R v DLW

THE ENCOUNTER WITH THE ACCUSED ON 6 JUNE 2017

1. On 6 June 2017, Officer Hayward and Detective Rawling attended the Rockhampton watch house. The accused was present. The officers spoke with various corrective services people. The officers understood that the accused had been arrested, but not charged. They then introduced themselves to the accused.
2. Officer Hayward did not recall what was said word for word, but the substance of her evidence was that she recalled asking the accused if he understood the warrant, and explained that it was in relation to the investigation into the commission or possible commission by him of offences in relation to the complainant (whose name was identified), asked if he consented to extradition to New South Wales, and said that if the application was granted, he would be transferred back to New South Wales where the police would talk further with him about the matter. She recalled that the accused indicated that he consented to being extradited. She recalled that the accused did not ask any questions. She did not recall saying anything else to the accused.
3. Officer Rawling recalled that he and Officer Hayward introduced themselves to the accused and explained that they were there for the purpose of seeking his extradition. He recalled the accused saying that he "was not in Budgewoi in 2009" and "did not know (the complainant)".
4. Both officers were asked why they did not caution the accused when they spoke with him in Rockhampton. Officer Hayward said that she believed that they were having just a general conversation, which did not involve any official questioning. She added that it was not normal to caution a suspect who was in another state. Detective Rawling said it was not normal to administer a caution to a suspect in connection with an application to extradite and he did not regard any questions by him or Officer Hayward as amounting to official questioning.
5. Both officers said that they were not asking the accused questions about the content of the allegations.
6. Later that day, the officers attended the Rockhampton Magistrates Court where a Magistrate approved the accused's extradition.
7. The accused was brought back to New South Wales, where he was arrested and detained. He was offered, but refused, the opportunity to participate in an electronically recorded interview. Officer Hayward indicated that it would not have been proper to have conducted the interview in Queensland.

CRITICISMS OF THE POLICE OFFICERS

1. Asked what equipment she took with her to Queensland, Officer Hayward referred to the arrest warrant. She also thought she took her police notebook, handcuffs and her personal mobile phone.
2. She accepted that that there was nothing to stop her from making a note of this conversation in her police notebook. It was suggested that it was police best practice that when an accused says something it is noted, either electronically or in a notebook. At no stage has what the accused allegedly said been reduced to writing, until a police statement sometime down the track.
3. She could not recall whether she showed the accused a copy of the warrant.
4. She accepted that it was possible that she might have mentioned Halekulani, the place of the offence as identified on the warrant.
5. It was also suggested that after the accused was transported to New South Wales and Officer Hayward next spoke with him, at Redfern, on 7 June 2016, she had opportunity to remind the accused of what he had said in Rockhampton on 6 June 2017. Officer Hayward was referred to part of the transcript of that interview (Exhibit 1) where, when interviewing the accused, the Officer (at Q11) explained that she wanted to ask the accused "further questions". I was invited to infer that this was a reference to the earlier questions that were asked of the accused in Rockhampton. Further, the transcript revealed that Officer Hayward did in fact refer to their meeting in Rockhampton (Q14-Q16 and Q23), but no reference was made, during the course of that interview, to the statements made by the accused and therefore, no opportunity given to the accused to adopt them.
6. It was suggested to Officer Hayward that it was open to her, as a matter of fairness to the accused, to refer him to that conversation during the electronically recorded interview on 7 June 2017. Officer Hayward rejected this. She considered that the accused had indicated that he declined to be interviewed, after having indicated that he had received legal advice. In response to this reference to the accused having received legal advice, it was suggested that this indication did not prevent her (and Detective Sergeant Rawling) from getting the accused into the interviewing room. She agreed with that.
7. Officer Hayward was referred to paragraph 19 of her witness statement. She accepted that she was in Rockhampton to elicit the accused's opinion as to whether he should be extradited and she referred to a 'further conversation' with the accused. She accepted that there was no reference in the witness statement to administering any caution.
8. Asked why she gave no caution in Rockhampton, both police officers said that, so far as they were concerned, they were engaging in general conversation and were not there in any professional capacity.
9. The same, or similar, points were made during the course of Detective Rawling's cross-examination. In his case, however, he spoke to the accused in August 2018 at the South Coast Correctional Centre (in Nowra). This, he said, was in connection with other matters unrelated to the events of this proceeding.
10. Officer Hayward said she was aware that Detective Rawling and Detective Locke were travelling to meet the accused in the South Coast Correctional Centre. She did not actually know that they would interview the accused, but assumed that they would try. She understood that they were going to charge him. When it was suggested that this was an opportunity to refer the accused to the statement that he made back in Rockhampton, she indicated that her understanding was that they were there to see the accused in relation to a different investigation.

