R v McGarry[2012] QSCPR 2

SUPREME COURT OF QUEENSLAND

The application

1. [1]
   The applicant, Peter Joseph McGarry, brings an application pursuant to s 590AA of the Criminal Code to exclude all interviews and statements made by him to the Queensland police on the ground that they were not made voluntarily and/or in the exercise of fairness or public policy discretions.

2. [2]
   The application was directed to the following:

1. (a)
   Statements to Plain Clothes Constable Brice Neilson and Detective Sergeant Alissa Martin on or about 20 August 2011.

2. (b)
   Statements recorded in an electronically recorded interview on the morning of 21 August 2011.

3. (c)
   Any statements made to police during the course of the search on 21 August 2011 of premises where Mr McGarry resided.

However, the prosecution does not seek to lead the evidence referred to in (a).  The application is thus only concerned with the evidence referred to in (b) and (c) above.

Background

3. [3]
   McGarry is charged with the offences of unlawfully trafficking in the dangerous drugs methylamphetamine and ecstasy and unlawfully supplying the dangerous drug methylamphetamine.

4. [4]
   The material before the court indicates that at about 11.45 pm on 19 August 2011, police attended at the “Escape” bar in Surfers Paradise.  McGarry was approached by police as a result of the use of a drug detection dog.  McGarry produced identification.  Police told McGarry that the dog had given police an indication that he was in possession of drugs.  One of the police officers, Constable Neilson, asked McGarry if he had “anything on (him)”.  McGarry responded “no, you can search me”.  That occurred and no dangerous drugs were found.

5. [5]
   Also present on 19 August 2011 was Matthew Ramsey. According to his statement, he saw the applicant exchanging pills for money on the evening of 19 August 2011. He also saw the applicant being searched by police, after which the applicant returned to Ramsey’s table and said, “I am so lucky”. Ramsey said that later that night he approached the applicant and bought a pill off him for $25. Ramsey then went to the Surfers Paradise Police Station, where he spoke to Senior Constable Brown. He disclosed how he had obtained the pill, which he provided to the police. In Ramsey’s statement made on 23 August 2011, when he participated in an interview with Constable Neilson and Senior Constable Smith, Ramsey mentioned having personally purchased ecstasy from the applicant for around six months and that:

“Since this time, I have seen Pete at the ‘Escape’ bar on a number of occasions.  During these occasions I have personally seen ‘Pete’ deal drugs to multiple persons.  If I had to put a number on it I would say I have seen him deal 10 or 15 times over about 3 months.”

6. [6]
   On 20 August 2011 Constable Neilson again attended the “Escape” bar “in an effort to locate the [applicant]”. Senior Constable Brown spoke to Constable Neilson about the contact she had had with Ramsey. Constable Neilsen located the applicant and the following conversation took place between them about a further search.

“Police:  Peter McGarry?

Yea.

Police:  I need to have a chat with you in relation to last night but first, do you have any drugs on you at the moment?

No, you can search me, I have nothing.

Police:  Mate, are you happy to come back to the Surfers Paradise Police Station so we can conduct a search?

Yes, I have nothing on me.”

7. [7]
   As police and the applicant returned to the police station walking back from the bar, the following conversation took place:

“Police:  Mate, I am led to believe that you might have drugs down your pants?

No, I have nothing, you can search me.

Police:  But you did last night, I just didn’t find them.

I had one or two pills.”

8. [8]
   A search of the applicant was then conducted at the station. The following conversation took place:

“Police:  Why is everyone telling us that you were selling drugs last night?

I wasn’t.

Police:  We have been told that you had pills down your pants and that you were selling last night at Escape and that you sell there often.  I’ll be going back to check the CCTV footage.”

9. [9]
   The statement of Neilson then continued as follows: “The defendant then started making some admissions to his activities on Friday the 19^th of August 2011 at the Escape Bar”.  The addendum statement of Neilson stated that the admissions were to offences “of selling in the past” and that as soon as the applicant began making admissions he was placed “in an EROI where he was provided with his cautions and rights”.  As mentioned, the prosecution do not seek to rely on admissions made on 20 August 2011.

10. [10]
    A formal electronically recorded interview was then commenced at 12.25 am on 21 August 2011.

