Byers v The Commissioner of Police [2022] QDC 98

DISTRICT COURT OF QUEENSLAND CITATION: Byers v The Commissioner of Police [2022] QDC 98 PARTIES: Dylan James Byers (Appellant) v The Commissioner of Police (Respondent) FILE NO/S: BD 1767 of 2021 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Richlands DELIVERED ON: 4 May 2022 DELIVERED AT: Brisbane HEARING DATE: 29 April 2022 JUDGE: Kefford DCJ ORDER: 1. The appeal is allowed, and the conviction is quashed. 2. The appellant is acquitted of the charge of dangerous operation of a motor vehicle. He is discharged in respect of that charge. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where the appeal against conviction was brought pursuant to s 222 of the Justices Act 1886 (Qld) – whether the conviction was unsafe and unsatisfactory CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – IMPROPER ADMISSION OF EVIDENCE – ADMISSIONS – where police interview was conducted with the appellant – where there was no strict compliance with s 418 and s 431 of the Police Powers and Responsibilities Act 2000 – whether there was substantial compliance with the obligation to advise the appellant of his right to have a lawyer present – whether the electronically recorded interview should be excluded in the exercise of the discretion LEGISLATION: Criminal Code (Qld), ss 668E, 669 District Court of Queensland Act 1967 (Qld), s 113 Justices Act 1886 (Qld), ss 222, 223, 225 -- 1 of 20 -- 2 Police Powers and Responsibilities Act 2000 (Qld), ss 5, 7, 418, 431, sch 6 Police Powers and Responsibilities Regulation 2012 (Qld), s 28, sch 9 CASES: Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, applied Foster v The Queen [1993] HCA 80; (1993) 67 ALJR 550; (1993) 66 A Crim R 112, applied Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, applied Lee v Lee & Ors [2019] HCA 28; (2019) 266 CLR 129, applied The Queen v Swaffield [1998] HCA 1; (1998) 192 CLR 159, applied R v LR [2005] QCA 368; [2006] 1 Qd R 435, applied COUNSEL: E J Engwirda for the Appellant B R Crook (sol) for the Respondent SOLICITORS: Donnelly Law Group for the Appellant Office of the Director of Public Prosecutions for the Respondent TABLE OF CONTENTS Introduction .......................................................................................................................... 3 What are the grounds of appeal? .......................................................................................... 3 What is the nature of the appeal? ......................................................................................... 3 What was the prosecution’s case at trial? ............................................................................. 6 What were the findings of the Magistrate about the admissibility of the electronic record of interview? ......................................................................................................................... 7 What facts emerge from the electronic record of interview? ............................................... 8 Was there compliance with the requirements of the Police Powers and Responsibilities Act 2000? .............................................................................................................................. 9 Should the record of interview have been excluded? ......................................................... 14 Should the record of interview have been excluded based on unfairness to the appellant? ........................................................................................................................................ 16 Should the record of interview have been excluded based on the public policy discretion? ...................................................................................................................... 17 Is the conviction unsafe and unsatisfactory? ...................................................................... 18 Orders ................................................................................................................................. 20 -- 2 of 20 -- 3 Introduction [1] This is an appeal, under s 222 of the Justices Act 1886, against the appellant’s conviction on a charge of dangerous operation of a motor vehicle. The conviction followed a trial in the Magistrates Court at Richlands on 9 July 2021. The appellant was fined $1,000, no conviction was recorded, and his licence was disqualified for eight months. [2] At the trial, the appellant admitted that on 20 September 2020 a motor vehicle on Viking Drive at Wacol was operated dangerously. However, he put in issue the identity of the operator of the motor vehicle. [3] At the outset of the trial, the appellant made an application to exclude a recorded interview with police in which he admitted to being the operator of the motor vehicle. His application was unsuccessful. What are the grounds of appeal? [4] The Notice of Appeal records that the appellant’s grounds of appeal are: “1. The Magistrate erred in admitting the Record of Interview with the Appellant a. The Magistrate erred in concluding that the interviewer had substantially complied with s 23 of the Police Responsibilities Code 2000. b. The Magistrate erred in the application of the unfairness discretion to the Record of Interview. c. The Magistrate failed to consider the public policy discretion in deciding whether to admit the Record of Interview. 