R v Munck[2010] QSCPR 1

SUPREME COURT OF QUEENSLAND

PHILIPPIDES J:

1. [1]
   The applicant is charged on indictment with one count of trafficking in methylamphetamine between 14 June 2008 and 12 July 2008 (Count 1), one count of possession of cannabis and methylamphetamine on 12 July 2008 (Count 2) and one count of possession of things for use in connection with trafficking on 12 July 2008 (Count 3).

2. [2]
   The applicant seeks the exclusion of evidence of items located in a bedroom of the house situated at 32 Wakefield Street, Bald Hills during an “emergent search” conducted by police officers on 12 July 2008 and evidence of the recorded conversations between himself and Detective Farmer on 12 July 2008.

Factual background

3. [3]
   At about 10.20 am on 12 July 2008, Senior Constable Singh was driving past 32 Wakefield Street, Bald Hills with Constable Kurt Mudgway.  The applicant lived at that address at the time.  They observed the applicant walking hurriedly towards the side of the house after seeing the police and drove back towards the house.  Senior Constable Singh spoke to the applicant.  He obtained the applicant’s details and gave evidence that while doing so that he detected the smell of cannabis.  He then detained the applicant for the purposes of a search.  The applicant had a small blue bum-bag in his right hand which he admitted contained amphetamines.  The bag was searched.  Inside were five clip seal plastic bags containing a total weight of 15.556 grams of a substance (which was later found to contain .22 grams of methylamphetamine with an approximate purity ranging from 5.9-6.6%) as well as a clip seal plastic bag containing 2.9 grams of cannabis in green leafy material form.  There were also some unused syringes in plastic.   Those items were then seized. The applicant was arrested for possession of dangerous drugs, handcuffed and cautioned.  A search of the applicant’s vehicle was conducted but revealed nothing of interest.

4. [4]
   Constable Mudgway gave evidence that the applicant said that “he didn’t want to speak” to the police. Senior Constable Singh did not deny that his evidence at the committal hearing was also that the applicant “didn’t really want to speak to us”.

5. [5]
   Senior Constable Singh contacted a superior officer, Senior Sergeant Lansdown, who arrived soon after, as did Officer McDonnell. A determination was made by Senior Constable Singh in conjunction with Senior Sergeant Lansdown that an “emergent search” be conducted, to which course the other officers present apparently agreed. The decision was based on the drugs found in the applicant’s possession, the smell of cannabis on the applicant and the presence of people in the applicant’s house who had been observing the police.

6. [6]
   Senior Constable Singh, Officer McDonell and Constable Mudgway entered the house to conduct the search. They detained the four occupants in the house and carried out the emergent search. The Crown alleges that police officers located quantities of cannabis and methylamphetamine, amongst other items, in the applicant’s bedroom.

7. [7]
   Senior Constable Singh then went to get the applicant, who remained handcuffed outside with Senior Sergeant Lansdown. They all returned to the house. No further caution was given to the applicant before he was taken into the house, but Senior Sergeant Lansdown gave a caution in the house.

8. [8]
   The search of the applicant’s bedroom revealed amongst other items a large clip seal bag containing 124.7 grams of a light pink coloured substance in a golf club cover by Senior Sergeant Lansdown. Senior Sergeant Lansdown’s evidence was that he reminded the applicant of his rights and warnings and asked what the pink substance was. The applicant said it was his and that he thought it was speed but didn't know it was in his room. It was later found not to contain any illicit drug.

9. [9]
   The evidence of Senior Sergeant Lansdown, which I accept, was that after the search was completed he contacted Detective Farmer from Sandgate CIB. I also note that the clear evidence of Senior Constable McDonald, which I accept, was also that it was after the items including the pink substance had been located that Detective Farmer was called.

10. [10]
    Senior Sergeant Lansdown said that about a half an hour after the search was completed Detective Farmer arrived with Detective Shea (at about 11.25 am).

11. [11]
    Up to this stage, none of the applicant’s conversations with police had been electronically recorded. Mention of this was made to Detective Farmer outside the house by Senior Sergeant Lansdown, whose evidence was that Detective Farmer activated a digital recording device upon entering into the house. It appears that Detective Farmer had a small digital recording device on a cord hanging around his neck. Senior Sergeant Lansdown left soon after detective Farmer arrived.

