Pollard v The Queen

A detective named Sterling was in charge of the investigation with the assistance of another detective named Minisini. Sterling introduced Minisini to the applicant at about 7.30 a.m. saying, in the presence of Minisini: "As I said before, what we want is your version of what occurred on Tuesday, and as certain allegations have been made, we want to clear the matter up. At this stage I'm awaiting advice from other sections of the Police Force to get back to me and I'm not sure how long it will take." Sterling then left the applicant with Minisini and another policeman.

The trial judge found that Minisini deliberately read the prosecutrix's statement in front of the applicant, probably to invite the applicant to ask questions. The applicant did in fact ask questions regarding the allegations made by the prosecutrix. The applicant was questioned about those allegations and his response was noted. No caution was given by Minisini to the applicant before the questioning took place in the Frankston C.I.B. office nor was the applicant invited, permitted or apprised of his rights to communicate with a friend, relative or lawyer. Although there were facilities at the C.I.B. office for tape-recording an interview, no tape-recording was made of the conversation which took place. Notes were, however, taken by Minisini. The trial judge found that the applicant was "clearly very upset and, on occasions, very distressed, not by the behaviour of police towards him, but by a realization of the enormity of the situation he found himself in and the desperate situation with respect to his family relations, his work and his life generally by reason of the charges laid against him by the prosecutrix". The trial judge also said: "I have no doubt that Minisini obtained a valuable insight into the accused and an understanding of what his version of the evening's events was likely to be when a formal interview was to be conducted. Indeed, it is significant, and in support of this finding, that it was Mr. Minisini who in fact conducted the record of interview when video facilities were finally made available at the St. Kilda Road complex rather than Sterling, who was the officer-in-charge of the investigation."

On the way to the St. Kilda Road complex the applicant said: "This shouldn't have happened" and when asked what he meant, he said: "This obsession, this thing in the back of my head, it possessed me. That's why I did those things with the girl." There was no specific confirmation of this remark in the subsequent video record of interview but answers which were recorded were consistent with it.

The interview conducted by Minisini and videotaped at the St. Kilda Road complex began as follows:

Q1 Mark, do you agree that the time is now 12.25 p.m.?

Q2 Mark, I'm going to speak to you today in relation to an allegation of rape, which occurred at the Seaford Hotel, in Seaford, on - er - Tuesday the 23rd of January 1990. Before I speak to you about those matters, I must inform you that you are not obliged to say or do anything, but anything you say or do may be given in evidence. Do you understand that?

Q3 I must also inform you of the following rights. You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner. Do you understand these rights?

There was a barely perceptible pause after the third answer and the interview continued. The applicant subsequently gave an affirmative answer to the question: "You agree, that - er - prior to this interview commencing, we've had a previous conversation at Frankston in relation to this matter. Is that right?" On a number of occasions reference was made by both Minisini and the applicant to the previous interview. The applicant also made significant admissions in the course of the videotaped interview, although he maintained that the prosecutrix was a willing party to the sexual intercourse which occurred.

At the conclusion of the voir dire, the trial judge rejected submissions made on behalf of the applicant that the admissions made on the videotape were not voluntary and that, even if voluntary, they were obtained in circumstances that would render it unfair to use them against the applicant. He also appears to have rejected submissions that the videotape was illegally or improperly obtained. He accordingly ruled that it was admissible in evidence. In so ruling, the trial judge treated the questioning at Frankston as a different questioning from that which was recorded at the St. Kilda Road complex. He appears to have assumed compliance with the requirements of s. 464C on the occasion of the questioning at St. Kilda Road. He concluded his findings by saying: "I find that the failure to comply with s. 464H(1)(d) at Frankston C.I.B. does not affect what happened at the St. Kilda Road complex. If s. 464H(1)(d) is complied with at the St. Kilda Road complex, then the recording made at that facility is admissible and I find accordingly."

Sections 464C and 464H of the Crimes Act appear in sub-div. (30A) of Div. 1 of Pt III. That subdivision is headed "Custody and Investigation" and commences with s. 464. Section 464A deals with the detention of a person in custody before being released or brought before a bail justice or the Magistrates' Court and modifies previous statutory requirements which in turn had modified the common law [2] . Under s. 464A(1)(c), a person taken into custody for an offence must be brought before a bail justice or the Magistrates' Court within a reasonable time of being taken into custody.

1. See Williams v. The Queen (1986), 161 C.L.R. 278, at pp. 311-312.

Sub-section (4) of s. 464A sets out matters which may be considered in determining what constitutes a reasonable time. They include such matters as "[a]ny need to transport the person from the place of apprehension to a place where facilities are available to conduct an interview or investigation" (s. 464A(4)(d)), "[a]ny need to visit the place where the offence is believed to have been committed or any other place reasonably connected with the investigation of the offence" (s. 464A(4)(f)) and "[a]ny time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest" (s. 464A(4)(j)). It is clear that the words "the questioning" in this last consideration refer to the entire process of questioning while the person concerned is in custody [3] . And in this regard it should be noted that, by virtue of the definition in s. 464(1) [4] , a person is, for all practical purposes, in custody from the time he or she comes into the company of a police officer [5] possessed of sufficient information to justify his or her arrest. Sub-section (2) of s. 464A is as follows:

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 sub-section (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.

Sub-section (3) requires the customary caution to be given "[b]efore any questioning or investigation under sub-section (2) commences". 1. See also s. 464A(4)(c) and (i) which refer respectively to "[a]ny need of the investigating official to read and collate relevant material or to take any other steps that are reasonably necessary by way of preparation for the questioning or investigation" and "[a]ny time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention" (emphasis added). 2. Section 464(1) provides: "For the purposes of this Subdivision a person is in custody if he or she is - (a) under lawful arrest by warrant; or (b) under lawful arrest under section 458 or 459 or a provision of any other Act; or (c) in the company of an investigating official and is - (i) being questioned; or (ii) to be questioned; or (iii) otherwise being investigated - to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence." 3. By s. 464(2) "investigating official" includes "a member of the police force".

(1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she -

(a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and

(b) may communicate with or attempt to communicate with a legal practitioner -

and, unless the investigating official believes on reasonable grounds that -

(c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or

(d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed -

the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.

(1) Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who -

of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless -

(c) if the confession or admission was made before the commencement of questioning, the confession or admission was tape-recorded, or the substance of the confession or admission was confirmed by the person and the confirmation was tape-recorded; or

(d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded; or

(e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was tape-recorded -

and the tape-recording is available to be tendered in evidence.

(2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub-section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances -

By definition under s. 464, tape-recording includes audio recording and video recording.

It is convenient to turn first to the submission that the video recording made at St. Kilda Road was inadmissible under s. 464H. It is to be noted that that section, in speaking of "questioning", speaks of a single, identifiable period of questioning. It necessarily does so because it refers to "the commencement of questioning" and to confessions and admissions made "during questioning". So much was accepted by the argument for the respondent. But, it was contended, there might be separate or discrete periods of questioning and the condition for admissibility of a confession or admission under s. 464H(1)(d) - that "the questioning and anything said by the person questioned [be] tape-recorded" - is satisfied if a tape-recording is made of questions and answers in the period of questioning during which the confession or admission was made. The contrary submission for the applicant was that "the questioning" which must be tape-recorded is the entire process of questioning, commencing with the first question asked after the person comes into custody in the sense defined in s. 464(1). The submission for the applicant is consistent with the other provisions of sub-div. (30A), particularly s. 464A, and with the structure and language of s. 464H itself.

As we have said, s. 464A envisages a limited period of time - a reasonable time - during which a person may be held in custody for questioning or while an investigation is being carried out. This is a substantial modification of the common law which did not permit a person to be detained for the purpose of questioning [6] . Section 464A recognizes that the questioning or investigation may be suspended or delayed, but it plainly regards the questioning or investigation as an entire process which commences after the person is taken into custody in the extended sense involved in the definition in s. 464(1).

1. See Williams v. The Queen (1986), 161 C.L.R., at p. 305.

Clearly, having regard to the matters which may be taken into consideration in determining what is a reasonable time for the purposes of s. 464A(4), the questioning need not be a continuous process; it may be interrupted for various purposes and, hence, there may be identifiably separate periods of questioning. However, any separate period is only part of the entire process of questioning contemplated by s. 464A.

We should add that, so far as s. 464A(3) is concerned, it is necessary to distinguish between the duration of the questioning which that sub-section contemplates and the period of a reasonable time referred to in sub-s. (2). It would be wrong to regard the former as being co-extensive with the "reasonable time" referred to in sub-s. (2). As already indicated, the questioning begins when questions are first asked of a person in custody. And it ends when no more questions are asked, whether or not a reasonable time has then elapsed. If the questioning of a person in custody were to continue beyond a reasonable time, that person not having been brought before a bail justice or the Magistrates' Court, it would constitute questioning during a period of unlawful detention and the admissibility in evidence of any confession or admission made during that period would depend, not only upon compliance with the provisions of s. 464H, but also upon the application of the common law rules regarding voluntariness, fairness and overriding public policy in which the unlawful detention would be a highly relevant consideration. Indeed, s. 464J expressly provides that nothing in sub-div. (30A) affects the onus on the prosecution to establish the voluntariness of an admission or confession or the discretion of a court to exclude unfairly, improperly or illegally obtained evidence.

The applicant's submission is also consistent with the structure and language of s. 464H, particularly in that pars (c), (d) and (e) of s. 464H(1) require the tape-recording of different things. Paragraph (c), which applies in the case of a "confession or admission made before the commencement of questioning", requires that "the confession or admission [be] tape-recorded" or that "confirmation [of its substance by the person making the confession or admission be] tape-recorded"; par. (d), which applies in the case of a "confession or admission made during questioning at a place where facilities [are] available to conduct an interview" (which is this case), requires that "the questioning and anything said by the person questioned [be] tape-recorded"; and par. (e), which applies in the case of a "confession or admission made during questioning at a place where facilities [are] not available to conduct an interview", requires that "the questioning and anything said by the person questioned [be] tape-recorded" or that "confirmation [of its substance by the person questioned be] tape-recorded". Two things appear from this: first, par (d) requires tape-recording of "the questioning", that is, something more than the tape-recording of the confession or admission, or of its substance; secondly, pars (d) and (e) envisage that "the questioning" will not always be the same as "an interview". That last distinction is also to be seen in the terms of s. 464A(4), particularly in pars (d) and (j) to which some reference has already been made [7] .

The argument in favour of construing s. 464H(1)(d) as requiring no more than the tape-recording of that period of questioning in which the confession or admission is made is that "the questioning" in the latter part of that paragraph is to be read as relating back to "questioning at a place where facilities [are] available to conduct an interview" which, it is clear, may sometimes be a separate part of the entire questioning process. That argument would have much to commend it if s. 464H stood isolated from the rest of sub-div. (30A). However, it is far from persuasive in a context where "the questioning" is used in various places in s. 464A to signify the entire process of questioning. Indeed, it would be surprising if those same words were intended to have a different meaning in s. 464H.

The other consideration urged on behalf of the respondent was that, if s. 464H(1)(d) requires the tape-recording of the entire questioning process, it involves impracticality. There are two answers to that. First, s. 464H(1)(d) requires tape-recording only (although this requirement may also be satisfied by audio recording), and there is nothing impractical about a police officer using a hand-held tape-recorder during questioning at "a place where facilities [are] not available to conduct an interview". There is difficulty in knowing what is meant by that expression, particularly having regard to the fact that par (e) contemplates that facilities to conduct an interview may not be available at a place, yet the questioning at that place may be tape-recorded. It would, however, seem safe to assume that, if there is not something more technically advanced than a hand-held tape-recorder, the place is not one at which facilities are available to conduct an interview.