2. The conviction was unsafe and unsatisfactory.” What is the nature of the appeal? [5] The appeal is by way of rehearing on the evidence given before the Magistrates Court rather than a completely fresh hearing (subject to the grant of leave, on special grounds, to adduce fresh, additional, or substituted evidence).1 On the hearing of the appeal, the court can confirm, set aside, or vary the appealed order or make any other order that it considers just.2 The court can exercise any power that could have been exercised at first instance.3 1 Justices Act 1886 (Qld) s 223. 2 Justices Act 1886 (Qld) s 225(1). 3 Justices Act 1886 (Qld) s 225(3). -- 3 of 20 -- 4 [6] In Fox v Percy,4 Gleeson CJ, Gummow and Kirby JJ explained the task of the appellate court hearing an appeal by way of rehearing. They observe: “[22] The nature of the “rehearing” provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal. [23] The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. [24] Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge’s detailed reasons. 4 [2003] HCA 22; (2003) 214 CLR 118. -- 4 of 20 -- 5 [25] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that: “[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.” As this Court there said, that approach was “not only sound in law, but beneficial in … operation”.”5 [7] More recently, in Lee v Lee & Ors,6 Bell, Gageler, Nettle and Edelman JJ observed: “[55] A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge” …7 [8] Before considering the grounds of appeal, it is helpful to understand the prosecution case at trial. 5 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125-7 [22]-[25] (citations omitted). 6 [2019] HCA 28; (2019) 266 CLR 129. 7 Lee v Lee & Ors [2019] HCA 28; (2019) 266 CLR 129, 148-9 [55]-[56] (citations omitted). -- 5 of 20 -- 6 What was the prosecution’s case at trial? [9] The investigating police officer, Senior Constable Teresa Anderson was the only witness for the prosecution. On 19 September 2020, Senior Constable Anderson was rostered to perform covert video recording duties at Viking Drive at Wacol. [10] Viking Drive is a cul-de-sac street in an industrial area. It is lined with businesses. Just after 2 am on 20 September 2020, a large group of vehicles attended the location. Senior Constable Anderson started videorecording the area on their arrival. The recording was copied to a disc, which was admitted as Exhibit 2. [11] In response to a leading question, Senior Constable Anderson confirmed that the videorecording captured actions of the defendant in his vehicle. [12] Senior Constable Anderson also obtained CCTV footage from a video camera attached to the side of a building in Viking Drive. It was admitted as Exhibit 1. Still images of the motor vehicle involved at the scene were taken from the recordings. The images were admitted as Exhibit 3. [13] Sometime after the incident, Senior Constable Anderson attended the appellant’s address and spoke to the appellant’s father. As a result of that conversation, the appellant attended Mount Ommaney police station with his father and participated in an electronically recorded interview. [14] Senior Constable Anderson gave the following evidence about the interview: “All right. Now, just in relation to the record of interview, did the defendant identify himself as being in the vehicle in question?-- That's correct. Did he make admissions in relation to the driving?-- During the – during the record of interview, the defendant stated that it was his car, no one else drives it. And then he then made a mention that it was his brother that was driving the car. However, there was an altercation that occurred that night and then I observed the defendant run from the side of the road where the altercation was occurring, get into his car, and that’s when he also made admissions that he was the driver of the vehicle; he was driving at the time that the offence occurred. And he made admissions to his pattern of driving?-- That's correct. So during questioning, the defendant made admissions that – I asked if he believed that his driving was dangerous.” [15] A copy of the electronic record of interview was admitted as Exhibit 4. [16] When cross-examined about the arrangements for the interview, Senior Constable Anderson admitted that the arrangements were made with the appellant’s father. The first occasion she spoke with the appellant was when he arrived at the police station for the record of interview. Senior Constable Anderson had no discussions with the appellant before the recorded interview about the substance of what was to take place in the interview. -- 6 of 20 -- 7 What were the findings of the Magistrate about the admissibility of the electronic record of interview? [17] Prior to the commencement of the hearing, there was a voir dire in relation to the admissibility of the electronic record of interview. [18] In ruling on the voir dire, the learned Magistrate said: “This is an argument as to whether the admissibility of the record of interview conducted between the defendant and police regarding this offence is admissible, and it centres on the warnings given by the police to the defendant at the start of the interview within the first seven minutes of it. There’s no dispute, or it seems no dispute, the precise words as required by the section, or set out in the section I should say, were not used by the interviewing police officer at the time of the interview. But, in my view, substantial compliance with the requirements of the section 418 of the PBRA is made out. The defendant knows he can have a friend or relative present. His dad is there. And his dad says out loud, in front of the defendant, in a clear way, what he knows his role to be, including if he thinks that the interview is unfair that he can stop it. His father also says out loud, and next to the defendant, that the father can stop the interview for legal