R v Tahiata [No 2][2020] QSCPR 9

14. [14]
    Section 436 is in these terms:

“436Recording of questioning etc.

1. This section applies to the questioning of a relevant person.
2. The questioning must, if practicable, be electronically recorded.

Examples for subsection (2)—

1. 1
   It may be impracticable to electronically record a confession or admission of a murderer who telephones police about the murder and immediately confesses to it when a police officer arrives at the scene of the murder.
2. 2
   It may be impracticable to electronically record a confession or admission of someone who has committed an armed hold-up, is apprehended after pursuit, and makes a confession or admission immediately after being apprehended.
3. 3
   Electronically recording a confession or admission may be impracticable because the confession or admission is made to a police officer when it is not reasonably practicable to use recording facilities.

3. If the person makes a confession or admission to a police officer during the questioning, the confession or admission is admissible in evidence against the person in a proceeding only if it is recorded as required by subsection (4) or section 437.
4. If the confession or admission is electronically recorded, the confession or admission must be part of a recording of the questioning of the person and anything said by the person during questioning of the person.”

15. [15]
    Sections 437 and 439 of the PPRA are also relevant. They provide:

“437Requirements for written record of confession or admission

1. This section applies if a record of a confession or admission is written.
2. The way the written record of the confession or admission is made must comply with subsections (3) to (7).
3. While questioning the relevant person, or as soon as reasonably practicable afterwards, a police officer must make a written record in English of the things said by or to the person during questioning, whether or not through an interpreter.
4. As soon as practicable after making the record—
   1. it must be read to the person in English and, if the person used another language during questioning, the language the person used; and

2. the person must be given a copy of the record.

5. Before reading the record to the person, an explanation, complying with the responsibilities code, must be given to the person of the procedure to be followed to comply with this section.
6. The person must be given the opportunity, during and after the reading, to draw attention to any error in or omission from the record he or she claims were made in the written record.
7. An electronic recording must be made of the reading mentioned in subsection (4) and everything said by or to the person during the reading, and anything else done to comply with this section.

…

439Admissibility of records of questioning etc.

1. Despite sections 436 and 437, the court may admit a record of questioning or a record of a confession or admission (the record) in evidence even though the court considers this division has not been complied with or there is not enough evidence of compliance.
2. However, the court may admit the record only if, having regard to the nature of and the reasons for the noncompliance and any other relevant matters, the court is satisfied, in the special circumstances of the case, admission of the evidence would be in the interests of justice.”

16. [16]
    The breach of s 436 of the PPRA was submitted by Mr Minnery, counsel for the applicant, in his written submissions, to be relevant in two ways:

1. It went to voluntariness and therefore was relevant to the exclusion of all confessionary statements;^[12] and
2. It led to an exclusion of the oral, unrecorded confessions (at least) unless the admission of the confessions (including the oral, unrecorded confessions) was in the interests of justice and then there was a discretion to admit it.^[13]

17. [17]
    The applicant always put that the PPRA sections operated, so that if the evidence was rendered inadmissible by s 436, there was a discretion to admit it under s 439. It was never suggested that ss 436, 437 and 439 operated so that any of the evidence was excluded with no discretion to admit it.
18. [18]
    In the course of argument, the failure of police to comply with s 437 was raised as an issue which was said to damage the credit of the police evidence as to what occurred in the unrecorded portion (between what I later define as the second and third instalments of the Tunks interview).

19. [19]
    Also in the course of argument, ss 436, 437 and 439 emerged as a further basis for discretionary exclusion. Mr Minnery submitted that it would be unfair to admit the unrecorded confessions, or any confessions thereafter, as the police had not followed the procedure prescribed by s 437 and therefore denied the applicant the opportunity to state, and have recorded, what exactly occurred during the period when the recording device was not activated.^[14]
20. [20]
    To some extent, the various alternative bases of exclusion overlap. Mr Minnery submitted that when considering the effect of the alleged promise, I should take into account some of the factors said to give rise to the discretion. In other words, if I find that the applicant was under the influence of cannabis or was fatigued or tired or hungry, then I should take those into account when considering whether the promise made by police in fact induced the applicant to make the confessionary statements. It was also submitted that those factors may explain why the applicant reacted to the promise by making admissions to murder.^[15]
21. [21]
    Mr Minnery submitted that the making of the promise was relevant to the discretionary exclusion of the evidence. He submitted though that if I did not find that a promise was made, the other discretionary factors would still have to be considered and that they ought to lead to the exclusion of the evidence.
22. [22]
    It is necessary to analyse some of the evidence in detail. However, it is firstly appropriate to give a broad description of the applicant’s interactions with police.

The applicant’s interactions with police

23. [23]
    The applicant and police first spoke on 10 February 2016. By this time, the two deceased had been reported missing and an investigation was under way. Police suspected that they had been murdered, and the applicant was identified as a person of interest. Police had secured a statement by Lelan Harrington (“Harrington”) who had been at the Juers Road unit and had seen, among other things, the applicant and Thrupp drive off with the toolbox containing Breton and Triscaru.
24. [24]
    On 10 February 2016, police intercepted the applicant and took him into custody. He was subsequently charged with the two murders and has been in custody ever since.
25. [25]
    Initially, as already observed, the applicant made denials to police. Later he made statements implicating himself, and he took police to the scene where the murders had been committed. Police recovered from Scrubby Creek a large metal toolbox containing the two partially decomposed bodies of the deceased. That toolbox was found at the spot identified by the applicant.
26. [26]
    Police officer Martin Hunter first had contact with the applicant.^[16] Officer Hunter had been detailed to locate persons who had been identified as suspects. The applicant was one such person. Officer Hunter also knew that a search warrant had been issued authorising police to search a house at Tennessee Way in Logan City and the applicant’s vehicle.^[17]

27. [27]
    Officer Hunter travelled to the house at Tennessee Way to surveille the premises until other police officers arrived to execute the search warrant.
28. [28]
    While Officer Hunter was at the address, he saw the applicant enter his vehicle and drive away. He, with the help of other police officers, intercepted the applicant.^[18] He then received information from other officers that there was a basis upon which to arrest the applicant upon an allegation of the murder of the two victims. He effected that arrest.^[19] He transported the applicant back to the Logan Criminal Investigation Branch which shares premises with the Logan Child Protection Unit. Subsequent interviews were conducted in the office of the Child Protection Unit.^[20] The relevance of that fact will become apparent when understanding the evidence of Detective Sergeant Nicole Tunks, who ultimately interviewed the applicant.
29. [29]
    Officer Hunter recorded his conversations with the applicant.^[21] There was no application to exclude the evidence of that conversation.
30. [30]
    Sergeant Nicole Tunks (at that point Acting Sergeant Nicole Tunks) and Senior Constable Christopher Kidd had been detailed to speak to the applicant.
31. [31]
    Once the applicant was at the police station, Tunks and Kidd approached him and there was an initial conversation which was electronically recorded. This occurred at 7.15 pm and the conversation appears in the transcript marked “7.15 pm to 7.28 pm”.^[22] Nothing turns on this conversation, as it is very much introductory, with police explaining that they intended to interview the applicant. There was no application to exclude the evidence of that conversation.

32. [32]
    There was then a formal interview between Tunks, Kidd and the applicant which was electronically recorded (“the Tunks interview”). That interview commenced at 7.28 pm and concluded at 11.40 pm,^[23] although, importantly, the interview was not one continuous process.

33. [33]
    The first part of the Tunks interview commenced at 7.28 pm and finished at 8.59 pm.^[24] In this part of the interview, the applicant denied involvement in the alleged offences. There was no application to exclude the evidence of that part of the Tunks interview.

34. [34]
    The second part of the Tunks interview commenced at 9.41 pm and terminated at 10.22 pm.^[25] During that instalment of the interview the applicant maintained his denials. There was also no application to exclude the evidence of that part of the Tunks interview.

35. [35]
    The third and final instalment of the Tunks interview commenced at 10.55 pm.^[26] It finished at 11.40 pm.^[27] In that instalment of the interview the applicant told police that he murdered the two deceased and was acting alone when he did so. The interview concluded with the applicant offering to take police to the bodies. The applicant sought to exclude the evidence of the third instalment of the Tunks interview.
36. [36]
    There is no electronic recording of any exchanges between police and the applicant between 10.22 pm and 10.55 pm, although at the beginning of the third instalment, Sergeant Tunks asked the applicant about what occurred during the period that was not recorded. The applicant gave an explanation of what occurred between 10.22 pm and 10.55 pm. His explanation was electronically recorded during the third instalment of the Tunks interview^[28] and I will analyse those statements shortly.
37. [37]
    It is the unrecorded conversation in the period between 10.22 pm and 10.55 pm which is critical. By 10.55 pm, a decision had obviously been made by the applicant to speak to police and confess. That demonstrates a significant shift from the applicant’s attitude to the police investigation evidenced by his denials up to 10.22 pm.
38. [38]
    The applicant sought to have evidence of all his statements to police (electronically recorded, written or otherwise) which he made after 10.22 pm on 10 February 2016 excluded from his trial.
39. [39]
    After the third instalment of the Tunks interview, arrangements were made for the applicant to show police where the bodies of the deceased were. That exercise was recorded (“the walkthrough”).^[29] Exclusion of that evidence was sought. As already observed, the bodies were later recovered from the place identified by the applicant.
40. [40]
    On 12 February 2016, the applicant was interviewed by officers Phillips and Ovreseth, who were police involved in the investigation (“the Ovreseth interview”). This interview occurred at the instigation of the applicant. The Ovreseth interview commenced at 12.56 am on 12 February and concluded at 3.42 am. The applicant told police that he should not have accepted sole responsibility for the murders and he then proceeded to give another version of what occurred, being one that implicated the co-accused.^[30]
41. [41]
    Later that morning at 10.56 am, Sergeant Tunks and Senior Constable Westall attended upon the applicant at the watch house and interviewed him again. That was for the purpose of the applicant providing a formal statement which the police hoped would form the basis of evidence which the applicant may give against co-offenders. Sergeant Tunks interviewed the applicant and while doing so prepared a draft statement on a computer. The conversation was recorded.^[31] The statement was then printed and signed by the applicant.^[32] A second statement, clarifying matters in the first, was later signed by the applicant.^[33] There was an error in dating the first two statements^[34] but nothing turns on this. A third statement was signed but this just dealt with the issue of the wrong date being placed on the first two.^[35]

42. [42]
    The applicant sought the exclusion of the written statements.
43. [43]
    There were further interviews and interactions between the applicant and police but it was not planned to lead evidence of them at the trial.
44. [44]
    By the end of all the interactions between the applicant and police, the police had secured admissions by the applicant to both murders, including an admission that the applicant acted alone when he did the acts which killed,^[36] and a later, inconsistent admission that the applicant aided a co-offender (Thrupp) who did the acts which killed.^[37]
45. [45]
    The Crown’s position was that the truth was likely to be the version given by the applicant in the Ovreseth interview, which is represented in the applicant’s first written statement. Relevantly, this statement provides:^[38]

1. “23.
   I recall Sunday the 24th of January 2016. I received a text message at approximately 9am saying something similar to ‘come to the Tav^[39] ASAP’. No name came up on my phone just a phone number.

