DPP v Hicks

2 The trial is due to commence shortly. Objection has been taken, on behalf of the accused, to the admissibility of the record of interview conducted by the police with the accused between 19 June and 21 June 2012 at the offices of the Bendigo Crime Investigation Unit.

3 In the period preceding 15 June 2012, the accused man, who was then 19 years of age, was residing with his girlfriend, Martina Lawn, at premises at 2A Green Street, Long Gully, together with his half-brother Joshua and other persons. The prosecution alleges that the accused left those premises on foot at about 11.30 pm on 14 June with the intention of committing a series of thefts and burglaries in the Long Gully area. It is also alleged that he took with him a homemade baton for the purpose of committing those offences.

4 The prosecution alleges that the accused proceeded to commit a series of thefts, burglaries, and attempted burglaries, in the Long Gully area. In particular, it is alleged that he committed the following offences: at 22 Bray Street, he stole a pair of sunglasses from a car; at 1 Dillon Street, he entered a shed and moved items around, but did not take anything; at 18 Bolt Street, he stole a pair of Oakley brand sunglasses from a car; at 1 Bolt Street, he entered the rear yard and opened the back security door, propping it open with some shoes, but found that the wooden door to the premises was locked; at 33 Havilah Road, he propped the rear door of the house open with some shoes; at 23 Duncan Street, he entered a shed in the rear of the yard, but was disturbed by the owners of the premises and fled through a side gate; at 30 Wilson Street, he entered a house and stole an X-box games console, some X-box games, and two mobile telephones - a Samsung telephone and a HTC telephone; and at 15 Jackson Street, he stole an "Olin" brand set top box from a vehicle.

5 The premises at 15 Jackson Street were approximately 40 metres from the premises at 199 Eaglehawk Road, Long Gully. The premises at 30 Wilson Street were closer to the premises at 199 Eaglehawk Road than the other five addresses which I have just mentioned.

6 The prosecution alleges that, after the accused had completed the theft at 15 Jackson Street, he then entered the premises at 199 Eaglehawk Road through the rear door. Zayden's mother, Casey Veal, and her partner, Mathew Tisell, were then asleep in the premises, together with Zayden's older brother Xavier, who was then aged three years. Zayden was sleeping in a cot in a separate bedroom. A portable baby monitor was plugged into the power socket in the bedroom.

7 The prosecution alleges that, after breaking into the premises at 199 Eaglehawk Road, the accused man entered the room in which Zayden was sleeping. He unplugged the monitor, and then, using the homemade baton, inflicted a series of blows to the baby's head, face and torso, causing the injuries from which Zayden died. A subsequent post-mortem examination revealed that Zayden had sustained at least 25 injuries to his face and eight injuries to his scalp. He sustained a complex displaced fracture to the right parietal bone, two separate fractures to the left parietal bone, and a fracture to the base of the skull involving the occipital bone. Those injuries were associated with subdural and subarachnoid haemorrhages. In addition, Zayden sustained a complete displaced fracture to the right clavicle with associated haemorrhage in the surrounding muscle.

8 It is also alleged by the prosecution that in the course of the burglary of 199 Eaglehawk Road, the accused stole Mathew Tisell's "Aerial" brand sunglasses, a wallet belonging to Mathew Tisell containing $1950 cash, and a purse belonging to Casey Veal containing $50 cash.

9 The accused returned to his residence at 2A Green Street at about 4.00 am on 15 June. Later that morning, he and Martina Lawn left Long Gully, and travelled to Gisborne, where they stayed with Martina Lawn's sister Brooke, and her husband. On 18 June, Martina Lawn learnt from her mother that the Bendigo detectives wished to speak to her. When she conveyed that information to the accused, he fled. The next day, 19 June, the accused telephoned his father, asking him to collect him from the Gisborne Football Oval.

10 In the meantime, the Bendigo Crime Investigation Unit had commenced investigations relating to the burglary of the premises at 199 Eaglehawk Road and relating to Zayden Veal-Whitting's death. On 16 June, they had identified the occupants of 2A Green Street, Long Gully as persons of interest. On 17 June, a search warrant was executed at those premises. The police found a number of items of interest there, including an HTC brand mobile telephone, a white X-box game console and several games associated with it, and an Olin brand set top box. As a result of the searches conducted that day, the police interviewed each of the three occupants of 2A Green Street. Later on the same day, the police began making inquiries to locate the accused man.

11 At 4.50 pm on 19 June, Detective Senior Constable Thomas Harper of Bendigo Crime Investigation Unit, together with other police members, intercepted a vehicle travelling north along the Calder Highway being driven by the accused's father, John Hicks. John Hicks was removed from the vehicle by some of the police members. Detective Senior Constable Harper and other police noticed the accused lying on the rear floor of the vehicle. They physically removed him from the vehicle and handcuffed him. Detective Senior Constable Crossley informed the accused he was under arrest for burglary and theft, cautioned him, and advised him of his rights.

12 The accused man was placed in the rear of a police vehicle. Detective Senior Constable Harper sat with him. In his witness statement, Detective Senior Constable Harper states:

"I then sat the accused in the rear of a police vehicle. It was at this time that he offered information regarding his involvement and the involvement of an Aiden Kirby in the commission of certain offences committed over the night of Thursday 14 June 2012 and the morning of Friday 15 June 2012. He later repeated this information during a taped interview that I conducted with him."

13 The accused was conveyed to the Bendigo Police Station and lodged in the cells. Detective Senior Constable Harper conducted an audio-visual taped interview with the accused at 6.11 pm. Detective Senior Constable Hallinan remained present throughout the interview. The interview was suspended at 7.25 pm to allow further inquiries to be made. During the suspension of the interview, it was arranged for the accused to have a meal and to be provided with some clothing. After further inquiries were made, at 9.30 pm, Detective Senior Constable Harper spoke with the accused man in his cell. The accused said that at that time he was too tired to continue and he wanted to sleep. He said that he would be happy to continue with the interview on the following morning.

14 On the following morning, Wednesday 20 June, at about 8.25 am, Detective Senior Constable Harper attended at the cells and again spoke to the accused. The accused indicated that he felt unwell, and he requested that his medication be retrieved from his address at 2A Green Street. Arrangements were made by police for the medication to be collected for the accused, which he received at about 9.55 am. At 10.20 am Detective Senior Constable Harper spoke again with the accused, who then indicated that he felt sufficiently well to continue with the interview.

15 At 10.31 am, Detective Senior Constable Harper recommenced the interview with the accused. Detective Hallinan was present. At 11.25 am, the accused suddenly stood up and indicated that he needed to vomit, and he left the interview and began retching into a rubbish bin. The interview was suspended at 11.27 am. An ambulance was requested and attended. The accused was examined, and returned to the cell area. Subsequently, a doctor attended the accused at 1.35 pm.

16 During the afternoon, Detective Senior Constable Harper monitored the condition of the accused. At 6.20 pm, the accused stated that, because of his medicated state, he felt "groggy", and he wanted to rest further before the interview continued.

17 Accordingly, the interview was not recommenced until the morning of 21 June. When Detective Senior Constable Harper spoke to the accused at 8.20 am, he said he was in better health, and he indicated that he felt well and that he could continue with the interview. At 8.31 am, the interview was recommenced with Detective Hallinan again present. The interview concluded at 9.17 am.

