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JUDGMENT

1. HIS HONOUR: The accused, Gofal Baziad, is charged with the murder of the deceased, Jason Palmer, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). On 7 April 2026, he pleaded not guilty to this single charge of murder. His trial has been continuing since then.

2. The accused objects to three portions of evidence which the Crown seeks to adduce against him as admissions that go to his consciousness of guilt. A bundle of statements of the relevant witnesses was tendered on the voir dire. On 1 May 2026, those witnesses, being former Detective Silvester, Sergeant Bressington and Detective Sergeant Hamill, all gave evidence on the voir dire.

3. On 6 May 2026 I heard submissions concerning the objections and made rulings accompanied by short reasons. What follows is a more complete analysis of the issues and the rulings.

4. The impugned evidence relates to three different conversations that the accused had with police when he was arrested on 17 June 2024. The objections are primarily based upon the failure of the officers to record their conversations in accordance with s 281 of the Criminal Procedure Act 1986 (NSW). Indeed, none of those conversations were audio- or video-recorded. The accused also contends the evidence should be excluded pursuant to ss 90 and 137 of the Evidence Act 1995 (NSW).

5. The principal issue to be determined is whether the relevant statements were made in the course of official questioning, within the meaning of s 281 of the Criminal Procedure Act and, if so, whether the officers have a reasonable excuse as to why they did not electronically record the conversations. The objections based on ss 90 and 137 need only be considered if I find that the police officers did not breach s 281 because the conversations were not made in the course of official questioning or, if they were, that the officer concerned had a reasonable excuse for not electronically recording them.

The evidence to which the objections relate

6. It is necessary, in placing the evidence within its proper context to set out the key, uncontested events from 17 June 2024.

Event #1: Conversation with DSC Silvester at the time of arrest

7. The Crown seeks to lead evidence from Detective Senior Constable (“DSC”) Heath Silvester. By the time the accused was arrested on 17 June 2024, DSC Silvester had been involved in the investigation into the death of Jason Palmer for “more than six months” and he was second-in-charge to Detective Sergeant (“DS”) Andrew Hamill.

8. On 17 June 2024, DSC Silvester, together with DSC Clark, commenced surveillance in the vicinity of the Ingleburn Industrial Estate in an attempt to locate the accused. They conducted the surveillance in an unmarked police vehicle.

9. At about 1.12pm that day, DSC Silvester believed that he saw the accused drive past him in a Nissan X-Trail vehicle. He contacted DS Hamill, who according to DSC Silvester, instructed him to follow the vehicle. Eventually, DS Hamill instructed DSC Silvester to arrest the accused once he stopped the vehicle.

10. DSC Silvester and DSC Clark followed the accused until about 1.52pm, at which point the accused stopped the Nissan X-Trail. Both officers exited their unmarked police vehicle and introduced themselves to the accused. The salient evidence is from DSC Silvester’s statement dated 25 June 2024:

“6. Around 1:52pm, along with DSC CLARK I approached vehicle 405HI8, I produced my New South Wales Police identification and said ‘Hi, I’m Detective SILVESTER, this is Detective CLARK we’re from the Homicide Squad New South Wales Police, what’s your name?’

7. He said ‘Gofal’.

8. I said ‘Gofal BAZIAD?’

9. He said ‘Yes’.

10. I said ‘Step out of the car, you are under arrest for the murder of Jason Palmer in 2004. You are in my custody and not free to leave. Do you understand?;

11. He said ‘Yeah, oh ok’.

12. I said ‘I want you to clearly understand, you do not have to say or do anything if you do not want to. Whatever you say or do may be recorded and given in evidence in court. Do you understand?’

13. He said ‘Yes’.

14. After searching and handcuffing Gofal BAZIAD, he initiated a conversation with me.

15. He said, ‘I think you got the wrong person’.

16. I said, ‘Are you Gofal BAZIAD?’

17. He said ‘Yes’.

18. I said ‘I am very confident that I have the correct person. Do you know a Jason Palmer?’

19. He said ‘No, I don’t know Jason Palmer’.

20. Along with DSC CLARK, I walked Gofal BAZIAD over to our unmarked police vehicle. While I stood with Gofal BAZIAD, DSC CLARK arranged for a marked police vehicle to attend our location to transport Gofal BAZIAD to Campbelltown Police Station.”

