Commissioner of Police v Thornberry [2015] QDC 69

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of Police v Thornberry [2015] QDC 69 PARTIES: COMMISSIONER OF POLICE (appellant) v RICKY ALLAN THORNBERRY (respondent) FILE NO/S: 36/14 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Beenleigh Magistrates Court DELIVERED ON: 27 March 2015 DELIVERED AT: Beenleigh District Court HEARING DATE: 24 March 2015 JUDGE: Dearden DCJ ORDER: 1. The order of the learned magistrate dismissing the charge against the respondent be set aside. 2. The proceedings be remitted to the Beenleigh Magistrates Court for the purposes of rehearing the substantive charge against Ricky Allan Thornberry. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the learned magistrate erred in finding that a consent by the defendant to a vehicle search constituted an admission or confession and was required to be recorded – where the learned magistrate erred in dismissing the charge LEGISLATION: Acts Interpretation Act (Qld) 1954 Criminal Law Amendment Act (Qld) 1894 s 10 Drugs Misuse Act (Qld) 1986 s 10A(1) Evidence Act (Qld) 1977 Justices Act (Qld) 1886 s 222 Police Powers and Responsibilities Act (Qld) 2000 ss 436, -- 1 of 7 -- 2 436(3), 437 CASES: Attorney General for NSW v Martin (1909) 9 CLR 713 Bunning v Cross (1978) 141 CLR 54 R v Lindsay [1963] Qd R 386 R v Doyle; ex parte Attorney General [1987] 2 Qd R 732 R v Clark; ex parte Attorney General (Qld) [1999] QCA 438 R v Purnell [2012] QSC 60 Tierney v Commissioner of Police [2011] QCA 327 COUNSEL: Mr D Nardone for the appellant Mr K Mackenzie (sol) for the respondent SOLICITORS: Commissioner of Police - Official Solicitor - for the appellant Mackenzie Mitchell for the respondent Introduction [1] The respondent, Ricky Allan Thornberry, appeared for trial before the learned magistrate at Beenleigh on 3 September 2014 in respect of a charge of “possess anything for use in the commission of a crime”.1 By agreement, the learned magistrate, prior to hearing evidence, made a ruling as to the legality of a search of the respondent’s vehicle which located a sum of $10,000 (the property the subject of the charge). The learned magistrate ruled “that the search was not lawfully carried out”,2 and consequently that the court would not permit the prosecution to lead evidence that the respondent gave his consent to the police search on 12 October 2013 which located the sum of $10,000.3 The charge was dismissed. Background [2] The appellant’s Outline of Submissions4 summarised the circumstances upon which the learned magistrate made the ruling to exclude the evidence of the consensual search of the respondent and I gratefully adopt that summary: “2.1 On 12 October 2013, police were performing random breath test at Greenbank in the vicinity of the Greenbank State School. During the course of these duties the respondent was pulled over. Constable Craig Harrison engaged with 1 Drugs Misuse Act (Qld) 1986 s. 10A(1). 2 D.6 3 D.6 4 Appeal Exhibit 1. -- 2 of 7 -- 3 the respondent. Officer Harrison asked the respondent ‘have you had anything to drink?’ to which the respondent replied ‘no’. The breath test was conducted and the respondent returned a positive reading but a reading less than the prescribed 0.05%. 2.2 Officer Harrison … then returned to his car with the respondent’s drivers’ license and undertook searches on the respondent and made a phone call to police communications. As a result he obtained information. Based on this information officer Harrison formed a reasonable suspicion that the respondent might be in possession of dangerous drugs. The officer was also informed that the respondent was a violent person, ‘some sort of world champion boxer’. The officer returned to the respondent. While the officer had the power to detain and search the respondent’s car, the officer took the more passive approach of seeking the consent of the respondent to search his car. 2.3 The evidence that would have been taken from officer Harrison (and to be corroborated by another officer) was that the respondent gave the officer his consent to search his car. Acting on that consent the car was searched and $10,000 (the property that is the subject of the charge) was located. The respondent then voluntarily attended a police station and took part in an interview. He made various statements which are not ultimately relevant to the present proceedings. 