24. At approximately half an hour later I arrived at the Tav in my green Toyota Hilux. I have parked my car inside the complex directly across from the carport to the Tav. l knocked on the door and Trent opened the door. As I walk in I have observed D-Lock, Stou, Puna, Tabita and Nate^[40] seated on the ‘L’ shaped beige/brown colour, suede material lounge chair.

I have drawn a picture of the Tav and where persons were seated and labelled it diagram one.

25. I have walked past all of them saying hello and followed Trent out to the back patio.
26. Trent said ‘oi brus I really need your car tonight, you are the only one with a ute’.
27. I have then said ‘Sweet as’. Trent has then said ‘'I will need you back here around 7:00pm’. I have then walked around to my car from the side entrance. I didn’t walk back through the house at all.
28. I have gone back home and I had another sleep. We had a family lunch at home at Tennessee Way, Berrinba. We usually have a big islander lunch on a Sunday.

29. I drove back to the Tav around 6:l5pm on Sunday the 24th of January 2016. I have then parked my car in the exact same visitor’s carpark.
30. I could hear loud music playing from the address, heavy rock and rap music. I knocked on the door, no one answered. Trent has come around to the side gate and we walked back around to the back patio area. Trent, Stou and I were the only ones in the back patio area at this time.
31. Trent has said ‘'I just stuffed two cunts in the box’. I have then said ‘Who who’. Trent has then said ‘Ssh’ and put his finger to his mouth to Ssh me. Stou has then said ‘What are we going to do man, what are we going to do with them’. Trent said ‘We have to be smart about this, real smart’.
32. Stou said ‘'What about Cleveland’. Trent said ‘We should just chop them up and get rid of their teeth so police can’t identify them’. Stou said ‘Fuck that bro’. Trent said ‘Let’s just take them out to Beauy and drop the box off, let them out and make them walk back. Stou said ‘We should just take them to Cleveland’.
33. Both of them asked ‘How big is your ute tray’. I have said ‘fifteen hundred by twelve hundred’. Trent has said ‘Fuck it’s not long enough’. Stou said ‘Unload your tools bruh’.
34. I have walked around the side, positioned my vehicle on an angle and unloaded my tools in the open carport area including my two tool boxes.

I have drawn a picture of my car and tools and labelled it diagram two.^[41]

35. I have then walked back around to the back patio. When I returned to the back patio it was still just Stou and Trent there.
36. Stou then said ‘We are just going to take them Cleveland, there is going to be five cars going, Son^[42] your car is going to carry the tool box. There is going to be one car in front of you and three behind you’. I have then said ‘Ok, can we move the Civic then’.
37. Trent and I have then pushed the Civic from the carport to one of the visitor’s carpark across from the unit. We had to push the car as it doesn’t start.
38. I have then reversed my ute into the carport area. Trent has said ‘Stay in your car and blast the music’. I have then looked in my rear view minor and I could see the boys carrying the tool box to my ute. Webby, Stou, Puna and Trent were carrying the tool box. The garage light was on and I could see the shadow of the female cleaning. At this time I could smell bleach.

39. I had my music blasting and as I could see them lifting the tool box. Trent and Puna yelled at me ‘Get the fuck out of your car and help lift the tool box’.

I have drawn a picture of the boys carrying the box and where they were positioned and I have labelled it diagram three.^[43]

40. I could hear loud kicks and screams coming from the tool box even over the top of my loud music. I have lifted the tool box from the back up onto my ute and Webby and Stou pushed it forward onto my ute. I have then observed Trent strapping the tool box down with two yellow ratchet straps that came from the motorbike in the garage.
41. I am aware a large car trailer in the garage contained a silver, red black road bike which was strapped down with the yellow ratchet straps prior to using these straps for the tool box. I looked in the garage and could see that the motor bike was now lying down on the trailer.
42. At this stage I was waiting in my driver’s seat. Trent jumped into my front passenger seat. A silver Peugeot hatchback has pulled up in front and was been driven by a Mouldy guy. I am not sure who he is. He was supposed to hold the gate open. I have then watched him drive the Peugeot out and I could see the car waiting for us on Juers Road. I observed the gates closed and we were stuck behind the gate waiting for it open again.
43. It was just the two of us in my car with the tool box on the back. I have then seen the Peugeot parked up on the left. I have then flashed my light and I started to follow the Peugeot. I have followed them down Juers on to Kington and then veered off to the Logan Motorway. The Peugeot accelerated and we lost them.
44. Just before the Drews Road exit on the Logan Motorway I pulled over, Trent and I waited for approximately twenty minutes for the rest of them to catch up. Trent was trying to call others but no one was answering.
45. A short time later Trent said ‘Let’s just go to Cleveland’. I said ‘No fuck that, these cunts ditched us. We are doing this job for them and they go and ditch us what the fuck. I then said ‘I am going to let them go right now’.
46. Trent said ‘Nah man don’t do that otherwise we will be the next ones’. I said ‘No fuck them let’s just let them go’. Trent has then said ‘hurry up cunt just drive’.

47. I have then continued to drive on the Logan Motorway and exited onto the Pacific Motorway travelling south. I exit at Beenleigh, turn at the round about and enter the Pacific Motorway northbound to head back to the Logan Motorway. At this time Trent said ‘Cunt let’s just go to the Quarry’. I have then said ‘Ok fine then’.
48. At this time Trent was trying to call the others. I think at this time he spoke to D-Lock and Lelan. I have entered the Logan Motorway and exited at Wembley Road exit. I have then turned right onto Wembley road and then left onto Illaweena Street. As we come around the corner I could see the carpark. Trent to1d me the gates were closed. So we turned right and went past the college to see if the other entry was closed.
49. At this time Trent said ‘Fuck let’s just go to Scrubby Creek’.
50. After checking the gate was locked, I turned back around and drove back to the Logan Motorway towards the Gold Coast.
51. I have then taken the Kingston Road exit and drove to Kingston Park Raceway. As I drove along Mudgee Road we looked around and saw mud tracks. We drove down a dirt track however there was a gate. So I reversed back and then drove off to the left.
52. Trent was saying ‘don’t worry Bruh I will do it all’. I just followed the four wheel drive tracks that were already there. I have driven down a track that led to the water. At this time Trent jumped out and yelled ‘This is deep enough here’. I have then turned my car around and Trent guided me back down the track in reverse. I came to a stop once I hit a large rock.
53. Trent cut both the yellow straps with a knife. He always carries a knife. At this stage I was still sitting in my car. Trent has then yelled ‘Oi cunt help me pull it off’. I have then got out of the car and helped him drag it off. It fell a little so it was upright half on my ute and half on the ground. I could hear both of them yelling from within the box - ‘Get me out of here, Punchy, Punchy get me the fuck out of here’. I went back and sat in my driver’s seat.
54. Trent has then jumped on the back of my ute and pushed the tool box with both hands so it has entered the water. I could see it was floating. I could see that Trent entered the water and he grabbed the handle to the tool box and he dragged it out further into the water. At this time the screaming within the box got louder.
55. Trent was yelling ‘Time to die’. Trent then said ‘Oi cunt let off a round to scare them’. I have then removed my home made shot gun from behind my driver’s seat, shot one round into the air. He was laughing. The screams got louder.

56. I have then watched Trent jump on top of the tool box. He yelled ‘Oi cunt it’s not sinking throw me the claw hammer’. I have then grabbed the claw hammer from the back seat. I would describe the claw hammer as red and black in colour with a black head. I threw this hammer out to him.
57. I then observed Trent hitting the claw hammer into the tool box once maybe twice and then he threw it back towards my car, landing in the my back tray. At this stage I closed my tail gate door. I think this hammer is now in my tool box in the back of my ute. I went back and sat in my car. I waited until he jumped back into my car and we drove off.
58. I would describe my shot gun as three quarter inch pipe, about five hundred millimetre in length. One inch pipe that sleeves straight over the three quarter inch with a pipe cap with a screw in the end of it. The casing to the shot gun round remained in my firearm which I later disposed of.

I have drawn a picture of my firearm and labelled it diagram four.^[44]

59. My car got bogged in heavy mud on the way out of the dirt track. In the process of this, Trent has made a phone call to either D-Lock or Lelan asking them for assistance.
60. Whilst waiting Trent was in my driver’s seat and I pushed it. The tyres were spinning so I was getting covered in mud. Eventually we managed to get it free.
61. I drove out to Mudgee Road, drove to Kingston Rail station to look for the Lelan. I then drove back to Mudgee road all the way to the end, turned around and as I was driving back I saw Lelan driving a white dual cab utility with a white canopy. D- Lock was in the front passenger seat. Lelan said ‘How did you guys go’. I have then said ‘It’s done bro’. Lelan said ‘Do you think we can dump some of the rubbish here from the Tav’. I have said ‘Do what you want bro’. I am not sure if there was anything in the back of his utility as I just saw the front.

And later:

1. “68.
   On the 3rd or the 4th of February between 5pm and 6pm I received a texted from a number without a name attached. The sms said ‘we have to check on that thing’.

69. I drove to an address at Woodlands Estate off Willow Rise in Waterford West. I then called the number that texted me. At this time I heard a missing person report on the radio mentioning Lelan and others. As a result of the phone call Trent and Stou came out. l have then said ‘I just heard on the radio in the car, things are getting hot with the three missing persons’. Stou said ‘yeah I know I heard it on the news’.

70. Stou drove off with a female in a blue four wheel drive. Trent said ‘Let’s go check on that thing’. I have then said ‘ok’. A short time later Puna came out and put his shoes on and got in the car.
71. I drove out of Woodlands Estate, on to Kingston road, Station road and entered the Logan motorway, we drove slow so we could look towards to the water. Trent has then said ‘Oh shit it is floating’. I then took the Wembley Road exit, and re-entered the Logan Motorway exiting at the Kingston road exit. I drove back to Mudgee Road.
72. We drove back through the four wheel drive track where we stopped at a pile of bricks and large rocks. We filled my tray with rocks and I drove back down to the water. The area stunk real badly. I slipped and fell in so my shorts were wet.
73. Trent entered the water, Puna and I passed him rocks in order to sink the toolbox again. When Trent jumped back in my car he stunk it out. I stunk it out too. I then drove my car back to Sunshine car wash where I sprayed it with the deodoriser and cleaned the interior of my car.”

46. [46]
    If a jury accepted that the applicant made the written statement, and accepted that what was said was true, then there was a clear basis to conclude against the applicant that Thrupp murdered the two deceased as he was the one who did the act which caused the death of the victims (submerging the toolbox)^[45], while holding an intention to kill them.^[46] There was also then a basis to convict the applicant as an aider of Thrupp,^[47] knowing that Thrupp was murdering them.^[48]

The admissibility of the oral and written confessions: the issues

47. [47]
    Section 10 of the CLA is in these terms:

1. “10
   Confessions

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.”

