R v Dalley

IN THE COURT OF CRIMINAL APPEAL 60839/00

SPIGELMAN CJ SIMPSON J BLANCH J

19 July 2002 REGINA v Rodney Joel DALLEY Judgment 1 SPIGELMAN CJ: I agree with the order proposed by Simpson J. Subject to one matter, I agree with her Honour's reasons. The point on which I differ concerns the interpretation of s138(3)(c) of the Evidence Act 1995, which identifies one of the matters that the Court is required to take into account in conducting the balancing exercise under s138(1) to be: "(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding." 2 Her Honour rejects the proposition that the more serious the charge, the more likely it is that the discretion will be exercised in favour of the admission of improperly or illegally obtained evidence. I respectfully disagree. 3 Section 138(3)(c) refers to both criminal and civil proceedings. The public interest in the case of civil matters will vary from one context to another. In the case of criminal proceedings, in my opinion, the public interest in admitting evidence varies directly with the gravity of the offence. The more serious the offence, the more likely it is that the public interest requires the admission of the evidence. 4 Simpson J refers to the Australian Law Reform Commission's Report, ALRC 26 at par 964, which states: "There is, for example, a greater public interest that a murderer be convicted and dealt with under the law than someone guilty of a victimless crime." 5 The authors of the Report refer, as authority for this proposition, to Bunning v Cross (1978) 141 CLR 54. In that case, when listing a range of factors that pointed in favour of the admission of evidence, (in the context of a driving under the influence charge), Stephen and Aickin JJ said at 80: "A fourth and important factor is the nature of the offence charged. While it is not one of the most serious crimes it is one with which Australian legislatures have been much concerned in recent years and the commission of which may place in jeopardy the lives of other users of the highway who quite innocently use it for their lawful purposes. Some examination of the comparative seriousness of the offence and of the unlawful conduct of the law enforcement authority is an element in the process required by Ireland's case ((1970) 126 CLR 321)." 6 Deane J, in a passage which supports an expansive approach to the exercise of the discretion to exclude at common law, indicates that the position at common law is that the more serious an offence, the less likely the discretion will be exercised in favour of exclusion: (Pollard v The Queen (1992) 176 CLR 177 at 203-204): "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' ( Bunning v. Cross (1978), 141 C.L.R., at p. 78) 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 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' (ibid). 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." 7 In my opinion, the public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in the case of crimes of greater gravity, both at common law and pursuant to s138(3)(c). (See also R v Burrell [2001] NSWSC 120 at [38] per Sully J.) 8 For the reasons given by Simpson J, this divergence of approach does not affect the outcome of this appeal. 9 SIMPSON J: On 11 May 2000, in the Supreme Court sitting in Griffith, the appellant was convicted after a jury trial on a charge of murder. He now appeals against that conviction. 10 A critical piece of evidence admitted against the appellant was the content of an interview, electronically recorded, which was conducted at the Griffith Police Station on the date of his arrest, 3 January 1999. In the course of that interview the appellant made significant admissions which incriminated him. It is the admission, over objection, of the record of the interview that is the focus of all grounds of appeal advanced on behalf of the appellant. For that reason it is possible to state the background facts succinctly.

