R v Karran[2022] QSCPR 10

SUPREME COURT OF QUEENSLAND

1. [1]
   Mr Karran has been charged with six counts of choking, suffocation or strangulation in a domestic setting, nine counts of rape and five counts of sexual assault of his late wife Gail Desley Karran.
2. [2]
   Mr Karran also faces a count of manslaughter of Gail Desley Karran. The manslaughter of Mrs Karran is alleged to have occurred between 31 October 2017 and 10 November 2017 with the remaining 20 offences occurring 1 November 2017.^[1]
3. [3]
   The trial of the 21 offences alleged against Mr Karran is due to commence on 22 August 2022 in Maryborough. On 11 July 2022, Mr Karran filed an application under s 590AA of the Criminal Code (Qld) to exclude conversations and recordings of conversations that Mr Karran had on 13 November 2017 and 25 November 2018.
4. [4]
   The first conversation, a field interview, occurred on 13 November 2017 and was a conversation between Detective Senior Constable Morris Cottrell (“DSC Cottrell”). The second conversation occurred on 25 November 2018 between Mr Karran and a law enforcement participant (LEP) in the Hervey Bay Watchhouse.

The Field Interview – 13 November 2017

5. [5]
   Mr Karran’s argument in respect of the field interview is that it ought to be excluded as Mr Karran was not advised of his rights to communicate with a relative or friend as required by s 418 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) nor cautioned, as required under s 431 of the PPRA, that he did not have to answer questions. Mr Karran argues that there are blatant breaches of s 418 and s 431 such that under the fairness discretion, public policy discretion and Christie discretion, or any of them, the interview and recordings ought to be excluded. The transcript of the interview of 13 November 2017 makes it plain, and the Crown does not contend, that Mr Karran was not in fact advised of his right to communicate with a friend, relative or lawyer or advised of his right to silence.
6. [6]
   The Crown’s primary argument is that the statutory duty of the police officer to inform a person of their right to communicate with a friend, relative or lawyer as provided in s 418 and right to silence as provided in s 431 is not engaged as s 415(1) of the PPRA has not been satisfied.
7. [7]
   Section 415(1) provides:

415When does this part apply to a person

3. (1)
   This part applies to a person (relevant person) if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.

[…]

8. [8]
   The Crown argues that Mr Karran was not in the company of DSC Cottrell for the purpose of being questioned as a suspect about his involvement in the commission of any indictable offence. The word “suspect” is defined in Schedule 6 of the PPRA, but only for the purposes of Chapter 11 in s 229.  That expansive definition in s 229 does not apply to the word “suspect” contained in s 415 which is included in Chapter 15, Part 3 of the PPRA. The word “suspect” must therefore be given its ordinary meaning.
9. [9]
   The word “suspect” in s 415 of the PPRA is used as a noun. There is more case law on the associated noun “suspicion”. In Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, Kitto J said at 303:

“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.”

10. [10]
    Kitto J’s remarks were adopted by the High Court in George v Rockett (1990) 170 CLR 104 at 115. Dalton J summarised the concept in R v Bossley [2012] QSC 292 where her Honour said:

“[14] The term “reasonably suspects” is defined in Sch 6 to the PPRA as meaning, “suspects on grounds that are reasonable in the circumstances”. There is also well-established common law authority in relation to both the concept of suspicion and the concept of reasonable suspicion. The meaning of suspicion in this context is discussed by the High Court in George v Rockett. A suspicion and a belief are different states of mind. A suspicion is a state of conjecture or surmise. It is more than idle wondering. It is positive feeling of apprehension or mistrust, but it is a slight opinion without sufficient evidence. Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief. Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist. There must be sufficient factual grounds reasonably to induce the suspicion. The facts must be sufficient to induce the suspicion in the mind of a reasonable person. The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced. That a young man is driving a smart car with some panel damage is not sufficient to give rise to a reasonable suspicion.”