18 In the interview, the police asked the accused a series of questions about each of the thefts or burglaries, to which I have referred. In substance, the accused admitted involvement in the attempted break-in at Duncan Street, in the burglary at Wilson Street, and in the thefts committed from the vehicle at the Jackson Street premises. He denied committing the other offences alleged by the prosecution. He stated that, on the evening, he was in the company of an acquaintance, Aiden Kirby, and he said that he departed from Kirby at some stage during the evening. In particular, he stated that he finally departed from Kirby after committing the thefts at Jackson Street. The accused stated that he then went to a friend's house further up Jackson Street, in order to have a lift home, after leaving Aiden Kirby near the premises at 15 Jackson Street.

19 During the interview, the accused was also questioned, at length, about a number of other break-ins, and attempted break-ins, that had occurred on that evening, and also some offences alleged to have been committed on earlier occasions.

The objection to the admissibility of the interview

20 Mr D Hallowes, who appears on behalf of the accused, has objected to the admissibility of the interview on two principal bases, namely:

(1) The accused alleges that he was subjected to questioning by Detective Senior Constable Harper on 19 June at the scene of the arrest, in the police car while being conveyed to the Bendigo Police Station, and at the police station, before the recorded interview. It is submitted that that questioning was detailed, and was part of the same questioning that was the subject of the recorded interview. As those preliminary conversations were not recorded, it is submitted that, accordingly, the recorded interview is inadmissible pursuant to s 464H(1) of the Crimes Act 1958.

(2) Alternatively, it is submitted that the tape recorded interview with the accused should be excluded pursuant to s 90 and s 138 of the Evidence Act 2008, on the grounds that Detective Senior Constable Harper engaged in conduct that undermined the rights of the accused. That submission focused on three matters:

(a) the words alleged to have been said by Detective Senior Constable Harper to the accused on his arrest;

(b) the alleged questioning of the accused by Detective Senior Constable Harper at the scene on his arrest, in the police vehicle while returning to Bendigo Police Station, and at the Bendigo Police Station before the tape recording of the interview;

(c) the failure of Detective Senior Constable Harper to inform the accused he was a suspect for the killing of Zayden Veal-Whitting.

21 For the purposes of determining the objection, a voir dire was conducted, in which Detective Senior Constable Harper, Detective Senior Constable Harwood, and Senior Sergeant Dalton, gave evidence.

Section 464H(1) of the Crimes Act 1958 - The evidence

22 On the voir dire, Detective Senior Constable Harper gave evidence. He stated that after the accused was arrested, he was placed in the rear seat of a police car. Detective Senior Constable Harper had a conversation with him. At that stage Detective Senior Constable Harper was crouched outside the door of the car. Detective Senior Constable said to the accused "You're in a bit of strife. You know me, Harley. We always get along pretty well". The accused responded "This is pretty serious stuff". Detective Senior Constable Harper replied "Yes, the burglaries, and there's the death of a child". Thereupon, the accused admitted to doing some burglaries. He said he was in company with Aiden and that they had done the "burglaries together". Detective Senior Constable Harper cautioned him again. He then asked the accused "Who?" to which the accused responded "Aiden Kirby". The accused stated that he had been with Aiden Kirby that night, and they had done some burglaries. Detective Senior Constable Harper asked him "When's the last you saw Aiden that night?". The accused then, in a bit of detail, described where they had parted company. The location described by the accused was about 200 metres west of 199 Eaglehawk Road. The accused stated that Aiden Kirby had turned and walked back towards that house when they parted. He claimed that Aiden said that he had bigger (or better) things to do. In addition, the accused stated that Aiden had been aggressive that night.

23 During that conversation, at one stage, the accused described one of the burglaries in terms which were consistent with the burglary at 23 Duncan Street. He described how the occupant chased him away, and he thought that the occupant was a policeman. He also described a second burglary where he got an X-box. However, most of the conversation focused on Aiden Kirby. Detective Senior Constable Harper asked the accused where Kirby was and what was his phone number. In the course of the conversation the accused stated to Detective Senior Constable Harper "Okay, I did the burgs with Aiden, I know nothing about the baby".

24 Detective Senior Constable Harper stated that the conversation, which I have just related, took place over about seven or eight minutes. He then drove the accused back to the Bendigo Police Station. Sergeant Dalton was in the back seat of the vehicle with him. The trip back to the police station took about eleven or twelve minutes. During that trip, Detective Senior Constable Harper asked the accused about Kirby, and in particular asked him about Kirby's telephone number. The accused said that he had received a telephone call from Kirby, who said that Bendigo was "too hot", and that he was leaving for South Australia or Adelaide.

25 In cross-examination, Detective Senior Constable Harper stated that when they arrived at the police station at about 5.12 pm, the accused and he remained outside, where they smoked a cigarette together. During that time, the accused repeated to Detective Senior Constable Harper what he had already told him at the scene. Detective Senior Constable Harper asked the accused a few questions about Kirby, in order to try to locate him. He asked him about his telephone number, and whether there were people in South Australia or Adelaide who Kirby might visit. The focus of the conversation related to the possible whereabouts of Kirby. The accused said that, although he had telephoned Kirby on the night of the burglaries, he could not provide Kirby's phone number, because that number had been stored in his own mobile telephone, which he had smashed.

26 In cross-examination, Detective Senior Constable Harper agreed that, after he had arrested the accused, he said to the accused that he and the accused had known each other for some time, and they had always got along. He said to the accused, "It's fairly serious, Harley, a baby's died". In response the accused stated, "Yes, look, I was out that night. We did a couple of burgs, me and Aiden, but I had nothing to do with the baby". Detective Senior Constable Harper also agreed that, in the notes of his day book, he had recorded that the accused told him that he had done two burglaries, that he was chased at one of them by a person who he thought was a policeman, that he had stolen an X-box and an HTC telephone, and that he had split up with Aiden after doing a job at Jackson Street, that the next day he had spoken to Kirby on the telephone who said that it was "too hot" and that he was leaving for South Australia.

27 In cross-examination, Detective Senior Constable Harper reiterated that the focus of the conversation in the car concerned the whereabouts of Kirby, so that the police could track him down. Detective Senior Constable Harper agreed that, at some stage before the interview, the accused had told him that he had not told anyone at 2A Green Street that he was "linking up" with Aiden, because the occupants of 2A Green Street did not approve of Aiden because he was Aboriginal. In addition, at some stage before the interview, the accused told Detective Senior Constable Harper that he had taken Ice (methylamphetamine) and consumed alcohol that evening. He had told Harper that he had smoked one and a half points of Ice. He also agreed that at some stage he had told the accused that he had obtained the set top box out of a vehicle which was behind the house.

28 In re-examination, Detective Senior Constable Harper stated that, at the arrest scene, once Harper had said a couple of things, the accused "almost blurted out" that he was there that night with Aiden Kirby, and that Kirby's name was raised very quickly. He also "blurted out" the fact that he had been pursued from one of the burglaries by a person who he thought was a policeman. The conversation in the vehicle on the journey back to the police station focused on the whereabouts of Kirby, although some other matters might have been briefly spoken about in the vehicle. At the police station, he was only with the accused for about two or three minutes while they were having a cigarette.

