Harris obtained a handgun and the defendant obtained a drop sheet.  Ms Landers begged them to spare her life, but Mr Harris fired the handgun twice.  Ms Landers was then groaning but not talking.  The defendant tightened a plastic bag over the deceased’s head to silence her.  She and Mr Harris used plastic bags and blankets to wrap Ms Landers’ body.  They forced the two witnesses to load the body into the rear of the Commodore station wagon and to help them clean the house by wiping and mopping up blood.
15. They then drove the body to a location off the Bruce Highway south of Beerwah, dropping the two witnesses at their respective homes on the way.  CCTV footage shows the Commodore station wagon on the Bruce Highway and near Glasshouse Mountains between 2100 and 2300. They drove along a forestry road and removed the body and placed it in a ditch covered in a blanket and then covered it with leaves and other shrub material.  They then drove home.
16. Over the following days the defendants purchased bleach, chlorine and other cleaning products, which they used in conjunction with a water blaster to clean the inside of their home and Ms Landers’ station wagon.  CCTV footage subsequently revealed the purchase of kerosene on 16 June 2014 and chlorine on 19 June 2014.  They removed property from the station wagon and burnt it in the back yard along with rugs and furniture that was covered in Ms Landers’ blood.
17. On 19 June 2014, Ms Landers’ mother reported her daughter missing to police. Records show that Ms Landers had not accessed her bank account or used her mobile phone since 16 June 2014.
18. On 24 June 2014 police commenced investigations.  On that day:
    1. Ms Landers’ Commodore station wagon was found at the defendants’ Brighton home and examined by police experts.  Four areas in the car tested positive to presumptive tests for blood.  Luminol test results for the boot area were strong.  Chewing gum wrappers amongst other property was found inside car. 
    2. Police took statements from the defendant and Mr Harris.  Both denied knowledge of Ms Landers’ disappearance.
    3. A consensual search of the Brighton home found items of clothing soaking in a bucket.  The defendant told police it was her, or her daughter’s, clothes and she was in the process of washing them.
19. Later in the evening on 24 June 2014, a witness was in a neighboring yard and saw a person pulling things out of a car and putting them onto the fire.  Firefighters attended at about 2045.  Police were still in the area and saw the smoke so went back to the house. They saw Mr Harris and another man standing in backyard in front of a fire on the BBQ.
20. On 27 June 2014 police declared the defendant’s Brighton home a crime scene.   Searches and scientific examinations revealed:
    1. a number of buckets on the kitchen floor containing items soaking in water and chlorine or bleach;
    2. industrial gloves and a number of tools, knives, daggers and swords around the living room;
    3. various visible bloodstains on numerous parts of the living/room areas, kitchen, hallway, bedrooms;
    4. a meat hook on the table tested positive to presumptive blood stains but no visible stains were present;
    5. evidence of blood having been cleaned up in areas of the living/dining room and hallway;
    6. the deceased’s DNA on duct tape and some pieces of furniture;
    7. a fingerprint of Mr Harris was also located on duct tape; 
    8. a silver handgun/pistol, ammunition and a silencer in a gun safe under the dining room table;
    9. the muzzle of the pistol and internal surface of the silencer tested positive to presumptive test for blood, however no DNA was detected from the sample of the pistol bore;  and
    10. a quantity of chlorine and a bottle of kerosene.
21. On 1 and 2 July 2014, police obtained statements from Mr Morgan and Mr McKenzie and on 3 July 2014 police located Ms Landers’ body wrapped in a blue carpet or blanket about 300 metres off the sealed Roy’s Road, Beerwah, off a dirt track under a tree.  A piece of used chewing gum found on a track near the body contained DNA that was matched to Mr Harris.
22. An examination of the body revealed:
    1. cause of death was gunshots to the head, but asphyxia and hypovolaemia could be considered as other significant perimortem mechanisms of death;
    2. several incised wounds were found over various parts of the deceased’s body;
    3. physical trauma that had fractured the jaw and dislodged 13 teeth; and
    4. the remains of two projectiles, one of which had damage consistent with having been fired from the silencer found with the pistol in the defendant’s home.
23. On 3 July 2014, the defendant and Mr Harris were arrested.   Police also conducted a search of a white Hyundai car, the keys to which were located in Mr Harris’ pockets.  Clothing and gloves found in the car had blood stains.  DNA on clothing matched items from both the defendant and Mr Harris. Police surveillance officers had seen both of them using this car.