48. [48]
    Prima facie, a confession is a hearsay statement and therefore inadmissible. However, a common law exception to the hearsay rule is a confessional statement made voluntarily.^[49] As voluntariness is a precondition to the admission of evidence of a statement that would otherwise be hearsay, it falls upon the Crown to prove the voluntariness of the statement.^[50]

49. [49]
    The common law recognises that a confession induced by threat or promise is not voluntary.^[51] In McDermott v The King,^[52] the High Court held that a confession may be involuntary even if it was not “induced by any threat or promise”.^[53] That would be the case where the will of an accused was overborne by some factor other than a threat or promise.^[54]
50. [50]
    Here there is no suggestion that the applicant’s confessionary statements were involuntary for any reason other than they were induced by the alleged promise. As already observed, in raising involuntariness Mr Minnery relied upon the alleged breach of ss 436 and 437 of the PPRA and the applicant’s state of fatigue, drug intoxication and tiredness. However, those factors were not said to be independent of the alleged promise.^[55] Rather, the failure of the police to act in accordance with ss 436 and 437 were suggestive that police had taken the opportunity to offer the promise while the recording device was not recording. Section 10 of the CLA provides that once a promise or threat is followed by a confession, the confession is “deemed to have been induced” by the threat or promise. Mr Minnery submitted that the applicant’s fatigue, drug intoxication and tiredness explained why he acted upon the promise and confessed to murder. By that submission Mr Minnery did not intend to take on the burden of proving a causal connection between the promise and the confession. His submission was that, in light of the earlier denials, the vulnerabilities of the applicant made it more likely that he would act upon a promise, and therefore make it more likely that a promise had been made.
51. [51]
    It is clear that if the statements were not voluntarily made, then they are simply inadmissible and no question of discretion to exclude them arises.
52. [52]
    There is no argument that s 10 of the CLA would not apply to strike down the statements as inadmissible if the promise was in fact made. Police officers Tunks and Kidd were clearly “person(s) in authority”.^[56] Mr Meredith, counsel for the respondent, did not suggest that if the promise was made, then the statements were anything other than involuntary and inadmissible. He did not attempt to discharge the onus cast upon the Crown to show that any promise did not induce the confessionary statements. Therefore, by force of s 10, if the promise was made, the confession is deemed to have been induced by it and the confessions were not voluntarily made and the evidence of them is inadmissible.
53. [53]
    The first confession was the one that was not recorded and occurred between 10.22 pm and 10.55 pm on 10 February 2016. Mr Minnery submitted that if the promise was found to have been made, then all confessionary statements thereafter were infected by it and were effectively induced.

54. [54]
    For the reasons which appear below, I found that no promise was made. There are various reasons which account for the applicant’s change of tactic from denial to confession. These are explained below.
55. [55]
    In case those findings are challenged on appeal, it is necessary to explain what orders I would have made had I found that the initial confession (made between 10.22 pm and 10.55 pm on 10 February 2016) was induced. In those circumstances, I would have found that all further confessions were infected by the inducement and I would have excluded them. If a promise was made, they were all (including the walkthrough) made “after the … promise” and would therefore be “deemed to have been induced” by the promise.^[57]
56. [56]
    Further, if the unrecorded confession was induced by a promise, then it would be reasonable to find that the promise must have played a role in the applicant’s decision to participate in the third instalment of the Tunks interview. The Ovreseth interview and the written statements are partial withdrawals from the confession made in the third instalment of the Tunks interview. The necessity to speak to Ovreseth and make the written statements only arose because of the confessions made in the unrecorded interview and in the third part of the Tunks interview. It would follow that they were all induced by the promise. It would also, if a promise had been made, be unfair to admit those confessions if the initial decision to confess was induced, so the later oral and written statements would also be excluded on the fairness discretion.^[58]
57. [57]
    The first issue for determination was a factual one: whether a promise was made to the applicant in the period between 10.22 pm and 10.55 pm on 10 February 2016.

Was the promise made?

58. [58]
    Officers Kidd and Tunks both gave evidence before me. As to what occurred between 10.22 pm and 10.55 pm, Kidd said:

“All right. Now, at - when you turned - when the tape says you’re going to terminate the interview, what happens then?---Yeah. So terminated the recording. Mr Tahiata said, ‘So what’s happening now?’ I said, ‘You’re going to be charged.’ At that point in time, he became extremely emotional. He put his -if I can gesture for you - he put his hand in his head -head in his hands on the desk, commenced to cry and said, ‘I did it. I killed them,’ or I think that’s the words that he used. ‘I did it. I killed them.’ He continued to cry and, at that point in time, I sort of was looking at Detective Tunks and I - I can’t recall if I said to her, ‘Can you go and get some interview discs,’ or she said, ‘I’m going to get some interview discs,’ but, either way, it was worked out that we were hoping to interview him further or, at least, capture what’s - what was happening on a recording. Detective Tunks left the room. I sat down in a chair, not directly next to Mr Tahiata, but one - one separate from him, and said something along the lines of, ‘It must be - must be a weight to say that or to get that off your shoulders.’ He continued to cry. He was saying things that I couldn’t quite understand.”^[59]

59. [59]
    Tunks’s evidence was:

“Right. Now, what happened - you decide that that’s the end of it and you’re terminating the interview. What happens when you turn off the tapes at 10.22?---Pretty much immediately Tuhi sort of breaks down, puts his face into his hands and like he’s sort of wiping his eyes and he -and he -and he said, ‘I did it. I killed them. I murdered them.’ And at that point I remember - I remember watching him and then I looked and seen the tapes -they’re burning. Then I’ve looked at Chris and then I’ve sort of gone like this ... had a look on my recorder and then told Chris, ‘I need to go and get some interview discs.’”^[60]

60. [60]
    As previously mentioned, the Tunks interview was conducted in an interview room in the Logan Child Protection Unit. That is situated upstairs in the building. Other detectives (including Tunks) occupy a lower level. This explains why, when the discs were burning, Tunks not only left the interview room but had to walk to a different part of the building to obtain more discs.^[61]
61. [61]
    This evidence of an unrecorded confession clearly gives rise to initial alarm.^[62] After being interviewed, and making denials for some time, the applicant allegedly confessed to murder while the recording devices were not recording the conversation.
62. [62]
    What was put to Kidd in relation to this period is as follows:

“I suggest that you said to my client that he could or he would get a good deal if he cooperates with police?---No.

Now, I suggest that you said to my client in that same period I’ve just described you might get a reduced sentence, or he would get a reduced sentence if he cooperated. So less of a sentence?---No.

Now, I suggest to you that you indicated to him that if he cooperated, that is, cooperated with police, particularly in relation to finding the bodies - so taking police to where the bodies were - he would get a - words to the effect of a good deal?---No.”^[63]

63. [63]
    What was put to Tunks was:

“So I suggest to you that in your presence Detective Kidd said to my client something to the effect of, ‘You’ll get a good deal if you assist police.’?---No, that didn’t happen.

And I suggest to you that occurred before any confession?---No, that didn’t happen.”^[64] (emphasis added)

64. [64]
    In evidence in chief the applicant said:

“All right. And you -and I suppose it’s fair to say that up till that point - up till 10.22 when the tapes are turned off- - -?---Yes.

- - - you -you essentially told the police you weren’t cooperating, you weren’t helping, you weren’t - - -?---Yep.

- - - doing anything other than what we can see in the tapes?---Yes.

What changed your position? What changed your mind? What was the tipping point?---When he said he’d give me a big discount.

All right. Now, did he say what he meant by a big discount?---No.

Did he say numbers or anything like that?---No.

All right. And when he said that, what was the significance of that to you? What did it mean to you?---It was like immunity, I guess.

All right. So when he says something about a big discount, were you still - you told us already about very tired. Were you still tired?---Of course.

When he says something about a big discount, were you affected by cannabis?---Yes.

In what way? Can you tell us about that, please?---He - he was talking to me about a lot of things. We were talking about a lot of things. Like, he was asking me about footy and he was talking to me about what sports I have experience in and all this.

All right?---Like, we were talking about a lot of things.

And this is in the room at 10.22 onwards or is this - - -?---Yes.

- - - before then? Okay. Now, as I understand what you’re saying by way of chronology: tapes go off. Detective Kidd said some things about families’ need some closure, conversation moves on to him talking about a big discount?---Yes.

There’s discussion about all sorts of other things: football and sport and so forth. Is that before the big discount discussion or - - -?--- That’s after.

- - - after or - - -?---After.

So before the discussion about big discount - - -?---Sorry. And be - and before. It was before and after.

I’m sorry. I didn’t understand. Okay. So before the bit where Detective Kidd said words to the effect of ‘Big discount’, was Detective Tunks in the room?---I’m - I’m not quite sure.

Okay. Do you remember her leaving at a particular point?---Yes.

All right. What point was that, do you remember?---I’m not sure, sir.

All right. So she wasn’t there the whole time but you don’t know when she left?---No.

Okay?---I just remember Kidd talking to me.

Okay. Now, is your memory that most of the time you were talking with just Kidd alone or was it mostly both of the Detectives or - - -?---Yeah. It was -it was mainly Kidd - Kidd - Kidd was asking me all the questions.

All right. Now, when the tapes went off at 10.22, do you remember who was closest to you of the police officers?---Pardon?

Who was closest to you of the police officers? Tapes go off - - -?--- As in like - - -

Where were they in the room? Is a better question?---Kidd was right across from me.

All right. So he’s, sort of, facing right at you?---Yes.

And was your focus on him or both detectives or how did that go?--- I guess it was more on him.

Okay. You have talked a little bit about the process of you hearing this talk about a big discount - - -?---Yes.

- - - and taking the rap for the boys?---Yes.

Can I ask you a little bit about that, please?---Pardon?

Can I ask you a little bit about that if I could?---Yes.

So can you explain the reasoning behind taking the rap for other people because of - well, in relation to this discussion about a big discount?--- I was thinking it was going to get everyone out.

So explain that if you could?---Like, I was thinking, like, if I took the rap everyone would be able to go home to their families, I guess.

All right. Were your thoughts clear at this stage?---It was a bit- scattered everywhere.

You know? I was frustrated, was hungry. I just wanted to really just get out. I was telling them, really, anything they wanted to know. You know what I mean?

And in the period leading up to 10.22, do you remember saying to the police anything about, ‘I'm hungry’, or, ‘Can I have some food?’, or anything like that?---Yes.

Can you tell us when or how or - - -?---When we were in the - I think it was at the start when they first brought me in I was telling them- - -

So you were brought in from the traffic stop before an interview; is that what you mean or - - -?---Pardon?

So before the first interview or - - -?---Yes.

Okay?--- [indistinct] before the - - -

So please go on?---------first.

What did you say [indistinct] what did you do?---1 was just saying, ‘I’m a bit hungry’ - - -

Saying - - -?--------‘A bit thirsty’.

Saying to whom - - -?---‘A bit hungry and thirsty’.

- - - do you remember?---Pardon?

You said that to whom?----I don’t remember.

Police officer? Civilian?---It would have been a police officer.

Okay. But you don’t know male or female or anything like that?--- No.

Rank - I just remember saying, ‘I’m hungry’?---Okay.

And you say it once or more than once?----I think it’s maybe once or twice.

Okay?---Yeah.

Same person?---I’m not sure.

Or at separate times or - - -?---I think the second time was to Ms Tunks.

Okay. Do you remember when that was?---No.

All right. And you don’t remember before first interview? Between the first and second? Anything like that?---No.

Okay. So you’ve, using my words, taken the rap for everybody?--- Yes.

In this break between 10.22 and 10.55?---Yes.”^[65] (emphasis added)

65. [65]
    Mr Meredith cross-examined the applicant at some length. The line of cross- examination was clearly designed to demonstrate that in the questioning leading up to the end of the second Tunks interview, the applicant told a number of lies which he must have realised police could disprove. He then put this to the applicant:

“MR MEREDITH: What was the thing that you say Kidd said to you?---So he was saying about Mudgee Street, that we kind of know that- - -

Sorry?---He says that - - -

Speak up. I’m sorry?---He was saying that we kind of know where it is, around those lines, not those exact words, and then he goes, ‘Look, mate, if you can show us where the bodies are, we can give you a big discount.’

