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occasions over this five hour period what he had been doing the night before (sic, Friday night), to tell them again; and

(the accused will) say that (Edwards) actually said to him, 'That's bullshit, you know it, I know it', and (Edwards) went on to say, 'This is what you did' and (Edwards) outlined to him the nature of the offences being investigated." (transcript, p 5). (iii) Edwards denied the accused access to a lawyer, viz:- "(The accused) asked for a lawyer to be present and (Edwards) refused that request and said that 'You'll get nothing out of us', or 'You'll get nothing out of us until you talk'; something of that nature." (transcript, p 5). (iv) The accused was photographed by Edwards, using a Polaroid camera, about 4:30-5:00pm on 31 January, and Edwards later told him an "interrogatory lie" in relation thereto, viz:- "(The accused) will say that some time after that, during this preliminary interview (that is, before he made admissions at about 8pm), Officer Edwards said to him that he had been identified (by the victim) from that photograph". (transcript p.6). (v) Edwards told the accused an "interrogatory lie", that fibres from a flannelette shirt which had been found at the scene of the crime, had been found on the accused's belt, which Edwards had earlier seized from the house in Byrne Circuit where the accused had been residing. (vi) Edwards offered the accused an inducement to confess, by telling him that he would be bailed "if he came clean". (vii) The accused overheard a telephone conversation or conversations between a Police officer he believed to be Detective Sergeant Chapman and Edwards, in which he heard words which tended to intimidate him, viz:- "Over a period of time there were several phone calls, and (the accused) will say that Officer Chapman was saying things like, 'have you charged the bastard?'. He was saying things like 'throw the book at him', 'just charge the bastard', and things like this; and (the accused) will say that they intended to intimidate, that aggressive talk about himself in his presence." (transcript p 6). (viii) Gibson threatened the accused before he made his first admissions (at about 8:00pm), saying:- "David, come clean or we'll get the heavies on you", something to that effect (transcript, p 6). 6. Mr Kilvington submitted that by about 8pm one or more of these matters

the lengthy and oppressive questioning, inducement, threat, interrogatory lies, intimidation and denial of access to legal advice

• overbore the accused's will to be silent; and his will remained overborne in the formal interview which was shortly afterwards video taped (Exhibits P6 and P7 at 10.31pm), in which he made admissions. Further, their effect had not dissipated by 9.04am on the following morning, Tuesday 1 February, and it was only because the accused's will remained overborne that he agreed (Exhibits P8 and P9) to participate in a videoed re-enactment, and ultimately took part in the videoed re-enactment (Exhibit P10) an hour later. On the voluntariness issue Mr Kilvington also relied on such of the matters in (b) below as could be held to overbear the accused's will not to speak, relying on McDermott v The Queen (1948) 76 CLR 501 at p 507. THE ADMISSIONS SHOULD BE EXCLUDED, IN THE EXERCISE OF THE COURT'S DISCRETION

7. Second, Mr Kilvington submitted that if the submission in (a) at pp 2-5 were rejected and the admissions were proved by the Crown to have been made voluntarily, evidence of those admissions should nevertheless be excluded from the evidence to be placed before the jury at trial, in the exercise of the Court's residual discretion, for any or all of the following six reasons, in addition to such of the items set out in (i)-(viii) at pp 3-5 as the Crown had not negatived, viz:- (i) Although Edwards did not formally arrest the accused until after he had made the first inculpatory admissions at about 8:00pm on Monday 31 January, he had in fact been arrested - a "de facto" and unlawful arrest - and held unlawfully in custody either from the time he had been placed in a Police car at his place of residence in Byrne Circuit at about 2:50pm, or from the time he arrived in that car at the Berrimah Police Centre at about 3:00pm;