(footnotes omitted)

11. [11]
    Kitto J’s remarks were also referred to by Bowskill J (as her Honour then was) in R v Bennetts [2018] QCA 99:

“[15] The distinction drawn by Kitto J in Queensland Bacon Pty Ltd v Rees between a reason for suspicion that a person has committed an offence and a reason for investigating whether a person has done so has been referred to in a series of Victorian Court of Appeal decisions on the meaning of the phrase “questioned as a suspect” in s 23V(1) of the Crimes Act 1914 (Cth). The principle established in those cases is that the provision only applies to the former. A person who is being questioned in the context of an investigation of a possible offence is not being questioned as a suspect. The word “suspect” requires a degree of conviction extending beyond speculation as to whether an offence has been committed and requires that it be based upon some factual foundation.

[16] It has also been held that the test is a subjective one. That is, for a person to be “questioned as a suspect”, the officer must have actually formed a positive opinion that the person questioned is suspected of having committed an offence.

[17] There is sufficient analogy between s 23V(1) of the Crimes Act and s 415(1) of the PPRA, to conclude that the same approach to construction ought to be applied to the latter.”

(footnotes omitted)

12. [12]
    In order, therefore, to determine if a police officer is in the company of a suspect, it is necessary for the police officer to form a suspicion that the person has had an involvement in the commission of an indictable offense. The officer must have “a positive feeling of apprehension or mistrust, amounting to a slight opinion, but without sufficient evidence”, there must be some factual basis for the suspicion to exist, and the suspicion must be reasonable as opposed to being arbitrary, irrational or prejudiced. As Bowskill J said at [15] “The word “suspect” requires a degree of conviction extending beyond speculation…”.
13. [13]
    DSC Cottrell swore that the discussion that he held with Mr Karran on 13 November 2017 was a “chat” rather than an interview because Mr Karran was not a suspect.^[2]  DSC Cottrell was extensively cross-examined on the factual issue. The circumstances surrounding the field interview of 13 November 2017 are important in determining the factual question raised for determination.
14. [14]
    Mr Karran was born 21 October 1945 and was aged 72 years when his wife passed away on 9 November 2017. The deceased, Mrs Karran, was aged 66 years having been born on 10 October 1951. Mr and Mrs Karran had been married in excess of 34 years.
15. [15]
    At 7:25pm on 31 October 2017, the police were called to a disturbance at Mr and Mrs Karran’s residential address. The police attended as Mrs Karran had been locked out of her house by Mr Karran. No action was taken by police officers at that point. At 8:40pm on 31 October 2017, police were again called to a disturbance at the same address. Mrs Karran had created a recording of her interaction with Mr Karran at 8:20pm, however, there was some difficulties with it, namely the battery was low and so police had not listened to the audio recording.^[3]
16. [16]
    Page 3 of Exhibit A to Mr Byrnes’ affidavit is the 8:20pm recording which includes threats to Mrs Karran and an explicit threat to destroy Mrs Karran’s computer.^[4] The recording contains Mrs Karran’s complaint to police to have them re-attend, the nature of the complaint being that Mr Karran had broken into her bedroom, taken her laptop, and was threatening to smash it to smithereens. It would appear, on the basis of this complaint, the police re-attended the residential address at 8:40pm.
17. [17]
    Upon re-attendance, police noted Mr Karran to be hostile to both police and Mrs Karran and he appeared intoxicated.
18. [18]
    Police officers took Mr Karran to the Hervey Bay Watchhouse where he remained until 11:00pm when he was released. After Mr Karran returned home, Mrs Karran activated a hidden recording device. The transcript of that is attached both to Ms Oswald’s affidavit^[5] and Mr Byrne’s affidavit and is aptly described as “horrible”.^[6] No one that is now alive, however, knew that the recording had been made until 17 December 2017 when a coroner’s search warrant was issued, allowing police to search Mr and Mrs Karran’s residential address, where they found the recorder in a kitchen drawer.
19. [19]
    The transcript of the recording runs to some 42 pages and records much violence perpetrated by Mr Karran against Mrs Karran.  The recording commenced late on 31 October 2017 or the early hours of 1 November 2017, with the last recording finishing at 6:41am on 1 November 2017.
20. [20]
