In the case of Police v Barchard [2004] QDC 131, the accused; Mr. Peter Leonard Barchard, was convicted of fraud under s 408C(1)(a)(i) of the Criminal Code. The appeal was heard at the Southport District Court, with Newton DCJ presiding. The hearing occurred on March 29, 2004, with Leonard as the Appellant, attempting to overturn his conviction, and the Commissioner of Police as the Respondent. The appeal was dismissed in the judgment delivered on May 7, 2004.
Basis for the action:
The appellant lodged on appeal on several grounds, the first being that the written admission he made was the result of “overbearing and unfair conduct on the part of the investigators.” Secondly that the officer questioning him; Senior Constable Aubort, should have discontinued the interview following the phone call made to his solicitor, with s 418(3) of the Police Powers and Responsibilities Act applying. Further he also argued that the conversation he made with his solicitor was overheard, which is covered by s 419(1)(b) of the Act. The fact that the taped interview was not correctly terminated was also raised, with s 439(2) of the Act applying. The appellant also argued that the interview itself was interrupted by a telephone call Aubort received, and that it was unfair to be asked hypothetical questions.Material Facts:
The appellant was employed as a valet by Conrad Jupiters Casino, with one of his duties being to arrange the parking of guest’s cars. Money would be collected from some of these guests, which was then to be placed into a container, along with the parking ticket. His employer became concerned as to whether the money received was being correctly recorded, so initiated a covert video surveillance operation. The appellant was subsequently interviewed by security staff and admitted to misappropriating some of the funds.Judgement:
The appeal was dismissed with the judge finding as follows. In regards to the appellant’s written admission resulting from “unfair and overbearing” conduct, he found that the appellant chose not to answer several questions, and that no pressure was applied.Aubort was also not required to terminate the interview following the appellants conversation with his lawyer, as he met his obligations under s 418(3) of the Police Powers and Responsibilities Act 2000 QLD, allowing a phone call to be made, with the appellant then electing not to have his lawyer present.
With regard to the appellant’s complaint that the conversation with his lawyer was overheard, the judge found that as a result of the interview taking place in the hotel room provided, it was not reasonably practicable for the conversation to not be overheard. Aubort acted correctly in leaving the room and removing the tape recorder, as s 419(1)(b) states, the conversation should occur where it cannot be overhead, where “reasonably practicable”, which in this case it wasn’t.
Regarding concerns that the interview was not correctly terminated, the judge ruled that s 436(2) only applies if it is “reasonably practicable” for the interview to be recorded. In this case a compact tape recorder was used that had no warning device as to when the tape would expire. He reasoned that it was clear though that Aubort was in the process of concluding the interview when the recording ended, and that the evidence should have been admitted as it was in the interest of justice and falls under s 439(2) of the Act.
The appellant’s final two points of appeal were that firstly the interview was interrupted by Aubort receiving a telephone call, and secondly that the asking of hypothetical questions was unfair. The judge dismissed both these points stating that no suspension of the interview was necessary, as Aubort was the only police officer present, and that the hypothetical question asked was without substance.
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