Now, who was present?---I think it was just Kidd. I believe it was just Kidd on his own.

So on that basis, Tunks has left the room?---Yes.

Right. See, I suggest to you, Tunks left the room only after you had confessed and said words to the effect, ‘I killed those people’?---No, sir.

So - - -?---She wasn’t there when I con - when I basically took - confessed.

So she’s left the room before you make any - whether true or not, any admission that you did it?---Yes.

Right. See, I put it to you, it was only after you said that, ‘I did it, I killed those people,’ or words to that effect, that she left. Make it very clear?---No.

Right?---No, sir. Sorry.

What happens before she leaves? Going back to page 80, you see the tapes are turned off. Tunks says very - she’s saying- the last thing that’s recorded there:

Yep. I’ll just terminate the interview.

You see that?---Yes.

What happens immediately after that?---I think Tunks leaves the room to go and find discs or something.

So there’s nothing said before she leaves the room?---No.

Right. Now - - -?---Not that I remember, anyway.

Now, do you remember yesterday - - -

HIS HONOUR: Page?

MR MEREDITH: Is 108, your Honour. No, it’s not in there. Sorry. It’s not in that.

HIS HONOUR: Okay.

MR MEREDITH: It’s in the transcript of the evidence that you gave yesterday. All right. So can - Mr Minnery asked:

Can you explain the reason behind taking the rap for the other people because of- well, in relation to this discussion about a big discount?---I was thinking it was going to get everyone out.

?---Yes.

What did you mean by that?---I thought everyone could go home and I’ll just take the rap for it.

Well - - -

HIS HONOUR: Sorry. What line is this?

MR MEREDITH: The bottom of the page, your Honour. Very last question.

HIS HONOUR: Sorry. Sorry. Yes. I’m sorry. I have it.

MR MEREDITH: Yes. So explain that, if you could. Like - top of the page - next page I’m referring to, your Honour:

Like, I was thinking, like, if I took the rap, everyone would be able to go home to their families, I guess.

?---Yes.

Right. So you then - the motivation, you say, was to take responsibility for everyone else’s actions?---Yes.

And you then tell the police a version of events. Is that correct? Which - - -?---Yes.

Which implicates you, but nobody else?---Yes.

You mention Trent, don’t you, as dropping him off?---Yes. In - in that interview, yes.

Yes. But he never - you asked him a question, did you ever - had he ever murdered anyone, and he says no, and you let him - and you say you’ll - in effect, you say you’ll do it. That’s what you said in the interview?---Yes. In the transcript.

Right?---Yes.

So you were willing to - I’m sorry. The next question:

Were your thoughts clear at this stage?

And your answer:

I was a bit scattered everywhere, you know. I was frustrated, hungry, just wanted to get out. I was really telling them really anything they wanted to know, you know what I mean.

Right?---Yes.

Right. Now, are you saying you were frustrated and hungry so you confessed to this - confessed to this - you gave a confession - whether it’s true or not, you gave a confession to being the only one involved because you were frustrated and hungry?---No. No, sir.

Continuing:

And I just wanted to really - I just wanted to really just get out.

What did you mean by that?---I just didn’t want to - I just wanted to get out of there, I guess, you know what I mean.

Get out of where?---Get out of the police station.

Well, by confessing to two murders, you weren’t going to be released. You knew that, didn’t you?---I don’t remember what I - what I was feeling.

Well, you couldn’t have possibly thought that, could you?---No.

You couldn’t have thought that they were going to let you go after you’ve just confessed to doing two murders?--I don’t know, sir. I’d never been involved in the legal or - or anything to do with police.”^[66] (emphasis added)

66. [66]
    It is necessary to look at what was said before the interview concluded at 10.22 pm and what was said as soon as it recommenced.
67. [67]
    Before 10.22 pm, the applicant said that he lent his car to Thrupp and then went four- wheel driving (which he called “forbying”) on the evening of the 24 January 2016 with Tupara Wilson in Wilson’s car and that he had lent his Hilux to Thrupp.^[67]
68. [68]
    Tunks and Kidd then asked the applicant questions about loaning out the Hilux and, in particular, questions about it being insured if it was crashed. This exchange occurred:

“SGT TUNKS: If he crash--

TAHIATA: You won’t--

SGT TUNKS: It gets crashed. I just, just--

TAHIATA: You wouldn’t--

SGT TUNKS: Insurance.

SCON KIDD: Insurance wouldn’t cover it.

SGT TUNKS: Insurance wouldn’t--

TAHIATA: Oh if it doesn’t--

SGT TUNKS: Cover it.

TAHIATA: Cover it, well fuckin’ tough shit. You know, get back up, try and do something else, I’ll fix the car. I know how to fix cars.

SGT TUNKS: Where do you think I was going with that?

TAHIATA: Oh I don’t care. Just wanna go home.

SGT TUNKS: Alright. Is there anything you wanna say?

TAHIATA: No ma’am. There’s nothing else, I’ve already snitched my mate, so fuckin’ may as well just kill me now.

SGT TUNKS: If, I’ll get you to look at the time there, it says ah--

TAHIATA: 22:22.

SGT TUNKS: Yep. I’ll just terminate the interview.” (emphasis added)

69. [69]
    The interview then recommenced at 10.55 pm. This exchange occurred:

“SGT TUNKS: The time is 10:55 P-M on Wednesday the 10th of February 2016. Tuhi, if you look up, at that time up on the screen there. Do you agree with that time?

TAHIATA: Yes.

SGT TUNKS: Just um currently in ah, in the interview room at Logan Central Police Station. For the purposes of the recording, I’m Acting Detective Sergeant Nicky Tunks. My rego’s 2-0-1-1-6, and I’m attached to the Logan District C-IB. I’ll get my partner to introduce himself.

SCON KIDD: Yeah, my name’s Chris Kidd, I’m a Detective Senior Constable with the Homicide Investigation Unit, and my registered number is 1-8-8-0- 1.

SGT TUNKS: Now Tuhi, I’ll just get you to state your full and correct name, please.

TAHIATA: Tuhirangi-Thomas Tahiata.

SGT TUNKS: And your date of birth?

TAHIATA: 16th of August 1991.

SGT TUNKS: Um and just your home address again.

TAHIATA: Ah 6 Milbun Street Woodridge 4-double-1-4.

SGT TUNKS: Okay. Before we go any further, I’ll just give you those um cautions again, okay. So before I ask you any questions, I must inform you, you have the right to remain silent. This means you do not have to say anything, answer any question or make any statement unless you wish to do so.

TAHIATA: Mmhmm.

SGT TUNKS: However, if you do say something, it may later be used as evidence--

TAHIATA: Yep.

SGT TUNKS: Do you understand that? You also have the right to telephone and speak to a friend or relative, to inform that person where you are, and to arrange or attempt to arrange for that person to be present during questioning.

TAHIATA: Mmhmm.

SGT TUNKS: You also have the right to telephone or speak to a lawyer of your choice and arrange, or attempt to arrange, for a lawyer to be present during questioning.

TAHIATA: Yep.

SGT TUNKS: If you wish to speak to any of these people, questioning will be delayed for a reasonable time, okay.

TAHIATA: Mmhmm.

SGT TUNKS: So is there anyone that you wish to speak to?

TAHIATA: Just, just my partner. That’s the only I wanna speak to right now.

SGT TUNKS: Okay, if, before we talk about this, is it in relation to--

TAHIATA: No.

SGT TUNKS: Any advice, in relation to what we’re gonna ask you?

SCON KIDD: So she’s with the police at the moment, um--

SGT TUNKS: Yep.

SCON KIDD: As I’ve mentioned, um--

TAHIATA: Yeah, I’m just telling you the, that’s all I want. I know she can’t, but that’s all I want.

SGT TUNKS: Oh a-, at some stage, you wanna-

TAHIATA: Yeah.

SGT TUNKS: Talk to her--

TAHIATA: Yes please.

SGT TUNKS: But it’s not going to--

TAHIATA: Yeah, happen now.

SGT TUNKS: You don’t, you don’t need to talk to he--

TAHIATA: No.

SGT TUNKS: Before you answer any of our questions. That’s all-

TAHIATA: No.

SGT TUNKS: That we wanted to confirm.

TAHIATA: Mm.

SCON KIDD: Yep. Um yeah just, and just to, for that in, o-, on that not, we’re happy for you to speak to her, that’s no problems--

TAHIATA: Yep.

SCON KIDD: Um but please don’t think that you need to speak to us--

TAHIATA: Yep.

SCON KIDD: In order to have that conversation--

TAHIATA: Yep.

SCON KIDD: With her.

TAHIATA: [INDISTINCT].

SCON KIDD: Okay, that conversation you can have with regardless of whether you speak to us or not, okay. Urn but we’ll give you that opportunity once we finish here if you’re happy to do that.

TAHIATA: Mmhmm.

SGT TUNKS: Um do you agree that you haven’t left this room since the last time we turned the tapes off?

TAHIATA: Yep.

SGT TUNKS: So we terminated our, our last interview at ah ten twenty-two--

TAHIATA: Mmhmm.

SGT TUNKS: And then once we finished that interview, ah you broke down and ah you said a few things--

TAHIATA: Confessed basically.

SGT TUNKS: Instead of ask trying to ask you--

TAHIATA: Yep.

SGT TUNKS: And to, to thing-o, are you able to just tell us--

TAHIATA: Yep I can tell you everything.

SGT TUNKS: What you said when we turned those tapes off?

TAHIATA: Yep.

SGT TUNKS: Yes.

SCON KIDD: Oh sorry.

SGT TUNKS: Yeah.

TAHIATA: I said, on the date, I said that I did it. I murdered them. I had them in my car. I, Trent was with me, but then I dropped him off because he didn’t wanna go through with it, so I just dropped him off on the road. I done it by myself near Kingston Park Raceway. I swam them out, and I stood on top of them. I heard them scream, everything.

SGT TUNKS: Before--

TAHIATA: And--

SGT TUNKS: Oh okay.

TAHIATA: And yep, that’s it. And then, yeah.

SGT TUNKS: So--

TAHIATA: This isn’t gonna be released to media, is it?

SCON KIDD: No, this is--

SGT TUNKS: This is just, this is police investigation interview.

TAHIATA: Because I’ve seen some of these on YouTube. How did they get on YouTube?

SCON KIDD: I dunno how they actually ended up on YouTube to be honest you, they, I mean they get played to a court at some point in time as the, you know, because it’s the evidence that we have to present to the court.

TAHIATA: Mm.

SGT TUNKS: So before we actually get into the details um and, and walk through those events, um that’s what you said to us when we, we terminated--

TAHIATA: Yep.

SGT TUNKS: That last interview, that was off-tape.

TAHIATA: Yep.

SGT TUNKS: During that, have um myself or any other police officer um threatened you--

TAHIATA: No.

SGT TUNKS: Um--

TAHIATA: No, no, none, no one--

SGT TUNKS: Promised you anything--

TAHIATA: [INDISTINCT], nah.

SGT TUNKS: We haven’t you promised you anything.

TAHIATA: Nah.

SGT TUNKS: Did we influence you to say any of that?

