R v Hennessy[2019] QSCPR 1

1. not using the prescribed mechanism for securing the stabilising arm; and/or

2. failing to take adequate care when using an alternate method to adequately secure the stabilising arm; and/or

3. failing to properly check that another person had adequately secured the stabilising arm for transport; and/or

4. failing to pay proper attention to the position of the stabilising arm of the amusement park ride while driving the heavy vehicle.

1. [4]
   The alternate charge, of dangerous operation of a vehicle causing death, is particularised by reference to s 328A(4)(a), as operating the vehicle dangerously, by failing to ensure the stabilising arm (or any part of it) of the amusement park ride being transported on his vehicle did not encroach into the path of other road users, by failing to do the things referred to at (a) to (d) above.

1. [5]
   There was previously an additional count 3 on the indictment, charging the applicant with the separate offence of dangerous operation of a vehicle, particularised by reference to s 328A(1) of the Code as “the defendant operated the vehicle dangerously by driving a heavy vehicle which had not been properly maintained and was in a potentially dangerous mechanical condition”. The applicant applied for an order that count 3 be severed from the indictment. That application was dealt with by Boddice J on 1 November 2018. An order was made that count 3 on the indictment be severed, on the basis there was a significant risk that the applicant would be prejudiced in his defence of counts 1 and 2, given the considerably different focus of those counts (on the means of securing the stabiliser arm) and count 3 (involving a more general allegation, of driving a vehicle which was defective). The charge the subject of count 3 has since become the subject  of a new indictment, which has been transferred to the District Court.

1. [6]
   The trial of the remaining counts 1 and 2 is scheduled to commence on 18 February 2019. The applicant applies for a ruling under s 590AA of the Code excluding from the evidence to be lead at the trial:

1. a video recording of a field interview, conducted by police officers with the applicant on the roadside in the early hours of 22 May 2016;

2. a video recording of a further interview, conducted by police officers with the applicant at the Knights Heavy Vehicle Holding Yard (where the truck and trailer had been taken and impounded) on 8 July 2016; and

3. the evidence of Simon Major, a mechanic who inspected the truck and trailer.

Field interview of 22 May 2016

1. [7]
   The ruling in respect of the field interview is sought on a number of bases, including that it was involuntary, obtained in consequence of a hope or inducement contrary to s 10 of the Criminal Law Amendment Act 1894, and obtained in circumstances of substantial non-compliance with the Police Powers and Responsibilities Act 2000 (PPRA) provisions, enlivening the discretion to exclude confessional evidence on the basis of fairness and/or public policy considerations.

1. [8]
   The collision is said to have occurred at about 8.20pm on the evening of 21 May 2016.

1. [9]
   The applicant was transporting the amusement ride from where it had been operating at a school fete earlier that day. The applicant said he heard “a large noise and a shudder … on the truck and trailer” and “a big – like, a crash”. So he stopped. He saw the car that had crashed and started to walk over to it to see if the occupants were alright. A man came up from where the car was, and told him not to go closer, as the occupant was deceased.

10. [10]
    The applicant said he went into “a bit of a state of panic” and was confused. He called his wife, and asked her to come “immediately”, “urgently”. He had never been involved in a fatal accident before. An ambulance arrived. The applicant sat in the back of the ambulance for some time. There was a civilian man there, who gave him some support. That was Mr Toward, who lived nearby and came to the scene when he heard a crash. He was the person who had first seen the deceased person in the car. He stayed with the applicant for a considerable period of time, describing him as very distressed. He left at about 11.30pm.

11. [11]
    The applicant presented as an honest, albeit at times very distressed, witness. The Crown did not contend that his evidence should not be accepted as credible or reliable.

12. [12]
    While in the ambulance, the applicant was feeling physically sick, and mentally confused. He was given Panadol and Nurofen and water. He had a blanket over his head. He was cold, scared and confused. There were uniformed police officers with him at the ambulance. The applicant said he asked the police officers for his wife numerous times. He also asked Mr Toward. He said “I kept asking for my wife, hoping that someone would – would know to get her…”. He said the uniformed officers who were there said that when she arrived, they would get someone to bring her in. When the applicant’s wife called him to say she was there, at the check point (where the road was blocked off), and they would not let her in, the applicant told the police officers. Again, they said they would make sure she comes in, or they would go and get her. That did not happen.

13. [13]
    After his phone’s battery went flat the applicant used Mr Toward’s phone to call his wife. At some stage the police told Mr Toward that was “against procedure”, so he pretended to the applicant that his phone was also flat.

14. [14]
    Whilst the applicant was still in the back of the ambulance, officer Troeger, a member of the forensic crash unit who was the lead investigator, spoke to him, and said he had some questions for the applicant; that he just wanted to get an outline of what happened. The applicant said he asked officer Troeger if he could see his wife, and that officer Troeger said, effectively, that the questions would not take long, it would be about 45 minutes, and then he could see his wife. At no stage did officer Troeger advise the applicant that he had a right to contact a family member or relative, to be present during the questioning, or that he had a right to contact a lawyer.

15. [15]
    After sitting in the back of the ambulance, the applicant was moved to a police car. Some time after that, he was interviewed by officer Troeger and others. That commenced at 12.10am, almost four hours after the incident had occurred. He had not eaten since leaving the fete earlier that evening.

16. [16]
    The applicant said he kept telling the police officers that he wanted his wife, and also that he wanted to go home. He did not believe that he could go home, as the whole time –  in the ambulance, in the police car, and even when he had to go to the toilet – he had a police officer standing next to him.

17. [17]
    Officer Troeger and another officer from the forensic crash unit, officer Higgins, were tasked with attending the scene of the incident on the night of 21 May. Officer Troeger arrived about 9.30 pm; officer Higgins arrived at about 9.45 pm. Officer Troeger was the lead investigator on the night, and officer Higgins was the corroborator. Officer Higgins did not speak to the applicant until the roadside interview; but as already noted officer Troeger spoke to him at the ambulance earlier.

18. [18]
    Prior to deciding to, and actually interviewing the applicant at 12.10am, officer Troeger agreed he had been on the scene for a considerable period of time, and had gone around the truck and trailer/ride combination doing the best he could to look to see what had happened, and had formed a plan in terms of aspects of that combination he wanted to show the applicant in the course of questioning him. He agreed he had formed, in his view, concern that there was negligence in terms of the method of restraint (of the outrigger) used on the night, and that responsibility for checking that the load was properly restrained most likely lay with the applicant, as the driver (2-29). He had in mind, prior to interviewing him, that the applicant may potentially be in jeopardy of a dangerous driving causing death charge.

19. [19]
    Officer Cash, from the Capalaba police station, arrived at the scene around 10.15pm. Her partner that night was officer Burnett. When they arrived, officer Burnett walked to the truck (I infer, the truck driven by the applicant). Officer Cash took over traffic control, at one of the points where the road was closed. Her role was to stop traffic going into the area where the accident had occurred. She recalls that at around 11pm a woman drove up, and told her she was the wife of the driver of the truck involved in the accident. Officer Cash told her she wasn’t allowed to drive any further. The woman drove away, and then returned a while later with a male person. That person spoke to her, and identified himself as the father of the driver of the truck. She told him that he would have to wait. In her statement, officer Cash said “on advice from Forensic Crash Unit, I told the man that the driver of the truck would be busy for about an hour more, and he would then be able to speak with him”. In her evidence before me, officer Cash said she recalled this advice was received over the phone, from her partner, officer Burnett (whom it is apparent, from the recording of the field interview, was with the forensic crash unit officers). She said she recalled specifically mentioning, in her conversation with Burnett, that the truck driver’s wife and father were there. She said “I told them who was there.  I just assumed – like, you mentioned the rights [to have a family member present for questioning etc]. I just assumed if they were arriving for that purpose that I’d be told to let them in”.

20. [20]
    No statement was taken from officer Burnett as part of the investigation. In fact, neither officer Troeger nor officer Higgins could remember who he was, or why he was there. They accepted that he was there, however, because he identifies himself at the start of the roadside interview.

21. [21]
    Officer Cash said that about 40 minutes later, a man wrapped in a white blanket (who I infer is the applicant, given that he was wrapped in a white blanket during the field interview) walked over to the car with the man and the woman, and they drove away. The field interview lasts for 14 minutes – from 12.10am to 12.24am. The evidence is that after the interview concluded, the applicant was permitted to go to his wife. On the basis of Officer Cash’s evidence, the advice from the forensic crash unit, preventing the applicant from seeing or speaking to his wife and his father, was given before the interview started.

