"WITNESS: At the beginning of the interview your Worship I explained that this possibly was a security interview. It related to procedural issues and that I've asked her was it okay if she had this interview with us and was she happy to do so and she said she was.

HIS WORSHIP: Is that your answer to my question?

WITNESS: Yes your Worship that was my form of caution."

Asked, if at the time of commencing the statement she thought there was a likelihood that the respondent might be charged over the matters inquired into, she replied:

"Yes well that's not something that I would have had any knowledge of. I did explain that the matter would be taken further and that the police would be contacted prior to this statement yes."

The witness said that the respondent, during the taking of the statement, had been very co-operative. She had "initially denied the issues put to her, but after a brief time she did give her explanations". At one stage, about one quarter of the way through the two hour interview, she had become upset and had cried. She had not been agitated and had not appeared confused. Miss Ringin described her employment by the store as that of "an independent loss prevention consultant". Explaining why she did not wait until the police arrived before she questioned the respondent, she said that her "task at that time was to establish, where we were dealing with a security incident, we were dealing with something that could lead to something further, was a counselling issue to establish basically where we stood as a process." Despite these meaningless phrases, it is clear that she was engaged to investigate, on behalf of the store, an allegation of theft by one of its employees. She had been engaged in that kind of employment for about two years and, prior to that time, had firstly been "with a national retail business as a national management function" and before that had been a detective in the Victorian Police Force for eight years. She had interviewed over 100 people, in similar circumstances to the present, while in private practice and, while in the police force, considerably more than that.

After the statement was signed, the police were called to the store. The senior officer, Sergeant Smith, gave evidence to this effect:

"Miss Ringin related to me that she had spoken to the [respondent] in relation to a number of thefts of property from that store and handed me a statement. I spoke to the [respondent] and asked her if what Miss Ringin had said was correct. She replied that it was. I spoke to her in relation to the statement and asked if that was correct. She similarly replied that it was. I then cautioned the [respondent] saying the words 'you don't have to say anything unless you want to, anything you do say will be recorded and may be used as evidence'. She was asked if she understood the caution and she replied that she did."

After the administration of the caution, she was asked where the goods were and indicated that they were at her home in Bridgewater. The two police officers, the respondent and Miss Ringin then set off in a police car to the respondent's residence. There, several items, the subject of some of the charges, were collected from the respondent's bedroom. The party then returned to police headquarters and a video taped interview was conducted. Miss Ringin was not present at it. At the commencement of the interview, a further caution was given to the respondent, after identification of those present had taken place and Sergeant Smith had outlined the nature of their inquiries. The respondent acknowledged that she understood the caution. She acknowledged signing the statement procured by Miss Ringin, it was read out and she agreed with its contents, save that she acknowledged taking a further item which had not been referred to in the statement. The items taken from her home were shown to her and she acknowledged that they were the items referred to in her statement. She was also shown photographs of her locker at work and acknowledged that some items shown in it were taken by her. She acknowledged, also, removing the items without paying for them. Asked if she would like to say anything at the conclusion of the interview, she said:

"I regret doing it, and I wish I had never done it because my parents brought me up. I had everything I ever wanted. I didn't need to steal. I've never done anything like that before. I never lie, I never cheat and I just wish I hadn't ever done it. My intention wasn't to hurt anybody or to do the wrong thing but that's what I did and I'm sorry."

Nothing was put to any of the witnesses to suggest that the respondent was the subject of any threat or inducement to make the admissions she did, or to give her consent to the retrieval of the items from her home. Sergeant Smith said that, during the trip to her home, the respondent was asked if she consented to their going there and getting the property she had indicated was stolen from the store, and that she had agreed to that course. He acknowledged in cross-examination that he had not indicated to her that she had the right "to object to people going to the property to take the goods". He denied a suggestion that he had not asked for or obtained her consent.

The respondent gave evidence on the voir dire and said, in answer to her counsel's question as to how she was feeling during the questioning by Miss Ringin:

"I was very nervous and I knew that I was in the wrong and I knew that I'd been caught, that I'd finally had to tell the truth. I was confused and uncomfortable and scared and I knew that I'd got caught and that I had to tell the truth about what had been happening."

She said that during that interview she just thought that she was supposed to go along with everything that was asked of her and that she signed the statement, although she had not read it fully. Asked by her counsel whether, in the car, she recalled a conversation between herself and one of the police officers in relation to searching her premises, she said she had only spoken to Miss Ringin in the car. On arrival at her home, she claimed that she had told Miss Ringin and one of the police officers who was speaking to her mother, that she would only be a minute and could they stay outside as she would bring the goods out. However, Miss Ringin had officiously entered the premises and made comments about other belongings of the respondent, suggesting that some of them may also have been stolen. After the goods had been put in the police car, she claimed she asked Miss Ringin if she had to come back or could she just stay at home and was told by her "no, you have to accompany us back to the police station". Of the video taped interview, she said she did not fully understand her rights and felt "numb, sort of, I was kind of relieved that it was almost over."

