Coolwell v Koster [2006] QDC 68

1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2006] QDC 068 DISTRICT COURT APPELLATE JURISDICTION JUDGE BRABAZON QC No BD 1641 of 2005 EMILY MARIE COOLWELL Appellant and DAVID KOSTER Respondent BRISBANE ..DATE 13/03/2006 ORDER -- 1 of 10 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This appeal raises issues which I should think are undoubtedly of considerable importance in the administration of criminal justice. Put very broadly, the question is this: To what extent can impropriety or unlawfulness on the behalf of the arresting police officers result in the exclusion of evidence about things that an accused person might do afterwards, in particular with regard to the accused person's conduct towards police. It is necessary to turn briefly to the facts before considering the arguments here. The appellant here was a 17 year old Aboriginal girl. It seems that there was noisy and unruly conduct on behalf of a group of young Aboriginal people, including her and two police officers. There are issues about the conduct of the arresting police officers. As I said to counsel, my assumption here, for today's purposes, is that the police officer or officers acted improperly or unlawfully in arresting Miss Coolwell. They did arrest her for committing a public nuisance. The police officers were interested in the group because they said they were sniffing paint. It seems that one of the police officers spoke to Miss Coolwell and wanted to see if she was carrying any paint. The police officer says that insulting and obscene words were then used. In any event, the result was that Miss Coolwell was arrested in an Inala suburb and taken to the then new Redlands watch-house. It is what happened there that is the subject of this appeal. The evidence is that she was at the watch-house for almost two -- 2 of 10 -- 3 ORDER 1 10 20 30 40 50 60 hours. She was put in a bulk holding cell. At first she was with other people, and towards the end she was by herself. After arriving at the watch-house the police conducted some further checks and they showed, apparently, that she was wanted in relation to some other matter. She was taken from the holding cell to an interview room and was interviewed about this other matter. At the end of the interview she was given a notice to appear on some later occasion. The watch- house keeper described that as being charged, and it may be both in police parlance and in substance there is not much difference between the two things. The important thing is she was then returned alone to the holding cell. She was observed on closed circuit television. At what seems to have been about an hour and a half after her arrival at the watch-house, the closed circuit television revealed that she was doing something on the wall. An inspection showed that she had scratched her initials and the date, "EMC 04". Miss Coolwell told those at the watch-house when they asked her, that she scratched her initials and year into the wall with a small pendant from her necklace. Apparently it was metal and sharp enough to make a scratch on the new paint. The evidence is that she said that, "I couldn't help it." She was charged with an offence. In due course she was convicted before the Magistrate. The charge was that of wilful damage under section 7 of the Regulatory Offences Act 1985. No conviction was recorded and the Magistrate found that she had no capacity to pay, and so she was not ordered to -- 3 of 10 -- 4 ORDER 1 10 20 30 40 50 60 pay any compensation. The absolute release was pursuant to section 90(1)(a) of the Penalties and Sentences Act. It is against that conviction that this appeal is brought. It needs to be understood how the matter was dealt with in the Magistrates Court. Because a challenge was made to the admissibility of the evidence about the scratching of the initials, the whole matter was treated as a voir dire. As the learned Magistrate put it, the voir dire was part of a submission that he not admit all of the evidence in the case against her, and he then dealt with that submission. He found on the facts that in his view the police had not unlawfully arrested Miss Coolwell. He then turned to the question of the events at the watch-house. He found that she voluntarily participated in the interviews. Apparently, he accepted some evidence to that effect. In his opinion a stay of the proceedings was not warranted and the damage to the watch-house did not diminish the nature of the offence. As he put it: "In no way can I be satisfied that the bringing of a charge is vexatious, oppressive or unfair, and I certainly cannot be satisfied that the bringing of the charge of wilful damage under the Regulatory Offences Act could possibly bring the administration of justice into dispute...the application to stay the proceeding is dismissed." It is against that finding, in effect, that the appeal is brought. That being the finding, and Miss Coolwell indicating through her representative that no further evidence would be called, she was then