22. [22]
    When asked why he did the field interview, the applicant said he “felt pressured into doing it”. Not being in this position before, he “didn’t know what was expected of me”, “and I just wanted to get it over and done with so I could go home. I wanted to see my wife. My wife was just there, and I couldn’t see her, and I just wanted to go home”. He said “I wanted my wife”, “I kept telling them I wanted my wife”, and he believed “the sooner the interview was done, the sooner I’d get to go see my wife”. The applicant also said he felt compelled, that he had to do it (the field interview), in order to leave.

23. [23]
    I have watched the video recording of the roadside field interview, with the benefit of an agreed transcript. In addition to the applicant, present during the interview were officer Troeger and officer Higgins; two further police officers, officer Burnett (from the Capalaba police station) and an officer Sturdy (or Sturding) (from Cleveland scenes of crime); as well as Mr Underwood, a workplace health and safety investigator.

24. [24]
    As already noted, the interview commenced at 12.10am. At the start, officer Troeger gives the applicant a caution about his right to remain silent, as follows:

“OK Chris as I was saying mate before we continue before I ask you any questions I must tell you, you have the right to remain silent. This means that you do not have to answer anything or answer any question or make any statement unless you wish to do so. However, if you do say something or make any statement it may be later used in evidence.”

25. [25]
    He asks if the applicant understands this warning. The applicant pauses, and says “yea I…”, before being interrupted by the officer (p 2). The applicant then says:

“I’m a bit worried about making a statement because I’m tired and, I’m just, I’m stressed out, I’m not feeling good. You know but I want to help you in your investigation.”

26. [26]
    Officer Troeger reassures him, saying:

“TROEGER: Look as I explained before you’re not making a formal statement here.

HENNESSY: Yea

TROEGER: OK we just want to get a version from you of what’s occurred.

HENNESSY: Ok.

TROEGER:And I’ll give you an opportunity down  the  track  to  participate in a formal identification [he meant to say interview] at the police station. This is purely just an on scene run through of what’s happened.

HENNESSY: Yep.

TROEGER:OK and once we’ve done this to explain what’s happened  then we can proceed and you can move one. Are you ok to continue?

HENNESSY: Well, I’m going to have to be aren’t I?” (pp 2-3)

27. [27]
    As to that last statement, in his evidence before me, the applicant said he felt compelled, that he had to do it; that he “didn’t know that there was an option of me not doing it”, in order for him to leave.

28. [28]
    It was not disputed that prior to questioning the applicant the police officers:

1. did not inform him:

1. that he had a right to telephone or speak to a friend or relative, and ask the person to be present during questioning, and provide facilities for him to be able to do this (s 418(1)(a) and 419 of the PPRA); and

2. that he had a right to telephone or speak to a lawyer, and try to arrange for the lawyer to be present during questioning, and provide facilities for him to be able to do this (s 418(1)(b) and 419 of the PPRA); and

3. that the police were required to delay the questioning for a reasonable time to allow him to speak to a friend, relative or lawyer (s 418(2) and (3)); and

2. did not caution him in accordance with the responsibilities code^[2] (s 431):

1. in accordance with regulation 22, by telling him that they wished to question him about the offence they then had in mind, and telling him “do you understand that you are not under arrest and you do not have to come with me”; and

2. in accordance with regulation 23 – as to the right to communicate with a friend, relative or lawyer.

29. [29]
    It was also not disputed that during the questioning, when the applicant said things to indicate he did not want to answer further questions, the police officers did not clarify his intention to exercise his right to silence, as required by regulation 24(2).

30. [30]
    There was no suggestion that any of the circumstances in s 441 (such as a risk of evidence being concealed, fabricated or destroyed; or urgency), excluding the operation of provisions such as ss 418 and 419, applied.

31. [31]
    The questioning of the applicant continued, with questions ranging from describing the Hurricane ride and what it does, how long he has driven the truck, where he was earlier in the evening, what the events were leading up to the incident, describing the stabilising arm (or outrigger) and what it does, and how it was secured. After some questions about how the strap is tied off, the applicant says (p 6):

“Look I’m under a lot of stress and I feel like you’re trying to get me to say something.”

32. [32]
    The questions continue, including how the outriggers were secured, and who had done it, and whether there was some other system (involving a pin) used previously. The questions then move on to what training the applicant has received in relation to securing the outriggers, and pointing out various things on the side of the trailer/ride, and asking the applicant why he thinks they are there. At this point (p 9), the applicant says:

“Look I’m stressed out and I feel like you want to put me in saying something I don’t want to say and put myself in to be victimised. I just I’m stressed out and I’m, I, I’m tired, I want to go home.”

33. [33]
    Officer Troeger then says “So you want to terminate this interview?” and the applicant says “I would like to terminate the interview. I don’t know. I want to help you but I feel you’re just putting the blame on me.”

34. [34]
    There is a short pause, and officer Higgins simply continues to question the applicant, saying “Would you like to just tell us what happened when you left?” (ie when he left the fete).

35. [35]
    The officers continue to question the applicant, about what roads he took, and how long he had been driving the truck, with that particular ride, and then to ask him about the condition of the cabin of the truck, and who he works for, what school the fete was at, whether he checked the straps before he left, how he did that, and who the applicant thinks is responsible for the straps.

36. [36]
    At that point, the applicant says (p 12):

“I don’t know. I don’t want to take blame for it. I’m stressed out, I just want to go home. Right.”

37. [37]
    The officers at this point seem prepared to discontinue the questioning, and the following exchange takes place (pp 12-13):

“TROEGER: Ok Chris mate has everything you told us this evening the truth?

HENNESSY: Well I don’t, I’ve told you what you’ve asked me.

TROEGER: Ok all right. Ok. Have I um, have you been compelled to participate in this interview at all?

HENNESSY: What do you mean?

TROEGER: Have you been offered any inducement or promise to participate in this interview there?

HENNESSY: Promise?

HIGGINS: Have we offered you a 6-pack of beer or.

HENNESSY: No you haven’t, no.

UI: Have you been forced to participate in this interview?

HENNESSY:No. I feel pressured like I’ve been pressured but I’m just trying to help. I know it’s a serious accident and I’m just trying to help.

TROEGER:Ok so you’re happy you’ve done, that you’ve participated  on your own free will?

HENNESSY:Well I would have rather do it tomorrow when I’ve got a straight head but I just want to go home.

TROEGER:Ok mate. Mate.

HENNESSY:You know you said it would be 45 minutes before I would  be able to see my wife, my wife hasn’t been able to come up and see me.

TROEGER:Ok that’s fine, ok mate the time now to be 0024 hours on Sunday the 22nd of May 2016. Nothing further.”

38. [38]
    The applicant’s evidence before me was that if, at any of the points at which he said he wanted to terminate the interview, and said he wanted to go home, he had been told that he had a right to do that, he would have taken that option and gone and seen his wife. He said he wanted to go home the whole time.

39. [39]
    Officer Troeger accepted and agreed that he was trying to get the applicant to provide him with evidence and information that he could use (2-37); that he was intent on getting the applicant to talk, as it “was pivotal … in the matter”. He was trying to find out what happened on the night and the reasons behind it – to get evidence (2-39).

40. [40]
    When the interview was finished, the applicant asked officer Troeger if he could go home, and asked him where his wife was. He said officer Troeger pointed up away from the truck and said “she’s up there”, and then a police officer took him up to see his wife. Officer Troeger said he could not recall any conversation he had with the applicant, after the recorded interview finished, but said he does not think he would have said that, because he did not know where the applicant’s wife was. However, later in his evidence, he conceded that he may have had a conversation with another police officer, before the interview began, communicating that it would be some period of time before a family member would be able to see the applicant (2-45). His evidence at the committal also supports the finding that officer Troeger knew, before commencing the roadside interview, that the applicant wanted to see his wife, and had told him that after he had done the interview he would be able to see his wife.^[3]
41. [41]
    Having regard to this evidence, the evidence of officer Cash and the applicant’s evidence, which is also supported by what the applicant said to officer Troeger at the end of the interview (about the officer having said he could see his wife in 45 minutes), I find that officer Troeger knew that the applicant’s wife was there, wanting to see him. I accept the applicant’s evidence of what officer Troeger said and did at the end of the interview, pointing him to where his wife was.