12. [12]
    The Crown alleges that all of the applicant’s conversations with Detective Farmer following his arrival were recorded on audio tape. The applicant disputes this, alleging that there was a short conversation before the tape recorder was activated. Having heard the evidence of the police officers and the applicant, I accept that the all the conversations with Detective Farmer were taped. The applicant asserted that he was unaware that the conversations were being recorded. Detective Farmer agreed that he did not tell the applicant that the recording device had been activated or that the applicant’s conversations were being recorded.

13. [13]
    The taped conversations reveal that after Detective Farmer entered the applicant’s house he gave the applicant a caution. The applicant was also asked if he had been given a warning previously and he acknowledged he had. During the questioning of the applicant in the bedroom, the applicant made admissions capable of constituting evidence of trafficking in methylamphetamine.

14. [14]
    At about 11.45 am, the applicant was arrested for trafficking in a dangerous drug.

15. [15]
    The applicant was taken to the Sandgate Police Station by Detectives Farmer and Shea. His handcuffs were removed and he was further questioned and made further admissions.

16. [16]
    The applicant maintained that he was not aware that his conversations were being recorded. At no time that day did any police officer record on video tape any conversation with the applicant, although such equipment was apparently available.

17. [17]
    At about 1.30 pm, the applicant was taken to the Sandgate watch house by Detective Farmer and the digital recording device was turned off.

18. [18]
    The Crown contended that all conversations and interactions between Detective Farmer and the applicant were recorded.

19. [19]
    The trafficking charge relies on the applicant’s admissions coupled with the drugs and drug paraphernalia found in the bum bag and house.

20. [20]
    The admissions made by the applicant included that he said he believed the large amount of pink substance was speed and his dealer must have dropped it off the night before, but he wasn’t aware that it was in his room.

21. [21]
    In the course of the questioning of the applicant, he was asked when he last took drugs and he said he last took methylamphetamine at 2.00 am in the morning. He was asked whether it was still running through his system at the moment to which he replied “yeah and no”, adding that he had had a bit of sleep and “wouldn't say it’s completely worn off but it was a lot more than it was.” Later on, he was asked if he was affected by alcohol or drugs and he said “possibly, I did have some this morning (indistinct).” When asked “So do you feel intoxicated now or are you alright?” he replied, “Oh yeah, I just feel (indistinct).”

Lawfulness of the search

22. [22]
    No search warrant was obtained prior to the search. Instead, on 15 July 2008 Detective Farmer applied for a post-search approval order pursuant to s 161 of the Police Powers and Responsibilities Act 2000 (“PPRA”) in respect of the powers exercised under s 160. An order signed by a magistrate dated 15 July 2008 was tendered.

23. [23]
    Section 161 PPRA requires an application for a post-search approval order in the event police exercise an emergent search power pursuant to s 160. Section 160 PPRA provides:

“160 Search to prevent loss of evidence

1. (1)
    This section applies if a police officer reasonably suspects—

1. (a)
    a thing at or about a place, or in the possession of a person at or about a place is evidence of the commission of a part 2 offence; and

2. (b)
    the evidence may be concealed or destroyed unless the place is immediately entered and searched.

2. (2)
    This section also applies if a police officer reasonably suspects a part 2 offence has been, is being, or may be committed in, on or in relation to a transport vehicle and involves the safety of the vehicle or anyone who may be in or on it.

3. (3)
    A police officer may enter the place and exercise search warrant powers, other than power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant.”

24. [24]
    Section 161 PPRA provides:

“161 Post-search approval

1. (1)
    As soon as reasonably practicable after exercising powers under section 160, the police officer must apply to a magistrate in writing for an order approving the search (post-search approval order).

2. (2)
    The application must be sworn and state the grounds on which it is sought.

3. (3)
    The applicant need not appear at the consideration of the application, unless the magistrate otherwise requires.

4. (4)
    The magistrate may refuse to consider the application until the police officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.”

25. [25]
    The magistrate may make a post-search approval order under s 162 (1) PPRA which provides:

“162 Making of post-search approval order

1. (1)
    The magistrate may make a post-search approval order only if satisfied –

1. (a)
    in the circumstances existing before the search –

1. (i)
    the police officer, before exercising the powers, had a reasonable suspicion for exercising the powers; and

2. (ii)
   there was a reasonable likelihood that the evidence would be concealed or destroyed or may have caused injury to a person; or

2. (b)
    having regard to the nature of the evidence found during the search it is in the public interest to make the order.”