advice. The only reasonable interpretation of this in the context is legal advice for the son. I do not accept that anyone could really strain to think that means legal advice for the person as a support person at that time. He was there supporting his son, and that would be what the legal advice would be for. Now, further, the defendant knows, or knew at the time, he was not under arrest. He knew he was there voluntarily for the interview. And he acknowledged that he did not have to say anything to the police. He was told that he could call a lawyer to tell them where he was for an interview. The only reasonable way to see that phrase is that he could call the solicitor for legal advice. What else would he do it for? It would not make sense at all to any person simply to tell them the location of him. It seems plain to me that he would do it for legal advice. That’s what you call lawyers for. He had already had a support person, so he didn’t need to call a support person. The support person articulated that the interview could be stopped for legal advice. The defendant, after hearing the statement from the police officer, which wasn’t in the most fulsome terms as set out in the section, but certainly in substantial compliance with it – after hearing that statement about contacting a lawyer, turns to his support person, his father, who had not so long earlier said the interview could be stopped for legal advice, to seek guidance from him, it seems. And looked to him as to what to do. And it seems, following that look, decided to push on anyway. So he knew that he could stop the interview. He knew that he could contact a solicitor, and he chose not to do that. … -- 7 of 20 -- 8 He acknowledged earlier that he had a right to silence. He acknowledged that he could speak to a solicitor if he wished, and he wished to push on voluntarily, and he didn’t wish to contact a solicitor. And the only reason to contact a solicitor would be for advice, in my view. In my view, all of the words said and the interactions at the interview room satisfy me that he understood the rights to consult a solicitor and to seek advice from them about what to say to police, and he chose not to do so. The words were in substantial compliance with the provision. It was not unfair. His rights have not been diminished in any way. The interview is, therefore, admissible.” What facts emerge from the electronic record of interview? [19] A review of the electronic record of interview reveals the following facts that are material to a determination of whether the record of interview should be excluded as a matter of judicial discretion. [20] At the outset of the interview, after the two police officers present identified themselves, Senior Constable Anderson asked that the appellant and his father identify themselves. She ascertained that the appellant had not been interviewed in the last 24 hours and asked him to confirm that he understood the nature of the interview as one that would be electronically recorded. [21] In relation to the process of recording the interview, Senior Constable Anderson explained that the appellant should not talk over the top of others and that “basically, all I need you to do is to answer the questions”. She explained that the appellant was not to just nod or shake his head. After this, Senior Constable Anderson established that the appellant was there of his own free will and that he had not received any threat, inducement, or promise. She confirmed that the appellant understood that he was free to leave at any time unless he was arrested and that he had a right to remain silent. [22] Senior Constable Anderson then spoke to the appellant’s father, who was also present in the electronic record of interview. Senior Constable Anderson asked the appellant’s father about whether he had been provided with information about his role as a support person. She also asked that he explain to her what he understood his role to involve. He indicated that he understood that he was there to support his son if he was being unfairly questioned. He said, “I can get him not to answer and get legal advice.” It was not entirely clear whether the father was saying that he could get his son legal advice or that he could get it for himself. The father was then asked whether he had had an opportunity to speak with his son in private and whether he wanted such an opportunity. The question was directed to the father, not to the appellant. [23] After speaking to the appellant’s father, Senior Constable Anderson commenced questioning the appellant. She established his name, address, age, where he was born, who he lived with, his contact number, next of kin, level of schooling, and his ability to comprehend the English language. She then asked the appellant about whether he worked, whether he was employed on a full-time or part-time basis, how long he had worked for, his occupation, whether he was suffering from any illness or injury, whether he was affected by any medication, drugs, or alcohol. Next the police officer -- 8 of 20 -- 9 questioned the appellant about whether he had any distinguishing marks, such as a tattoo. After traversing all those issues, and after shuffling papers about, Senior Constable Anderson said, “Do you wish to contact a lawyer or solicitor to inform them where you are for the interview?” The appellant answered “no”. As I have mentioned, he appeared hesitant in his response, and he turned to look at this father straight after giving it. Senior Constable Anderson continued with her questioning of the appellant without pause. [24] On my review of the electronic record of interview, when