convicted. -- 4 of 10 -- 5 ORDER 1 10 20 30 40 50 60 It is helpful to consider her case on the assumed basis that the learned Magistrate's decision is unsustainable and that the arrest was improper. The appellant by her counsel raises a number of matters in her favour. Importantly, the submission deals with the questions of causation and the exercise of the discretion. The significant parts of the submission were to this effect: "But for the arrest, the wilful damage could not have occurred. It is submitted that this alone is enough to satisfy the requirement of causation (though not necessarily to compel the exercise of the discretion). However, there are further points relevant to the issue of causation - (a) the appellant was only 17 years old; (b) she was detained for a period of almost two hours; (c) she was distressed; (d) she stated explicitly as to the wilful damage that 'She couldn't help it'; (e) the destruction of property and various forms of self-mutilation are also widespread and rule governed expressions of grief and distress in Aboriginal societies. (Quoted from 11.10.16 National Report, Royal Commission into Aboriginal Deaths in Custody). The obvious inference to be drawn is that the distress of her unlawful arrest caused the appellant to feel compelled to express the distress by scratching her initials into the wall." The submission goes on to deal with the exercise of a discretion. Mention is made of the principle in Bunning v. V Cross by way of analogy. As it is put: "The police unlawfully arrested the appellant. It was not necessary or appropriate to do so. There is on the evidence a serious suggestion that the conduct of Constable Koster was improper, not in a deliberate or calculated way but in terms of the standards the community should be able to expect police to adhere to. The offence is a minor one. That is a point picked up in both DPP v. Carr and Robinett and vital to the question -- 5 of 10 -- 13032006 D.1 T5/SDH (Brabazon DCJ) 6 1 10 20 30 40 50 60 of the discretion. Conduct which is unlawful or inappropriate but in a minor way is unlikely to be sufficient to cause a Court to exercise its discretion to exclude evidence of a major or significant crime. However, it must be enough to exclude evidence of a minor crime. Similarly, significant impropriety may be enough to exclude evidence not only of a minor crime but of a major one as well. In this case the offence is trivial; the impropriety on the part of the police, while certainly not extending to the level of entrapment, is conduct which was at least improper if not unlawful. A young woman was, as a result of that unlawful police behaviour, placed in a position of great distress. The discretion should be exercised to exclude the evidence and the conviction should be quashed...The unlawful arrest was directly related to the act that gave rise to the charge of wilful damage...". Counsel for the prosecutor, in his submission, put the matter this way with respect to the key considerations: "The respondent submits that there was no impropriety or unfairness shown by the police to the appellant. In addition, the respondent submits that there was no reasonable expectation that the further offending, namely the scratching of the appellant's initials and year into the wall, occurred as a result of police impropriety. There was no related violent offending. There was no violent action or threat stemming from inappropriate police omissions to act. There was no impropriety by the police that would oblige the Magistrate to exercise his discretion...To be able to warrant the exercise of judicial discretion and not admit the evidence of later offending, it must be shown that the causal connection between any impropriety and any subsequent offence is more than a mere causal connection, rather the later offending must be fundamentally interconnected to the original impropriety. See DPP v. Carr 127 A Crim R 151." In addition, the respondent submits that there is not even a sufficient causal connexus between the unauthorised damage and the lawful arrest: that the later unauthorised damage is not interconnected to the arrest. It is not "closely related and interconnected". There was no error in law or fact in the exercise of the learned Magistrate's discretion, it is submitted. -- 6 of 10 -- 13032006 D.1 T5/SDH (Brabazon DCJ) 7 1 10 20 30 40 50 60 In assessing those submissions, counsel here have pointed to the significant Australian decisions in this area of the law. There is no need for me to canvass the well-known principle in Bunning v. Cross. Rather, attention should be paid to those cases which show some improper conduct on the behalf of the police, in this case in performing an arrest, and then later conduct by an accused person that would amount to an offence usually against police. The first case mentioned here is Robinett in the Supreme Court of South Australia, reported at 116 A Crim R 492. It is not necessary in this appeal to engage in a close examination of every significant part of that judgment. The learned Judge thought that three questions arose for consideration: "The first is whether the conduct is of a type that could give rise to the exercise of the public policy discretion. 