11. The Crown wishes to rely on the accused denying knowledge of Jason Palmer as a lie evidencing his consciousness of guilt.

12. The discussion was not recorded. In cross-examination on the voir dire*,* DSC Silvester said he did not have a body-worn-video camera with him at the time and, while he did have his mobile phone, that device remained in the unmarked police vehicle as the interaction at the roadside unfolded.

Event #2: Conversation with Sergeant Bressington in the charge room

13. At about 2.30pm on 17 June 2024, the accused was transported to Campbelltown Police Station where he was kept within the custody area. The Custody Manager, Sergeant Luke Bressington, read him his Part 9 rights (with assistance from a telephone interpreter) and the accused was given the opportunity to speak with a lawyer, which he did.

14. The Crown seeks to lead evidence from Sergeant Bressington. He commenced his shift as the Custody Manager at 5.00pm on 17 June 2024. He was not involved in the investigation. In examination-in-chief on the voir dire, he confirmed that he had not been provided any information about the accused prior to his arrest. In cross-examination on the voir dire, he also confirmed that part of his role is to speak to someone who is arrested – but not “to question someone in an investigative capacity”.

15. Sometime before 8.20pm on 17 June 2024, the accused said to Sergeant Bressington that his lawyer told him “not to answer questions or interview”. Following this, the accused was charged with murder. At about 10.20pm, Sergeant Bressington provided him with a copy of his charge sheet (presumably the Court Attendance Notice (“CAN”)) and the facts sheet.

16. The accused and Sergeant Bressington proceeded to engage in a conversation. Sergeant Bressington outlined that conversation in his statement dated 14 July 2024, as follows:

“30. About 10:20pm I approached BAZIAD and handed him a copy of the Facts and Charge sheets. I said, ‘I need to tell you that the charge has been completed and you are now officially bail refused. You will be attending Court in the morning.’

He said, ‘What charge?’

I said, ‘You have been charged with the Murder of Jason Palmer’.

He said, ‘Who is that?’

I said, ‘You[r] ex-wife’s husband’.

He said, ‘I can’t remember him’.

I said words to the [e]ffect of, ‘It was many years ago. You reported him missing? The report says that he was last seen driving away with you and he was found in a river at Menangle. All the information is in the paperwork.’

He said, ‘I don’t know what you are talking about. When was it?’

I said, ‘2004’.

He said, ‘So much has happened since then. I can’t remember’.”

17. The Crown also seeks to rely upon this conversation as evidence of consciousness of guilt.

Event #3: Conversation with DS Hamill and DSC Silvester in the dock

18. The third conversation relied upon by the Crown relates to statements that the accused made to DS Hamill and DSC Silvester at approximately 11.00pm on 17 June 2024. They approached the accused whilst he was seated in the dock, at which point DS Hamill observed the accused reading the CAN and the facts sheet that had been provided.

19. DS Hamill was the lead investigator into Jason Palmer’s death. He was aware that the accused had already claimed earlier that day, to both DSC Silvester and Sergeant Bressington, that he did not know who Jason Palmer was. DS Hamill gave evidence that he approached the accused in the dock to ensure he was fully aware as to the reason for his arrest.

20. Quite relevantly, DS Hamill was also aware that neither of the previous two interactions had been audio- or video-recorded. He nevertheless proceeded to have a discussion with the accused without recording it. That conversation was relevantly as follows:

“I said, Gofal, my name is Detective Sergeant Andrew Hamill. I am from the NSW Police Homicide Squad. I am the Officer in Charge of the investigation. I just want to ensure that you fully understand why you have been arrested today.

Mr Baziad said, No.

D/Sgt Hamill said, DO you understand you have been arrested for the murder of Jason Palmer

Mr Baziad said, No, who’s that.

D/Sgt Hamill said, You don’t know who Jason Palmer is?

Mr Baziad said, No

D/Sgt Hamill said, Do you know Renny Palmer?

Mr Baziad said, Yes, she was my wife before.

D/Sgt Hamill said, Were you married?

Mr Baziad said, Yes, in Indonesia

D/Sgt Hamill said, Well Jason Palmer was Renny’s ex-husband in 2004. Do you know who I am talking about now?

Mr Baziad said, No, don’t know.”

