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R v Jeffers and Morcom[2020] QSCPR 29

R v Jeffers and Morcom[2020] QSCPR 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jeffers and Morcom [2020] QSCPR 29

PARTIES:

R

v

Darren Christopher JEFFERS and Ryan John MORCOM

(defendants)

FILE NO/S:

871/2020

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 August 2020 – delivered ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

18 – 21 August 2020

JUDGE:

Callaghan J

ORDER:

  1. Evidence of a conversation between police and Mr Jeffers, held in the “administration area” is to be excluded from the evidence given against Mr Jeffers at any trial.
  2. Applications by Mr Jeffers for the exclusion of other conversations are dismissed.

CATCHWORDS:

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION - TO ADMIT OR EXCLUDE EVIDENCE – whether evidence amounts to “questioning” – whether evidence that failed to be recorded is admissible

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION - TO ADMIT OR EXCLUDE EVIDENCE – whether recorded evidence is possibly tainted by earlier procedural failures – whether evidence is admissible – need to record suspect’s change of mind – police awareness of regulation 24(4) of Police Powers and Responsibilities Regulation 2012 (Qld)

R v Swaffield; Pavic v R [1998] HCA 1

Smith v R [1996] 86 A Crim R 398

Evidence Act 1977 (Qld), ss 93B, 130

Police Powers and Responsibilities Act 2000 (Qld), s 422

Police Powers and Responsibilities Regulation 2012 (Qld), r 24(4)

COUNSEL:

M Gawrych for the Crown

K Hillard for Jeffers

S Lynch for Morcom

SOLICITORS:

Director of Public Prosecution (Qld)

Fisher Dore Layers for Jeffers

Phillips Lawyers for Morcom

  1. [1]
    The accused are both charged with burglary at the dwelling of and the attempted murder of Alan Kevin Black.  On the 25th of January 2018, Mr Black was attacked and seriously wounded.  One of the wounds inflicted was a cut to his throat.  In the course of a series of “representations” in the form of statements and recordings, Mr Black alleged that the two defendants were responsible for this attack and, indeed, that both inflicted wounds.  Mr Black has, since providing those representations, now passed away.
  2. [2]
    The accused Jeffers, in a series of conversations with police, made various admissions which inculpate him in the offences charged. 
  3. [3]
    Against that background, there are two applications now before me.  One is by the DPP, who seeks, pursuant to 93B of the Evidence Act 1977 (Qld), to have Mr Black’s representations, as contained in seven separate items of evidence, admitted into evidence at the trial of both accused.  This application is opposed by both accused although Mr Lynch, on behalf of Mr Morcom, has qualified his objection in a way that I need not explain for the moment.
  4. [4]
    The other application is made by Mr Jeffers, who seeks the exclusion from evidence of three conversations between himself and police.  He engaged in these on the 26th of January 2018.  It is said that his evidence was obtained following breaches of the Police Powers and Responsibilities Act 2000 (Qld) and that this enlivens my discretion to exclude those items of evidence.  It is also said that the admission of this evidence would be unfair in a way that calls for its exclusion, pursuant to section 130 of the Evidence Act.
  5. [5]
    I am prepared to deliver my decision in respect of this part of the application – that is to say, Mr Jeffers’ application – to have this evidence excluded and to do so now.  I set to one side for the moment the DPP’s application and the argument made against it. In due course I will issue some directions about the course it should take, but they need not form part of these reasons.
