Ajax v The Commissioner of Police [2012] QDC 89

DISTRICT COURT OF QUEENSLAND CITATION: Ajax v The Commissioner of Police [2012] QDC 89 PARTIES: RAYMOND LAWRENCE AJAX (Appellant) v THE COMMISSIONER OF POLICE (Respondent) FILE NO: Appeal no. BD 2309 of 2011 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: District Court Brisbane DELIVERED ON: 8 May 2012 DELIVERED AT: Ipswich HEARING DATE: 10 February 2012 JUDGE: Richards DCJ ORDER: The appeal is allowed, the convictions set aside and the Commissioner of Police is ordered to pay the appellants costs of the appeal to the trust account of Kerrin Lawyers to be assessed unless otherwise agreed. CATCHWORDS: Admissibility of confession – unfairly obtained confession – where the appellant sought to contact solicitor – principles applicable to summary offences COUNSEL: Mr P Nolan for the appellant SOLICITORS: Kerrin Lawyers for the appellant; Mr W Cloake for the Office of the Director of Public Prosecutions for the respondent; -- 1 of 6 -- 2 [1] The appellant was convicted after a summary trial on 3 June 2011 of possession of utensils or a pipe that had been used in connection with the smoking of a dangerous drug and the unlawful possession of a category M weapon, namely a partly deconstructed cross-bow. He was convicted and fined $800 and he has appealed against this conviction on the ground that the magistrate erred in law in admitting the taped evidence of conversations had with the appellant during the search of the premises. [2] The police had gone to the appellant’s address on 11 February 2008 and executed a search warrant. The warrant authorised the seizure of evidence relating to the possession of cannabis sativa. It empowered the police to seize a thing found at that address or on a person at that address that a police officer reasonably suspected might be evidence of the commission of an offence to which the warrant related, that is possession of a dangerous drug. When the police arrived at the address they informed the occupants of their right to remain silent and gave a standard warning. They also told them they had a right to speak to a friend or relative and also that they had a right to telephone or speak to a solicitor or lawyer of their choice in relation to questioning. The accused at that stage indicated that he wanted to speak to a lawyer and he was told that would not be allowed at that stage. The police then confiscated the occupant’s phones. The appellant then again asked to speak to a lawyer but he was told that he could not. He later asked why he could not speak to a lawyer and Sergeant James indicated “Mate you can talk to them OK before we question you about anything OK, its just that we need to get the search done”, then he talked about workplace health and safety issues. Sergeant James indicated that at the completion of the search he was welcome to call someone. In my view it was -- 2 of 6 -- 3 implicit in this conversation that there would be no questioning of the appellant against his interests without allowing him an opportunity to contact a solicitor. [3] The admissibility of the confession made by the appellant to the police was canvassed in the R v Ajax [2010] QSC 338, before Mr Justice Fryberg in the Supreme Court at Brisbane, in relation to charges of producing a dangerous drug and possessing a dangerous drug. [4] In that judgment Justice Fryberg found that the questioning of the accused at the house was a clear breach of section 418 of the Police Powers and Responsibilities Act 2000 (PPRA) because in this case the accused was in the company of the police officer by reason of the fact that he was detained pursuant to the powers relating to search warrants and that was his only reason for being with the police. His Honour acknowledged that there was no requirement that the accused be allowed to contact a solicitor prior to the search of the premises but there was an obligation to delay questioning until he had spoken to a solicitor. His Honour concluded that the police acted illegally pursuant to the Act and that therefore the evidence should be excluded. [5] Section 418 applies only to indictable offences and in this case the offences were summary offences. It was accepted by the appellant that this was the case. The Crown maintains that the court should not entertain the appellant’s argument about the admissibility of the interview on a number of grounds: Firstly, that there was no objection to the evidence at the hearing and therefore the objection should not be allowed on appeal; Secondly, that there was no breach of the Police Powers and Responsibilities Act 2000; -- 3 of 6 -- 4 Thirdly, that the evidence was obtained legally and it was not unfair to admit it. [6] Turning to the first point, in my view this objection is somewhat disingenuous and in any event inaccurate. The appellant asked for the matter to be adjourned so that he could obtain either legal advice or legal representation and that was denied. He was therefore forced into a position where he had to represent himself. At the beginning of the hearing, the appellant asked the magistrate to follow the decision of Justice Fryberg. The magistrate read the decision and held that it was not binding in the summary hearing. When the tapes were produced during the trial the following exchange took place: “Your Honour, I would seek to play those tapes and would seek to provide the transcript only as an aid to the court Defendant: yes, I object to that, your honour, the fact that it was ruled out by Justice Fryberg.” [t1 -18 – t1-19] [7] Following this objection, the magistrate, having heard submissions from the prosecutor, decided that the judgment of Justice Fryberg had already been raised and dismissed as irrelevant to the proceedings. No more submissions were called for from the appellant. The passage quoted above clearly amounts to an objection to the admissibility of the tape. Discussions thereafter were concerned with whether the appellant was prepared to accept the transcript as an accurate representation of the tape. In any event, as the appellant was unrepresented it was incumbent on the prosecution and the magistrate to ensure that only admissible evidence was placed before the court. There is no substance to this submission by the Crown. [8] The Crown secondly submits that there has been no breach of the PPRA and I accept that that is the case. -- 4 of 6 -- 5 [9] Because the tape did not breach the PPRA it follows that the evidence was not illegally obtained. However, the question remains whether it was fairly obtained. [10] The PPRA does not exclude the common law. Section 10 of the Act specifically adopts the continuation of common law principles relating to the exclusion of evidence in the exercise of the Court’s discretion. The magistrate did not consider his overriding discretion to exclude the evidence. He did not consider whether the Judge’s rules had been complied with and whether the police had undertaken not to question him until he had a chance to talk to his solicitor. [11] In this case the appellant had vigorously maintained his right to speak to and a desire to speak to a lawyer and was specifically told that he could not do so. The Judge’s rules adhere to the right to have a solicitor advise before questioning and the High Court in Van Der Meer v The Queen have noted that the Judge’s rules in Australia whilst not law are generally seen as a yardstick against which fairness can be measured. There was no reason why Mr Ajax could not have rung his solicitor. The police seized his phone although they had no real authority to do so and, although the police did not have to wait for a solicitor to arrive at the premises to search the property, it was within Mr Ajax’s rights to speak to a solicitor as and when he wished. [12] In my view the conversation between the police and the appellant amounted to an undertaking not to question him until he had spoken to a solicitor. The police did not make any distinction in their conversation between indictable and summary offences and the questioning that followed amounted to a breach of that undertaking. -- 5 of 6 -- 6 [13] The admissions made therefore were unfairly obtained and they should have been excluded. The Crown case relied on the admissions to prove the ownership of the pipe and the cross-bow and therefore the Crown cannot prove the necessary elements of the offences without the admissions. Accordingly the appeal should be allowed. ORDER The appeal is allowed, the convictions set aside and the Commissioner of Police is ordered to pay the appellants costs of the appeal to be assessed unless otherwise agreed. -- 6 of 6 --