The record of interview

11. [11]
    At the commencement of the interview, Constable Neilson explained to the applicant his rights, including that he was under arrest and that he was free to leave at any time and that he was not obliged to answer any questions. In response to the question what he understood by the warning concerning his right to silence, the applicant answered:

“I don’t know, just yeah like I don’t have to say anything to youse ‘cause, yeah but I got nothing to hide so--”

12. [12]
    The applicant indicated he was happy to participate in the interview. When asked whether any threats or promises had been made to him to participate in the interview he responded: “No not really no.”

13. [13]
    Neilson raised the circumstances leading up to the interview with the applicant as follows:

Constable Neilson: “Okay. Alright um, as a result of ah, of that search we’ve had a, a conversation in relation to maybe, maybe why we’ve searched you.”

McGarry: “Yep.”

…

Constable Neilson: “And you’ve stated that you--”

McGarry: “Yeah.”

Constable Neilson: “You’re happy to speak to us, alright.”

McGarry: “Yep.”

14. [14]
    During the interview the applicant admitted to trafficking in methylamphetamine and ecstasy. He confirmed he did have drugs in his possession the previous night when searched by police and that he had been selling them on that occasion. He was not an addict and was selling the drugs for profit. He also confirmed that several of the text messages on the mobile phone seized by police were drug related. The applicant ventured that he did not sell drugs outside the night club, for example, in schools.

15. [15]
    Towards the conclusion of the interview, the applicant gave permission to the police to search his house. He agreed that he was giving permission of his own free will and that no promises or inducement had been held out to him.

16. [16]
    The police again reiterated to the applicant his right to silence, and confirmed the absence of threat or inducement:

Constable Neilson: “Terminate the interview.  Mate um, once again you were here participating in this interview o’ your own free will?”

McGarry: “Yep.”

Constable Neilson: “Okay.  You understood you weren’t under arrest?”

McGarry: “Yeah.”

Constable Neilson: “You were free to leave at any time?”

McGarry: “Yep.”

Constable Neilson: “You didn’t have to answer any of those questions or say anything?”

McGarry: “Nah.”

Constable Neilson: “Did you understand that?”

McGarry: “Yeah I did.”

Constable Neilson: “Okay. Mate do you feel threatened at the moment by Police? Oh a -, that’s, there’s a difference between feeling scared of what the outcome is but has a Police Officer threatened you at all?”

McGarry: “No.”

Constable Neilson: “Ah, promised you anything?”

McGarry: “No.”

Constable Neilson: “Or induced you to take part in this interview?”

McGarry: “No.”

Constable Neilson: “Okay. Mate are you happy with the way Police have dealt with you so far?”

McGarry: “Yep.”

Constable Neilson: “Do you have any complaints you wanna make about myself, my partner or any other member of the Queensland Police in relation to this?”

McGarry: “Nah.”

17. [17]
    There was nothing about the interview that suggested the applicant was intoxicated or other than of average intelligence, nor that he was otherwise disadvantaged.

Voluntariness

18. [18]
    It is a well established and fundamental rule of law that confessions by a defendant are not admissible unless they are shown to be made voluntarily. Where the issue of voluntariness is raised, the onus lies with the prosecution to prove, on the balance of probabilities, that the mandatory requirement of voluntariness has been satisfied: Wendo v R (1963) 109 CLR 559.

19. [19]
    In R v Swaffield 192 CLR 159 at [121], the majority stated the requirement of voluntariness by explaining that “the essential question is whether the confession has been made in the exercise of a free choice on the part of the accused.”  In McDermott v The King (1948) 76 CLR 501 at 511, Dixon J, referring to this overarching requirement, explained that if a defendant’s confession is the “result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary” and stated as “a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority” that is not removed.  This rule has statutory force in Queensland in the form of s 10 of the Criminal Law Amendment Act 1984 (Qld) which provides that:

“No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

20. [20]
    Counsel for the applicant relied on Bowen CJ’s statement in Collins v The Queen (1980) 31 ALR 257 at 258, concerning the concept of voluntariness in the context of inducements from a person in authority, that an inducement “may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority”.  Reference was also made to Brennan J’s observation (at 307) that “fear of prejudice or a hope of advantage exercised or held out by a person in authority” was not an exhaustive statement of the factors which might, by overbearing the will of an accused, render a confession inadmissible.

21. [21]
    The law does not treat lightly anything that could be construed as an inducement held out by police officer: R v Tietie and Wong-Kee [2011] QSC 166 at [18].  In R v Plotzki [1972] Qd R 379, Matthews J stated at 384:

“… when the words of a person in authority may be considered as holding out an inducement or are such as could reasonably be considered to do so, the Court will not attempt, by fine analysis or the resolution of nice questions of construction, to minimise the effect of such words.”