21. Again, the Crown seeks to rely upon this evidence as consciousness of guilt.

Is the evidence relevant?

22. I am satisfied that the three parts of the evidence are relevant within the meaning of ss 55 and 56 of the Evidence Act 1995 (NSW). If admitted, the Crown would add to its entirely circumstantial case by relying upon the evidence as admissions that demonstrate the accused’s consciousness of guilt in connection with the charged offence.

23. In fact, the accused had known the deceased, Jason Palmer, and had close contact with him for most of 2003 and in 2004 before Jason Palmer died. He and the deceased had both been in separate, intimate relationships with Renny Palmer and both of the men had spent a significant amount of time with each other. After the deceased’s body was located in February 2004 in the Nepean River, wrapped in a sleeping bag and tied down with rocks, the accused and Ms Palmer quickly became the focus of the police investigation into Mr Palmer’s murder.

24. In March 2004, the accused left Australia and travelled to his native Indonesia. The Crown will be characterising his exit from the country as “flight”, evidencing his consciousness of guilt. The Crown has tendered multiple taped telephone conversations between the accused and Ms Palmer from April 2004, all obtained as a result of lawful interception. In those conversations there was a great deal of discussion about the police investigation into what was then clearly a murder.

25. The accused lived with Ms Palmer in Indonesia for some years, before returning to Australia together and remaining in a relationship up until about 2017. In light of the accused’s extended relationships with both Renny Palmer and Jason Palmer, together with the fact that the accused had, to his knowledge, been the subject of a police investigation into Jason Palmer’s murder, his claims to police not to know who Jason Palmer was must have raised serious questions in the minds of the key investigators, DS Hamill and DSC Silvester.

Should the evidence nevertheless be excluded?

26. As I have outlined already, the accused objects to the evidence pursuant to s 281 of the Criminal Procedure Act and ss 90 and 137 of the Evidence Act. The Criminal Procedure Act is the appropriate starting point.

27. Section 281 of the Criminal Procedure Act provides the following:

281 Admissions by suspects

(1) This section applies to an admission—

(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and

(b) that was made in the course of official questioning, and

(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

(2) Evidence of an admission to which this section applies is not admissible unless—

(a) there is available to the court—

(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or

(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or

(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.

(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).

(4) In this section—

investigating official means—

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or

(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.

official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

reasonable excuse includes—

(a) a mechanical failure, or

(b) the refusal of a person being questioned to have the questioning electronically recorded, or

(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

tape recording includes—

(a) audio recording, or

(b) video recording, or

(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.

28. For present purposes, one of the central issues relates to the meaning of “official questioning”.

“Official questioning”

29. Instructively, Howie J considered the meaning of “official questioning” in a similar context in Bryant v R [2011] NSWCCA 26; (2011) 205 A Crim R 531. In that case, the appellant made admissions after the custody sergeant explained the offences with which he had been charged and that he would be refused bail. This bears obvious similarities to the interaction Sergeant Bressington had with the accused in this case. On this issue, Howie J said at [139] (McLellan CJ at CL and Simpson J agreeing):

“… ‘Questioning’ seems to me to be more than simply asking a person whether he understands information that has been conveyed to him. In reality the Sergeant was merely seeking to ensure that the appellant understood what was going to happen: that is that he was going to be charged ‘with several armed robbery offences’, She was not seeking information but supplying him with information. What followed next was again providing the appellant with information: that she was going to refuse him bail and take him before a magistrate. Again the only question she asked was to ensure that he understood what he was being told. I do not believe that this is ‘questioning’ in common parlance. It certainly does not appear to me to be ‘questioning’ in terms of an investigation of an offence. I am prepared to accept that the section is protective legislation, as it was described in Horton at 23, and should not be read down so as to diminish its obvious beneficial effect on the rights of persons in custody. But nor should it be given an effect that was never intended by the legislature”.

30. Howie J also ruled on this same issue in R v Kathleen Sharp (2003) A Crim R 344; [2003] NSWSC 1117. His Honour said the following:

“[20] I hesitate to attempt to give any more meaning to the words of the section that arise from the definitions contained in it and the policy behind the legislation. But the word used is ‘questioning’ and it seems to me that it *at least implies that the police officer is attempting to elicit from the person a response that the officer foresaw might provide information relevant to the investigation of the commission of an offence or possible offence, or be to the person’*s prejudice in that regard. I would be prepared to find in an appropriate case that statements made by the officer to the suspect might amount to ‘questioning’ even though there may be no question asked. However, the mere fact that an admission occurs in response to a question or statement made by a police officer cannot retroactively convert the conservation into ‘official questioning’ if it did not fall within the definition at the time the admission was made.