11 The Crown case was that the appellant was one of four men (the other three being Richard McNellee, Frederick Brewer and Jeffrey Tucker) who had arranged to meet the victim, Glen Reay, on 2 January 1999, at an isolated place at some silos near Griffith. Ostensibly, the purpose of the meeting was to purchase cannabis from Mr Reay, but, in truth, the four intended to rob him. They were armed with a variety of weapons in order to effect this purpose. The enterprise got out of hand and one or more of the four fatally stabbed Mr Reay. The Crown alleged that all four men were present pursuant to a common purpose that extended to contemplating that grievous bodily harm would be caused to Mr Reay. 12 All four men were arrested at premises at 5 Train Street Kamarah at 9.40 a.m. on 3 January 1999. At that time no charges were laid. The appellant was conveyed to the Griffith Police Station where he was interviewed (commencing at 8.19 p.m. and concluding at 9.38 p.m.) and charged at the conclusion of the interview. It is worth noting here that the appellant was then aged sixteen years and eight months. 13 On 17 September 1999 Richard McNellee pleaded guilty to the charge of murder. A joint trial of the remaining three accused commenced on 26 April 2000 at Griffith. Shortly after the trial began the judge directed that Frederick Brewer be tried separately. (Brewer subsequently pleaded guilty.) The trial of the appellant and Jeffrey Tucker proceeded, resulting in verdicts of guilty on the murder charge against each on 11 May 2000. 14 The indictment against the appellant and Tucker contained a second charge, of assault with intent to rob. On 8 May the trial judge directed that a verdict of not guilty be returned on that count in favour of both accused. 15 The challenge to the admission of the record of the interview invoked the provisions of s138 of the Evidence Act 1995. That section is relevantly in the following terms: "(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2)… (3) Without limiting the matters that the Court may take into account under sub-s(1), it is to take into account: (a) the probative value of the evidence; (b) the importance of the evidence in the proceedings; (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceedings; (d) the gravity of the impropriety or contravention; (e) whether the impropriety or contravention was deliberate or reckless; (f) whether the impropriety or contravention was contrary to or inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights; (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 16 The argument put on behalf of the appellant at first instance, and in this Court, was that the admissions and incriminating statements made by him during the course of the interview constituted evidence that had been obtained improperly or in contravention of an Australian law or in consequence of such impropriety (or improprieties) or contravention(s). The first question which arises is, therefore, whether any such improprieties or contraventions were established. The second question is whether, if so, any of the evidence on which the Crown relied was obtained by or in consequence of such impropriety or contravention. The third (if the first and second are answered affirmatively) is whether, having regard to the matters identified in sub-s(3) as matters to be taken into account and any other relevant matters, the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way the particular evidence was obtained. Unless that question is also answered affirmatively, the evidence is not to be admitted. 17 The improprieties and/or contraventions of the law upon which the appellant's argument depended were all asserted to be non-compliances with specific provisions of Part 10A of the Crimes Act 1900. 18 Part 10A was introduced into the Act in 1997. At the time of the appellant's trial in 2000, its provisions do not appear to have been the subject of judicial consideration, at least at appellate level. Since the trial, this Court has had occasion to consider the provisions of Part 10A: R v Rondo [2001] NSW CCA 540; unreported, 24 December 2001, per Spigelman CJ, Simpson J and Smart AJ. 19 In an important respect Part 10A effected a radical departure from previously long-established common and statutory law. For the first time, in NSW, it permitted the arrest and detention of persons suspected of crime for the purpose, not of being charged, but to enable the investigation of their (suspected) involvement in the commission of offences: s354. It therefore contains important provisions intended to protect the rights of persons under such detention: s354(c), to which further reference will be made; and see Rondo, at [15]. Those protective provisions are, in my opinion, of significance. They are not to be treated as formalities, failure to observe which will necessarily or readily be overlooked by the courts administering criminal justice. 20 It is necessary to extract some of the provisions of Part 10A, and convenient to do so here.

Objects of Part 354 The objects of this Part are: (a) to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person's involvement in the commission of an offence, and (b) to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a justice, Magistrate or court without delay or within a specified period, and (c) to provide for the rights of a person so detained. Detention after arrest for purposes of investigation 356C (1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 356D. (2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested. … Investigation period 356D (1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period. (2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant. Determining reasonable time 356E (1) In determining what is a reasonable time for the purposes of section 356D(1), all the relevant circumstances of the particular case must be taken into account. [s356E(2) lists, non-exhaustively, circumstances which, where relevant, are to be taken into account in the determination of "a reasonable time" for the purposes of s356D(1). These, relevantly, include: (i) the age of the person under arrest (sub-para (a)); (ii) whether that person's presence is necessary for the investigation (sub-para (b)); (iii) the seriousness of the offence(s) under investigation (sub-para (c)); (iv) the number of other persons who need to be questioned or from whom statements need to be obtained (sub-para (h)); (v) the time during which the person is in the company of a police officer before and after arrest (sub-para (j)); and (vi) the time taken to complete any searches or other investigatory procedures that are reasonably necessary to the investigations. (sub-para (k))] s356E (3) In any criminal proceedings in which the reasonableness of any period of time that a person was detained under this Part is at issue, the burden lies on the prosecution to prove on the balance of probabilities that the period of time was reasonable.