29 Senior Sergeant John Dalton also gave evidence on the voir dire. He stated although he was nearby when Detective Senior Constable Harper was speaking to the accused in the vehicle, he was preoccupied with other matters and did not hear the conversation. Sergeant Dalton was sitting in the rear of the car which conveyed the accused back to the Bendigo Police Station. He said that the conversation, during that trip, concerned the movements of Aiden Kirby and where the police might find him. Sergeant Dalton said "In general terms he (the accused) was doing all the talking". At one stage the accused mentioned that Kirby had either departed for, or was thinking about going to, Adelaide. The accused also said that he had been with Kirby on the night in question, and that they had separated, one had gone in one direction, and the other in the other direction.

Section 464H to the Crimes Act 1958 - Submissions

30 Mr D Hallowes, who appears on behalf of the accused, submitted that the questioning of the accused by Detective Senior Constable Harper, at the time of his arrest, in the motor vehicle on the journey back to the police station, and outside the police station while the accused and he were smoking a cigarette, all constituted the same period of questioning as that of the recorded interview of the accused, which commenced at 6.11 pm. He submitted that the questioning all constituted one consecutive period of questioning, in which the same issues were addressed.

31 In particular, Mr Hallowes submitted that Detective Senior Constable Harper asked significant questions of the accused at the scene and en route back to the police station. In particular, in the course of those conversations which Harper had with the accused at that time, the accused spoke about committing two burglaries, being chased by a person who he thought was a policeman, and that he stole an X-box and an HTC telephone, that he was involved in a theft of a set top box from a motor vehicle, that he was with Aiden Kirby on the night, and that he split up with Kirby after the theft at Jackson Street. In the course of the conversation in the vehicle, the accused stated that he had nothing to do with the burglary at Eaglehawk Road, and he told the police about the drugs which he had used on the evening. Mr Hallowes submitted that the proximity of time and place between the unrecorded conversations, and the recorded interview, and the common features between the substance of the unrecorded conversations and the topics addressed in the interviews, were such that they were all part of the one questioning by the police. Mr Hallowes submitted that the decisions of the High Court in Pollard v The Queen[1] and Heatherington v The Queen[2] are authority for the proposition that s 464H operates to exclude the admissibility of a recorded interview, where it has been preceded by an interview, which is unrecorded, and which is part of the same questioning which is undertaken in the recorded interview.

32 In response, Ms M Williams SC, who appears with Mr G Hayward for the prosecution, submitted that there was no questioning by the police of the accused, before the recorded interview, within the meaning of s 464H of the Crimes Act. Further, if any questioning occurred, that questioning was not part of the questioning which was undertaken in the record of interview. Ms Williams also sought to submit that, if such questioning occurred, any admission made by the accused was confirmed in the recorded interview, and thus was admissible under s 464H(1)(c) and (e) of the Crimes Act 1958. In particular Ms Williams submitted that most of the discussion which took place between Senior Constable Harper and the accused, before the record of interview, was spontaneously initiated by the accused. A large part of those conversations were directed to matters relating to the present whereabouts of Aiden Kirby, and how the police might be able to locate him. Ms Williams referred to the evidence of Detective Senior Constable Harper and Sergeant Dalton, which was to the effect that the accused volunteered most of the matters, which were discussed before the recorded interview, as distinct from answering specific questions put to him by the police.

Section 464H of the Crimes Act 1958 - Legal principles

33 The objection, raised by the accused to the admissibility of the recorded interview, on the basis of s 464H(1), involves the question of the admissibility of a recorded interview, where that interview has been preceded by an unrecorded conversation or interview between the police and the suspect. In substance, the principle, which emerges from the authorities, is that, where the antecedent unrecorded conversation or interview is properly characterised as part of, or one and the same as, the recorded interview, s 464H(1) renders the whole of the interview process, including the recorded interview, inadmissible, subject to the operation of the exception specified in s 464H(2).

34 That principle was first discussed by the High Court in Pollard v The Queen.[3] In that case, the accused who was subsequently charged with counts of aggravated rape and rape, had been first subjected to questioning, after his arrest, at Frankston Police Station. At that time he was not informed of his rights, and he was not cautioned. No tape recording of the conversation was made. Approximately four hours later, he was conveyed to the St Kilda Road Police Complex. There, he was cautioned, and informed of his rights. The ensuing interview was video recorded. In the course of that interview, the accused made a number of admissions. The High Court held that the interview should have been excluded from evidence, in the exercise of the trial judge's discretion. However, a majority of the court (Mason CJ, Deane, Toohey and McHugh JJ) did not consider that s 464H(1) operated to exclude the recorded interview.

35 In the course of his judgment, Toohey J (with whom Mason CJ agreed) stated:

"Certainly a trial judge should be astute to ensure that investigating officials do not try to avoid the operation of s 464H(1) by fragmenting their questioning, as to both time and place ... It is obvious that in some circumstances questioning may properly take place on a number of occasions and, it may be, at a number of places. But if the Crown seeks to lead evidence of a confession or admission made on any of those occasions, its admissibility will be determined by the operation of the section. And even if the Crown chooses, as here, not to rely upon something said on an earlier occasion, the earlier occasion may be treated by the court as part of the same questioning if the circumstances, in particular proximity of time and place, so dictate. Questions of degree are necessarily involved."[4]

36 In Heatherington v The Queen,[5] the High Court adopted and applied the principles stated by Toohey J in Pollard's case. In that case, the accused, who was suspected of murder, was conveyed to Dandenong Police Station, where he was questioned for about five to ten minutes by the police. That interview was not recorded. In the course of that interview, the accused gave details of his name, address and occupation, an account of the events leading up to the assault which resulted in the death of the deceased, and details of the assault itself and his conduct after the assault. The police then departed for approximately 40 minutes, and made further inquiries. On returning, they then conducted a detailed interview, comprising 601 questions, which was tape recorded. In the course of that interview, the accused made a full confession. The trial judge allowed the evidence of the second interview to go into evidence. The accused was convicted of murder. The Court of Criminal Appeal of Victoria dismissed the accused's application for leave to appeal. The High Court, by a majority, dismissed the accused's application for special leave to appeal.

37 Mason CJ, Deane, Toohey and McHugh JJ held that the initial period of questioning at the police station, and the second period constituted by the recorded interview, were separate periods of questioning, so that the evidence of the recorded interview was not rendered inadmissible by s 464H. Brennan, Dawson and Gaudron JJ differed, holding that the case should be remitted to the Court of Criminal Appeal to determine whether, in light of the questions asked in the first interview, the entirety of the questions asked in the second recorded interview was properly to be treated as the same questioning.

38 In their joint judgment, Mason CJ, Deane and McHugh JJ, adopted the views expressed by Toohey J in Pollard, stating:

"Much to be preferred is a construction according to which the admissibility of a confession turns on a question of substance: whether the earlier questioning was part of the same questioning which produced the confession. If it was not, the fact that the earlier questioning was not recorded would not of itself preclude the reception of evidence of the questioning in the course of which the confession was made. The existence and circumstances of the earlier unrecorded questioning could, of course, be relevant to, and possibly decisive of, the question whether evidence of the confession should be rejected on unfairness or public policy grounds.