Secondly, that argument is not to the point if s. 464H was intended to avoid fragmentation of questioning with some of it being recorded and some not. There are good reasons for thinking that the purpose of s. 464H was to ensure that the entire questioning process should be tape-recorded. It is clear from the second reading speech for the Bill which resulted in the enactment of sub-div. (30A) [8] that one of the main purposes of the new subdivision was to ensure the integrity of the questioning process and to reduce the scope both for impropriety and for allegations of impropriety during questioning. If the entire questioning process is recorded that purpose is advanced; if not, there remains scope for impropriety and for allegations to that effect and, to that extent, that purpose is not advanced. As s. 35(a) of the Interpretation of Legislation Act 1984 (Vict.) directs that "a construction that would promote the purpose or object underlying [an] Act shall be preferred to a construction that would not promote that purpose or object" and as that construction is entirely consistent with sub-div. (30A) and with the structure and language of s. 464H itself, s. 464H(1)(d) should be construed as requiring the tape-recording of the entire questioning process.

1. Victorian Legislative Council Parliamentary Debates (Hansard), 3 May 1988, p. 1010.

At the risk of some repetition, it is as well to set out the way in which s. 464H operates. As already indicated, the questioning may consist of a number of different periods of questioning and may occur in a number of different places, but a particular confession or admission will be made during a particular period of questioning at a particular place. Under s. 464H(1)(d), if that place is a place where facilities are available to conduct an interview, evidence of the confession or admission is inadmissible unless the questioning and anything said by the person questioned (that is, the whole questioning, whether it comprises one or more parts, and not just the questions and answers constituting the confession or admission or the questions and answers given at the place where the confession or admission was made) are tape-recorded.

Under s. 464H(1)(e), if a confession or admission is made at a place where facilities are not available to conduct an interview, it too is inadmissible in evidence unless the questioning and anything said by the person questioned (again, the whole questioning) are tape-recorded or the substance of the confession or admission is confirmed by the person questioned and that confirmation is tape-recorded. However, "the questioning" will be tape-recorded if, at a place where there are no facilities for conducting an interview - a car, for example - a hand-held tape-recorder is used. If questioning is to occur subsequently at a place where facilities are available to conduct an interview then s. 464H(1)(d) in effect requires police officers to refrain from asking questions if a tape-recorder is not available. And should a confession or admission be volunteered in those circumstances, s. 464H(1)(e) requires, as a condition of admissibility, that it be subsequently confirmed on tape.

And, of course, even if the confession or admission is inadmissible by reason of a failure to comply with s. 464H(1)(d) or (e), a court may, under s. 464H(2), admit it in evidence if it is satisfied on the balance of probabilities that the circumstances are exceptional and are such as to justify its admission.

Turning to the circumstances of this case, the applicant was clearly in custody at the C.I.B. office at Frankston in the sense defined in s. 464(1). If he was not under lawful arrest he was in the company of an investigating official being questioned or to be questioned to determine his involvement in the commission of an offence and there was sufficient information in the possession of the investigating official to justify his arrest in respect of that offence. Indeed, he was apparently in custody in the defined sense during the journey to Frankston, but it does not appear that any questions were then asked. Thus, it seems that questioning commenced at Frankston, with no tape-recording being made, although facilities were available at Frankston to conduct an interview. The questioning continued in the car on the journey to St. Kilda Road and was apparently then suspended. Questioning re-commenced at St. Kilda Road. The questioning which took place there was part of the entire questioning process which commenced with the asking of the first question after the applicant came into custody in the sense defined in s. 464(1) which, as we have said, was at Frankston, rather than in the car on the way to Frankston. There were facilities available at the St. Kilda Road complex to conduct an interview and the questioning there and anything said by the applicant was video recorded.

The prosecution did not seek to tender evidence of any confession or admission made by the applicant during questioning at Frankston. The view was apparently taken by the prosecution that, for the purposes of s. 464H (and, presumably, s. 464C), there were separate questionings at Frankston, in the car on the way to St. Kilda Road and at the St. Kilda Road complex. It seems that because the questioning at Frankston was not tape-recorded although facilities were available, the prosecution considered that evidence of any confession or admission made by the applicant during questioning at Frankston would have been inadmissible. And no objection was taken on behalf of the applicant to evidence of the admission made in the car on the journey from Frankston to St. Kilda Road.

It was the admission in evidence of the video recording of the interview at the St. Kilda Road complex, containing as it did admissions by the applicant, to which objection was taken. And once it is recognized that s. 464H contemplates, as it does, the one questioning commencing at a particular point of time and possibly continuing at different times and places, the admissions made at St. Kilda Road were part of the questioning which commenced at Frankston, continued in the car and concluded at St. Kilda Road. They were admissions made at a place where facilities were available to conduct an interview and they were tape-recorded. But before those admissions were admissible in evidence, it was not just the questioning at the place where they were elicited which s. 464H(1)(d) required to be tape-recorded, but the whole of the questioning, that is, the whole of the questioning which commenced at Frankston and concluded at St. Kilda Road. Since neither that portion of the questioning which occurred at Frankston nor that in the car on the way to St. Kilda Road was tape-recorded, evidence of the admissions made by the applicant at St. Kilda Road was not admissible, notwithstanding the fact that the questioning which took place at St. Kilda Road was video recorded.

This result is, we think, required by the structure and language of sub-div. (30A), in particular s. 464H. And as already indicated, it also accords with one of the main purposes for which the legislation was enacted. Sub-division (30A) was enacted to implement the recommendations of a committee (the Consultative Committee on Police Powers of Investigation) known as the Coldrey Committee. Those recommendations were preceded by recommendations of another committee known as the Shorter Trials Committee. The second reading speech of the Minister introducing the relevant Bill in the Legislative Council contains the following passage which makes clear the other main purpose for which sub-div. (30A) was enacted [9] :

It was the firm view of the Shorter Trials Committee and the Coldrey committee that universal tape-recording of interviews with suspects by law enforcement officials would have substantial benefits, financial and otherwise, for the administration of justice. It should be borne in mind that in many criminal trials a great deal of time is taken in determining the admissibility of an alleged admission by the accused; often it is the only real issue in the trial. Tape-recording will eliminate many of these disputes. As a result, trials will be shortened and more guilty defendants can be expected to plead guilty, leading to a great saving of public money. If evidence of a confession or admission made during a tape-recorded interview at one police station were admissible under s. 464H even when it was preceded by an interview at another police station which was not tape-recorded, a principal object of the legislation would be likely to be largely defeated. The argument would remain, as this case demonstrates, that the tape-recorded confession or admission was inadmissible or should not be admitted because it was involuntary or was unfairly, improperly or illegally obtained and, for the purposes of that argument, what occurred during the first interview would be of significance, even if the prosecution could lead no evidence of it. Evidence of what occurred at the first interview would be receivable on a voir dire, as in this case, which would be likely to lengthen the trial substantially. It is to avoid such a result that the legislation provides that, save for the tape-recording of the substance of a confession or admission as allowed by s. 464H(1)(e), for a confession or admission made to an investigating official during questioning to be admissible the whole of the questioning should be tape-recorded and not just that portion of the questioning containing the confession or admission upon which the prosecution seeks to rely. 1. Victorian Legislative Council Parliamentary Debates (Hansard), 3 May 1988, p. 1010.

The conclusion that the video recording of the interview conducted at the St. Kilda Road complex was inadmissible is sufficient to determine the appeal in the applicant's favour, but it is desirable to add some comments regarding the application of s. 464C, upon the assumption that the requirements of s. 464H had been met.

Upon the view which we take of s. 464C, there was a breach of its provisions by the failure to advise the applicant of his right to communicate with a friend or relative or with a legal practitioner before questioning began at Frankston. Section 464C requires that advice to be given before any questioning or investigation under s. 464A(2) commences [10] . It is clear from s. 464A(2) that questioning for the purposes of that sub-section commences when a person in custody for an offence is informed of the circumstances of that offence and is first questioned. As we have said, the applicant was in custody at Frankston, he was there informed of the circumstances of the offence (which may also have been done when he was intercepted on his way to work) and it seems that questioning under s. 464A(2) began there, no questions having previously been asked.

Not only was the applicant not given the information required by s. 464C before the questioning at Frankston commenced, but it would appear that he was not given the caution required by s. 464A(3). That sub-section requires an investigating official to inform the person in custody, before any questioning under sub-s. (2) commences, that he or she does not have to say or do anything, but that anything the person does say or do may be given in evidence. Whatever the nature of "the cursory warning" given to the applicant when he was arrested, it would appear to have been sufficiently removed in time and place from events at Frankston for s. 464A(3) to have required the statutory caution to have been given before the commencement of questioning there.

Unlike s. 464H, neither s. 464A(3) nor s. 464C prescribes the consequences of a failure to comply with their requirements. Having regard to the express continuation under s. 464J of the right to silence and the common law rules relating to involuntary confessions and unfairly, illegally or improperly obtained evidence, no statutory consequences ought to be implied. At common law, before a confession or admission by an accused person is admissible in evidence, the prosecution must establish on the balance of probabilities that it was voluntary [11] . Even if it was voluntary, the trial judge has a discretion to exclude it if it would be unfair to the accused to admit it. In addition, the trial judge has a separate discretion to exclude, on the grounds of public policy, evidence which has been improperly or illegally obtained [12] .

1. See Cleland v. The Queen (1982), 151 C.L.R. 1, at pp. 12, 19; MacPherson v. The Queen (1981), 147 C.L.R. 512, at p. 522; Collins v. The Queen (1980), 31 A.L.R. 257, at pp. 258, 271, 310. 2. See R. v. Lee (1950), 82 C.L.R. 133; Bunning v. Cross (1978), 141 C.L.R. 54; Cleland v. The Queen (1982), 151 C.L.R. 1.

The exercise of the discretion to exclude evidence which has been improperly or illegally obtained involves a balancing of competing public policy considerations and is not so much concerned with the individual accused as with "whether the illegal or improper conduct complained of in a particular case is of sufficient seriousness or frequency of occurrence as to warrant sacrificing the community's desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end" [13] .

Indeed, it has in the past been questioned whether the discretion to exclude illegally or improperly obtained evidence has any application to confessional evidence having regard to the special sensitivity of the law in that area or whether it is confined to real evidence, that is, evidence of a physical character. However, since Cleland v. The Queen it must be accepted that the discretion to exclude illegally or improperly obtained evidence does extend to confessional evidence, although in practice its application is likely to be infrequent.

In a case where it is established that a confession or admission by an accused was made voluntarily but the evidence warrants further consideration of whether it ought to be admitted, it will often be a convenient course for a trial judge to ask first whether it would be unfair to the accused to use the confession or admission against him before considering, if the evidence warrants it, whether it should be excluded on the ground that it was illegally or improperly obtained. If the first question is answered in the affirmative, it will be unnecessary to proceed to the second question.

In this case, however, it is clear that the exercise by the trial judge of his discretion on either basis must have miscarried because of his misconception that, for the purposes of sub-div. (30A), there were separate questionings at Frankston and St. Kilda Road. This meant that he failed to appreciate that the obligation to give the caution required by s. 464A(3) and the information required by s. 464C arose before the commencement of questioning which, it seems, occurred at Frankston and that the consequences of the failure to give the caution and the information extended to the interview at St. Kilda Road which was part of the same questioning as commenced at Frankston. Clearly, an appreciation of the true scope of the statutory requirements was essential to a proper exercise of the discretion to exclude the evidence in question not only upon the ground of unfairness but also upon the ground of public policy [14] .

1. See Reg. v. Ireland (1970), 126 C.L.R. 321, at pp. 334-335.

For these reasons special leave to appeal should be granted and the appeal allowed.