  6. [6]
    As I have indicated, there are three separate items of evidence upon which the Crown proposes to rely and in respect of which Mr Jeffers makes application for exclusion.  The first of the impugned conversations took place in what is called the administration area of the Nambour Police Station.  It was a conversation between Mr Jeffers and police officers to whom I shall refer as Detective Senior Constable G and Detective Senior Constable A.  This conversation was not electronically recorded but it is detailed in the statements of those detectives. 
  7. [7]
    There were two further conversations – first, what has been and will be referred to as the “knife field tape” recording, which captures a conversation that took place between 6.54 pm and 7.50 pm on 26 January 2018.  There is then the formal electronically recorded interview which took place between 8.56 pm and 10.39 pm on the same evening.  These have been played in full in the course of these proceedings.  I do not purport to rehearse nor even summarise all of the relevant contents.  But I will make certain observations that are going to be relevant to my findings. 
  8. [8]
    Nor do I apprehend a need for much by the way of any further account as to the factual background of the case.  At the risk of oversimplifying things, the accused were located the day after the attack on Mr Black. They were at the caravan in which they were both residing.  They were detained there whilst a search warrant was executed.  That process began at 3.54 pm on 26 January 2018.  It was recorded and, although it is not sought to tender the recording at any trial, it is necessary to consider some of its contents for the purposes of this application. 
  9. [9]
    At the outset of that procedure, both accused were warned by police about the right to silence and told of the right to telephone or speak to a friend or lawyer.  The invitation to do that was rejected, but it was acknowledged by Mr Jeffers that he heard the “warnings and rights.”  Mr Morcom expressed some anger at Mr Jeffers.  He raised his voice.  He accused Mr Jeffers of having no backbone.  On one view, this could be interpreted as an invitation for Jeffers to take responsibility for certain actions.
  10. [10]
    Further, Mr Morcom accused Mr Jeffers of being a “lowlife piece of shit” and claimed to be upset by people lying.  He expressed the view, in the presence of Jeffers, that people should “own up to their own fucking bullshit”.
  11. [11]
    At one point during this period Mr Jeffers insisted that someone should stop yelling at him.  It is true that no one was actually yelling at him at that time.  But, heard in context, it is apparent that he was directing this remark at Mr Morcom who had, in the preceding minutes, raised his voice on more than one occasion.  It should also be noted that, at this point, Mr Jeffers told police that he had mental health issues; that he kept going to the “psych ward”, received a needle every month and had  “schizophrenia, paranoia, fucking all that shit”.
  12. [12]
    Both accused were placed under arrest and transported to the Nambour Police Station.  During this trip, Mr Jeffers asked who had “fingered”.  Detective G, who would prove to be the police officer with whom Jeffers had most interaction, said that they would “have a chat about that”.  But Mr Jeffers insisted that he was “not talking about it”.  He said he did not want anything to do with it and that he knew what happened when you gave a statement:

