R v Hay[2010] QSCPR 2

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant faces a trial for the offences of unlawful use of a motor vehicle, unlawful possession of a motor vehicle, unlawful production of a dangerous drug and unlawful possession of a relevant substance or thing.  He seeks to exclude as evidence at his trial an interview between him and police conducted on 30 November 2009 which became ex 1 in this proceeding.

Background evidence

2. [2]
   The evidence on which the prosecution will seek to rely at the trial was summarised uncontroversially in Mr Minnery’s written submissions, a slightly edited version of which follows:

“2.1 On Wednesday 18 November 2009 two witnesses observed a man consistent with being the accused nearby a shed at lot 10 Yeltukka Road, Goomborian via Gympie. Near the shed was a black BMW sedan.

2.2 On Thursday 19 November 2009 (the next day) one of the same witnesses saw the same black BMW sedan parked nearby his own property and contacted police, who attended and found that the vehicle was stolen.

2.3 On Thursday 19 November 2009 police officers attended lot 10 Yeltukka Road, Goomborian via Gympie, armed with a search warrant for that premises. The property contained a shed, and that shed was searched after a padlock securing the shed was cut.

2.4 Inside the shed were items such as a lounge, bunk bed, a television, a barbeque, and an esky suggesting that someone had been living there. On the bunk bed (on the lower bed) was a suitcase, and that suitcase contained, on inspection, glass beakers wrapped in bubble wrap, and a temporary domestic violence protection order in the name of the accused (as respondent).

2.5 On the top bunk bed were further glassware and containers of chemicals. The police officers evacuated the shed and called in the specialist officers of the Illicit Laboratory Investigation Team. Whilst waiting for the officers and other scenes of crime specialists to arrive, the attending officer processed other property located outside the shed.

2.6 The specialist officers arrived and investigated the shed and surrounds, whilst the investigating officers remained outside the shed. Whilst outside the shed, Detective Sergeant Southey noted a white station wagon approaching. The officers approached and identified themselves as police, the van retreated and sped away. Details of that car were noted and a broadcast was put out in relation to its apprehension over the police radio network.

2.7 Complete analysis of the contents of the shed revealed as follows:

2.8 On the top bunk of the bunk bed were glassware containing methylamphetamine production by-products, further tubing consistent with laboratory equipment, a container of hypophosphorous acid (a hard-to-obtain precursor for the manufacture of methylamphetamine), and further glass pipes and containers with by-products consistent with methylamphetamine manufacture.

2.9 On the bottom bunk bed, in the suitcase which contained the paperwork naming the accused as the respondent, were an electric hot plate, two condensers (glassware) which tested positive for a residue consistent with the production of methylamphetamine, filter papers, a digital pH meter, a gas cooker, four butane cans, tubing, a funnel an electrical grinder and electrical tape. In a separate container on the bottom bunk were further glass equipment, tubing, test strips, syringes and other items consistent with laboratory equipment.

2.10 In a red bucket next to the bed were methylated spirits, acetone and other chemicals consistent with methylamphetamine manufacture.

2.11 On top of an esky, next to the bed, were a fan, tape, and a jug with residue of amphetamine and methylamphetamine

2.12 Elsewhere in the shed were other items consistent with methylamphetamine manufacture, including empty cold and flu packets, a glass container with traces of pseudoephedrine, a container of liquid containing ethanol, a measuring jug and funnel, a fire extinguisher, a pyrex dish and a measuring cup.

2.13 Also on the property were a trailer and lighting system which had been stolen.

2.14 On 30 November 2009 the accused participated in a recorded interview with police. He made admissions during that interview to possessing the stolen BMW, possessing the stolen trailer and lighting array, and knowledge of the items consistent with methylamphetamine production, whilst not admitting that he had produced methylamphetamine. He denied having paid rent on those premises and to never having met the owner of the shed. He indicated to police that in the BMW was a key, which was in fact the key to the accused’s white Ford Escort, and he provided police with the location of the key to the BMW.

2.15 The accused also admitted being present and speaking to the witnesses on 18 November 2009 (when the car was seen for the first time), and also admitted arriving at the shed on the evening of the police search, and driving off (not realising that the police were in fact police officers).

2.16 In relation to the BMW being left outside of the property, the accused indicated that he had left the car there “I suppose it was a bit of a sign for help”. His hope was that the police would be called and would attend.

2.17 Following the interview, the accused man was arrested, charged and remanded in custody. Police, following the directions given by the accused, located the BMW key where he said it would be.”

The interview

3. [3]
   The interview commenced with a warning delivered by one of the two police officers present in conventional terms informing the applicant that he did not have to say anything or answer any questions or make a statement but that anything he did say may later be used as evidence in court.  He said that he understood that and said that he did not want the interview suspended to allow him to contact a friend, relative or lawyer.
4. [4]
   The following exchange then took place at p 2 of ex 1:

“SCON GERRARD: Mate, are you happy to proceed with the interview?