The application concerning the conversation on 3 July 2014.

24. The defendant contends the evidence should be excluded in the exercise of my discretion on the basis of unfairness and on public policy grounds.

The facts

25. It is the course of events on the day of the arrest which provides the basis for the first exclusion application. 
26. I find the following events occurred on 3 July 2014 at about the times identified:

27. There was a conflict of evidence on whether any communication to similar effect as that which occurred at about 2228 had been made by the defendant or on her behalf on at any time before 2228.  In this regard:
    1. Her solicitor deposed that after his interview with the defendant, he told two police officers words to the effect “that his instructions were that she was not to be the subject of an interview that evening”.  He said his interview took about 20 minutes.  That would place his conversation with police at about 1725.  In oral evidence it emerged that he thought the two police officers concerned were DSC Thompson and DS Hogan.
    2. DSC Thompson did not share that recollection.  He said he was not aware that the defendant had exercised her right to silence until after he had spoken to DSC Wright at about 2230 that night.  He did not believe that the defendant’s solicitor came and told him that she did not want to be interviewed.  He said that there was quite a large number of police officers present at the police station who were involved in the investigation.
    3. DS Hogan recalled taking the solicitor up to see the defendant.  However he did not recall speaking to him again that night.  He was definite that he was not told by the defendant’s solicitor that she did not want to participate in an interview with police.  He acknowledged, however, that there were officers coming and going at the ICC, the purpose of which was to keep the command centre up to date with information.
    4. DS O'Connell gave evidence that he completed the documentation to which I have referred at [26].  His evidence was that he did so on the day of the arrest and after the defendant had seen a solicitor.  He then sent the document to DS Hutchings of the Covert Operations Unit because the information contained in it would affect the way in which the LEP conducted themselves.  He said he would have got the information from another officer.  That, together with the internal timing references in the document, is why I have inferred it must have been completed after about 1725 and before 1856.
    5. DSS Fadian was the officer in overall charge of the investigation.  He too acknowledged there were a number of officers in the ICC on the day of the arrest.  He recalled exchanging pleasantries with the defendant’s solicitor at the Redcliffe Police Station before the solicitor spoke to the defendant, but did not recall anything of substance being discussed.  He had a brief discussion with the solicitor as the solicitor left, but his recollection was that the solicitor told him that he had given Ms Appleton some advice about an interview, and that the solicitor asked and was told when the court appearance would occur.  DSS Fadian said that the solicitor did not tell him whether or not the defendant would participate in the interview.
28. I have accepted DS O'Connell’s evidence that he completed the document at some time after the defendant’s solicitor left and before the LEP was put in place.  The terms of the document are also consistent with the version of events of the defendant's solicitor, although they shed no light on the identity of the police officer or officers to whom he spoke.  It seems to me that DS O'Connell’s memory about the document combined with the contents of the document are more reliable indicators of what happened than are the memories of the relevant actors.
29. I note that DS O'Connell also gave evidence that the fact that the defendant had refused to be interviewed or spoken to by police and had exercised her right to silence had been discussed with police at the ICC including DSS Fadian before he sent the document to DS Hutchings.  I got the impression that that passage of his evidence was a reconstruction rather than a distinct memory. 
30. It follows that I am unable to make a finding as to the identity of the police officer or officers to whom the defendant’s solicitor conveyed his instructions.  There were a number of officers in and around the Redcliffe Police Station and the ICC at the time.  The solicitor may be mistaken that it was DSC Thompson and DS Hogan.  On the other hand the specific recollections of DSC Thompson, DS Hogan and DSS Fadian may also be faulty and it may have been DSC Thompson and/or DS Hogan.  I do not think it matters because I am satisfied that a disclosure was made to a responsible police officer or officers and that it was then passed on.
31. I find:
    1. The defendant’s solicitor conveyed to a police officer or officers at the Redcliffe Police Station after his interview with the defendant that his instructions were that the defendant was not to be the subject of an interview that evening.
