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[2009] QDC 418
plaintiff. The record of interview was excluded, and the field tape was excluded to the extent that it contained anything inculpatory.
2 cited instruments linked from this judgment.
Hudson's interview contained admissions to serious charges. During questioning, he told the officer about several developmental and attention-related diagnoses. The judge found that this information meant the statutory safeguard for questioning a person with impaired capacity applied. Because questioning continued without a support person, the judge found the interview was not voluntary and, alternatively, unfairly obtained. The interview and any inculpatory content on the field tape were excluded.
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In R v Hudson [2009] QDC 418, John William Glen Hudson applied before trial to exclude a police interview and related field-tape material. He faced one count of burglary and one count of rape, alleged to have occurred on 7 July 2007. The hearing concerned the admissibility of evidence, not whether the alleged offences had been proved [1]-[3].
The background described the complainant and Hudson as long-time friends. They spent part of the evening of 6 July together, went to the cinema and later drank wine at the complainant's home. The prosecution allegations were that Hudson left and later returned by breaking a louvre near the front door, then had sexual intercourse with the complainant without her consent. The complainant reported the matter to police [4]-[5]. These are background allegations recounted in the judgment, not findings that Hudson committed the offences.
On 8 July, Senior Constable Fairhurst attended Hudson's residence and Hudson went with him to Kingaroy Police Station. The recorded interview ran from 1.03 pm to 1.47 pm and contained admissions to the charges [6]. The officer gave cautions about the right to silence and the rights to contact and have a friend, relative or lawyer present. Hudson declined those offers and indicated he was willing to participate [7].
The interview then turned to Hudson's education, communication and diagnoses. He said he had completed Year 12, but that language more complicated than simple terms could confuse him. He described diagnoses including global developmental delay, ADD, ADHD, Asperger's syndrome and autism. He also described concentration and social difficulties and said he viewed some things differently from other people [9]. The judge noted that the officer was already on notice of autism or Asperger's before the formal interview, and that the interview itself elicited further diagnostic information [15]-[16].
Hudson applied to exclude the interview on the basis that it was involuntary or, alternatively, unfairly obtained [3]. Dearden DCJ ordered the interview excluded and also excluded the field tape to the extent it contained anything inculpatory [29]-[30]. That ruling addressed admissibility; it did not determine the eventual outcome of the criminal charges.
The central statutory provision was s 422 of the Police Powers and Responsibilities Act 2000 (Qld), reproduced in the judgment. It applied if an officer wanted to question a relevant person and reasonably suspected that person had impaired capacity. In that situation, the officer was not to question the person unless, if practicable, the person had first been allowed to speak to a support person in circumstances where the conversation could not be overheard, and a support person was present during questioning. If it became apparent during questioning that the person had impaired capacity, questioning had to be suspended so the safeguard could be met [10], [12]-[13].
The statutory definition quoted by the judge covered impairment in managing one's interests because of an obvious loss or partial loss of mental functions, or an obvious disorder, illness or disease affecting thought processes, perceptions, emotions or judgment, or resulting in disturbed behaviour. The judgment also set out the definition of a support person for a person with impaired capacity, including a parent or another adult able to provide support necessary to help care for the person by looking after or managing their interests [11].
The judge held that the threshold was not merely a question of whether the officer should have diagnosed a condition from subtle behaviour. Fairhurst had been told about the diagnoses, both before the formal interview and as the interview proceeded. Dearden DCJ considered that the officer had been given the information explicitly and in considerable detail [15]-[18]. The court also referred to psychologist Mr Perros's reports describing social, language, attention and impulse-control difficulties, and explaining that Hudson's disability could be hidden to a lay observer [19]-[22]. The judge treated this evidence as relevant context, while the statutory trigger he identified was the officer's reasonable suspicion [24].
The first evidentiary route was voluntariness. The judge found that the reasonable-suspicion test in s 422 was clearly satisfied. Although Hudson had initially declined the offer of a friend, relative or lawyer and had agreed to be interviewed, the judge concluded that the officer's later failure to comply with s 422 affected whether the interview remained voluntary. In his view, from that point, Hudson's participation could not be described as a free choice whether to speak or remain silent [24]-[25]. The ruling therefore distinguishes initial willingness to participate from the effect of the statutory safeguard once the officer had reason to suspect impaired capacity.