22. [22]
    It was submitted on behalf of the applicant that, at the point in time when he took part in the formal interview and made admissions, he had already confessed to selling drugs. That confessional statement, which was made before the recorded interview, occurred without any warnings or caution being given. It was argued that the applicant, having made admissions, was led into thinking that there was thereafter no point in observing his right to silence, especially having regard, it was said, to the misleading statements made by police which suggested that they had a wealth of evidence against the defendant already: “Why is everyone telling us that you were selling drugs last night?” and “I’ll be going back to check the CCTV footage”. In those circumstances, the recorded interview was not made voluntarily and should be excluded.

23. [23]
    Further, counsel for the applicant argued that, when considering the issue of voluntariness, the unique personal circumstances of each defendant are to be taken into account in determining whether a defendant’s will was overborne. In that regard, counsel placed reliance on Brennan J’s statement in Collins v The Queen (1980) 31 ALR 257 at 307:

“The conduct of police before and during an interrogation fashions the circumstances in which the 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.  Voluntariness is not an issue to be determined by reference to some hypothetical standard; it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.”

24. [24]
    In oral submissions, counsel for the applicant characterised the personal circumstances of the applicant in this case as being that “he was put in a position where he could well believe that the police already had all of this information available to them, but more importantly, that he had already made significant confessions to them about selling drugs.”  This was said to be apparent from the fact that the substance of the questioning in the formal interview “delves straight into [the applicant] acting on the basis that [the police] already know that he is a part of the drug scene”.  These factors, it was submitted, “powerfully influenced his decision to cooperate” because, as he said, he had “nothing to hide”, since, on his perception, he had already disclosed to police that he had been “selling”.  Counsel for the applicant therefore submitted that the conversations could be regarded as a form of duress, intimidation, pressure, or possibly an inducement.  That the applicant himself did not expressly allude to the initial conversations in that manner or that he failed to recognise them as such was not evidence to the contrary.  I am unable to accept these submissions.

25. [25]
    As stated already, the Crown accepted that the initial conversations on 20 August 2011 could not be led at trial given the absence of a proper caution and warning as to the applicant’s rights. I agree with the respondent’s submission that there was nothing in any conduct which preceded the recorded interview which amounted to an inducement. Constable Neilson’s conduct, in outlining to the applicant the general purport of the evidence implicating him, and indicating that further investigations of the CCTV footage would be conducted, did not result in the interview being made involuntarily. It is not in contest that there was an element of exaggeration in what Constable Neilson told the applicant. However, while that may be of relevance in considering exclusion on discretionary grounds, I do not consider that it can be said to result in there being an inducement so as to render the recorded interview involuntary. It is abundantly clear from the record of interview that the applicant did not identify any such matter as having a bearing on his making admissions. The proposition that the applicant felt that he had no other option than to make the recorded admissions is not borne out by what was said by the applicant in the interview. At no time did he indicate that as a factor causing him to confess. Indeed, he expressly disavowed any inducement or any participation that was not of his own free will. I am satisfied that the prosecution has discharged the onus on it of showing that the applicant’s statements made to police on 21 August 2011 were made voluntarily.

Discretionary Exclusions – Unfairness and Public Policy

26. [26]
    It remains to consider the discretionary power to exclude even voluntary admissions which have been obtained by police using improper, unfair or unlawful methods. There are two separate but related discretions which are pertinent; the fairness discretion and the public policy discretion. The defence bears the onus of establishing that the discretions should be exercised.

27. [27]
    As to the fairness discretion, in considering whether an improperly obtained admission should be excluded, the focus is on whether it would be unfair to the applicant not to do so. It is recognised that the fairness discretion may apply in circumstances where the admissions might not have been made, or not made in the same form, if the investigation had been properly conducted. 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]).

28. [28]
    In R v Williamson [2010] QCA 277, Chesterman JA said:

“In cases concerning confessions or admissions, the chief focus is on the fairness of using the admissions against their maker. See Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 at 432 per Gummow and Hayne JJ. In R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, Toohey, Gaudron and Gummow JJ observed that unreliability was a ‘touchstone’ of unfairness.  Where voluntariness is not in issue, the admissibility of confessional evidence is to be decided by reference to the reliability of the evidence and rights of the accused.  Their Honours noted (197):

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

29. [29]
    As to the public policy discretion, it was outlined by Barwick CJ in R v Ireland (1970) 126 CLR 321 at 335 as follows:

“Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence.  He [or she] 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.”