[21] I wish to emphasise that, in my opinion, the court is required to make an objective assessment of the circumstances surrounding the making of the alleged admission in determining both whether it was made during official questioning and whether there is a reasonable excuse in failing to electronically record it. If my view of official questioning is correct, it would follow that, if the police officer did not foresee that a response might be given to the statement or question made to the suspect but ought to have done so, the conversation would amount to ‘official questioning’. To that extent the conduct of the police officer is subject to the court’s review so far as the admissibility of any admission allegedly made by the accused is concerned”.

(Emphasis added).

31. In Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 (“Kelly”), an issue arose as to whether a statement made by the appellant to police should not have been received by the trial judge given non-compliance with a requirement of video-taping as set out in s 8(2)(a) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).

32. While Kelly concerned Tasmanian legislation, it was of a similar nature to s 281 of the Criminal Procedure Act. But in saying that, the impugned statement in Kelly came to be made in quite different circumstances to the objected evidence in this application. Specifically, in Kelly the appellant made certain statements after a video recorded interview with police had only just ceased.

33. Despite the differences between Kelly and this case, it is nevertheless helpful to observe what the majority said at [52] as follows (per Gleeson CJ, Hayne and Heydon JJ):

“The expression ‘in the course of official questioning’ in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made ‘in the course of official questioning’…

In this matter ‘the course of ‘official questioning’ ended when Detective Sergeant Lopes ceased to ask questions and said at 9.17pm: ‘[W]e’ll conclude the interview’.”

34. McHugh J said, in a separate judgment, at [106]:

“Given the purpose of the section, there is no difficulty in construing the words ‘confession or an admission … made in the course of official questioning’ as referring to a confession or admission made in connection with police questioning. Nor do I think there is any difficulty in holding that the section applies to any confession or admission that is made in response to an intimation that the officer intends to question the suspect. The legislature is not likely to have intended the section’s preclusion to operation only on confessions or admissions allegedly made after a police officer has asked a question connected with the investigation, however trivial it might be. Of course, the confession or admission must be related to police questioning in connection with the investigation, but will be so related if it is made in response to an indication that the suspect is to be questioned…”.

35. In R v Reid [1999] NSWCCA 258 (“Reid”), Smart AJ said (with whom Spigelman CJ and James J agreed) at [65]-[68]:

“[65] Police officers attending a crime scene frequently ask those present what happened and the responses of those present often determine the future course of police investigations. An accused may make important admissions at the scene in such circumstances. The police officers may not have a pocket audio tape recorder with them. I refrain from making any general comment as to whether a judge should find a ‘reasonable excuse’ as much will depend upon the circumstances.

[66] The strongly preferable course is that, in cases of serious crime, interviews with questions asked and answered given at crime scenes should be recorded by an audio tape re[c]order, albeit that it is a pocket one and only one recording can be made. I am assuming, based on experience, that the police and the prosecution will seek to rely on any admissions.

[67] It is important that, if no adequate recording is made at the scene, the admissions alleged to have been made there and intended to be adduced in evidence are put to the accused in a fully recorded interview as early as possible for this acceptance or denial. Failure to do so would be critical unless, of course, the accused declined to participate in such an interview.

[68] If the investigating police officers do not have an audio tape recorded at the scene they should, apart from essential questions, directly affecting the ongoing investigation, conduct their interviews with an accused where tape recording equipment is available if evidence of the admissions is intended to be led.”

36. In the same case, Spigelman CJ said at [6]:

“Smart AJ makes a number of comments as to the application of s424A and what is desirable conduct on the part of police with respect to these matters. His Honour’s remarks are based on an assumption that the prosecution will seek to rely on any admissions. Police investigations may proceed in accordance with such inquiries as they may properly pursue. However, if it is sought to tender admissions made in the course of such investigations, then the precise and rigorous requirements of s424A must be satisfied.”