(ii) The accused was given the impression by the Police at the Berrimah Police Centre while he was there that "he was not allowed to go anywhere until he talked"; (iii) During the time that the accused was in custody (as set out in (i) on p 6) from about 3:00pm he was questioned by Edwards; in doing so Edwards did not, as required by law, inform the accused of his rights under pars(a) and (b) of s140 of the Police Administration Act (herein "the Act"), and accordingly did not defer his questioning and afford the accused communication facilities as required by s140, which provides:- "BEFORE ANY QUESTIONING or investigation under section 137(2) commences, THE INVESTIGATING MEMBER MUST INFORM THE PERSON IN CUSTODY THAT THE PERSON - (a) does not have to say anything but that anything the person does say or do may be given in evidence; and (b) may communicate with or attempt to communicate with a friend or relative to inform the friend or relative of the person's whereabouts, and, UNLESS the investigating member BELIEVES ON REASONABLE GROUNDS that - (c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or (d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed, THE INVESTIGATING MEMBER MUST DEFER any questioning or investigation that involves the direct participation of the person for a time that is reasonable in the circumstances AND AFFORD the person reasonable facilities to enable the person to make or attempt to make the communication." (emphasis mine) (iv) The first caution given to the accused by Edwards (apparently after 8pm - see Exhibit P4, p 1) was given too late, viz:- "The evidence of Mr Edwards will be that he only warned after (the accused) had, in fact, told him not only that he had been in this house (where the assaults allegedly occurred), not only that he had carried (the alleged victim) down stairs and put her on the pool table, but he only warned him after the point (the accused) went on to say what he had done." (transcript, p.8). (v) The accused had told Edwards he wanted to see a lawyer, but Edwards denied him access to a lawyer, (as already noted at p 4, item (iii)); (vi) With specific reference to the discretionary exclusion of the video taped re-enactment which commenced at about 10:00am on Tuesday 1 February (Exhibit P10), the Police had failed to observe the requirements of s137(1) of the Act, in that they did not bring the accused, taken into custody on Monday, before a Court until 2:00pm on Tuesday instead of 10:00am. Section 137(1) provides, as far as material:- "Without limiting the operation of section 123, but SUBJECT TO SUBSECTIONS (2) AND (3) OF THIS SECTION, a person taken into lawful custody under this ... Act shall ... be brought before a justice or a court of competent jurisdiction AS SOON AS IS PRACTICABLE AFTER BEING TAKEN INTO CUSTODY, ... " (emphasis mine) NON-COMPLIANCE WITH S142(1) OF THE ACT 8. Third, Mr Kilvington submitted that the accused at all material times was a "person suspected" within the meaning of that term in s142(1) of the Act, which provides:- "Subject to section 143, EVIDENCE OF A confession or ADMISSION made to a member of the Police Force BY A PERSON SUSPECTED OF HAVING COMMITTED A RELEVANT OFFENCE IS NOT ADMISSIBLE as part of the prosecution case in proceedings for a relevant offence UNLESS - (a) where the confession or admission was made before the commencement of questioning, the substance of the confession or admission was confirmed by the person and the confirmation was electronically recorded; or (b) WHERE THE confession or ADMISSION WAS MADE DURING THE

QUESTIONING, THE QUESTIONING and anything said by the person WAS ELECTRONICALLY RECORDED,and the electronic recording is