The issue here then is whether the initial period of questioning and the second period should be characterised as the same questioning. The resolution of such an issue involves questions of degree and may require a weighing of a variety of factors including the proximity of time and venue, the relationship between the occasions on which questioning took place and the relationship between the interrogations which took place on those occasions."[6]

39 Thus, the critical question which I must consider is whether the questioning, which preceded the recorded interview, should be characterised as the same questioning which took place in the recorded interview. As the authorities, to which I have just referred, state the question is very much one of fact and degree. A number of factors are relevant, including:

(a) The proximity in time and place of the two periods of questioning.[7]

(b) The duration and nature of the antecedent unrecorded questioning.[8]

(c) Whether the recorded interview is self-contained, or whether it is reliant, for its meaning and context, on the antecedent questioning.[9]

Section 464H of the Crimes Act - Conclusion

40 Certainly, the three unrecorded interviews occurred relatively shortly before the commencement of the recorded interview. They each occurred at places that were relatively close to the place at which the recorded interview proceeded. In addition, as Mr Hallowes has pointed out, a large number of the matters which were the subject of the conversation in the unrecorded interviews were also addressed in record of interview.

41 However those matters do not conclude the issue. For, on the other hand, I accept the evidence of Detective Senior Constable Harper that, on each of the three occasions, there were only a limited number of questions asked by the police of the accused man. Rather, it was the accused who was ready and willing to spontaneously volunteer that, on the evening of 14 to 15 June, he was committing a number of burglaries and thefts in company with Aiden Kirby in the Long Gully area. In volunteering that information, the accused mentioned two specific burglaries in which he had participated, the fact that he had been chased away from one of them by a person who he thought was a policeman, that one of the burglaries or thefts involved the taking of a set top box, and that, after that theft, he had separated from Aiden Kirby.

42 It is significant that, having volunteered that information, most of the questioning by the police focused on the issue of Aiden Kirby, and, in particular, as to how the police might be able to locate him. In this regard, I accept the evidence of Detective Senior Constable Harper that, at that stage, he regarded the account given by the accused, that he had been in company with Aiden Kirby, as quite feasible. Detective Senior Constable Harper had known the accused for some time, and he had no history of violence. He found it difficult to reconcile his limited knowledge of how the baby had died with his knowledge of, and previous dealings with, the accused man. In addition, there had been no mention of Kirby as a person of interest in the investigation, before the accused referred to his involvement in the burglaries that occurred during the night in question. Thus, I accept that Detective Senior Constable Harper asked questions of the accused concerning Kirby, in order that he could ascertain Kirby's whereabouts, for the purposes of the investigation into the death of Zayden. The questions were not asked in the course of any structured questioning or interview. Rather, as I stated, the majority of the questions were asked for investigative purposes.

43 Each of the three unrecorded conversations, which the police had with the accused, were of relatively short duration. By contrast, the ensuing recorded interview, which took place over three consecutive days, lasted for a total of some three hours.

44 The structure and substance of the recorded interview differed substantially from the unrecorded conversations which the police had with the accused.

45 The interview on 19 June commenced by addressing a number of personal matters, including the accused's consumption of alcohol and drugs on the night of the burglaries. The questions were then directed to matters relating to Aiden Kirby, and, in particular, as to how the accused made contact with Kirby on the night, where he met Kirby, and their movements after meeting up. The interview then addressed the attempted burglary (at Duncan Street), in the course of which the accused was pursued by the occupant of the premises. The accused was asked about his movements after he had been pursued from those premises. He then described the burglary which took place at Wilson Street, in the course of which he stole an X-box and an HTC telephone. The accused was then questioned as to what happened after he left that house. He stated that he went to Jackson Street, where he stole an item from a vehicle. At first, he thought that it was a DVD player, but, later in the interview, he recollected that it was a set top box. He said that he then parted from Aiden Kirby. At that point, Detective Senior Constable Harper asked the accused about the burglary at 199 Eaglehawk Road where "a child was injured and ... subsequently died". The accused denied being involved in that burglary, stating that he had nothing to do with it, and that he had left Aiden after breaking into the vehicle in Jackson Street. The remaining questions in the interview were directed to how the accused then made his way home after separating from Kirby.

46 On 20 June, the interview recommenced. In that interview the police asked the accused, consecutively, questions about burglaries or thefts at 1 Bolt Street, 18 Bolt Street, a theft from a vehicle at Bray Street, a breaking into a vehicle at Dillon Street, an entering of a garden shed in Dillon Street, an attempted burglary at Havilah Road, and the breaking into of vehicles at Jackson Street. Those questions were asked in a structured manner by Detective Senior Constable Harper, who, at the time, was referring to documents which he had in relation to each of those offences. The accused was then asked a number of questions about other incidents, on other dates, including some burglaries in April.

47 On 21 June, when the interview re-commenced, the accused was asked further questions about the burglary committed at the Wilson Street premises in which an X-box and an HTC telephone were stolen. He was also asked further questions about the theft of the set top box from a vehicle in the driveway at 15 Jackson Street, and the theft of a fire extinguisher in Jackson Street. He was asked some questions about vehicles which were broken into in Grove Street, and a series of burglaries that occurred in Neilborough.

48 The brief summary, which I have just given of the interview process, demonstrates that it was conducted in a very different, and much more structured manner, than the spontaneous conversations which took place between the police and the accused, and which were unrecorded. In particular, it was very different from the type of questioning that was undertaken, in the first unrecorded interview, in Heatherington's case.

49 Thus, in summary, the unrecorded conversations that took place between the police involved only limited questioning by the police. The first conversation, on arrest, involved the accused spontaneously volunteering that he had been with Kirby that night, that they had committed particular burglaries in question, including one in which a set top box was taken, and that they had then parted. Thereafter, the majority of the questions directed by the police to the accused were of an investigative nature, designed to ascertain the whereabouts of Kirby. The conversations were of short duration, and were informal.

50 By contrast, the recorded interview was lengthy. In a structured way, it addressed a number of matters. It proceeded along the lines of the usual police interview process, with the police asking questions, and the accused answering them.

51 Taking those matters into account, in my view, the unrecorded conversations between the police and the accused, at the point at which he was arrested, in the vehicle en route to the police station, and outside the police station, could not be properly characterised as the same questioning that was undertaken by the police with the accused in the recorded interview that occurred at the Bendigo Police Station between 19 June and 21 June 2012. For those reasons, I reject the submission that the recorded interview was inadmissible pursuant to s 464H(1) of the Crimes Act 1958.

Admissibility of recorded interview under s 138 of Evidence Act 2008

52 The second basis, upon which the accused objects to the admissibility of the record of interview, is that it was obtained as a consequence of an impropriety by the police, and therefore it should be excluded under s 138(1) of the Evidence Act 2008.

53 In essence, it was submitted that after the police had arrested the accused, they implemented a strategy to undermine the accused's rights, by ensuring that he not be informed that he was a suspect for the unlawful killing of Zayden Veal-Whitting.

54 Before considering the manner in which that submission was advanced on behalf of the accused, it is useful, first, to outline the relevant principles relating to s 138 of the Evidence Act 2008.

55 Section 138(1) of the Evidence Act 2008 provides:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law -

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way which the evidence was obtained."

56 It has been recognised that the terms in which s 138 is expressed, and the purpose which it is designed to serve, are derived significantly from the principles which related to the common law discretion to exclude evidence that has been illegally or improperly obtained.[10] The common law principles were stated by the High Court in cases such as Ridgeway v The Queen.[11] In that case, Mason CJ, Deane and Dawson JJ, in their joint judgment, described the concept of impropriety in terms of conduct which "is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances".[12] In Robinson v Woolworths Ltd,[13] Baston JA (with whom Barr JA and Hall JA agreed) noted that the conduct in question must not merely be a contravention of those minimum standards in some minor respect, but, rather, it must be substantially inconsistent with and contrary to those standards.