Section 281 of the Criminal Procedure Act 1986 (NSW) ("the CP Act")

1. The Crown first addressed s 281 of the CP Act. Madam Crown submits that the statements were "admissions". Madam Crown indicated that the Crown will rely upon statements as lies by the accused, or evincing his consciousness of guilt, when considered with other evidence, such as is presently before the Court, from the complainant's mother and the complainant's grandmother that the accused knew the complainant and knew that he was present at 101 M Road at the time of his alleged offending. If lies were demonstrated, that would impair his credibility generally, and specifically, in connection with his proposed alibi defence.
2. The Crown says, however, that s 281(1)(b) is not satisfied since the admission or admissions were not made "in the course of official questioning". There were two prongs to this submission. First, in the context where the police were only intending to notify the accused of their intention to extradite him and to elicit whether he consented to that course, there was no "questioning" of him, even if Officers Hayward and Rawling were investigating officials present at Rockhampton in connection with their investigation of the commission or possible commission of an offence or offences. The Crown relied upon observations made by Howie J in R v Naa (2009) 76 NSWLR 271 at [98] and his Honour's identification that the provision was directed to formal or informal interrogation, of a suspect for the purpose of the officer obtaining information, whether or not at the time of the interrogation the suspect was formally under arrest.
3. Secondly, the Crown submitted that if, for the purpose of s 281(4), there was any official questioning at all, the statement was not made by the accused "in the course of" that questioning, but only after it. The Crown referred me to the High Court's decision in Kelly v The Queen (2004) 218 CLR 216 ('Kelly') and said that the facts in this case were relevantly similar to that case in the sense that the alleged admission(s) was made after any 'questioning' had occurred. In Kelly, the majority said (at [52]) that the course of official questioning "marks out a period of time running from when questioning commenced to when it ceased".
4. The Crown made no submission that if s 281(1) was established, then the statement could be admissible under s 281(2) of the CP Act.

Section 139 of the Evidence Act 1995 (NSW) ("the E Act")

1. The Crown then submitted that, for the purposes of s 139 of the E Act, each of the matters in s 139(1)(a)-(c) needed to be satisfied and the accused could not establish s 139(1)(a): although the accused may have been "under arrest", he was not "under arrest for an offence". Rather, the accused was under arrest for the purpose of an application to extradite him from Queensland to New South Wales; after which he could be arrested for offences, charged, and then be offered the opportunity to submit himself to official questioning.
2. The Crown did not dispute that the other conditions in s 139(1)(b) & (c) was each satisfied. But because s 139(1)(a) was not satisfied, there was no impropriety, for the purposes of s 138(1)(a) and there was therefore no cause for the Court to engage in any balancing exercise in s 138(1) generally.
3. I note that the accused's Counsel later accepted that if he did not succeed with his argument about the impropriety in failing to administer a caution, the accused did not contend that there was any other impropriety.

Section 138 of the E Act

1. If I found that the deeming effect of s 139(1) applied, however, Madam Crown accepted that the Crown carried the onus of persuading the Court that the evidence of the statements should be admitted. This onus was discharged because (and with reference to the criteria under s 138(3)):

• The statements were very probative in assisting the Crown to establish a consciousness of guilt, as explained. Further, if Officer Hayward did not refer to the first name of the complainant during the conversation, it would be even more probative since it would indicate that the accused knew the complainant that was not identified, by name, on the arrest warrant (s 138(3)(a) and (b)).
• These were very serious offences (s 138(3)(c).
• The impropriety was not grave. It could only arise in failing to record an unsolicited statement. Nor was there any enduring impropriety. Even though it was not recorded at the time, the accused received, as part of the Prosecution brief, statements to the police given by both officers recording the statement. In other words, the Crown was not seeking to exploit an advantage that it had obtained, for example, when, later at Redfern and then at the South Coast Correctional Centre (being separate occasions when the accused was invited to or did attend an interview), it concealed the previous statement from the accused (s 138(3)(d)).
• The impropriety was not deliberate or reckless. The accused was given the opportunity to respond to the substance of the allegations raised against him. He was generally given the opportunity to be interviewed (s 138(3)(e)).
• The considerations in s 138(3)(f)-(h)(incl.) were not applicable.