TAHIATA: Kind of, but nah, nah. Didn’t. Nah, it’s okay. I, I’m fully aware of my actions, and I knew what I did was wrong. So, yeah. Gotta man up, take the punches, you know.

SGT TUNKS: Alright. So we haven’t promised you or threatened you--

TAHIATA: Nah.

SGT TUNKS: At all? Ah--

TAHIATA: Nah.

SGT TUNKS: Made you--

TAHIATA: No [INDISTINCT], nah--

SGT TUNKS: Confess, or say anything while those tapes were off? Okay.

TAHIATA: I confess fully on my own, yeah on my own will.

SGT TUNKS: Can you, have you got any more on that?

SCON KIDD: Nah I don’t think so.

SGT TUNKS: Okay. Um can you walk us through that particular night or day. Just, just walk us through in as much--”^[68] (emphasis added)

70. [70]
    Tunks struck me as an impressive and truthful witness. She explained in a logical way what had happened, what she did and why. I found Kidd a little vague but this is explained by the fact that Tunks very much took the lead in the interviews. She was the dominant police presence and it is unsurprising that her evidence was more exacting. Kidd’s evidence does corroborate Tunks on the critical issues of the unrecorded confession.
71. [71]
    Tunks said that the initial confession was spontaneously made after the recording machine was turned off at 10.22 pm and she activated the function of the machine to burn the discs.
72. [72]
    She explained that she believed that when the interview finished at 10.22 pm she had completed her task that evening of interviewing the applicant.^[69] She said that the initial confession was made in her presence and in the presence of Kidd.^[70] She realised that she then needed to record any confession by the applicant so she left Kidd in the room while she went to obtain some more recording discs.^[71]
73. [73]
    As the spontaneous confession had taken Tunks by surprise, she sought advice from a more senior officer as to how to proceed.^[72] That officer informed her that it was important that she did not put words into the mouth of the applicant but rather she put open-ended questions asking him to state what he said while the tapes were off.^[73] That advice was, as a matter of law, wrong.^[74]
74. [74]
    Tunks said she then returned to the room and recommenced the interview.^[75] The delay between the interview ceasing at 10.22 pm and the interview recommencing at 10.55 pm, she explained as a function of the recording device.^[76] Once she had activated the disc burning function after the second instalment of the Tunks interview, the machine could not be used again for 20 or 30 minutes while the discs burned.^[77] That evidence was unchallenged.

75. [75]
    Tunks was cross-examined by Mr Minnery as to the availability of other recording devices to which she could have had access in order to recommence some form of interview before 10.55 pm.^[78] She accepted that there were other devices.^[79] She explained that she had been on shift for many hours and was tired and that she just became focused on obtaining further discs and recommencing the interview on the same machine.^[80] Her concessions and explanation for why she did not recommence an electronic interview until 10.55 pm seemed to me to be very honestly given and her evidence was particularly convincing. I accepted that evidence.
76. [76]
    After recommencing the recording at 10.55 pm and after giving standard warnings to the applicant, Tunks said: “And then once we finished that interview, ah you broke down and eh you said a few things”.^[81] The applicant, in his evidence before me, did not suggest that either Tunks or Kidd had suggested to him that the alleged promise was sensitive in some way or ought not to be mentioned by him in recorded interviews. If a promise had been made, then the way Tunks was conducting the interview gave rise to a real possibility that the applicant would allege the promise. However, when the interview recommenced, he agreed that he broke down and said that he “confessed basically”.^[82]
77. [77]
    Then Tunks asked him “And to, to thing-o, are you able to just tell us … what you said when we turned those tapes off?”.^[83] Although the question concerned what the applicant (not police) said, there was ample opportunity at that point for the applicant to mention the promise. He did not. Instead, he said that he murdered the two deceased. Tunks asked whether anything had been promised to the applicant by police. This question specifically raised the very subject of what the applicant now alleges. He answered “Nah”. Again, that was a clear opportunity for the applicant to say that he had been promised a “big discount” on his sentence if that had been the case. He confirmed at the end of the interview that no promises had been made.^[84]
78. [78]
    By 10.22 pm the applicant had been extensively interviewed by Tunks and Kidd and had steadfastly maintained his denials. From 10.22 pm he made admissions to a double murder. He said that was induced by a promise but when squarely asked whether any promise had been made, he said there had not been.
79. [79]
    Mr Minnery relied upon the applicant’s answer to Tunks’s next question which was whether the police had influenced him to confess. To that he said “Kind of, but nah, nah. Didn’t. Nah, it’s okay…”.^[85] Mr Minnery submitted that the applicant’s answer was an oblique reference to the promise. The applicant in his cross-examination swore that, in the answer to Tunks he was referring to the promise.^[86] I reject the applicant’s evidence and Mr Minnery’s submission.

80. [80]
    I find that the applicant was not promised a discount if he confessed. He said in the resumed interview that he was not promised anything. Of course he was “influenced” by police. They were trying to legitimately influence the applicant to tell them the truth. That is why they read parts of Lelan Harrington’s statement to the applicant during the second Tunks interview.^[87] That is why they tested him on his story that he had lent the car to Thrupp and had gone “forbying” with Wilson.
81. [81]
    That he had been legitimately tested in that way but in the end decided to confess, explains completely what he said to police about confessing “fully on my own, yeah on my own will”.^[88] Kidd’s evidence generally supports Tunks’s version and I accept Kidd’s evidence.
82. [82]
    I did not find the applicant an impressive witness and where his evidence differed from that of Tunks and Kidd, I unhesitatingly accepted the evidence of the two police officers.
83. [83]
    On the best view of the evidence for the applicant, he had lied for hours to police. The first two instalments of the Tunks interview were replete with false denials and invented stories setting up an alibi. The story of going “forbying” is disproved by objective evidence such as CCTV footage taken at the Juers Road unit and on toll roads. He lied for his own purposes. The third instalment of the Tunks interview was a false confession. Again, the applicant lied for his own purposes as he then saw them. I have taken this extensive lying into account when assessing his evidence given before me.
84. [84]
    I found the applicant’s version illogical. He had been arrested in connection with a double homicide. He was in police custody and obviously knew that he was not at liberty to leave. In his evidence before me, he said that his motivation to confess was so that he could be released from police custody. When challenged in cross- examination as to the absurdity of that proposition, he accepted that he did not believe, when he was speaking to police, that him confessing to a double homicide would lead to his release.
85. [85]
    As I will explain later, he gave inconsistent and wildly improbable versions about his cannabis consumption.^[89] At best for the applicant, that evidence showed him as highly unreliable and at worst it showed a propensity for blatant invention.
86. [86]
    It was clear from Mr Minnery’s cross-examination of Tunks and Kidd that his instructions from the applicant (at one point at least) were that both Tunks and Kidd were in the room when the promise was made.^[90] In his evidence, the applicant seemed unclear about that and thought that Tunks had left the room by the time the promise was made.^[91] On the applicant’s case, he had confessed to a double murder on the basis of a promise made by police. That he could not even be sure as to which police officers were present when the alleged promise was made was, in my view, a significant deficit in his evidence.

87. [87]
    Quite apart from logical difficulties with his evidence, the applicant just did not strike me as a credible witness. I have made allowance, in my assessment of him, of the fact that police tend to be more experienced witnesses than lay people and that the applicant had no prior experience in the witness box. Even still, he just did not strike me as convincing or truthful.
88. [88]
    Tunks’ evidence that she was present when the applicant initially confessed is consistent with what she then did. She left the room to go to another part of the building to obtain further electronic discs. I accept her evidence that had the applicant not confessed after the second instalment of the Tunks interview concluded, then there would have been no need to further interview the applicant and therefore no need to obtain further discs.
89. [89]
    Further, the fact that the applicant made denials and then made a confession is, to my mind, no great mystery. The police, through skilful questioning in the second part of the Tunks interview, elicited a version from the applicant about him “forbying” with Wilson and the applicant lending his car to Thrupp. Three problems then emerged for the applicant once that version had been given.
90. [90]
    Firstly, Wilson was unlikely to support the applicant’s version.
91. [91]
    Secondly, Lelan Harrington had given a statement to police putting the applicant at the unit in Juers Road on 24 January 2016. Police showed the applicant that statement. The applicant would have then been aware that the police had evidence which contradicted the applicant’s version and placed him at the Juers Road unit, including being directly involved with transporting a toolbox which, from the noise emanating from it, contained two living persons.
92. [92]
    Thirdly, the applicant implicated Thrupp by saying that Thrupp had his Hilux. There were reasons for him to regret that. He expressed concern in various parts of the second instalment of the Tunks interview that he did not wish to “snitch”.^[92]
93. [93]
    That all explains the real reasons why the applicant then made a false confession and said that he acted alone. He was clearly concerned during the first and second part of the Tunks interview not to implicate others. As already observed, on various occasions, he referred to not “snitching”. This may have been out of some false loyalty to Daniels and his group or it might have been out of concerns of retribution.
94. [94]
    I draw the inference that once he realised that he had given a false story about Wilson, which was contradicted by Harrington, he then, knowing the difficulty he was in, confessed in such a way as to preserve the position of the others. It was only after having a couple of days to consider his predicament that he contacted Ovreseth and gave the version that the murders were committed by him with members of the Daniels group. This is most probably the true version.

95. [95]
    There were related issues that arose with which I should specifically deal.

The lawyers’ evidence

96. [96]
    Legal professional privilege was waived by the applicant in relation to his conversations with his first lawyer, Mr Adam Magill, and another lawyer which he retained, Mr Remy Kurz.
97. [97]
    The applicant told police on 13 February 2016 that he had been told by his lawyer that he would get a “single digit sentence”.^[93] At that time the applicant was represented by Mr Adam Magill.

The comment to police was potentially significant for a number of reasons:

1. The applicant thereby attributed the estimate of sentence to his lawyer not police.
2. The applicant did not mention to police on 13 February that Tunks and/or Kidd had promised him a discount or deal on 10 February 2016.

98. [98]
    It was the Crown’s position that if Mr Magill did not state such a thing, the inference was open that it was the applicant who has invented the notion of him receiving a relatively light sentence which he originally attributed to a statement by Mr Magill. In other words, that did not come from police on 10 February 2016.
99. [99]
    I took nothing from Mr Magill’s evidence before me. He recalled appearing in the Magistrates Court for all accused.^[94] He told me that he had instructions from the applicant and the others to appear for them. He told me he would have spoken to the applicant (and the others) but he had no notes and no memory of the conversations. Any notes, he said, would have been transferred to Legal Aid Queensland when the file was transferred. Legal Aid, though, had no notes made by Mr Magill.
100. [100]
     Any competent criminal lawyer would be on guard if in the position of Mr Magill. Several persons were charged with the murders. This, by nature, raises consideration of ss 7 and 8 of the Criminal Code and questions of “who did what”, and the potential for conflict between the accused. Mr Magill seemed to appreciate this.^[95] Yet, he took, at best, some initial instructions from each of them and made no record at all.
101. [101]
     He was still prepared to say, though, that he would not have given the applicant any sentence estimate. That was, he said, because the mandatory sentence for murder was life imprisonment. However, the applicant was not the person who physically killed the victims (that was Thrupp). That naturally gives rise to a consideration of pleas being offered to manslaughter and a negotiated position being reached.