Senior Constable Anderson was asking the appellant’s father about whether he understood his role, Senior Constable Anderson was working through a checklist of notes that she had in front of her. She paid attention to the father’s answers and had him explain things in his own words to ensure he understood. Less care was taken by the police officer when informing the appellant of his rights and ensuring that he understood. When engaging with the appellant on issues about his rights, Senior Constable Anderson appeared to be rushing through a checklist. She was careless about whether her questions were understood. She barely looked at the appellant, and certainly did not appear to watch to see if he understood the nature of what she was telling him. She was less attentive about his level of understanding than she had been with the appellant’s father. [25] The question of the appellant about whether he wanted to contact a lawyer was not asked shortly after his father had referenced the right to get advice from a lawyer. It was asked after many intervening questions had already been asked of the appellant. The question appeared to be an afterthought of the police officer after shuffling her paper about. She appeared to be rushing the question and keen to simply move on. She did not look at the appellant. She appeared unconcerned whether he understood the question. Unlike when engaging with the appellant’s father, Senior Constable Anderson did not ask the appellant to explain his understanding of his rights in his own words. Had Senior Constable Anderson looked at the appellant, she may have noticed that he seemed hesitant when he answered “no”, and after answering the question he looked to his father for apparent approval of the answer he had given. Was there compliance with the requirements of the Police Powers and Responsibilities Act 2000? [26] Section 5 of the Police Powers and Responsibilities Act 2000 records that the purposes of the Act are, amongst other things, to provide powers necessary for effective modern policing and law enforcement and to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under the Act. It is Parliament’s intention that police officers should comply with the Police Powers and Responsibilities Act 2000.8 [27] Chapter 15 of the Police Powers and Responsibilities Act 2000 sets out powers and responsibilities relating to investigations and questioning. Part 3 of chp 15 contains statutory safeguards designed to ensure fairness to persons, such as the appellant, who are being questioned as a suspect about the person’s involvement in the commission 8 Police Powers and Responsibilities Act 2000 s 7. -- 9 of 20 -- 10 of an indictable offence.9 Relevantly, pt 3, div 2 of chp 15 of the Police Powers and Responsibilities Act 2000 includes: “418 Right to communicate with friend, relative or lawyer (1) Before a police officer starts to question a relevant person for an indictable offence, the police officer must inform the person he or she may— (a) telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; and (b) telephone or speak to a lawyer of the person’s choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning. (2) The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person mentioned in subsection (1). (3) If the person arranges for someone to be present, the police officer must delay the questioning for a reasonable time to allow the other person to arrive. (4) What is a reasonable time to delay questioning to allow a friend, relative or lawyer to arrive at the place of questioning will depend on the particular circumstances, including, for example— (a) how far the person has to travel to the place; and (b) when the person indicated he or she would arrive at the place. (5) What is a reasonable time to delay questioning to allow the relevant person to speak to a friend, relative or lawyer will depend on the particular circumstances, including, for example, the number and complexity of the matters under investigation. (6) Unless special circumstances exist, a delay of more than 2 hours may be unreasonable. 419 Speaking to and presence of friend, relative or lawyer (1) If the relevant person asks to speak to a friend, relative or lawyer, the investigating police officer must— (a) as soon as practicable, provide reasonable facilities to enable the person to speak to the other person; and (b) if the other person is a lawyer and it is reasonably practicable—allow the relevant person to speak to 9 Police Powers and Responsibilities Act 2000 s 415. -- 10 of 20 -- 11 the lawyer in circumstances in which the conversation can not be overheard. (2) If the relevant person arranges for another person to be present during questioning, the investigating police officer must also allow the other person to be present and give advice to the relevant person during the questioning. (3) If the police officer considers the other person is unreasonably interfering with the questioning, the police officer may exclude the person from being present during questioning. (4) This section does not apply to a person who is an Aboriginal person, Torres Strait Islander person or a child. Note— For Aboriginal peoples and Torres Strait Islander peoples, see section 420 and for children, see section 421. ” [28] Chapter 15, pt 3, div 6 of the Police Powers and Responsibilities Act 2000 relates to cautioning and rights of persons. It includes: “431 Cautioning 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.” [29] The “responsibilities code” is the Police Responsibilities Code 2012.10 10 Police Powers and Responsibilities Act 2000 sch 6, Police Powers and Responsibilities Regulation 