30. [30]
    The relationship between the fairness and public policy discretions was discussed by Deane J in Cleland v R (1982) 151 CLR 1 at 24:

“It follows that where it appears that a voluntary confessional statement has been procured by unlawful or improper conduct on the part of law enforcement officers, there arise two independent, but related, questions as to whether evidence of the making of the statement should be excluded in the exercise of judicial discretion.  That does not mean that there will be a need for two independent inquiries on the voir dire.  The material relevant to the exercise of both discretions will ordinarily be the same.  The unlawful or improper conduct of the law enforcement officers will ordinarily be relevant on the question of unfairness to the accused and unfairness to the accused will ordinarily be relevant on the question of the requirements of public policy.  The task of the trial judge, in such a case, will involve determining whether, on the material before him, the evidence of the voluntary confessional statement should be excluded for the reason that it would be unfair to the accused to allow it to be led or for the reason that, on balance, relevant considerations of public policy require that it should be excluded.  In discharging that task, it is permissible to take account of the existence of any room for legitimate doubt as to whether the alleged confessional statement was made or was voluntary.”

31. [31]
    It was submitted on behalf of the applicant that the applicant’s initial and unrecorded admissions to police were not made in the exercise of a free choice to speak or be silent. It was said that the applicant was misled by police that more than one person had given information about him selling drugs. The applicant was also misled by the possible suggestion that CCTV footage would hold revealing evidence, whereas CCTV footage was only available for the night of 20 August 2011 and did not reveal any incriminating behaviour by the applicant. Further, it was submitted that, at the stage when he was questioned by Constable Neilson, the police had relevant information from Ramsey. On the night of the 20^th (being the evening of the relevant conversations and electronically recorded interview), police were already in possession of the capsule Ramsey claimed he had purchased from the applicant.  Counsel contended that it was disingenuous for Constable Neilson to suggest in the addendum statement that the applicant was merely being taken back to the police station to be searched.  In those circumstances where the applicant was not warned but made admissions, a subsequent warning that he had a right to silence held little or no value.  This was because a person in his position was not likely to have an understanding of the subtleties of such matters and would have been “concerned that the sanctity of the right to silence had already been abrogated by his admissions”.

32. [32]
    The Crown submitted that insofar as reliability is a relevant consideration, the applicant’s admissions were reliable. Indeed, I note that it was not disputed by the applicant’s counsel that the admissions were other than reliable. They were made in clear terms and were supported in significant respects by Ramsey’s statement and, to a lesser extent, the telephone records.

33. [33]
    Moreover, as the prosecution argued, there was nothing misleading about what was said to the applicant concerning the police being informed that the applicant had been selling drugs – Ramsey had done so. Nor was there anything misleading about the statement that the police had been told that the applicant “had pills down [his] pants” and that he had been selling at the club and had done so often. While there was an element of exaggeration as to the extent of the information given to police, it was not disputed that that was other than inadvertent. I agree with the submissions made by the prosecution that any exaggeration was minor (as the other evidence already held did have the potential to result in an overwhelming case against the applicant). The evidence could validly be raised with the applicant and he was unlikely to have confessed due to the additional reference to more than one person implicating him in selling at the night club, given that when Neilsen said “Why is everyone telling us that you were selling drugs last night?”, the applicant’s response was that “I wasn’t” rather than confessing. There was no unfairness on this ground.

34. [34]
    The Crown contended that the difference in procedure between the unrecorded admissions as to applicant being engaged in “selling in the past” and the elaborate and formal procedures throughout the recorded interview, at which the applicant was thoroughly and carefully advised of his legal rights, must have made it readily apparent that his earlier admissions were insufficient for prosecution purposes. But additionally, the applicant never suggested his motives for confessing were based upon the futility of denying allegations because he has already confessed to them. The applicant’s submissions as to the discretionary exclusion of the evidence would have been more persuasive had the applicant given evidence that the basis on which he took part in the interview was that pressed by his counsel. I agree with the prosecution submissions that there was no unfairness to the applicant, in circumstances where he understood his right to silence, yet chose to speak and expand a great deal upon his criminal activity. Nor do I consider that the public policy discretion is engaged in a fashion which warrants the exclusion of the evidence in question. Accordingly, the application is dismissed.