Section 281 of the CP Act

1. Counsel for the accused did not dispute that what the accused allegedly said in Rockhampton was an "admission". He submitted that the statements were made "in the course of official questioning". That expression, as defined in s 281(4), should be construed broadly, having regard to the circumstance that it is a provision designed to protect suspects. The Officers were there for "official" questioning: the only reason the police officers were in Rockhampton was in connection with the investigation of the commission or possible commission by the accused of an offence.
2. The statements were also made "in the course of" official questioning. Counsel submitted that it is fanciful that the accused would have otherwise volunteered information. He submitted that s 281 was directed to the circumstances that occurred here. There was a clear link between Officer Hayward, describing, for example, the nature of the allegations (and, as she recalled, mentioning the complainant's name in the course of doing so) and the statements that the Crown now relies upon. Counsel also rhetorically asked how the accused could have made any reference to Budgewoi (the suburb not mentioned in the arrest warrant) other than by reason of one or both of the officers mentioning that suburb to him. The circumstance that neither officer took a note of what was said at the time means that any ambiguity, or uncertainty as to what they said to the accused prior to his admissions should be held against the police. Counsel further submitted that the police had every means available to them to give the accused the opportunity to adopt the conversation, but did not avail itself of that opportunity.
3. Counsel further noted, in response to the Crown's reliance upon Kelly, that in the High Court's subsequent decision of Nicholls v The Queen (2005) 219 CLR 196 ('Nicholls'), the Court had determined that the purpose of s 281 was to provide safeguards to accused persons against the use of disputed and unrecorded admissions made to police officers when the means to record admissions exist and there is no reasonable excuse for failing to use those facilities. Reference was also made to the decision of Hamill J in R v Qaumi & Ors (No. 48) [2016] NSWSC 1008 as a further illustration of when admissions were made in the course of official questioning. In that case, I note, the admissions relied upon by the Crown were made after the accused had allegations put to him and he was informed that he would be charged.

Section 139 of the E Act

1. Counsel for the accused submitted that s 139(1)(a) of the E Act was satisfied. There being no dispute as to the balance of the considerations in s 139(1)(b) and (c), this meant that the undisputed omission of the police officers in administering a caution at Rockhampton meant that the accused established the alleged statements were obtained improperly, for the purposes of s 138(1)(a) of the E Act.

Section 138 of the E Act

1. This, Counsel submitted, meant that the onus fell upon the Crown to persuade the Court that the desirability of the evidence being admitted outweighed the undesirability of admitting evidence that had been obtained improperly. In this regard, the accused placed no reliance upon s 138(2)(a) or (b) of the E Act. Counsel specifically addressed me on some, but not all, of the considerations in s 138(3). He submitted that:

• it was not difficult for the Crown to have obtained the evidence without impropriety. It could have been recorded on one of the officers' phones, or in the police notebook. It was not, after all, a statement made by the accused when anyone was under threat. There was opportunity, contemporaneously to record it; and thereafter multiple opportunities to get the accused to adopt it, without infringing his rights (s 138(3)(h));
• the offences carry extremely severe sanctions if the accused is convicted (s 138(3)(c)); and
• the impropriety was not deliberate or reckless. Nevertheless, it was reasonably foreseeable if not 'on the cards' that in response to official questioning, the accused might make the admissions that the Crown now relies upon.

STATUTORY PROVISIONS

1. Section 281(1) of the CP Act provides that: "(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. Section 139(1) of the E Act provides that: "(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if - (a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c) before starting the questioning the investigating official did not 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."
3. Section 139(6) of the E Act provides that: "(6) A person is not treated as being under arrest only because of subsection (5) if - (a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or (b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions."
4. Section 138(1) of the E Act provides: "(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."
5. Section 138(3) of the E Act provides: "(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account - (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (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, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."