57 In essence, the common law discretion, and s 138, are based on the recognition by the law that the admission of evidence, which has been obtained by unlawful or improper means, creates a tension between two important, but competing, requirements of public policy, namely, first, the conviction of those who commit criminal offences, and, secondly, the undesirability of the courts countenancing unlawful conduct or significant impropriety by those whose responsibility it is to uphold the law.[14] As Barwick CJ stated in R v Ireland:[15]

"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. ... In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

58 In Director of Public Prosecutions v MD,[16] the accused, who was charged with rape, had been interviewed at home. Although he was informed of his rights, he was not asked, as required by s 464C of the Crimes Act 1958, whether he wished at that stage to exercise them. Subsequently, the accused was again interviewed by the same police officers at a police station, in which he was properly informed of all his rights. At trial, the prosecution did not seek to adduce evidence of the first interview which had been conducted at his home. The trial judge ruled that the second interview was inadmissible. The Court of Appeal dismissed the application by the prosecution for leave to appeal against that decision. The court stated:

"The question for her Honour was whether the evidence comprised of the false denials (in the recorded interview) was obtained at an unacceptable cost according to prevailing community standards. Logic and common sense imply that the question could not be answered without taking into account the subjective circumstances of the respondent and thus the effect of the contravention on him."[17]

59 While both the common law discretion, and s 138 of the Evidence Act, involve a balancing exercise between the two competing aspects of public policy, which I have described, there are some relevant differences between the common law discretion and s 138 of the Evidence Act 2008.

60 In particular, s 138 alters the burden of proof in relation to such a matter. While the burden of proof is on the accused to establish the relevant impropriety on the balance of probabilities, once the impropriety is established, the burden shifts to the prosecution to establish, under s 138(3), that the desirability of admitting the evidence outweighs the undesirability of admitting it. Secondly, s 138 is not expressed as a discretion, rather, it is expressed in mandatory terms. Thus, if the accused establishes that the evidence was obtained improperly, or in contravention of an Australian law, or as a consequence of an impropriety or contravention of Australian law, the evidence must not be admitted, unless the desirability of admitting it outweighs the undesirability of admitting it.

The objection pursuant to s 138 of Evidence Act

61 As I stated, Mr Hallowes submitted that the admissions, made by the accused in the course of the recorded interview with the police, were obtained as a consequence of a deliberate strategy by the police to undermine the rights of the accused, and to ensure that he did not exercise them, by concealing from him that he was a suspect for the murder or manslaughter of Zayden Veal-Whitting.

62 Mr Hallowes based that argument, first, on the conduct of Detective Senior Constable Harper on the arrest of the accused, in informing the accused that he was in a bit of strife, and that he was being arrested in respect of serious matters. Mr Hallowes submitted that that conduct by Detective Senior Constable Harper was designed to ensure that the accused would engage with him, by talking to him, rather than by exercising his right to consult with a legal practitioner and exercise his right to silence.

63 That proposition may be readily rejected. In my view, it was perfectly proper for Detective Senior Constable Harper to inform the accused that the matters, in respect of which he was being placed under arrest, were serious. Detective Senior Constable Harper had had previous dealings with the accused, principally in relation to burglaries and thefts in the Bendigo and Long Gully area. It was appropriate, in the interests of the accused, that he be informed that he was not, on this occasion, being arrested about the same type of matters for which he had been arrested previously, but, rather, that the burglaries and thefts, in respect of which he had just been placed under arrest, were serious, because they might be connected with the death of an infant. I do not accept that such conduct by Detective Senior Constable Harper was intended, or calculated, to encourage the accused to engage with the police and talk to them, rather than, instead, exercising his rights to silence to consult with a legal practitioner.

64 The principal submission made by Mr Hallowes consisted of three propositions. First, he submitted that, from the time of the accused's arrest until the completion of his interview, the police considered that the accused man was a suspect for the murder of Zayden. Secondly, throughout the interview, the accused was not properly cautioned that he was a suspect for that crime. Thirdly, Mr Hallowes submitted, the lack of such a caution given to the accused was due to a deliberate strategy by the police not to tell him that he was a suspect, and to lead him to believe that he was only being interviewed in relation to burglaries and thefts. It was submitted by Mr Hallowes that that strategy was improper, in that it was designed to ensure that the police elicited important admissions from the accused, particularly as to engaging in burglaries and thefts in close proximity to the premises at 199 Eaglehawk Road.

65 At the commencement of his submissions, Mr Hallowes contended that the parties to that strategy included Detective Senior Constable Harper, and the Homicide Squad. However, in the course of his submissions, he resiled from alleging that Detective Senior Constable Harper was a party to that strategy. Rather, he maintained that the Homicide Squad had developed the strategy, and that the Homicide Squad utilised Detective Senior Constable Harper to implement it, by asking him to interview the accused concerning a number of burglaries and thefts committed on the evening of 14 June to 15 June 2012.

66 It is necessary to examine each of the three steps in the argument of Mr Hallowes, which I have just outlined.

67 The question whether the accused was a suspect in the unlawful killing of Zayden Veal-Whitting was addressed in the evidence and the voir dire of both Detective Senior Constable Harper, and the informant, Detective Senior Constable Tony Harwood.

68 In cross-examination, Detective Senior Constable Harper agreed that, at the time of the interview, he knew that the death of the infant was suspicious, and that it was likely to have been caused by murder. He agreed that when the accused man was arrested, he (Detective Senior Constable Harper) considered the accused to be a suspect for the murder of Zayden. However, he altered that view when the accused volunteered that, on the evening in question, he had been out with Aiden Kirby, and that he had parted from Kirby during the evening. Detective Senior Constable Harper stated that that information changed his mind, and he thought that perhaps the accused was not responsible for the death of Zayden. He said that he had known the accused for a number of years, and he had never known the accused to be involved in violent crime. The information given by the accused to him about Aiden Kirby seemed to be feasible and consistent. As a result, at the commencement of the interview, he was reasonably confident that the accused had not killed Zayden, and he did not then consider the accused to be a suspect in the killing of Zayden. Thus, when Detective Senior Constable Harper returned to the police station, the focus of his brief to the Homicide Squad concerned the information given to him by the accused concerning Aiden Kirby.

69 In further cross-examination, Detective Senior Constable Harper stated that throughout the third day of the interview, on 21 June, he remained of the view that, while the accused was a suspect for the burglaries and thefts, he was not a suspect in respect of the killing of Zayden. He said that nothing changed his mind in relation to that matter. In cross-examination, he was then shown a summary prepared by him for the Magistrates' Court proceeding, shortly after the conclusion of the interview. In that summary, it was stated that investigators believed that the accused was not in the company of Kirby on the evening in question, and that he had committed "all offences alone". When that document was drawn to his attention, Detective Senior Constable Harper stated that something had led him to believe, at the end of the interview, that the accused had not been with Kirby. However his memory, when giving evidence, was that it was feasible that the accused had been with Kirby.

70 In evidence, the informant, Detective Senior Constable Harwood stated that, at the time of the accused's arrest, he was then a suspect for the burglaries in the area, including a suspect for the burglary at 199 Eaglehawk Road. However, he was then a person of interest, and not a suspect, relating to the death of Zayden Veal-Whitting.