[s356F(1) excludes certain periods from the calculation of the lapse of an investigation period. Relevantly, these include times during which an investigation has been "reasonably suspended or deferred": (i) any time reasonably required to convey the person under detention from the place of arrest to the nearest premises with facilities for conducting investigative procedures in which the detained person is to participate (sub-para (a)); (ii) any time reasonably spent waiting for facilities for recording interviews with the person under detention (sub-para (c)); (iii) any time required to allow a relative or guardian (inter alia) to arrive at the place of detention (sub-para (e)); (iv) any time required to allow the person under detention to consult with (inter alia) a relative or guardian (sub-para (f)); (v) any time reasonably required to prepare, make and dispose of any application for a detention warrant or search warrant relative to the investigation (sub-para (l)). By sub-s 356F(2) the onus is cast upon the prosecution to prove that the time ought not to be taken into account in the calculation of the investigation period.] Detention warrant to extend investigation period 356G (1) A police officer may, before the end of the investigation period, apply to an authorised justice for a warrant to extend the maximum investigation period beyond 4 hours. (2) The person to whom an application for a detention warrant relates, or the person's legal representative, may make representations to the authorised justice about the application. (3)… (4)… (5) An authorised justice must not issue a warrant to extend the maximum investigation period unless satisfied that: (a) the investigation is being conducted diligently and without delay, and (b) a further period of detention of the person to whom the application relates is reasonably necessary to complete the investigation, and (c) there is no reasonable alternative means of completing the investigation otherwise than by the continued detention of the person, and (d) circumstances exist in the matter that make it impracticable for the investigation to be completed within the 4-hour period. Procedure for applying for and issuing detention warrant 356H (1) An application for a detention warrant may be made by the applicant in person or by telephone. (2) An application for a detention warrant made in person must be made in writing in the form prescribed by the regulations. The authorised justice must not issue the detention warrant unless the information given by the applicant in or in connection with the application is verified before the authorised justice on oath or affirmation or by affidavit. An authorised justice may administer an oath or affirmation or take an affidavit for the purposes of an application of a detention warrant. (3) An authorised justice must not issue a detention warrant on an application made by telephone unless satisfied that the warrant is required urgently and that it is not practicable for the application to be made in person. An application for a detention warrant made by telephone must be made by facsimile (instead of orally) if the facilities to do so are readily available for that purpose. (4)… (5)… (6)… (7)… (8)… (9) In the case of an application for a detention warrant made by telephone, the applicant for the warrant must, within one day after the day on which the warrant is issued, give or transmit to the authorised justice concerned an affidavit setting out the information on which the application was based that was given to the authorised justice when the application was made. (10) In any criminal proceedings, the burden lies on the prosecution to prove on the balance of probabilities that the warrant was issued. (11)… Information in application for detention warrant 356I (1) An authorised justice must not issue a detention warrant unless the application for the warrant includes the following information: (a) the nature of any offence under investigation, (b) the general nature of the evidence on which the person to whom the application relates was arrested, (c) what investigation has taken place and what further investigation is proposed, (d) the reasons for believing that the continued detention of the person is reasonably necessary to complete the investigation, (e) the extent to which the person is co-operating in the investigation, (f) if a previous application for the same, or substantially the same, warrant was refused, details of the previous application and of the refusal and any additional information required by section 356J, (g) any other information required by the regulations. (2) The applicant must provide (either orally or in writing) such further information as the authorised justice requires concerning the grounds on which the detention warrant is being sought. (3)… Provisions relating to detention warrants 356L (1) An authorised justice who issues a detention warrant is to cause a record to be made of all relevant particulars of the grounds the authorised justice has relied on to justify the issue of the warrant. (2) … (3) … (4) … (5) A detention warrant is not invalidated by any defect other than a defect that affects the substance of the warrant in a material particular.