42. [42]
    The applicant’s wife and his father were both waiting at the police barricade at one end of the section of road. His wife described the applicant as distressed and crying when he first telephoned her, asking her to come to the scene straight away. She was at home with their two children, as well as a third child, a friend. It was after 8.30pm, and she bundled all the children into the car so that she could go to him. She recalled receiving quite a few (between 5 and 10) phone calls from the applicant after the initial call, and described him as being frantic. She went to one end of the road which was blocked off, told the police who she was, and was told she could not come through as it was a crime scene. She then drove around to the other end of the blocked off road.  She approached a female police officer at this point, who I infer was officer Cash, and was again told she could not go through. She waited about three hours before she could see the applicant (having arranged for someone else to pick up the children). Some time after she arrived, the applicant’s father arrived and also spoke to the female officer. The applicant’s wife thought it was about two hours after the father arrived that they saw the applicant. The applicant’s father’s evidence was to similar effect.

43. [43]
    When they finally got to see the applicant, his father described him as being in a terrible state, very overcome emotionally and in a dishevelled state; he was very pale, like he was in shock. His wife described him as appearing “traumatised”, “he just looked broken”, and in shock.

44. [44]
    Each of officer Troeger and officer Higgins confirmed, in their evidence before me, that by the time the roadside interview of the applicant had commenced, the applicant was a suspect in the commission of an offence, possibly dangerous operation of a vehicle causing death. Officer Higgins agreed that meant they needed to comply with the PPRA provisions, including the regulations, about interviewing suspects. Officer Troeger ultimately agreed with this also, although initially sought to distinguish a “field interview” from an “interview at the station”, where you are able to “prepare and get all your facts together”. But in relation to failing to give the caution of a family member, relative or lawyer, officer Troeger denied that he did that deliberately, and also denied that he forgot. It is difficult to reconcile those things. For the applicant, it is submitted the officer’s conduct demonstrates at least callous disregard for the rights of the accused, if not deliberate action. The alternative conclusion is that despite 20 years of experience as a police officer, officer Troeger failed to understand the need to, and appreciate the importance of, administering these basic warnings to a person he was questioning as a suspect, because of the timing and location of the questioning.

Voluntariness

45. [45]
    The first ground on which the applicant contends the things he said are inadmissible in the trial of the charges against him is that they were obtained involuntarily, as a result of inducements held out to him by the police.

46. [46]
    The inducements relied upon are:

1. that officer Troeger told the applicant, both before and at the beginning of the field interview (2-35), that it would not be a formal interview, just a few questions to find out what had happened that night; and that he was not told he was being interviewed as a suspect, but rather that he was just helping;

2. further, in circumstances where the applicant had been asking to see his wife, and asking to go home, he was told by officer Troeger that once he had answered the few questions, he would be able to (i) see his wife, and (ii) go home.

47. [47]
    It was not the applicant’s evidence that officer Troeger expressly said to him that the applicant had to speak to him, or he could not go home; nor that the applicant had to speak to him or he would not be able to see his wife. The applicant’s evidence was that officer Troeger said to him that after he did the interview, he could go and see his wife: effectively, “as soon as we get this done, you can go and see your wife”. Officer Troeger’s evidence, including at the committal, was not inconsistent with this.

48. [48]
    It is a fundamental rule of the common law that admissions or confessional statements are not admissible in evidence against an accused upon his trial, unless they are shown to have been voluntarily made.^[4] This fundamental, imperative, rule, has been given statutory force, in s 10 of the Criminal Law Amendment Act 1894 (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 any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

49. [49]
    As Deane J observed in Cleland v The Queen (1982) 151 CLR 1 at 18, the rational basis of the principle is a combination of the potential unreliability of a confessional statement that does not satisfy the requirement of voluntariness, and the common law privilege against self-incrimination.

50. [50]
    Where voluntariness is contested on a pre-trial hearing, the onus lies on the Crown to establish on the balance of probabilities that the admissions made were voluntary before they can be received in evidence.^[5] Where there is evidence of pressure or inducement of the relevant kind, unless the court finds that those factors did not contribute to the making of the admission or confession, it must be rejected. The rejection does not depend upon the exercise of a discretion: it is required by the application of a rule of law.^[6]

51. [51]
    For an admission or confession to be voluntarily made, it must be shown to have been made in the exercise of the accused’s free choice. As Brennan J said in Collins v The Queen (1980) 31 ALR 257 at 307 “‘voluntary’ does not mean ‘volunteered’, but ‘made in the exercise of a free choice to speak or be silent’”, referring to R v Lee (1950) 82 CLR 133 at 149.

52. [52]
    As articulated by Dixon J in McDermott v The King at 511:

“If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also 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 and the inducement has not been removed before the statement is made… The expression ‘person in authority’ includes officers of police and the like, the prosecutor and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority…”

53. [53]
    In Collins v The Queen at 307, Brennan J said:

“So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. 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. 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.”

54. [54]
    Brennan J noted “the importance of ascertaining all of the facts which may bear upon the confessionalist’s state of mind” and the importance of a “practical common sense assessment of the effect of those facts upon his mind”, observing at 308 that:

“An assessment must be made of the effect of the verbal and non-verbal conduct of the police officer (or other person in authority) upon the will of the confessionalist in the circumstances in which the confession is made. If the evidence does not show that the confession was made in the exercise of a free choice by the confessionalist to make it, the confession is inadmissible.”

55. [55]
    As to what may amount to an inducement, Atkinson J said in R v Tietie and Wong-Kee [2011] QSC 166 at [18]-[21]:

“[18]  It has long been held that a simple caution or mere exhortation to tell the truth by a person in authority does not render a confession inadmissible. The law, however, does not treat lightly anything that could be construed as an inducement held out by a person in authority such as a police officer. In the Queensland appellate decision of R v Plotzki [1972] Qd R 379 Matthews J at 384 said:

‘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.’

19. [19]
    Several decisions deal with the issue of inducements by police officers and other persons in authority. One of the earliest Australian cases to consider what constituted an inducement or promise by a person in authority was the Queensland decision of McNamara v Edwards [1907] St R Qd 9. There, it was held that a statement by a police officer to a defendant that ‘any statement made would be for his benefit’ was a promise which would render the statement inadmissible. Although the court was ultimately satisfied that no such statement had been made by the police officer, the decision sheds light on the meaning of an inducement or promise.

20. [20]
    A defendant’s confessional statement was excluded in R v Bate (1871) 11 Cox CC 686 after the defendant was told by a police officer that ‘it might be better for you to tell the truth and not a lie’. In a similar vein in R v Beere [1965] Qd R 370, a statement by a policeman that it would be ‘better’ for the accused to tell the truth was held to be an inducement, rendering the subsequent confession inadmissible. A confession was excluded on the basis that it was involuntary in R v Doherty (1874) 13 Cox CC 23 where the defendant was told that ‘it is better for you to tell the truth, and not put people to the extremities you are doing.’ However, it was held by the Court of Criminal Appeal in R v Beble [1979] Qd R 278 by Hoare J at 285:

‘There is nothing of which I am aware in any of the authorities which bind me to suggest that it is in any way improper for an investigating officer to point out to a suspect that some of his answers to questions in relation to the crime are, or appear to be, incorrect, thereby allowing the suspect further opportunity to explain any matters which appear to throw suspicion on him.’

21. [21]
    Although these examples may provide guidance, the principle of voluntariness is ‘not limited by any category of inducements that may prevail over a man’s will.’”^[7]

56. [56]
    The Crown accepted that the three matters referred to above could be construed as inducements. However, the Crown argued that those inducements had not overborne the will of the applicant, affecting the exercise of his free choice to speak or stay silent. The Crown contended that the applicant participated in the interview voluntarily because of his desire to help the police with their investigation.

57. [57]
    It is clear, both from what the applicant said during the interview, and in his evidence before me, that he did want to help. However, I do not accept that was the motivating force behind the applicant’s participation in the questioning process which took place in the early hours of 22 May 2016. Having regard to all the circumstances, it is my assessment, and I find, that it was the inducements held out to the applicant by the police which were the primary factors, operating on his mind, in answering the questions put to him by the police.