26. [26]
    On behalf of the applicant it was submitted that the post-search approval order was invalid because the police officer who made the application (Detective Farmer) was not the police officer (Senior Constable Singh or one of the others previously present) who executed the powers of emergent search pursuant to s 160 PPRA.  The magistrate could not therefore have properly satisfied himself of the matters identified in s 162(1)(a) without sworn evidence from Senior Constable Singh in the application.  Furthermore, it was submitted that the order was defective because it was not apparent on the face of the order what order had in fact been made.

27. [27]
    Initially, in its written submissions, the crown accepted that from reading both s 160 and s 161 PPRA together, what was required was that the police officer who conducted the emergent search be the one who applied for the post-search approval order. It was also initially conceded that this had not occurred, because only Officers Singh, Mudgway, McDonnell and Lansdown had conducted the emergent search and that, while Detective Farmer applied for the post search approval order, he had not been involved in that search, but rather in running through with the applicant what had been located by the others. However, the concession was withdrawn because of the evidence given by Detective Farmer that, when he arrived at the applicant’s house and after being briefed, he also formed a reasonable suspicion that evidence in the house would be destroyed and that he joined in the search of the house.

28. [28]
    It is apparent from a reading of sections 160, 161 and 162 PPRA that what is required under s 161 is that the application be made by a police officer who, having a reasonable suspicion, conducted the search pursuant to the power in s 160. The officer whose suspicion is therefore relevant for the purposes of s 160 is the officer who enters a place and exercises the search warrant powers conferred by s 160: R v Williamson [2009] QSC 434 at [22].  I agree with the observation of Lyons J in R v Day [2008] QSC 358 at [28] that s 161, “explicitly provides that it is the police officer who has exercised the powers under s 160 who must apply for the order approving the search he had conducted pursuant to the belief he held in accordance with the section.” 

29. [29]
    In the present case, it is abundantly clear that the police officers who entered the house and exercised the search powers locating the items listed in the application were Officers Singh, Lansdown, McDonald and Mudgway. They had entered the house and had exercised the search powers that revealed the various items listed in the application before Detective Farmer arrived. One of those officers was required to swear to having a reasonable suspicion at the time of entry onto the premises in support of the application. While Detective Farmer gave evidence that he shared the reasonable suspicion of the officers who were present at the house before he arrived, that is of no moment, since he did not participate in entering onto the premises and exercising the search powers which yielded the items in question. His reasonable satisfaction was not able to apply retrospectively in respect of the entry and exercise of powers by others that had already taken place.

30. [30]
    But a further difficulty arises. I note that the order signed by the magistrate appears to be a pro forma one, allowing for various portions to be deleted as appropriate. However, in the present case no relevant deletions were made on the order and, as there is no transcript of the hearing which proceeded in the magistrate’s chambers, it is not apparent on the face of the order what was intended.

31. [31]
    The signed order specified that, “after hearing a sworn application” by Detective Farmer, the magistrate was satisfied, as follows:

“+in the circumstances that existed before the search the police  officer, before exercising the powers under the Act, had a reasonable suspicion for exercising those powers; and there was a reasonable likelihood that the evidence would be concealed or destroyed.

(or)

+having regard to the nature of the evidence found during the search it is in the public interest to make the order.

*I therefore make an order approving the search made by the applicant at 32 Wakefield Street, Bald Hills on 12/07/2008

*I refuse to make an order under this section approving this search.

*I order that the police officer *retain/dispose of/return/destroy the thing seized.

…

*Delete inapplicable.

+Delete inapplicable.”

32. [32]
    It is not apparent on the face of the order that an order approving post-search approval was made, given that the magistrate did not indicate, by appropriate deletion, whether the order signed was one approving the search or refusing it. Nor did the order indicate whether the magistrate had ordered that the police officer “retain” or “return the thing seized.” In those circumstances, it is entirely unclear whether the magistrate did or did not make the order, and if made, on which of the alternate grounds provided for. The order cannot be relied upon as a post-search approval required by s 161 PPRA.

33. [33]
    Accordingly, not only did the application not meet the requirements of s 161, but a valid post-search approval order was not obtained as required by s 162 to validate the search purported to be conducted under s 160. Consequently, the search was not lawful.