Custody manager to caution, and give summary of Part to, detained person 356M (1) As soon as practicable after a person who is detained under this Part comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing: (a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and (b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised justice and that the person, or the person's legal representative, may make representations to the authorised justice about the application (2)… (3)… 21 By s356A(1), regulations may be made providing for modification of the application of Part 10A to, inter alia, persons under the age of 18 years. Such regulations have in fact been made. Relevantly, clause 5 of the Crimes (Detention after Arrest) Regulation 1998 ("the Detention after Arrest Regulation") provides that certain categories of persons, including "children" (which, in turn, includes persons of the age of the appellant at the time of his detention) are "vulnerable persons" for the purposes of the Regulation. Clause 24 of the Detention after Arrest Regulation provides that, in relation to vulnerable persons, any time that is required to allow arrangements to be made for a "support person" (defined in cl 4, and including a parent of the person detained) to attend at the place of detention, and any time required to allow the support person to arrive at the place of detention, is not to be taken into account in the calculation of how much of the investigation period has elapsed. That is, where the person detained is (as was, by reason of his age, the appellant) a "vulnerable person", s356F is expanded to include any time that is required to allow arrangements to be made for a support person to attend the place of detention, and any time required to allow that person to arrive at the place of detention. 22 A short, but not inaccurate, summary of the relevant provisions is as follows. 23 By s356C a police officer who has lawfully arrested a person under s352 of the Crimes Act (as to which see below) may detain that person for the purpose of investigating his/her involvement in the commission of an offence (s356C). The police officer may detain such a person only for a period (called "the investigation period") that is reasonable having regard to all the circumstances, and, in any event, for a maximum period of four hours (s356D). That maximum period may be extended (by up to eight hours), but only on the authority of a warrant ("a detention warrant") issued by an authorised justice under s356G. Application for such a warrant must be made before the expiration of the investigation period. 24 Because the investigation period is not rigidly defined, but is such period as is reasonable in all the circumstances (although with a statutory maximum of four hours), a judgment has to be made by a police officer wishing to apply to an authorised justice for a detention warrant as to what is, in all the circumstances, a reasonable time. S356E catalogues (non-exhaustively) some circumstances relevant to that judgment. 25 To complicate the judgment further, the effect of s356F is that time for the calculation of "the investigation period" ceases to run (that is, the investigation period is suspended or deferred) in order to allow certain things to happen, such as conveying the detained person to "the nearest premises where facilities are available for conducting investigative procedures"; or to allow communication with third parties; or to allow the detained person to receive medical attention. 26 In s356H detailed provisions are made governing the procedure for the application for the issue of a detention warrant. Relevantly, for present purposes, an application may be made by telephone (including by facsimile); where that course is adopted, and the warrant is issued, the applicant police officer is obliged, within one day after the issue of the warrant, to provide to the issuing authorised justice an affidavit setting out in writing the information on which the application was based that was given to the authorised justice by telephone (sub-s(9)). Where facilities are "readily available" an application for a detention warrant made by telephone must be made by facsimile (sub-s(3)). 27 By s356K it is a criminal offence to give false or misleading information in connection with an application for a detention warrant. 28 S356M casts on a police officer identified as "the custody manager" (meaning a police officer having responsibility for the care, control and safety of a person detained in a police station) an obligation to give, both orally and in writing, certain information to any person detained under the provisions of Part 10A. The custody manager is to caution the person that he/she does not have to do or say anything, but that anything he/she says or does may be used in evidence; and to give him/her a summary of the provisions of Part 10A, including reference to the fact that the maximum investigation period may be extended beyond four hours by application to an authorised justice, and that the detained person, or his/her legal representative, is entitled to make representations to the authorised justice about the application. 29 The authority to arrest the appellant was derived from s352 of the Crimes Act. S352 authorises the arrest without warrant of any person in the act of committing, or immediately after having committed, an offence punishable under any NSW statute, or any person who has committed a serious indictable offence for which he/she has not been tried. However, s352 also requires that any person so arrested be taken before an authorised justice to be dealt with according to law. The section does not authorise arrest for any purpose other than taking the person arrested before an authorised justice to be dealt with according to law, and, in particular, does not authorise arrest for the purpose of questioning: Bales v Parmeter (1935) 35 SR (NSW) 182; or to facilitate an investigation: Williams v R (1986) 161 CLR 278. Any lapse of time in taking the arrested person before a justice must not be excessive in the circumstance: Michaels v R (1995) 184 CLR 117. 