58. [58]
    The circumstances, having regard to the evidence which I have referred to above, are as follows. The applicant was in a state of emotional distress and shock, as a consequence of the incident. He had never been involved in a fatal accident before. He described feeling cold, scared, nervous and unsure. He wanted his wife to be there with him. He had called her and asked her to come to the scene urgently. He called her numerous times. He told the police officers who were with him, and Mr Toward, that he wanted to see his wife. Although he was told by these officers that, once his wife arrived, she would be able to see him, that did not happen. Rather, she was kept outside the barrier, where the road was blocked off, for some three hours. As I have found above, the police officers, including officer Troeger, were aware of her presence, and of his requests to see her.

59. [59]
    He was effectively, if not expressly, detained by the police from the time of their arrival at the scene up until he was allowed to leave, after the roadside interview. Although communicating that he wanted to see his wife, and wanted to go home, he at no time felt he was free to leave, as there was a police officer beside him at all times, including when he needed to go to the toilet.

60. [60]
    Prior to commencing the questioning, officer Troeger down-played the purpose of the roadside interview, by failing to inform the applicant that he was being questioned as a suspect in relation to the commission of a serious criminal offence and by telling the applicant that it would not be a “formal” statement, just a few questions; and further induced the applicant to speak with him by saying that, after he had done so, he would be able to see his wife and go home.

61. [61]
    The questioning did not commence until 12.10am, almost four hours after the tragic incident had occurred. The applicant’s emotional and mental state was described by Mr Toward, earlier in the evening, as distressed; and by his wife and his father, once they were able to see him after the interview, as being in a terrible state, very overcome emotionally and in a dishevelled state; “traumatised”, “broken” and looking like he was in shock.

62. [62]
    Other than referring to the right to silence, the police officers did not advise the applicant of his right to contact a family member or relative, and have them present during any questioning, or his right to contact a lawyer. The lawfulness of this omission is addressed in detail below, in considering the fairness discretion. Whether or not the failure to give these additional cautions was unlawful and improper conduct on the part of the police (as I find below) it is relevant as part of the circumstances to consider in determining the voluntariness of any admissions the applicant made in the early hours of 22 May. Particularly where, as I have found, the police were aware that the applicant’s wife, and then his father, were there, on the scene, waiting to provide him with support; and the applicant had been asking, for some hours, to see his wife; the fact that he was prevented from doing so, and that the police proceeded to question a person in his circumstances, distressed and in shock, after keeping him at the scene for almost four hours, is relevant to consideration of the impact on him, of the promise (inducement) that once he had answered their questions, he could see his wife and go home. As I have found above, the evidence supports the finding that the police made a promise, or held out the inducement to the applicant, that once he had answered the police officers’ questions, he could see his wife.

63. [63]
    At the very beginning of the field interview, the applicant tried to tell the police that he was not feeling good; that he was stressed out and worried about making a statement. Rather than explaining his rights, and that he was not obliged to speak to the police or make any statement, officer Troeger again told him “you’re not making a formal statement here”, “we just want to get a version from you of what’s occurred”, and told him he would have an opportunity down the track to participate in a formal interview, saying “this is purely just an on scene run through of what’s happened”. This again under-stated, indeed misrepresented, what was actually happening, which was the questioning of the applicant, who was then a suspect in the commission of, at least, dangerous operation of a vehicle causing death, with a view to gathering evidence to support such a charge.

64. [64]
    The video-recording also demonstrates the making of the promise, or inducement, by officer Troeger to the applicant, that once he had done that, “to explain what’s happened”, “you can move on” – that is, you can go home. That the applicant felt he had no choice was made plain when he was asked “are you ok to continue?” and he said “I’m going to have to be aren’t I?”

65. [65]
    At a number of points during the course of the interview, the applicant says things to indicate that he is feeling stressed and pressured. The officers’ response to that is to continue questioning him. Even when he expressly says that he wants to terminate the interview, the questions continue. Without formally conceding anything, the Crown did accept that perhaps at that point, it might be found anything further was not voluntary.

66. [66]
    The Crown also relied on the applicant’s answers to the questions put to him at the end of the interview, about whether he had been offered any inducement or promise to participate in the interview. That is an equally troubling part of the interview. At two points the applicant questions what the police mean: first, when asked whether he has been compelled to participate in the interview, he says “what do you mean?”, and then when he is asked whether he has been offered any inducement or promise, he asks “promise?”. The answer, or explanation given, is officer Higgins asking “have we offered you a 6-pack of beer”. He answers that by saying no, they have not. Another officer (unidentified) adds, “have you been forced to participate in this interview?”, at which point the applicant says “No. I feel pressured like I’ve been pressured but I’m just trying to help. I know it’s a serious accident and I’m just trying to help.” These answers do not support the Crown’s argument of voluntariness. On the contrary, they are consistent with what the applicant was trying to tell the police during the course of the interview, and with the argument on this application, as to the impact on him of the promises, or inducements, held out to him by the police.

67. [67]
    I am not persuaded that the inducements did not contribute to the making of the admissions. I find that the interview was conducted in circumstances where the will of the applicant, to exercise his free choice whether to speak or stay silent, was overborne by the conduct of the police officers, both in terms of what they did say, namely, that this was not a formal interview, and that once he had answered their few questions he would be able to see his wife and go home; and by what they did not say, which was to explain to him clearly that he was considered a suspect in the commission of a serious criminal offence, and to explain to him clearly his rights (to silence, to have a family member or relative present, and to speak to a lawyer), both at the start of the roadside interview, and at the various intervals during it when he tried to make his stress and discomfort known to them.

68. [68]
    Although the applicant’s wish to help the police, in the circumstances of a tragic incident, may well have been a part of the reason for him participating in the interview, on the evidence before me, I find that his will was overborne by the inducements held out by the police officers. The prosecution have not discharged the onus of establishing that any admissions made by the applicant, in the course of the roadside interview on 22 May 2016, were made voluntarily. They are therefore inadmissible.

69. [69]
    The applicant also relied more broadly on what is sometimes referred to as the “basal voluntariness” rule, as distinct from the inducement rule.^[8] That is, even if it were found there was no operative inducement, the applicant submitted that any admissions made in the field interview should be found to be involuntary in any event, having regard to the circumstances, including the misrepresentation of the nature of the exercise (not a formal interview) and the persistent importuning of the applicant by the police in the course of the interview itself. In the circumstances of this case, I consider this is more appropriately dealt with under the discretion, next discussed.^[9]

Discretion to exclude

70. [70]
    If, contrary to my conclusion, the admissions were made voluntarily, in the sense that the applicant’s will was not overborne by the acts and omissions of the police officers, for the following reasons I would rule them inadmissible in the exercise of the discretion conferred on the court to exclude such evidence as a matter of fairness.

71. [71]
    It is for the applicant to establish facts justifying the exercise of the discretion to exclude the evidence.^[10]

72. [72]
    The discretionary principles according to which a trial judge may exclude evidence of a voluntary confession cover three classes of case, summarised in R v Swaffield (1998) 192 CLR 159 at 189 [52]:

1. The first is a case where it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person.

2. The second focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement in to evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest.^[11]
3. The third focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice.

Fairness discretion

73. [73]
    In R v Lee (1950) 82 CLR 133, in the course of discussion of the rule that allows a court a discretion to reject evidence of statements voluntarily made to police officers, the Court said (at 150-151):

“The only circumstance which has been suggested as calling for an exercise of the discretion is the use of ‘improper’ or ‘unfair’ methods by police officers in interrogating suspected persons or persons in custody. It was with such cases in mind that Latham CJ in McDermott v The King said that the trial judge had ‘a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him’.^[12] In the same case Dixon J said: -- ‘In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused’.^[13] In our opinion the rule is fully and adequately stated in those two passages. What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions.”^[14]

74. [74]
    The purpose of the discretion is the protection of the rights and privileges of the accused, including procedural rights. It is relevant to consider the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned.^[15] As Brennan J observed in Duke v The Queen (1989) 180 CLR 508 at 513, “[t]he unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted”.^[16]
75. [75]
    Compliance, or otherwise, with the provisions of the PPRA is relevant, but not determinative.^[17] As Keane JA (as his Honour then was) observed in R v LR [2006] 1 Qd R 435 at [51], the PPRA provisions do not purport to govern the admissibility of evidence, but the authorities suggest that these provisions are to be “regarded as a yardstick against which issues of unfairness (and impropriety) may be measured”.^[18]

76. [76]
    In this case, there was no dispute about the fact that the police officers did not inform the applicant of his rights under ss 418 and 419 of the PPRA, nor caution the applicant as required by regulations 22, 23 and 24 of the regulation.

