the challenges to the admission of the record of interview made at trial
41 Before the trial judge it was argued that a number of contraventions of the regime provided for by Part 10A were revealed in the evidence. The first matter dealt with concerned whether the application for the detention warrant was made, as is required by the clear terminology of s356G(1), before the end of the investigation period.
42 As provided by s356D(1), the investigation period is not rigidly circumscribed, but is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances. (However, it must not exceed the maximum investigation period.)
43 The maximum investigation period is four hours or such longer period as it may be extended to by a detention warrant (under s356G). It may here be observed that no warrant is required for the detention of a person for the length of "the investigation period", that period including any periods during which, pursuant to s356F, time effectively ceases to run. A warrant (a detention warrant under s356G) is only required where an application is made to extend the investigation period.
44 Here, it was common ground that the investigation period commenced with the appellant's arrest at 9.40 a.m. Unless there were times to be excluded from the calculation of the maximum investigation period pursuant to s356F(1) and/or the Detention after Arrest Regulation, therefore, the maximum investigation period expired at 1.40 p.m. the same day. The application for an extension of that time was made at 3.40 p.m., well outside that period. The authorised justice issued a detention warrant, stating that the maximum investigation period was extended for four hours from 3.30 p.m. The trial judge was satisfied that the application was made before the end of the investigation period and therefore complied with s356G(1). In reaching this conclusion it was necessary, obviously, that times amounting to at least two hours be excluded from the calculation of how much of the investigation period had elapsed.
45 Her Honour held that, for the purpose of calculating how much of the investigation period had elapsed, a period of two hours and six minutes was to be excluded from the period during which the appellant had in fact been detained. This, she stated, took into account the travelling time from Kamarah to Griffith (s356F(1)(a)) and the period between 2.00 p.m. when the appellant's parents were contacted, and their arrival at the police station at 3.16 p.m. (cl 24 of the Detention after Arrest Regulation).
46 It is to be noted that neither the travelling time nor the time spent awaiting the arrival of the appellant's parents necessarily stop the clock ticking on the investigation period. That occurs only where, and to the extent that those times are times during which any investigative procedure in which the detained person is to participate "is reasonably suspended or deferred"; in relation to the travelling time, the pausing of the calculation of time is limited to take into account time "that is reasonably required to convey the person" from the place of arrest to the (in this case) Griffith Police Station. Here, no argument was advanced that the 40 minutes travelling time was not "reasonably required"; nor that, in respect of that 40 minutes, the investigative procedure was not reasonably suspended or deferred.
47 That, however, was not the case in relation to the period of one hour and sixteen minutes spent waiting for the arrival of the appellant's parents. It may be noted in passing that, while s356F still requires that the investigation period be "reasonably suspended or deferred", cl 24 of the Detention after Arrest Regulation does not contain the added requirement that the times envisaged (to allow arrangements to be made for the attendance of a supporting person, and to allow that person to arrive at the place of detention) be reasonable. The clause is (deliberately, in my view) silent as to that requirement, since the time may be well outside the control of the police officers. The times to be allowed are the actual times involved, although the reasonableness requirement in relation to the suspension or deferral of the investigation period remains untouched.
48 On behalf of the appellant it was put that the investigation period was not "reasonably suspended or deferred" for the period spent awaiting the arrival of the appellant's parents because their presence had not been sought at a sufficiently early stage. The appellant had been under arrest for four hours and twenty minutes before any contact was made, or attempted to be made, with his parents. Of this the trial judge said:
"[27] I see the force of [the] submission that it would have been desirable for the police to have contacted Mr or Mrs Dalley and advised them of their son's detention during the course of the morning while they were present at the premises in Kamarah. However, I accept that having regard to the exigencies of this investigation it was reasonable that they did not do so. The obligation to contact Mr or Mrs Dalley arose when the accused was detained in custody at the Griffith Police Station."
49 Her Honour had previously referred to "the exigencies" of the investigation. These included the time when the body of Mr Reay was located (10.45 p.m. on 2 January); information provided by a witness to events leading up to the fatal assault; the issue of a search warrant for the premises at Train Street; the location of the four men eventually charged at those premises; the serious nature of the investigation; the need for the four suspects to be separated because each was under suspicion; the desirability, in general terms, for suspects to remain present during the execution of a search warrant at premises with which they had an association; and the unavoidable length of time during which the search of the premises was undertaken.
50 Although, in this era of modern communications, it may be that not every judicial officer would conclude that it was reasonable for the investigating police to defer contacting the appellant's parents until their return to the police station at Griffith, the assessment of the reasonableness of that conduct was quintessentially one for the trial judge. Unless that assessment can be challenged on any of the grounds identified in House v R (1936) 55 CLR 499 at 505, that assessment remains one for the trial judge and not for this Court. In my view, that assessment was open to her Honour. For myself, I would not interfere with that judgment.
51 The consequence of the trial judge's assessment was that she declared herself satisfied that the application for the issue of the extension warrant was made before the end of the investigation period as required by s356G.