    2. The police officer or officers concluded from that conversation that the defendant had refused to be interviewed or spoken to by police and had exercised her right to silence.
    3. The police officer or officers conveyed that information back to the ICC and it thereby came to DS O'Connell’s attention.  DS O'Connell then recorded it in the document which he sent to DS Hutchings of the Covert Operations Unit.
    4. All this had occurred prior to the time the LEP had the conversations with the defendant, the recording of which the defendant now seeks to exclude.
32. As to the physical appearance of the defendant:
    1. During his interview with her at the Redcliffe Police Station, the defendant’s solicitor observed her to be slumped over with her hands in front of her and her stomach hanging out of her pants. I accept his evidence.
    2. DSC Thompson did not recall her looking disheveled.  Nor did DS Hogan or DSS Fadian.  I accept their evidence. 
    3. DS O'Connell agreed that she looked disheveled when he observed her in the back of the car on the way back to the police station.  He attributed it to the fact that the arrest had had to get a little physical.  I accept his evidence.
    4. DSC Wright noted that when she first saw the defendant at the time of her arrest she was a little disheveled, because she was on the floor at the time (having been transitioned to the floor during the arrest).  I accept her evidence.
    5. I do not see any particular conflict between any of this evidence.  Each of the witnesses was addressing the appearance of the defendant at different times.  Shirts can become tucked and untucked without much difficulty.
    6. The significance of this evidence is whether it should influence a finding on the issue to which I will next turn, namely whether the defendant was under the influence of an intoxicating substance.  I am not prepared to find that the evidence addressing the state of the defendant’s dishevelment has any particular impact on the conclusion which I should reach on that question.  The evidence to which I refer in the next paragraph is, to my mind, of greater significance.
33. As to whether, at the time of her conversations with the covert LEP at the watchhouse, she was under the influence of an intoxicating substance:
    1. The high point of the defendant’s evidence was that given by her solicitor.  He made the observations as to her physical appearance already recorded.  He observed she was “reasonably unresponsive although obviously conscious and when she answered me she provided generally one word responses”.  He stated that he “was concerned at the time that she may have been under the influence of some kind of intoxicating substance.”  In cross-examination he acknowledged that she understood who he was and what he was saying and that her instructions to him made sense.  He also acknowledged that unresponsive conduct by a defendant charged with a serious criminal offence was not unusual.
    2. DSC Thompson had observed her in the street prior to her arrest.  He had experience with observing drug-affected people.  He did not think she was exhibiting any signs of drug use or being affected by drugs. 
    3. DS O'Connell had observed that the defendant had slept in the car during the journey from her arrest at her home to the Redcliffe Police Station.
    4. DSC Wright was the defendant’s arresting officer.  At the time of the arrest, she observed that the defendant was listening to what was said to her, that she appeared to understand and that she responded appropriately to questions.  DSC Wright authenticated transcripts of her interactions with the defendant.  When asked whether she observed anything about the defendant’s state of intoxication and sobriety, DSC Wright thought that the defendant seemed fine.  DSC Wright’s judgment was that although the defendant was tired and cold, she was not displaying indicia consistent with her being intoxicated.
    5. Dr Marendy saw the defendant when she was removed from her watchhouse cell for the conduct of a forensic procedure.  He was a very experienced medical practitioner.   He had a lot of experience dealing with prisoners in different stages of drug withdrawal. His notes recorded that the defendant was having withdrawals from heroin and ice.  His evidence was that he did not think that the withdrawals were very severe because had he formed that view he would have ordered toxicology studies in respect of the defendant and did not.  His evidence was that she was lucid and able to answer questions coherently.  Indeed, the transcript reveals that the defendant told Dr Marendy that she was cranky, tired and cold.