available to be tendered in evidence." (emphasis mine) 9. Here, in terms of s142(1)(b), the "questioning" of the accused, "a person (then) suspected", had commenced about 3pm, and the accused's first admissions, made about 8pm, were "made during the questioning". Accordingly, s142(1)(b) applied; that is, unless the whole of the five hours of the "questioning" from about 3:00pm to about 8pm on Monday 31 January had been recorded electronically, evidence of the admissions was "not admissible". The Police had in fact failed to electronically record the whole of that questioning; that was not in issue. The result was that not only evidence of the first admissions made at about 8:00pm (Exhibits P2-P4) was rendered "not admissible" by s142(1), but evidence of the admissions made in the later videoed interview (Exhibits P6-P7) and in the videoed re-enactment of 1 February (Exhibit P10) was also rendered not admissible, because the "questioning" during which all those admissions were made was, in substance, one and the same period of questioning which had commenced at about 3pm on Monday 31 January. 10. The foregoing outlines the three-fold basis on which Mr Kilvington founded his application under s26L. I turn next to the facts as alleged in the evidence of the seven witnesses on the voir dire; it is useful to set out the effect of their evidence in the form of a chronology of the significant events to which their evidence was directed. THE CHRONOLOGY OF ALLEGED EVENTS ON 31 JANUARY 1994 AND 1 FEBRUARY 1994, ACCORDING TO THE EVIDENCE 11. The evidence of the various witnesses establishes the following chronology of some 50 events alleged to have occurred on 31 January and 1 February. MONDAY, 31 JANUARY 1994 12. 2:45pm: Police left the University with the accused following them, driving the motor vehicle owned by Ms Grimster, the occupier of the house in Byrne Circuit, Moil, where the accused was then residing. 13. 2:50pm: The two vehicles arrived at the house in Byrne Circuit. The accused came to the Police car. Edwards says that he told the accused that he wanted to speak to him about an assault in Moil on Saturday morning. Gibson says the Saturday incident was mentioned and the accused said he knew that that was what it was about. The accused says that he asked what the Police wanted to talk to him about, and was told that he would be informed at the Berrimah Police Centre. 14. 3:00pm: The detectives arrived at the Berrimah Police Centre with the accused in the Police car. 15. 3:00pm or shortly thereafter: The accused was placed in an interview room in the CIB offices and Edwards accompanied by Gibson commenced to interview him. According to them, the accused first talked about various personal matters - his employment and social affairs - for "a good half an hour or so", so that "it was probably getting on to 4 o'clock" before they got on to the subject of his movements on the Friday night and Saturday morning with which they were concerned. 16. 3:20pm: According to the accused, Edwards first spoke to him about this time in the interview room. He told the accused why he wanted to question him. The accused then asked "to see a lawyer and speak to lawyer"; Edwards responded - "You'll get nothing from us until you tell us what you actually did on Friday night.". Edwards and Gibson deny that that exchange occurred. 17. The accused said that he was questioned continuously by the Police from 3:20pm until 8:00pm, with intervening periods when they left him alone. Edwards and Gibson deny that the accused was continually questioned over this approximate 5 hour period. 18. The accused says that the Police first left him alone in the interview room at 3:00pm, for some 20 minutes; they then came in and questioned him about his whereabouts on Friday night 28 January. He told them of his movements on that night and that he had then gone home to Byrne Circuit about 2:45am on Saturday 29 January, and gone to bed. He said that the Police said that this account was "lies". He was required to repeat his account about six times between 3:02pm and 8:00pm, because he was being continually questioned by Edwards. The Police deny the allegations as to "lies", and that the questioning was continual. 19. Edwards says that "approximately half an hour" (that is, at about 3:50pm) after he had asked the accused about his whereabouts on Friday night 28 January, the accused then started to talk about why he was in Darwin. 20. The accused says that between 3:30pm and 4:00pm he was told by Edwards that the Police Forensic section had discovered fibres from the flannelette shirt found at the victim's home, on the accused's belt. Edwards denies this allegation. 21. "Just before 4:00pm": The Police evidence was that Edwards discussed the victim's statement with Senior Constable Reed, and the need to obtain from the victim more detail about the intruder. Reed says that at Edwards' direction, she telephoned the victim's mother, and arranged for her to attend with the victim at Berrimah Police Centre, to be re-interviewed. Edwards said this call was at about 4:15pm. Reed also arranged for a Forensic officer, Senior Constable Chilton, to attend at Berrimah Police Centre. 