The exercise of the discretion in respect of the evidence obtained in the search

34. [34]
    Section 10 PPRA provides that the Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion. On behalf of the crown it was submitted that, notwithstanding a finding as to the unlawfulness of the search of the applicant’s house, the Bunning v Cross discretion should be exercised in favour of admission of the evidence obtained from the search.  That discretion calls for a balance to be struck between competing public interests, which in essence may be summarised as:

“… the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.” (Bunning v Cross (1978) 141 CLR 54, 74)

35. [35]
    Relevant factors in the exercise of the Bunning v Cross discretion include:

1. (a)
   whether the lawfulness was a deliberate or reckless disregard of the law,

2. (b)
   where the illegality was as a result of a mistake,

3. (c)
   the cogency of the contested evidence,

4. (d)
   how easy would it have been to comply with the law,

5. (e)
   the nature of the offence,

6. (f)
   the relevant legislation.

36. [36]
    Counsel for the crown submitted that any unlawfulness was inadvertent. It was submitted that the failure to provide an application as required by s 161 was not a deliberate one and was not done in reckless disregard of the law, but rather as a result of a mistake. I note that Senior Constable Singh’s evidence was that he was never shown a copy of the application to ensure its accuracy. I also note that it was not the case that Singh or another officer such as Lansdown was unavailable to swear to the application. It seems that Detective Farmer formed the view that he was entitled to make the application. Of course, it would have been a simple matter to comply with the clear requirements of s 161 in terms of the making of the application. But regardless of that matter, it is also apparent that no proper attention was paid as to the terms of the order signed by the magistrate. There was no explanation as to the failure to ensure that the terms of the pro forma order signed in fact provided the requisite authority for the exercise of the search powers. That was a simple and important matter that could easily have been attended to. The sanction of a judicial officer as proscribed by legislation is a critical means of ensuring that the statutory restrictions on police powers are maintained. This is particularly so where the sanction is sought post facto.

37. [37]
    As Holmes J stated in R v Christensen [2005] QSC 279, in a passage adopted by Lyons J in Day (at [15]):

“The importance of strict adherence to statutory requirements in the context of search warrants has repeatedly been emphasised. This was not some mere technical defect in the warrant; the entire basis on which it was sought and issued was misconceived and wrong. The offences, if made out, are undoubtedly serious. Assuming that the tablets seized are proved to be ecstasy, a large quantity is involved. However, the purported use of a power which entailed the invasion of the privacy of citizens to such an extent, with so little regard for what was actually permitted by the statutory provisions, is an error of such proportions as to tilt the balance of public interest against the receipt of evidence so obtained.”

38. [38]
    I also endorse those comments and also note the observations made in New South Wales v Corbett (2007) 172 A Crim R 555 at 578, where the High Court also considered the importance of adhering to the statutory requirements, stating:

“Obviously each statutory requirement or condition needs to be construed on its own terms and by reference to the statute in which it is to be found. However, common requirements for “reasonable grounds for believing” (or suspecting) imposed on an applicant (as here under s 5(1)(b)), or upon an issuing justice (as in Rockett or Beneficial Finance) have a common derivation. The concern of the common law courts to avoid general warrants and to strictly confine any exception to the principle that a person’s home was inviolable is the original source of common, although differently expressed, statutory requirements.”

39. [39]
    While the offences charged are serious, particularly the offence of trafficking, I do not consider that that factor alone, nor that considerations as to the cogency of the evidence, tip the balance in the present case in favour of admitting the evidence. I also note that the large quantity of the pink substance found in the house and thought to be methylamphetamine in fact contained no illicit substance. Bearing in mind all the relevant considerations, the important public interest in the protection of the individual from unlawful conduct ought in this case to prevail. To do otherwise risks giving encouragement for the unlawful conduct which occurred in circumstances where entirely insufficient regard was had to the making of the application and the terms of the order obtained from the magistrate to validate the exercise of the statutory powers of search. As Barwick CJ stated in Re Ireland (1970) 126 CLR 321 at 334-335:

“Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. …On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public 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. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.”

40. [40]
    Accordingly, the evidence obtained against the applicant in the search of 32 Wakefield Street, Bald Hills on 12 July 2008 is excluded.