52 However, her Honour said:
"Excluded from this period was two hours and six minutes being the time taken to convey the accused to the Griffith Police Station together with the one hour and sixteen minutes spent awaiting the arrival of his parents. Thus the investigation period had elapsed by three hours and fifty four minutes prior to the grant of the extension." (emphasis added)
53 It seems that the time of two hours and six minutes to which her Honour referred may have been derived from a document recording certain times that was jointly provided to her by counsel for the parties. However the calculation was reached, I am satisfied that it represents a mathematical error. The time properly to be excluded was the forty minutes' travelling time, and the seventy-six minutes awaiting the arrival of the appellant's parents. That is a period of one hour and fifty-six minutes, not two hours six minutes.
54 Her Honour, having accepted what was apparently put before her in relation to the calculation of time, concluded that the application for the detention warrant had been made, as required by s365G(1), "before the end of the investigation period".
55 I am satisfied that that was erroneous. I have emphasised the words italicised in the extract from her Honour's judgment in paragraph 44 above in order to focus attention upon the precise finding of fact that was made. The time which s356F(1)(a) excludes from the calculation of how much of an investigation period has elapsed is:
"(a) any time that is reasonably required to convey the person from the place where the person is arrested to the nearest premises where facilities are available for conducting investigative procedures in which the person is to participate ." (emphasis added)
56 Forty minutes was the actual time taken to convey the appellant from the place of arrest to the Griffith Police Station. The investigative procedure in which he was to participate was an interview which, to be admissible in evidence, was required to be electronically recorded (Crimes Act s424A). The facility for conducting that investigative procedure was not at the Griffith Police Station, but at the Detectives' office, a short distance away.
57 It seems reasonably clear that her Honour, in referring to the period of two hours and six minutes, was drawing that from the document which had been placed before her by the agreement of counsel for the Crown and counsel for the appellant. It may be possible to infer that counsel accepted that an additional ten minutes would have been required to enable the appellant to be taken to the Detectives' office. However, this was not what her Honour said and I would have some doubt about drawing such an inference in these circumstances. In any event, as the appellant's interview did not commence until some hours later (8.19 p.m.) there seems no reason to take into account the time required to convey the appellant from the Police Station to the Detectives' Office in this calculation. The document that was before her Honour was not in evidence, and not before this Court.
58 Although the period is only ten minutes, it is a crucial ten minutes. If the excluded time was properly calculated as two hours and six minutes, then, as her Honour found, the application for the detention warrant was made before the end of the investigation period. If, however, that ten minutes is not properly to be excluded for the purpose of calculating how much of the investigation period had elapsed, the application was made four minutes after the end of the investigation period. This is of fundamental relevance to the validity of the detention warrant.
59 In my view, the following passage from her Honour's judgment determines this issue. She wrote:
"20 … It is appropriate that I deal firstly with the question of whether the application for the issue of the extension warrant was made within the investigation period. On the times as agreed between the Crown prosecutor and [counsel for the appellant] it would seem that it was. It was agreed that there was a total of five hours and fifty minutes prior to the grant of the extension period during which the accused was detained in custody. Excluded from this period was two hours and six minutes being the time taken to convey the accused to the Griffith Police Station together with the one hour and sixteen minutes spent awaiting the arrival of his parents. Thus the investigation period had elapsed by three hours and fifty-four minutes prior to the grant of the extension."
60 In my opinion it is inappropriate to go behind a concession properly made on behalf of the appellant at a trial at which he was plainly competently represented. Notwithstanding what appears to me to have been an error, I would not interfere with her Honour's finding that the application for the detention warrant was made before the end of the investigation period.
61 It was also argued before her Honour that even if the application for the detention warrant had been made within time, nevertheless the interview with the appellant took place well outside the additional four hours granted by the authorised justice. Without s356F exclusions, that period would have expired at 7.30 p.m. The appellant's interview did not commence until 8.19 p.m., and concluded at 9.38 p.m. The explanation for what the Crown claimed to be a reasonable suspension or deferral of the investigation period lies in the unavailability of recording facilities at the Griffith Police Station. The police officers elected to interview the three co-accused before interviewing the appellant. Her Honour rejected a submission that it was not reasonable for the police so to elect, and therefore the investigation period, as extended, was not reasonably suspended or deferred by the operation of s356F(1)(c). She held that it was reasonable for the police officers to take all of the accused to the Griffith Police Station, having regard particularly to what she called promotion of the efficient coordination of the investigation. She also took into account what might be called practical considerations, permitting the detectives to interview suspects in the sequence they (the detectives) considered most conducive to securing information from an earlier (cooperative) interviewee which may be used in the interview of a later (less cooperative) interviewee.
62 The time taken to interview the first suspect, McNellee, may be put to one side, since his interview concluded at 3.16 p.m., before the detention warrant came into effect. However, in considering what time could reasonably be allowed to be excluded from the four hours' extension by reason of the need to wait for facilities for complying with s108 of the Criminal Procedure Act, her Honour took into account the actual time occupied in the interviews of Brewer and Tucker. This was a period of two hours and fifty-one minutes. That did not take into account a period of eighteen minutes between those two interviews.
63 The exclusions allowed by her Honour meant that the four hour extension granted by the justice did not expire until 10.21 p.m., after the conclusion of the appellant's interview. Again, I would not interfere with that judgment.
64 Before her Honour it was also argued that there were other instances of non-compliance with the provisions of Part 10A. One of these concerned s356H(9).