    At 7:22am on 1 November 2017 Mrs Karran presented at the emergency department of the Hervey Bay Hospital. She had a laceration to her left axilla and bruising to her face. The hospital notes record Mrs Karran suffering her injuries after she had fallen off her bed whilst having sexual intercourse with her partner. The hospital notes also record “Her demeanour at the time was jovial and she found the incident to be amusing and did not appear to be under any duress”.^[7] Mrs Karran was discharged at 10:40am.
21. [21]
    On 2 November 2017, Mrs Karran attended at the Prince Charles Hospital in Brisbane for her six-monthly check-up. Dr Freenstra noted that Mrs Karran had extensive bruising to the left side of her face. Hospital notes record that Mrs Karran gave a different explanation for the injuries, claiming she had been in a car accident on 1 November 2017 where her car had been struck from the side, that she had been trapped, that she had bruised the left side of her head and had a skin laceration to her upper left arm from a broken window and was taken to the Hervey Bay Hospital in an ambulance for treatment.^[8]
22. [22]
    On 3 November 2017, Mr Karran observed Mrs Karran to be having a fit at approximately 1:00am, and so Mr Karran made a 000 call reporting that Mrs Karran was having a fit and it was the first fit she had ever had.  Mr Karran also said when making the 000 call that Mrs Karran had had a knock on the left side of her head which was quite bruised, it had occurred in a domestic dispute and that he “must have injured her, I think, I don’t have a lot of recollection, I had a fair bit of booze on board…”.^[9]
23. [23]
    The ambulance was dispatched at 1:02am and ambulance officer Searle observed Mrs Karran was in bed with an altered level of consciousness. Mrs Karran suffered a seizure whilst the ambulance officers were present. Officer Searle noticed the aged bruise down the left side of Mrs Karran’s face and asked Mr Karran about the injury. Mr Karran admitted that he and Mrs Karran had domestic issues two days previous and admitted he had hit Mrs Karran during the domestic issue. Mrs Karran was taken by ambulance from her residential address at 1:40am, arriving at Hervey Bay Hospital at 1:50am.
24. [24]
    At the Hervey Bay Hospital, Patricia Ridge, a clinical registered nurse, observed bruising to both sides of Mrs Karran’s face and that she had a Glasgow Coma Scale rating of 3. Emergency treatment was administered to Mrs Karran who rallied for a short period of time before she declined, suffered multiple organ failure and was pronounced dead on 9 November 2017 at 11:00am.
25. [25]
    There is a significant issue in trial as to the cause of Mrs Karran’s demise. The prosecution case is that Mrs Karran died from multiple organ failure that had been caused by traumatic epilepsy which in turn had been caused by Mr Karran’s attacks on Mrs Karran’s head on 31 October 2017 and 1 November 2017.
26. [26]
    The field interview transcript is Exhibit CEO 3 to the affidavit of Cassandra Oswald. The audio recording is part of Exhibit CEO1. In assessing DSC Cottrell’s evidence and state of mind at the commencement of the interview on 13 November 2017, it is important to have regard only to the information that DSC Cottrell had at the time he commenced the interview. DSC Cottrell did know that police had been called to Mr and Mrs Karran’s residential address for domestic violence at 7:25pm and 8:40pm on 31 October 2017 however he had understood the nature of the allegation brought by Mrs Karran against Mr Karran was that he had locked her out of the house on the first occasion, necessitating the call to police officers, and that he was threatening harm to her computer on the second occasion when police officers were called to the address at 8:40pm.^[10]
27. [27]
    DSC Cottrell was not aware that Mr Karran had threatened violence towards Mrs Karran, been abusive towards her, or that he had choked her,^[11] becoming only aware of those allegations much later, that is in January 2018. DSC Cottrell was aware that Mr Karran had been intoxicated, hostile to police and hostile to Mrs Karran. DSC Cottrell had read that Mrs Karran had suffered from a cut under her left axilla and bruising.^[12]  However, DSC Cottrell was also aware of the hospital notes of the Hervey Bay Hospital which recorded Mrs Karran as asserting that she had injured herself engaging in voluntary sexual intercourse with her husband, Mr Karran.^[13]
28. [28]
    On 13 November 2017, DSC Cottrell did not know that Mrs Karran had attended at the Prince Charles Hospital on 2 November 2017 and provided a different version of events for the injury. As DSC Cottrell explained in cross-examination, he was attending to speak to Mr Karran as part of “a coronial investigation”.^[14]
29. [29]
    The transcript of the field interview records that DSC Cottrell attended at Mr Karran’s residence asking to have “a chat”.^[15] Mr Karran asked “What’s happening?”^[16] to which DSC Cottrell responded:^[17]