102. [102]
     On this point, Mr Magill said:

“All right. Can you comment on whether you would’ve said anything like the following that the accused would get a single digit sentence?---No. And I base that on - I only base that on the fact that he was charged, I believe, at that stage with a double murder. It’s, in fact, impossible to get a single figure sentence from it so I can’t - I can’t see myself saying anything along those lines.

All right. So this is a bit - then this is a bit more detailed one:

They said that - - -

?---Sure.

Continuing:

... if I had nothing to do physically murdering them, ‘You should only be looking at single digits,’ and I was like, ‘Really?’ And I was like -

this is him talking:

‘... I’m not getting - I’m not going to get your hopes up, but I’m going to fight for it.’

Now, it might be open to interpretation, but he’s quoting a lawyer saying, ‘If you had nothing to do physically murdering them, you should be only looking at single digits.’ Would you have said anything like that to him?--- No. No. No. Certainly not by - I can’t recall having any conversation with him, let alone something like that.

Right. And would you say anything like that to him in any circumstance?---No. I think - I think it’d be very unlikely. It’s just- facing those charges, it’s immediate life if you’re convicted of it so I just find it unlikely that any lawyer would say that.

What about if you were discussing the possibility that he was guilty of manslaughter in circumstances where he was aware they were being assaulted and they then died?---Are we talking about in a theoretical sense here?

Yes?---Look, I guess it depends on the position of the Crown. Anything can happen. If the Crown discharged him on the - on the murders and come to agreed facts, I guess anything is possible, but I wouldn’t have gone into any of those details because it’s -the matter is so fresh and I would’ve only been dealing with the double murder at that stage, so I wouldn’t have - I certainly wouldn’t have engaged any sort of conversation like that.

If you were aware that the QP9 alleged that he was an active participant in the murder - - - ?---Yep.

-- - would that have affected any advice you might give him?- -- I would’ve - no. I just would’ve - I would’ve said, ‘You’re obviously, clearly, in a lot of strife here. There’s nothing that’s going to be happening in court today. We’ll adjourn the matter off, get material and go from there.’ That’s probably as far as it would’ve gone. There wouldn’t have been much to discuss.”

And in cross-examination:

“Now, I think, based on your evidence, this would be correct, but you tell me if I’m wrong, you can make guesses based on your usual practice of what you might or might not have said to Mr Tahiata, but you cannot recall anything specifically at all about speaking to him?---That’s right.

So it’s usual, would you agree, for clients, especially clients facing serious charges or clients who are not familiar with the legal process, to ask, ‘What am I looking at? What sort of penalty am I going to get’?---Look - - -

This is a general statement [indistinct]?---Look, it certainly - it certainly - it - it has - it has come to me before where they have said, ‘Look, how much trouble am I in’, or whatever. Just knowing - knowing the way that I operate, if someone is in - been charged with a double murder, I-I would have said, ‘Well, mate, you’re in a heap of trouble’, so -but I can’t recall specifically, but, knowing the way that I practice, that’s - that’s - well, I’m sure I would have said that.”

103. [103]
     As Mr Magill had no recollection of any conversation with the applicant and no notes, evidence of what he would have said is of no real use. Without useful evidence from Mr Magill, it is impossible to make any findings about the conversation he had with the applicant.
104. [104]
     Nothing adverse to the applicant was drawn by me from the fact that he told police that his solicitor had predicted that his sentence would be less than 10 years.
105. [105]
     The first time the applicant alleged that police made a promise to him on 10 February 2016 was on 24 February 2016, notwithstanding that he had earlier opportunity to level that allegation.^[96] That was said by the Crown to be significant.
106. [106]
     From 13 February 2016, the applicant was represented by Legal Aid Queensland. The solicitor handling the matter at that office was Mr Remy Kurz. Mr Kurz gave evidence before me.
107. [107]
     After the endurance that was Mr Magill’s evidence, Mr Kurz was a breath of fresh air. I had no hesitation whatsoever in accepting Mr Kurz’s evidence. He made extensive handwritten notes of his interactions with the applicant and then had those notes typed. He gave his evidence in a thoughtful and precise way, committing confidently to what he could remember, but being careful not to overstate his recall. He is clearly an experienced, knowledgeable and competent criminal lawyer who understood the significance of an inducement being offered by police to his client.^[97]

108. [108]
     Mr Kurz gave evidence that he attended upon the applicant on both 13 and 16 February 2016 as well as on the 24th and that no complaint was made to Mr Kurz on either 13 or 16 February about the alleged promise.
109. [109]
     Mr Kurz gave this evidence:

“Right. Now, on the 24th, did he make any comment as to what may have occurred in any of these interviews, that is by- comments by police?---He did. I took handwritten notes and then I returned to the office that same day and did a typed file note so I’ll be flicking between the two. But, effectively, Mr Tahiata noted- and I took it as a complaint - that he was stoned during some of the initial interviews. And he also said that prior to - my note indicates:

Some time before the second or third interview, an officer with the name of Chris said words to the effect of, ‘If you tell us where these bodies are, there will be a big discount for you’.

Now, that notation is in inverted commas in both my handwritten notes and my typed note. It then goes on to indicate in my notes - - -

What does the inverted commas mean?---Suggesting that I would’ve taken that down verbatim - - -

Right?---------from my client.

HIS HONOUR: And you obviously understood the significance of that? Absolutely. And that’s why I took the note, your Honour. The note goes on then to suggest:

This was said in an interview but before the tapes were rolling. He went on to do the interview and revealed the location of the bodies.”^[98]

110. [110]
     I confidently conclude, given Mr Kurz’s professional approach to his interactions with the applicant, that had the applicant mentioned to Mr Kurz on either 13 or 16 February 2016, that a promise had been made by police that Mr Kurz would have noted that fact.
111. [111]
     In the end though, I drew nothing adverse against the applicant from his failure to mention the alleged promise to Mr Kurz on either 13 or 16 of February. If the promise was made (and I have found that it was not), then it would have taken the applicant some time to come to the realisation that the promise was not going to be honoured and that he was facing a sentence of life imprisonment. In finding that the promise was not made, I did not reason that it was less likely to have been made because of the failure to make complaint to Mr Kurz on either 13 or 16 February. Rather, I took Mr Kurz’s evidence that a complaint was made on 24 February 2016 as evidence excluding any suggestion of any later invention of the allegation of the promise being made. However, the fact that complaint was made to Mr Kurz on 24 February did not, in my mind, bolster the applicant’s evidence that a promise as alleged had been made to him 14 days earlier.

Failure of police to take notes of the unrecorded confession

112. [112]
     Certainly, there was valid criticism of the failure of the police officers Tunks and Kidd to make notes of the oral confession made at 10.22 pm on 10 February 2016. Officer Kidd made notes during the interview but made no notes of the oral confession.^[99] Officer Tunks made one note which was “admission on termination of interview”.^[100] She did not make notes of any of the detail of the terms of the confession.
113. [113]
     As I later explain, the taking of notes of an oral confession that could not practicably be electronically recorded has some significance under s 436 and s 437 of the PPRA. However, Mr Minnery submitted that the failure to take the notes affected the veracity of the evidence given by officers Tunks and Kidd about the events which occurred between 10.22 pm and 10.55 pm on 10 February 2016 while the recording device was not operating. I reject that submission.
114. [114]
     It is common ground that the applicant did make a confession to police between 10.22 pm and 10.55 pm on 10 February 2016. The confession was confirmed during the third instalment of the Tunks interview. The applicant swore positively before me that he made the confession. While it is a little odd that full notes of that conversation were not made, the failure to make the notes throws no light on whether the promise was or was not made.

Impact of fatigue and cannabis consumption etc upon the issue of voluntariness

115. [115]
     There are two reasons why it is unnecessary to consider Mr Minnery’s submission that the applicant’s decision to accept the promise and confess was affected by his cannabis consumption, fatigue, etc:

1. I have found that there was no promise.
2. For the reasons explained later, when considering the discretionary grounds, the applicant was not materially affected by cannabis intoxication, fatigue, etc.

Section 436

116. [116]
     No authorities as to the proper construction of ss 436, 437 and 439 of the PPRA were referred to me during the hearing of the application. Section 436 did not feature prominently in Mr Minnery’s written or oral submissions. In his written submission, he referred to s 436 in this way:

1. “41.
   The first admissions made in the period between 10:22 and 10:55pm on 10 February 2016 were unrecorded. Section 436 and 437 Police Powers and Responsibilities Act 2000 impose a requirement that all ‘confessions or admissions’ be electronically recorded. The key in section 436(2) is that the recording must be ‘practicable’, and these sections are to be read with section 439 of the same Act, which indicates that the Court can still admit an alleged admission or confession despite non- compliance or insufficient evidence of compliance with the section, but only in circumstances where in considering the noncompliance and other relevant matters, in the special circumstances of the case, the admission of the evidence would be in the interests of justice.”

And later:

1. “60.
   The requirements of the Police Powers and Responsibilities Act 2000, particularly section 436 and 423, whilst likely not themselves providing a distinct basis for the exclusions of the admissions, would assist the Court in finding the admissions involuntary, it is submitted.”

117. [117]
     Mr Minnery did advance oral submissions about the failure of Tunks and Kidd to take notes but that was referrable to the credit of the evidence of Tunks and Kidd. Mr Minnery submitted that failure to comply with the procedure prescribed in s 437 was a factor rendering the admission of the oral confession (and those following it) unfair. He did not submit that oral evidence of a police officer of the confession was not a “record” of the confession for the purposes of s 439. He did not submit that the power bestowed on the court by s 439 did not confer a discretion to admit oral evidence of the making of an unrecorded confession to police.
118. [118]
     I did not call on Mr Meredith to make oral submissions. Mr Meredith did not address s 436, s 427 or s 439 in his written submissions.
119. [119]
     There are a number of cases which have considered the operation of ss 436, 437 and 439 of the PPRA. I discovered them after the applicant’s trial. I will explain how on the pre-trial hearing I reasoned and concluded that the oral evidence of the confession made between 10.22 pm and 10.55 pm on 10 February 2016 should be admitted notwithstanding it was not recorded, and then explain what orders I would have made if my attention had been brought to the relevant authorities.
120. [120]
     In determining to admit evidence of the oral confessions made between 10.22 pm and 10.55 pm on 10 February 2016, I directed myself to ss 436, 437 and 439 and considered that they operated in a way I now explain.

121. [121]
     Sections 437 to 439 are obviously designed to overcome the issues raised in cases such as Carr v The Queen,^[101] Duke v The Queen^[102] and McKinney v The Queen; Judge v The Queen.^[103]
122. [122]
     Section 436 makes evidence of confessions to police inadmissible unless recorded. Section 436 accepts the possibility that circumstances might arise where the confession cannot be electronically recorded, i.e. where it is not “practicable” to electronically record the confession.^[104]
123. [123]
     By s 437 a procedure is prescribed which leads to the admission of a recording of the interviewee confirming an oral confession that was not recorded electronically.

124. [124]
     By s 439 a “record of questioning” may be admitted in exercise of discretion where ss 436 and 437 have not been complied with.
125. [125]
     Section 436 concerns “questioning” a relevant person. Having regard to the statutory examples in the section, the unrecorded conversation was “questioning” and therefore s 436 is engaged in relation to that conversation.
126. [126]
     All other relevant conversations with police were electronically recorded, so s 436 has been complied with in respect of those. It is only the conversation between 10.22 pm and 10.55 pm which falls foul of s 436.