2012 s 28 and sch 9. -- 11 of 20 -- 12 [30] Section 23 of the Police Responsibilities Code 2012 provides: “23 Right to communicate with friend, relative or lawyer (1) If a police officer is required to inform a relevant person of the matters mentioned in section 418(1)(a) or (b) of the Act, the police officer must inform the person in a way substantially complying with the following— ‘You have the right to telephone or speak to a friend or relative to inform that person where you are and to ask him or her to be present during questioning. You also have the right to telephone or speak to a lawyer of your choice to inform the lawyer where you are and to arrange or attempt to arrange for the lawyer to be present during questioning. If you want to telephone or speak to any of these people, questioning will be delayed for a reasonable time for that purpose. Is there anyone you wish to telephone or speak to?’. (2) If the police officer reasonably suspects the relevant person does not understand the information, the police officer may ask the relevant person to explain the meaning of the information in the person’s own words. (3) If necessary, the police officer must further explain the information. (4) If the relevant person wants to speak to a lawyer, the police officer must, without unreasonable delay, make available to the person— (a) if the police officer has available a list of lawyers for the region and the person has not asked to speak to a particular lawyer—the list; or (b) a telephone directory for the region. (5) A police officer must not do or say anything with the intention of— (a) dissuading the relevant person from obtaining legal advice; or (b) persuading a relevant person to arrange for a particular lawyer to be present.” [31] In R v LR,11 Keane JA (with whom McPherson JA and Douglas J agree) explains: “[46] … These provisions exist to ensure that a suspect is able to obtain advice about what should be said to police. In other 11 [2005] QCA 368; [2006] 1 Qd R 435. -- 12 of 20 -- 13 words, the purpose of these provisions is to ensure that a suspect is aware of, and in a position to exercise, the right to silence in the face of police questioning. …”12 [32] The appellant contends that the Magistrate erred in determining that the police officer had substantially complied with the prescribed form of caution. He says that the reasons provided by the Magistrate indicate that the Magistrate conflated the discretion to exclude the record of interview based on unfairness with the consideration of whether the caution was in the proper form. Counsel for the appellant says that the conflation is apparent from the findings that the interactions were not unfair. He says the Magistrate only needed to consider the question of fairness if there was not substantial compliance. [33] The respondent contends that the caution given by the police officer substantially complied with that required under s 23 of the Police Responsibilities Code 2012. It says that the warning was similar enough that the appellant would have understood that he was entitled to contact a solicitor or lawyer for the interview for the purposes of obtaining legal advice. [34] The information given to the appellant about his right to consult a lawyer differed substantially from that required under ss 418 and 431 of the Police Powers and Responsibilities Act 2000 and s 23 of the Police Responsibilities Code 2012. Although the appellant was asked whether he wished to contact a lawyer to inform them where he was for the interview, he was not told that he had a right to telephone or speak to a lawyer or that he had the right to arrange for the lawyer to be present during questioning. It was never squarely put to the appellant that he could have a lawyer present and that the questioning would be delayed for a reasonable time for that purpose. [35] As I have noted, the appellant answered “no” to the question “Do you wish to contact a lawyer or solicitor to inform them where you are for the interview?”. It is unclear from that answer whether the appellant understood that he had the right to arrange for a lawyer to be present during questioning. It is also unclear whether the appellant understood that, if he wished to have a lawyer present, the questioning would be delayed for a reasonable time for that purpose. [36] As was observed by Keane JA (with whom McPherson JA and Douglas J agree) in R v LR:13 “[48] … It is true that the investigating officer had no responsibility to determine whether or not the appellant required legal representation. That was a decision for the appellant. It was the responsibility of the interviewing officer however, pursuant to s. 249(1),14 to ensure that the appellant understood that there was an important decision to be made and that the decision needed to be made decisively one way or the other.”15 12 R v LR [2005] QCA 368; [2006] 1 Qd R 435, 449-50 [46]. 13 [2005] QCA 368; [2006] 1 Qd R 435. 14 The provision referred to by Keane JA is in identical terms. See R v LR [2005] QCA 368; [2006] 1 Qd R 435, 448 [42] and 450 [46]. 