"I am firmly of the view that in the exercise of my discretion I ought not to receive the evidence of the defendant's admission and to do so I am prepared to accept the prosecution evidence wherever it conflicts with the defendant's. Having said that I agree there is an element of the defendant's evidence as expressed in my own opinion and that is when the defendant said that Miss Ringin didn't come straight out with what they were there for. I have a very poor impression of Miss Ringin as a witness and in fact I thought her dissembling and equivocating and evasive. And if that is the impression which she gave the defendant I am not at all surprised. She said towards the beginning of the evidence she gave and I quote:

'I explained to her I wanted to make a record of discussion and have her account and the interview and I said I would invite signature. At the beginning I said it was procedure and was she happy, she said she was. That was my form of caution.'

Well that makes little sense to me. The vital element lacking in this case is that the defendant was never informed at any time of her right to silence. That's fundamental. And I also observe that she was not questioned if she was questioned and I accept that she was by Sergeant Smith about her consent to a search of her home until they were en route to it and the fact that they were then would seem to me to make any inquiry of a consent academic and a pure formality at that stage. I've got no doubt that I should reject the prosecution heard -- the prosecution evidence heard on the voir dire because it is all infected by that vital, it's quite obvious to me that from the moment they met Miss Ringin was a person in authority vis a vis the defendant and she did not properly inform her of her rights. And it is as simple as that. So for want of my admission of that evidence there is no case for the defendant to answer and the complaint is dismissed."

The learned magistrate did not purport to hold the evidence inadmissible by virtue of the fact that he was not satisfied that it was voluntary. On the contrary, the only basis upon which it was excluded was in the exercise of his discretion. The discretion cannot come into play unless the Tribunal determining any question of admissibility is first satisfied that the impugned evidence is voluntary in the sense that "it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority ... or by oppression." (See DPP v Ping Lin [1976] AC 574 at 600). In any event, there was nothing in the evidence advanced on the voir dire which even suggested that there was any lack of voluntariness in the respondent's statements.

A court has a discretion to exclude evidence otherwise admissible if:

"... in the light of all the circumstances the confession has been made in conditions which render it unjust to allow the accused's own words to be given in evidence against him ... The discretion is a discretion to exclude and is to be exercised in the interests of fairness and justice to the accused." (R v Oates [1979] Tas R 203 at 205 per Cosgrove J).

This form of discretionary exclusion, is to be distinguished from exclusion, on the grounds of public policy, of confessional material procured by unlawful or unfair acts of such a nature that convictions obtained thereby "may be obtained at too high a price" (per Barwick CJ in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 335; Bunning v Cross (1977 - [1978] HCA 22; 1978) 141 CLR 54; Cleland v R [1982] HCA 67; (1982) 151 CLR 1). The latter is not the discretion resorted to in this case: there is no basis in the evidence upon which such a discretion could have been activated. The locus classicus in respect of the discretion in question here is R v Lee [1950] HCA 25; (1950) 82 CLR 133 where, at 154 the Court said that the question to be asked is:

"... whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused."

"We know of no better exposition of the whole matter than that which is to be found in the two passages from the judgment of Street J (as he then was) in R v Jeffries (1947) 47 SR (NSW), at 311 - 314; 64 WN 71 which are quoted by O'Bryan J in the present case. His Honour said (1947) 47 SR (NSW), at 312; 64 WN 71:

'It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him.' His Honour then proceeded to refer to the account of the trial of Jones and Hulton published in the Old Bailey Trial Series. 'It was conceded,' he said, that in that case 'the examination demonstrably transgressed the limits permitted under the Judges' Rules.' It appeared, however, that the accused was in a condition properly to answer to the 'gruelling questioning' which had been administered to him, and the learned trial judge admitted the evidence. An appeal was dismissed by the Court of Criminal Appeal. His Honour then concludes: --'The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence'."

In this case, the learned magistrate appears to have relied solely on the omission of Miss Ringin to inform the respondent of her right to silence to exclude evidence of the admission made to her, and regarded that as tainting the rest of the prosecution evidence of the consensual recovery of the stolen articles at the respondent's home, and her video taped acknowledgement of the first statement and her further admissions at the second interview. He made no reference to any other facts which were capable of making it unfair to the respondent to use her words against her and the exclusivity of this reason as the one relied upon is emphasised by his expression, "the vital element lacking in this case is that the defendant was never informed at any time of her right to silence -- that's fundamental" and "Miss Ringin was a person in authority vis a vis the defendant and she did not properly inform her of her right. And it is as simple as that."

The learned magistrate appears to have treated this omission on the part of Miss Ringin as an impropriety necessarily calling for the exclusion, in fairness to the respondent, of the inculpatory evidence against her. Certainly Miss Ringin was "a person in authority" vis a vis the respondent but this status is usually of significance in considering, in relation to the voluntariness of an admission, the effect of inducements by such a person. She was not, however, a person to whom the Judges' Rules, as adopted in Tasmania, applied. Those rules have altered over the years in the United Kingdom. When first promulgated in 1912, they applied only to police officers and the requirement for a caution relevantly was in these terms:

"2 Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions, as the case may be." (Archbold, Criminal Pleadings and Practice 33 ed (1954) par682).