77. [77]
    However, there was a substantial dispute about whether any of those provisions applied. The Crown contended that they did not, having regard to s 415(2) and s 56 of the PPRA.

78. [78]
    Chapter 15 of the PPRA is headed “powers and responsibilities relating to investigations and questioning for indictable offences”. Section 397 provides:

“Right to remain silent not affected

Nothing in this chapter affects the right of a person to refuse to answer questions, unless required to answer the questions by or under an Act.”

79. [79]
    Part 3 of chapter 15 contains “safeguards ensuring rights of and fairness to persons questioned for indictable offences”. Section 415 states when part 3 applies to a person, as follows:

“415  When does this part apply to a person

1. This part applies to a person (relevant person) if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.

2. However, this part does not apply to a person only if the police officer is exercising any of the following powers –

1. power conferred under any Act or law to detain the person for a search;

2. power conferred under any Act to require the person to give information or answer questions.

3. Also, nothing in this part prevents a police officer exercising a power under chapter 18A,^[19] including under the Road Use Management Act, section 80, as it applies under the chapter.

80. [80]
    As already discussed above, the evidence of the two investigating officers, Troeger and Higgins, was that at the time of the roadside field interview, the applicant was in their company for the purpose of being questioned as a suspect about his involvement in the commission of an indictable offence, (at least) dangerous operation of a vehicle causing death. They knew that the applicant was the driver of the truck; and had spent some hours going around the truck and trailer combination, looking at it, taking photographs; they knew that the stabiliser arm having come dislodged was what caused the collision with the oncoming vehicle, resulting in the death of the driver. They knew then that there was a possibility of a charge of dangerous operation of a vehicle causing death being brought against the applicant as the driver of the truck.

81. [81]
    However, the argument for the Crown is that, having regard to s 56 of the PPRA, the effect of s 415(2) is that part 3 did not apply to the applicant at that time.

82. [82]
    Section 56 is part of chapter 3 of the PPRA, which contains powers relating to vehicles and traffic. The chapter contains provisions conferring powers on the police to make inquiries, investigations, inspections, examinations or tests for the purpose of establishing whether or not a contravention of the Road Use Management Act or the Heavy Vehicle National Law (Queensland)^[20] has been committed (s 54); to require information which will identify or help identify the person who was in control of a vehicle when a suspected contravention of those laws occurred, from specified persons including the owner of the vehicle (s 55); the further power to make inquiries in relation to a relevant vehicle incident (s 56); a limited power of entry, for the purposes of ss 54- 56 (s 57);^[21] power to require a person to produce their driver licence in particular circumstances (s 58); power to give a driver of a vehicle, a passenger or a pedestrian a direction the police officer considers necessary for the safe and effective regulation of traffic on the road (s 59); power to stop a vehicle for particular purposes, such as monitoring or enforcing a liquor provision (s 60) or to require a vehicle to be moved (s 61), and to require the person in control to remain where the vehicle is (s 62); power to inspect vehicles (s 63); or require them to be inspected (s 65); and to enter vehicles for particular purposes other than inspection (s 64); power to prohibit the use of a vehicle, if considered unsafe or defective (s 66); power to prohibit a person from driving, if the officer reasonably suspects the person would contravene the Road Use Management Act by driving (s 67); and power to require a person to give the officer reasonable help to enable them to effectively exercise their powers (for example, by opening the bonnet to enable the engine to be inspected) (s 68).

83. [83]
    Section 56 provides:

“56 Additional power of inquiry for relevant vehicleincidents

1. It is lawful for a police officer to make any reasonably necessary inquiry, investigation, inspection, examination or test –

1. to obtain information about a vehicle, train, tram, animal or other property involved in a relevant vehicle incident; or

2. to obtain information about the cause of a relevant vehicle incident and the circumstances in which it happened.

2. Also, it is lawful for a police officer to make any reasonably necessary inquiry or investigation to obtain information about a person involved in a relevant vehicle incident.

3. For subsection (1) or (2), a police officer may require a person to answer any question put to the person by the police officer or provide information relevant to the incident.

4. A person who is required by a police officer to provide any information relevant to the incident must not provide any information the person knows to be false.

Maximum penalty for subsection (4) – 40 penalty units or 6 months imprisonment.”^[22]

84. [84]
    The provisions of chapter 3, including s 56, can be seen to be related to safety, and the enforcement and regulation of legislation relating to vehicles and road use.

85. [85]
    Section 791 applies where a requirement or direction to answer is given under s 56(3). By s 791(2), it is an offence to contravene such a requirement or direction, unless the person has a reasonable excuse. Under s 791(4), unless otherwise expressly provided, it is a reasonable excuse for a person not to comply with a requirement or direction to give information if giving the information would tend to incriminate the person.

86. [86]
    For the purposes of s 56, a “relevant vehicle incident”, as defined in schedule 6, means, relevantly, an incident involving a vehicle on a road in which death or injury was caused to a person. The incident on the evening of 21 May was clearly within this definition.

87. [87]
    The Crown contends that, in questioning the applicant in the course of the roadside interview, the police officers were exercising their powers under s 56(1)(b), by making reasonably necessary inquiries to obtain information about the cause of the vehicle incident and the circumstances in which it happened. Accordingly, the Crown contends that the effect of s 415(2) is that part 3 of chapter 15 did not apply to the applicant.

88. [88]
    The applicant submits, first, that as a matter of fact the police officers were not exercising any powers under s 56 to require the applicant to give information or answer questions. The applicant submits s 415(2) does not operate merely when a police officer is exercising a s 56(1) or (2) power, for example to make inquiries about the cause of a relevant vehicle incident. The exclusion under s 415(2) only operates in circumstances where a police officer is purporting to exercise a power to require a person to give information or answer questions. There was no express evidence that either of the police officers were purporting to exercise the s 56(3) power.

89. [89]
    In so far as s 415(2) may be construed as applying to the exercise of power under s 56(1) or (2), the applicant further submits that, having regard to the use of the word “only” in s 415(2), it ought to be construed only to exclude circumstances where a police officer is exercising a power expressed in s 56(1)(a) or (b) or s 56(2), and nothing else. For example, as contended here, where the police officer is also seeking to gather evidence against a suspect for an indictable offence, the exclusion does not apply.

90. [90]
    The applicant also submits that s 56 ought to be construed as conferring a limited power only to make “reasonably necessary” inquiries etc, in relation to the particular matters referred to in s 56(1)(a), (b) and (2); that “reasonably necessary” means reasonably necessary in the circumstances, and there was no basis on which to conclude it was reasonably necessary to question the applicant in the early hours of 22 May 2016, at the scene (as opposed to some time later).

91. [91]
    As a matter of broader principle, the applicant submits s 415(2) and s 56 ought not be construed in such a way as to abrogate an accused’s right to silence, and the privilege against self-incrimination, in the absence of clear words or necessary intendment, referring to X7 v Australian Crime Commission (2013) 248 CLR 92.^[23]
92. [92]
    The objective of statutory construction is to give the words of a statutory provision the meaning which the legislature is taken to have intended them to have. The task begins and ends with the statutory text, construed in context, and within the framework of the rules of construction. The relevant context includes the statutory purpose, as the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.^[24] One of the fundamental rules of construction is a presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities.^[25]

93. [93]
    In X7 v Australian Crime Commission, Kiefel J (as her Honour then was), agreeing with the conclusions of Hayne and Bell JJ, said:

“[158] The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.

[159]Relevant to the question of legislative intention is not only the privilege of the person to refuse to answer questions which may incriminate him or her, but also a fundamental principle of the common law. The fundamental principle – that the onus of proof rests upon the prosecution – is as stated in Environment Protection Authority v Caltex Refining Co Pty Ltd, as is its companion rule – that an accused person cannot be required to testify to the commission of the offence charged. The prosecution, in the discharge of its onus, cannot compel the accused to assist it.”^[26]

94. [94]
    The purposes of the PPRA include, in s 5:

1. to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;

2. to provide powers necessary for effective modern policing and law enforcement;

3. to provide consistency in the nature and extent of the powers and responsibilities of police officers;

4. to standardise the way the powers and responsibilities of police officers are to be exercised; and

5. to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under the Act.

95. [95]
    The purposes in (b) and (e) are of particular relevance to the question of construction in this case.

96. [96]
    The PPRA expressly states, in s 7, that it is Parliament’s intention that police officers should comply with the Act in exercising powers and performing responsibilities under it.

