R v Sawyers [2014] QDC 146 (25 June 2014)

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CITATION:	R v Sawyers [2014] QDC 146
PARTIES:	THE QUEEN v SAMUEL EATHEN SAWYERS
FILE NO/S:	61/14
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	Rockhampton District Court
DELIVERED ON:	25 June 2014
DELIVERED AT:	Rockhampton
HEARING DATE:	19 June 2014
JUDGE:	Smith DCJ
ORDER:	Application to exclude that part of the field tape up to page 7 line 50 is dismissed. I adjourn the application concerning the balance of the tape.
CATCHWORDS:	CRIMINAL LAW- Evidence- application to exclude field tape in the exercise of the fairness discretion- alleged breaches of the Police Powers and Responsibilities Act 2000 (Q) Criminal Code 1899 (Q) s 590AA Evidence Act 1977 (Q) s 130 Police Powers and Responsibilities Act 2000 (Q) ss 7, 418, 423, 431 Police Powers and Responsibilities Regulation 2012 (Q) rr 23, 24, 26 Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 EM v R [2007] HCA 46; (2007) 232 CLR 67 R v Ireland [1970] HCA 21; (1970) 126 CLR 321 R v LR [2005] QCA 368; [2006] 1 Qd R 435 R v Martin [2011] QCA 342 R v Swaffield (1998) 192 CLR 159
COUNSEL:	Mr R Hood counsel for the Crown Mr W Brown counsel for the defendant
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Narayan Lawyers for the defendant

[1] The first application is by the defence (pursuant to s 590AA of the Criminal Code) to exclude a tape recorded field interview between the defendant and Sergeant Mac Duus conducted on 24 February 2013. It is submitted that it would be unfair for the court to admit the tape (s 130 of the Evidence Act 1977 (Q)).

[2] The second application is for the exclusion of medical evidence relating to the complainant and the third application is for a transfer of the matter from Rockhampton as a result of a media interview conducted by the complainant.

[3] The second and third applications were withdrawn by the defence on the day of the hearing.

[4] The defendant is charged with one count of unlawfully doing grievous bodily harm to Joshua Murray Parker on 24 February 2013 at Rockhampton.

[5] Mr Parker in his police statement dated 27 February 2013 says that at about 11.00 p.m. on 23 February 2013 they went to the Giddy Goat Bar where he had five Hahn 3.5’s. They stayed there until about 1.00 a.m. on 24 February. They then went to another bar called the Ginger Mule and he had another three or four beers. At about 2.00 a.m. he and some friends went to the Zodiac Night Club.

[6] Whilst he was on the dance floor dancing with his girlfriend Jasmine Thompson they were split apart and a male grabbed his girlfriend on the hands and was being a “pest”. He then slapped one hand away but not very hard and put his body in between Jasmine and the male. He does not recall anything else.

[7] He recalls being sore on the side of his right eye and sat in the gutter. He was then taken to the Rockhampton Base Hospital where facial fractures were diagnosed and a plate was put into his face.

[8] Jasmine Thompson in a statement dated 3 March 2013 confirms that she was with the complainant. She confirms that the complainant was dancing behind her and another guy came in front of her and tried to grab her on the bottom. The complainant slapped his hand away. The next thing she saw was Joshua lying on the dance floor. She did not know what happened or what caused him to be on the floor. She could not really recall what the man looked like.

[9] Dr Collum opines that the complainant sustained fractured orbital bones which were repaired in hospital. The injuries amount to grievous bodily harm.

[10] There is no evidence of either identity or what happened aside from in the field tape.

[11] The field interview was conducted between Sergeant Duus and the defendant at about 3.04 a.m. on 24 February 2013. The defendant gave his personal details. At T6.50 Officer Duus said:

“Question: OK you are not obliged to answer any questions or make any statement.

Question: OK. Now, I’ve received an allegation that you – you punched someone in he ah- whilst in the Xtreme Zodiac Nightclub in the face. ..

Answer: Mate I’ve – I don’t wish to say anything till I speak to a lawyer.

Answer: Except for, I was struck at first. He swung at me I punched him. He fell then I kicked him so –

Answer: I felt threatened. He was a lot bigger than me. I weigh about 68 kilos. I’m a small Aussie white guy.

Answer: He swung at me. He missed I swung at him. I punched him on the chin. He fell over. He started mouthing off. I didn’t mean to but I kicked him and said I’m sorry but that’s exactly what happened.

[12] Thereafter the police officer persisted with asking questions about the matter.

[13] Officer Duus gave evidence. He said that at the time of the questioning the defendant had been arrested for disorderly conduct. He accepted the defendant appeared affected by alcohol. He said the defendant was a bit confused (T1-9.26). He did not accept he was questioning him as to an indictable offence - he thought it was about the disorderly as no complaint had been received as to an assault at that stage (T1-17.57 and T1-20.20). He thought the defendant was quick in his response to questions (T1-19.35). He was not extremely intoxicated. He had no concerns as to the defendant’s ability to understand his rights (T1-21.11). The defendant was quite aware of what was happening. He accepted the defendant was intoxicated (T1-16.15).

[14] The defendant gave evidence. He said that he had between 10-15 drinks that night (T1-24.3. He claimed he did not recall much of the conversation (T1-25.43). He admitted that he did ask for a lawyer (T1-27.10). He claimed to recall “bits and pieces’ of the conversation (T1-27.18). He said he was heavily intoxicated (T1-24.22).

(d) The defendant requested a lawyer a number of times and was intoxicated yet the police officer continued the questioning.

(d) The police should have allowed him to regain his sobriety before questioning.