15 R v LR [2005] QCA 368; [2006] 1 Qd R 435, 451 [48]. -- 13 of 20 -- 14 [37] The interviewing police officer did not discharge the obligations that she owed the appellant pursuant to ss 418 and 431 of the Police Powers and Responsibilities Act 2000 and s 23 of the Police Responsibilities Code 2012. Should the record of interview have been excluded? [38] As the police officer did not discharge the obligations that she owed the appellant pursuant to ss 418 and 431 of the Police Powers and Responsibilities Act 2000 and s 23 of the Police Responsibilities Code 2012, the issue then arises as to whether it should be excluded. [39] In R v LR,16 Keane JA (with whom McPherson JA and Douglas J agree) observed: “[51] The circumstance that the record of interview was obtained in contravention of the PPR Act does not of itself meant that it should have been excluded by the trial judge. Illegality or impropriety on the part of law enforcement officers that results in the making of a confession merely enlivens a discretion to exclude the confession on the grounds of unfairness. The provisions of the PPR Act to which I have referred to not purport expressly to govern the admissibility of evidence, but the authorities suggest that they are to be “regarded as a yardstick against which issues of unfairness (and impropriety) may be measured. [52] The decision of the High Court in The Queen v Swaffield, and in particular the joint judgment of Toohey, Gaurdron and Gummow JJ, requires that the discretion to exclude confessional evidence should be exercised, where voluntariness is not in issue, by reference to considerations of reliability and respect for the right of an accused to stay silent. As their Honours said: “… the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confession statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.” … [54] In these circumstances, the judicial discretion also fell to be exercised against the background that the interview had proceeded in breach of the provisions of the PPR Act designed, not merely to protect against the possibility of coerced confessions, but also to ensure the reliability of what an accused may say against his or her own interest and to ensure the free exercise of the right of the accused to stay silent. [55] There may be cases where, despite a confession being obtained in breach of the requirements of the PPR Act, there is no real reason to doubt that the accused was willing and able to give a 16 [2005] QCA 368; [2006] 1 Qd R 435. -- 14 of 20 -- 15 reliable account of events. This case was not such a case. In my respectful opinion, the learned trial judge should have exercised his discretion to exclude the confession.”17 [40] In Foster v The Queen,18 Mason CJ, Deane, Dawson, Toohey and Gaudron JJ observed: “It is now settled that, in a case where a voluntary confessional statement has been procured by unlawful police conduct, a trial judge should, if appropriate objection is taken on behalf of the accused, consider whether appropriate objection is taken on behalf of the accused, consider whether evidence of the statement should be excluded in the exercise of either or two independent discretions. The first of those discretions exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements. It is the discretion to exclude evidence on the ground that its reception would be unfair to the accused, a discretion which is not confined to unlawfully obtained evidence. The second of those discretions is a particular instance of a discretion which exists in relation to unlawfully obtained evidence generally, whether confessional or “real”. It is the discretion to exclude evidence of such a confessional statement on public policy grounds. The considerations relevant to the exercise of each discretion have been identified in a number of past cases in the Court. To no small extent, they overlap. The focus of the two discretions is, however, different. In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on “large matters of public policy” and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case. In a case where both discretions are relied upon to support an application for the exclusion of a voluntary incriminating statement obtained by unlawful police conduct, it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair to the accused. It is so in the present case.”19 [41] The appellant contends that the electronic record of interview should have been excluded in the exercise of discretion on the basis that it would be unfair to the accused and based on the public policy discretion. The respondent disagrees. It says the exclusion of the confession was not warranted on either ground. 17 R v LR [2005] QCA 368; [2006] 1 Qd R 435, 451-2 [51]-[55] citing The Queen v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 181 [26] (citations omitted). 18 [1993] HCA 80; (1993) 67 ALJR 550; (1993) 66 A Crim R 112. 19 Foster v The Queen [1993] HCA 80; (1993) 67 ALJR 550; (1993) 66 A Crim R 112, 117-8. -- 15 of 20 -- 16 Should the record of interview have been excluded based on unfairness to the appellant? [42] The Court possesses a general discretion to exclude admissible evidence if its reception will operate unfairly against the accused.20 The exercise of the discretion calls for a judgment about the propriety of how the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.21 The question is not whether the accused was treated unfairly; it is whether the reception of evidence of the confession would be unfair to him.22 The onus lies on the appellant to demonstrate, on the balance of probabilities, that the admission of the evidence would be unfair.23 [43] The appellant submits that the reception of the evidence would be unfair. He says that there is no other evidence that he was the driver of the vehicle. Further, if the police had referred to his right to have a lawyer, he may have realised the importance of the police’s query about whether he wished to contact a lawyer. Counsel for the appellant notes that after having answered “no” to the query about whether he wishes to tell a lawyer where he is, the appellant turns to look for his father in a way that suggests he was looking for guidance about whether he had made the