“Well, so I know very little about, what’s happened, except the fact that, um, basically um, the hospital has written a cause of death certificate, ok? … That’s gone down to Brisbane, ok… it’s come back from the Coroner for further investigation … ok, alright, so they basically there is not enough information on the certificate for the Coroner to make some sort of determination about … how she died and the circumstances leading up to that… so like I know very little about the story, apart from the fact that … your wife has passed away and she passed away at the hospital…”

30. [30]
    DSC Cottrell then embarked on a number of questions about Mrs Karran’s health and was provided with a reasonably detailed history by Mr Karran that Mrs Karran had suffered from scleroderma and a number of other illnesses and injuries through her life.
31. [31]
    Although DSC Cottrell referred to his discussion with Mr Karran as a “chat”, it is plain that DSC Cottrell was seeking to obtain information from Mr Cottrell. In my view, it is correct to conclude that the purpose for which DSC Cottrell attended upon Mr Karan on 13 November 2017 was, as is recorded,^[18] to obtain information to allow the coroner to make a determination regarding the circumstances of death. DSC Cottrell, being aware of the Hervey Bay Hospital notes and the explanation for the injuries being caused as a result of sexual intercourse, did not specifically raise this topic with Mr Karran because his daughter was present during the interview and he felt that may be inappropriate.^[19]
32. [32]
    The characterisation of the purpose of the commencement of the interview as being to illicit information to assist the coroner making a decision is furthered by the transcript of the phone call between DSC Cottrell and Mr Karran on 14 November 2017,^[20] where they discussed “Where things are at” and that the “Central Regional Coroner … is involved in this matter … and it will be up to him as which time the body is released”.^[21]
33. [33]
    There was no information at the commencement of the interview, that DSC Cottrell was aware of, which would have reasonably or logically permitted DSC Cottrell to consider Mr Karran was a suspect involved in the commission of an indictable offence.
34. [34]
    On behalf of Mr Karran, reference was made to lines 147 to 150 and lines 293 to 294 of the interview,^[22] in support of the argument that as Mr Karran had admitted to violence, he was then a suspect, at least concerning his involvement in the commission of a domestic violence offence. Mr Karran had just provided DSC Cottrell with a history of Mrs Karran’s medical conditions. Mr Karran then said:^[23]

“… Yeah, we came back and everything was fine, but just prior to that we had a um, we had a little domestic here, alright, and it um, and I, I, she was in my face and I actually grabbed her on the throat like that and I said “Shut up” and ah, anyway I let her go, and, and I’d had a few drinks that night too, which didn’t help the situation…”

35. [35]
    I have listened to the audio of this interview (and the other interviews) and heard Mr Karran express a small laugh or chuckle, when he said he “had a few drinks”. The impression given was that it was a minor incident. Mr Karran then explained:^[24]

“Oh and the police officers, um, chose to take out a DV order on me for that night, locking her out of the house, so what have you, and, um, I went to Court for that, and I pleaded guilty without admission and they gave me a DV.”