71 In cross-examination, Detective Senior Constable Harwood denied that, because the accused was a suspect for the burglary at 199 Eaglehawk Road, he was thus, also, a prime suspect for the murder of Zayden at those premises. Detective Senior Constable Harwood stated that the investigation of the death of Zayden Veal-Whitting involved the police exploring a number of different possibilities, and that it was a dynamic situation. He agreed that the fact that Mathew Tisell's wallet was found at the premises at 2A Green Street in the afternoon of 20 June, caused him to change his mind, but he still did not consider that that further evidence made the accused a suspect for the murder.

72 In submissions, Mr Hallowes contended that I should not accept the evidence given by Detective Senior Constable Harwood, and that I should be satisfied that, by the commencement of the recorded interview with the accused on 19 June, Detective Senior Constable Harwood, and the Homicide Squad, considered the accused to be a suspect in the killing of Zayden Veal-Whitting. In particular, he submitted that the fact that the accused had committed a number of burglaries, in the area, including a burglary close to the premises at 199 Eaglehawk Road, and that Zayden was killed on the same night that a burglary was committed at those premises, taken together, must have rendered the accused a suspect in the mind of the Homicide Squad.

73 Certainly, that argument has its attractions. However, the question is not whether I agree or disagree with the conclusion reached by the Homicide Squad, and Detective Senior Constable Harwood, that, at the time of his interview, the accused was not a suspect in the killing of Zayden Veal-Whitting. Rather, the question, which I must determine, is whether, notwithstanding the evidence of Detective Senior Constable Harwood, and, indeed, the evidence of Detective Senior Constable Harper, nonetheless I am satisfied that, at the critical time, the Homicide Squad, and Detective Senior Constable Harwood, considered the accused to be a suspect, as distinct from a person of interest, in respect of the death of Zayden.

74 I had the opportunity of observing both policemen under the detailed cross-examination by Mr Hallowes. It is important to bear in mind that the issue, raised by Mr Hallowes, is not to be determined with the wisdom of hindsight. Rather, the question is whether, notwithstanding the evidence of those two police officers, I am satisfied that the subjective analysis undertaken by the Homicide Squad, at that time, was such that the accused then occupied the status as a suspect in the killing of Zayden Veal-Whitting.

75 In assessing that question, it is important to bear in mind that, while matters may seem more clear in retrospect, nevertheless, in the dynamic nature of such an investigation, where events are unfolding, and information is being obtained and examined, matters may seem far less clear than they do in hindsight. Taking those matters into account, I am not satisfied that I should reject the evidence of Detective Senior Constable Harwood, or Detective Senior Constable Harper, in relation to how they viewed the accused at the time of his interview. On the contrary, bearing in mind the evidence of those witnesses, and the matters which I have already discussed, I am satisfied that, throughout the interview, each of those two witnesses did not consider that the accused was then a suspect in the death of Zayden Veal-Whitting. Certainly, they were each, understandably, of the view that he was a person of interest, and that he should be questioned, in relation to the incident at 199 Eaglehawk Road in which Zayden died. However, I accept the evidence of each of them that they did not, then, regard him as a suspect in the killing of Zayden Veal-Whitting.

76 The conclusions, which I have just reached, are sufficient to dispose of the objection to the admissibility of the record of interview under s 138 of the Evidence Act. However, in light of the matters that were canvassed on the voir dire, I shall also deal with the second and third propositions advanced by Mr Hallowes in support of the objection.

77 The second proposition was to the effect that the accused, as a suspect of the charge of murder, was not properly cautioned that he was a suspect of that crime.

78 It is clear from the evidence that at no time during the recorded interview was the accused expressly informed that he was a suspect in respect of the death, killing or murder of Zayden. At the time of the interview, the Homicide Squad had received information from the pathologist to the effect that Zayden had died as a result of the application of at least twelve blunt force impacts of severe force. Thus, it was clear to the members of the Homicide Squad, and to Detective Senior Constable Harwood, that they were dealing with a case of murder. The Homicide Squad did not inform Bendigo Police, and in particular Detective Senior Constable Harper, of the information received from the pathologist, for operational reasons. Nevertheless, in his evidence, Detective Senior Constable Harper stated that he understood that Zayden had died as a result of an assault, and that the case was probably one of murder.

79 In the next section of this ruling, I shall deal with the question whether Detective Senior Constable Harper, in cautioning the accused, sufficiently complied with the requirements of s 464A of the Crimes Act 1958. The issue, which I must consider now, is similar to, but not the same as, that question. That issue is, if, contrary to the conclusion I have just reached, the accused was suspected of murder at the time that he was interviewed, the caution that was given to him was calculated to avoid alerting the accused to that circumstance.

80 As I stated, the accused was not told, in express terms, that he was a suspect in the murder of Zayden. However, at the time of his arrest, Detective Senior Constable Harper made it clear to the accused, in fairly blunt terms, that he was not simply being arrested in relation to a series of burglaries, but that, rather, he was in "strife", for the matters on which he was being arrested were "serious", and that they involved the death of a baby. Pausing there, as I have already pointed out, it is difficult to reconcile that "warning" given by Detective Senior Constable Harper to the accused, with some underlying police strategy of beguiling the accused into a false sense of security, in the sense that he was only going to be interviewed about a series of burglaries and thefts.

81 As I have already pointed out, at the commencement of the recorded interview, Detective Senior Constable Harper, in addition to informing the accused that he would be interviewed about a series of thefts from motor cars and burglaries, expressly told the accused that he would be asked questions regarding a burglary "where ... an incident occurred and during that incident a baby died". Having informed the accused of that matter, he then cautioned the accused, and informed him of his rights. On the next day, on 20 June, at the recommencement of the interview, the caution given by Detective Senior Constable Harper to the accused was expressed in more explicit terms. He cautioned the accused that he would be questioned about a series of burglaries and thefts in the Bendigo area, including a burglary at 199 Eaglehawk Road in Long Gully, and that at that burglary a child was found deceased. Detective Senior Constable Harper then told the accused that there would be further questions asked "about that house ... where the child was found to have been killed".

82 In my view, the cautions given at the commencement of the interview on 19 June, and at the recommencement on 20 June, could not be characterised as being calculated to conceal from the accused the possibility that answers, which he might give in relation to the burglaries, and in particular the burglary at 199 Eaglehawk Road, might be relevant to the circumstances in which the baby was killed. On the contrary, those two cautions were, in my view, designed to alert the accused to the fact that the questioning, and the answers given by the accused, would be relevant to that event. That conclusion is, of course, reinforced by the context in which the cautions were given, namely, subsequent to the conversation which Detective Senior Constable Harper had with the accused on his arrest, when he warned the accused of the seriousness of the situation, because the events in respect of which he was arrested were connected with the death of a baby.

83 If, contrary to my earlier conclusions, the police had considered the accused to be a suspect in the murder of Zayden at the time that he was interviewed by Detective Senior Constable Harper, it would have been desirable that he be told that he was being interviewed about that matter. However, in that hypothetical situation, I do not consider that the cautions, given by Detective Senior Constable Harper to the accused in the recorded interview, were such as to reflect, or further, some underlying police strategy to deliberately divert the accused from any concern or suspicion that the answers, that he might give in the interview, might be relevant to the question of the circumstances in which, and the means by which, the baby had died. On the contrary, the cautions given by Detective Senior Constable Harper to the accused could only have been calculated to alert the accused to that matter.

84 Thus, if I had reached the conclusion that the police regarded the accused as a suspect in the killing of Zayden, at the time he was interviewed, I do not accept the second proposition advanced by Mr Hallowes, namely, that the cautions given to the accused, in the recorded interview, were calculated or designed to divert his attention from any concern that the answers he might give in the course of the recorded interview might be relevant to the circumstances in which the baby was killed.