97. [97]
    The starting point is that the fundamental safeguards set out in part 3 of chapter 15 apply and are required as a matter of fairness to be afforded to any person who is in the company of a police officer for the purpose of being questioned as a suspect about their involvement in the commission of an indictable offence.

98. [98]
    The safeguards are intended in part to ensure such a person has the capacity to, and is given the opportunity to, make a free and informed decision whether to speak or stay silent, acknowledging the importance to our accusatorial system of criminal justice, of the accused’s right to silence, and the privilege against self-incrimination.^[27] They are also designed to protect against the possibility of coerced confessions, and to ensure the reliability of what an accused may say against his or her interest.^[28]
99. [99]
    There is no intention to be discerned from the provisions of the PPRA that ss 56 and/or 415(2) are to be construed in such a way as to abrogate the fundamental right of an accused to silence, and the attendant privilege against self-incrimination. On the contrary, there are express statements in the PPRA protecting those fundamental rights of an accused person, in the presently relevant context. First, s 397 provides that nothing in chapter 15 (of which s 415 is a part) affects the right of a person to refuse to answer questions, unless required to answer the questions by or under an Act. Second, s 791(4) provides that, even where there has been a direction or requirement to answer a question, it is a reasonable excuse for a person to refuse to answer, if doing so would tend to incriminate them.

100. [100]
     As to the scope of the power conferred by s 56, in so far as it concerns questioning, s 56 permits police officers to make any “reasonably necessary” inquiry or investigation, to obtain information about, relevantly:

1. a vehicle involved in a relevant vehicle incident;

2. the cause of a relevant vehicle incident and the circumstances in which it happened; and

3. a person involved in a relevant vehicle incident.

101. [101]
     The word “necessary” has a somewhat imperative connotation – something is necessary if it is needed, indispensable, vital or essential.^[29] In the context of a relevant vehicle incident, the inquiries or investigations which may be “reasonably necessary” will depend on the circumstances, but will be informed by matters including the need to ensure the safety of persons involved, or other members of the public, and assessing whether other emergency services are required; as well as to ensure the police have the necessary information about who was involved, and how the incident occurred, so that they can follow up with appropriate enforcement measures. But in recognition of the fundamental rights of an accused person, there is a balance to be struck between what might be reasonably necessary for safety and effective law enforcement, and the need to ensure fairness to, and protect the rights of persons against whom police officers exercise their powers.

102. [102]
     In this case, by the time the police questioned the applicant they knew which vehicles were involved, and they knew which persons were involved. They had ascertained, from being present at the scene for some hours before questioning the applicant, what the cause of the incident was, and the circumstances in which it happened, namely, the outrigger becoming detached and colliding with the vehicle travelling in the opposite direction.

103. [103]
     In those circumstances, it is difficult to see what inquiries or investigations were “reasonably necessary” to be carried out, at the scene, in the early hours of 22 May 2016, by directing questions to the applicant in a recorded interview.

104. [104]
     At the committal hearing, officer Troeger said he considered there was a need to question the applicant on the night, “in situ”, because whilst the truck was “in situ”, “it is pristine”, “there can be no allegations that police have tampered with the restraint system”. He explained that the outrigger had to be removed prior to the truck and trailer being taken away from the scene, and said “I would never have that opportunity for him to see the bent outrigger on the truck ever again”.^[30] As counsel for the applicant submitted, concerns of this kind could readily have been addressed without the need for extensive questioning of the applicant at the scene (by photographs, videos, and even video with the applicant present showing him the position of the outrigger in situ).

105. [105]
     The video recording of the roadside interview demonstrates that the questions put to the applicant went far beyond the particular matters referred to in s 56(1)(a) and (b) and (2), which as I have said the police already knew before they commenced the interview. The questions were directed to how long the applicant had been driving the truck for, what the events leading up to the incident were, how the outrigger was restrained, who had done that, whether the applicant had checked the straps, who the applicant thought was responsible for the straps, what the use of other parts of the mechanism of the ride and trailer was, whether another system of restraint was available and previously used, what training the applicant had received in relation to securing the outriggers, which roads he had driven along before the incident, the condition of the front cabin of the truck, including the ignition and how he started the truck, and why the truck had a Victorian registration.

106. [106]
     As the police officers acknowledged, in their evidence to the court, their purpose, in interviewing the applicant, was to obtain evidence, which may be used to support the charge already within their contemplation, of dangerous operation of a vehicle causing death. That is apparent from the range of questions put to him.

107. [107]
     That is not the purpose of s 56. Although s 56(1)(b) refers to obtaining information about the cause of a relevant vehicle incident and the circumstances in which it happened, such inquiries or investigations as are authorised by s 56 are only those which are “reasonably necessary” in the circumstances, consistent with the purpose of the provision as discussed above. The questions put to the applicant here went beyond what could be said to be “reasonably necessary” inquiry about the cause of the incident, and the circumstances in which it occurred, for the purposes of s 56.

108. [108]
     Of course, the police can ask questions without an express provision authorising them to do this. What they cannot do is compel a person to answer the questions, in the absence of a power such as in s 56(3). The scope of the power to compel a person to answer under s 56(3) is necessarily limited by the scope of the inquiries authorised by s 56(1) and (2).

109. [109]
     Section 415(2) is also to be construed consistently with the principle of legality. The exception or exclusion is limited to the particular circumstances referred to in the sub- section, namely, only if a police officer is exercising a power:

1. under any Act or law to detain the person for a search; or

2. conferred under any Act to require the person to give information or answer questions.

110. [110]
     So if a person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence, and the only thing the police officer is doing is exercising a power to require them to give information or answer questions, such as under s 56(3), part 3 of chapter 15 does not apply. This makes sense: if the police have a power to require a person to answer a question, the safeguards designed to ensure the person has the capacity and ability to make a free and informed choice whether to speak or stay silent give way to that extent. But if the police officer is doing anything else – relevantly, asking questions but not requiring the person to answer; asking questions which go beyond the scope of what the police officer is empowered to compel answers to; or asking questions in order to obtain evidence – the right to silence is protected.^[31]

111. [111]
     I accept that, on the evidence in this case, at the time of the roadside interview the police officers were not exercising the power conferred by s 56(3) to require the applicant to give information or answer questions. They did not articulate this in the video-recording of the roadside interview; or otherwise, on the night in question; nor in their evidence before the court on this application. Indeed, the police officer’s (albeit incomplete) caution, as to the applicant’s right to silence, at the beginning of the interview is entirely inconsistent with any suggestion that they were exercising a power to require the applicant to give information or answer questions. They were not. This is a complete answer to the Crown’s contention. The exclusion in s 415(2) does not apply, because the police were not (only, or at all) exercising a power conferred by s 56(3) to require the applicant to give information or answer questions. They were therefore required to comply with part 3 of chapter 15.

112. [112]
     The Crown invited the Court to deal with the application on the basis of an assumption that the police were [purporting to] act under this provision at the relevant time – that is, on the basis that they had the power to ask the questions, and require the applicant to answer them (even if by their words, they did not do so). Even approaching the application on that basis, for the reasons I have already given, in my view s 415(2) did not operate to exclude the application of the provisions of part 3 of chapter 15. To the extent they may have been purporting to act under s 56, the police officers did not have the power to compel the applicant to answer the questions put to him at the roadside interview under s 56(3), because the questions went beyond the limited scope of ss 56(1) and (2), both as to subject-matter and because they were not “reasonably necessary” in the circumstances. In addition, and in any event, it could not be said the police were only (purportedly) exercising such a power, because they were asking questions of a person they considered to be a suspect, in order to obtain evidence to support the criminal charge which they already had in mind at the commencement of the interview. In those circumstances also, the police were required to comply with part 3.