127. [127]
     Here, there was no breach of s 436(2) because by the time the unrecorded confession was made, the recording of the interview had been terminated and the confession was not in reaction to any question by police. There was simply no occasion to catch the confession electronically. Therefore it was not “practicable” to record the confession.
128. [128]
     Section 437 was not complied with because no written record (notes by the police officers) were made and the procedure in s 437(4)-(7) was not followed. I then decided to admit the evidence of the non-recorded confession under s 439. I assumed that the “record of [the] confession”^[105] was the police officers’ oral evidence that the confession was made.
129. [129]
     As to the “nature of and reasons for the non-compliance”, there was no direct evidence led for the reasons why the procedure in s 437 was not followed. Tunks never said she turned her mind to s 437. However, there were reasons given as to why she took the steps she did. As observed earlier, she said that after leaving the interview room to obtain further discs, she spoke to senior police who told her of the necessity to confirm the confession by electronic recording. She was therefore attempting to do what in substance s 437 required her to do, namely create an electronic recording of the fact of the making of the oral confession.
130. [130]
     I found that there were “special circumstances”^[106] here, namely:

     1. Police had conducted an extensive electronically recorded interview with the applicant where all appropriate safeguards had been applied.
     2. There was nothing to suggest, when the electronic recording of the interview ceased at 10.22 pm that there would be further discussion between police and the applicant as to the applicant’s involvement in the murders.
     3. Police did not, after 10.22 pm, seek to engage the applicant in conversation while the recording machine was disabled.
     4. The oral confession was spontaneous and unsolicited.
     5. While Tunks did not follow the procedure prescribed by s 437, she realised (after seeking advice) the necessity to make some electronic record of the confession and she took steps to do so.
     6. There was no suggestion of Tunks or Kidd deliberately flouting the procedure in s 437.
     7. The confession was confirmed in the electronic recording commencing at 10.55 pm.
     8. The applicant then went on to make detailed confessions to the two murders.

131. [131]
     I then held that it was “in the interests of justice”^[107] to admit the oral evidence of the police officers as to the unrecorded confession because:

     1. There is no doubt that the unrecorded confession was made (the applicant confirmed that fact in the third instalment of the Tunks interview).
     2. While in the third instalment of the Tunks interview there were confessions that were false (the applicant acting alone), the confession was in substance true. In the third instalment of the Tunks interview, the applicant accepted that he was involved in loading the toolbox onto the Hilux, accepted that he drove it to Scrubby Creek, and accepted that he was involved in unloading the toolbox at Scrubby Creek. In the Ovreseth interview he accepted all those things but implicated Thrupp.
     3. There was no unfairness in admitting the oral confession.^[108]
     4. There was no deliberate flouting of the law. Tunks sought advice from senior police as to what she should do.
     5. The offences are most serious.
132. [132]
     On those bases, I admitted the oral evidence of Tunks and Kidd as to the confession made while the recording device was not activated.
133. [133]
     No submissions, though, were made to me as to the meaning of the term “record” in s 439. Argument before me assumed that I had jurisdiction to admit the evidence of the oral confession. That probably is not so. I will now consider the authorities which were not drawn to my attention during argument.
134. [134]
     In R v Duong,^[109] Mackenzie J considered s 103 and s 104 of the now repealed Police Powers and Responsibilities Act 1997 (“the 1997 Act”). Those sections are broadly equivalent to s 436 to s 439 of the PPRA. Section 104(13) of the 1997 Act, like s 439 of the PPRA, grants a discretion to admit evidence of confessions in circumstances of non-compliance with earlier provisions which require that a confession be electronically recorded. That provision was as follows:

“(13)If a court considers this section has not been complied with or there is not enough evidence of compliance, the court may, despite the noncompliance, admit evidence to which this section applies if, having regard to the nature of and the reasons for the noncompliance and any other relevant matters, the court is satisfied, in the special circumstances of the case, admission of the evidence would be in the interests of justice.” (emphasis added)

135. [135]
     Mackenzie J found that confessions made to police which were not recorded were inadmissible by force of s 103 and s 104 of the 1997 Act. His Honour then admitted oral evidence of the police to the effect that the confession was made. His Honour did that in exercise of the discretion under s 104(13).

136. [136]
     As was observed by Byrne SJA in R v McMillan,^[110] while s 104(13) gave a discretion to “admit evidence”, s 439(2) of the PPRA grants a discretion to “admit a record of the confession”.^[111]
137. [137]
     In R v Smith,^[112] a police officer gave evidence at trial of an oral confession that had been made to him. The confession was not recorded. McPherson JA^[113] ruled that the oral evidence of the police officer was not evidence which could be admitted in exercise of discretion under s 266 of the PPRA, which is now numbered as s 349. That was because the oral evidence of the police officer that the confession was made was not a “record”.^[114]
138. [138]
     Some time after the confession was made by Mr Smith, the police officer made a written statement in which he said that the oral confession was made. McPherson JA thought that the statement was a “record” for the purpose of s 264. This observation was obiter as the Crown did not seek to tender the statement. His Honour said:

1. “[27]
   Under s 266(1) it was nevertheless open to the court to exercise a discretion to admit in evidence ‘a record of questioning’ or ‘a record of a confession or admission’ even though it considered that Division 5 had not been complied with or there was not enough evidence of compliance. The word “record” in this context is not defined, but it is not easy to equate it with Kitching’s unrecorded recollection of the conversation at any time before to 16 May 2002, when he first wrote it down in his witness statement. After that date, there was a ‘record’ in the form of the witness statement which he prepared for the proceedings against the appellant. However, it was not that “record” or written statement that the trial judge was asked to admit in evidence at the trial. Instead, it was Kitching’s oral evidence based on his recollection of the conversation that was tendered and admitted. He may in fact have refreshed his memory by reading his statement again before giving evidence at the trial on 7 August 2002. He did not, however, ask for leave to do so at the trial, but gave his evidence of the conversation as something he was able to do of his own unaided and independent recollection. It was something he was not questioned about. According to the decision in King v Bryant (No 2) [1956] St R Qd 570, he was not obliged to seek leave to refresh his memory in that way. Doing so would not in any event have made his statement or ‘record’ of the conversation admissible unless defence counsel had chosen to make it so by cross-examining him and then tendering it, which it was hardly likely he would have wished to do.”

139. [139]
     His Honour went on to say:

1. “[28]
   The result is that his Honour had no power or discretion under s 266 to admit, or for that matter to reject, the evidence of Det Sgt Kitching. It was not ‘a record of questioning’ or ‘a record of confession or admission’ that was tendered at the trial, but Kitching’s independent recollection of what had been said to him in the course of the conversation on 21 October 2001. In consequence, s 266 did not apply so as to authorise the court to admit the evidence if it was not otherwise admissible under the Division. Even though it was not a ‘record’ of the questioning or the confession or admission, was it otherwise not admissible? That inquiry must in my opinion be answered in the affirmative. Section 263(3) renders a confession or admission admissible in evidence in a proceeding against the person making it only if it is recorded as required by s 263(4) (electronically) or s 264 (in writing). The confession or admission here was, for the reasons I have given, not recorded as required by s 264(4) and by force of s 263(3), was not admissible in evidence at the appellant’s trial. Under s 266(1), the judge had no power or discretion to admit.”

140. [140]
     In the same case, McMurdo P observed:

1. “[11]
   Section 266 of the Act allows a record of questioning to be admitted despite non-compliance with the Act where the court is satisfied ‘in the special circumstances of the case, admission of the evidence would be in the interests of justice’. Here, however, it was not sought to tender any written record but rather Kitching was permitted to give oral evidence of the conversation. The discretion conferred by s 266 was therefore of no assistance to the respondent but in any case there were no circumstances, special or otherwise, which suggested the admission of a written record of Kitching’s evidence would be in the interests of justice. To allow in such evidence here would be to ignore the safeguards for those the subject of police investigation and questioning provided by Ch 7 of the Act and to risk a return to an earlier less accountable period when police evidence of verbal admissions was regularly challenged in the courts as fabricated, often with justification. Kitching’s evidence was wrongly admitted.”

141. [141]
     As already mentioned, in Smith there was no attempt by the Crown to tender a “record” of the confession beyond the oral evidence of the police officer. In R v Faumuina,^[115] Fryberg J was faced with the attempted tender of a note made by a police officer of a conversation which was not recorded. The procedure prescribed in the then equivalent to s 437 had not been followed.
142. [142]
     His Honour held, consistently with Smith, that the PPRA does not permit the admission of oral evidence of the confession, but permits the admission of a “record” of the confession. His Honour then held that the provisions did not make admissible evidence which would otherwise be inadmissible, so a “record” of a confession could only be admitted if, according to the rules of evidence, it (the “record”) was admissible. In the absence of some statutory provision, or perhaps an allegation of recent fabrication, the policeman’s note of the confession was not admissible. His Honour so found, and rejected the tender.

143. [143]
     In my respectful view, Faumuina should be followed. The clear intention of the provisions is to exclude evidence of confessions to police unless the prescribed safeguards are observed or, it is in the interests of justice to admit the evidence of the confession. It would be an extraordinary result, and in my view contrary to the objects and intention of the provisions, if otherwise inadmissible material such as a police officer’s written note of a confession was made admissible.
144. [144]
     Byrne SJA considered the current provisions in R v McMillan.^[116] Factually, that case was similar to the present in that the accused made admissions once his electronically recorded interview had ceased. Extensive notes were made by the police officer but there was no attempt to comply with s 437. Unlike the present case, there was no attempt to have the interviewee confirm the confession during a recorded conversation.
145. [145]
     His Honour noted that in the provisions of the 1997 Act, which fulfilled the same policy objectives as ss 436-439, the power was to “admit evidence” of the confession. Section 439 refers to admitting “a record” of the confession. His Honour’s examination of the history of the Bill which resulted in the PPRA was:

“Clauses 226-229 of the Bill became ss 436-439 of the Act.

The Explanatory Notes described the Bill as completing a ‘process of consolidation of police powers’ that had commenced with the Police Powers and Responsibilities Act 1997 (Qld) (the ‘1997 statute’). ‘[A]dditionally’, those Notes said, ‘the Bill seeks to rectify any technical defects contained in the [1997 statute]’.

Of cl 229, which became s 439, the Explanatory Notes said:

Clause 229 provides that if this Division is not complied with or there is a lack of evidence of compliance, the court may still admit the evidence in the interest of justice.

Apparently, the author of the Notes thought that the Parliament was being asked to legislate for just such a discretion as the prosecution now seeks to invoke.

When the Bill was considered in Committee, cll 226-229 provoked no discussion. Hansard merely records:

Clauses 221 to 231, as read, agreed to.

No mention was made of cll 236-239 in the Second Reading speeches.”^[117]

146. [146]
     His Honour then considered the scope of the discretion in s 439 and observed as follows:

“The Smith interpretation would not matter so much if s 439 confers a discretion to allow the written record into evidence despite non- compliance with s 437. Does s 439 allow Collins’s notes to be adduced in the prosecution case?

There are curiosities about the notion that the notes may go into evidence in circumstances where the Act prohibits testimony that the words recorded were spoken.

First, why would the legislature forbid oral evidence of the confession - typically, with the witness refreshing recollection by looking at the notes while testifying - yet stipulate that the notes themselves might go into evidence? No satisfying answer occurs to me.