36. [36]
    Mr Karran later returned to the topic of his altercation with Mrs Karran where he said:^[25]

“I, I, I feel kind of guilty when I just sort of grabbed her, I just grabbed her around the throat and said “Be quiet, shut up”. … you know, and ah, and when she went out, apparently she went out the McDonalds to get her tea and … I just turned the power off to the roller door, she had keys to get into the house. Apparently the, all my gates, I had to unlock the gate for you, you won’t get through and of these gates…”

37. [37]
    Mr Karran later related to DSC Cottrell that the bruising to the face must have occurred when Mrs Karran hit the floor as that’s what Mrs Karran told him.^[26]
38. [38]
    It is arguable that the admissions made by Mr Karran at lines 147 to 150 and lines 292 to 293 were admissions of criminal conduct of an indictable offence, however, that is far from clear. Little detail of the event was obtained and reference by Mr Karran of a “little domestic” and that “she was in my face” may have suggested the defence of provocation or self-defence. It would be speculative in the extreme to reach any conclusion upon the limited information that had been provided. Furthermore, the actions of Mr Karran in grabbing Mrs Karran “on the throat like that” implies Mr Karran demonstrated the actions he took, yet there is no evidence that attempted to describe those actions. That is, DSC Cottrell was not asked what actions Mr Karran made when he used the phrase “grabbed her on the throat like that”. Again, the impression from the audio is that Mr Karran had described a minor incident. That is plainly a lie, but that was not known on 13 November 2017.
39. [39]
    Furthermore, as recorded above, Mr Karran had pleaded guilty without admission and received a DV order and therefore it was at least a reasonable argument that Mr Karran’s admissions to domestic violence, if they had been an indictable offence, may have been dealt with.
40. [40]
    The audio recording, in my view, fortifies DSC Cottrell’s view that he did not have any belief, when he spoke to Mr Karran on 13 November 2017, that Mr Karran had committed any indictable offence. The subjective circumstances support the acceptance of DSC Cottrell’s evidence. I accept DSC Cottrell as a witness of credit. Consequently, I find as a matter of fact that DSC Cottrell was not in the company of Mr Karran for the purpose of questioning Mr Karran as a suspect about his involvement in the commission of an indictable offence. Rather, I find DSC Cottrell interviewed Mr Karran in order to obtain information to assist the coroner in making a determination as to the cause of death.
41. [41]
    The audio of the interview and a reading of the transcript of the field interview of 13 November 2017 leads to the conclusion that Mr Karran volunteered the information to DSC Cottrell. There was no inducement, coercion, or any other untoward tactic employed by DSC Cottrell upon Mr Karran. The interview occurred in Mr Karran’s own home and with Mr Karran’s adult daughter present. The transcript does not appear to show that Mr Karran was overborne, uncomfortable or felt obliged to answer any questions, indeed, it is Mr Karran that volunteered the domestic violence incident^[27] and his regret for it.^[28]
42. [42]
    It is plain in the transcript that Mr Karran dominates the conversation in terms of volume of information provided. Mr Karran advised DSC Cottrell that he was willing to speak again, would provide a statement and was happy to correct the statement. Mr Karran’s adult daughter, identified in the transcript as “UP”, also participated in the interview, providing information on her step-mother’s health and medical records.
43. [43]
    It was Mr Karran’s daughter who asked for “A rundown of the situation, what’s actually going on”.^[29] DSC Cottrell then gives an explanation of the need for a statement being provided to the coroner and his intention to return to the station to type it all up and provide a draft statement and that the statement may be added to or changed. DSC Cottrell stated that the statement would then be provided to the coroner together with all the hospital and medical notes. The coroner would then determine if any further information was required.^[30]
44. [44]
    My conclusion is that the field interview of 13 November 2017 was a discussion or interview which was conducted fairly, with Mr Karran acting on a voluntary basis without inducement. I conclude Ch 15 Pt 3 of the PPRA has not been engaged as s 415(1) is not satisfied. As the information was provided lawfully, voluntarily, and without any deception, in my view there is no basis for its exclusion under the fairness, public policy or Christie discretions.