It all gets twisted around

  1. [13]
    When told that he would have an opportunity to provide his version of events, he replied:

I do not give a fuck, mate …

I have done it before and fucking had it used against me …

  1. [14]
    He also told police that he had, “that much brain damage” as the result of an accident.
  2. [15]
    The next event of significance for the purposes of this application is the conversation that is said to have occurred in the “administration area” of the Nambour Police Station.  This is the first of the conversations which is the subject of the application.  Whilst other police were interviewing Mr Morcom, Mr Jeffers remained in the company of Detectives G and A.  Both of those detectives say, at this point, that Mr Jeffers volunteered:

Okay.  I am going to tell you everything.  I stabbed him.  I stabbed him to teach a lesson for poisoning me…

  1. [16]
    Detectives G and A assert that Mr Jeffers then provided an account of events in which he and Mr Morcom had visited Mr Black’s house on the night in question so that Mr Morcom could inform Mr Black that he, Morcom, was not going to pay Mr Black some money that he owed.  This was, so it was asserted, because Mr Black had attempted to poison Mr Jeffers.
  2. [17]
    Mr Jeffers then went on to provide an account in which, whilst at Mr Black’s residence, he accused Mr Black of having poisoned him.  He was unhappy with Mr Black’s failure to accept this proposition.  He then attacked Mr Black, cutting him across the neck with his knife but taking care not to use too much pressure, because he did not want to cut Mr Black’s head off.  Mr Jeffers explained that he followed Mr Black into the kitchen and stabbed him a couple of more times, taking care not to hit any major organs.  He and Mr Morcom then ran from Mr Black’s dwelling, and he – Mr Jeffers – disposed of his knife and a jacket in a creek nearby.
  3. [18]
    It is said that, during this conversation, Mr Jeffers indicated that he was happy to take police to the place where he threw the jacket and the knife.  It is also said that Mr Jeffers asked if he could be taken to the mental health unit (of the Nambour Hospital) after he had been charged.
  4. [19]
    Detectives G and A asserted, in evidence before me, that this conversation in effect took the form of a monologue and did not involve a single question being asked by them.  This is, indeed, the way it was made to appear when they subsequently made a record of it and when they included their recollection of it in their official police statements.  In A’s case, a record was made two days after the conversation.  In the case of Detective G, it was not made for almost two months.  Neither the contents nor even the fact of this conversation was ever put to Mr Jeffers and he has never adopted it nor accepted that it occurred.  As indicated, objection is taken to the evidence that would be given by the police officers of this conversation.
  5. [20]
    The next item to which objection is taken is the “knife field tape” which records the trip that was then taken by police and Mr Jeffers in order to locate and retrieve the knife and jacket.  At the outset of this recording, Mr Jeffers was reminded that the  offence that the police were investigating was one of attempted murder.  Mr Jeffers took issue with this, calling it a “load of bullshit” because he, “Never tried to kill the cunt”.  He also asserted that police had said to him, “If you can talk right it could mean the difference between attempted murder and something else”. 
  6. [21]
    To this, Detective Senior Constable G can be heard responding that it was Mr Jeffers who had previously asked why the charge of attempted murder appeared on the search warrant, and that he had told Mr Jeffers that it was the matter that he was investigating.  Mr Jeffers was also told that he had not been charged with anything at that point in time.  Mr Jeffers then asked, “How do I get the charges dropped down to lower charges?”.  He also indicated that he did not have control over himself and apologised for that.  This can be seen in context as an apology for losing his temper when expressing his view about the nature of the charge.
  7. [22]
    Mr Jeffers was then given by the detectives a full warning that incorporated his being informed that he had the right to remain silent and the right to a lawyer.  Indeed, Mr Jeffers named a well known criminal lawyer and was specifically asked whether he wanted that person present.  He rejected that invitation.  Warnings were repeated at the point when Mr Jeffers confirmed that he could take police to the location at which they would find the knife used in the attack along with a jacket of his.  He confirmed that nobody had offered him a: “downgrading of me charges or any bail or anything   no one’s offered me nothing”. 
  8. [23]
    At a point shortly thereafter, Mr Jeffers volunteered that he had forgotten about, “all this”.  That is, he asserted that when he woke up that morning, he had not recalled anything about what he described as, “stabbing Blackie”.  The police did not interrogate that statement at that time and, in fact, changed the subject by questioning Mr Jeffers about the fact that he had previously broken his hand.  He was being asked about that, and actually being asked about whether it was the hand that he wrote with when he volunteered that, not only was that in fact the case but, it was also the hand with which he had “shanked” Mr Black.
  9. [24]
    Again, police did not seize upon this remark by attempting to extract any more information about it at this point.  Mr Jeffers then spoke about his time in jail and his living arrangements.  Clearly enough he was living independently albeit without support of family or anybody, really.  Without any prompting, he expressed regret about the fact that Mr Morcom had ever come to his place.  He proceeded to give more details of the attack and the reasons behind it.  Finally, the police did pursue some follow up questions but the exchanges would have to be described as conversational in that there was no application of pressure nor was there anything in the way of importuning Mr Jeffers in order to extract information. 