HAY: Nup.

SCON GERRARD: Sorry?

HAY: Nup.

SCON GERRARD: You’re not? Alright mate, I’ll just get some background, I’ll just get you to state your full name anyway.”

5. [5]
   Detective Senior Constable Gerrard then proceeded to ask the applicant for his personal details some of which, his name and address, he was authorised to ask for pursuant to s 40 of the Police Powers and Responsibilities Act 2000.
6. [6]
   Subsequently the other police officer, Detective Sgt Southey, asked the following questions at p 5:

“SGT SOUTHEY: Alright. You understand that, you know at the commencement of the interview you understand the warnings that were provided to you?

HAY: Yep.

SGT SOUTHEY: Yep. You know, so, if we ask you a question [do] you have to answer it?

HAY: Yep, oh, if you ask me a question I have to answer it?

SGT SOUTHEY: Do you have to answer it?

HAY: No

SGT SOUTHEY: That’s right, okay.

HAY: Yep.

SGT SOUTHEY: And because it’s being recorded, if this was later to be played somewhere, where could that be played at?

HAY: Court.

SGT SOUTHEY: Okay, alright, you understand that. Alright, you understand the uh, the matters which um, which Detective Gerrard just raised about that we wanted to talk to you about, a uh, stolen BMW and also some drug items that were located at [INDISTINCT] Road, Wilsons Pocket, and also a uh, a lighting trailer and generator at Wilsons Pocket. You understand what we wish to talk to you about?

HAY: I’m familiar with the area.

SGT SOUTHEY:  Yep. Yep. Is there anything you’d like to say about it?

HAY: No.

SGT SOUTHEY: Okay. Alright. If we were to ask you a number of questions about it would you be prepared to answer those questions?

HAY:  Some of them.

SGT SOUTHEY: Some of them?”

7. [7]
   Counsel also drew my attention to a number of other passages at pp 6-10 of that transcript of the record of interview which formed ex 1.  They were as follows:

“SGT SOUTHEY: Okay, alright. There was a BMW which was located just up the road from there, it’s a New South Wales registered BMW. Can you tell us anything about that?

HAY:  Can you stop this for a second?

SGT SOUTHEY: Well we can’t really pause it, yeah.

HAY:  Then no.” (p 6)

…

“SGT SOUTHEY: The lighting trailer that was there.

HAY:  Mm.

SGT SOUTHEY: Can you tell us about that?  

HAY:  I’d love to, but no.

SGT SOUTHEY: Okay. And the glassware and everything that was inside, do you agree that, that uh, there is a lot of property sort of inside that shed if you’ve been down there, there’s a lot of property inside that shed?

HAY:  Yes.

SGT SOUTHEY: Do you know who owns all that property?

HAY:  Me. Not all of it, but--

SGT SOUTHEY: How--

HAY:  A lot of it.

SGT SOUTHEY: How’d that, okay, I can tell you that that property has been seized by us and is at Gympie Police Station. 

HAY:  Yep.

SGT SOUTHEY: Alright, being stored. Obviously we’d like to find out things and that, what property is yours--

HAY:  Yep.” (p 7)

…

“SGT SOUTHEY: So have you signed any sort of lease agreement or rental agreement with any person?

HAY:  No. I’m sure you’ll find a car trailer registered to my name at someone’s house, I can, yeah, you know. 

SGT SOUTHEY: So you’ve got a car trailer registered to you?

HAY:  Yep.

SGT SOUTHEY: Okay.

HAY:  Some fucking asshole’s fucking property.

SGT SOUTHEY: Yep.

HAY:  Might be able to answer a few questions on that glassware for you too.” (p 8)

…

“SGT SOUTHEY: And this was just before we spoke about it, and I said well, okay, yep--

HAY:  Yep.

SGT SOUTHEY: We want to talk to you about that because there is property there that we need to talk to you about.

HAY:  Yep.

SGT SOUTHEY: So obviously it is yours and we have a large list of that property there.

HAY:  Yep.

SGT SOUTHEY: Alright, are you prepared to go through that with us now so we can work out from there what property there is yours?” (pp 9-10)

Section 35 of the Police Responsibilities Code

8. [8]
   The argument for the applicant advanced by Mr Weston relied, in particular, on the provisions of s 35 of the Police Responsibilities Code found in schedule 10 of the Police Powers and Responsibilities Act 2000. It provides as follows:

“35 Right to remain silent not affected

1. (1)
   This section applies if a person, the person’s lawyer, or someone whose presence is required during questioning of a person indicates to the police officer questioning or intending to question the person—

1. (a)
   if questioning has not started—the person does not want to answer questions; or

2. (b)
   if questioning has started—the person does not want to answer any further questions.