The detailed background facts and the issues involved in this case are set out in other judgments. As Brennan, Dawson and Gaudron JJ. demonstrate in their joint judgment, the provisions of sub-div. (30A) of the Crimes Act 1958 (Vict.) ("the Act") support the approach that the "questioning" or "investigation" of a person in custody is prima facie to be understood, for the purposes of that subdivision, as an entire process which may encompass different periods of questioning or investigation at different places. Thus the reference to "any questioning" in s. 464C must be understood in that sense. Nonetheless, it appears to me that, in a case such as the present where questioning under s. 464A encompassed different periods of questioning at different places, the phrases "questioning at a place" and "the questioning" in s. 464H(d) and (e) must be construed as referring not to the whole of the overall questioning but to the particular period of questioning in which the relevant confession or admission was made. It follows that I agree with Mason C.J., Toohey J. and McHugh J. that the videotape of the interview at the St. Kilda Road police complex between the applicant and the two police officers was not rendered inadmissible by reason of the provisions of that section. There remains for consideration the effect of the provisions of s. 464C of the Act.

Section 464C must be read in the context of s. 464A which relevantly provides:

(1) Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be -

(c) brought before a bail justice or the Magistrates' Court -

within a reasonable time of being taken into custody.

(2) 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 sub-section (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.

Section 464 provides that, for the purposes of the presently relevant provisions of the Act, "a person is in custody" if a number of designated circumstances exist, including: "he or she is in the company of an investigating official and is (i) being questioned; or (ii) to be questioned; or (iii) otherwise being investigated - to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence."

Section 464C(1) is in mandatory terms. It applies in relation to "questioning or investigation under s. 464A(2)". Omitting some presently irrelevant qualifications, it provides that before any such questioning or investigation commences:

an investigating official must inform the person in custody that he or she -

(a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and

(b) may communicate with or attempt to communicate with a legal practitioner -

and the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication (emphasis added). Section 464C(2) provides that, subject to sub-s. (1), if a person wishes to communicate with a friend, relative or legal practitioner, "the investigating official in whose custody the person then is must afford the person reasonable facilities as soon as practicable to enable the person to do so" (emphasis again added). The effect of s. 464C(1)'s directive that, "before" any questioning or investigation under s. 464A(2) "commences", the specified information "must" be given and the questioning or investigation "must" be deferred for a reasonable time thereafter is that any questioning or investigation which would otherwise be authorized by s. 464A(2) but is in breach of that directive is unlawful. The present appeal has been argued on the basis that it is common ground that any questioning of the applicant was, for the purposes of s. 464C, "questioning under s. 464A(2)".

The videotaped interview at the St. Kilda Road police complex ("St. Kilda Road") commenced approximately five and a half hours after the applicant had been taken into custody. In the meantime, he had been held in custody at the Frankston C.I.B. offices ("Frankston") for some three and a half hours and, after being taken to St. Kilda Road, for almost a further hour there before the videotaping commenced. During those periods, and notwithstanding the questioning of the applicant by Senior Detective Minisini at Frankston, no effort at all had been made by the police to comply with the requirements of s. 464C. It was only after the videotaping of the interview had actually commenced that the following exchange occurred between Detective Minisini and the applicant:

[Detective Minisini:] I must also inform you of the following rights. You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner. Do you understand these rights?

Even at that late stage, the applicant was not asked whether he wished to communicate with any of the designated persons. Nor was he informed that, if he did, the interview would be deferred to enable him to attempt to do so. Without any inquiry at all and after only an almost imperceptible pause, Detective Minisini proceeded with the questioning. In those circumstances, neither the recitation of the accused's rights nor the applicant's affirmative reply to Detective Minisini's question "Do you understand these rights?" provides any foundation for the argument advanced on behalf of the Crown that the police officers complied with s. 464C(1)'s requirement that they "must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication".

As I have indicated, I agree with Brennan, Dawson and Gaudron JJ. that s. 464C(1)'s reference to "any questioning or investigation under s. 464A(2)" must be construed as a reference to the entire process of questioning or investigation under that sub-section. That means that the interviews at Frankston and St. Kilda Road are to be seen, for the purposes of s. 464C, as part of a single overall series of questioning. Strictly speaking, the failure to comply with the requirements of s. 464C before the questioning at Frankston commenced meant that the breach of s. 464C was complete and final before the applicant was taken to St. Kilda Road. It may, however, be arguable that the failure to comply with the requirements of s. 464C at Frankston would have been remedied, in so far as the unlawfulness of subsequent questioning was concerned, if, after the prescribed information had been communicated to the applicant at St. Kilda Road, any further questioning had been deferred for a time that was reasonable in the circumstances to enable him to make, or attempt to make, the relevant communication. However, it is unnecessary to pursue that question since it is plain that the questioning at St. Kilda Road was not so deferred.

Section 464C contains no express provision to the effect that evidence of a confession or admission made to an investigating official under questioning or investigation carried out in breach of its requirements is inadmissible as evidence against that person in subsequent criminal proceedings [15] . Nor is it possible to imply a provision to that effect into the words of the section. It follows that the general law must ultimately determine the question whether otherwise admissible evidence of what was said in answer to questions asked by an investigating official in breach of s. 464C should, if objected to, be received in evidence in a particular case. In that regard, it is relevant to note that s. 464J(d) expressly provides that nothing in sub-div. (30A) (of which s. 464C forms part) "affects the discretion of a court to exclude illegally or improperly obtained evidence".

1. Contrast s. 464H(1)'s express provision that evidence "is inadmissible".

Cleland v. The Queen [16] established that, in a case where a voluntary incriminating statement has been procured by unlawful conduct on the part of the police, a trial judge should, if objection to its reception is taken on behalf of the accused, consider whether evidence of the statement should be excluded on either of two discretionary grounds. The first of those grounds is that reception of the evidence would be unfair to the accused. The second is that considerations of public policy require that it be excluded. The considerations relevant to the exercise of the two discretions overlap: the unlawfulness of the police conduct will be relevant to the question of unfairness to the accused and, since it is the policy of the law that a criminal trial be fair, considerations of actual or possible unfairness to the accused are likely to be relevant to the question of public policy. Ordinarily, it will be convenient for the question whether the evidence should be excluded on either ground to be dealt with on a single voir dire hearing since any evidentiary material will commonly be relevant to both grounds. Nonetheless, the two discretions are distinct and independent.

The discretion to exclude evidence of a confessional statement on the ground that its reception would be unfair to the accused has been the subject of detailed consideration in judgments in a number of cases in this Court [17] . It is unnecessary that I repeat what is said in those judgments. The discretion exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements. In contrast, the discretion to exclude evidence of a confessional statement on public policy grounds is but a particular application of a wider discretion which applies generally to unlawfully obtained evidence, whether confessional or "real" [18] . It is convenient, for the purposes of this appeal, to make some preliminary comments about that general discretion and its application to evidence of confessional statements.

1. See, e.g., McDermott v. The King (1948), 76 C.L.R. 501, at pp. 513-515; R. v. Lee (1950), 82 C.L.R. 133, at pp. 148-155. 2. See Bunning v. Cross (1978), 141 C.L.R. 54, at p. 75.

The nature and rationale of the discretion to exclude unlawfully procured evidence on the grounds of public policy were identified by Barwick C.J., with the concurrence of the other four members of the Court [19] , in Reg. v. Ireland [20] . In a judgment which has subsequently been accepted as representing "the settled law in this country" [21] , his Honour said [22] :

Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. 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 there 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. 1. McTiernan, Windeyer, Owen and Walsh JJ. 2. (1970) 126 C.L.R. 321. 3. Bunning v. Cross (1978), 141 C.L.R., at p. 69. 4. (1970) 126 C.L.R., at pp. 334-335.

It is relevant to note that Barwick C.J.'s reference, in the above passage, to "the protection of the individual from unlawful and unfair treatment" should not be understood as merely a reference to the particular accused. That point was made by Stephen and Aickin JJ., with the concurrence of Barwick C.J., in Bunning v. Cross. Their Honours said [23] :

What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. As that passage makes plain, the principal considerations of "high public policy" which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process. As Stephen and Aickin JJ. went on to point out [24] , there are cases in which the question of unfairness to the particular accused does not play any significant part at all. In such cases, it "is not fair play that is called in question but rather society's right to insist that those who enforce the law themselves respect it A discretion exercisable according to the principles in Ireland's Case serves this end whereas one concerned with fairness may often have little relevance to the question" [24] . Ultimately, the question whether evidence of an incriminating statement procured by unlawful conduct on the part of investigating police should be excluded on grounds of public policy must be resolved by a balancing process. In that balancing of policy considerations, the relevance and importance of fairness or unfairness to the particular accused will depend upon the circumstances of the particular case [25] . 1. (1978) 141 C.L.R., at pp. 74-75. 2. (1978) 141 C.L.R., at p. 75. 3. (1978) 141 C.L.R., at p. 75. 4. ibid., at p. 77; and see Cleland v. The Queen (1982), 151 C.L.R., at pp. 24, 36.

In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an "isolated and merely accidental non-compliance" [26] with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest "the real evil" at which the discretion to exclude unlawfully obtained evidence is directed, namely, "deliberate or reckless disregard of the law by those whose duty it is to enforce it" [26] . In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence.

1. Bunning v. Cross (1978), 141 C.L.R., at p. 78. 2. Bunning v. Cross (1978), 141 C.L.R., at p. 78.

It is true that one can point to some statements in the cases to the effect that it is only in a "very exceptional" [27] or "rare" [28] case that evidence of a confessional statement which might fairly be admitted against an accused person should be rejected on the grounds of public policy. In my view, however, statements to that effect were not, and should not be treated as, directed to the extreme - and one would hope exceptional or rare - case in which what is involved is the deliberate or reckless disregard by the police of the will of the legislature expressed in valid legislation directed to them [29] . Alternatively, they should be understood as predicated upon an assumption that, in such an extreme case, it would be unfair to the accused to admit evidence of the confessional statement. Nor, in my view, should those statements be understood as requiring that a trial judge must first decide the question whether evidence of a voluntary incriminating statement should, as a matter of discretion, be excluded on the ground that its reception would be unfair to the accused before addressing the question whether such evidence should be excluded on the grounds of public policy. In most cases, it is, no doubt, convenient first to decide the question of unfairness and proceed to address the question of public policy only if the question of unfairness is answered adversely to the accused. Nonetheless, in a case involving deliberate or reckless disregard of a law expressly directed to regulating police conduct in relation to the questioning of a suspect, it may be convenient to go directly to the question of exclusion on the grounds of public policy. In my view, it is so in the present case.

1. Cleland v. The Queen (1982), 151 C.L.R., at p. 9; Collins v. The Queen (1980), 31 A.L.R. 257, at p. 317. 2. Cleland v. The Queen (1982), 151 C.L.R., at p. 34. 3. See, e.g., Reg. v. Shaw (1991), 57 A. Crim. R. 425, at p. 449.

The provisions of s. 464C are expressly directed to an "investigating official" which phrase, by definition [30] , includes "a member of the police force". They are part of a series of statutory directions to police officers and other investigating officials prescribing certain minimum requirements which must be observed in relation to the detention in custody, questioning, fingerprinting and blood sampling of persons suspected of crime. The rationale of the provisions of s. 464C is, in part, the protection of the individual from unfair or oppressive treatment while held in custody [31] . In part, it is the advancement of the efficient administration of criminal justice by the courts both by minimizing the possibility of miscarriage of justice through the fabrication of police evidence of voluntary confessional statements allegedly made by accused persons while detained in police custody and by reducing the undesirably high proportion of limited court resources which were being devoted in Victoria to disputes about whether such alleged confessional statements had, in fact, been made or made voluntarily [32] .

1. The Act, s. 464. 2. See Consultative Committee on Police Powers of Investigation, Custody and Investigation: Report on Section 460 of the Crimes Act 1958 (Vict.), April 1986, pp. 4, 79, 109. 3. ibid., pp. ix, 4, 84, 109.