    6. I accept the truth of all of these witnesses’ observations, from their own perspectives.  However, on the question of whether the defendant was under the influence of an intoxicating substance at the time of the conversations with the LEP, I think that the evidence of the experienced medical practitioner is the most persuasive.  It is supported by the evidence of police and not contradicted by the suspicions of the solicitor.  Although the Doctor saw the defendant a little time after the defendant had spoken to the LEP, there was no evidence to suggest (and it was not put to the Doctor) that she might have been actually or apparently under the influence of an intoxicating substance when she spoke to the LEP, but that she might have at least apparently sobered up by the time she saw the Doctor.
    7. The result is that based on the evidence of those witnesses, I would conclude that at the time of her conversations with the covert LEP at the watchhouse, the defendant was not displaying indicia of being intoxicated.  She was tired and cold.  She was exhibiting symptoms of drug withdrawal, but the symptoms were not severe.  Her symptoms did not interfere with the state of her lucidity.  In particular, they did not interfere with her ability to understand and to respond appropriately to questions.
    8. I was invited by counsel to review the audio and visual recordings made on the occasion of the conversations between the defendant and the LEP.  Each counsel identified particular parts of the recordings to which I should review and I reviewed the parts they identified.  I make the following observations:
       1. I was not able to form a view myself whether the recordings revealed the defendant displaying symptoms of drug withdrawal.   She told the LEP that she had had a drug referred to as “subbie” the previous day and that she and Mr Harris had injected heroin the previous night.  Mr Harris had almost died by overdose, but the defendant had not been as affected because the “subbie” had interfered with the impact of the heroin.
       2. Understandably, the defendant appeared to be upset.  She had been crying and continued to cry, on and off.  She appeared to have the nasal issues which one might associate with that occurring.
       3. She did appear tired.  For most of the conversation she was lying down and for some of it she had a blanket up around her face and mouth.
       4. Some passages of the recording are mumbled and unintelligible, however my impression was that was a combination of the quality of the recording, the defendant’s nasal issues, her tiredness and the fact that she was lying down, rather than her being intoxicated.
       5. At one stage the LEP remarked that the defendant was going “to pass out on her”, but I did not take that literally or as an indicator of the defendant’s intoxication.  I took that remark as an indicator that it was obvious that the defendant was falling asleep. 
       6. The defendant seemed lucid and able to understand and to respond appropriately to the conversations she had with the LEP. 
    9. My review of the recordings and the associated transcript did not give me a reason to depart from the conclusion I have expressed based on the evidence of the witnesses who gave evidence before me.
34. The Crown contended that it was relevant to have regard to the antecedents of the defendant when exercising my discretion.  It is appropriate therefore to record what the evidence revealed.  The defendant was, unfortunately, an experienced offender. 
    1. She was born at Brisbane on 17 September 1973. She would have been 40 years of age at the time of the recorded conversations.
    2. She had been sentenced by the courts on 31 prior occasions from 12 December 1990 (when she was 17 years of age) through to 18 September 2013 (the day after she turned 40 years of age).
    3. Her first court appearance was in the Magistrates Court for dishonesty followed by a further 26 appearances in the Magistrates Court. She has been sentenced by the District Court on three occasions, with one of those a breach of an earlier community based order, and once by the Supreme Court for two counts of supplying dangerous drugs with a circumstance of aggravation.
    4. In summary, at the time of the recorded conversations the defendant had been convicted of:
       1. 29 offences relating to dishonesty;
       2. 5 offences relating to assaults;
       3. 19 drug offences;
       4. 3 willful damage;
       5. 1 dangerous operation of a vehicle whilst adversely affected;
       6. 7 breaches of bail;
       7. 1 breach of a community based order;
       8. 1 breach of a suspended sentence; and
       9. 9 summary sheet offences.
    5. At the time of the recorded conversations, the defendant had been sentenced to a term of actual imprisonment to be served on two prior occasions:
       1. by the District Court on 27 August 2004 (where she was imprisoned for 18 months, suspended for 2 years after serving 209 days, with a declaration that 209 days already spent in pre-sentence custody be deemed as time already served under the sentence); and
       2. by the Magistrates Court on 9 August 2013 (where she was imprisoned on a number of offences for 2 years to be served concurrently, with a parole release date on 18 October 2013).