  10. [25]
    Mr Jeffers proceeded to point out the location of the knife and of a jacket.  En route back to the police station he volunteered that he thought he had, “pretty good mitigating circumstances”.  He was questioned further about the circumstances of the alleged offence and made further admissions, although they were interspersed with assertions about a loss of memory.  That said, he had just taken police to the location of the knife and the jacket, so his memory did extend at least that far. 
  11. [26]
    Mr Jeffers then insisted that Mr Morcom should not be charged with anything because he had not done anything.  The account given, which I note was consistent with the account said to have been given in the administration area, was of a spontaneous loss of control that occurred after Mr Black denied poisoning Mr Jeffers.  Further Mr Jeffers repeated the assertion that it could be seen from the cut that he was not trying to kill Mr Black, an assertion that was consistent with things said earlier and subsequently. 
  12. [27]
    Another consistently repeated assertion involved the proposition that Mr Morcom had never touched Mr Black.  Mr Jeffers did, when told that he was going to Maroochydore at that point, express the concern that he would not be able to get his medication down there and informed police that he was on pain medication as well.  There is a passage of this conversation which is potentially of some significance.  Mr Jeffers said, “I wasn’t gonna, you know.  I was gonna me chances and then I thought – I thought about Ryan and I thought, fuck, I can’t let him go to fucken jail.  He was probably telling on me anyway but I don’t give a fuck.  Was he?”.
  13. [28]
    Detective Senior Constable G replied that he did not know whether Mr Morcom was “telling on” Mr Jeffers because neither he nor A was a part of that (Morcom related) investigation.  A moment after this, and inconsistently with what he had previously said about loss of memory, Mr Jeffers did say that he was sorry when he woke up that morning.  Sorry, that is, about what he had done to Mr Black.  Mr Jeffers also elaborated as to the basis upon which he could be so confident that nothing he had done was going to kill Mr Black.  This was, so he said, because he, “knew the human anatomy pretty well”, having studied it whilst he was in jail. 
  14. [29]
    The final piece of evidence which is the subject of this application is the formal interview which began at 8.56 pm.  At the outset of this interview, when informed that the investigation was into an attempted murder, Mr Jeffers insisted that he did not agree with that charge for the –  by now familiar – reason that if he had wanted to kill Mr Black he would have killed him.  He was immediately warned that he did not have to say anything and otherwise informed of his rights.  The process of warning and informing extends over about five pages of transcript.  At this early stage in the interview he did inform police that there was the potential for someone from, “the hospital” to be present whilst he was questioned and that “someone from the hospital” was going to want to treat him.  He also expressed concern that he did not know what to do.
  15. [30]
    In context, I interpret this as an expression of concern about the need for continuation of his treatment for mental health related issues.  I do not, when reading this passage, interpret it as indicating any uncertainty about the interview process.  He also again told police that he had brain damage but insisted that he could understand everything that was happening and that he was happy to continue with the interview.  Detective Senior Constable G did refer back to the period during which he and  Detective Senior Constable A and Mr Jeffers were all in the administration area of the Nambour Police Station.  He also referred to the fact that Mr Jeffers volunteered to take police to find the knife and the jacket. 
  16. [31]
    Mr Jeffers was then asked about his motivation for this action and he indicated that he had, “Thought about it.  I thought, you know, I – I have done this and I am – I am – done it on my own and someone else is – be in, you know – getting hard pressure put on them”.  He continued to insist that he was the only one who had a reason to want to hurt Mr Black and that Mr Morcom did not have any such reason.
  17. [32]
    Much of the balance of the formal interview was also by now becoming familiar.  Mr Jeffers traced the cause of all of these events to an incident in which, as he perceived it, Mr Black had tried to poison him.  This incident was described in some detail.  It involved Mr Black having made Mr Jeffers a cup of coffee which tasted a bit strange although he had explained that away at the time because he thought it might have been, “because of the speed”, that is to say, because of the presence of some amphetamine.
  18. [33]
    He repeated the proposition that he had, on the night of 25 January, confronted Mr Black about that and in the absence of a response lost his temper and attacked him - although not with an intent to kill him and, indeed, taking care not to do that.  He said that following the incident he was, “having a full on mental episode”.  He also indicated that he had been released from a mental health hospital within the last three weeks and made other references to having been held in a mental health ward for protracted periods.  The police were made aware that, along with suffering schizophrenia, Mr Jeffers had made attempts on his own life.
  19. [34]
    I will turn in a moment to the specific arguments that are made in support of the proposition that these three conversations should be excluded from evidence in the trial but at the outset observe that some of the considerations raised in this case are governed by observations made in R v Swaffield.  In particular, I refer to the passage in the judgment of Justices Toohey, Gaudron and Gummow which reads as follows:

In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned.  Where the freedom has been impugned, the Court has a discretion to reject the evidence.  In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the Court will look at all the circumstances.  Those circumstances may point to unfairness to the accused if the confession is admitted.  There may be no unfairness involved but the Court may consider that having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards.  This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.[1]

  1. [35]
    One such particular consideration arises in the case of conversations that are not – despite the ubiquitous presence of devices that are able to do so – electronically recorded.  The Police Powers and Responsibilities Act compels police to make a record of such conversations and, if it is sought to have them used in evidence, get them adopted by the person being questioned.  As I have already noted, that was not done in the case of the conversation which was said to have occurred in the administration area at the police station.
  2. [36]
    The prosecution seeks to excuse this failure first by insisting that the obligation only arises in situations where a suspect is being questioned.  Since the statements made by Mr Jeffers were, according to the evidence of the police, in effect a lengthy but unsolicited and unprompted monologue delivered in the face of their total silence, Mr Jeffers was not being “questioned” and so the relevant obligations did not arise.
  3. [37]
    I find the police evidence on this point utterly implausible.  Detective A by her own assertion was a chatty individual.  Whilst in the car on the way to the police station, and even as Mr Jeffers was then asserting the right to silence, she attempted to ask a question that was related to the alleged offence.  Having regard to the nature and content of the interviews that were subsequently recorded, there is nothing about Mr Jeffers or his speech pattern which suggests that he might have delivered a confessional soliloquy of the kind suggested.
  4. [38]
    The assertion to the contrary by Detective G was an unfortunate slip in what appeared otherwise to be an apparently honest effort made by him to relate the events of the evening.  I interpolate that it is not possible for me to make a finding as to his credibility in so far as it was said to be diminished by reference to his evidence about the location of his own recording device.  The images supplied to me do not allow me to reach a conclusion about that with any requisite degree of certainty. 
  5. [39]
    To my mind it was probably sufficient for the purposes of the PPR Act that Mr Jeffers had been arrested and was in custody as the investigation continued for it to be thought that he was, in fact, for the purposes of the Act, being questioned.  In any event, I find that Mr Jeffers must, in fact, have been questioned at least to some extent about the events at Mr Black’s residence.  Questioned, that is, when he was in the administration area of the police station.  In those circumstances, I find that the Act did have application. 
  6. [40]
    As to whether the breach of the Act could be justified, the reasons for not complying with it range from the inexcusable to the risible. If nothing else, the failure to record the conversation defied elementary common sense.  It might have been allowable for the very first information that was volunteered by Mr Jeffers to have gone unrecorded.  But once he embarked upon the exercise of telling police about his involvement in the attack on Mr Black, anyone who was concerned to ensure the reliability of any evidence to be given about those admissions ought to have started making a record of some kind.  There were plenty of options available in the circumstances - all parties were in a police station.
  7. [41]
    As it happens, there was a failure to make any such record until after two further conversations, that is to say, until after the conversation captured on the “knife field tape” and in the formal record of interview.  This created inevitable concerns about the reliability of any evidence as to what was said to have occurred in the administration area.  There was enormous potential for confusion between what was said on that occasion and what might have been said on subsequent occasions. 
  8. [42]
    In the circumstances, I find that because there was a failure to comply with the provisions of the Police Powers and Responsibilities Act, my discretion to exclude this evidence is enlivened.  The breach was completely unjustifiable and I would exclude the evidence for that reason.  I would also, because of its potential for unreliability, exclude it pursuant to section 130 of the Evidence Act.  That may not, however, be the end to the potential relevance of this evidence. 
  9. [43]
    The argument for the applicant, Jeffers, in effect extended to the proposition that I should examine the entirety of the interactions between him and police and conclude that it amounted to a sustained course of conduct which was calculated to subvert his right to silence.  The interactions in the administration area are, so the argument runs, just one episode in this exercise and the impropriety involved in it had an ongoing effect.  My attention was drawn to the case of Smith v R [1996] 86 A Crim R 398.  That was, however, a very different type of case in which it was possible to conclude that some earlier improperly obtained evidence had a continuing effect on an accused’s decision to give the statement which was finally admitted into evidence.  It will be apparent that the impropriety that I have thus far found was in the failure to record the conversation.  This is not something that had any operative effect on the mind of Mr Jeffers nor on the content of things that he subsequently said. 