2. The second is whether the conduct caused or contributed to the commission of the offence. 3. If the answer is yes to both those questions, it must then be asked whether it called for the exercise of a discretion to exclude the evidence." In that case, there was an arrest and threats against police officers on the same occasion. The judge found, on the facts, that the police officers failure to react appropriately to complaints by the man being arrested did cause or contribute to the commission of the offences against the police officers. In his opinion, the omission called for the exercise of the discretion to exclude the evidence. The Magistrate's decision was upheld. -- 7 of 10 -- 13032006 D.1 T5/SDH (Brabazon DCJ) 8 1 10 20 30 40 50 60 The matter arose in somewhat analogous circumstances in New South Wales. See DPP v. Carr 2002 NSWSC 194. The judge there found that it was open to the Magistrate to find impropriety and recklessness in the arrest. The Court was considering a situation where, at a rather later occasion - that is, at the police station - the arrested man had threatened police. The DPP submitted there was simply no causal link between the arrest of Mr Carr and Mr Carr's later use of the threatening language. The statutory basis of the decision lies in section 138 of the Uniform Evidence Act, a section which, it may be pointed out, is not in force in this State. As Smart J put it, at paragraph 70: "...all of the offences were closely related and interconnected and at the lower end of the criminal scale. The offences in the evidence stemmed from the ill advised and unnecessary arrest. A narrow construction should not be given to section 138(1)(a)(b), nor one that is unduly broad. This is not the kind of case to apply the 'but for' test except in a restricted way outlined above." The learned judge went on to hold overall that the magistrate was entitled to find that the impropriety was reckless and the evidence was excluded. I need mention only briefly another New South Wales decision of DPP v. Coe 2006 NSWSC 363. It is probable that a more restrictive approach is shown to these matters than in the earlier two cases. To some extent, the result depends upon the precise meaning of the word "obtained" in the New South Wales statute. -- 8 of 10 -- 13032006 D.1 T5/SDH (Brabazon DCJ) 9 1 10 20 30 40 50 60 With those cases in mind, it is necessary to deal with the present application. It is an important principle that is being considered. It is important that police officers should behave properly and that there may be consequences if they do not, including the relief from criminal responsibility on those who respond because of that impropriety. The question is whether or not Miss Coolwell's conduct here might be such that evidence of what she did in the watch-house should not be received by a Court. It is possible to imagine that apparent offences committed at a watch-house, and closely related to the circumstances of the arrest might be in that category - for example, threats, abuse, and sometimes perhaps even a personal attack upon those responsible might conceivably be excused. It is not helpful to say where the range ends. It is necessary, however, to pay attention to the facts here. Indeed, it should be kept in mind that she was only 17 years old from an Aboriginal family and in a difficult situation. On the other hand, the evidence indicates that about an hour and-a-half passed, including an interview about another matter and the issue of a notice to appear, before she returned to the cells and then scratched her name on the wall. There is no obvious connection between the arrest and the scratching of her name. It did not relate to the actions of the arresting officer, or officers. It was not done in the heat of the moment. -- 9 of 10 -- 13032006 D.1 T5/SDH (Brabazon DCJ) 10 1 10 20 30 40 50 60 In my opinion, it is impossible to say that there is such a sufficient connection to enable any discretion to be exercised in her favour. In my opinion, the learned Magistrate was right to reach the conclusion that he did. Even if a further review of the facts were to indicate impropriety on behalf of the police, as is claimed in this case, it would not make any difference about the end result. It follows that the appeal must be dismissed. ... HIS HONOUR: With regard to the question of costs, I think the appellant should pay the respondent's costs. That is because she really did have the benefit of these matters being raised in the Magistrates Court, but then took it further in circumstances that could hardly be described as encouraging. It is not, I think, a situation that was close to the borderline. I don't see why the successful respondent should not have his costs. Appeal dismissed. I order that the appellant pay the respondent's costs fixed at $1,500 by 13 September 2006. ----- -- 10 of 10 --