113. [113]
     Having regard to the circumstances outlined above in considering the issue of voluntariness, as well as the substantial failure of the police to comply with part 3 of chapter 15, in my view, if the conclusion reached above regarding voluntariness is incorrect, it is nevertheless appropriate, in the exercise of the fairness discretion, that the roadside interview in the early hours of 22 May 2016 be excluded. The applicant was denied the opportunity to make a free and informed choice about whether or not to answer the questions put to him by the police, assisted either by his wife or a lawyer. He was questioned in circumstances where he was emotionally distressed and in shock, having been kept at the scene of the incident for many hours. The fact that the police knew his wife (and then his father) was there to support him, and kept the applicant from seeing or speaking to his wife prior to questioning him, in the face of a right to speak to a friend of relative and have them present for questioning, is incomprehensible in the circumstances. There is every reason to doubt, from the circumstances on the night in question, and the things the applicant said and tried to say to the police, that he was willing and able to give a reliable account to police in the early hours of 22 May. The conduct of the police was either demonstrative of callous disregard for the rights of an accused person, or at the least egregious for demonstrating a substantial failure to appreciate at the time that the circumstances called for compliance with the safeguards in part 3. Both officer Troeger and officer Higgins are very experienced police officers, who acknowledged in their evidence to the court that they should have given the warnings. In all the circumstances, it would be unfair to the applicant to admit the evidence of the roadside interview.

114. [114]
     In the circumstances of this case, public policy considerations do not persuade me to the contrary. Although the offences charged against the applicant are undoubtedly serious, this case reveals a substantial failure to comply with the safeguards under the PPRA, designed to protect fundamental rights of an accused person. It would not have been difficult for the police officers to proceed with their investigations in a lawful and fair manner, in terms of their treatment of the applicant.

Interview at the applicant’s home on 24 May 2016

115. [115]
     Officer Troeger went to the applicant’s home two days later, on 24 May 2016. His interaction with the applicant was recorded on this day also, but it is not sought to be relied upon by the Crown at the trial. It was part of the evidence on the present application, to show the overall dealings between the police and the applicant, and the applicant’s emotional state at the time.

116. [116]
     The recording on 24 May makes for concerning listening. Officer Troeger and another officer (unidentified on the recording) arrived at the house unannounced. No one else was home with the applicant. He was on the lounge. After ringing the doorbell, and the applicant calling out “hello”, officer Troeger walked into the house. He did not wait for the applicant to open the door. At the outset, officer Troeger says “you asked, asked to see either the next day or the day after that to invite you to participate to give us a demonstration on how the actual…”. Although the officer would not accept, in cross- examination, that this was patently incorrect, on the evidence before the court it clearly was. In the early hours of 22 May 2016 the applicant had not asked the police to see him the next day to invite him to participate in a demonstration. He had said he felt pressured to participate in the interview, and he would have preferred to do it “tomorrow” when he had a straight head. Officer Troeger accepted, in cross-examination, that there was no arrangement or request from the applicant, on the night of 21/22 May, as to what would happen in the coming days.

117. [117]
     No cautions or warnings of any kind were administered. The officer said he wanted to invite the applicant to come to the holding yard “with us and you can give us a demonstration how it all operates”. The applicant said he wanted someone to be there with him. He tried to telephone someone, his dad or a friend, to come over to be with him. He said he was scared, and asked the officer “are youse taking me away?”

118. [118]
     The applicant was very distressed; he can be heard crying on the recording. The officer could clearly tell the applicant was very distressed, and said he would wait until someone arrived to be with him; he was concerned about the risk of the applicant harming himself. But even before anyone arrived to support him, the officer nevertheless proceeded to ask the applicant questions, about his mobile number, who his carrier is, whether that was the phone he had with him on the night, whether it was working etc. The officer acknowledged in evidence before me that questions of that kind are asked for the purpose of gathering evidence, for example, to ascertain whether a person was using their phone at the time of a motor vehicle incident.

119. [119]
     After the applicant’s friend arrived, officer Troeger said to him the applicant “requested that we come back another day to, for him to cooperate, we’ve just come here this morning…” Again, although the officer would not concede that was plainly incorrect, the evidence supports the finding that it was – the applicant did not request the police officers to come back another day.

120. [120]
     The applicant engaged with Lifeline in the days following the incident, and then started seeing a psychologist, Ms Isaacs. He was prescribed Valium and antidepressants by his GP. Initially, Ms Isaacs would come to the applicant’s home to see him, as he could not leave the house. Ms Isaacs saw him on 5 occasions at his home, from 31 May to 30 June 2016.^[32] On 30 June 2016 she noted continuing acute stress symptoms and noted a query to herself about potential PTSD developing. Her evidence was that it was unlikely those stress symptoms would have abated between 30 June and 8 July 2016.

8 July 2016 interview at the Knights Heavy Holding Yard

121. [121]
     The applicant did not have any direct interactions with the police from 24 May until 8 July 2016. A further recorded interview between the police and the applicant took place at the Knights holding yard, where the prime mover and trailer and ride had been taken, on 8 July 2016.

122. [122]
     By this time, in addition to a charge of dangerous operation of a vehicle causing death, a charge of manslaughter was also a possibility in officer Troeger’s mind (2-30). Officer Troeger wanted the applicant to come to the holding yard so that he could question him to gain further evidence in relation to the charges that he then had in mind (2-49), although he did not communicate this to the applicant or his solicitor.

123. [123]
     By 8 July 2016, the applicant was still under the care of his psychologist. He was also legally represented, by Sparke Helmore, with a solicitor in Sydney (Mr Kritharas) and in Brisbane (Mr Ross).

124. [124]
     The meeting on 8 July 2016 was arranged through an exchange of emails between officer Troeger and Mr Kritharas. Mr Ross said he was aware of these exchanges, although he was not copied into all of them. On 24 May 2016 Mr Kritharas sent an email to officer Troeger, advising that he acted for March Amusements Pty Ltd and the applicant, and asking that any requests for information or documents be directed to him, and asking the officer to “contact us if you like to undertake an inspection of the vehicle involved in the accident so that we can arrange for a legal representative to be present” (exhibit 6). On 6 June officer Troeger sent an email to Mr Kritharas, saying “I am seeking assistance from Hennessy in relation to the operations of the outrigger stabilisers”, and asking if this could be organised. Mr Kritharas responded, on 8 June, by saying “I assume the request for assistance with the outriggers is to conduct an inspection?”. Officer Troeger responded, on 13 June, with the subject line “outrigger practical interview”, and saying he would like to ask the applicant “a series of questions in relation to the outriggers in general”. Mr Kritharas responded on 20 June to convey his instructions that the applicant (and Luke Hennessy) requested “the inspection” take place on a particular day. Officer Troeger responded on 29 June to say he was “seeking confirmation for a practical interview” with the applicant on nominated dates. Mr Kritharas responded on 4 July, confirming that “the inspection” could take place on 8 July. Officer Troeger responded on 5 July saying “no problems” and giving the address (exhibit 7).

125. [125]
     These exchanges are equivocal. It is fair to say officer Troeger did flag that he wanted to ask the applicant questions in relation to the outriggers in general. But it is also fair to say that the solicitor repeatedly referred to an inspection, which is consistent with what Mr Ross said was his understanding of what was to occur, and the applicant’s evidence of what he was told.

126. [126]
     Mr Ross’ understanding of what was to happen on 8 July 2016 was that it was to be an inspection of the truck at the holding yard, looking at some of the features, including the outriggers, to point out the features of the truck relevant to what had happened.

127. [127]
     The applicant said the solicitor, Mr Ross, had told him the police officers wanted to do a demonstration of how the outriggers work, and had invited the applicant and his solicitor to join them. The applicant did not know then that officer Troeger had formed the view that it was very likely he would be charged with a serious criminal offence.

128. [128]
     What is unequivocal is that at no stage prior to 8 July 2016 did the police inform the applicant, or his solicitors, that he would most likely be charged with a serious criminal offence, or that they wanted to question him about such a criminal offence. This was, I find, a failure to comply with the requirement under regulation 22 of the responsibilities code, that where a police officer wants to question a person as a suspect, and approaches them when they are not at a police station or police establishment for that purpose, they are required to caution the person substantially in compliance with the following:

“I am (name and rank) of (name of police station or police establishment). I wish to question you about (briefly describe offence).

Are you prepared to come with me to (place of questioning)?

Do you understand that you are not under arrest and you do not have to come with me?”

129. [129]
     In the circumstances of this case, what regulation 22 required of officer Troeger was that he inform the applicant, by his solicitors, that he wanted to question the applicant about the offence of dangerous operation of a vehicle causing death, and possibly manslaughter, as that is what he had in mind by this time.

130. [130]
     Mr Ross acknowledged that, given the circumstances of the incident, he was aware there was always a potential for charges to be laid against the applicant. However, Mr Ross said that if he had been told by the police, prior to 8 July 2016, that they wanted to question the applicant as a suspect in the commission of a serious criminal offence, his advice to the applicant would have been different. He would have advised him not to participate in an interview.