Exclusion of the evidence of the recorded conversations

Submissions

41. [41]
    The applicant contended that the statements made by him during questioning by Detective Farmer and recorded on audio tape were not made voluntarily and should be excluded pursuant to the principles explained in McDermott v R (1948) 76 CLR 501 and Van der Meer v R (1989) 82 ALR 10, [16]. The applicant submitted that the evidence should be excluded because it was the product of oppressive conduct by police officers.  It was also said that at the time of the questioning, the applicant was still affected by drugs which he told Detective Farmer he had taken at about 2.00 am that morning.  The applicant also contended that the admissions made by him during questioning by Detective Farmer should be excluded pursuant to s 10 of the Criminal Law Amendment Act 1894 (Qld) because such admissions were induced by reason of the statements made to him by Detective Farmer and Senior Constable Singh.

42. [42]
    Alternatively, the applicant submitted that there was a discretionary basis for excluding the evidence of the taped conversations at the police station. It was said that, in breach of s 431 of the PPRA, it ought to have been apparent that the applicant did not fully understand any caution or warning that was given to him and/or his entitlement to exercise his rights. In addition, a breach of sections 418 and 419 of the PPRA was asserted. It was contended that the applicant did not fully understand the existence of the rights explained to him and/or his entitlement to exercise them at the commencement of the interrogation by Detective Farmer. It was also said that Detective Farmer could not have reasonably satisfied himself that the influence of drugs on the applicant no longer affected the applicant’s ability to understand his rights and decide whether or not to answer questions as required by s 423(2) of the PPRA ( see R v LR [2005] QCA 368). In addition, Detective Farmer, by his conduct, breached multiple provisions of Chapter 15 of the PPRA.  As a consequence, the applicant argued that the Court’s discretion to exclude the evidence on the grounds that to admit it would be unfair to the applicant, and that it was obtained improperly, was enlivened and ought to be exercised in the applicant’s favour.

43. [43]
    The prosecution contended that the evidence of the recorded conversations and admissions at the police station should be admitted as they were made voluntarily. It was said that, while the evidence was that the applicant had taken methylamphetamine about eight hours beforehand, the applicant indicated to the police that he was coming off the effects of the drug and was alright. It was said that the taped conversations demonstrated that the applicant was capable of understanding the warnings given to him, exercising his rights and able to answer questions lucidly and responsively. The prosecution submitted that the evidence indicated that the applicant was warned of his right to silence and other warnings on three occasions prior to being questioned at the police station and said he understood those warnings on each of those occasions.

44. [44]
    In making his submissions, counsel for the applicant also contended that if the search of the applicant’s house was found to be unlawful and, the evidence thereby obtained excluded in the exercise of the Bunning v Cross discretion, the taped conversations with the applicant ought likewise to be excluded. Counsel for the prosecution accepted that proposition insofar as it concerned the taped conversations of the applicant at his house, but made no such concession in respect of the later taped conversations at the police station.  Given the concession that was made and the conclusion I have reached that the evidence obtained in the search is to be excluded, it follows that the evidence of the taped conversations at the applicant’s house ought to be excluded. 

45. [45]
    I note that the limited nature of the prosecution’s concession in respect of the taped conversations proceeded on the basis that the admissions made by the applicant at the police station were not dependant on his being referred to any of the items located pursuant to the unlawful search. However, an examination of the transcript of the conversations at the police station indicates that that submission cannot be sustained. It is abundantly clear that the admissions made at the police station were made in the context of repeated references to the various items located at the applicant’s house. The unlawfulness of the search thus taints not only the evidence found but also the evidence of the taped admissions. That is a matter that goes to the exercise of the discretion to exclude the evidence to which I will return.

Voluntariness

46. [46]
    However, before I deal further with that issue, I note that the first question for determination is whether the admissions made at the police station ought to be excluded on the basis that they were not made voluntarily, because they are not made in the exercise of a free choice to speak or to be silent: McDermott v R (1948) 76 CLR 501, 511; Foster v R (1993) 67 ALJR 550 at 556.  I note that the prosecution bears the burden of establishing on the balance of probabilities that the statements were made voluntarily: Wendo v R (1963) 109 CLR 559. In determining whether the statements and records of interview were made voluntarily, the following matters referred to by Brennan J (as he then was) are to be considered:

“The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary.  The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made.” (Collins v R (1980) 31 ALR 257 at 307).