37. These remarks, which are of particular relevance to the roadside interaction between DSC Silvester and the accused, were adopted by Hamill J in R v Hawkins [2023] NSWSC 1370.

38. I accept that conversations at the scene of arrest and in the charge room are commonly not part of the course of official questioning. If police speak with suspects about the fact that they have been arrested and the basis of their arrest, such conversations are not usually designed to elicit information that police hope to use to further their investigations or for the purpose of gathering evidence to tender in the proceedings as part of the Crown’s case establishing the accused’s guilt.

39. Likewise, conversations that a custody manager has with prisoners in the cells and the charge area are almost always carried out as a function of the custody manager’s statutory duties under the Bail Act 2013 (NSW) and/or the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and are not for the purpose of investigating the offences for which the prisoners are being held at the police station.

Findings and rulings

40. Having regard to the evidence on the voir dire and the relevant legal principles, I now turn to consider whether the evidence is admissible.

Event #1: Conversation with DSC Silvester at the time of arrest

41. I find that the question in [18], “Do you know a Jason Palmer?”, and the answer in [19], “No, I don’t know a Jason Palmer”, have the characteristics that make it official questioning, even though that exchange only involved one question and answer. DSC Silvester was a lead investigator into Jason Palmer’s death. He knew of the accused and was tasked with searching for him, which he was successful in doing. While I accept that DSC Silvester did not necessarily expect to locate and arrest the accused on 17 June 2024, he did engage in official questioning after the accused suggested he and DSC Clark had arrested the wrong person. His remark, as outlined at [18] of his statement, marks a switch in the purpose of the conversation. The statement, “I am very confident that I have the correct person” was a comment in response to the accused’s suggestion that they might have arrested the wrong person. It was not a question, and it did not call for a further response.

42. But DSC Silvester went on to ask, “Do you know a Jason Palmer?”, and that invited a forensically significant response. DSC Silvester’s question may well have been instinctive, but I am satisfied that it was in the course of official questioning. As the Court found in Reid, police officers asking questions at the scene of a crime can engage in official questioning. Likewise, the same can occur with arrests. I find that here, DSC Silvester, who is an experienced police officer, asked the accused a question at the scene of the arrest in order to elicit a forensically significant answer from him.

43. This then raises an issue as to reasonable excuse. I find that the fact that it was not recorded immediately and contemporaneously is explicable essentially because DSC Silvester and DSC Clark did not expect to effect the arrest at that time. They did not equip themselves with body worn cameras, although it would be commonplace for at least some police involved in the arrest of a murder suspect to wear such a device. I accept that their shift that day started without any crystallised plan to arrest the accused, in which case many more police officers would have taken part in the arrest. But, advisable as it would have been for all police involved in the accused’s arrest to wear body worn cameras and to film their involvement in the arrest, on balance, the decision to arrest without normal planning and organisation was reasonable. That said, I accept that it was reasonable not to have recorded the relevant exchange on body worn camera.

44. I also note that there was capacity to ask the accused about what he had said at the scene by using a mobile telephone to record the fact, the question and the answer. But I accept that DSC Silvester was unexpectedly holding the accused in his custody with only DSC Clark with him while they waited for additional police to arrive and transport him to the Campbelltown Police Station. I also accept that it was not practicable for either of them to take out a mobile phone to record the fact of the exchange having occurred. Hence, there was a reasonable excuse as to why that opportunity was not taken at that time.

45. After the accused was arrested and taken to Campbelltown Police Station, there may have been opportunities to tape-record a confirmation of that conversation.

46. To reiterate what Smart AJ found in Reid:

“… if no adequate recording is made at the scene, the admissions alleged to have been made there and intended to be adduced in evidence are put to the accused in a fully recorded interview as early as possible for his acceptance or denial. Failure to do so would be critical unless, of course, the accused declined to participate in such an interview”.

47. But even at the police station there were problems with conducting an ERISP, largely because of the unavailability of an Indonesian interpreter, and then ultimately because the accused sought and obtained legal advice from a solicitor who advised him not to participate in an ERISP. He communicated that advice to the custody manager so that the conduct of an ERISP was not practicable whilst he was in the police station prior to being charged.

48. I note that DSC Silvester gave evidence that he contemplated conducting an ERISP or participating in an ERISP in which he would ask the accused about the conversation at the roadside on arrest, but that opportunity was denied to him, so there was then, in my opinion, a reasonable excuse not to have tape-recorded a confirmation of that conversation at the police station.