30 It was common ground that the detention of the appellant from the time of his arrest (9.40 a.m.) until he was charged at the conclusion of the record of interview at 9.38 p.m. was not authorised by s352. If that detention was lawful, it had to be made lawful by reason of the application of the provisions of Part 10A. 31 It is now necessary to outline the events that occurred following the appellant's arrest. 32 Police were armed with a search warrant for the Train Street premises. They proceeded to execute the search warrant, a prolonged exercise that continued until at least 12.22 p.m. 33 The appellant remained at those premises, under arrest, until 1.10 p.m. when a Detective Stoltenberg began to convey him to Griffith Police Station, a journey which took 40 minutes. They arrived at Griffith Police Station at 1.50 p.m. The appellant was put in the charge of the custody manager, Senior Constable Demery. 34 At 2.00 p.m. Detective Stoltenberg telephoned the appellant's father, Brian Dalley, to advise him of his son's detention and ask him to attend the police station. Both of the appellant's parents arrived at the police station at 3.16 p.m. At around 3.00 p.m. Detective Stoltenberg commenced preparing an application for a warrant to extend the maximum investigation period (s356G). At this time the appellant's parents had not arrived at the police station, and no support person was available to assist him. 35 At 3.40 p.m. the authorised justice received the application for the issue of a warrant extending the maximum investigation period. The application was made by facsimile. The warrant was issued. It extended the maximum investigation period for four hours, stating the extension to be from 3.30 p.m. 36 In the meantime police began interviewing the other three men. That exercise began with an interview of McNellee, commencing at 2.25 p.m. and concluding at 3.16 p.m. Following that Brewer (commencing at 4.44 p.m. and concluding at 6.42 p.m.) and Tucker (commencing at 7.00 p.m. and concluding at 7.53 p.m.) were interviewed. Each interview was video recorded in order to fulfil the evidentiary requirements of s424A of the Crimes Act (now repealed and replaced by s108 of the Criminal Procedure Act 1986). 37 Griffith Police Station was equipped with only one room and one set of facilities for the recording of interviews with suspected persons. These were located in the Detectives' office which was housed in a separate building a short distance from the Police Station. 38 Other such facilities in the general district were available at Leeton (approximately 55 kilometres away) and Wagga Wagga (almost 200 kilometres away). 39 From the time the appellant's parents arrived at 3.16 p.m. he remained in the company of either or both of them. He was provided with refreshment at appropriate times. 40 By the time his interview began he had been in continuous police custody for almost eleven hours. * * *

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).

S356H(9) 65 S356H makes extensive and detailed provision for the extension of the investigation period. By sub-s(1), an application may be made, either in person or by telephone. By sub-s(2), an application made in person must be made in writing in the prescribed form. It must be verified on oath or affirmation or by affidavit. By sub-s(3), an application made by telephone must be made, where the facilities to do so are readily available, by facsimile. An authorised justice is not to issue a detention warrant on a telephone application unless satisfied that it is required urgently and it is not practicable for the application to be made in person. By sub-s(9), where an application for a detention warrant is made by telephone, the applicant must, within one day after the day on which the warrant is issued, provide to the authorised justice an affidavit setting out the information on which the application was based that was given to the authorised justice when the application was made. 66 Her Honour found as a fact that the affidavit required by sub-s(9) was not provided to the authorised justice. 67 In my opinion, the provisions of sub-s(9) are mandatory. The failure to verify the application was a clear contravention of s356H(9). It is plain that, by s356H, the legislature sought to effect a delicate balancing exercise between the recognised need for urgency in police investigation of crime and protection of individuals subjected to detention. Sub-s(9) is, in my view, designed to ensure that a proper written record is made within a reasonable time after a detention warrant is issued by telephone such that retrospective review of the procedures is possible. The availability of retrospective review is, in truth, something of an insurance policy against cavalier or lackadaisical use of what are significantly intrusive powers. 68 However, a question that arises concerns the impact of failure to comply with s356H(9). By s356L(5), a detention warrant is not invalidated by any defect other than a defect that effects the substance of the warrant in a material particular. 69 In Rondo non-compliance with sub-s(9) was also established. Spigelman CJ wrote: "17 Whether or not an error leads to invalidity of the warrant will depend on all the circumstances of the case, specifically the nature and significance of any inaccuracy or inadequacy in the contents of the application . It is not every error which will lead to the conclusion that there is no valid warrant ..." (emphasis added). 70 However, Smart AJ wrote: "114 … Verification of the information on which the application is made is required. The effect of the lack of the required verification is to render the detention warrant unlawful." 71 Notwithstanding my general agreement with the reasons given by Smart AJ in Rondo, on further reflection, I would reconsider this proposition, particularly in the light of s356L(5). The defect in the post-issue verification of the warrant is not something that affects the substance of the warrant in a material particular. That is not to say that contravention of s356H(9) is immaterial, or should be condoned. Its purpose is, as I have observed above, an important one. 72 Further, whether the failure to comply with sub-s(9) affects the validity of the warrant or not, it nevertheless remains a contravention of the Act. 73 Her Honour expressly rejected a submission made to her that the failure to comply with s356H(9) rendered the detention warrant invalid. 74 Other contraventions or non-compliances alleged involved s356M.