85 The third proposition, advanced by Mr Hallowes in relation to the objection to the admissibility of the interview under s 138 of the Evidence Act 2008, was to the effect that the lack of any caution to be given to the accused, that he was a suspect of the murder of Zayden, was the product of a strategy by the Homicide Squad that he not be alerted to the fact that he was a suspect in the murder. It was submitted that the purpose of that strategy was to beguile the accused into making admissions in relation to the burglaries, which admissions could be used in evidence against him in respect of the murder of Zayden.

86 Having heard the evidence of Detective Senior Constable Harper and Detective Senior Constable Harwood, I do not accept that third proposition advanced on behalf of the accused. According to Detective Senior Constable Harper, no decision was made whether he, or a member of the Homicide Squad, would interview the accused, before the accused was arrested. After the accused was arrested, he briefed the Homicide Squad concerning what he had been told by the accused at the scene, and he was given the task of interviewing the accused.

87 Detective Senior Constable Harwood, in cross-examination, stated that his understanding, in the period leading up to the arrest of the accused, was that, unless extraordinary circumstances arose, the interview with the accused would be undertaken by Detective Senior Constable Harper. Detective Senior Constable Harwood pointed out Detective Senior Constable Harper had all of the relevant knowledge, including knowledge of the local area, and knowledge of the accused. Thus, it was sensible that, after the accused's arrest, Detective Senior Constable Harper would undertake the interview. Detective Senior Constable Harwood rejected the proposition, put to him in cross-examination, that the accused was then a suspect in the killing of Zayden, and that he would be more likely to make valuable admissions in respect of that crime, if he was not informed of that fact, and was only interviewed by local police in relation to the burglaries.

88 I accept the evidence given by Detective Senior Constable Harwood. In particular, based on that evidence, I am not persuaded that there was some strategy by the Homicide Squad to use Detective Senior Constable Harper as an instrument by which to induce the accused to make admissions in respect of the burglaries, which could then be used against the accused in relation to the murder of Zayden. Rather, as I have already found, at that stage the accused was a person of interest, and not a suspect, in respect of the death of Zayden. As I pointed out, on his arrest, at the commencement of the interview, and on the recommencement of the interview on the second day, Detective Senior Constable Harper cautioned him in terms that questions he would ask related to a burglary in the course of which a baby was killed. Those cautions are inconsistent with any underlying strategy of the Homicide Squad to lull the accused into some false understanding, that the answers he might give in respect of the burglaries would not be relevant to the circumstances in which the baby died. Further, I accept the evidence of Detective Senior Constable Harwood that, in the circumstances, it was practical and sensible that Detective Senior Constable Harper undertake the interview of the accused. Detective Senior Constable Harper was familiar with the local area, and he was acquainted with the details of all of the burglaries and thefts that took place in the Bendigo and Long Gully areas on the night in question.

89 In conclusion, then, I reject each of the three propositions advanced by Mr Hallowes in support of the objection to the admissibility of the interview under s 138 of the Evidence Act 2008. Thus, I am not satisfied that there was any relevant impropriety by the police, which resulted in the admissions made by the accused, in his interview. It follows that the objection to the admissibility of the evidence under s 138 of the Evidence Act 2008 must fail.

Section 464A of the Crimes Act 1958

90 The third basis, upon which the accused seeks to exclude the interview, concerns the substance of the caution, which was administered to him at the commencement of the interview, and at various stages through it, when the interview was recommenced. The objection is based on the proposition (that I have rejected) that at the time of his arrest, the accused was a suspect in the murder of Zayden Veal-Whitting. As such, it was contended that it was requisite for Detective Senior Constable Harper, pursuant to s 464A of the Crimes Act 1958, to inform the accused that he was being questioned in respect of that offence. While the various cautions administered to the accused referred, in different terms, to the death of Zayden in the course of a burglary, in none of them did Detective Senior Constable Harper inform the accused that he was to be questioned about the alleged murder of Zayden. In that respect, it was submitted that the police failed to comply as to the requirements of s 464A of the Crimes Act 1958. Thus it was submitted that the interview should be excluded in the exercise of the court's discretion, under s 90 of the Evidence Act 2008.

91 I have already rejected the premise upon which the objection, under s 90 is founded, namely, that, at the time of his interview, the police considered the accused to be a suspect of the murder of Zayden. Nevertheless, in deference to the thorough submissions made in this respect by Mr Hallowes, I shall deal with the objection, on the assumption that the accused was, in fact, a suspect at that time.

92 The objection is made on the basis that, as the accused was a suspect in the murder of Zayden, Detective Senior Constable Harper was obliged, under s 464A of the Crimes Act 1958, but failed, to inform him expressly of that fact.

93 Section 464A(2) provides:

"If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1) -

(a) inform the person of the circumstances of that offence; and

(b) question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence."

94 Unsurprisingly, it has been held that, in order that the questioning in subsection (2)(b) occur, the police must first conform with the requirement in subsection (2)(a), by informing the person, who is suspected of committing an offence, of "the circumstances of that offence".[18]

95 As I have already stated, at the commencement of the interview on 19 June, Detective Senior Constable Harper (at questions 9 to 13) informed the accused that he intended to interview him in relation to "a series of thefts from motor car and burglaries" including "a burglary ... where ... an incident occurred and during that incident a baby died". On the next day, 20 June, when the interview resumed at 10.31 am, Detective Senior Constable Harper (at questions 878 to 881) informed the accused that he intended to interview him further regarding "a series of burglaries and thefts that occurred in the Bendigo area ... and that series of burglaries also includes a burglary at 199 Eaglehawk Road in Long Gully that occurred last night, on the same night as the other burglaries ... however, at that burglary a child was found deceased in the morning so I'll be asking you questions about ... further questions about that house where the - where the child was found to have been killed".

96 The interview was suspended on 20 June at 11.11 am to enable the accused to go to the toilet. When it resumed at 11.13 am, Detective Senior Constable Harper (at question 1275) told the accused that he intended to interview him further regarding offences "of burglary and theft of motor car and also questions regard - relating to a burglary at 199 Eaglehawk Road ... in Long Gully, where a child lost its life, and that was on the night of 14th June, the early hours of 15th June".

97 As I stated, the interview concluded on 20 June at 11.27 am, when the accused became ill. When the interview recommenced on the next morning, 21 June, at 8.32 am, Detective Senior Constable Harper said to the accused (at questions 1414 to 1416) that he intended to interview him further "... regarding offences of burglary, theft from motor car and I think there's also matters of theft of motor car from an address in Neilborough that I had forgotten about. Also regarding the - a burglary that occurred at 199 Eaglehawk Road on the night of Thursday 14th June, where a baby was found deceased the following morning".