It has not been submitted that Detective Minisini, who was overseas at the time of the trial and did not give evidence, consciously or deliberately set out to circumvent s. 464C when, after the formal recitation of "rights" at the commencement of the St. Kilda Road interview, he did not defer questioning as required by that section. If all that was involved was what happened in the course of that interview, the conduct of the police could not fairly be seen as involving a deliberate or reckless disregard of the statutory duty imposed upon members of the police force. As has been seen, however, that was not all that was involved. The significance of the failure to observe the requirements of s. 464C in the course of the videotaped interview at St. Kilda Road must be assessed in the context of the failure to observe the requirements of the section at Frankston and during the period at St. Kilda Road before the interview commenced.

While the applicant was in custody at Frankston, he was held in an interview room. For a substantial part of that time he was being interviewed by Detective Minisini. That interview commenced with Detective Minisini being seated opposite the applicant. In the course of his ruling at the end of the voir dire hearing, the learned trial judge found:

I am satisfied that the accused probably commenced proceedings by asking Minisini, who was deliberately reading the statement of the prosecutrix in front of the accused, probably to invite the accused to ask questions, questions regarding what allegations the prosecutrix had made. Thereafter, it is clear that the applicant was subjected to lengthy questioning about the alleged crimes. As regards that questioning, the learned trial judge found: The accused was not given a caution by Minisini before questioning took place in the interview room at Frankston C.I.B.; nor was he invited, permitted or even appraised [sic] of his rights to communicate with a family friend or lawyer. Although the Frankston C.I.B. officers had the capacity to tape-record the conversations between the accused and Minisini, no such tape-recording was effected. Consequently, the conversation, admissions and denials that were mentioned in that interview room are not recorded in any way whatsoever. Indeed, notes taken by Minisini at the time have not been able to be found, and the memories of O'Loughlin and the accused as to precisely what words were used are understandably uncertain. Whatever uncertainty there may be about precisely what was said in the course of that interview, one thing is clear. In a context where no effort at all had been made to comply with the requirements of s. 464C, Detective Minisini's extensive questioning of the applicant at Frankston involved a serious breach of the provisions of the section.

It is scarcely likely that Detective Minisini was ignorant of the requirements of the statutory commands which s. 464C expressly directs to investigating officials to regulate the questioning of, or investigation involving, persons held in custody. It has not been suggested by the Crown that Detective Minisini might have thought that the device of enticing the applicant to ask some questions would sidestep the statutory duty to defer any questioning of, or investigation involving, the applicant until the requirements of s. 464C had been satisfied. The unlawful questioning of the applicant at Frankston placed Detective Minisini at a considerable advantage vis-à-vis the applicant in the subsequent videotaped interview at St. Kilda Road. As the learned trial judge found:

I have no doubt that Minisini obtained a valuable insight into the accused and an understanding of what his version of the evening's events was likely to be when a formal interview was to be conducted. Indeed, it is significant, and in support of this finding, that it was Mr. Minisini who in fact conducted the record of interview when video facilities were finally made available at the St. Kilda Road complex rather than Sterling, who was the officer-in-charge of the investigation.

The videotape and the written transcript of the St. Kilda Road interview disclose that Detective Minisini made effective use in that interview of that "insight into" the applicant and "understanding of what his version of the evening's events was likely to be". The applicant was, by the time the interview commenced, in a highly emotional state. Detective Minisini's questions would seem to have been carefully framed to confirm admissions already made at Frankston. Certainly, they evoked frequent reference by the applicant to what had been said in the course of the earlier interview. As regards the critical period in the motel room, the questioning largely took the form of putting to the applicant a number of particular allegations made by the prosecutrix which the applicant's answers indicate had been raised in the Frankston interview. There are times when Detective Minisini's questions bear the appearance of informed cross-examination. The clearest example concerned the applicant's reason for accompanying the prosecutrix from the motel room to his car. That was relevant to the essential conflict between the applicant and the prosecutrix about whether, and to what extent, the prosecutrix had been a consenting party. In the course of the St. Kilda Road interview, the applicant stated he had accompanied the prosecutrix in order to help her get her luggage. Subsequently in the interview, his statement to that effect was challenged by Detective Minisini:

[Minisini:] Um, in a previous conversation that we had when we were at Frankston, you said that - er - the reason that you in fact went out to the car, was that - because you didn't trust her. Do you recall saying that to me? [Applicant:] Yes. [Minisini:] Why didn't you trust her? [Applicant:] Aw, I don't know. I didn't know the girl, she had the keys to my car, and - you don't know, she might've just jumped in me car and taken off, or - [Minisini:] Well, I put it to you that - one of the reasons that you didn't trust her was - had the fear that she might drive off, and that you wouldn't be able to carry out your fantasy?

In these circumstances, it would be unrealistic to seek to isolate what occurred in the St. Kilda Road interview from the earlier interview at Frankston. The unlawful conduct of the investigating police at Frankston and at St. Kilda Road must be viewed and assessed in its entirety. That unlawfulness commenced when the applicant was questioned by Detective Minisini at Frankston in breach of the statutory duty to inform the applicant of his entitlement to communicate with a legal practitioner before such questioning commenced. It continued when the applicant was not informed of that entitlement even when the interview between Detective Minisini and himself at Frankston was completed, or, subsequently, during the period at St. Kilda Road before the videotaped interview commenced. It was compounded when, at the commencement of the St. Kilda Road interview, Detective Minisini finally informed the applicant of his entitlement to communicate or attempt to communicate with a legal practitioner but, without informing him that he was entitled to attempt to make such a communication forthwith, continued to disregard the statutory duty to defer questioning for a time that was reasonable in the circumstances to enable the applicant to make, or attempt to make, such a communication. When the police conduct is viewed in its entirety, the conclusion is inescapable that there was a reckless disregard by Detective Minisini, with at least the acquiescence of other police, of the statutory duty imposed by s. 464C upon investigating police in relation to the questioning of a person in custody.

The submissions of counsel for the applicant on the voir dire hearing at the trial in support of a discretionary exclusion of the evidence of the St. Kilda Road interview were directed to the question whether the evidence should be excluded on the ground that its reception would be unfair to the accused. It was, however, submitted on behalf of the applicant that the conduct of the police had been in breach of the provisions of s. 464C and that the unlawfulness of the police conduct was a consideration favouring the exclusion of the evidence. On balance, it appears to me that the circumstances of the case were such that, in the context of an application for the discretionary exclusion of the evidence, it was incumbent upon the learned trial judge to consider whether, in view of the unlawful conduct of the police, the evidence should be excluded on public policy grounds. His Honour's reasons for his ruling that the evidence would not be excluded indicate that he failed to address that question. In the Court of Criminal Appeal [33] , any question of exclusion on public policy grounds was effectively foreclosed by their Honours' mistaken conclusion that there had been no breach of s. 464C in relation to the St. Kilda Road interview. Their Honours did, however, express the view that, in any event, the question of exclusion on public policy grounds did not arise for the reason that the learned trial judge had not been specifically invited to exclude the videotape on those grounds. As I have indicated, I do not share that view. In this Court, senior counsel for the applicant relied on the breach of s. 464C as the foundation of a submission that the evidence of the St. Kilda Road interview should have been excluded on unfairness, as distinct from public policy, grounds. As has been seen, however, the considerations which are relevant to an exercise of the two discretions overlap. There has been no suggestion by the Crown that relevant evidence in relation to the exercise of both discretions was not before the Court or that the Court should not consider the question whether there had been a miscarriage of the learned trial judge's discretion to exclude evidence of the St. Kilda Road interview on public policy grounds. To the contrary, the Acting Solicitor-General for Victoria, who appeared for the Crown, argued on the expressed basis that both the unfairness and public policy discretions were in issue and correctly suggested that the "argument on discretion that exists in this case" came "more easily into the Bunning v. Cross -type situation". In these circumstances, it appears to me that it is appropriate that I express the conclusion which I have reached in relation to each of the two discretions. That conclusion is that they both miscarried.

It has been seen that the relevant police conduct in the present case involved a reckless disregard of a statutory requirement imposed by the legislature in relation to the police interrogation of persons held in police custody. That being so, it follows from what has been said above that the present case fell within the extreme category where the principal considerations supporting the exclusion, on public policy grounds, of evidence of a voluntary confessional statement procured by unlawful police conduct are at their strongest and ordinarily dictate that the judicial discretion be exercised to exclude the evidence. The failure of the learned trial judge to advert to the question of exclusion on public policy grounds had the result that the discretion to exclude evidence on those grounds miscarried.

The main considerations favouring the exclusion of the evidence on the ground that its reception would be unfair to the accused can be briefly identified. To some extent, they correspond with the considerations favouring the exclusion of the evidence on public policy grounds. As has been seen, there had been no attempt at all by the police to comply with the requirements of s. 464C in relation to the Frankston interview. The failure to tape-record that interview had the consequence that evidence of what was said in it was inadmissible against the applicant by reason of the provisions of s. 464H. The procedure adopted by the police of selectively using parts of the unlawfully procured and inadmissible Frankston interview to the disadvantage of the applicant in the St. Kilda Road interview was quite unfair to the applicant. The breach of the applicant's statutory rights and the unfairness of the police procedures constituted powerful considerations favouring the exclusion of the evidence of the St. Kilda Road interview on the ground that its reception would be unfair to the applicant. The reasons given by the learned trial judge for his ruling on the voir dire hearing indicate that his Honour failed to give due weight to those considerations. In particular, there would appear to have been a failure on his Honour's part to appreciate the extent and the significance of the disregard of the requirements of s. 464C. Indeed, while his Honour's reasons recite the relevant facts and refer to the applicant's submission that there had been a "breach" by the police of s. 464C, they do not contain an express finding that there was a breach of the section.

The result of the conclusion that the learned trial judge's discretions to exclude evidence on unfairness and public policy grounds both miscarried is that the applicant's convictions must be quashed. While the videotape of the St. Kilda Road interview contained nothing which was unequivocally inconsistent with the applicant's defence that the prosecutrix was a consenting party, its contents were highly prejudicial and damaging and could well have made the difference between conviction and acquittal. Nor, as has been seen, is the case one in which an appellate court could justifiably conclude that a proper exercise of the discretions to exclude the evidence on unfairness and public policy grounds would necessarily have resulted in a refusal to exclude the evidence. To the contrary, it should be apparent from what has been written above that, in my view, a proper exercise of either of the discretions would, on the material before the learned trial judge, have resulted in an order that the evidence of the St. Kilda Road interview be excluded.

The application for special leave should be granted, the appeal should be allowed and the order of the Victorian Court of Criminal Appeal should be set aside. In lieu thereof, it should be ordered that leave to appeal to that court be granted, the appeal to that court allowed, the applicant's convictions quashed and a new trial ordered.

On 2 May 1991, after a trial before a judge and jury, the applicant was found guilty of (a) one count of rape with aggravating circumstances contrary to s. 45(3) of the Crimes Act 1958 (Vict.) ("the Act"); (b) three counts of rape contrary to s. 45(1) of the Act; (c) one count of attempted rape contrary to s. 45(4) of the Act; (d) one count of indecent assault contrary to s. 44(1) of the Act. He was sentenced effectively to seven years imprisonment, with a minimum non-parole period of four years and six months.

The applicant seeks leave to appeal from a judgment of the Full Court of the Supreme Court of Victoria, sitting as the Court of Criminal Appeal, which refused him leave to appeal against his convictions [34] . The questions raised by the application concern the meaning and operation of ss. 464C and 464H of the Act and the consequences for the reception of evidence of any failure to observe the requirements of either or both of those provisions.

Sections 464C and 464H fall within sub-div. (30A) of Pt III of the Act. That subdivision, entitled Custody and Investigation, was introduced into the Act by s. 5 of the Crimes (Custody and Investigation) Act 1988 (Vict.) which came into operation on 15 March 1989. Subdivision (30A) resulted from the reports of the Shorter Trials Committee and the Coldrey Committee which had been established in Victoria. In the words of the Minister in the second reading speech on the Crimes (Custody and Investigation) Bill [35] :

It was the firm view of the Shorter Trials Committee and the Coldrey committee that universal tape-recording of interviews with suspects by law enforcement officials would have substantial benefits, financial and otherwise, for the administration of justice. [36] 1. Victorian Legislative Council Parliamentary Debates (Hansard), 3 May 1988, p. 1010. 2. The risks associated with admitting into evidence uncorroborated confessional evidence were canvassed in McKinney v. The Queen (1991), 171 C.L.R. 468.