Analysis

35. The defendant bore the burden of proving facts that would justify an exercise of discretion in her favour: MacPherson v The Queen (1981) 147 CLR 512 at 519 to 520.
36. The first point to be addressed is whether there was a breach of s 423 of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”), which provides:

423  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.

37. In R v Nash [2014] QSC 139, Ann Lyons J said (footnotes omitted):

[31] In R v LR McPherson JA indicated that the provisions of the PPRA are such that the common law rule that a confession was only inadmissible if the degree of intoxication was “so great as to deprive him of understanding what he was confessing” have been altered by the passing of the Act. His Honour stated that “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’...”.

38. For the reasons I have set out at [33] and [34] above, I am not persuaded that the defendant was apparently under the influence of liquor or a drug at the time of her conversations with the LEP.  I am satisfied that at the time of those conversations it would reasonably have appeared that the defendant was able to understand her rights and to decide whether or not she would answer any questions put to her.  Accordingly, I find there was no breach of s 423 of the PPRA.
39. The next point is what flows from my finding that, although the police had formulated the plan to deploy the LEP before the defendant had communicated her decision to exercise her right to silence, the defendant had in fact communicated that decision prior to the time the LEP had the conversations with her.  As I have already said, the application to exclude is founded on the exercise of the fairness discretion and the discretion to exclude evidence on public policy grounds. No challenge was taken on the grounds that the alleged confessional statements were made involuntarily, or that they were obtained in circumstances which throw doubt on their reliability.
40. Before considering this argument it is appropriate to set out in more detail the relevant parts of the transcript^[3] which justified my finding set out at [26] above in relation to what the defendant said to the LEP between about 1930 to about 2047 on 3 July 2014. 

41. The law concerning the exercise of the fairness discretion is outlined in R v Swaffield (1998) 192 CLR 159 and discussed further in R v Belford and Bound [2011] QCA 43 and also in Tofilau v The Queen (2007) 231 CLR 396.  Relevantly, the following propositions may be advanced:
    1. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded^[7].
    2. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case^[8].
    3. The focus of the enquiry should be on the unfairness which the impropriety causes to the particular defendant.  The purpose of the discretion is to protect the rights and privileges of the accused person.  Unfairness in this sense is concerned with the defendant’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect its reliability^[9].
    4. Unreliability may be regarded as a touchstone of unfairness, but it is not the sole touchstone.  One aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained^[10].
42. On the exercise of the public policy discretion, the law is also discussed in Swaffield, Belford and Bound and Tofilau.  Relevantly, the following propositions may be advanced:
    1. The law recognizes the existence of a distinct discretion to exclude confessional evidence on public policy grounds, even where no unfairness to the defendant has been demonstrated and even where the evidence is reliable.  The fairness and public policy discretions overlap^[11].
    2. The public policy discretion focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion is the protection of the public interest^[12].
    3. When exercising the public policy discretion, the competing public interest requirements must be considered and weighed against each other.  On the one hand there is the public need to bring to conviction those who commit criminal offences.  On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment^[13].
    4. The kind and degree of any unlawful or improper conduct by law enforcement officers must be considered.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price, having regard to prevailing community standards^[14].
    5. The PPRA does not prohibit the use of a covert LEP in the way which occurred in this case^[15].  The result is that nothing in the conduct of police was illegal.  There is, however, still to be regarded as an important public interest that the police do not adopt tactics designed to circumvent a defendant’s right to silence which has been exercised^[16].
43. In the circumstances of this case, to my mind the relevant considerations were as follows:
    1. The police continued with the existing plan to employ an LEP notwithstanding having been appraised of the defendant’s intention to refuse to be interviewed and to exercise her right to silence.  The police used covert means to elicit the confessional statements.  Even though this did not amount to police persisting in an interview in a purported exercise of authority, the conduct may be seen to amount to a circumvention by a subterfuge of the defendant’s right to silence which had been exercised.
    2. The only significance of the defendant’s antecedents is that it may be inferred from the defendant’s frequent intersections with law enforcement that she well knew of her rights and this inference adds some weight to the fact that at the time of her arrest, mere hours before the conversations concerned, DSC Wright had explicitly informed her of her rights.  At the time of the conversations, the defendant was lucid and able to understand her rights and to decide whether or not she would answer any questions put to her by anyone.
    3. The defendant voluntarily spoke to the LEP.  It would have appeared to the defendant that the LEP was a fellow prisoner.  But it was her choice, conscious as she must have been of her rights, to say what she said to the LEP. 
    4. Not all of the inculpatory statements were elicited by active questioning.  The LEP had in fact also told the defendant essentially at the beginning of their conversation that she did not have to say anything.  The first admissions that the defendant had an animus towards the deceased Ms Landers were entirely spontaneous.  Moreover, the first critical admissions as to what the defendant and Mr Harris had done to Ms Landers were spontaneous and in response to statements that the defendant should “stay positive”, rather than any particular pressing for detail. 
    5. It must be acknowledged that further detail was obtained in respond to direct questioning.  However, insofar as some of the confessional statements were elicited by direct questioning, the questioning was neither aggressive nor badgering, but was reflective in nature, calculated to keep the conversation going.  The questions were not unfair in themselves.
    6. The confessional statements are not suggested to be unreliable. 
    7. The offences concerned were most serious.
44. Bearing in mind the law I have summarised and the considerations to which I have adverted, my evaluation of the demonstrated impropriety in all the circumstances of the case, is that the admission of the audio and video recordings would not deprive the defendant of a fair trial.  I decline to exercise my discretion to exclude the evidence of the audio and video recordings of the defendant’s conversation with the LEP on 3 July 2014 on the grounds of unfairness.
45. On the question of the public policy discretion, having regard to prevailing community standards I am unable to regard the balance between –
    1. the public need to bring to conviction those who commit criminal offences; and
    2. the public interest in the protection of the individual from unfair treatment (including the circumvention by a subterfuge of the defendant’s right to silence),