LEP Interview - 25 November 2018 at 9:20am to 10:13am

45. [45]
    Exhibit 2 is the transcript of the recording of the discussion between Mr Karran and DSC Cottrell on 14 November 2017. As recorded in Exhibit 2, DSC Cottrell had emailed Mr Karran’s draft statement to Mr Karran. The transcript records the telephone call commenced at 3:30pm with Mr Karran firstly stating that he did not get the draft statement prepared by DSC Cottrell then changing his mind to say he did get it and that he had “actually edited a whole heap of that stuff and I took it to a solicitor and he advised me not to sign it and say no more to the police…. That’s where we are at now”.^[31]
46. [46]
    I conclude that on 14 November 2017 Mr Karran exercised his right to silence.
47. [47]
    A coroner’s search warrant was then issued and executed on 17 December 2017 at Mr and Mrs Karran’s residential address. On 8 January 2018, DSC Cottrell received the exhibits from the search of 17 December 2017 which included the audio files contained on a black Olympus voice recorder which recorded what had occurred on 31 October 2017 and 1 November 2017. That recording caused Mr Karran to be a suspect in the killing of his wife, Mrs Karran.
48. [48]
    On 1 November 2018, DSC Cottrell executed a request for a law enforcement participant to be utilised with a person in custody (Exhibit 1). The copy of Exhibit 1 provided is unsigned, but it did indicate the request from DSC Cottrell to have an LEP deployed with a listening device in the Hervey Bay Watchhouse on 25 November 2018.
49. [49]
    DSC Cottrell was cross-examined upon the answers provided to the questions in Exhibit 1. Relevantly, the form asked a series of questions as follows:

“How long has suspect been in police custody? Not currently in custody.

How has suspect been interviewed by police? Not yet.

Has suspect refused to be interviewed/spoken to by police? Not yet.

Has suspect exercised their right to silence? Not yet.”

50. [50]
    DSC Cottrell maintained that his answers were accurate because Mr Karran had not been interviewed formally with respect to any allegation that he had killed his wife. I find that the answers were not accurate as the form does not distinguish between a formal interview of a suspect and an informal interview or chat. More importantly, I find that Mr Karran had exercised his right to silence. Despite those answers having been shown to be incorrect, I do accept DSC Cottrell as a witness of credit, as there is a difference between an informal interview of a person to obtain information and a formal interview of a suspect.
51. [51]
    The request was approved and an LEP was placed in Hervey Bay Watchhouse at 7:20am on 25 November 2018.
52. [52]
    On 25 November 2018, a search warrant was executed by DSC Cottrell at Mr Karran’s residential address. A transcript of the search warrant and proceedings is annexed to Mr Byrnes’ affidavit.^[32] The transcript shows that DSC Cottrell advised Mr Karran that he had a tape recorder running, he showed him the search warrant and gave him opportunity to read it. Mr Karran was detained. Mr Karran was expressly told that he was a suspect in relation to the killing of Mrs Karran and that as he was a suspect, Mr Karran was cautioned and provided with his rights as is required by the PPRA.
53. [53]
    Mr Karran, took up the offer to have a friend assist and advised DSC Cottrell that he would pop over to see his neighbour.^[33] DSC Cottrell told Mr Karan that he would not ask him any questions.^[34] Despite this, Mr Karran continued speaking with police officers. Mr Karran was not prompted by DSC Cottrell but was, on occasion, prompted by the other attending officer, Sergeant Guild.
54. [54]
    As Mr Karran was detained, he raised a concern that he would not be able to attend lawn bowls at 10:00am. DSC Cottrell organised a message to be provided to Mr Karran’s skipper that he could not attend and they would need to find another player for their team. There were then general discussions over many pages of transcript.
55. [55]
    Mr Karran then, after much discussion, brought up the issue of the health of his deceased wife^[35] to which DSC Cottrell asked Mr Karran again whether he wanted his neighbour to be present while they were having any discussions.
56. [56]
    DSC Cottrell told Mr Karran that a phone call was available to him and there was no problem with him calling his neighbour to which Mr Karran responded “Ah, no. It’s alright. I’ll just, I’ll just have a chat with you blokes”.^[36] DSC Cottrell asked Mr Karran “Are you sure?” and Mr Karran said “Yep”.
57. [57]
    DSC Cottrell then again advised Mr Karran that if he wished to talk to his neighbour or have him present, then there would be no problem with that occurring. The audio is consistent with Mr Karran volunteering to answer questions, his will was not overborne.
58. [58]
    The primary argument brought on behalf of Mr Karran is that, as Mr Karran exercised his right to silence on 14 November 2017, that right ought to have been respected and the LEP ought not to have been placed in the holding cell with Mr Karran. 
59. [59]
    In my view the evidence shows that although Mr Karran had exercised his right to silence on 14 November 2017, Mr Karran had, despite being given all proper warnings, waived his right towards the end of his first interview of 25 November 2018 from 7:50am to 9:05am.^[37]
60. [60]
    At 9:20am, Mr Karran was placed in the same cell as the LEP and a conversation occurred between Mr Karran and the LEP about the reasons for Mr Karran’s detention. During discussions, Mr Karran is recorded as saying that he did not murder his wife. Mr Karran engaged in many discussions about Mrs Karran’s state of health. Later on 25 November 2018, Mr Karran again exercised his right to silence after he had taken legal advice.^[38]