(1) Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who -

of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless -

(c) if the confession or admission was made before the commencement of questioning, the confession or admission was tape-recorded, or the substance of the confession or admission was confirmed by the person and the confirmation was tape-recorded; or

(d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded; or

(e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was tape-recorded -

and the tape-recording is available to be tendered in evidence.

(2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub-section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances -

(3) If the questioning or confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section or the giving of information is recorded as required under section 464G, the investigating official must give to the person or his or her legal practitioner without charge -

(a) the tape-recording or a copy of it within 7 days; and

(b) if a transcript of the tape-recording is prepared, a copy of the transcript.

(4) Nothing in this section prevents the use of a tape-recording in a proceeding for a summary offence.

"Tape-recording" is defined by s. 464(2) to include "audio recording and video recording".

Section 464C carries the heading Right to communicate with friend, relative and legal practitioner. So far as is relevant, it reads:

(1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she -

(a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and

(b) may communicate with or attempt to communicate with a legal practitioner -

and, unless the investigating official believes on reasonable grounds that -

(c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or

(d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed -

the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.

(2) Subject to sub-section (1), if a person wishes to communicate with a friend, relative or legal practitioner, the investigating official in whose custody the person then is -

(a) must afford the person reasonable facilities as soon as practicable to enable the person to do so; and

(b) must allow the person's legal practitioner or a clerk of the legal practitioner to communicate with the person in custody in circumstances in which as far as practicable the communication will not be overheard.

The offences charged took place in a motel room on the night of 23 January 1990 and into the following morning. The applicant was intercepted on 26 January 1990 at about 6.40 a.m. while driving to work; he was given a brief caution and was taken to the Frankston C.I.B. offices ("Frankston") for questioning. It appears that he had then been arrested. He was placed in an interview room. Detective Senior Constable Sterling, in the presence of Detective Senior Constable O'Loughlin, spoke to the applicant about general matters not relating to the allegations of the prosecutrix and Detective Sterling then left. Before he did so Detective Senior Constable Minisini had arrived. Detective Minisini read the prosecutrix's statement to himself and told the applicant the substance of the allegations against him, largely in response to questions by the applicant. Detective Minisini asked some questions. According to the evidence of Detective O'Loughlin, the interview at Frankston with Minisini lasted altogether an hour and a half. There were facilities for audio-recording the interview but it was not recorded. The applicant was not cautioned at Frankston and the Crown did not lead evidence of that interview at the trial.

Later the applicant was taken by police car to the St. Kilda Road police complex ("St. Kilda Road"). He was discouraged from saying anything further while in the car, but not until after he had said:

This shouldn't have happened. This obsession, this thing in the back of my head. It possessed me. That's why I did those things with the girl.

The material before the Court does not disclose the timing of all events with precision but there was evidence from Detective Sterling that the applicant was told at 10.30 a.m. that the police wished to conduct a videotaped interview with him. The applicant arrived at St. Kilda Road at 11.35 a.m. Detective Minisini, in company with Detective Sterling, cautioned the applicant and then conducted an extensive interview with him. Facilities for both audio-taping and videotaping were available at St. Kilda Road. The interview was videotaped. The videotape runs for about two and a half hours; it begins at 12.25 p.m. Detective Sterling explained the delay between the original interception of the applicant and the commencement of the record of interview at St. Kilda Road as mainly due to the need to secure a police photographer to photograph the applicant's car and an expert to fingerprint it, the need to execute a search warrant at the applicant's house and the need to arrange for the proposed record of interview at St. Kilda Road to be videotaped by the Audio Visual Department.

During the videotaped interview the applicant admitted most of the conduct alleged against him by the prosecutrix but claimed that she was a willing partner or, at any event, that he believed her to be so. At trial he made an unsworn statement. The evidence against the applicant was primarily that of the prosecutrix; there was also evidence of a medical and scientific nature. The videotape was critical to the outcome of the trial.

The applicant contends that the videotape was obtained in breach of s. 464H(1)(d) of the Act and that it should have been excluded from evidence at his trial. It can be seen that two questions are involved here: 1. Was the videotape obtained in breach of s. 464H? 2. If it was so obtained, what are the consequences for the reception of the videotape into evidence?

The applicant's principal argument in regard to s. 464H(1)(d) was that his questioning began at Frankston and concluded at St. Kilda Road. Before the Court of Criminal Appeal it was contended that the questioning was one and indivisible and could not be severed. And, the argument ran, as there was a failure to tape-record so much of the questioning as took place at Frankston, there was a breach of par. (d) of s. 464H(1); that breach infected so much of the questioning as took place at St. Kilda Road. Before this Court counsel for the applicant put the argument a little differently, contending that it was the words "during questioning" in s. 464(1)(d) that were all-important and that those words were wider than the idea of something that was one and indivisible because questioning, by its very nature, was a process.

It must be said immediately that s. 464H presents problems of construction and that, whatever construction is given to it, practical difficulties result. The approach of the trial judge on the voir dire held to determine the admissibility of the videotape and that of the Court of Criminal Appeal were not precisely the same. The trial judge's ruling was:

In my opinion the provisions of s. 464H apply to the "place where facilities were available to conduct an interview". They clearly apply equally to the Frankston C.I.B. and to the St. Kilda Road complex. They apply in my view separately. The activities at each place must be looked at within the limitations of s. 464H(1)(d).

The Court of Criminal Appeal quoted this passage in their judgment [37] but it is not clear how far they gave it their endorsement. Certainly, they did not dissent from it. Their reasoning proceeded in this way [38] :

(1) The applicant was questioned at Frankston. It was not contested that Frankston was a place where facilities were available to conduct an interview. The questioning was not tape-recorded. The Crown made no attempt to lead evidence of anything the applicant said to the police which would have been inadmissible by virtue of s. 464H(1).

(2) The applicant volunteered an admission in the car between Frankston and St. Kilda. It could not be said that the admission was made "during questioning" unless the questioning at Frankston and St. Kilda Road was one and indivisible. But no reason appears why it should be so regarded. Nor could it be said that the admission was made at a place where facilities were available to conduct an interview. Thus the admission did not cease to be inadmissible by reference to par. (d) or (e) of sub-s. (1). How then could it be admitted? It might have been excepted from the prohibition in subs (1) pursuant to par. (c) upon the basis that it was made before questioning (at St. Kilda) if the substance of the admission was later confirmed and the confirmation tape-recorded. Its admissibility was not debated at the trial or before us but its admission into evidence cannot have led to a miscarriage of justice because there was nothing in the admission that was not said again in the course of the interview at St. Kilda.

(3) The applicant was questioned at St. Kilda. That was a place where facilities were available to conduct an interview. The questioning was tape-recorded: the evidence of the confessions or admissions was not rendered inadmissible. Section 464H(1) could have rendered that evidence inadmissible only on the view that the questioning at Frankston and at St. Kilda was one and indivisible, but as we have already said no reason appears why it should be so regarded.

1. Reg. v. Pollard (1991), 56 A. Crim. R., at p. 174. 2. ibid., at pp. 174-175.

To assess the correctness of the approaches taken in the courts below, it is necessary to look generally at s. 464H. Sub-section (1) is made subject to sub-s. (2) so that there resides in the court a power to admit evidence of a confession or admission rendered inadmissible by sub-s. (1) if the court is satisfied on the balance of probabilities that the circumstances are exceptional and justify the reception of the evidence. No attempt was made in the present case to support the admissibility of any confession or admission made by the applicant by reference to sub-s. (2).

Where there is a challenge under s. 464H, the first inquiry must be by reference to sub-s. (1). Sub-section (1) is formulated in terms that evidence of a confession or admission made to an investigating official (defined in s. 464(2) to include a member of the police force) by a person who was suspected or ought reasonably to have been suspected of having committed an offence is inadmissible unless the confession or admission can be brought within pars (c), (d) or (e) of the sub-section and the tape-recording of the confession or admission is available to be tendered in evidence. Since each of these paragraphs concludes with a reference to "tape-recorded" and since evidence of a confession or admission is inadmissible if the requirements in the paragraphs are not met, it is apparent that the intention of the sub-section is to ensure that evidence of a confessional nature from a suspect is not received into evidence unless it is tape-recorded. But it must be understood that s. 464H is concerned with the admissibility of evidence. Nothing in that section or elsewhere in sub-div. (30A) imposes an express obligation on investigating officials to tape-record interviews with suspects [39] .

1. Section 464G requires tape-recording, if practicable, in the circumstances to which ss. 464A(3), 464C(1) and 464F(1) relate. Those provisions deal with particular information required to be given to a person in custody. There are other comparable sections in the subdivision.

It is possible to conjure up situations with which, arguably, the section does not deal. What if, for instance, a person suspected of having committed an offence is questioned and denies any complicity in the offence, the questioning is tape-recorded and later the person returns to the police station where he or she makes a frank admission of guilt unaccompanied by any questioning? Is that admission excluded by s. 464H(1) unless it is tape-recorded? Again, what if an admission of guilt is made in a written statement provided by the person? Is evidence given of such a statement "evidence of a confession or admission made to an investigating official"? And if the person is not suspected or ought not reasonably to have been suspected of having committed an offence, that person's admission or confession is not within the terms of s. 464H. These examples demonstrate that the framers of s. 464H may not have achieved all they set out to do. But the section has to be given a meaning and an operation which are intelligible so far as it is possible to do so.

In the present case what is at issue is the admissibility of what was said by the applicant during the course of the videotaped interview at St. Kilda Road. At that "place" facilities were available to conduct an interview, and that is so whether facilities in par. (d) of s. 464H(1) means facilities for tape-recording what was said or merely facilities for conducting an interview. As a matter of ordinary language, the availability of facilities to conduct an interview is not linked in par. (d) to the tape-recording of what is said. But if the expression does not require the link, it is virtually meaningless in the present context. It would be possible to say of almost any place that facilities were available to conduct an interview. Even the unavailability of a table and chairs would not preclude an interview taking place. Having regard to the evident purpose of the section to ensure that evidence of a confessional nature is recorded and that the risks of falsification of evidence and the placing of undue pressure on persons in custody are thereby minimized, the words "facilities available to conduct an interview" certainly suggest facilities to conduct an interview which is to be tape-recorded. This is the way the Court of Criminal Appeal treated the words. The problem with that construction is that it is at odds with the language of par. (e) which speaks of a place "where facilities were not available to conduct an interview" yet what was said by the person questioned was tape-recorded. It is unnecessary to resolve the dilemma because in the present case facilities were available both to conduct an interview and to conduct an interview which was to be tape-recorded.

If (i) a confession or admission is made to an investigating official (ii) at a place where facilities are available to conduct an interview and (iii) the questioning and anything said by the person questioned is tape-recorded and (iv) the tape-recording is available to be tendered in evidence, nothing in s. 464H operates to render evidence of that confession or admission inadmissible. It is a question of fact in each case whether the requirements mentioned above have been met. In some circumstances it will be clear that they have been met; in other circumstances it will be clear that they have not. Sometimes, especially when the questioning of a person has taken place on more than one occasion or at more than one place, it may not be easy for the trial judge to determine, as a question of fact, whether the requirements of s. 464H(1) have been met. But the sub-section itself, with its division into pars (c), (d) and (e), seems to recognize that there may be more than one "questioning".