as favouring the exclusion of the evidence in the circumstances of this case.  In the circumstances of this case, I think that the latter public interest is outweighed by the former.  I decline to exercise my discretion to exclude the evidence of the audio and video recordings of the defendant’s conversation with the LEP on 3 July 2014 on public policy grounds.

46. The result is that I refuse the defendant’s application for an order that the recording of admissions made by the defendant with a covert police officer at the Redcliffe Police Station on 3 July 2014 be ruled inadmissible at trial.

The application to exclude the recording of the conversation on 7 July 2014

47. The exclusion application in relation to the evidence of this conversation was founded on the exercise of the public policy discretion.  Again, no challenge was taken on the grounds that the alleged confessional statements were made involuntarily, or that they were obtained in circumstances which throw doubt on their reliability.

The facts

48. On 7 July 2014 the defendant had a reception interview at the Brisbane Women’s Correctional Centre.  Present at the conversation were the defendant, Ms Biancofiore (acting intelligence adviser at the centre) and Ms Cacambow (acting accommodation manager at the centre).
49. The transcript reveals that the expressed purpose of the conversation was to enable the Correctional officers to make an assessment of the threats which might exist at the Correctional Centre in relation to the defendant and her safety generally, especially given the publicity which the defendant’s alleged offending had received, and the fact that Ms Landers was known to a number of prisoners at the Correctional Centre.
50. The defendant, of course, had already expressed her decision to exercise her right to silence on previous occasions.  When apprised of the reason for the interview she said that she was “not too concerned” for herself because she knew that a lot of women in the Centre hated Ms Landers and the question whether she did it was “only allegations”.
51. Having said that, the acting intelligence officer asked her directly, twice, “did you do it”.  The defendant responded “[a]s if I’m going to admit to, either way, it’s all allegations”.  She then said that “she would be a fool to admit anything” and told the Correctional officers that she was advised not to say anything by her solicitor.
52. The conversation then continued for some 20 minutes or so in which she nevertheless made guarded admissions.  I make the following observations:
    1. The risk to the defendant was repeatedly emphasised.
    2. The defendant was asked about rumours that she and Mr Harris had a suicide pact, which question elicited admissions about the existence of a “runaway pact” in which the defendant said that she and Mr Harris had a plan to escape the country.
    3. The defendant was asked what age she thought she would be when she got out and asked questions about why she thought that, which line of questions elicited admissions that Mr Harris had been talking about “putting it all on himself”, but that would not matter because it was “not going to save me” and “they’re going to get me for interference with a corpse, I know that”.
    4. The defendant was asked questions about the house in which the alleged offending occurred, which questions elicited statements from the defendant that there would be no blood because “the house got cleaned up” with “litres and litres of chlorine”.
    5. The defendant was invited to comment on the proposition that “it was pretty gruesome with machetes and knives and guns and the works”, which elicited the statements:
       1. “apparently she got chopped up, anyway, that’s why I said I would be vegetarian for the rest of my life.  I was there, there’s no lie about that, but”; and
       2. “I shook my head as it started to go down”.
    6. The defendant was asked questions about her drug use prior to her arrest, which again elicited statements about her plan to run.