right decision. [44] The respondent submits that the non-compliance with the police’s obligation to provide the relevant information about the right to have a lawyer present is of no effect. It says this is because the critical right was the right to silence, and the appellant waived that right and chose to answer questions. The respondent notes that the appellant was also present when his father referred to the ability to get advice from a lawyer. [45] I accept that the admissions made by the appellant in the electronic record of interview are reliable. The appellant accepts that he was the driver and tells police that he believed the way he was driving was dangerous. Nevertheless, I am satisfied that the appellant has demonstrated that there was unfairness sufficient to justify the exercise of the discretion to exclude the evidence. The appellant is a young man. He attended the police station to participate in an interview because of arrangements made with his father. On my review of the electronic record of interview, I am satisfied that when the appellant responded “no” to the question “Do you wish to contact a lawyer or solicitor to inform them where you are for the interview?”, he appeared sufficiently uncertain about whether he made the correct choice as to cause him to turn to his father for guidance. [46] Further, I do not accept that the failure to provide the necessary information was of no effect. Although the appellant chose not to exercise his right to silence, if he had understood that the questioning could be delayed allowing him to get a lawyer, he may have exercised his right to arrange one and, with the benefit of legal advice, he may have elected to exercise his right to silence. As such, his choice was made without the benefit of legal advice, which he may have availed himself of had he been provided the required information. 20 Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 68-9. 21 McDermott v The King [1948] HCA 23; (1948) 76 CLR 501, 513. 22 Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 18. 23 Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 19. -- 16 of 20 -- 17 Should the record of interview have been excluded based on the public policy discretion? [47] The public policy discretion is underpinned by society’s right to insist that those who enforce the law themselves respect it.24 The public policy discretion requires the weighing against each other of two competing requirements of public policy to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given the unlawful conduct of those whose task it is to enforce the law.25 [48] Some considerations that may be relevant to whether evidence should be excluded in exercise of the public policy discretion are: (a) whether the conduct involves a deliberate or reckless disregard for the law by those whose duty it is to enforce it; (b) whether the nature of the illegality affects the cogency of the evidence so obtained. Cogency should, generally, be allowed to play no part in the exercise of the discretion where the illegality involved in procuring it is intentional or reckless unless, for example, the evidence is vital to conviction and is of a perishable or evanescent nature so that it will cease to exist if there is a delay in securing it; (c) the ease with which the law might have been complied with in procuring the evidence in question. A deliberate “cutting of corners” would tend against the admissibility of evidence illegally obtained; (d) the comparative seriousness of the nature of the offence charged and the unlawful conduct of the law enforcement authority; and (e) whether there is a deliberate intent on the part of the legislature to narrowly restrict the police in their powers.26 [49] Here, there are three matters that tell against the exercise of the discretion. [50] First, while there was a breach of the requirements of the Police Powers and Responsibilities Act 2000 and the Police Responsibilities Code 2012, there is no real reason to doubt that the appellant was willing and able to give a reliable account of events. As such, the breaches did not affect the cogency of the admission by the appellant. [51] Second, it seems to me that the admission was vital to conviction. [52] Third, while the offence is not one of the most serious crimes, it is the type of offence that places the safety of others in jeopardy. [53] Against those considerations, I must weigh those considerations that favour the exercise of the discretion. There are four such considerations in this case. 24 Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 75. 25 Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 74. 26 Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 78-80. -- 17 of 20 -- 18 [54] First, in my view, the conduct of the police officer involved a reckless disregard for the law, if not a deliberate one. I infer that having regard to the following circumstances. [55] The interview had been arranged in advance. As such, the police officer had time to ensure she was adequately prepared with notes about all the information that was to be provided. In the initial stages of the interview, the police officer appeared to be working from notes of such a nature. In those circumstances, it is reasonable to infer that she either deliberately or recklessly ignored any notes that she had made about the information that was required to be provided or was reckless in failing to make adequate notes about the matter. [56] Further, while the police officer did make some reference to the appellant’s ability to contact a lawyer, she chose not to do so immediately after the appellant’s father had made mention