Section 464H(1) is confined in its operation to evidence of a confession or admission made by a person who was suspected or ought reasonably to have been suspected of having committed an offence. It is not expressly confined to a confession or an admission made by a person in custody. And it is concerned only with the admissibility of evidence, not directly with the questioning of persons in custody. For that reason s. 464A, which deals with the questioning of persons in custody, throws little light on the operation of s. 464H(1). It is true that, by reason of s. 464(1) of the Act, a person is in custody for the purposes of sub-div. (30A), not only if the person is under lawful arrest but also if the person is in the company of an investigating offical and is being questioned, is to be questioned or is otherwise being investigated "to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence". But the point remains that the object of s. 464A(1) is to ensure that a person taken into custody is released unconditionally, is released on bail or is brought before a bail justice or the Magistrate's Court, "within a reasonable time of being taken into custody". Section 464A(2) requires that any questioning take place within that reasonable time. Section 464A(4) identifies the matters that may be considered in determining what constitutes a reasonable time for the purposes of sub-s. (1); some of those matters clearly contemplate the suspension of questioning. Section 464A is not concerned with whether questioning is one process, with the place or places where questioning takes place or with the presence or absence of facilities for recording what may be said, except in so far as those matters bear on whether the time taken for questioning is reasonable. On the other hand, s. 464H(1) does not impose obligations on investigating officials. If evidence of a confession or admission is obtained in breach of the section, it will not be admitted into evidence, subject to the operation of sub-s. (2). There are no other consequences.

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. In any event, the trial judge will refuse to admit confessional evidence if it was not obtained voluntarily and may refuse to do so if it was obtained unfairly, illegally or improperly [40] . Section 464H(1) does not impinge on those areas of inadmissibility, except through the operation of sub-s. (2) [41] . 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 circumstances, in particular proximity of time and place, so dictate. Questions of degree are necessarily involved [42] .

1. See Van der Meer v. The Queen (1988), 62 A.L.J.R. 656, at pp. 665-666; 82 A.L.R. 10, at p. 26; 35 A. Crim. R. 232, at pp. 247-248. 2. Paragraphs (c) and (d) of s. 464J of the Act provide that nothing in subdiv. (30A) affects the discretion of a court to exclude unfairly obtained evidence or illegally or improperly obtained evidence. 3. As to "place", it is true that s. 37(c) of the Interpretation of Legislation Act 1984 (Vict.) provides that, unless the contrary intention appears, "words in the singular include the plural". But the issue still is whether the same questioning is involved at each place.

While the Court of Criminal Appeal did not refer to the precise timing of the events that took place, it is clear that they regarded the intervals of time and place and the difference between the more informal exchange at Frankston and the long and detailed interview at St. Kilda Road as sufficient to treat the questioning at St. Kilda Road as not the same questioning as that which took place at Frankston. It may be, as the trial judge observed during his ruling on the voir dire, that at Frankston Detective Minisini "obtained a valuable insight into the accused and an understanding of what his version of the evening's events was likely to be when a formal interview was to be conducted". But the issue is still whether the questioning at St. Kilda Road was the same questioning as that which took place at Frankston. It is necessary to focus on the questioning which produced the answers sought to be adduced in evidence. Is that questioning, in terms of s. 464H(1), affected by what took place earlier? It is not directly to the point that what took place earlier may itself not be adduced in evidence. Clearly, views on this matter may differ but I do not think it can be said that the approach taken by the Court of Criminal Appeal disclosed any error of principle or misunderstanding of the legislation. The Court made a judgment on their assessment of the evidence given at trial.

The admission into evidence of what the applicant said while in the car was not challenged. It may be supportable in terms of par. (e) of s. 464H(1) or on the ground that it was not said "during questioning" but was simply volunteered. In any event, for the reasons given by the Court of Criminal Appeal, no miscarriage of justice is likely to have occurred in that regard.

In so far as the application for special leave to appeal is based on s. 464H, I would refuse it.

The other basis of attack is by reference to s. 464C. The attack has two prongs. The first asserts that the requirements of sub-s. (1) are not met merely by repeating the language of pars (a) and (b). It must be made clear, so the argument runs, that the person in custody may communicate with a friend, relative or with a legal practitioner at the time the right to communicate is mentioned. According to the second prong of the attack, the investigating official must defer questioning the person until the person has made it clear, whether by words or otherwise, that he or she does not intend to exercise the right. It is not enough to assume from the mere failure of the person to ask to communicate with a friend or relative or with a legal practitioner that neither right will be exercised.

Despite its heading, s. 464C does not, in express terms, establish a right in a person in custody to communicate with a friend or relative and a right to communicate with a legal practitioner. Rather, it seems to assume the existence of such rights and imposes duties upon any investigating official who wishes to question a person in custody. It imposes a duty to inform that person of those rights and it then imposes a duty to defer questioning for a time that is reasonable in the circumstances to enable the person to make or attempt to make the communications.

It is common ground that at Frankston the applicant was not given the information prescribed by s. 464C(1). But the videotape of the interview at St. Kilda Road records the following dialogue between Detective Minisini and the applicant after the former had stated the time of the interview and had given a caution in the usual terms:

Q3 I must also inform you of the following rights. You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner. Do you understand these rights?

Thereafter the applicant was asked his name and address and questions and answers proceeded. This Court viewed the opening few minutes of the videotape in the presence of counsel. There was a very short, hardly perceptible pause between the answer "Yes" and the commencement of questioning.

The argument before the Court of Criminal Appeal was that there had been no compliance with s. 464C(1) [43] "because the police did not afford the applicant an opportunity of exercising the rights given to him by the subsection and did not defer the questioning to enable the applicant to make or attempt to make the communications contemplated by the subsection". It was not in issue that the questioning of the applicant at St. Kilda Road was "questioning under s. 464A(2)". The argument before this Court (this is not to suggest that the point was not taken below) was that it is not enough for the investigating official simply to read to the person in custody the words of pars (a) and (b) of s. 464C(1). That, it was said, may not convey to the person that he or she has a present right to communicate as distinct from a right to communicate once the questioning has finished. In the applicant's submission, the investigating official must go further and say something to this effect: "Do you want to make a phone call?" It is a corollary of that submission that the investigating official must then wait on some response from the person until it can be said that a reasonable time has elapsed.

1. Reg. v. Pollard (1991), 56 A. Crim. R., at pp. 176-177.

Again, the question is one of construction of the statute and its application to the circumstances of the case. What is involved is the duty of an investigating official to defer questioning of a person in custody until the official has told the person of his or her rights and given the person a reasonable time in which to exercise or attempt to exercise those rights. It is inappropriate to speak of the person waiving a right to communicate by a failure to indicate an intention to exercise the right. Such a failure may, in the circumstances, tend to support a conclusion that a reasonable time has elapsed but that is its significance. If the person says positively that he or she does not wish to communicate with a friend or relative or with a legal practitioner, the investigating official may then proceed with questioning. But that is not because the person has waived any right; the statement is simply evidence that in the circumstances a reasonable time has elapsed.

As to the particular form of words used by Detective Minisini, the view of the Court of Criminal Appeal [44] was that, while prudence and perhaps fairness point to the desirability of an additional question such as counsel for the applicant suggested, the sub-section required no more than the words used by Detective Minisini. In so far as the language of the Act is concerned, it is hard to quarrel with this approach. It is also hard to accept the argument that, without some explanation, the person to be questioned might regard the right to communicate not as a present right but as a right to be exercised after the questioning has been concluded. To say to the person: "I must also inform you of the following rights" and then to repeat the language of the section is not likely to convey the impression that the rights may not be exercised at that stage, especially when the person is asked if he or she understands the rights and answers "Yes". To enlarge upon the words of the statute too much may invite objection that s. 464C has not been strictly complied with. Nevertheless, a further question such as "Do you want to make a phone call?" would be a sensible addition.

But the real issue is whether Detective Minisini deferred his questioning for a reasonable time as required by s. 464C(1). To that the answer must be no. The statement by the Court of Criminal Appeal that "In default of any indication to the contrary from the person in custody, the questioner is free to proceed" [45] places a gloss on sub-s. (1) which is not warranted. Clearly enough, as the sub-section recognizes, the reasonableness of time must be judged by the circumstances. If the person to be questioned states that he or she does not wish to exercise a right of communication, it may then be said that a reasonable time has elapsed and that questioning may properly begin. But the mere absence of such a statement, even participation in the questioning process, is not of itself enough to warrant a conclusion that the investigating official is free to pursue questioning. In the present case there was a failure to defer questioning until the requirements of s. 464C(1) had been met; the questioning began virtually as soon as the applicant had been told of his rights.

Section 464C(1) imposes no sanction for its breach. In marked distinction to s. 464H(1), it says nothing as to the admissibility or inadmissibility of confessional material obtained in breach of its requirements. As Gibbs C.J. pointed out inCleland v. The Queen [46] , "there is no general rule that the court will reject evidence illegally obtained". It might be said that if inadmissibility is not the price to be paid automatically for obtaining evidence in breach of s. 464C(1), Parliament has legislated to no effect. But it might equally well be said that, if Parliament had intended that price to be paid automatically, it would have said so. The conclusion is inevitable that evidence obtained in breach of s. 464C(1) is obtained illegally and its admissibility turns on the general considerations relating to evidence so obtained [47] .

1. (1982) 151 C.L.R. 1, at p. 9. 2. See pars. (c) and (d) of s. 464J of the Act.

The trial judge, on the voir dire, was asked to exclude any confessional evidence arising from the interview at St. Kilda Road, not only by reason of a breach of s. 464H of the Act but also on the ground that admission of the evidence would be unfair to the applicant. Counsel for the applicant did not address an argument to the trial judge that the failure by Detective Minisini to comply with s. 464C meant that the evidence had been obtained illegally and that, in accordance with the principles in Bunning v. Cross [48] , it should be excluded. Counsel did refer to the failure to afford the applicant an opportunity to contact a friend or solicitor, but as a factor to be taken into account in determining whether reception of the confessional evidence would be unfair to the applicant. The trial judge held that the evidence had not been obtained unfairly but in so holding his Honour did not adequately deal with the significance a breach of s. 464C might have in that regard or might have for the reception of evidence obtained illegally. Because the Court of Criminal Appeal concluded that there had been no breach of s. 464C, that Court did not concern itself with the admissibility of evidence illegally obtained. And, like the trial judge, the Court of Criminal Appeal saw no unfairness in the admission of the St. Kilda Road interview into evidence.

We are not talking about Bunning v. Cross, because we accept that the findings of fact are that the police officer in this case did not consciously and deviously set out to circumvent s. 464C when he issued that particular caution. Nevertheless, counsel did rely upon the breach of s. 464C but, again, as part of an argument that the evidence had been unfairly obtained.

Because of the way in which submissions were made to the trial judge, to the Court of Criminal Appeal and to this Court, this application for special leave to appeal is an unsatisfactory vehicle for exploring the relationship between evidence obtained unfairly and evidence obtained illegally and the role of s. 464C in that relationship. Nevertheless, the fact remains that, on the voir dire, the trial judge did not sufficiently direct his attention to the implications for the reception of evidence arising from a breach of s. 464C; therefore the exercise of his discretion not to exclude the evidence miscarried. The Court of Criminal Appeal did not direct their attention to that aspect at all because of their mistaken view that there had been no breach of the section. It follows that the consequences of a breach of s. 464C for the reception into evidence of the St. Kilda Road interview were not properly considered in the courts below. For that reason, there should be a grant of special leave to appeal. Because of the important role the videotape of that interview must have played in the trial, the appeal should be allowed, the convictions quashed and there should be a retrial of the charges on which the applicant was convicted.