Section 281 of the CP Act

1. I find that between them, Officer Hayward and Officer Rawling introduced themselves to the accused at the Rockhampton watch house on 6 June 2017. Officer Hayward explained that she and Officer Rawling were there in execution of an arrest warrant and their purpose was to ascertain whether the accused consented to be extradited. I find that Officer Hayward mentioned the complainant's name and mentioned Budgewoi in their 'conversation' with the accused. She did this in the course of referring to the allegations. Instead of repeating the allegations as they appeared in the arrest warrant that they had procured from the Local Court of New South Wales, Officer Hayward was attempting to paraphrase the allegations contained in the arrest warrant. She was paraphrasing the allegations in the course of explaining to the accused why they were there. She asked the accused whether he consented to being extradited and the accused represented that he did. She explained that this meant that he would be transferred to New South Wales; and that once he was in New South Wales, he would be arrested and charged; and that thereafter they would speak with him again.
2. I find that after these matters were mentioned to him, the accused made the two statements that:

• he was not in Budgewoi in 2009; and
• he did not know the complainant.

1. By its terms, s 281 deals with 'admissions' by an accused person who, at the time it was made, is suspected of having committed an offence. If an 'admission' was made, the next issue is whether it was made "in the course of official questioning".

Admissions?

1. On the first question, that is, whether what the allegedly accused said is an admission or admissions, I accept that it was or were. The accused did not submit to the contrary. Although, on its face, the statement(s) was or were exculpatory, if falsified (to the accused's knowledge) it or they may be regarded as an implied admission that the accused (a) was aware that the alleged conduct related to the complainant identified in the indictment (but not the warrant issued by the Local Court); and (b) that the alleged conduct occurred in Budgewoi (though that was also not identified on the arrest warrant). As was said in R v Horton (1998) 45 NSWLR 426, an exculpatory statement which may turn out to be harmful to the accused falls within the meaning of an admission (see also R v Esposito (1998) 45 NSWLR 442). That is, the significance of the statement may not be appreciated by the person who makes it as being adverse to him or her, or the person who receives it, at the time that it is made. This, I consider, has some relevance to discretionary matters under s 138, should that provision need to be determined.

Official questioning?

1. In Kelly, the plurality noted that s 281 of the CP Act is a provision similar, but in some respects, different to other provisions across states and territories to deal with the problem of police 'verbals' and that, for the purposes of construing it, close attention needed to be given to the language in the provision. In Nicholls, Gleeson CJ (in dissent in the outcome) noted (at [8]) that although it may be accepted that a provision like s 281 is generally protective of the rights of accused, that provision, and the exceptions to it, were the product of legislative compromise. This meant that for the purposes of construing the provision, the Court was left with the text as the only safe guide to identify the purpose.
2. As to the expression "in the course of official questioning" the authority which the Crown relied upon - R v Naa - related to s 139 of the E Act; not s 281 of the CP Act. There is at least one textual difference between the two provisions. Under s 139 of the E Act, the concept deployed is "questioning", whereas under s 281 of the CP Act, the concept is "official questioning". As one learned commentator has noted, an earlier version of s 139 of the E Act also used the expression "official questioning" (Odgers, Uniform Evidence Law, 14th ed, [EA.139.60], p 1312). The difference may not necessarily matter.
3. I asked Counsel for the accused whether he took issue with Howie J's construction of 'questioning' under s 139, which the Crown sought to transpose to the meaning of 'official questioning' under s 281 of the CP Act. Counsel responded by saying that I should not 'place any gloss' on the meaning of 'questioning' under s 281.
4. I consider that this submission is correct, so far as it goes, and I am not necessarily bound by another single Judge's construction of a word in a statute. Nevertheless, although the word appears in at least two different pieces of legislation, and although construction has to take place in the context of the statutory purpose or object of the provision, I do not see any substantive difference between 'questioning', where it appears under s 281 of the CP Act and where it appears under s 139 of the E Act.
5. Further, even if I was not bound to adhere to Howie J's construction of questioning, I respectfully agree with his Honour's reasoning. Although I accept that a provision like s 281 should be construed as widely as the text and context permits, with part of that context being the provision of a procedural safeguard for suspects, 'questioning', for the purposes of s 281 naturally imports an interrogation, be it formal or informal. I note that his Honour's construction was also apparently accepted by RA Hulme J in Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550 at [80].
6. I do not consider that when they spoke to the accused in Rockhampton on 6 June 2017, the two police officers were conducting any questioning, in the sense of any formal or informal interrogation of the accused. The circumstance, as I have found it, that the officers, between them, imparted information to the accused i.e. paraphrasing the allegations was additional to that contained in the arrest warrant issued out of the Wyong Local Court, did not convert the conversation into an interrogation, formal or informal. The information was conveyed as part of the officers' explanation for why they were there to see the accused.
7. Although it is true that the officers asked a question of the accused for the purpose of eliciting information, that question was narrowly directed. It was to elicit the accused's understanding and attitude to the pending application to have him extradited. To ask him whether he understood and consented to that course - which was a relevant matter to a Magistrate's determination of whether he should be extradited - was in no way to 'interrogate' him. For the officers to ask the accused a question - whether he consented to extradition - is not, in my view, to engage him in "questioning". As the High Court said in Kelly at [45], unlike s 86 of the E Act, when it enacted s 281 of the CP Act, the New South Wales Parliament did not choose the language "in response to a question put". The protection in s 281 is not directed to a response to a question, but to 'questioning'.
8. I was not, in this respect, referred to authority, since R v Naa, which points to any contrary construction of the meaning of 'questioning' in s 281 of the CP Act, as distinct to s 139 of the E Act.

