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R v O'Dempsey[2016] QSC 318

 

QUEENSLAND SUPREME COURT

 

APPLEGARTH J

 

SC 1046 of 2015

 

R  Respondent

v

VINCENT O'DEMPSEY Applicant

 

BRISBANE

 

TUESDAY, 11 OCTOBER 2016

 

JUDGMENT (EX TEMPORE)

 

  1. I am dealing with an application by Mr O'Dempsey to exclude evidence of Mr White who in 1975 was a detective of police and who is to give evidence about an interview that he conducted with Mr O'Dempsey at the Consorting Squad in Sydney on 17 April 1975.  The present matter simply concerns the legal issue of whether the admissibility of those statements, which on one view might be taken to constitute an admission made by a relevant person, are governed by the provisions of the Police Powers and Responsibilities Act 2000.  A parallel legal issue arises in relation to certain applications made by Mr Dubois and it has been convenient to hear the legal argument from both applicants.
  1. The application contends that the notes that Mr White took did not comply with the provisions of the Police Powers and Responsibilities Act.  It goes without saying that the interview was not electronically recorded and there is no evidence that after Mr White made the record, he read the matter in English to Mr O'Dempsey and gave him a copy of the record. 
  1. The applicant’s argument depends upon the provisions of division 7, chapter 15 of the Police Powers and Responsibilities Act applying to events in 1975.  It is acknowledged that if it does then I have a discretion under s 439(2) to admit the evidence if I was satisfied in special circumstances of the case admission of the evidence would be in the interests of justice. 
  1. Presently I am concerned with the threshold issue of whether the Police Powers and Responsibilities Act 2000 applies to the questioning which Mr White undertook on 17 April 1975.  I am concerned, in essence, with a question of statutory interpretation. 
  1. The Crown responds to this application and to the parallel applications made by Mr Dubois about an interview that was conducted long before the commencement of the Police Powers and Responsibilities Act 2000.  The Crown submits that the admissibility of this evidence depends upon common law principles and matters governing the admissibility of such statements. 
  1. In reply, counsel for Mr O'Dempsey, submits that s 437 of the Police Powers and Responsibilities Act 2000 is applicable to the admission of the interview although the legislation was passed long after the interview took place.  Reference is made to statements of general principle governing provisions which are procedural in nature and which operate retrospectively.  These include the well-known statements in Maxwell v Murphy (1957) 96 CLR 262 at 267. 
  1. Reference is also made to the Explanatory Notes to the 2000 Bill in which it was said clause 227 (which is now s 437) stipulates the procedure to be followed if an interview is written and requires that it be read onto an electronic recording made in the presence of the subject.  It is submitted that s 436 of the Police Powers and Responsibilities Act is procedural and has retrospective effect because it affects the mode by which evidence is admitted in the trial.
  1. The issue is one of statutory interpretation and in accordance with the principles of statutory interpretation the prohibition on admissibility contained in s 436(3) needs to be seen in its context.  The context is that in passing the Police Powers and Responsibilities Act 2000 and one might say in passing earlier provisions in earlier forms of the Police Powers and Responsibilities Act, the Parliament was governing the conduct of questioning of relevant persons by police.  The Act stated the requirements that had to be followed for good reason.  The reasons why these provisions were enacted have been stated in various places, including by Justice Mackenzie in R v Duong (2002) 1 Qd R 502.