s356M(1)(a) and (b) 75 S356M(1) provides: "(1) As soon as practicable after a person who is detained under this Part comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing: (a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and (b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised justice and that the person, or the person's legal representative, may make representations to the authorised justice about the application." 76 It was argued before her Honour that the caution required by s356M(1)(a) had not been administered. Her Honour held to the contrary. This is a finding of fact which cannot be and is not here challenged. 77 However, her Honour held that the appellant had not been given the summary referred to in sub-para (b). It appears that this conclusion applies both to the requirement that the summary be given orally and to the requirement that it be given in writing. 78 It was also argued before her Honour that the appellant had, in further contravention of sub-para (b), not been advised that he or his legal representative was entitled to make representations to the authorised justice about the application for a detention warrant extending what would have otherwise have been the maximum investigation period. However, her Honour held that this had been done. That finding of fact also is not here open to challenge. 79 In summary, therefore, her Honour held that there were two contraventions of the provisions of Part 10A. These were the failure of Detective Stoltenberg to provide to the authorised justice who issued the detention warrant an affidavit setting out the information on which the application had been based that was given to the authorised justice when the application was made, as required by s356H(9); and the failure to comply with s356M(1)(b) to give the appellant a written and oral summary of the provisions of Part 10A, including reference to the fact that the maximum investigation period may be extended beyond four hours by application to an authorised justice. 80 After reaching these factual conclusions, her Honour turned to s138 of the Evidence Act. Having taken into account all of the matters specified in sub-s(3), she admitted the record of the interview into evidence. 81 Her Honour described the probative value of the evidence as high and its importance as "critical". She observed succinctly (having regard to s138(3)(c)) that the appellant was charged with murder. She was satisfied that the contraventions of Part 10A were not deliberate or reckless but attributable to the inexperience of the police officers in the application of the provisions of Part 10A (which, as I have observed, are relatively new) and the absence of any training of Constable Demery in the role of custody manager. She therefore concluded that a proper balance of the competing considerations favoured the admission of the record of the interview into evidence. * * *

the challenge in this Court to the decision to admit the evidence 82 On behalf of the appellant it was submitted in this Court that her Honour: "(i) mistook the facts; (ii) acted on wrong principles; (iii) allowed extraneous or irrelevant matters to affect her; (iv) failed to take into account material considerations". 83 Counsel for the appellant relied heavily upon the decision of this Court in Rondo. He maintained the argument that the failure to comply with s356H(9) rendered the detention warrant invalid. I have already expressed my view on this. The submission should be rejected. 84 Counsel for the appellant pointed out that, in her consideration of the s138 matters, the trial judge did not include reference to the established failure to comply with s356H(9). This is correct. Her Honour said: "63 As I have noted, I consider the failure to comply with the obligations cast by s356M to be a matter of some real moment or gravity." 85 In this part of her reasons, her Honour made no reference to the non-compliance with s356H(9). 86 In my opinion non-compliance with s356H(9) neither renders a warrant invalid (for the reasons I have given); more importantly for present purposes, nor does it attract the provisions of s138 of the Evidence Act. Recourse to the precise words of s138 provides a reminder that that section is concerned with evidence that was obtained improperly or in contravention of an Australian law or as a consequence of such impropriety or contravention. That there was a contravention of s356H(9) is established. What is not established is that any evidence was obtained as a result of, or in consequence of, that contravention. The contravention did not occur until one day after the day on which the detention warrant was issued, the time at which sub-s(9) requires the verification of the application to the authorised justice. It cannot be the case that the appellant's admissions and incriminating statements were obtained in consequence of a contravention which did not occur until twenty-four hours later. Accordingly, whether or not contravention of sub-s(9) renders the warrant invalid for other