  10. [44]
    I cannot find, even when considered in its entirety, that the police conduct had the characteristic that is imputed to it.  Whilst there were conversations that occurred between Mr Jeffers and police after he had asserted his right to silence, I do accept the evidence of, in particular, Mr G when he swore that these interactions were, for the most part “conversational” and that Mr Jeffers was on these occasions being spoken to as a “human” rather than as a suspect. 
  11. [45]
    Nevertheless, and even though it may not have been a calculated campaign, my attention was drawn specifically to other aspects of the interactions between Mr Jeffers and police in order to support the proposition that when viewed as a whole, the other two conversations which are the subject of this application should be excluded from evidence at any trial.  I shall consider each of those aspects in turn but I do not lose sight of the fact that this applicant’s argument is one which demands that the totality of the evidence adduced in this application should be considered. 
  12. [46]
    The first of the specific aspects to be considered arises out of the fact that the police continued to question Mr Jeffers after his initial assertion of the right to silence.  More specifically, attention turns to whether there was a further breach of the requirements of the Police Powers and Responsibilities legislation and, in particular,  of Regulation 24 which must be read in conjunction with the provisions of part 3 of the Act.  As already noted, Mr Jeffers did, at an early stage in his interactions with Police, loudly and clearly assert his right to silence. 
  13. [47]
    It is also noted, that in subsequent interactions he made some comprehensive confessions.  The reason for his change in attitude was never specifically clarified by way of questioning from the police.  This is allied to the broader suggestion that there was a sustained and deliberate course of conduct calculated to keep Mr Jeffers talking about matters unrelated to the alleged offence so as to enhance the prospect that he would do as he ultimately did, change his mind and provide police with information. 
  14. [48]
    The evidence of the police concerning the failure to obtain an explanation for Mr Jeffers’ change of heart had a variable quality.  Detective A betrayed a disturbing ignorance as to what might have been expected of police in this circumstance.  Mr G, at least, acknowledged that more might have been done.  In any case, where there was so clearly an absence of any real attempt to comply with the requirement for clarification, I am prepared, again, to accept that there was a failure to comply with the requirements imposed by Parliament and that, therefore, my discretion to exclude all of the confessional evidence is enlivened.
  15. [49]
    However, as I have already noted, I accept the evidence of Mr G that there was no calculated campaign to keep Mr Jeffers talking and that the continued conversation about matters other than the alleged offending was engaged in for the reasons he averred.  The recordings do demonstrate that such questioning as there was could reasonably be described as conversational.  The placement of Mr Jeffers in the administration area was, in the circumstances, understandable.  That is, allowance can be made for the fact that even though he was not required to do so, the Detective did wish to get a formal record of Mr Jeffers’ refusal to participate in an interview. 
  16. [50]
    In a small police station there were limited options available.  The fact that Mr Jeffers continued to be in the presence of police for some time after he had asserted the right to silence is not necessarily sinister.  Further, I should, for the purposes of this argument, have regard to the nature of the confessions and the comments that accompanied them.  Both the “knife field tape” and the formal interview were introduced with comprehensive warnings.  With the solitary exception of clarifying the reason for Mr Jeffers’ change of heart, nothing further could reasonably have been expected in that regard.
  17. [51]
    And perhaps more importantly, an explanation for the change in approach was, in fact, given by Mr Jeffers and I cannot see that things would have been much different had it been provided in response to a question from police rather than volunteered by Mr Jeffers as it freely was.  The seeds were probably planted by Mr Morcom back at the caravan when the warrant was being executed, when he, as I have already indicated, seemed to be suggesting that Mr Jeffers should confess in the manner which he ultimately did.
  18. [52]
    It may also be relevant, when considering the question of fairness and the relevance of Mr Jeffers’ change of heart, to observe that, by his continued participation in conversation, even after he was told that it might be used in evidence, Mr Jeffers did get on record in admissible form the basis of what might be, for his purposes, the most valuable forensic weapon that he could hope to have had. 
  19. [53]
    On any version, he knew about the injuries caused to Mr Black.  There was little doubt about what I will respectfully refer to as his rather conspicuous appearance, so identity was not an issue.
  20. [54]
    There was no obvious defence available for the actions that to which he admitted, even if it was allowed that he had in fact been poisoned by Mr Black.  The best case available to him might be the one he advanced to police – that is that, although responsible for wounding Mr Black, his actions did not amount to an attempted murder.  This was, as I have noted, something of a refrain in the course of his answers during questioning by police.  In this way, his change of heart allowed him to lay something of a platform for a defence or negotiations with the prosecution.