  1. The issue is essentially this:  did the Queensland Parliament in enacting the 2000 Act intend the requirements for electronic recording in s 436 and the requirements in relation to written records in s 437 to apply to statements made years – perhaps decades – earlier?  I frame the question that way because the prohibition on admissibility in s 436(3) is a prohibition on the admissibility in evidence against a person in a proceeding and depends upon whether the confession or admission is recorded “as required by subsection 436(4) or 437”.  So the provision governing admissibility which the applicant contends is a procedural matter is linked to the substantive requirement. 
  1. It seems to me improbable that the Queensland Parliament intended these requirements to apply to statements made years – perhaps decades – earlier.  It seems improbable because if that was the case then, subject to the possibly narrow discretion that exists in s 439, confessions or admissions which were lawfully obtained and recorded in accordance with the law and what was regarded as best practice at the time or appropriate practice at the time would be rendered inadmissible. 
  1. That would have significant consequences upon securing the conviction of a person who had fully and frankly admitted to guilt without any promise or inducement or improper police conduct.  It seems improbable that the Queensland Parliament intended the securing of convictions against guilty individuals to be so jeopardised, subject to the exercise of a discretion. 
  1. And if the Queensland Parliament intended to retrospectively impose requirements on police, such that the police could be said to have breached requirements of which they were then unaware, one would expect such an intent to be apparent from the words of the statute or to be apparent from extrinsic material.  No such intent is apparent. 
  1. It is improbable, it seems to me, that the Parliament intended that, to take an example, a fully typed record of interview which someone read through and signed would be rendered admissible if that confession was given in, say, 1975 or 1980 or 1985.  One would expect the Parliament to have indicated that the requirements had that retrospective effect.
  1. The presumption of prospectivity or the presumption against retrospectivity are simply presumptions.  Ultimately, one must turn to the language the statute used having regard to its purpose, aided by those presumptions.  Here, the language of the statute does not contain any language of retrospectivity.  On the contrary, insofar as it applies to questioning of a relevant person it would, in accordance with the presumption of prospectivity, apply to questioning of a relevant person after the 2000 Act became law. 
  1. It seems to me highly improbable that the provisions were intended to have a retrospective effect and there is nothing in the Act or any extrinsic material to indicate that they did.  This does not mean that persons who had been questioned before the Act came into existence are not protected.  The admissibility of alleged statements that were made by them would be governed by established principles governing the admissibility of confessional statements whether signed or unsigned. 
  1. In all the circumstances I decline to accept the point of interpretation contended for by Mr Dubois and I decline to accept the point of interpretation contended for by Mr O'Dempsey.  I will, however, return to the admissibility of these statements because the Crown accepts that the admissibility of the evidence depends upon other principles governing the admissibility of confessions and admissions.  So the only ruling that I have made is on the point of statutory interpretation
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Editorial Notes