61. [61]
    Section 396 of the PPRA provides:

396Chapter does not apply to covert operations

This chapter does not apply to functions of a police officer performed in a covert way.

62. [62]
    Pursuant to s 396, the protections expressly provided for in Ch 15 Pt 3, namely, the warnings given to a suspect, the information of a suspect to their right to silence, and their right to obtain assistance from a friend, relative or lawyer, are not engaged in respect of the LEP recording.  However, the common law continues to apply to provide the court with a series of discretions to exclude evidence that was obtained by covert means. Evidence may be excluded by exercise of the fairness discretion, the public policy discretion, and/or the Christie discretion. In R v Swaffield (1998) 192 CLR 159 Toohey, Gaudron and Gummon JJ from [80] to [98] discussed the principles of discretionary exclusion of conversations secretly recorded.
63. [63]
    Prior to considering the discretions, it is necessary to consider the content of the conversation between the LEP and Mr Karran which occurred from approximately 9:20am on 25 November 2018 until 10:13am. In many cases, a LEP records a confession or admissions from an accused person and when the circumstances of the obtaining of the confession or admissions are shown to be involuntary, unreliable or against public policy, those admissions or confessions ought not to be admitted.
64. [64]
    Mr Karran’s case is significantly different. Mr Karran did not provide any damning admissions or confessions to the LEP, but to the contrary, asserted that he “never hit her, never did anything to her, raped her, … if she was raped, I would like to know who it was…”.^[39]
65. [65]
    Information provided by Mr Karran to the LEP, however, does provide a narrative of his observations of the state of health of Mrs Karran leading up to her death. That may be relevant to an assessment of causation and an assessment of the expert evidence of the cause of Mrs Karran’s death. Furthermore, as submitted on behalf of the prosecution, knowledge of the state of Mrs Karran’s health on the part of  Mr Karran may be relevant to issues which may be raise under s 23 and s 24 of the Criminal Code.
66. [66]
    The prosecution submits that the LEP recording contains “Edwards” type lies on behalf of Mr Karran about how Mrs Karran came to be injured, the state of their relationship and the level and nature of their physical interactions. I accept the prosecution’s submissions that the LEP interview (and the field interview) does record a number of lies, but there were limited submissions on the use to which the lies may be put. The prosecutor’s submissions identify 14 specific lies, which they submit are “Edwards type lies”.^[40] The defence orally submits that admission of the lies complicates the trial as it requires complex directions and is of little “value”.^[41]
67. [67]
    Mr Karran could not have been clearer to the LEP in claiming that he did not hit nor do anything to Mrs Karran. That cannot be accepted in light of the recording of 31 October 2017 and 1 November 2017. That Mr Karran told several lies is plain, the use to which the lies can be put and any necessary directions, in my view, ought to be decided after further submissions. The lies form a small part of the recording. My current view is that the lies are prima facie Edwards type lies which can be admitted with careful directions. The LEP recording contains much more relevant evidence than the limited number of lies.
68. [68]