The judge also gave an independent basis for exclusion. He said that even if his view on voluntariness were wrong, he would exclude the interview under s 130 of the Evidence Act 1977 (Qld) [26]. He described the interview as unfairly obtained because it was conducted in direct contravention of a legislative safeguard directed at people such as Hudson [27]. In assessing fairness, he expressly recognised the seriousness of the charges, particularly the rape count, but concluded that admitting the interview would nevertheless be unfair. He referred to non-compliance with s 422, reliability and Hudson's right to remain silent, citing R v LR and R v Swaffield [28]. The judgment does not set out a full account of either cited case's reasoning, so their role here should be described as authorities cited in support of the exclusion analysis.
The judgment describes the relevant statutory framework as already in force. Part 3 of the Police Powers and Responsibilities Act 2000 (Qld) was titled “Safeguards ensuring rights of and fairness to persons questioned for indictable offences” [10]. Sections 414 and 415, as quoted, confined the part to indictable offences and specified when it applied to a person in police company for questioning as a suspect [10]. The charges Hudson faced were indictable, and the interview concerned his alleged involvement in them [1], [6].
The decision did not purport to amend the statute or announce that s 422 had changed. Its contribution in this judgment was its application of the quoted requirements to an interview where the officer was told about the suspect's diagnoses. The judge found that, at the latest, the obligation to comply arose once the information had been elicited by the point reached on page 9 of the interview transcript [17]-[18]. He treated the officer's knowledge as sufficient to trigger the statutory safeguard, rather than treating Hudson's willingness to answer as a substitute for it [24]-[25].
The judgment also explains the evidentiary consequences it considered. It says non-compliance with s 422 raises questions of voluntariness under s 10 of the Criminal Law Amendment Act 1894 (Qld) and/or discretionary exclusion under s 130 of the Evidence Act 1977 (Qld) [14]. On these facts, the judge reached conclusions under both routes: the interview was not voluntary, and it was independently unfairly obtained [25]-[28].
“Before and after” should not be read here as a claim that the decision altered the general law. The judgment is a District Court ruling and addresses the evidence in Hudson's case. It does not state that it overruled or displaced another authority. Its reasoning illustrates how the statutory safeguard was applied to the information disclosed in this interview, and why the judge considered that non-compliance affected admissibility.
At [17], the judge said that “either prior to the formal record of interview, or at the least” by the point reached on page 9 of the transcript, there was a “mandated obligation” to comply with s 422. In plain English, the judge considered that the duty had arisen no later than the point when Hudson's diagnoses had been discussed in the interview. The reference to information known before the formal interview also indicates that the judge considered the officer's earlier knowledge relevant.
At [18], the judge explained that this was not a case where the officer had to infer impairment from ambiguous signs. The officer had been told about the diagnoses explicitly and in detail. That is important to the court's application of “reasonably suspects”: the ruling rests on the particular disclosures described in the record, not on a general proposition that every diagnosis automatically has the same consequence in every interview.
At [25], the judge concluded that despite Hudson's “acquiescence in the process”, the interview could no longer be treated as voluntary after the officer failed to act under s 422. The translation is that agreeing to take part did not, in the judge's view, resolve the separate question whether participation remained a free choice after the required safeguard was not provided.
At [26]-[28], the judge set out the alternative route. Even if the conclusion about voluntariness were mistaken, he considered the interview unfairly obtained and excluded it under s 130. He identified the statutory breach, reliability and the right to remain silent as relevant considerations, while acknowledging the seriousness of the offences. The result was exclusion, not a ruling on guilt or innocence.
Finally, [30] extends the order to the field tape, but only “to the extent that it might contain anything that is inculpatory”. The limitation matters: the order, as stated, did not exclude every possible part of the tape regardless of content.