The first question in this application for special leave to appeal against convictions for rape, attempted rape and indecent assault is whether a videotaped record of interview between the applicant and police officers was inadmissible in evidence by reason of the provisions of s. 464H of the Crimes Act 1958 (Vict.) ("the Act"). That section makes certain confessions and admissions inadmissible in evidence unless they are tape-recorded in accordance with the provisions of that section. Tape-recording is defined to include audio recording and video recording. If the first question is answered in the negative, the second question in the application is whether the trial judge should have exercised his discretion to exclude the record of interview on the ground that it was made after a failure to comply with the provisions of s. 464C of the Act. That section requires an investigating official, before commencing the questioning of a person in custody, to inform that person that he or she has a right to communicate with a lawyer and with a friend or relative.

The applicant was intercepted by police officers at about 6.40 a.m. on 26 January 1990 while on his way to work. He was requested to return to Frankston C.I.B. offices to be questioned regarding allegations that he had raped the prosecutrix. At Frankston, after a discussion concerning other matters, Detective Minisini read the statement of the prosecutrix to the applicant. The detective also questioned the applicant. The "interview" between the applicant and Detective Minisini at Frankston took about one and a half hours. Facilities for tape-recording interviews were available at Frankston, but the interview with the applicant was not recorded. No attempt was made at the trial to tender evidence of what was said at Frankston. However, a general picture of what occurred emerged during the hearing of a voir dire concerning the admissibility of a record of interview made later at St. Kilda Road police complex.

At 10.30 a.m., the applicant was informed that the police wished to record a videotaped interview with him. The applicant was then taken to the St. Kilda Road police complex where he arrived at 11.35 a.m. An interview between the applicant and Detective Minisini in the presence of another detective commenced at 12.25 p.m. It was video-recorded and continued for approximately two and a half hours. The tape recording was admitted as evidence at the trial of the applicant. Although the statements of the applicant, as recorded, did not constitute a confession of the alleged offences against the prosecutrix, they contained admissions which constituted powerful corroboration of her allegations that the applicant had raped, attempted to rape and sexually assaulted her. The admission of the videotape into evidence considerably strengthened the case against the applicant.

The applicant contends that the provisions of s. 464H of the Act made the record of interview at St. Kilda Road inadmissible because, in breach of that section, the questioning of the applicant at Frankston was not tape-recorded although facilities were available at Frankston to record the interview. The applicant argued that, if the questioning of a person in custody has been conducted at more than one place and facilities were available to conduct an interview at those places, a confession or admission, made at one of those places, is inadmissible unless the questioning at all places was tape-recorded.

In my opinion, the evidence of the recorded interview at the St. Kilda Road complex was not rendered inadmissible by reason of a breach of s. 464H.

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 sub-section (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.

(1) Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who -

of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless -

(c) if the confession or admission was made before the commencement of questioning, the confession or admission was tape-recorded, or the substance of the confession or admission was confirmed by the person and the confirmation was tape-recorded; or

(d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded; or

(e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was tape-recorded -

and the tape-recording is available to be tendered in evidence.

(2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub-section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances -

Accordingly, s. 464H permits the admission into evidence of a confession or admission if it was made during questioning and was tape-recorded. It also permits the admission into evidence of a confession or admission if it was made before the commencement of questioning or if it was made at a place where facilities were not available to conduct an interview and the substance of the confession or admission was confirmed and the confirmation was tape-recorded. Section 464H makes any other confession or admission to an investigating officer inadmissible as evidence unless the court is satisfied that the circumstances are exceptional and justify the reception of the evidence.

However, contrary to the applicant's contention, a tape-recorded interview does not become inadmissible because no tape-recording was made of earlier questioning which had been conducted at a place where facilities were available to conduct an interview. Both sub-s. (1)(d) and sub-s. (1)(e) of s. 464H make a confession or admission admissible if it was "made during questioning" and the questioning and anything said by the person were tape-recorded at the place where the questioning was conducted. Grammatically, the words "the questioning" where they appear for the second time in s. 464H(1)(d) and s. 464H(1)(e) refer to the "questioning at a place" etc. which appears earlier in those paragraphs. The ordinary grammatical meaning of both paragraphs is that a confession or admission is admissible if it was made during questioning and the questioning and anything said by the person questioned at that place were tape-recorded. Accordingly, it is not a condition of the admissibility of a confession or admission under those paragraphs that any earlier or later questioning of the person at another place must also have been tape-recorded if facilities to conduct an interview were available at that other place. Moreover, it seems unlikely that the legislature could have intended that a tape-recorded confession or admission made during questioning should become inadmissible because some later stage of the questioning at some other place was not recorded. If that is so, there is no reason to suppose that a confession or admission, made during questioning at a particular place, is inadmissible because some earlier stage of the questioning at some other place was not recorded.

The applicant sought to support his construction of s. 464H by contending that the word "place" in s. 464H(1)(d) included the plural in accordance with the rule enshrined in s. 37 of the Interpretation of Legislation Act 1984 (Vict.). On that construction, a confession or admission, made at any time during questioning at places where facilities were available to conduct an interview, would be admissible only if the questioning and anything said by the person questioned at those places were tape-recorded. However, to read the section as if the words "a place" include "places" gives it a strained and unnatural construction. Section 464H(1) is concerned to lay down the conditions of admissibility of a confession or admission made by a person who "was suspected or ought reasonably to have been suspected" of having committed an offence. Section 464H(1)(d) is concerned with a confession or admission made during questioning at a place where facilities were available to conduct an interview. It is a condition of the admissibility of a confession or admission made at that place that the questioning and anything said by the person in custody were tape-recorded. To read the paragraph as if the words "a place" included "places" would introduce a new and different category concerning the admissibility of confessions and admissions. Furthermore, if s. 464H(1)(d) was construed in the manner for which the applicant contends, s. 464H(1)(e) would also have to be construed in the same way. Yet it would add nothing to the substantive effect of the latter paragraph to construe the term "a place" to include "places". These considerations point convincingly to the conclusion that the context of the phrase "at a place" in s. 464H(1) indicates a legislative intention to exclude the rule of construction enshrined in s. 37 of the Interpretation of Legislation Act.

Moreover, even if the words "a place" are construed to include the plural, that construction would not necessarily compel the conclusion that a confession or admission was inadmissible because part of the questioning at one of the places was not tape-recorded. Even if the words "a place" include the plural, the natural reading of the paragraph on that hypothesis would be that the word "questioning" where it secondly appears in s. 464H(1)(d) referred to questioning at the place where the confession or admission was made.

I am also unable to accept the suggestion that the word "questioning" where it secondly appears in s. 464H(1)(d) and (e) refers to the whole process of questioning that is authorized by s. 464A(2) and not to the word "questioning" where it first appears in those paragraphs. Section 464A(2) does not use the term "questioning" or "the questioning". It simply authorizes the investigating official to "question the person or carry out investigations in which the person participates" during the "reasonable time" which can elapse before that person must be released or brought before a bail justice or the Magistrates' Court. That questioning may be carried out at several places, and nothing in s. 464A(2) requires the questioning which it authorizes to be tape-recorded. Consequently, I can see no ground for concluding that the term "questioning" where it secondly appears in s. 464H(1)(d) is a reference to the questioning which s. 464A(2) authorizes rather than the "questioning" which is first referred to in s. 464H(1)(d).

Moreover, the meaning of par. (e) would make no sense if the word "questioning" where it secondly appears in that paragraph was a reference to the questioning authorized by s. 464A(2). The word "questioning" where it secondly appears in s. 464H(1)(e) can only be a reference to the "questioning at a place where facilities were not available to conduct an interview". No reason appears for thinking that the identical word in par. (d) in an almost identical context was intended to have a radically different antecedent from that which the word "questioning" has in par. (e). These considerations simply reinforce the point that, grammatically, the term "questioning" where it secondly appears in s. 464H(1)(d) and (e) refers to the earlier words "questioning at a place to conduct an interview" in those two paragraphs.

Accordingly, the failure to tape-record the questioning of the applicant at Frankston did not make inadmissible the tape-recorded interview with the applicant at St. Kilda Road.

The second contention of the applicant is that, in the exercise of his discretion, the trial judge should have excluded the interview which was video-recorded at St. Kilda Road. The applicant contended that the interview at St. Kilda Road was in breach of s. 464C of the Act because the provisions of s. 464C required the investigating officers to inform him of his right to communicate with his lawyer and with a friend or relative before any questioning commenced at Frankston.

(1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she -

(a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and

(b) may communicate with or attempt to communicate with a legal practitioner - and, unless the investigating official believes on reasonable grounds that -

(c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or

(d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed -

the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.

(2) Subject to sub-section (1), if a person wishes to communicate with a friend, relative or legal practitioner, the investigating official in whose custody the person then is -

(a) must afford the person reasonable facilities as soon as practicable to enable the person to do so; and

(b) must allow the person's legal practitioner or a clerk of the legal practitioner to communicate with the person in custody in circumstances in which as far as practicable the communication will not be overheard.

Although the policy which stands behind s. 464C is tolerably clear, the terms of the section give rise to a number of difficulties of construction. First, does the section confer a right to communicate with a lawyer and a friend or relative? If the section creates rights in favour of a person in custody as well as imposing obligations on the investigating official, the case for the discretionary exclusion of evidence obtained in breach of the section is strengthened. Secondly, does the obligation to defer questioning only arise if the person in custody indicates a wish to make a communication? Thirdly, is the obligation to defer questioning spent once questioning commences?

Neither s. 464C nor any other provision of the Act confers an express right to communicate with a lawyer and a friend or relative. Nevertheless, although s. 464C does not expressly confer any such right, the enactment of such rights must have been intended. The terms of sub-ss. (1) and (2) are only explicable on this basis. The obligation to inform and the obligation to provide facilities for communicating are meaningless unless the person in custody has the right to make the relevant communications.

Independently of the effect of any relevant legislation, the courts appear to have recognized a common law right for a solicitor to be present while a client is being questioned by police officers [49] . However, even if a person in custody has a common law right to have his solicitor present while he is being interrogated, there appears to be no common law right to communicate with a friend or relative during the period between a person being taken into custody and being brought before a magistrate. If that right exists in Victoria, it can only arise from s. 464C(1). Having regard to the obligation imposed on the investigating official to inform the person in custody that he or she may communicate with a friend or relative and the obligation to afford reasonable facilities of communication, "if a person wishes to communicate with a friend" etc., it is natural to read that section as impliedly conferring the right to communicate. If the section has enacted a right to communicate with a friend or relative, it seems natural to infer that it has also enacted a right to communicate with a legal practitioner whether or not there is a common law right to that effect.

1. See Reg. v. Dugan (1970), 92 W.N. (N.S.W.) 767, at p. 767; Driscoll v. The Queen (1977), 137 C.L.R. 517, at p. 539; Reg. v. Hart , [1979] Qd R. 8, at p. 13.

Consequently, the failure of an investigating official to defer the questioning of a person in custody after his or her request to be allowed to contact a lawyer, friend or relative is a breach of that person's statutory rights as well as a breach of the investigating official's statutory obligations.

A literal reading of s. 464C suggests that the direction to defer questioning is not conditional upon the person in custody informing the investigating official that he or she wishes to exercise the right to communicate. The ordinary, natural meaning of the section appears to be that, subject to the two exceptions referred to in pars (c) and (d) of sub-s. (1), the duty to defer questioning arises as soon as the person in custody has been informed of his or her right to communicate. Whether or not the person wishes to exercise the right does not appear to affect the obligation to defer the questioning. Consequently, I find it difficult to accept the emphatic statement of the Court of Criminal Appeal in this case when it said [50] :

It is difficult however to discern in s. 464C(1) any obligation to defer the questioning unless the person in custody indicates that he wishes to exercise the rights given to him by the sub-section. To the contrary, the literal meaning of the sub-section lends considerable support to the conclusion that the obligation to defer questioning arises independently of any expression of a wish to exercise those rights. Notwithstanding the literal meaning of the sub-section, however, the better view is that the obligation is conditional upon the person in custody indicating his or her wish to exercise the right of communication which the sub-section confers. 1. Reg. v. Pollard (1991), 56 A. Crim. R. 171, at p. 177.