131. [131]
     The applicant said that if he had been told that the real reason, or one of the reasons, the police wanted him to come to the holding yard was to question him because they suspected he had committed a serious offence, he would not have gone.

132. [132]
     The applicant also said if he had been told, prior to 8 July 2016, that the taped roadside interview conducted on 22 May 2016 might have involved the police not giving him his rights, he would not have gone to the 8 July interview/inspection, because he “wouldn’t have felt that I could trust the – the police and – that were – they were going to do the right thing by me on that day”.

133. [133]
     The police had not yet provided the recording of the roadside interview on 22 May 2016 to the applicant or his solicitors, before the 8 July 2016 interview.

134. [134]
     On 8 July 2016, when he went to the holding yard, the applicant was nervous and upset, anxious and stressed (“freaking out”). His wife was with him.

135. [135]
     At the beginning of the 8 July interview, officer Troeger said they were “[j]ust conducting a bit of a practical exercise with” the applicant. Mr Ross understood that to mean an “exercise that involved how the truck worked, how the ride worked, how the two things interacted together, maybe, but nothing more than that”. After administering the cautions, as to the right to silence, and the right to speak to a friend or relative or lawyer (noting that the applicant attended with his wife and his solicitor Mr Ross), officer Troeger went on to say “so basically I’ve requested our meeting here today just to give us some sort of practical understanding of how the outriggers work”.

136. [136]
     Neither of those statements by officer Troeger reflected what he really had in mind, which was to question the applicant to gain further evidence in relation to the charges that he then had in mind (2-49).

137. [137]
     Officer Troeger proceeded to ask the applicant questions about parts of the machine (the ride), in particular the outrigger, the restraint that was used on the night in question, and what other systems of restraint had previously been used. As the questions develop in relation to the latter, Mr Ross intervenes to say “I thought [we] were just going to do a demonstration of how this equipment works? Anyway…”, and officer Troeger responds “that’s right”, but proceeds to ask more questions, including to ask how a previous pin system failed. Mr Ross interjects again at that point. After an exchange about those questions, officer Troeger asks some more questions about the strapping used on the night, and asking if “this looks familiar how you normally tie off a, how you tie it off?”. The applicant says yes and then can be seen in the video to go over to the trailer/ride, and try to pull at the outrigger (the one which was still attached, on the passenger side). Officer Troeger tries to intervene in that, and then the applicant says “I’m freaking out”, and the interview is terminated. After that, the applicant went outside, he went to the ground, and was nauseous and was crying. He was distraught.

138. [138]
     The applicant applies for a ruling that answers he gave to questions put to him during the course of the “interview” on 8 July are inadmissible, on the basis that it was not voluntary and, in any event, in the exercise of the fairness discretion and/or the public policy discretion.

139. [139]
     As to the question of voluntariness, the applicant relies upon the failure to comply with regulation 22, and what is said to be a misrepresentation about the purpose of the “interview”, as a result of which it was submitted he was not exercising the free choice to participate in a process which was actually a formal interview designed to obtain evidence against him.

140. [140]
     I consider the question of the admissibility of the 8 July 2016 interview is better dealt with under the discretion. I accept that the applicant acted under a misapprehension about the purpose of the interaction with police on 8 July 2016. I also find that officer Troeger, by his words (in the emails, and spoken at the start of the interview) and his omissions, contributed to that misapprehension, by misrepresenting what was to take place. However, I am not persuaded that on that basis the applicant’s will was overborne, in the relevant sense.^[33]
141. [141]
     In calling in aid the fairness discretion, the applicant relies upon the misrepresentation of the purpose of the “interview” by the police; the failure to comply with regulation 22; the emotionally fragile state that the applicant was in; and the fact that there had been a prior interview which was not properly obtained.

142. [142]
     As already noted, the evidence is that, by the time of the 8 July 2016 interview, in addition to a charge of dangerous operation of a vehicle causing death, a charge of manslaughter was also a possibility in officer Troeger’s mind, and the officer wanted the applicant to come to the holding yard so that he could question him to gain further evidence in relation to the charges that he then had in mind. The requirement reflected in regulation 22, to inform a person whom a police officer wants to question of the nature of the offence in relation to which they are to be questioned, is not a mere matter of form. It is a substantive element of the obligation of fairness, which requires that the suspect be made aware of the true nature of the investigation, and the purpose of the proposed questioning, so that they are able to make an informed decision about whether to waive their right to silence, and in deciding how to respond to such questions.^[34]

143. [143]
     In relation to the applicant’s further submission, as to the relevance of the earlier improperly obtained admissions, upon consideration of the authorities cited in support of this proposition^[35] the principle which emerges is that admissions made during an interview, which are obtained in consequence of an (earlier) contravention or impropriety, may be excluded on the basis of unfairness. Admissions may be found to be consequential upon a former impropriety where they are in a real sense the results of the former improper conduct, are an expansion of the admissions obtained previously or result from questioning that is based upon or flows from the former questioning.^[36] In each of those cases, there was substantial contemporaneity to the interviews; in contrast to the almost six weeks which passed between the 22 May and 8 July interviews in this case.

144. [144]
     It is not necessary for present purposes to engage in a more detailed analysis of these cases. In my view, the earlier conduct is relevant, not because any admissions made in the later interview could be said to be obtained in consequence of the earlier impropriety, but because it demonstrates a pattern of behaviour, by officer Troeger in particular, and because the passage of time, and the development of the investigation, made it even more imperative by 8 July 2016 for the police officers to clearly inform the applicant of the seriousness of the charges he was facing, and the purpose of their wish to question him.

145. [145]
     Having regard to:

1. the applicant’s misapprehension about the purpose of the interaction with police on 8 July 2016, which was contributed to by officer Troeger, both in what he said in the emails, and at the commencement of the “interview”, and by what he did not say, by clearly informing the applicant, by his solicitor, that he wanted to question him in relation to a serious criminal offence; and

2. the failure to comply with what must be regarded as the most important part of the caution in regulation 22, in the present circumstances – that the police wanted to question the application in relation to a particular offence;

it is appropriate to exercise the discretion to exclude the 8 July interview from the evidence at the trial, on the basis that it would be unfair in the circumstances to use the statements the applicant made during this interview against him at the trial.

146. [146]
     Again, I do not consider public policy considerations warrant any contrary conclusion.

Mr Major’s evidence

147. [147]
     Mr Simon Major is a vehicle inspection officer with the Queensland Police Service. He has a Certificate in Engineering (Mechanical) – he is a mechanic. He has never been employed as a heavy vehicle driver, and has no experience as a heavy vehicle driver.

148. [148]
     Mr Major’s evidence comprises:

1. a “statement of inspection”, which details what Mr Major observed on an inspection of the prime mover and trailer. The focus of his inspection was on the mechanical condition of the vehicle (2-62). In this statement, Mr Major says:

1. in relation to the truck (after referring to various defects he identified):

“I am of the opinion that this truck was in a potentially dangerous mechanical condition due to the defects found with the steering assembly, and an unsatisfactory mechanical condition due to the defects found with the foundation braking system and suspension – however, these defects were not yet serious enough to have contributed to the cause of this incident. Numerous defects were found with this truck’s electrical system and both first drive axle tyres were worn to replacement level. A host of additional defects were found with this truck, and the poor condition of this vehicle as a whole is indicative of a gross lack of basic maintenance and a blasé approach to ensuring this truck is fit for purpose.”^[37]

2. in relation to the ride / trailer combination (after referring to various defects he identified):

“I am of the opinion that this Heavy Trailer was in a potentially dangerous mechanical condition at the time of my inspection due to all foundation brake assemblies requiring adjustment. The wheel bearings require adjustment which is unsatisfactory. Various exterior lams were inoperative. These defects and the additional defects found is again indicative of a gross lack of vehicle maintenance to these areas”.^[38]

3. Mr Major’s evidence is that, having carried out a thorough inspection of both the prime mover and the trailer, there was nothing found with those vehicles that caused or contributed to the incident on 21 May 2016 (2-62); and

2. a further statement, in response to a request from officer Troeger, in which Mr Major expresses his opinions about:

1. which defects (identified in the earlier report) were potentially dangerous and how; and

2. the defects that would or should have been apparent to the driver of the vehicle and why.^[39]

149. [149]
     The applicant objects to the admissibility of Mr Major’s evidence on the bases that:

1. it is not relevant; and