purposes, it has no relationship to s138 of the Evidence Act. 87 Counsel also submitted that her Honour allowed extraneous or irrelevant matters to guide or affect her in performing the assessment required by s138(1) of the Evidence Act. 88 In performing this evaluation her Honour specifically directed herself to each of the matters set out in sub-s(3). Those which, it is now submitted on behalf of the appellant, were extraneous or irrelevant were made in the context of her consideration of whether or not the non-compliance with s356H(9) operated retrospectively to invalidate the warrant. In undertaking that task her Honour wrote: "The failure to comply with the requirements of s356H(9) may have consequences for the applicant but I do not see that it operates to render the warrant invalid. I note that an applicant who supplies false or misleading information in support of an application for a detention warrant is guilty of an offence … I should note that I do not find that the applicant did supply any false or misleading information in support of the warrant." 89 On behalf of the appellant it was submitted that the absence of false or misleading information and the possibility of "consequences" for the applicant in relation to the non-compliance were both extraneous and irrelevant and should not have been allowed to play any part in the decision. 90 In referring to false or misleading information her Honour was, in passing, noting the provisions of s356K which creates an offence of conduct of that kind. In my view, what her Honour was clearly doing was noting the provisions of the section, and having done so, specifically disclaiming any suggestion that Detective Stoltenberg was guilty of such conduct. This did not, in my view, play any part in her assessment of whether the warrant was invalid or not; even if it did, her assessment was, in my judgment, correct; and it was, plainly, relevant to a consideration of s138(3)(e); similarly, the mention of the possibility of consequences for the applicant for failing to comply with the statutory requirements did not play any part in the decision but was no more than a passing observation. 91 A further submission was: " … that her Honour 'mistook the facts' by proceeding on the basis that the warrant and the continued detention of the appellant was lawful."

(This submission was also made in the context of the contravention of sub-s(9).) 92 I do not see this as putting any argument different to those I have already rejected. It must meet the same fate. In relation to the application of s138 of the Evidence Act, the non-compliance with s356M(1)(b) is in a quite different category to the non-compliance with s356H(9). Indeed, before her Honour, the Crown prosecutor conceded that the failure to comply with that sub-paragraph had the consequence that the record of the interview was obtained improperly within the meaning of s138. (Her Honour may equally have found it to have been a contravention of an Australian law.) She therefore proceeded on the basis that s138 impropriety had been established. That meant that her Honour had to turn her mind to the question of whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained pursuant to such an impropriety. 93 Because of the importance of the protective provisions of Part 10A it should not lightly be concluded that contraventions of those provisions will not result in the exclusion of evidence obtained as a result of the contravention. S138 operates, among other things, as a disincentive to investigating police to disregard statutory provisions regarding and protecting the rights of citizens suspected of crime. It is important that the courts play their part in upholding the protections provided by the legislature. However, a distinction is to be drawn between wilful or reckless disobedience of such provisions, and contraventions which come about, as did these, by reason of inexperience with new statutory provisions, and lack of training in their implementation. Her Honour made it plain that she accepted the police officers as truthful witnesses and that they were neither reckless nor dishonest in their approach to this investigation. That is, in my opinion, a significant matter affecting the s138 judgment. 94 This seems to be in accord with the view taken by Wood CJ at CL in R v Phung and Huynh [2001] NSWSC 115, unreported, 26 February 2001. There his Honour wrote: "34 It may be accepted that the purpose of the legislative regime [that is the legislative regime laid down by Part 10A], that now applies to the interview of children, and particularly those in custody following arrest, is to protect them from any disadvantage inherent in their age, as well as to protect them from any form of police impropriety. As to the former, what is required is compliance with the procedure laid down so as to prevent the young or vulnerable accused from being overawed by the occasion of being interviewed, at a police station, by detectives who are likely to be considerably older and more experienced than they are.