of the ability to contact a lawyer. Instead, she commenced questioning the appellant about other matters. Some of the questions asked were, no doubt, designed to ascertain the appellant’s capacity to understand what he was being told. Other questions related to matters about which the appellant could be legitimately required to provide answers, such as his correct address. Had the appellant obtained a solicitor, his solicitor’s advice must have been that he was compelled to give information of that nature. However, some of the questions potentially related to establishing the identity of the driver, such as whether the appellant had any identifying features. This approach to questioning also tells of a reckless, if not deliberate, disregard for the requirements of the Police Powers and Responsibilities Act 2000 and the Police Responsibilities Code 2012. [57] Second, compliance would have been relatively simple. [58] Third, there was a second police officer present in the interview who could have, but did not, take steps to ensure compliance with the requirements of the Police Powers and Responsibilities Act 2000 and the Police Responsibilities Code 2012. [59] Fourth, the evidence was not of such a nature that its cogency favours admission in the face of the police officer’s reckless, or deliberate, disregard of her duties. [60] In those circumstances, while the evidence is cogent, it seems to me that this is a proper case for exclusion of the electronic recorded interview based on the public policy discretion. Is the conviction unsafe and unsatisfactory? [61] As the appellant has established that the electronic record of interview containing the appellant’s confession should be excluded, the appeal must be allowed. Nevertheless, it is still necessary to consider the appellant’s second ground of appeal. It informs whether an acquittal should be entered. [62] With respect to that issue, the appellant contends that the conviction is unsafe and unsatisfactory. Counsel for the appellant says this ground should be understood as referring to a contention that the verdict should be set aside, under s 668E of the Criminal Code, on the ground that it is unreasonable and cannot be supported having regard to the evidence. It is common ground that I have power to make such an order -- 18 of 20 -- 19 pursuant to s 225 of the Justice Act 1886 and s 113 of the District Court of Queensland Act 1967 (Qld). [63] The respondent concedes that, upon exclusion of the evidence of the confession in the electronic record of interview, the other evidence before the Magistrate was insufficient to support a verdict of guilty. Nevertheless, the respondent contends that, rather than entering a verdict of not guilty, I should remit the matter to the Magistrate for a new trial under s 669 of the Criminal Code. [64] Sections 668E and 669 of the Criminal Code relevantly state: “668E Determination of appeal in ordinary cases (1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal. (1A) However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this chapter, the Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered. … 669 Power to grant new trial (1) On an appeal against a conviction on indictment, the Court may, either of its own motion or on the application of the appellant, order a new trial in such manner as it thinks fit, if the Court considers that a miscarriage of justice has occurred, and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the Court is empowered to make. …” [65] The respondent contends that a retrial is appropriate on the basis that there is other evidence of the identity of the defendant. It is the evidence of the interviewing officer to which I refer in paragraphs [11] and [14] above. -- 19 of 20 -- 20 [66] The respondent accepts that the videorecording that forms exhibit 2 provides a reasonable indication of the view of the appellant that was available to Senior Constable Anderson. [67] On my review of exhibit 2, it is fair to say that a man can be seen to run to the vehicle in question. However, there are significant limitations on the reliability of an identification in those circumstances. It was night and there were many people moving around. The person in question was only in view for a matter of seconds and was a considerable distance away. The individual’s appearance was non-descript. From the distance at which he was sighted, the individual looked like many of the other people at the scene. [68] In those circumstances and having regard to the evidence of Senior Constable Anderson referred to in paragraph [16], I infer that Senior Constable Anderson is only able to identify the individual in the relevant motor vehicle as the appellant by reason of his attendance at the Mount Ommaney police station and by reason of his confession. [69] I am satisfied that the verdict of guilty should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence. Further, having regard to all the circumstances, I am not persuaded that the miscarriage of justice that results from the Magistrate’s decision to admit the electronic record of interview cannot more adequately be remedied by remitting the matter to the Magistrates Court for a new trial. Orders [70] For the reasons provided above, I am of the view that the appeal should be allowed, and the conviction quashed. [71] The verdict of the learned Magistrate finding the appellant guilty of the offence of dangerous operation of a motor vehicle is set aside. Instead, Dylan James Byer is found not guilty of the charge of dangerous operation of a motor vehicle. I order that Dylan James Byer is discharged in respect of that charge. -- 20 of 20 --