49. Accordingly, s 281 of the Criminal Procedure Act does not operate so as to render the question and answer inadmissible, but I have concerns about the application of s 137 to the question and answer in [18] and [19].

50. Mr Baziad had been investigated for this homicide, to his knowledge, in 2004, but the questions came unexpectedly upon arrest 20 years later and that confusion may have affected his response to being arrested.

51. Further, the question, “Do you know a Jason Palmer?” is in the present tense. The answer, “No, I don’t know Jason Palmer” is also in the present tense. By 2024 the deceased had been dead for 20 years. The accused may well have been suggesting that, at the time of his arrest, he did not know Jason Palmer, in the sense that he no longer knew Jason Palmer. Alternatively, he may have been confused about that issue because of the lapse of more than 20 years since he last had anything to do with Jason Palmer.

52. I accept the accused’s argument that the potential for giving overvalued weight to that piece of evidence is real and its probative value in the circumstances is not great.

53. I would exclude the remainder of [18] and the whole of [19] because of the operation of s 137.

Event #2: Conversation with Sergeant Bressington in the charge room

54. I have concluded that the contested part of this evidence is admissible. It is not caught by s 281 of the Criminal Procedure Act, and nor should it be excluded under ss 90 or 137 of the Evidence Act.

55. The reason it is not caught by s 281 of the Criminal Procedure Act is because Sergeant Bressington did not engage in official questioning and, therefore, s 281 is not enlivened in the first place.

56. When Mr Baziad was taken to the police station, there was considerable effort made to organise legal advice for him and the investigating officers clearly intended to interview him, if possible. Largely because of the unavailability of an Indonesian interpreter, the custody manager was firmly of the view that it was inappropriate to interview him by way of ERISP. When that became obvious and there was a decision made, it seems, by the investigators not to conduct an electronically recorded interview, steps were taken to charge the accused with the murder of Jason Palmer. He was provided with the CAN and facts sheet.

57. At about 10.20pm Sergeant Bressington spoke to the accused after giving him a copy of the CAN and facts sheet. When Sergeant Bressington said, “I need to tell you that the charge has been completed, and you are now officially bail refused. You will be attending Court in the morning”, that was not a question; it was part and parcel of what the custody manager needed to do to carry out his duties as a custody manager. It cannot be characterised as “questioning”, let alone “official questioning”.

58. When the accused asked, “Who is [Jason Palmer]?” and Sergeant Bressington said, “Your ex-wife’s husband” and the accused then said, “I can’t remember him”, this was a conversation ancillary to or incidental with the conversation that was taking place about the accused being bail refused and being charged. Sergeant Bressington was not investigating the murder; he was not questioning the accused; he was not exercising powers that are subject to s 281 of the Criminal Procedure Act. That exchange, up to and including the words, “I can’t remember him” in [30], was not official questioning. There was, therefore, no need to comply with s 281 and, in those circumstances, that evidence is admissible.

59. I do not see that anything that the custody manager said or did in or around the process of managing the prisoner in the police station was done improperly or unfairly. The conversation was not initiated by him with the purpose in mind of eliciting information that might be used in the investigation, and I do not see that anything happened in the circumstances that would render the conversation unfair to be used against the accused in this trial that is in breach of s 90 of the Evidence Act. Nor do I see that the conversation, in the way it was conducted by Sergeant Bressington, gives rise to the same type of unfair prejudice that was identified above in relation to the earlier conversation.

60. By 10.20pm the accused must have been well aware that he was in custody for a murder charge. By then, he had been the subject of an investigation over a period of months in 2004. He had the CAN and facts sheet. He had been told that he was being charged with and was under arrest for, the murder of Jason Palmer. I think it is much less likely that he was confused in the way he might have been confused when arrested earlier in the day, without notice, after some 20 years. He had time to consider his plight. I see little likelihood that the jury will overvalue the significance of this exchange in the way that they might have done in relation to the earlier exchange at the roadside upon arrest.

61. I am of the view that the probative value of the evidence is significant. It outweighs any danger of unfair prejudice. If the evidence is taken at its highest, it is capable of being seen as a clear and deliberate lie which suggests the accused understood the allegation but was frightened to admit anything that might implicate him in the murder of Jason Palmer.