47. [47]
    In particular, the issue arises as to whether the admissions were not voluntary because they were preceded by an inducement held out by a person in authority, which inducement was not shown to have been removed: R v Lee (1950) 82 CLR 133, 144. 

48. [48]
    The applicant gave evidence that Senior Constable Singh told the applicant at the house at the commencement of the search, “If you tell us where the stuff is in your room now, it will look better for you than if I find it and it will help you out when you go to Court because you helped us out and you participated in the questions that we have asked you. It would look better for you.” I note that this was not put to Constable Singh (although an allegation that Detective Farmer made a similar statement was put). I am unable to be satisfied that Senior Constable Singh made any statement as maintained by the applicant.

49. [49]
    However, I note that it is apparent from the transcript of the taped conversations that soon after the applicant was taken to the police station and before the questioning proceeded, Detective Farmer made the following statement to the applicant:

“We need to take steps to make sure that you’re not gonna deal drugs. What we really wanna do is um we wanna get people above you. Get your friend who, well I don’t think he’s a friend, the person who’s bringing you drugs and getting you to do the hard work so you can make some money. He’s the one that needs, deserves to be caught and sitting in that chair and the only way we can ever catch him is if you tell us.”

50. [50]
    The applicant responded that he did not know complete names, only the dealer’s first name, and further questioning continued with further admissions being made in relation to the charged offences. Detective Farmer returned to the theme of the applicant providing information about his dealer and outlined the charges which the applicant faced, including the charge of trafficking in and possession of methylamphetamine. He then stated, “So there’s two serious charges and four minor charges” and asked whether the applicant had any questions. The applicant asked whether he would “possibly be getting jail time out of this?” Detective Farmer explained the maximum penalty for trafficking and stated:

“You’re a minor drug dealer but ah yeah this is an offence where you’re more than likely going to go into custody um even for a short time like um you know a couple of months, that sort of thing okay it’s up to the judge what you get but um yeah it’s a, unfortunately like you say I, I’d rather see [the dealer] sitting in this chair rather than you and that’s why we’re working towards getting [the dealer] in this chair rather than you because um”

51. [51]
    Detective Farmer went on to say:

“What happens today is um, what we’d like to do is we’ll work with you to try, ‘cause there are ways obviously to minimise um the amount of time in custody you do ah those ways um are by helping the police out with other matters like finding out who [the dealer] is and stuff and you can you know limit the amount of jail time you do through sort of ways um have a think about that and you k now ways that you wanna help if you do then we’ll work with you to do that.”

52. [52]
    Detective Farmer then indicated that because of the serious nature of the charges the applicant would be required to remain in custody until the following Monday and stated that he would be housed in the watch house over the weekend. He asked the applicant whether he wanted “some privacy to call your mum or anything like that? Do you want her to know or.” The applicant indicated he wanted to speak to his mother and did so.

53. [53]
    At about 2.40 pm on the same day, the applicant, who was then in a cell at the watch house, was woken and further interviewed about the pink substance, which he was told weighed 156.5 grams. The applicant was told, “So in total you have in your bag, with the bag weights as well, 156.5 grams of speed” and that “all up speed you have 5.51 ounces … it’s a lot more than, than just … casual dealing to a couple of people”. The applicant replied that, “I didn’t even know there was all this there”. (In fact, as mentioned, the pink substance did not contain any drugs). Detective Farmer then again pursued the topic of tracking down the applicant’s dealer but obtained little information.

54. [54]
    I consider that the taped conversations indicate that the admissions made by the applicant at the police station occurred in the context of inducements offered by Detective Farmer. In my view, the manner in which the applicant was interviewed and the statements which were made by Detective Farmer were apt to convey to the applicant that there was likely to be an advantage to him should he cooperate in naming his dealer and detailing his involvement with the dealer. Evidence of statements in the nature of inducements is peppered throughout the taped conversations, and commenced soon after the applicant was taken to the police station. On behalf of the prosecution it was contended that there was no inducement offered because no indication was given to the applicant of the benefit he might receive if he gave information about his dealer until after he was told he was going to be charged with a number of offences. That submission cannot be supported when the totality of the conversations is considered. The initial statement made by Detective Farmer, which is quoted above, implicitly carried with it the suggestion that the applicant might obtain a benefit in naming his dealer and providing information about him. This occurred before the admissions were made by the applicant. In those circumstances and bearing in mind the applicant’s situation, in terms of his age, I am unable to be satisfied that the admissions were made voluntarily.