22. 4:00pm: Edwards said that his first conversation with the accused ceased at about 4:00pm. By then the accused had recounted his movements on Friday night 28 January, concluding with his going home to bed in Byrne Circuit and waking up the following morning Saturday 29 January. Edwards then took the accused to the toilet. 23. "After the (4:00pm) period": Edwards said that he resumed questioning the accused, specifically about the time in which the accused had said he had been asleep in the house at Byrne Circuit, in the early hours of Saturday morning 29 January. 24. 4:15-4:30pm: Edwards said that the accused started to talk about a "blank period" in his memory, from the time he went to sleep in the early hours of Saturday morning 29 January until he woke up sitting on the toilet at 6:00am. This questioning lasted some "10 or 15 minutes". 25. 4:30pm: The accused said that about this time he started to talk to Edwards about his "blank period" in the early hours of Saturday. He explained this period on the basis that "my mind was blank due to the fact that I was asleep." 26. "Close to 5:00pm": The Police said they commenced talking to the accused about the "blank period", for some "10 minutes or so"; this was after he had been taken to the toilet again, and had been given more coffee. Edwards says he decided to await the outcome of the re-interviewing of the victim by Reed, and thereafter did not speak much to the accused (presumably until about 7.20pm - see Item 21). 27. 5:15pm: The victim and her mother arrived at Berrimah Police Centre. Edwards says he spoke to them for about 10 to 15 minutes. Reed then sought to obtain from the victim further details by way of a description of the intruder, for the purpose of preparing an Identikit. She said that she did not show any photograph of the accused to the victim, at any time. 28. 5:30pm: Chilton from the Police Forensic section arrived at Berrimah Police Centre. Reed spoke to him and attempted with the victim to construct an Identikit of the intruder, without success. 29. 5:45pm (plus or minus 10 minutes): The accused said that Edwards and Gibson formed a "human shield" around him when taking him from the interview room to the toilet, and back. 30. 5:30pm - 6:00pm: According to the accused a Polaroid photograph (Exhibit D1) was taken of him by Edwards, in the interview room. Edwards denies this; see Item 41. 31. 6:00 - 6:30pm: Edwards says he telephoned the cyclist, Mr Shepherd, who doubted his ability to identify from a photograph, the person he had seen in the early hours of Saturday 29 January. 32. 6:30pm: Edwards says that he asked the accused if he would like to have a meal, and ordered a meal for him. Edwards, Reed and Gibson watched the News program on television, as there had been a Media Release about the crime of 29 January. The victim and her mother departed from Berrimah Police Centre. Reed spoke to Edwards, telling him of the result of her re-interviewing the victim and her mother, and of the unsuccessful outcome of the attempt at an Identikit of the intruder. 33. 6:30pm: The accused says that a meal was placed in front of him at this time, but he was not sure as to the time. Compare Item 20. 34. "Later on": The accused says that Edwards told him that he had been identified by the victim from the Polaroid photograph (Exhibit D1). Edwards denies saying this; see Item 41. 35. 7:00pm: Edwards says that the accused's meal arrived. Exhibit P5 puts this time as from 7:00pm to 8:00pm. 36. 7:20pm: Edwards says that he started to talk to the accused again about his "blank period". He said that the accused stated that gradually it was coming back to him. 37. 7:00-7:30pm: According to the accused, he had the following discussion with Edwards, viz:- "Tell us the nature of that discussion? ... Senior Constable Edwards said to me 'don't worry about the female out there, I'm not worried about it. You tell us what happened and I'll give you - I'll make sure you get bail.' 'Was this during some questioning or did he just come in and say this; how did it happen? ... He came in on his own, sat down, put his feet up on the desk, tried to make me relax a little bit'." (transcript, pp 133-4). Edwards denies he said this. 38. 7:30-8:00pm: The accused gave the following evidence - "Did anyone else say anything that upset you or intimidated you during this period? ... Yeah, Later on Constable Gibson came in and said 'well, come on, tell us the full story or we'll send the heavies in'." (transcript, p 134). Gibson denies she said this (transcript, p 113). 39. Approximately 7:50pm: According to the accused, before Edwards wrote out his hand written note of the first admissions by the accused, Gibson received a telephone call from Detective Sergeant Chapman, which he overheard viz:- "And can you tell us please what the conversation was that you overheard? ... It was, 'Have you charged him yet?'.