"in the course of" official questioning?

1. If I am wrong in finding that the statements were not responsive to "official questioning" but merely a question, then a further temporal issue arises. As Kelly indicates, the impugned admission needs to be made in a course of questioning, that is, from the beginning of questioning to the end of questioning. The effect of what Officer Hayward's indication about the officers' intention to speak to the accused after his extradition back to New South Wales, if that occurred, was to signal to him the end point of any questioning, at that point, and indicated that it would resumed in the event that he was extradited. The officers were, to adopt what was said by the plurality in Kelly (at [49]), effectively 'nominat(ing) a future time when that course of questioning will commence', or if I am to construe what had been said in Rockhampton as 'questioning', recommence.
2. With reference to the High Court's decision in Nicholls, upon which the accused placed reliance, I do not read anything in it which alters my view as to the application of Kelly. Though both of these decisions of the High Court commonly spoke of the nature and purpose of the legislation as being generally to prevent police 'verbals', Kirby J, who was in the majority, noted (at [215]) that the legislation and factual circumstances in Kelly were different to that considered in Nicholls. In the latter case, the factual circumstances were concerned with the general problem of unrecorded admissions of a suspect during a recorded interview; where the specific problem concerned what would happen when a suspect, who had consented to be interviewed, had at some point, withdrawn his or her consent to continuing to be interviewed. The main issue in Nicholls was whether the defence of 'reasonable excuse' arose. Further, the facts of Nicholls are very remote from the facts in this case.
3. That being so, I do not accept that the statements made by the accused were made "in the course of" questioning. The objection to the alleged admissions under s 281 of the CP Act is rejected.