Three reasons lead me to this conclusion. First, the reasonableness of the time for which the questioning must be deferred will depend upon the circumstances and identity of the person to be contacted. Until the investigating official learns the identity and whereabouts of the person to be contacted, the investigating official will be unable to assess what is a reasonable time in the circumstances. More time may be needed to contact a busy solicitor, for example, than to communicate with a friend or relative who has accompanied the person in custody to the police station. Secondly, if the sub-section is read literally and the obligation to defer is not conditional upon the person in custody informing the official of a wish to exercise the right, the deferment would have to take place before the questioning commences. Once the questioning commenced, the obligation to defer would be spent. It seems unlikely that the legislature could have intended such a construction. It would lead to the result that the questioning had to be deferred although the person did not wish to contact anybody but did not have to be deferred if, at a later time during the questioning, the person wished to make or attempt to make the communication. Thirdly, the relevant part of s. 464C(1) derives from cl. 8.31(2) of the then Police Standing Orders which provided:

If the person [taken into custody] indicates that he does not wish to be interviewed before consultation with a legal adviser or friend, the member conducting the interview shall defer it for such time as is reasonable in the circumstances, to enable the person to obtain advice.

The report of the Consultative Committee on Police Powers of Investigation, which was the source of s. 464C, said [51] that the right to have questioning deferred should not continue to depend on the Police Standing Orders which could be changed at any time; it should be made the subject of legislation. Having regard to the terms of the relevant Police Standing Order and the recommendation of the Committee, it seems likely that, although the legislature intended that a person in custody should be informed of his or her rights before questioning commenced, it intended to impose an obligation to defer questioning only if the person indicated that he or she wished to exercise one or more of those rights.

1. Custody and Investigation: Report on Section 460 of the Crimes Act 1958, April 1986, pp. 80-81.

The St. Kilda Road interview was in breach of s. 464C

Although the interview with the applicant at Frankston involved questioning by Detective Minisini and extended over one and a half hours, neither Detective Minisini nor any other police officer informed the applicant of his rights in accordance with the requirements of s. 464C. The learned judge made the following findings concerning the events at Frankston:

I am satisfied that the accused probably commenced proceedings by asking Minisini, who was deliberately reading the statement of the prosecutrix in front of the accused, probably to invite the accused to ask questions, questions regarding what allegations the prosecutrix had made.

various allegations as to the facts as asserted by the prosecutrix were put to the accused, and his reactions to such allegations were noted - that is to say, which allegations were not in dispute and which allegations were disputed by the accused.

I have no doubt that Minisini obtained a valuable insight into the accused and an understanding of what his version of the evening's events was likely to be when a formal interview was to be conducted. Indeed, it is significant, and in support of this finding, that it was Mr. Minisini who in fact conducted the record of interview when video facilities were finally made available at the St. Kilda Road complex rather than Sterling, who was the officer-in-charge of the investigation.

At St. Kilda Road, after asking the applicant whether he agreed that the time was now 12.25 p.m. and giving him the customary warning that he was not obliged to say or do anything, Detective Minisini said to the applicant:

I must also inform you of the following rights. You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner. Do you understand these rights? The applicant answered, "Yes".

After a pause that was barely perceptible, the interview then continued for a further two and a half hours. At no stage did the applicant ask to communicate with a friend, relative or lawyer.

In evidence on the voir dire, the applicant said that, with the experience he now had, he thought that he would probably complain to the officer in charge at Frankston about his treatment. When asked by the learned trial judge what he would have said, the applicant replied, "I would have asked them, probably said words to the effect, "I thought I had a right to seek a legal practitioner or ring a friend and relative. That was never done." " The applicant was also asked on the voir dire what he thought when Detective Minisini informed him of his right to contact a relative, friend or lawyer. He replied:

Well, I took it I would have answered all the questions already in Frankston, but they were going to be re-asked again, so it was, I thought it was too late to ask for a legal practitioner at that time.

Upon the foregoing facts, the interview at St. Kilda Road took place without the investigating officials complying with the provisions of s. 464C. That section requires that the applicant be informed of his rights of communication before any questioning commences. The section is breached even if the officer subsequently informs the person in custody of his or her rights. Informing the person of his or her rights in accordance with s. 464C(1) after questioning has commenced may persuade a judge in an appropriate case to exercise his or her discretion in favour of admitting a confession or admission. But it does not prevent any questioning after the warning from being in breach of the section. The questioning at St. Kilda Road was part of the same process of questioning which commenced at Frankston. Because no information concerning the applicant's rights of communication was given to him at Frankston, the whole questioning of the applicant was in breach of the requirements of s. 464C(1).

Furthermore, the statement which Detective Minisini made to the applicant at St. Kilda Road was not an adequate statement for the purpose of s. 464C(1). Under that sub-section the person in custody may exercise his or her rights of communication before or during and possibly after the questioning. The legislature must have intended that the person in custody be fully informed of those rights. Information given by an investigating official does not meet the requirements of the section unless it adequately conveys the full effect of the rights which the section confers. A warning which uses words in sub-s. (1) will not give effect to the statutory obligation, therefore, if, by reason of other words, the context or the conduct of the investigating officer, the person in custody is not completely informed of the full nature of his or her rights under the section. In particular, the information must make clear that the person has a right to make the communication before the questioning commences. As the Court of Criminal Appeal pointed out in the present case [52] : "It would make nonsense of the legislation if the person in custody were not made aware that he could if he wished attempt the communication immediately."

1. Reg. v. Pollard (1991), 56 A. Crim. R., at p. 178.

Detective Minisini did not expressly inform the applicant that he was entitled to exercise his rights immediately. Nor did the words which he used clearly and adequately convey that information. Although the words which he used were taken from sub-s. (1), they did not convey the full effects of the rights conferred by s. 464C. Furthermore, the conduct of Detective Minisini in continuing his questioning after a barely perceptible pause strongly suggested that the rights were not rights which could be exercised immediately or, for that matter, during the questioning. Consequently, I am unable to agree with the Court of Criminal Appeal that in this case the applicant was "made aware that he could if he wished attempt the communication immediately".

The exercise of the discretion to exclude the interview

Section 464C does not make inadmissible in evidence a confession or admission obtained in breach of the section. However, a confession or admission, although made voluntarily, may be excluded by the trial judge in the exercise of his or her discretion if it was obtained in circumstances that render it unfair to the accused to admit it into evidence [53] . If a voluntary confession or admission was obtained in breach of a procedural rule whose object is to protect an accused person against unfair methods of obtaining incriminating evidence, the sound exercise of a judicial discretion may require the rejection of the evidence. Impropriety by police officers in obtaining a confession or admission is not itself a sufficient ground for excluding a voluntary confession or admission unless the impropriety is such that public policy requires that the confession or admission be rejected as evidence. However, the effect of the impropriety may make it unjust to the accused to admit the confession or admission into evidence. In this Court, the applicant did not contend that public policy required the exclusion of the evidence. His case was that the record of interview was obtained in breach of s. 464C and that it was unfair to him to admit it into evidence.

1. R. v. Lee (1950), 82 C.L.R. 133, at pp. 150-151; Cleland v. The Queen (1982), 151 C.L.R. 1, at pp. 5, 18.

Section 464C is a procedural rule whose objective is to ensure that a person is treated fairly while in custody for the purposes of the Act. It is one of the checks and balances on the extension of the common law powers of police investigation and interrogation which is conferred by other provisions of sub-div. (30A) of Div. 1 of Pt III of the Act. The Consultative Committee on Police Powers of Investigation said [54] that the right of access to friends, relatives and lawyers prior to any questioning was "a most important safeguard to the suspect". In pursuance of its objective, the section seeks to neutralize the psychological disadvantage which could otherwise be suffered by a person who is questioned while detained in police custody and isolated from contact with the outside world. It also seeks to ensure that that person will have the opportunity of obtaining legal advice before answering questions, making statements or assisting the police in their investigations. When regard is had to the objective of s. 464C, the obtaining of a confession or admission in breach of that section should be regarded as raising a prima facie case of unfairness calling for the discretionary rejection of the confession or admission. Unless the prosecution discharges the evidentiary burden of displacing that prima facie case of unfairness, the trial judge should as a general rule reject the tender of the confession or admission as evidence.

In the present case, the learned trial judge appears to have accepted that the record of interview was not made in breach of s. 464C. Two reasons probably influenced this conclusion. First, his Honour appears to have regarded the questioning at St. Kilda Road as a discrete episode which was unaffected by what happened at Frankston. Secondly, counsel for the applicant did not submit that what was said at St. Kilda Road was a breach of s. 464C even if the questioning at that place was a discrete episode. For the reasons I have given, however, his Honour was in error in failing to hold that the record of interview was made in breach of s. 464C.

As a result, his Honour failed to address the question whether the evidence on the voir dire displaced the prima facie case of unfairness arising from breach of that section. It is true that the learned judge gave a number of reasons for concluding that the applicant had not discharged the onus of proving that it would be unfair to him to admit the record of interview into evidence. Thus, his Honour held that the applicant "was not overborne, was not subjected to threats or intimidation or was in a state or condition at the time of the video record of interview where he was in a state which renders his performance during the record of interview such that rendered the record of interview unfair". His Honour also held that the accused was not subjected to cross-examination, that nothing in the record of interview jeopardized the right of the accused to a fair trial, and that nothing in the surrounding circumstances affected the reliability of the statements made. However, these findings do not meet the case of prima facie unfairness arising from breach of s. 464C.

Section 464C lays down rules which the legislature declares must be followed if a confession or admission made by a person in custody is to be regarded as fairly obtained. A breach of those rules makes it prima facie unfair to the accused to admit evidence obtained as the result of the breach. The evidence may displace the prima facie case of unfairness if it shows that the breach was insignificant or was irrelevant to the obtaining of the confession or admission. But it is not for the courts to disregard a breach of s. 464C by analyzing the circumstances of the case by reference to general notions of fairness. The rules which s. 464C enacts express the legislature's judgment as to what is required if a confession or admission made by a person in custody is to be regarded as fairly obtained. Although s. 464C does not declare that evidence obtained in breach of the section is inadmissible, failure to comply with the section will ordinarily be unfair to the accused and call for the exclusion of evidence obtained after the breach.

No attempt was made in the voir dire proceedings to displace the prima facie case of unfairness arising from breach of s. 464C. Thus, there was no evidence from which it could be inferred that at Frankston the applicant was fully aware of his rights under s. 464C but elected to waive them or that he would have made the admissions which he did even if he had been informed of those rights at Frankston. Nor was this a case where, despite the failure of the investigating officials to inform the applicant of his s. 464C rights before questioning began, he was subsequently given that information before any damaging admissions were made. The information that was given to the applicant at St. Kilda Road was given to him in circumstances which did not comply with the section. Moreover, it was given at a time when the applicant had already revealed to a substantial extent "what his version of the evening's events was likely to be when a formal interview was to be conducted".

The Court of Criminal Appeal held that there was no breach of s. 464C. The learned judges of that Court held that the applicant was fully informed of his rights at St. Kilda Road. Like the trial judge, the Court of Criminal Appeal appears to have treated the questioning of the applicant at St. Kilda Road as a commencement of his questioning for the purpose of s. 464C. For the reasons I have already given, the Court of Criminal Appeal was in error in not finding that the record of interview was obtained in breach of s. 464C.

Accordingly, the conviction of the applicant cannot stand. The learned trial judge erred in failing to find that the questioning at St. Kilda Road constituted a breach of s. 464C which made it prima facie unfair to the applicant to admit the record of interview into evidence. Further, his Honour was in error in not determining whether the evidence displaced the prima facie case of unfairness arising from breach of the section. Consequently, his Honour did not properly exercise his discretion to exclude the record of interview which was made at St. Kilda Road.

Special leave to appeal against the convictions of the applicant should be granted, the appeal should be allowed, and his convictions quashed. There should be a new trial of all charges.