The reasoning is most directly relevant to a police interview about an indictable offence where the officer reasonably suspects that the interviewee has impaired capacity within the statutory definition quoted by the judgment [10]-[11]. The central factual feature in Hudson was that the interviewee disclosed diagnoses and functional difficulties during questioning, including autism, ADHD and problems with complex language [9], [16]. The judge also said the officer had some notice of autism or Asperger's before the formal interview [15].
A second feature is the timing of the information. The judgment applies s 422 both where the officer already has relevant information before formal questioning and where impairment becomes apparent during the interview. It states that questioning must be suspended if impaired capacity becomes apparent as questioning proceeds [13], [17]. The case therefore concerns an interview where the required information was available to the officer before admissions were obtained, rather than a situation where relevant information emerged only after questioning had ended.
A third feature is non-compliance with the particular safeguards. The statutory text quoted in the judgment requires, if practicable, an opportunity to speak to a support person privately before questioning and a support person present while questioning occurs [10], [12]. The decision does not say that a suspect's refusal of a friend, relative or lawyer necessarily amounts to the statutory support-person process being satisfied. The interview record described those initial offers [7], but the judge found that s 422 still required compliance once the relevant threshold was met [24]-[25].
The decision should not be stretched beyond its stated basis. It does not decide how every condition, diagnosis or communication difficulty should be assessed, nor does it establish that every breach automatically produces exclusion. It identifies voluntariness and discretionary exclusion as issues raised by non-compliance, then reaches conclusions on the evidence before it [14], [25]-[28].
The supplied judgment does not contain citations to later decisions applying, distinguishing or criticising R v Hudson. It therefore cannot establish how later courts have treated it. The only other authorities identified in the judgment are R v LR [2005] QCA 368; [2006] 1 Qd R 435 and R v Swaffield (1998) 192 CLR 159. Dearden DCJ cited them at [28] in connection with fairness, reliability and the right to silence. The text provided does not describe any later treatment of Hudson by those courts or by subsequent courts.
For research purposes, the judgment itself supports a narrow account of its influence: it is a District Court decision applying the statutory safeguards and evidentiary provisions to a particular interview. Any claim about whether it has been followed, distinguished, or affected by later legislative amendments requires sources beyond the judgment supplied here.
The judgment does not resolve how much information, in a different factual setting, would be needed to create a reasonable suspicion of impaired capacity. It found the threshold clearly satisfied because the officer had been told of several diagnoses and related difficulties [16]-[18], [24]. It does not provide a general test for cases where a diagnosis is uncertain, where a person does not disclose one, or where the relevant signs are less explicit.
The practical meaning of “if practicable” is not analysed in detail. The judgment quotes that qualification in s 422(2)(a), but does not identify a specific obstacle that made a support-person conversation or attendance impracticable. Nor does it examine what qualities or experience a support person must have in every case. The expert evidence referred to someone experienced in working with autistic people [22], while the statutory definition reproduced by the judge describes a support person by their ability to provide support in managing the person's interests [11].
The judgment also does not set out a separate, detailed analysis of how the field tape was obtained or its contents. Its order excludes the tape only insofar as it might contain inculpatory material [30]. The reasoning linking that material to the interview is therefore limited in the text provided.
Finally, the judgment does not determine the eventual admissibility of all possible evidence at trial, the truth of the allegations, or the outcome of the prosecution. It concerns the record of interview and inculpatory field-tape material addressed in the application. It is a working summary of the judgment, not a statement about any later legal developments.
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[1] HIS HONOUR: This is an application by the defendant, John William Glen Hudson, seeking the exclusion of a record of interview conducted on 8 July 2007, between Senior Constable Adam Fairhurst and the defendant. The defendant faces trial on an indictment alleging one count of burglary and one count of rape, allegedly occurring on 7 July 2007, at Kingaroy.
[2] The trial is listed to proceed at the Kingaroy District Court on 6 October 2009.
[3] The basis for the application to exclude the record of interview is that it was either involuntary, or was unfairly obtained and should be excluded in the exercise of my discretion.