Section 139 of the E Act

1. For the same reasons I have indicated, I do not accept that the statements of the accused were made "during questioning". To reiterate, there was no 'questioning' and, even if there was, the statements were made by the accused after the question that was raised of him was answered and after the police had foreshadowed to him that they would seek to question him later, if he was extradited. On this basis, the objection under s 139 founders.
2. If I be wrong in this, and lest this matter go elsewhere, I wish to indicate that I have some difficulty in accepting the distinction that the Crown draws between a person being under arrest, for the purposes of extradition proceedings, and an arrest for an offence.
3. I consider that the word "for", where it appears in s 139(1)(a) provides a relevant connecting factor between the apprehension of a person upon him or her being suspected of an offence. The accused was, as his Counsel submitted, arrested, in the sense of being apprehended. Whether the immediate purpose for his being apprehended was to ensure he could be questioned about whether or not he consented to an extradition application, or whether he was questioned in the course of a recorded ERISP interview, in my view there is no material distinction: in both instances, the questions or questioning relates to and may be taken to be 'for' an offence, for the purposes of s 139(1)(a). Put another way, questioning of a suspect during the course of an extradition application might be regarded as an intermediate step, or at least part of the process of questioning, a suspect "for" an offence. I do not see that severing these purposes is consistent with policy underlying the provision.
4. In this regard, I am also cognisant of the circumstance that s 139(6), by its terms, contains two exclusions to the notion of 'arrest' under s 139(1). Neither of those exclusions applied here, but it is noteworthy that the exception in s 139(6)(b) imports another instance where a suspect has been 'detained'. Here the accused was, as a matter of substance, detained at the Rockhampton watch house. As I noted earlier in these reasons, provisions such as s 139 of the E Act reflect a compromise of legislative purposes. In my view, if Parliament wanted to make a further exclusion from the notion of arrest to deal with the situation of any questioning of a suspect in connection with an application for extradition, it would clearly have done so by the insertion of an additional exclusion within s 139(6). It is not for the Court, in my view, to read in additional exclusions via a strained construction of s 139(1)(a).
5. What I have said so far, on this particular point, is not inconsistent with how the officers perceived the situation. When she interviewed the accused in Redfern, Officer Hayward indicated her belief that the accused had been arrested in Rockhampton "as a result of" the arrest warrant (Exhibit 1, Q15). That is not inconsistent with the arrest being "for" an offence, in the terms of the s 139(1)(a).
6. At the conclusion of argument, I invited both Counsel to make supplementary submission as to how 'arrest' may be construed in the context of an extradition application. Madam Crown drew my attention to the decision of RA Hulme J in Director of Public Prosecutions (NSW) v Owen. In that case, a person was the subject of an arrest warrant for failing to appear in a sentencing Court. As I have already noted, the Crown relied upon the decision for what his Honour said on the point of 'questioning', under s 139(1) of the E Act (no reference being made to s 281 of the CP Act). But on the point I am now addressing, his Honour ventured the view (at [82]) that he was not under arrest for an offence, but was under arrest only for the purpose of being placed in a police vehicle in order to be processed in relation to the outstanding arrest warrant. His Honour went on to say that even if that was not right, he was still not being 'questioned'.
7. Although the decision may provide some support for the Crown's position, it does not, with respect, dissuade me from my doubts as to whether, in the circumstances here, any questioning was conducted for an arrest. It is not the position, for example, that the Crown is relying upon admissions made by the accused to Sergeant Mooney at Mount Morgan police station. That would provide the closer comparison to the situation in Director of Public Prosecutions (NSW) v Owen. Here the alleged admissions that are relied upon were made to the officers who were the relevant officials investigating the offences.
8. Thus, I retain my doubts as to whether the Crown is correct in its submission that s 139(1)(a) was not engaged since the accused was not under arrest "for" an offence. As indicated, I do not need to resolve the question since I have found that s 139 of the E Act is not engaged as the statements were not made "during questioning".