2. (2)
   The police officer must clarify the person’s intention to exercise his or her right to silence by asking the person—

1. (a)
   whether the person does not want to answer any questions generally or only questions about the offence for which the person is being questioned; and

2. (b)
   if any further question was asked relating to the offence or another offence, whether the person would not answer the question.

3. (3)
   If the person confirms that he or she does not want to answer any questions, the police officer must not question or continue to question the person.

4. (4)
   However, if the person later indicates he or she is prepared to answer questions, a police officer must, before questioning or continuing to question the person, ask the person—

1. (a)
   why he or she has decided to answer questions; and

2. (b)
   if a police officer or someone else in authority has told the person to answer questions.”

9. [9]
   Mr Weston’s argument was that the police officers interviewing his client improperly ignored his negative reaction to their questions asking him whether he was happy to proceed with the interview.  He submitted that they did not follow the requirements of s 35(2) by failing to ask whether he wished to answer any questions generally or only questions about the offence for which he was being questioned and, if any further question was asked relating to the offence or another offence, whether he would not answer the question.^[1]  Mr Weston also submitted that the interviewing officers did not attempt to comply with the mandatory requirement of s 35(4) to ask why the applicant had decided to answer questions and if a police officer or someone else in authority had told him to answer them.
10. [10]
    Mr Minnery, for the prosecution, submitted that, when one read the interview as a whole and the section as a whole, there had either been conformity with s 35’s requirements or substantial compliance with it such that the interview as a whole was not unfair, nor had there been a deliberate breach of the regulation. He characterised Detective Sgt Southey’s question on p 5, whether the applicant was willing to answer a number of questions about the stolen BMW, drug items, a lighting trailer and generator located at Wilson’s Pocket, as an attempt to comply with the requirements of s 35(2), namely the police officer’s obligation to clarify the person’s intention to exercise the right to silence by reference to the potential offences for which he was being questioned.
11. [11]
    The applicant’s initial reaction to that was that he did not wish to say anything about those matters and then, when he was asked if the investigating officers were to ask a number of questions would he be prepared to answer them, he replied “some of them” and then went on in an apparent attempt to explain that by saying that he would not be putting anyone in.
12. [12]
    In context, Mr Minnery submitted the latter answer provided the information that would have been required to be sought pursuant to s 35(4), namely why the applicant had decided to answer questions.

The relevant principles

13. [13]
    In developing his argument Mr Weston relied on a passage from the reasons of Deane J in Pollard v The Queen (1992) 176 CLR 177, 201-203:

“The discretion to exclude evidence of a confessional statement on the ground that its reception would be unfair to the accused has been the subject of detailed consideration in judgments in a number of cases in this Court.^[2] It is unnecessary that I repeat what is said in those judgments. The discretion exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements. In contrast, the discretion to exclude evidence of a confessional statement on public policy grounds is but a particular application of a wider discretion which applies generally to unlawfully obtained evidence, whether confessional or ‘real’.^[3] It is convenient, for the purposes of this appeal, to make some preliminary comments about that general discretion and its application to evidence of confessional statements.

The nature and rationale of the discretion to exclude unlawfully procured evidence on the grounds of public policy were identified by Barwick CJ, with the concurrence of the other four members of the Court,^[4] in R v Ireland.^[5] In a judgment which has subsequently been accepted as representing ‘the settled law in this country’,^[6] his Honour said:^[7]

‘Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. 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.’

It is relevant to note that Barwick CJ’s reference, in the above passage, to ‘the protection of the individual from unlawful and unfair treatment’ should not be understood as merely a reference to the particular accused. That point was made by Stephen and Aickin JJ, with the concurrence of Barwick CJ, in Bunning v Cross. Their Honours said:^[8]

‘What Ireland involves is no simple question of ensuring
fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between 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. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.’

As that passage makes plain, the principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. 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. As Stephen and Aickin JJ went on to point out,^[9] there are cases in which the question of unfairness to the particular accused does not play any significant part at all. In such cases, it ‘is not fair play that is called in question ... but rather society’s right to insist that those who enforce the law themselves respect it ... A discretion exercisable according to the principles in Ireland’s Case serves this end whereas one concerned with fairness may often have little relevance to the question’.^[10] Ultimately, the question whether evidence of an incriminating statement procured by unlawful conduct on the part of investigating police should be excluded on grounds of public policy must be resolved by a balancing process. In that balancing of policy considerations, the relevance and importance of fairness or unfairness to the particular accused will depend upon the circumstances of the particular case.”^[11] (Emphasis added)