... So you heard things, 'Have you charged ...?' ...'Have you charged the bastard yet?'. The answer to was - to that was, "Not yet, but we're getting there.". Then later on there was another phone call, "Just throw the bloody book at him.".

(transcript, p 135). Gibson said she did not speak on the telephone with Chapman (transcript, 101), but overheard Edwards' telephone call to Chapman; see Item 36. 40. "About (8:00pm): Edwards said that the accused started talking about what happened during his "blank period", and made incriminating admissions. The accused agrees that this was the time when he made admissions. Edwards made a contemporaneous note of these admissions (Exhibit P2). 41. 8:00pm: Gibson said that the accused started talking about his "blank period". 42. 8:10-8:15pm: Edwards said that he finished taking his note of the accused's incriminating remarks (Exhibit P2). He then spoke to Reed about certain information in that note, in which "exposed beams" were mentioned by the accused. 43. "Approximately 8:00pm": Reed telephoned the victim's father to ascertain if the victim's house had exposed beams; neither she nor Edwards had been inside the victim's house. She communicated the information she received to Edwards. They also looked at some photographs of the house interior, in the Police possession; these showed a pool table and an exposed beam. Edwards decided that he had sufficient evidence to charge the accused with the alleged offences of 29 January. 44. Time not specified: Edwards commenced a tape recorded interview with the accused (Exhibits P3 and P4). He cautioned the accused (p 1 of Exhibit P4). The interview stopped at 8.42pm and re- commenced at 8.55pm, concluding at 9.01pm. 45. "After 8:00pm": Gibson said she was in the interview room alone once with the accused for a short period; the accused told her he found the flannelette shirt in the park, with 3 cigarettes in the pocket. The accused had introduced the topic. The accused gave a different account; see Item 33. 46. 8:30pm: Reed was requested by Edwards to contact Chapman. She was unable to do. 47. 8:40pm: According to the accused he was told by Edwards that he was under arrest. This accords with p 5 of Exhibit P4. 48. 8:42-8:55pm: According to the accused, during the break in the tape recorded interview (Exhibits P3 and P4) - see Item 29 - Gibson asked him about the flannelette shirt, viz:- "Did you talk to Officer Gibson about a shirt, did you raise that topic of conversation with her? ... No, she came into the interview room between the time the tape was stopped at - here it is in front of me - 12.42 - sorry, 8.42 and 8.55, and asked me what did I find in the park. Had you had a conversation with her prior to the tape being put on? ... The tape was restarted at 8.55, it was stopped at

8.42, and then restarted at 8.55, as it is on the sheet, and it was during that time that she asked me about the flannelette shirt. ... You volunteered information about the shirt did you? ... That it was picked up in the park? Yes?---She asked me where I got it from. I was asked where I got it from, I do not own any flannelette shirts myself, I will not wear flannelette shirts, because I do not like the feel of flannelette shirts. But you gave that information about the flannelette to Officer Gibson?---Yes, yes. I also gave her information that there were three smokes in the pocket and that information was also on the front page of the 'Sunday Territorian'." (transcript, p 144). 49. 9:01pm: The tape recorded interview (Item 29) (Exhibits P3 and P4) concluded. The accused said the door to the interview room was closed after that. 50. 9.01-9:30pm: Edwards said that he wrote up his notes for s137 purposes and made a chronology (Exhibit P5). He said he sent Reed to Byrne Circuit to collect the accused's yellow shirt and thongs. 51. Gibson says that while she was in the interview room with Edwards the accused mentioned that the victim had urinated. Edwards says he was outside the room at that time; and when he was told by Gibson about it, he told the accused it would be dealt with in the videoed interview. According to the accused in cross-examination, the subject arose in this way - "Do you recall talking to Constable Erica Gibson about, 'the little girl urinated'? ---Actually, Detective Senior