Fairness discretion

55. [55]
    But even if I had not formed that view, I would consider that alternatively the evidence of the conversations at the police station ought to be excluded on the basis of the fairness discretion. The basis for the exercise of the discretion is the protection of an accused against either procedural or substantive unfairness (Cleland v R (1982) 151 CLR 1, 19).  Unfairness in this sense is concerned with the applicant’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 (R v Swaffield (1998) 192 CLR 159, 189).  It is to be borne in mind that the chief focus for the discretionary questions that arise here is the fairness of using the applicant’s admissions rather than any purpose of disciplining police or controlling investigative methods (Cleland v R (1982) 151 CLR 1; R v Lee (1950) 82 CLR 133; Tofilau v R (2007) 231 CLR 396, [68]).

56. [56]
    Even apart from the reference to evidence unlawfully obtained during the emergent search to extract admissions from the applicant, there are a number of issues concerning the manner in which the interview at the police station proceeded which, on balance, engage the unfairness discretion. These include that the questioning of the applicant occurred without his first being asked whether he wished to participate in an interview, and that the questioning was tape recorded in circumstances where Detective Farmer was aware that the applicant did not appreciate that the conversations were being recorded and where he had previously indicated he did not wish to speak to the police. Indeed, Detective Farmer deliberately chose to tape record the conversation rather than to utilise the video recording facilities for the purpose of questioning the applicant because of a view that he held generally that the use of video recording might cause an interviewee to “freeze up”. I should add that the belief that the applicant held that his conversations were not being taped was reinforced by the fact that they occurred in circumstances where the applicant was expressly asked if he wanted to participate in “an electronically recorded interview”, where it was explained “we’ll go next door and we turn on, like you see in the movies you know the tapes and a video and we ask you what’s happened and you tell us”. Moreover, he was asked whether he wanted to speak privately to his mother and led to believe that he was able to do so, yet even that conversation was recorded.

57. [57]
    I note the evidence of the police officers that they were satisfied that the applicant was not under the influence of drugs. I am unable to conclude that that opinion could not have been reasonably held. But in my view, it ought to have been apparent from the evidence that the applicant did not entirely appreciate that he could communicate with someone and have a person present with him during the questioning. It is true that towards the end of the interview the applicant indicated he wished to speak to his mother and that that occurred. However, that did not occur because the applicant had an appreciation of his rights, but because Detective Farmer made the suggestion that he may wish to speak to someone as he was to be detained further.

58. [58]
    The cumulative effect of these matters tips the balance in favour of excluding the evidence in the exercise of the fairness discretion.

Public policy discretion

59. [59]
    I also consider that the public policy discretion is engaged to exclude the recorded conversations at the police station on the basis that they involved, as I have mentioned, repeated reference to the items obtained unlawfully in the purported exercise of the emergent search powers. But for the evidence obtained in the unlawful search, the admissions made at the applicant’s house by reference to the items found would not have resulted. It was on the basis of the evidence found in the search, particularly the pink substance thought to be methylamphetamine, that the applicant was questioned and the admissions in the house were obtained and that remained the case in respect of the subsequent admissions at the police station. The admissions both at the house and at the police station are therefore tainted by the unlawfulness of the antecedent search.

60. [60]
    In the circumstances, notwithstanding the seriousness of the charged offences, the court ought not to overlook that all of the taped conversations related to and proceeded on the basis of the unlawfully obtained evidence, which I have determined ought to be excluded, even having regard to the Bunning v Cross discretion.  Moreover, the determination in relation to the admissibility of the evidence of the search would be undermined if the taped conversations were not likewise excluded in the exercise of the discretion. I respectfully adopt what was said by Deane J in R v Pollard (1992) 176 CLR 177, 202-3 that:

“It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.”

61. [61]
    Accordingly, the admissions at the police station ought to be excluded because I am not satisfied that they were made voluntarily, and further, because the exercise of the unfairness and public policy discretions also calls for their exclusion.

62. [62]
    The application is granted. I order that:

1. (a)
   The evidence obtained against the applicant on 12 July 2008 in the search of 32 Wakefield Street, Bald Hills be excluded.

2. (b)
   The evidence of recorded conversations between the applicant and Detective Farmer on 12 July 2008 be excluded.