[4] The complainant, KD, and the defendant had been friends for some four or five years, as of 7 July 2007. On the evening of 6 July 2007, they met at the complainant's house at about 5 o'clock; went to the movies at about 6 o'clock; purchased a cask of wine at a bottle shop after the movie had finished, then returned to the complainant's house where each consumed a number of glasses of wine.
[5] The defendant left the complainant's house during the course of the night. It is then alleged that he subsequently broke in by breaking a louvre near the front door, and had sexual intercourse with the complainant without her consent. The complainant later spoke with the defendant by phone early that same morning, then called friends, family and an ambulance. The matter was immediately reported to police. On 8 July 2007, the complainant made a formal statement to police.
[6] Senior Constable Adam Fairhurst attended at the defendant's residence after the complainant's statement was taken, on 8 July 2007. The defendant accompanied Senior Constable Fairhurst to Kingaroy Police Station, where an electronic record of interview (video and audio) was conducted between 1.03 p.m. and 1.47 p.m. The interview contains admissions to the offences indicted before this Court.
[7] Senior Constable Fairhurst administered the cautions in respect of the right to silence, right to contact friend or relative and have them present at the interview, and right to contact a lawyer and have them present at the interview. The defendant declined the opportunity to speak with or have a friend, relative or lawyer present at the interview. The defendant indicated his willingness to participate in the interview.
[8] After some questions about employment, Senior Constable Fairhurst then asked the following sequence of questions. I note that where I heard a conversation differently to how it was transcribed in the transcript (Exhibit B), I have relied on what I heard on the video tape.
Senior Constable Fairhurst: Okay. What level of schooling have you achieved?
Senior Constable Fairhurst: Okay. So do you have any difficulty in reading and writing the English language?
Hudson: No. Just when, like, like to keep things on simple terms where I understand because anything any more than simple I get confused.
Senior Constable Fairhurst: Okay. Now, you mentioned to me before that you suffer from um Aspergers was it, or autistic.
Senior Constable Fairhurst: Okay. Can you explain that to me a little bit further?
Hudson: Well, when I was born I was diagnosed with global [indistinct].
Hudson: [indistinct]. And ah and at nine or 10 years old I was diagnosed with ADD. A year later I was diagnosed with ADHD.
Hudson: And around when I was about, like when I was 11 or 12 I was diagnosed with Aspergers/autism. And at 15 I was officially diagnosed with autism.
Senior Constable Fairhurst: Now when you say autism, what are the symptoms of autism? Do you know?
Hudson: Lack of concentration. Well that's the main one for me, um, I find socially [indistinct] difficult and I just see things in a different perspective to most other people.
Senior Constable Fairhurst: And what do you mean by a different perspective?
Hudson: Well I just - I had - sorry, I'll start that again.
Hudson: Well I just, I just have my own view on how I see things.
Hudson: Like some things that I'd done in the past like some things - like, for example, some things I had done wrong. Well I thought were wrong, were actually like [indistinct] and vice versa. That's pretty much it.
Senior Constable Fairhurst: Okay then, so how do you feel at the moment? Sitting here?
Hudson: I feel pretty guilty for what has, for what I have done.
Senior Constable Fairhurst: Okay. Well, before we get into why you feel guilty um - do you feel that you're lacking your concentration? Let's just say
Senior Constable Fairhurst: Okay. Do you need to take any medication for any of this?
Hudson: Well I, I know that's - sorry, I know what's going on - I did take medication, but at 15 I stopped taking medication.
Senior Constable Fairhurst: Okay. Have you had to go to a doctor about your condition recently?
Senior Constable Fairhurst: When was the last time you did?
Senior Constable Fairhurst: Okay then so, you're 21 so it's been a fair while.
Senior Constable Fairhurst: Have you had to go to hospital or anything like that about your condition recently or?
Senior Constable Fairhurst: Do you have like any episodes or anything like that?
Hudson: No, not really. I just have um - just - just mood swings from time to time.
Hudson: Like sometimes I get really upset. Sometimes I get really angry and sometimes I just want - you know.
Senior Constable Fairhurst: Okay. Now considering you've got this condition, are you sure that you don't want anyone to come and sit with you?
Senior Constable Fairhurst: Okay. I'm also gonna ask you why is that mate?