62. There is no reason to exclude this evidence because of the factors that need to be weighed against each other under s 137 of the Evidence Act.

63. Nor does s 90 of the Evidence Act have any work to do. The accused essentially submitted that, given the significant passage of time between the charged event and his arrest, it is unfair to take advantage of his unguarded and spontaneous statements. However, by the time Sergeant Bressington told the accused he had been charged with the murder of Jason Palmer, the accused had been arrested for several hours, had obtained legal advice and received a copy of the CAN and facts sheet. He had a considerable period of time to process what had occurred. In my opinion, this submission cannot be accepted. The evidence is admissible. The exchange identified in [30], down to the words “I can’t remember him”, is admissible.

Event #3: Conversation with Sergeant Hamill and DSC Silvester in the dock

64. I have concluded that the part of the conversation sought to be admitted that DS Hamill had with the accused in the dock, is inadmissible pursuant to s 281 of the Criminal Procedure Act*,* or because of the operation of s 90.

65. After about 11.00pm, when DS Hamill and DSC Silvester returned to the charge area and engaged in the discussion which is outlined in [118] of DS Hamill’s statement, the accused had by that time, twice said that day that he did not know who Jason Palmer was. DS Hamill was aware of both those conversations. He was aware of what the accused had said to DSC Silvester, and he was aware of what the accused had said to Sergeant Bressington. By that time, there was no question that there was going to be an ERISP because, by then, the accused had already told the custody manager, Sergeant Bressington, that he had legal advice not to answer questions or to be interviewed and in any event, there was no question that there would be an interpreter available.

66. In that background, the officer-in-charge of the case, DS Hamill, and another detective who had been involved in the investigation for about six months, DSC Silvester, went to the charge area to discuss matters with the accused. I find it difficult to accept that DS Hamill did not already have grave suspicions about the accused’s denials of knowing Jason Palmer before he went into that charge area.

67. I do not accept DS Hamill’s explanation that he only realised that the accused was likely lying about this fact part the way through the conversation he had with him in the charge area. DS Hamill is an experienced homicide detective. He must have known the forensic significance of the accused’s previous claims to the two other officers. On balance, I find DS Hamill would have had at least a very strong suspicion about the accused’s claims not to know Jason Palmer as being false before he commenced his interaction with the accused.

68. The stated purpose for attending the dock area was to carry out the same purpose that had already been undertaken by Sergeant Bressington, whose job it actually was to explain to the accused the charge sheet and the fact that the accused was bail refused. I do not accept that stated purpose to be DS Hamill’s only purpose in attending the charge area to talk with the accused. I find that he was intending to draw out further the accused’s contended lack of memory of the deceased.

69. Any confusion, should DS Hamill have thought that the accused was confused about the issue, was not based on DS Hamill’s assessment of the accused’s understanding of English. DS Hamill gave evidence that he thought that the accused’s knowledge and facility with English was more than adequate. It is then no great surprise that the only real topic that was discussed was whether or not the accused actually knew who Jason Palmer was.

70. It is my view that DS Hamill questioned the accused in a way which can properly be described as having the characteristics of official questioning. The questions were highly relevant to the investigation, namely, whether or not the accused was deliberately attempting to distance himself from the object of the investigation.

71. Having obtained further denials that the accused knew Jason Palmer, DS Hamill had important evidence available to him, but by that time it was inappropriate to even attempt to record what was said because the accused had already indicated that he did not wish to be interviewed and it had been found not to be appropriate to interview him in the absence of an interpreter who could speak his primary language.

72. There was no good excuse as to why the conversation happened at all in those circumstances. Indeed, even if it had been thought to be appropriate to record that conversation, it would have given rise to issues of impropriety in light of the legal advice that the accused had received and acted upon and the unavailability of an interpreter. That conversation was in breach of s 281 of the Criminal Procedure Act and is excluded.

73. If I am wrong about the conversation breaching s 281, I find in any event that it was unfair for DS Hamill to initiate the conversation, and it would have been unfair to ask the accused the questions even on a tape recorder. It would certainly be unfair to admit evidence of the conversation which did take place. So, if I am wrong about s 281 being applicable, the exchange should not be admitted because of the operation of s 90.

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