  • Published Case Name:

    R v O'Dempsey

  • Shortened Case Name:

    R v O'Dempsey

  • MNC:

    [2016] QSC 318

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    11 Oct 2016

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QSC 17611 Aug 2016D and O’D’s pre-trial applications to be tried separately from one another granted; considerations favouring joint trial outweighed by unacceptable risk that, despite judicial direction, jury will be unable to assess credibility of confessional witnesses against each accused without having regard to evidence admissible only against co-accused: Applegarth J.
Primary Judgment[2016] QSC 31811 Oct 2016Pre-trial ruling on applications to exclude evidence brought by D and O’D that provisions of PPRA ch 15 div 7 do not have retrospective operation: Applegarth J.
Primary Judgment[2016] QSC 32112 Oct 2016D's pre-trial application to exclude evidence of PD refused; evidence admissible and should not be excluded in exercise of Christie discretion: Applegarth J.
Primary Judgment[2016] QSC 32212 Oct 2016D's pre-trial application to exclude, in exercise of Christie discretion, TM's evidence of certain statement against interest refused: Applegarth J.
Primary Judgment[2016] QSC 32013 Oct 2016D’s pre-trial application to exclude evidence of statements made to police in 1980 refused; PPRA ch 15 div 7 does not apply retrospectively ([2016] QSC 318); even if it did, evidence admissible, despite noncompliance with div 7, in exercise of discretion conferred by PPRA s 439; evidence should not be excluded as unfair: Applegarth J.
Primary Judgment[2016] QSC 32331 Oct 2016Ruling on D’s pre-trial applications to exclude evidence of representations made by alleged victims that judge not precluded from finding, for the purpose of determining admissibility of evidence under EA s 93B, that person is dead, even though that fact is not admitted and thus remains an issue for the jury to determine at trial: Applegarth J.
Primary Judgment[2016] QSC 32431 Oct 2016Pre-trial application by D to exclude DM’s evidence of representations made by TH about confession made by D refused; EA s 93B satisfied and evidence should not be excluded in exercise of discretion: Applegarth J (affd [2018] QCA 363).
Primary Judgment[2016] QSC 32531 Oct 2016D’s pre-trial application to exclude evidence of BM refused; evidence meets requirements of EA s 93B and D did not advance reasons for its exclusion on discretionary grounds: Applegarth J (ruling treated as binding at O'D's trial) (affd [2018] QCA 364).
Primary Judgment[2016] QSC 32631 Oct 2016D's pre-trial application to exclude PH’s evidence, which included evidence of a confession by D, refused; court declined to exclude evidence in exercise of heads of discretion relied upon: Applegarth J.
Primary Judgment[2016] QSC 31931 Oct 2016Pre-trial application by D to exclude evidence of statements against interest made to police in 1976 refused; as per [2016] QSC 318, relevant provisions of PPRA have no retrospective application; even if they did, the evidence should be admitted, notwithstanding noncompliance with PPRA, pursuant to s 439 discretion; admitting the evidence not so unfair that the evidence should be excluded: Applegarth J.
Primary Judgment[2016] QSC 32731 Oct 2016D’s pre-trial application for permanent stay, contending that delay has caused incurable prejudice rendering trial unfair, refused: Applegarth J.
Primary JudgmentSC1046/15 (No citation)28 Nov 2016Date on which D convicted upon verdict of jury of two counts of murder, one count of manslaughter, one count of rape and one count of deprivation of liberty.
Primary Judgment[2017] QSC 10003 Mar 2017Various rulings made on O’D’s pre-trial applications to exclude, amongst other evidence, that of certain witnesses said to reveal criminal disposition or bad character on basis that prejudicial effect outweighed probative value: Applegarth J.
Primary Judgment[2017] QSC 10121 Mar 2017Rulings on O’D’s pre-trial application to exclude evidence of motive; evidence of first motive, that D concerned about being implicated in Torino (and, as a consequence, Whiskey) arson and O’D prepared to assist him, weak but not non-existent; evidence of second motive, that O’D concerned about being implicated in Whiskey arson, excluded as more prejudicial than probative: Applegarth J (affd [2018] QCA 364).
Primary Judgment[2017] QSC 33816 May 2017Crown's application in O'D matter for extension of order prohibiting publication of identity of police informant granted: Applegarth J.
Primary JudgmentSC1046/15 (No citation)26 May 2017Date of O'D's conviction after trial of one count of deprivation of liberty and three counts of murder.
Appeal Determined (QCA)[2018] QCA 36421 Dec 2018O’D’s appeal against convictions dismissed; evidence of first motive not wrongly received ([2017] QSC 101 affirmed) and adequate directions given in respect thereof; BM’s evidence properly admitted ([2016] QSC 325 affirmed); jury adequately directed on assessment of EL’s evidence; no Shepherd direction required; summing-up not unbalanced; trial judge did not err in directing jury on confessional evidence: Sofronoff P, Gotterson JA, Brown J.
Appeal Determined (QCA)[2018] QCA 36321 Dec 2018D's appeal against convictions dismissed; trial judge did not err in admitting DM's evidence of representations made by TH about confession made by D (affirming [2016] QSC 324); contention that jury’s guilty verdicts unreasonable, directed mainly to credibility of PH (evidence admitted [2016] QSC 326), not made out: Sofronoff P, Gotterson JA, Ryan J.
Special Leave Refused (HCA)[2019] HCATrans 12821 Jun 2019O'D's application for special leave to appeal against [2018] QCA 364 refused; no reason to doubt correctness of decision of Court of Appeal: Kiefel CJ, Bell and Keane JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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