38 It is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations, as well as the protection of individual rights, of some significance, which attach in particular to children. Those rights, obviously, are of great importance when a child is facing a charge as serious as murder or armed robbery. 39 The provisions need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP, or the product of an investigative procedure, which is undertaken in circumstances where there has not been proper compliance with the law." 95 During the course of argument a question arose as to whether her Honour appropriately took into account, pursuant to s138(3)(c) the fact that the charge the appellant faced was a charge of murder, the most serious in our criminal calendar. As I have noted, her Honour simply observed that the charge was one of murder. There are two opposing ways in which the gravity of the charge may be taken into account and may be relevant. It is, obviously, in the interests of the community that persons guilty of more serious offences be dealt with according to law. As a general proposition, the more serious the charge, the greater the community interest in the conviction and punishment of the guilty. On the other hand, it may equally be said that the more serious the charge faced, the more rigorous should be the insistence on adherence to statutory provisions enacted to protect the rights of individuals. S138 affords no guidance as to whether the requirement that "the nature of the relevant offence" be taken into account in the balancing exercise demanded by s138(1) points towards greater leniency or greater strictness in the enforcement of legal requirements. In an Australian Law Reform Commission Report ("ALRC 26") which eventually led to the enactment of the Evidence Act, the following appears: "…there is, for example, a greater public interest that a murderer be convicted and dealt with under the law than someone guilty of a victimless crime." 96 This would suggest that, at least in the view of those who proposed the legislation, taking into account the nature of the relevant offence would warrant a more lenient approach to impropriety or contravention of the law where the offence charged is a serious one. But that view did not find its way explicitly into the legislation and I do not think it can be said to have done so implicitly. 97 In my opinion it would be wrong to accept as a general proposition that, because the offence charged is a serious one, breaches of the law will be more readily condoned. In my judgment there may be cases in which the fact that the charge is a serious one will result in a more rigorous insistence on compliance with statutory provisions concerning the obtaining of evidence. That a person is under suspicion for a serious offence does not confer a licence to contravene laws designed to ensure fairness. 98 Her Honour did not state in which way she took the nature of the offence to affect the s138 exercise, but it seems to me that she approached it on the basis envisaged by the Law Reform Commission. In this case I would not find that to be an error. In this regard the relative innocence with which the statutory contraventions were brought about is important. Further, no evidence or argument was ever put either to the trial judge or to this Court that the appellant's admissions and incriminating statements were in fact influenced by the failure of the police officers to advise him of the s356M(1)(b) matters. His parents had been present with him for some time by the time his interview commenced. 99 I would, therefore, not find any error in the approach taken to the s138 balancing exercise by her Honour in relation to the non-compliances that she found established. 100 There is one final matter. The detention warrant that was issued by the authorised justice purported to extend the maximum detention period by four hours, commencing at 3.30 p.m. S356G(3) permits such a warrant to extend the maximum investigation period by up to eight hours, but this was not what the authorised justice did. The detention of the appellant authorised by the detention warrant (so far as it was authorised) came to an end at 7.30 p.m. unless that period was extended by the operation of s356F. Once again, the appellant's argument depends upon establishing error in the approach taken by her Honour. As noted above, her Honour, having considered all relevant matters, concluded that the decision to take all four men to Griffith was reasonable, notwithstanding the limitation on recording facilities there and the fact that that decision would necessarily create some delays in completing the interviews. I see no error in the approach taken by her Honour. The conclusion was one that was open to her, and was arrived at after taking into account the arguments and factual matters that had been put to her. 101 I would dismiss the appeal. 102 BLANCH AJ: I agree with the orders proposed by Justice Simpson. I also agree with her Honour's reasons, subject only to the fact that I agree with the remarks of the Chief Justice that the public interest in conviction and punishment can be expected to have greater weight in crimes of greater gravity for the reasons given by the Chief Justice. **********

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