2.4 During the time of the relevant contact between officer Harrison and the respondent, officer Harrison was recording their conversation. That recording [equipment] however malfunctioned. …. The real issue [at the hearing before the learned magistrate] was whether or not the respondent gave his consent that allowed police to search his car. If no consent was given then it was argued that the search was not a valid search and the evidence that $10,000 was found would not be admissible in trial. 2.5 A determination of that issue would have required the calling of officer Harrison (and a corroborating officer) to give evidence to the effect that consent was given and the timing of when the consent was given. In essence, it was argued on behalf of the respondent that such evidence was not admissible essentially because it was not recorded. 2.6 An agreement was reached by all parties that the issue as to the admissibility of the evidence of officer Harrison and a corroborator could be determined without the calling of any evidence. 2.7. In very broad terms the learned magistrate ruled that the giving of consent (allowing his car to be searched) by the respondent to police amounted to an admission or confession such that s. 436 of the Police Powers and -- 3 of 7 -- 4 Responsibilities Act 2000 (PPRA) applied. As such, the evidence that officer Harrison and his corroborator would have given in relation to the giving of any consent by the respondent would not be admissible as it was not recorded, [the recording] device having malfunctioned. No actions, consistent with the requirements of s. 437 of the PPRA, were complied with, which if they were complied with would have remedied the failure of the recording [device] when that failure became apparent to the police. [The learned magistrate] further ordered that the circumstances did not warrant the exercise of [the court’s] discretion to admit the evidence despite the procedural failure in accordance with the statements in Bunning v Cross (1978) 141 CLR 54. 2.8 That resulted in an absence of any ‘admissible’ evidence that would or could be lead to support the legality of the search. The learned magistrate then ruled that the search of the respondent’s car was not valid… The finding of the property at the core of the charge was consequently lost (sic). The learned magistrate then, at the request of the respondent, dismissed the charge.” (Citations to transcript in original deleted). Grounds of appeal [3] The grounds of appeal are as follows: (a) The learned magistrate has erred in relation to post search approvals under the Police Powers and Responsibilities Act 2000; (b) The learned magistrate has erred in finding that a consent by the defendant to a vehicle search constituted an admission or confession and was required to be recorded by ss 436 and 437 of the Police Powers and Responsibilities Act 2000; (c) The learned magistrate has erred in relation to the application of the public policy test for the admissibility of evidence in Bunning v Cross (1978) 141 CLR 54; (d) As a consequence, the learned magistrate erred at law in dismissing the charge. The law - appeals to the District Court [4] As Margaret Wilson AJA stated in Tierney v Commissioner of Police [2011] QCA 327, paragraph 26: “An appeal from a Magistrates Court to the District Court pursuant to s. 222 of the Justices Act (Qld) 1886 is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other word, it involves a review of the record of proceedings below, subject to the District Court’s power to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error.” (Citations deleted). -- 4 of 7 -- 5 The arguments [5] The appellant, at hearing, abandoned the argument that the substantive charge was not an indictable offence and therefore PPRA s.436 had no application, and instead submitted that PPRA s.436 had no application because the respondent was not a “relevant person”, ie a person who was in the company of police for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence. Mr Nardone, who appeared for the appellant, submitted that the respondent was simply in the company of police for the purposes of a breath test and/or for the purposes of a consensual search of his car, but not for questioning. [6] Mr Mackenzie, who appeared for the respondent, conceded that the terms “confession” and “admission” are not defined in the PPRA, the Acts Interpretation Act 1954 nor in the Evidence Act 1977, but asserts that the term “admission” is a broader term than the term “confession”; and that the term “confession” (in the context of s. 10 of the Criminal Law Amendment Act 1894) included “either a direct admission of