    Mr Karran’s admission that he did not see Mrs Karran have a fall may be important, particularly in circumstances where Mr Karran has alleged that Mrs Karran said she did have a fall and that Mrs Karran is recorded in the Hervey Bay Hospital notes as stating she had a fall. Mr Karran’s discussion with the LEP that he was in Mrs Karran’s company on the evening of 31 October 2017 and for the next two days, with the exception of his time in the watchhouse, is important, because the issue of the cause of Mrs Karran’s head injury will likely be a central factual issue at trial. In my view, a jury or other trier of fact is required to weigh up Mrs Karran’s explanation to the Hervey Bay Hospital on 1 November 2017 that the cause for her injuries was her fall, with her contrary assertion at the Prince Charles Hospital on 2 November 2017 that she had been involved in a motor vehicle accident (which did not occur) and with Mr Karran’s statement to the LEP that he did not see her fall, in determining what facts the jury or other trier of fact wishes to accept.
69. [69]
    Applying the fairness discretion as discussed in Swaffield, it is often the case that reliability of an admission or confession is the most important matter. The only part of the LEP’s discussion with Mr Karran that could be interpreted as an admission is Mr Karran’s statement that he did not see Mrs Karran fall. There is no basis to conclude that statement from Mr Karran was unreliable. The argument brought on Mr Karran’s behalf in respect of the fairness discretion, the public policy discretion and the Christie discretion is that it is unfair to admit Mr Karran’s discussion with the LEP because Mr Karran had, on 14 November 2017, exercised his right to silence.
70. [70]
    As discussed above, whilst I accept that Mr Karran did exercise his right to silence on 14 November 2017, Mr Karran had that very morning and just prior to his discussion with the LEP been fully advised of his rights and waived his right to silence. In the circumstances, I am not persuaded that it is unfair upon Mr Karran to admit the LEP discussion of 25 November 2018.
71. [71]
    The audio and transcript of the LEP conversation with Mr Karran also shows that whilst the LEP did commence the conversation, he ultimately played a minor part in the conversation, with the vast majority of information being provided, seemingly in a direct and voluntary manner, from Mr Karran. The audio does support the conclusion that Mr Karran voluntarily entered into the discussion with the LEP. I consider that the public policy discretion ought not to be exercised in Mr Karran’s favour.
72. [72]
    As to the Christie discretion, whilst it may be accepted that the LEP interview does have some prejudicial effect, particularly with respect to the Edwards lies, I would not conclude that the information is highly prejudicial. The information does not contain any confession or any serious admissions and in fact only contains one minor admission, that Mr Karran did not personally observe Mrs Karran fall and injure herself. As to the Edwards lies, the prejudicial effect of those may be dealt with by directions.
73. [73]
    As to its probative value, however, it seems to me that the LEP recording has some probative value, not only in respect of the admission that Mr Karran did not see Mrs Karran fall and suffer injury but also provides a great deal of detail as to Mrs Karran’s health, not only in the few days prior to her death but also over a longer period of time. These matters may be highly relevant as to the cause of Mrs Karran’s death.
74. [74]
    I conclude that the LED interview is admissible.