Secondly, it is not easy to conceive of circumstances in which it would be in the interests of justice to admit a written record of a confession - a disputed one at any rate - if the witness cannot be cross- examined about what was said and recorded.

Moreover, there is no indication in the legislative history or other extrinsic material that, in enacting s 439, the Parliament was intending to alter the law of evidence to render admissible a record which is otherwise inadmissible.

In view of the restrictive interpretation of ‘record’ in Smith, however, s 439 has very little work to do unless it has amended the law of evidence to permit the record to go in. There may be a handful of cases where s 93 of the Evidence Act would sustain admissibility of the notes. And in the course of a trial, conduct of the case by the defence could allow the notes to be admitted. Such circumstances will be rare. Otherwise, it is difficult to identify circumstances in which the discretion might be enlivened.”

147. [147]
     The line of authority commencing with Smith seems to end in 2012 with R v Purnell^[118] where Smith was followed. Neither Smith nor the other cases which follow it appear to have been considered since and there have been no relevant amendments to ss 436-439 of the PPRA.
148. [148]
     Other difficulties arise. Section 436(3) operates to render the confession inadmissible unless “it is recorded” as required by s 436(4) or s 437. However, a police officer to whom the confession is made may attempt to comply with s 437 (by having the suspect repeat what was said when the recording was off) only to have the suspect deny that the confession was made. In that case, the “written record” (the notes) made pursuant to s 437(3) would not be admissible. The notes are only, at best, a statement by a police officer as to what was said. If a recording made pursuant to s 437(2) is of a denial by the suspect that the confession occurred, then the recording itself will be inadmissible because it is not a statement against interest by the accused. Instead, it is an assertion by the police officer of what was said, which assertion is then rejected.^[119]

149. [149]
     By s 436(3) the “confession or admission” is only admissible if “recorded as required by subsection (4) or section 437”. If the suspect does not confirm the earlier oral confession, then the confession is not “recorded” pursuant to s 437.
150. [150]
     Further, the suspect is surely not obliged to participate in the exercise contemplated by s 437. By s 437 the suspect is invited to comment on what is put to him by the police officer. That may incriminate him by confirming the earlier confession. The PPRA would therefore require that he be warned that he need not speak to police. Section 431 of the PPRA provides:

“431Cautioning of persons

1. A police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code.
2. The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person can not hear adequately.
3. If the police officer reasonably suspects the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in his or her own words.
4. If necessary, the police officer must further explain the caution.
5. This section does not apply if another Act requires the person to answer questions put by, or do things required by, the police officer.”

151. [151]
     The responsibilities code is established by schedule 9 of the Police Powers and Responsibilities Regulation 2012. Article 31 of the code deals with the s 437 procedure and does not suggest that a caution is required. This seems at odds with s 431, given that under s 437 a suspect is being invited to repeat, or at least confirm, a confession to an offence. Article 31 provides:

“31Procedure for reading back a written record—Act, s 437(5)

1. This section applies if a police officer is required under section 437(5) of the Act to give an explanation to a relevant person of the procedure to be followed to comply with the section.
2. The police officer must explain the procedure in a way substantially complying with the following—

‘Some of the questions I have asked you and your responses have not been electronically recorded.

I have made a written record of the unrecorded conversation. This is your copy of the record. I will now read the written record aloud.

If you consider there is an error in the record or there is something left out of the record, you should say so after I read that part of the record aloud.

You will then be asked to say what the record should read.

Do you understand this is your opportunity to disagree with anything in the written record?

Do you understand this procedure?’.

3. If the police officer reasonably suspects the relevant person does not understand the explanation, the police officer may ask the person to explain the procedure in the person’s own words.
4. If necessary, the police officer must further explain the procedure.”

152. [152]
     Whether an interviewee is cautioned or not before the s 437 procedure is undertaken, the interviewee may refuse to participate in the process contemplated by s 437. In either case, there will only be the notes contemplated by s 437(3) and no admissible record of the confession.
153. [153]
     All this raises the status of the third instalment of the Tunks interview. In that part of the interview there are confessions and admissions which are recorded pursuant to s 436. Those confessions and admissions go well beyond the unrecorded confessions. Sections 436 and 439 do not operate to render the recorded confessions made in the third instalment interview inadmissible.
154. [154]
     The third instalment of the Tunks interview was also a “record” of the oral confession. In that part of the interview, the applicant confirmed the making of the confession between 10.22 pm and 10.55 pm (while the recording device was not activated). It is admissible because it is a statement against interest voluntarily made, but I accept that on the authority of Smith that fact does not render admissible oral evidence from the police officers that the unrecorded confession was made.
155. [155]
     I am bound by Smith. I would follow McMillan and Faumuina. Had I received submissions on those cases, I would have admitted all the electronically recorded confessions and the applicant’s written statements and the evidence of the walkthough. However, I would have held that neither Tunks nor Kidd could give oral evidence of the confession that was made between 10.22 pm and 10.55 pm on 10 February 2016, notwithstanding that the confession was later confirmed and that confirmation was electronically recorded, and that recording was admissible and should be admitted.

The fairness discretion

156. [156]
     The “fairness discretion” encompasses a number of circumstances in which there is a recognised discretion to exclude confessional or non-confessional evidence.^[120] The categories of circumstances are not closed in that there is an overarching unfairness discretion the limits of which remain undefined.^[121] A discretion to exclude a voluntarily made confession on the basis that it would be unfair to admit it into evidence was recognised in McDermott v The King^[122] and in R v Lee.^[123] Factors identified there as enlivening the discretion are when the circumstances of the confessional statements being made cast doubt upon their reliability, and where unfair conduct of police has led to a confession being made where, but for the conduct, the confession would not have been made.^[124] In R v Swaffield; Pavic v The Queen,^[125] a confession made to an undercover police officer who ingratiated himself to an accused after the accused had exercised his right to silence and refused to speak to police, was excluded.
157. [157]
     While the discretion to exclude a voluntarily made confessional statement can arise in many different circumstances, here, the applicant’s submission is that the conduct of police led to the confession being made. In other words, if the confession was voluntary, then the decision to speak was obtained as a result of conduct of the police which was such that the confession ought to be excluded.
158. [158]
     As already observed, the critical confession is the one that is not recorded and which was made between 10.22 pm and 10.55 pm on 10 February 2016. If that confession ought to be excluded in exercise of discretion, then all confessionary statements thereafter ought to be excluded in exercise of discretion.
159. [159]
     As previously observed, Mr Minnery pointed to five discretionary factors.^[126] The first was the promise of a “big discount”. For the reasons already explained, I find that there was no such promise.
160. [160]
     The second and third factors are that the police interviewed the applicant while he was fatigued and over a period he was not provided with food and water.
161. [161]
     During the interview the applicant asks for water and does say that he is tired.^[127] He gave evidence of having been denied a protein bar when he was being driven by police to Scrubby Creek.^[128] The police deny this.^[129] For the reasons I have already given, I prefer the evidence of the police to the evidence of the applicant and I find that he was not denied the protein bar.

162. [162]
     Notwithstanding that he was tired and may well have been hungry and thirsty, the applicant responded to the police officer’s questions in a logical way. He was warned on several occasions that he did not have to speak to police but persisted. He was asked whether he had any complaints about how he was treated by police. Far from registering complaint, he was complimentary of police conduct.^[130] While what the applicant said to the police in the third instalment of the Tunks interview may not have been completely true, those falsities were, as I have explained, a product of his desire to protect others rather than a product of the effects of any substance, fatigue or hunger. None of those factors affected the reliability of the statements he made nor his decision to speak to police.
163. [163]
     The fourth factor is that the applicant was allegedly under the influence of cannabis.
164. [164]
     The applicant told police officer Hunter that he had consumed “two cones” of cannabis. That conversation occurred at 6.25 pm on 10 February 2016. He said he consumed the cannabis “like an hour ago”.^[131] That would put the consumption at about 5.30 pm.
165. [165]
     The Tunks interview commenced at 7.28 pm, some two hours after the alleged consumption of cannabis. Dr Griffiths is a forensic physician employed by Queensland Health. He gave evidence that cannabis, if smoked, has its maximum effect in about 20 minutes. That effect remains for about an hour then the effect declines.^[132] With all due respect to the doctor, his evidence was not of much assistance. He accepted that the effect of cannabis consumption depended upon a range of variables: the amount consumed, the level of tetrahydrocannabinol in the cannabis consumed and the tolerance of the person consuming the cannabis. He candidly accepted that without information on those topics, he could offer no opinion as to the effect of consumption of cannabis upon the applicant at the time of his interception by police.^[133]
166. [166]
     In evidence before me, the applicant said that he had about 20 cones of cannabis during the day.^[134] He said that he consumed cannabis regularly, even during a work day when he was employed as a concreter working on building sites.^[135] That evidence seemed to me to be highly unlikely and inconsistent with what he had told police. As already observed, he told the police officer Hunter, when first intercepted, that he had smoked “2 cones”.^[136] He said that the only effect upon him was to relieve soreness from working.^[137]
167. [167]
     The police officers who dealt with him on 10 February 2016 all gave evidence that they had experience of persons who had consumed cannabis and they knew what signs to look for.^[138] They said that the applicant did not exhibit any of those signs.^[139]

168. [168]
     In the recorded interviews, the applicant appears alert and focussed and makes responsive answers to the questions asked of him by the police.
169. [169]
     I find that by the time the Tunks interview commenced, any effects of cannabis consumption upon the applicant were very minimal and certain not as to affect his decision to speak with police.
170. [170]
     The fifth and last factor is the noncompliance with ss 436 and 437 of the PPRA.
171. [171]
     This raises different considerations to the first four discretionary factors identified by Mr Minnery. The failure to comply with s 437 could not be said to have influenced the applicant’s decision to confess.
172. [172]
     Section 437 of the PPRA requires the police officer who has witnessed an oral, unrecorded confession to make notes of the confession and then read that back verbatim to the interviewee in circumstances where the interviewee can comment and where anything the interviewee says is electronically recorded.
173. [173]
     Tunks did not follow that procedure. Instead, she asked the applicant to tell her what had occurred during the conversation that was not recorded.
174. [174]
     Mr Minnery submitted that because the procedure prescribed by s 437 was not followed, the applicant was thereby denied the opportunity to comment upon the precise terms of the oral confession as the police alleged it. He could not then challenge the specifics of the police version and was denied the opportunity then to assert that the promise had been made.
175. [175]
     The question^[140] then is whether such a failure to comply with s 437 renders it unfair to admit evidence of the unrecorded confession and the subsequent confessions.^[141]
176. [176]
     In the circumstances of this case, the failure of police to comply with s 437 did not give rise to unfairness. That the specifics of the oral confession were not put to the applicant did not disadvantage him. As already explained, there was ample opportunity given to the applicant during the third instalment of the Tunks interview to allege that a promise was offered.
177. [177]
     Although not argued, the failure to comply with s 437 gives rise to public policy considerations independently of any alleged unfairness to the applicant.^[142] Here, for the reasons articulated at paragraphs [130] and [131] of these reasons, there was no basis to exclude the confessions on Bunning v Cross considerations.

Conclusions

178. [178]
     The confessions were voluntarily made. There was no unfairness warranting exclusion and subject to what I have said about ss 436-439 of the PPRA (and the unrecorded confession) it was appropriate to admit all the evidence. For those reasons, I dismissed the application.