14. [14]
    His Honour’s statements were advanced as a useful summary of the relevant law, as indeed, with respect, they are.  Mr Weston emphasised in particular the reference to 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 that context, however, a subsequent passage from his Honour’s reasons also deserves attention at 203-204:

“In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an ‘isolated and merely accidental non-compliance’^[12] with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest ‘the real evil’ at which the discretion to exclude unlawfully obtained evidence is directed, namely, ‘deliberate or reckless disregard of the law by those whose duty it is to enforce it’.^[13] In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence.” (Emphasis added)

15. [15]
    An approach similar to that expressed by Deane J is also be found in Bunning v Cross (1978) 141 CLR 54, 78-80 where Stephen J and Aickin J listed a number of relevant considerations to assist in determining whether evidence should be excluded on public policy grounds.  The first was whether the conduct was deliberate in the sense of a deliberate disregard of the law.  I would not be prepared to draw that conclusion in this case on the evidence of the interview which was conducted politely and, relevantly, with a view to clarifying whether the applicant was willing to respond to some questions after he had indicated a refusal to answer questions earlier.  As I have already said, that can be seen fairly as an attempt by the officers to clarify the applicant’s intention to exercise his right to silence under s 35(2).
16. [16]
    The next material issue referred to in Bunning v Cross is whether the nature of the legality affects the cogency of the evidence so obtained.  In that context their Honours said that cogency should not generally be allowed to play a part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless.  There did not seem to me to be any intentional or reckless disregard of s 35(2) or s 35(4) in this case but, if anything, an adherence to its objects if not expressed in the precise language of the regulation.
17. [17]
    A third consideration referred to by their Honours is the ease with which the law might have been complied with in procuring the evidence in question, arguing against a deliberate “cutting of corners”.  As I have already said, in effect, what was said by the investigating officers did not have the flavour of a deliberate cutting of corners but rather was an inquiry designed to clarify the applicant’s intention to exercise his right of silence.
18. [18]
    The fourth matter discussed by their Honours was the nature of the offence charged, which is here a serious and prevalent one relating to the production of methylamphetamine “with which Australian legislatures have been much concerned in recent years” (see at 141 CLR 54 at 80).
19. [19]
    Finally their Honours in Bunning v Cross referred to the apparent intention of the legislature there narrowly to restrict the police and their power to require a motorist to attend a police station and then undergo a breathalyser test.  What one can discern from the legislative intention of s 35 is that a person’s right to remain silent is not affected but that a police officer must clarify his or her intention to exercise that right by asking the questions mandated in s 35(2) and in s 35(4) if the person being interviewed is then prepared to answer questions. 
20. [20]
    Mr Minnery also relied upon some earlier decisions of the Court of Appeal before the enactment of the regulation to the effect that the better view was that ordinarily, but by no means always, the confession should be let in unless the circumstances which brought it forth were such as to make it an unreliable piece of evidence, with the onus of showing that the circumstances in which it was obtained were so improper or unfair as to justify the exercise of a discretion to exclude it lying on the accused if the confession was otherwise admissible:  see R v Davis [1992] QCA 464 at pp 29-30 per Pincus JA.  See also R v Davidson and Moyle: ex parte the Attorney General [1995] QCA 412 at p 15.  It seems to me that the approach reflected in those decisions remains valid since the introduction of s 35 which may be seen as an attempt to clarify the circumstances surrounding a refusal and subsequent agreement to answer questions so as to enhance the fairness of the process. 

Discussion

21. [21]
    When viewed against those measures it seems to me that the conduct of the police officers here, even if it did not adhere strictly to the language used in s 35 of the regulation, can be seen as a valid attempt to clarify the applicant’s intention to exercise his right to silence and an acceptance of the reason why the applicant had, in effect, changed his mind from not wishing to say anything to being willing to answer some questions so long as he would not be putting anybody else in.  That is reflected several times later in the interview where he makes it clear that he wishes to emphasise his wife’s lack of involvement with the matters about which he was questioned.
22. [22]
    Many of the later questions in the interview relate to the identification by police of property seized at the shed inspected by them, much of which was owned by the applicant.  Mr Weston sought to characterise that questioning on the basis that it included an implied threat that the answers were required by the police officers from the applicant if he were to assert his rights in relation to the seized property.  It seemed to me, however, that they were essentially trying to identify which of the property was his as compared to property owned by other people. It was not unfair questioning in the context in which it occurred.
23. [23]
    The interview as a whole, therefore, was not unfair or performed in circumstances which involved deliberate or reckless breach of the regulation. Nor did the interview otherwise appear to be an unreliable piece of evidence.  There was no suggestion that it was forced out of the defendant or that he was overborne in any way. 

Ruling

24. [24]
    Accordingly I rule that the application to exclude the evidence of the interview conducted with the defendant on 30 November 2009 is refused.