(c) As to the discretion to exclude such a confession there is a need to balance the public interest of ensuring police have the freedom to conduct investigations and the rights of the defendant and the public interest in persons being tried;

(d) The Crown relies upon Bunning v Cross [1978] HCA 22; (1971) 141 CLR 54 at 74. The police officer here was not acting in flagrant disregard of the Act (see R v Martin [2011] QCA 342).

(e) The confession here was made spontaneously. There is no evidence to support the conclusion that his capacity was impaired to such an extent that he did not know what he was saying.

(f) Non-compliance by the police with the PPRA does not of itself warrant the evidence so obtained to be excluded at trial (see R v LR [2005] QCA 368; [2006] 1 Qd R 435 at [51]).

[19] Section 7 of the PPRA notes that it is parliament’s intention that police officers should comply with this Act.

(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—

(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.”

(b) the police officer reasonably suspects the person is a person with impaired capacity.

(a) before questioning starts, the police officer has, if practicable, allowed the person to speak to a support person in circumstances in which the conversation will not be overheard; and

(3) Also, the police officer must suspend questioning and comply with subsection (2) if, during questioning, it becomes apparent that the person being questioned is a person with impaired capacity.”

(1) This section applies if a police officer wants to question or to continue to question a relevant person who is apparently under the influence of liquor or a drug.

(2) The police officer must delay the questioning until the police officer is reasonably satisfied the influence of the liquor or drug no longer affects the person’s ability to understand his or her rights and to decide whether or not to answer questions.”

(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.

(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.”

(a) Where the consumption of alcohol or drugs is involved the focus is on whether the person understands their rights (see R v LR [2005] QCA 368; [2006] 1 Qd R 435 at [3] and see s 423(2) of the PPRA);

(b) Where a record of interview is obtained in contravention of the PPRA this enlivens the discretion to exclude on the grounds of unfairness (see R v LR at [51]);

(c) An important factor is whether because there has been a breach of procedural rights, a person is disadvantaged in the conduct of their defence (see R v Swaffield (1998) 192 CLR 159 at [193]-[198]);

(d) A further important factor to be considered (although not exclusive) is the reliability of the evidence (see EM v R [2007] HCA 46; (2007) 232 CLR 67 at [72]- [73] and [111]);

(i) whether there was a “mistake” by the police as distinct from a deliberate disregard of the law;

(f) On the issue of the right to speak to a solicitor in Ireland v R [1970] HCA 21; (1970) 126 CLR 321 Barwick CJ noted at 333 that it is improper for the police to persist in questioning after a suspect has indicated that he or she does not wish to answer any more questions.

[23] I take into account the legal principles I have mentioned in reaching my decision. I note the onus is on the defendant to justify exclusion as no question of voluntariness has been raised.

[24] I heard the evidence of Officer Duus on voir dire. I formed the impression that he acted conscientiously on the evening in question. I do not consider he deliberately breached any provisions of the PPRA.

[25] I also consider that the way in which the defendant answered questions on the tape more supports the officer’s evidence rather than the defendant.

[26] Whilst the defendant did sound affected by liquor to some degree on the tape I did not consider that he was so intoxicated as to not understand his rights. Indeed he was the one who raised the fact he wanted a lawyer. I also consider he was anxious to volunteer information about the matter to put himself in the best light. From an early time in the interview he was trying to give the police the information (see T2.32, T3.31).

[27] In this case it is noteworthy that whilst the exact warnings were not given in their terms, the police officer definitively told the defendant he was not obliged to answer any questions or make any statement unless he wished to do so. The defendant clearly understood this. Whilst the police officer did not give him his rights as to having a lawyer or a friend present, the defendant knew of this right because he was the one who said he did not wish to say anything until he had spoken to a lawyer.

[28] Whilst he said that he then said “except for I was struck at first ...” so he was prepared to tell the police that he was the one who was struck first but despite the fact that he wanted a lawyer.

[29] I prefer the evidence of Officer Duus where it conflicts with the evidence given by the defendant.

[30] I do not accept Officer Duus though when he said he was not questioning as to an indictable offence. It had clearly moved to that – hence he gave a warning.

[31] It is true that despite his version the defendant at T7.50 persisted with his right to speak to a lawyer and despite this the police officer persisted with questioning.

[32] In the circumstances I am satisfied that not all of warnings required by the PPRA and the code were given (in particular the requirement to advise of the right to have a lawyer relative or friend present) but on the other hand I do not consider that this breach affects the cogency of the evidence.

[33] I consider the evidence is important, the charge is serious and there is no suggestion the police officer acted in bad faith.

[34] I also consider the confession on its face seems reliable for the following reasons:

(a) It is clear the complainant suffered orbital fractures (see Exhibit 1 at p 22);

(d) The admission seems reliable at least to the extent he kicked the complainant.

[35] Indeed defence counsel conceded it was not suggested the confession was not reliable.

[36] Weighing up the rights of the defendant and the right of the community to have serious offences prosecuted and tried, in the exercise of my discretion I decline to exclude that part of the interview up to page 7, line 50.

[37] I am prepared to exclude the interview after that point in time. In my view at this point the officer was clearly put on notice the defendant wanted a lawyer but despite this he continued to question. I consider that this was a breach of the defendant’s rights and questioning should clearly have ceased at this stage.

[38] I provide the defendant with the opportunity to consider whether or not he wants this part of the interview to remain in, because later the defendant does raise self defence and he may prefer to have that part of the interview before the jury.

[39] I therefore adjourn the application insofar as that part of the interview is concerned.

Queensland District Court Decisions

R v Sawyers [2014] QDC 146 (25 June 2014)