  21. [55]
    It might also be thought to have been directed towards obtaining a collateral benefit in the form of admitting into evidence a version of events which was exculpatory of the person he was at one stage to describe as his “best friend”.
  22. [56]
    Notwithstanding the concerns that I have identified about Detective A’s evidence, the police conduct overall, although certainly wanting when it came to awareness of the relevant provisions of the Police Powers and Responsibilities Act, was nonetheless guided, it would seem, by some intuitive fairness.  Given the further warnings which were given and the fact that there was a clear and understandable explanation provided by Mr Jeffers for his change of mind, the failure by police to ask questions in order to elicit that explanation is not, to my mind, a breach which had functional effect.
  23. [57]
    In all of the circumstances, there are no concerns raised by public policy or fairness considerations which compel the exclusion of the interviews by reason of the breach of regulation 24.  Again, however, this breach is not to be considered in isolation but is something which must be considered in conjunction with all the other evidence and with the specific complaint made by Mr Jeffers about the failure by police to act upon a suspicion that they ought to have had.  That it, it is submitted that there should have been, in the mind of police, a reasonable suspicion that Mr Jeffers was, for the purposes of section 422 of the Police Powers and Responsibilities Act and schedule 6 of that Act, a person with impaired capacity.
  24. [58]
    Such a suspicion must necessarily be imputed to the police, so it is said, by reason of many of the matters to which I have already referred when summarising things said by Mr Jeffers over the course of the conversations that he had with police.  These include, but may not be limited to, the conversation at the time when the warrant was executed, which included references to schizophrenia, paranoia, brain damage and the need for injections. 
  25. [59]
    I have already found that, when  Mr Jeffers complained about someone yelling at him, he was directing his remarks to Mr Morcom, who had in fact been raising his voice and speaking to Mr Jeffers in an accusatory tone.  It was not a case of him imagining anything. 
  26. [60]
    Further, when being transported to the police station, Mr Jeffers made reference to brain damage and memory loss.  Whilst in the administration area, Detective A was aware that Mr Jeffers claimed to have suffered damage to the frontal lobe of his brain, to suffer from schizophrenia, to have spent time in a mental health ward at the Nambour Hospital and to have been only recently released from that hospital.  He asked to be taken there after he was charged.  There was reference to his being on the disability support pension.
  27. [61]
    There was also plenty of evidence to suggest that Mr Jeffers may have been paranoid.  He was fixated on the proposition that Mr Black had attempted to poison him and insisted that others, including outlaw motorcycle gangs, had taken out contracts on his life.  Mr G recalled that, at the police station, Mr Jeffers made complaints about being poisoned, said things about his connection with the mental health ward and said things about schizophrenia.
  28. [62]
    Then, on the “knife field tape”, I could hear an exchange which implied that Mr Jeffers, so it was said, had been made an offer by police which was part of the averred calculated campaign to keep him talking but which also reflected the fact that he was obviously confused.  In fact, it does reveal some confusion, but only about the legal concepts which were in play and not, to my mind, about his situation generally.  The recording does include references to his impaired memory and to having been in the “nut ward” at a recent stage.  There were multiple references to the facts that Mr Black had tried to kill him and that there were contracts out on him.
  29. [63]
    Again, in this conversation, there were things said which mean that the police must have known about the fact that Mr Jeffers had suffered from brain damage and been aware of his need for injections.  My attention was also drawn to that passage in the formal record of interview to which I have already referred, namely, the part where Mr Jeffers claimed not to know what to do and referred to the need for someone from the hospital to come and get him.  I find have found that these remarks relate to thoughts about what might happen after the interview had conclude and do not reflect a confusion about whether or not he should participate in the interview or about anything that he might say during it.
  30. [64]
    That said, there is material which establishes that police must have known that Mr Jeffers was subject to ongoing supervision, by reason of his mental health conditions, and that these conditions had caused him to be held in a mental health ward at the hospital for a protracted period.  Police must, as I have already indicated, have known that Mr Jeffers suffered from schizophrenia and must also have known that he had made attempts on his own life.  His views about the complainant’s attempt to poison him and the fact that others wanted to kill him were well established.
  31. [65]