98 The issue, relating to whether the investigating police have complied with s 464A(2), has been considered in a number of cases by the Court of Appeal. In those cases, it has been held that, in order to comply with the requirements of s 464A(2), it is not necessary that the police specify the particular offence alleged to have been committed by the suspect. Rather, it is necessary that the suspect be provided with sufficient information to enable him to understand what he is to be questioned about, and to enable him to make an informed decision as to whether he should exercise any of his rights, including his right to silence, and his right to communicate with a relative, friend or legal practitioner. Those principles have been stated by the Court of Appeal in R v Lancaster,[19] R v Mathe[20] and R v Lo Presti.[21]

99 In R v Lancaster, Tadgell JA, by way of example, of that proposition, stated:

"For example, it would, I think, in the case of an investigation of a homicide, generally be sufficient compliance with the terms of s 464A(2) to inform the person being questioned that the questioning relates to the death of a certain person at a certain time and place."[22]

In similar terms, Batt JA, also by way of illustration, stated:

"By way of examples of what ordinarily would satisfy para (a), I would suggest a statement by an investigating official that he wanted to question the person 'about the death of X' or 'about a brawl in the Y Hotel last night', with it being unnecessary to specify murder or manslaughter in the first case, or to catalogue the injuries or property damage caused in the brawl in the other case. Sometimes, however, it might be necessary to state the gravamen of the offence."[23]

100 If, contrary to my earlier conclusions, the accused was a suspect in the murder of Zayden at the time of his interview, it is debatable whether the caution, given by Detective Senior Constable Harper to the accused, satisfied the requirements of s 464A(2) of the Crimes Act 1958. Nevertheless, on balance, I consider that the caution, given by Detective Senior Constable Harper, at the commencement of the interview on 19 June, and on its resumption on 20 June, was sufficient to bring to the mind of the accused that the questioning would relate to a series of burglaries, and, in particular, to the burglary at 199 Eaglehawk Road, which was closely connected, in time and place, with the death or killing of a baby. In my view, in that way, the caution given to the accused was sufficient to enable him to understand that he was to be questioned about that matter, and to enable him to make an informed decision whether he should exercise any of his rights in relation to the interview relating to that topic. While, if the accused was a suspect, it would have been preferable that the caution, given to the accused, was expressed in more clear, and stark terms, nevertheless I do not consider that, in the circumstances of this case, the caution given by Detective Senior Constable Harper would have failed to comply with s 464A(2) of the Crimes Act 1958, if, in fact, the accused was a suspect of the murder of Zayden.

101 The objection on behalf of the accused to the admissibility evidence is based on s 90 of the Evidence Act 2008, which provides that a court may refuse to admit evidence of an admission if, having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence. The discretion, under s 90, is expressed in terms which are similar to the principles which attach to the common law discretion to exclude evidence on the basis of fairness, and which were expounded in cases such as R v Lee;[24] see also EM v The Queen.[25]

102 As I have already stated, in my view, the cautions given by Detective Senior Constable Harper to the accused were sufficient to bring home to the accused that, in the course of the interview, he would be questioned concerning a series of burglaries, and in particular the burglary at 199 Eaglehawk Road, which was closely connected in time and place with the circumstances in which a baby was killed. Further, it is clear from the responses made by the accused to questions in relation to that topic, that he well understood that fact.

103 During the interview on 19 June, at questions 677 and following, Detective Senior Constable Harper commenced to question the accused relating to a burglary which occurred opposite the premises at Jackson Street, which had been burgled. The accused said that he did not know anything about the burglary, at those premises, because he had then separated from Aiden Kirby. There then followed the following passage in the interview:

"Question 683: Alright. This is the burglary that where a child was injured and - subsequently died. You see why obviously we ...

Answer: Yeah, I know, I'm sorry ...

Question 684: We have an interest in that ...?

Answer: It's just making me feel fucking sick."

104 Detective Senior Constable Harper went on to explain that the questions, which he had asked, related to burglaries at locations which, geographically, led to the burglary at 199 Eaglehawk Road. The accused responded:

"... yeah, I get where you're coming from ... It puts it all in the circle ... smack bang ... yeah. I understand that. ... But I'm - as I said to you in the car all the way here, I had nothing to do with that."

105 In a subsequent passage on the same day, the accused told the police that he had read about the baby's death on the front page of the Herald Sun newspaper. He then said:

"I'll be honest with you, Tom, when I saw that house I thought 'fuck, here we go' you know. Because I know - I knew you guys were gonna catch up with me for something, I know you guys are gonna find something of mine and ... you know, I knew you guys would automatically think, 'fucking he's done this, he's done this, he's done this, it means he's done this' you know."

106 The passages of the interview, to which I have just referred, make it plain that the accused, during the interview, well understood that the questioning, which related to the burglaries in the interview, might have implications in relation to the police investigation of the circumstances in which Zayden died. Taking those matters into account, together with the cautions given to the accused, I am not satisfied that, having regard to the circumstances in which the interview took place, it would be unfair to the accused to use that evidence in the trial. I therefore reject the application to exclude it under s 90 of the Evidence Act 2008.

107 For the reasons which I set out above, I reject the application on behalf of the accused to exclude, from admission into evidence, the recorded interview undertaken by police with him between 19 June and 21 June 2012. In particular:

(1) The recorded interview is not inadmissible pursuant to s 464H(1) of the Crimes Act 1958.

(2) I am not satisfied that the admissions made by the accused were the consequence of an impropriety by the police, and therefore I do not accept the application to exclude the interview under s 138 of the Evidence Act 2008.

(3) I am not satisfied that, having regard to the circumstances in which the interview was undertaken, it would be unfair to the accused to use the interview in evidence against him at the trial. I therefore do not accept the application to exclude the interview under s 90 of the Evidence Act 2008.

[1] [1992] HCA 69; (1992) 176 CLR 177.

[2] [1994] HCA 19; (1994) 179 CLR 370.

[3] [1992] HCA 69; (1992) 176 CLR 177.

[4] Ibid 219; see also 183 (Mason CJ); 197-8 (Deane J); 227 (McHugh J); cf at 193 (Brennan, Dawson, Gaudron JJ).

[5] [1994] HCA 19; (1994) 179 CLR 370.

[6] Ibid 376-7; see also 381-2 (Brennan, Dawson and Gaudron JJ); 386-7 (Toohey J).

[7] Heatherington v The Queen [1994] HCA 19; (1994) 179 CLR 370, 376; DPP v MD [2010] VSCA 233; (2010) 29 VR 434, 440 [26] (Maxwell P, Nettle and Harper JJA).

[8] Heatherington v The Queen [1994] HCA 19; (1994) 179 CLR 370, 377, 386.

[9] Ibid 377, 387-8; R v Frugtniet [1999] VSCA 58; [1999] 2 VR 297, 322 [68] (Brooking, Phillips and Buchanan JJA).

[10] Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612, [22].

[11] [1995] HCA 66; (1995) 184 CLR 19.

[13] [2005] NSWCCA 426; (2005) 64 NSWLR 612, [23].

[14] Bunning v Cross [1978] HCA 22; (1977) 141 CLR 54, 74 (Stephen and Aickin JJ); R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 335 (Barwick CJ); Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 31 (Mason CJ, Deane and Dawson JJ).

[15] [1970] HCA 21; (1970) 126 CLR 321, 335.

[16] [2010] VSCA 233; (2010) 29 VR 434.

[18] R v Lancaster [1998] 4 VR 550, 555 (Tadgell JA).

[19] [1998] 4 VR 550, 555-6 (Tadgell JA); 557 (Batt JA).

[20] [2003] VSCA 165, [36]-[39] (Batt JA).

[21] [2005] VSCA 259, [28] (Buchanan JA).

[22] [1998] 4 VR 550, 555.

[24] [1950] HCA 25; (1950) 82 CLR 133, 150, 152, 153 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ).

[25] [2007] HCA 46; (2007) 232 CLR 67, 87-89 [53]-[56] (Gleeson CJ, Heydon J); 103 to 104 [108]-[109] (Gummow and Hayne JJ).