53. Ms Biancofiore and Ms Cacambow each gave evidence before me as to the purpose of the interview.  They each knew that the defendant had known Ms Landers before the alleged offending, including within the Correctional Centre.  And they each confirmed that there had been significant publicity of the alleged offending.  They each confirmed that the purpose was to discuss risk assessment, with a view to ascertain whether the defendant could be placed in the mainstream of the prison population or needed to be segregated. 
54. Their reasons for recording the interview were twofold.  First, the recording was made by way of self-protection.  In Ms Cacambow’s case that was in order to show that she had discharged her duty of care to the defendant.  In Ms Biancofiore’s case that was to protect herself if allegations were made in the interview room.  But, second, as Ms Biancofiore acknowledged, something might be said which might need to be reported upwards (which, I infer, meant reported to police and/or prosecution authorities).  Ms Biancofiore confirmed that that is in fact what they did. They said the digital recorder was obvious on the desk in the room.

Analysis

55. In the circumstances of this case, to my mind the relevant considerations were as follows:
    1. Persons in a position of authority over the defendant persisted in an interview despite the evident decision by the defendant to exercise her right to silence.  Not only were they persons in authority generally, but they were overtly making decisions which might affect the defendant’s safety. 
    2. Although I accept the evidence that the interviewers had a genuine purpose of assessment of any risk to the defendant’s safety, at least the acting intelligence officer, Ms Biancofiore, was also conscious of the possibility that they might elicit information which might need to be reported upwards.  I conclude that the purpose of eliciting information relevant to the investigation must be regarded as a secondary purpose of the interview. 
    3. Many of the questions which elicited the relevant admissions were not questions aimed at eliciting information material to the risk assessment purpose, but were relevant only to the question of the investigation of the guilt or innocence of the defendant.  The interviewers used their stated concerns about the defendant’s safety as a device to get her to talk to them on such matters, notwithstanding her overt decision to exercise her right to silence.
    4. The questions were not unfair in themselves. But they were direct and were made in the circumstances described in (a), (b) and (c).
    5. Of course, the defendant was lucid, well aware of her rights and able to decide whether or not she would answer any questions put to her.  She spoke to the interviewers voluntarily and there is no contention that her free choice so to do was overborne by the interviewers taking advantage of her concerns as to her safety.
    6. The confessional statements are not suggested to be unreliable. 
    7. The offences concerned were of the most serious in nature.
56. On the question of the public policy discretion, having regard to prevailing community standards it seems to me that the considerations adverted to in [55](a) to [55](c) tip the balance between –
    1. the public need to bring to conviction those who commit criminal offences; and
    2. the public interest in the protection of the individual from unlawful and unfair treatment,

so as to favour the exclusion of the evidence in the circumstances of this case. 

57. I should observe that I do not think that it necessarily follows that evidence of admissions made during risk assessment interviews will always be excluded.  I reach this decision very much as a matter of fact and degree having regard to the course of the questioning revealed by the transcript.  If, for example, the defendant had merely volunteered something relevant to the investigation during the course of conversations which were evidently directed to risk assessment rather than investigation, my conclusion might well have been different.
58. The result is that I rule that the recording of admissions made by the defendant to Gina Biancofiore and Rita Cacambow at the Brisbane Women’s Correctional Centre on 7 July 2014 is inadmissible at the defendant’s trial.