Section 138 of the E Act

1. Accordingly, having regard to the concession by Counsel for the accused, without the deeming effect of s 139, the accused cannot point to any other "impropriety", for the purposes of s 138(1)(a).
2. However, on the basis that I am wrong about s 139 and, consequently, in the absence of an impropriety, and that the issues are to be determined elsewhere, I venture to indicate my views as to how the balancing exercise under s 138 might have been determined on the predicate that there was an impropriety.
3. It is common ground that it is for the Crown to persuade me that evidence of the admissions should be admitted notwithstanding that it is undesirable for evidence obtained improperly to be admitted.
4. I accept the accused's submission that it would not have been difficult to record the conversation, whether by writing or by electronic means; with opportunity then being contemporaneously given to the accused to adopt whatever version of the statement that is recorded. But the weight to be attributed to this consideration should be viewed in context. Much of the cross-examination of the officers was directed to the suggestion that it was unfair to the accused not to have had a contemporaneous record, in that it deprived him of the chance, soon after it was made, to recant or adopt the statement. This aspect might be particularly significant if there was ambiguity in what it was that the accused had represented. Here, the first time that the accused's statements were committed to writing were in Officer Hayward's witness statement. That statement was apparently compiled between 20 September 2018 and 23 October 2018 - a good year after the statement was said to have been made by the accused. But having heard them give evidence, there was no ambiguity in the recollection of the officers as to what the accused advertently said.
5. As to the aspect of being deprived of the chance to adopt the note, I understand that the submission is directed to a question of fairness. I note, however, that the objection is taken under s 138. Counsel for the accused eschewed reliance upon ss 90 and 137 of the E Act, where the consideration of unfairness arguably assumes greater significance than it does under s 138 (R v Em [2003] NSWCCA 374 per Howie J (Ipp JA and Hulme J agreeing) at [74]). Though not expressed in this way, s 138(2) in substance manifests two circumstances of impropriety which might be characterised as 'unfair'. Neither of those circumstances are invoked by the accused in this case. But if 'unfairness' is to be considered here, I would also need to consider the circumstance that the accused did substantially decline the opportunity to be asked questions about the allegations. There is force in the Crown's submission that, electing to take this course, in accordance with his rights, and with the benefit of legal advice, it diminishes his argument of unfairness in his being deprived of the opportunity to correct, or withdraw altogether the alleged admission(s). I have little doubt that if the accused consented to be interviewed about the substance of the allegations, he would likely have been asked questions regarding his knowledge of the complainant and whether or not he was in Budgewoi in 2009, being the subject matter of his alleged admissions.
6. So, I accept the submission that it was not difficult to have obtained the evidence without the impropriety. However, in Kadir v The Queen; Grech v The Queen [2020] HCA 1 the High Court held, at [20], that usually, where an impropriety is neither deliberate nor reckless, the difficulty of obtaining the evidence without the impropriety is usually regarded as a neutral consideration. I would elevate its significance as more than neutral, but not to the level suggested by Counsel for the accused.
7. I also accept Counsel for the accused's submission that, for the purposes of s 138(3)(c), the nature of the offences - and the potential penalties - is extremely severe. But that circumstance does not assist the accused. In R v Dalley (2002) 132 A Crim R 169 Spigelman CJ (Blanch AJ agreeing) (at [7]) held that in relation to this particular statutory consideration, the public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in relation to crimes of greater gravity.
8. I have noted that the accused concedes that any impropriety was not deliberate or reckless (per s 138(3)(c)). In my view, the concession was properly made. Harking back to something I noted earlier in my reasons for this ruling, the nature of these alleged admissions has some significance here. They were on their face, statements of the accused that he intended to be exculpatory. At the time the statements were made, at a very early point of the investigation (by this stage only the complainant had been interviewed), the police officers had not interviewed either the complainant's mother or his maternal grandmother, who, the Crown reminded me, have given evidence at trial in contradiction to the content of the alleged statements. Viewing the statements attributed to the accused in isolation, they are exculpatory. They amount only to implied admissions by reason of the Crown's intended use of them, in combination with the evidence of these other witnesses, to establish that he was telling a lie or lies, or evincing a consciousness of guilt. This was hardly a case of the officers, being conscious of what these other witnesses would later say, trying to trick, or deceive the accused into making an incriminating statement in the knowledge of what other witnesses had said. Put shortly, if the statements attributed to the accused in Rockhampton are regarded as admissions, the police officers probably did not recognise them in that way at the time that they were received. Further, they were spontaneous and, as I have found, unsolicited.
9. The accused's Counsel otherwise did not make any submission about any of the other matters in s 138(3). I noted earlier that the Crown did not address the considerations in s 138(3)(f)-(g). By that, I infer, the Crown regarded them as neutral. Counsel for the accused did not contend to the contrary.
10. I find that the other matters in s 138(3), being the considerations in sub-paragraphs (a), (b) and (d), all support the Crown's application, for the reasons submitted by the Crown. They are probative statements, in accordance with the Crown's foreshadowed reliance upon them as establishing a consciousness of guilt, or lies. That is important in a context where the Crown does not presently know whether the accused will elect to give evidence; since the statements provide a potential avenue for the Crown to impugn his credibility. Credibility is significant in a context where on the Crown's case, no one else saw the accused perpetrate the offending conduct against the complainant; and where the complainant was challenged on his credibility and reliability.
11. Counsel for the accused noted that the admission would likely require the Court to give itself a warning, under s 165 of the E Act. If, as I understood it, this submission was directed to the importance of the evidence, then the submission may be accepted. But the issue the Court confronts on this application is whether the alleged admissions are admissible; not the reliability or weight to be ascribed to them. The position may be different where any perceived unreliability in an alleged admission is the result of a deliberate attempt to circumvent a legislative protection (Nicholls per McHugh J at [108]), but as I have found, the conduct here did not involve any deliberate or reckless impropriety.
12. I agree also, with the Crown's submission that the gravity of the impropriety was not significant: the gravamen of the complaint was the failure to take a recording and give the accused the opportunity to adopt it. As I have noted, there was no trickery or any deception.

CONCLUSION

1. Weighing up these circumstances, if it was necessary to do so, I would have found that the Crown discharged its onus of establishing that the desirability of admitting the evidence - admissions - obtained improperly outweighed the undesirability of admitting evidence obtained improperly.
2. The result is that the alleged statements are admissible.
3. Subject to a possible qualification, evidence on the voir dire is to be evidence in the proceeding. The qualification is that I will hear from Counsel for the accused whether any objection is taken to the ERISP interview of the accused conducted on 7 June 2017 being evidence in the proceeding.

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