guilt, or of some fact or facts which may tend to prove the prisoner’s guilt at the trial) and/ or “any statement obtained from the prisoner which could lead to the inference of guilt or which would tend to prove it.”5 Discussion [7] The issue is succinctly addressed by JRS Forbes in his most recent edition of Evidence Law in Queensland6 in these terms: “Informal admissions are a leading exception to the hearsay rule. All confessions are admissions, but many admissions are not confessions. A confession is either a direct admission of guilt, or of a fact or facts that tend to prove a criminal charge” (citing Attorney General for NSW v Martin (1909) 9 CLR 713, 732; R v Lindsay [1963] Qd R 386, 393; R v Doyle; ex parte Attorney General [1987] 2 Qd R 732, 742-743). [8] Forbes goes on to state: 5 R v Clark; ex parte Attorney General (Qld) [1999] QCA 438 per de Jersey CJ at para 23 approving R v Lindsay [1963] Qd R 386, 393 (Per Mack J), adopting O’Connor J in Attorney General NSW v Martin (1910) 9 CLR 713, 732. 6 Forbes, J, Evidence Law in Queensland (10th Ed, Law Book Co, 2014). -- 5 of 7 -- 6 “An admission is a statement by a party that is adverse to that party’s interest in current proceedings. It must be made to a third person…”7 [9] It is clear the term “admission” has a wider meaning than “confession,” and both terms are used in the PPRA s. 436.8 [10] The Shorter Oxford English Dictionary (5th edition, Oxford University Press 2002) relevantly defines the word “admission” as: “1. The action of admitting…; 2. The admitting (of something) as proper, valid or true; acknowledging, conceding; 3. A concession and acknowledgement.” [11] A conversation during which a police officer asks the respondent whether the police officer can search the respondent’s motor vehicle, to which request the respondent assents, cannot, in my view, however the language is tortured, amount to an “admission”, nor could it be said to be an “admission by conduct”.9 Quite simply, it is not a statement that is, in any way, adverse to the respondent’s interest. It does not amount to a confession. [12] If, upon police asking the respondent if they could search his car, he had produced the $10,000, that action may well have amounted to an admission by conduct;10 or if having located the money by a consensual search, police then sought to question the respondent at the scene in respect of the provenance of the $10,000, any answers given may have been (depending on the context) either admissions or a confession. [13] The matter before me, however, is simply whether an affirmative response by the respondent to a request by a police officer to search the respondent’s motor vehicle is a statement against interest or a statement which is adverse to the respondent’s case. In my clear view, that conversation could not possibly be so characterised. [14] I conclude, therefore, that the learned magistrate erred in law in finding that the request for a consensual search was “questioning of a relevant person” during which the respondent made “a confession or admission to a police officer”.11 7 Forbes, J, Evidence Law in Queensland (10th Ed, Law Book Co, 2014) p 571, para Q.43. 8 Forbes, J, Evidence Law in Queensland (10th Ed, Law Book Co, 2014) p 575, para Q.50. 9 See R v Purnell [2012] QSC 60 per Dalton J paras 17 and 18. 10 R v Purnell [2012] QSC 60. 11 PPRA s. 436(3). -- 6 of 7 -- 7 [15] It follows that there was no obligation on the police officer to electronically record that conversation. It was therefore irrelevant that the attempt at recording the conversation failed. It was also irrelevant that there was no subsequent written record of the conversation made by a police officer and read to the respondent in accordance with PPRA s. 437. In these circumstances, there was no obligation on police to comply with PPRA ss. 436 and 437. Conclusion [16] I conclude that the learned magistrate was in error in excluding evidence in respect of the outcome of the consensual search (i.e. the location of the $10,000 in the respondent’s motor vehicle). Orders [17] I order as follows: 1. The order of the learned magistrate dismissing the charge against the respondent of possessing anything for use in the commission of a crime (Drugs Misuse Act s. 10A(1)) be set aside; 2. The proceedings be remitted to the Beenleigh Magistrates Court for the purposes of a rehearing of the substantive charge of “possess anything for use in the commission of a crime” (Drugs Misuse Act s. 10A(1)) against the respondent Ricky Allan Thornberry. -- 7 of 7 --