Hudson: Just because I, I was raised in a traditional moral, traditional good moral, moral household and my father, who is now deceased, raised me, raised me and said when you're 18 you're accountable for your own actions and anything that you do wrong, you deal with it on your own because, that's what you've done wrong, you are - are the one who has to deal with it, [indistinct].
Senior Constable Fairhurst: Okay then, do you know what the difference is between right and wrong?
Senior Constable Fairhurst: How do you know the difference between right and wrong?
Hudson: Hmm, trial and error has grown me very much, but when alcohol is in the mix it's kind of hard to dispute."
[10] Police Powers and Responsibilities Act 2000, part 3, is entitled "Safeguards ensuring rights of and fairness to persons questioned for indictable offences."
(1) This part applies to a person (relevant person) if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.
(2) However, this part does not apply to a person only if the police officer is exercising any of the following powers -
(a) power conferred under any Act or law to detain the person for a search;
(b) power conferred under any Act to require the person to give information or answer questions.
- 422 Questioning of persons with impaired capacity
(a) a police officer wants to question a relevant person; and
(b) the police officer reasonably suspects the person is a person with impaired capacity.
(2) A police officer must not question the person unless -
(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
(b) a support person is present while the person is being questioned.
(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.
- 441 When sections 418-422, 432 and 434 do not apply
(1) Sections 418 to 422, 432 and 434 do not apply if a police officer reasonably suspects that compliance with the sections is likely to result in -
(a) an accomplice or accessory of the relevant person taking steps to avoid apprehension; or
(b) an accomplice or accessory being present during questioning; or
(c) evidence being concealed, fabricated or destroyed; or
(2) Also, a police officer is not required to delay questioning if, having regard to the safety of other people, the police officer reasonably suspects questioning is so urgent that it should not be delayed.
(3) This section applies only for so long as the police officer has the reasonable suspicion."
[11] The dictionary [schedule 6, Police Powers and Responsibilities Act] contains the following relevant definitions:
- "reasonably suspect" - means suspects on grounds that are reasonable in the circumstances.
- "person with impaired capacity" - means a person whose capacity to look after or manage his or her own interests is impaired because of either of the following-
(a) an obvious loss or partial loss of the person's mental functions;
(b) an obvious disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour."
(c) for a person with impaired capacity - a parent or another adult who provides or is able to provide support necessary to help care for the person by looking after or managing the person's interests.
[12] It is clear that if a police officer reasonably suspects a person is a person with impaired capacity, then PPRA S422{2} applies, i.e.
"A police officer must not question the person unless -
(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
(b) a support person is present while the person is being questioned."
[14] Non-compliance with PPRA s.422 raises issues of voluntariness [Criminal Law Amendment Act (Qld) 1894, s.10] and/or discretionary exclusion [Evidence Act 1977 s.130].
Application of the Law to the Impugned Record of Interview
[15] Senior Constable Fairhurst was on notice prior to the record of interview that the defendant suffered from Aspergers or autism [Exhibit "B" p. 8 ll 36-37].
[16] In addition, during the interview, the defendant outlined a series of diagnoses, including Aspergers, autism, global development disorder, ADD [inferentially attention deficit disorder], and ADHD [inferentially attention deficit hyperactivity disorder].
[17] In my view, either prior to the formal record of interview, or at the least, as at the point in the interview reached by page 9 of Exhibit "B", there was a mandated obligation on Senior Constable Fairhurst to comply with PPRA s.422.
[18] In particular, it was not a situation were Senior Constable Fairhurst had to assess impairment, but rather a situation where the police officer was told, explicitly and in some considerable detail, the diagnoses of the defendant.
[19] Mr Perros, psychologist, at page seven of his seven page report dated the 27 July 2009 (Exhibit 5) states "he [the defendant] has a number of symptoms of pervasive developmental disorder and ASD [autism spectrum disorder]. Mr Hudson is socially naïve, has poor psychosocial skills, is immature psychosexually, prone to misconstrue non-verbal cues and his poor language skills place him at risk of misunderstanding complex language. His symptoms of inattention and poor impulse control place him at risk of not being able to properly assess social situations. This is amply demonstrated in Doctor Hurley's reports [a reference by Mr Perros to a series of reports provided by Doctor Tom Hurley, consultant paediatrician contained in Exhibit 5 and dating between 1 April 1998 and 3 November 2004].