    In addition to that formal interview, my attention was drawn to a medical record which established that Mr Jeffers was “psychotic” as at 30 January 2018.  There was, however, no other evidence which allowed me to draw any connection between that fact and his mental status as at 26 January 2018.  I asked for the relevance of all this evidence to be translated the question of impaired capacity as it is to be understood by reference to the definition provided in schedule 6 of the Act.  It was submitted that by reason of the fact that Mr Jeffers was someone who suffered from schizophrenia, and the fact that he was subject to an order which allowed authorities to treat his mental health conditions (which extended to a process by which he was collected for the purposes of injections to treat those conditions), I should find that Mr Jeffers was a person whose capacity for looking after or managing his own interests was impaired, and that the police must necessarily have reasonably suspected as much. 
  32. [66]
    This is not, however, consistent with what I understand to be the modern view of schizophrenia, and without more in the way of some sort of expert evidence, I am unable to draw that conclusion in the circumstances of this case.  The evidence discloses that Mr Jeffers was living in the community and was, to the extent possible for someone of his background, functioning in society.  He did not have a carer.  It is reasonable to contemplate that it may not have been possible to self-administer an injection of the kind required to manage schizophrenia.  In other words, I cannot find on the evidence available that there was, relevantly, any impaired capacity to manage his own interests insofar as they concerned day-to-day living. 
  33. [67]
    Further, and perhaps more importantly, it was not possible to find any basis for suspicion about impaired capacity to manage his own interests within the legal framework in which he found himself.  On the contrary, he was only too aware of his right to silence, and was unafraid to assert it in strident terms.  His change of heart was perfectly lucid and understandable in circumstances when it did secure potential advantages for him and for Mr Morcom. 
  34. [68]
    Nothing said by him about his mental conditions amounted to an assertion, or even implied the need for some sort of conclusion that he was not in a condition to be interviewed, or that the interview would be affected by reason of his mental status.  His answers were responsive and exhibited the awareness of someone who had, as he put it, “been through this shit a million times.”  His references to his brain injury were, so far as I could interpret them, more often than not, advanced as an explanation for the behaviour which was exhibited during the attack on Mr Black. 
  35. [69]
    In sum, I find that the circumstances were not such as to compel the view that the police should have had a reasonable suspicion that Mr Jeffers was a person with impaired capacity as that term is to be understood for the purposes of the Police Powers and Responsibilities Act.  Indeed, I do not see on the evidence that it would have been open to conclude that he was such a person.  There was no breach of section 422 of the Police Powers and Responsibilities Act.
  36. [70]
    Further, I find that even if I was wrong about that, there is nothing in the evidence concerning Mr Jeffers’ mental condition, either of itself or when considered in conjunction with all of the other circumstances, including what is said to have been the sustained nature of police questioning, to suggest that the evidence obtained in the “knife field tape” or in the formally conducted electronically recorded interview, both of which contained comprehensive warnings about the right to silence, that means either should be excluded from evidence because it would be unfair for them to be admitted.  Nor can I allow that they be excluded for any other reason that might be raised in the circumstances. 
  37. [71]
    My orders are, therefore, that the evidence that the Crown proposes to lead from the detectives who engaged in conversation with Mr Jeffers in the administration area of the Nambour Police Station is, in the exercise of my discretion, to be excluded from the evidence given against Mr Jeffers at any trial.  The next order is that the applications for the exclusion of the evidence contained on the “knife field tape” and the formal electronically recorded interview are refused. 
  38. [72]
    This is not a certification that those recordings as presented to me are in a form that would be suitable for a trial.  There were many parts of those recordings which might yet be edited by reason of the fact that they have a prejudicial effect that outweighs any probative value.  This is, however, something which is commonly agreed as between the Crown and defence and will no doubt be the subject of further discussion.  But, to be clear, I have ruled that the relevant recordings are not inadmissible.  That does not mean that in their current form they are admissible. 

Associate’s note:[2]

On 18 December 2020 both defendants entered pleas of guilty to the charge of wounding with intent to cause grievous bodily harm. On 9 April 2021 Mr Morcom was sentenced to a term of imprisonment of 7 years and 6 months, and Mr Jeffers was sentenced to a term of imprisonment of 9 years.

Footnotes

[1] R v Swaffield; Pavic v R [1998] HCA 1 at [91].

[2]This statement is not intended to be a substitute for the sentencing remarks or to be used in any later consideration of the Court’s reasons.

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Editorial Notes

  • Published Case Name:

    R v Jeffers and Morcom

  • Shortened Case Name:

    R v Jeffers and Morcom

  • MNC:

    [2020] QSCPR 29

  • Court:

    QSCPR

  • Judge(s):

    Callaghan J

  • Date:

    21 Aug 2020

Appeal Status

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