"2 As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence."

"6 Persons other than police officers charged with the duty of investigating offences or charging offenders shall, so far as may be practicable, comply with these rules." (Archbold, Criminal Pleadings and Practice 38 ed (1973) par1389 et seq.

Since that time, there have been further amendments to the United Kingdom Judges' Rules, (Home Office Circular No 89/1978; Archbold 41 ed (1982) par15-46). The Rules of 1964 have never, however, been adopted in Tasmania (per Crisp J in R v Deverell [1969] Tas SR 106 at 109). Nor have those of 1978. That is not the say that the Rules generally (in whatever form they stand or are reproduced as, for example, in Police Commissioners' Standing Orders) do not represent useful guidelines to fair conduct. Indeed, as Crisp J said in the last mentioned case (at 112):

"... these Rules are not precepts of law -- they are not laws of the Medes and Persians inflexible and immutable -- they are just prima facie administrative guides to conduct which the courts have said in the interests of the accused, of fairness and of fair play, should be followed. It may be that in some cases some aspects of the Judges' Rules, could well be followed -- because I say that they have not been adopted here doesn't mean to say that I think that they could not in some circumstances afford a good guide to conduct. The primary object of both the old and the new is one of fairness."

However, whether or not the Rules apply in Tasmania (and if they do r6 would apply to Miss Ringin -- cf R v Nichols (1967) 51 Cr App R 233 and R v Fallon [1975] Crim LR 341):

"... it is important to remember that the Judges' Rules do not express the content of the discretion either by way of positive prescription or by negative implication. They remain as they were intended to be administrative Rules, the enforcement of which should primarily be a matter of the discipline of the force to which they relate." (Per Gibson and Crisp JJ in Ryan v Marshall [1965] Tas SR 1 at 4 - 5).

The transgression of one of them by a person to whom they relate, even if including a person such as one contemplated by the new r6 is not, without more, a proper basis for the exercise of a discretion to exclude all evidence thereafter obtained. It is first necessary for the party seeking discretionary exclusion to establish facts from which it can properly be concluded that it would be unfair to allow the material, or some of it, to be used against that party.

It may be that the learned magistrate's unfavourable impression of Miss Ringin included an assessment of her as officious and overpowering and that he took the view that the 18 year old respondent was no match for her. If he did, he made no finding to that effect, and the respondent gave no evidence of domineering behaviour by Miss Ringin which, coupled with her omission to give a meaningful caution, operated unfairly to induce a confession. On the contrary, the respondent's own evidence-in-chief on the voir dire, indicated that she was nervous and contrite when she realised her wrongdoing had been discovered and that she believed the right thing to do in the circumstances was to own up to it and to tell the truth. A similar moral sentiment is apparent from her final words to the police at the end of the electronically recorded interview cited above.

I am conscious that on a motion to review it is not for me to determine whether or not to exercise the discretion to exclude on the basis of unfairness. It was the learned magistrate's discretion to be judicially exercised, but, with respect, the absence of any reliance on factors other than the failure of the investigator to tell the suspect of her right to silence, indicates, in the circumstances of the case, a failure to exercise the discretion judicially. The conclusion that seems to have automatically followed that the recovery of real evidence in the form of the stolen goods and all later admissions, even where prefaced with a caution, were infected by the failure of Miss Ringin to give a preliminary caution, is also unsound and not supported by the evidence. The procedure in which recovery of the goods was effected was pejoratively described as a search. The evidence discloses nothing of the kind. Sergeant Smith gave evidence, which the learned magistrate said he accepted, that after caution he asked the respondent where the property stolen from the store was and was told that it was at her home. He asked Miss Ringin to accompany them and all four went in a police car to the respondent's home. He said that during the trip she was asked if she consented to their going to the home and getting the property and that she agreed to that course. The respondent entered the property and produced the goods. There was no evidence of coercion in commencing the journey to the respondent's home, no claim that she felt that she had no option to express consent when asked for it at some unspecified time en route and, indeed, she claimed in evidence, which the learned magistrate rejected, that she had not conversed with Sergeant Smith in the car at all.

Even if there were grounds for concluding that it would not be fair to admit the evidence of Miss Ringin in respect of the admissions made to her, no basis was established for excluding the evidence of the recovery of the goods or of the admissions made to Sergeant Smith and his colleague during the video taped interview. Both activities were preceded by an appropriate caution. No reason was given, nor is apparent from the evidence, for treating that evidence as "infected" by any unfair conduct of Miss Ringin in securing an initial confession.

In my opinion, the discretion is shown to have miscarried and the appeal should be allowed. The order of acquittal is quashed and the matter remitted for trial before another magistrate.