This Mr Hudson [sic] suffers from a hidden handicap, and to a lay person he can appear normal."
[20] Mr Perros at page three of his four page report of 27 July 2009 (Exhibit 5) states "the primary medical condition is autistic spectrum disorder (ASD) or Asperger's Syndrome with features of inattention, depression and anxiety. This is a developmental disorder associated with subtle cognitive, social and language impairment that impact on the sufferer's ability to interact effectively with the world."
[21] At page four of the four page report of Mr Perros dated 27 July 2009 (Exhibit 5) Mr Perros further states "Mr Hudson's primary condition is autistic spectrum disorder (ASD), a condition that is difficult to diagnose. There is a significant comorbid medical history of learning difficulties, poor attention, poor control of impulses, interpersonal clumsiness, anxiety and depression."
[22] Finally, in commenting on the record of interview, Mr Perros states (page four of his four page report dated 27 July 2009 - Exhibit 5):
"Mr Hudson told Senior Constable Fairhurst that he suffered from global delay (p.8, line 44), ADHD (p.8, line 57), and autism (p.9, line 4). It was at that point, I believe, that the interview should have been paused and a support person called in. Mr Hudson did not tell Senior Constable Fairhurst that he had also been treated for depression. Even after Mr Hudson advised Senior Constable Fairhurst of his disabilities, Senior Constable Fairhurst elected to continue the interview. As stated by Doctor Berney, Senior Constable Fairhurst probably overestimated Mr Hudson's capacity; the correct thing to do in accordance with part three of chapter 15 of the Police Powers and Responsibilities Act would have been to pause the interview until a support person experienced in working with autistic people could be in attendance."
[23] I note the reference to "Doctor Berney" is a reference to a document that does not appear to be in the material placed before me. I note further that although it might be said that Mr Perros is at that passage "swearing the issue" he does encapsulate in my view a neat summary of the obligations of the investigating police officer at that point.
[24] The purpose of PPRA s.422 is clearly to provide safeguards for persons with impaired capacity. Senior Constable Fairhurst, to his credit, asked questions which elicited, explicitly, that the defendant was a person with impaired capacity. In my view the test in PPRA S422 was clearly satisfied (i.e. the police officer "reasonably suspects").
[25] What then occurred was that Senior Constable Fairhurst failed to act in accordance with PPRA s.422 (despite eliciting information relevant to his consideration of that legislative provision) and from that point on, despite the defendant's acquiescence in the process, it could not in my opinion be said that the defendant's interview was "voluntary" i.e. given in a free choice whether to speak or to remain silent.
[26] Even if I am in error in respect of the issue of voluntariness, I would have excluded the interview pursuant to Evidence Act s.130.
[27] The interview was, in my view, clearly obtained unfairly, in direct contravention of a legislative provision clearly directed at persons such as the defendant, who suffer from conditions which impair their capacity, in terms of both limbs of the definition of "person with impaired capacity" in PPRA schedule 6.
[28] Despite the serious nature of the offences, especially the rape count, I conclude that it would be unfair to the defendant to admit the record of interview given the non-compliance with PPRA s.422, and the consequent considerations of reliability and the defendant's right to remain silent (see R v LR [2005] QCA 368; [2006] 1 Qd R 435, per Keane JA p 452, paras 52 and 54, and see also R v Swaffield (1998) 192 CLR 159.)
[29] I order that the record of interview conducted between Senior Constable Fairhurst and the defendant John Hudson on 8 July 2007, be excluded.
[30] It follows that the field tape (also conducted 8 July 2007), to the extent that it might contain anything that is inculpatory, is also excluded.
R
Hudson [2009] QDC 418
(1998) 192 CLR 159
The record of interview was excluded, and the field tape was excluded to the extent that it contained anything inculpatory.