Constable Edwards was in the room at the same time. Did you tell her - did you give her that information?--- Sitting in the room, in the interview room that I was in, I was questioned - Detective Edwards said to me, 'did anything else happen' and my answer to that was, 'oh, like what?', he said, 'you know, like people say, I just shit myself', I turned around and said, 'what, did she piss herself' without even thinking. Was that your response, 'did she piss herself'?---Without any thinking. I put it to you you told the Police Officer that she had urinated?---I - that was just a off-the-tongue - it was just a thought that's sort of straight off the tongue, 'did she piss herself' is what I said." (transcript, p.145). 52. 9:30pm: Chapman says he was telephoned at home by either Edwards or Reed. It was a short call. He says he did not use the words referred to in Item 24 and in the period 7.30pm-8pm he was out of town at his block. Edwards says he telephoned Chapman, requesting him to come to Berrimah Police Centre. The conversation was short. Detective Edwards said that this was the only telephone call he made to Chapman. Edwards' s137 record times this call at 9.04pm. 53. Edwards denies that the words referred to in Item 24 were used (transcript, p 84-85.) 54. 9:45pm: Chapman arrived at Berrimah Police Centre. Edwards and Chapman spoke for "20 minutes or so". 55. 10:31pm: A formal record of interview (Exhibits P6 and P7) commenced, taped on video. 56. 11:20pm: The formal interview (Exhibits P6 and P7) on video tape concluded. According to Edwards, on completion of this record of interview he mentioned to the accused the possibility of doing a video re-enactment the following morning, Tuesday 1 February. The accused denies that any such conversation took place. 57. 11:45pm: The accused was taken to the Watchhouse. 58. "Quite late in the night": Edwards says that either he or another Police Officer took the Polaroid photograph of the accused in the Watchhouse (Exhibit D1). The accused denies this; see Item 15. TUESDAY, 1 FEBRUARY 1994 59. "Next morning": Reed went with Edwards to the house in Byrne Circuit and seized the remainder of the accused's clothing. Edwards handed over the accused's clothing to Chilton of the Police Forensic section. 60. 8:32am: The accused was taken from the Watchhouse to the CIB interview room at the Berrimah Police Centre. 61. 9:04am: On tape (Exhibits P8 and P9), Edwards asked the accused to participate in a video re-enactment; he agreed. 62. 9:05am: The taped interview (Exhibits P8 and P9) concluded. 63. 10:08am: Edwards, Reed and Gibson, and the accused, drove to Byrne Circuit, Moil. 64. 10:35am: The video of the re-enactment (Exhibit P10) commenced. 65. 10:49am: The video of the re-enactment (Exhibit P10) concluded. 66. 10:55am: The Police and the accused returned to Berrimah Police Centre. 67. 2:00pm: The accused was brought before the Court of Summary Jurisdiction in Darwin by Reed. 68. I turn next to assess the evidence relating to these events. This entails assessing the credibility of the most important witnesses. THE CREDIBILITY OF THE WITNESSES EDWARDS, GIBSON AND THE ACCUSED 69. I turn first to a general submission on Edwards' credibility by Mr Kilvington, though I deal in detail with some of the questions thereby raised, later (see from p 41). He submitted that Edwards had kept "all his options" open by failing to record the events which took place at the Centre, apart from brief details for the purposes of ss137 and 138 of the Act, until the accused started to make admissions shortly before 8:00pm; and that therefore Edwards' evidence should be approached with "some suspicion". 70. I consider that Edwards should have ensured that a much fuller contemporaneous record was kept of his dealings with the accused, a "possible suspect" in his words, in what was a controlled environment in the Centre; this was particularly desirable after 4:30pm when a "blank period" in the accused's memory started to emerge. Not to do so, is to expose investigating Police to precisely the type of allegations of preliminary "softening up" which have been made here; one of the purposes of the requirement of electronic recording in s142(1) of the Act is to remove the opportunity for such allegations to be made. Indeed, it may be said that the primary purpose of s142(1) in requiring electronic recording is on the one hand to prevent the Police from fabricating confessions or interrogating oppressively, and on the other to prevent those who have made voluntary admissions from seeking to retract them. Further, from the Court's viewpoint, such recording provides most cogent evidence in determining allegations as to why inculpatory admissions were made. 71. It may not be current Police practice to tape all questioning of "possible suspects" at the Berrimah Police Centre. The allegations made in this case, read against the purpose and requirements of s142(1), point to the desirability of the Police electronically recording the whole of the questioning of a "possible suspect" in the Centre. To do so presents no cost or technical problem, as the Australian Law Reform Commission pointed out no less than 19 years ago; see ALRC Report No.2 on Criminal Investigation (1975), p 71. The matter is of great practical importance because of the central role of Police questioning in the investigation, and ultimately in the prosecution, of crime; there is no adequate substitute for such questioning. 72. The rights of suspects are also protected by an electronic record of what occurs between Police officer and suspect, objectively verifiable and tamper-proof. The absence of any electronic recording between 3pm and 8pm on Monday 31 January effectively precluded any non-Police corroboration of the accused's account of the nature and content of Edwards' questioning during this period, and of other alleged Police misbehaviour towards him; the provision of such corroboration for a suspect being questioned is one function of s142(1). It is thereby protective of persons being questioned, and such corroboration should be available to them. McKinney v The Queen [1991] HCA 6; (1990-91) 171 CLR 468 shows that public policy requires that law enforcement officers protect suspects against possible injustice, in this way. The cautionary comments of the High Court in R v Lee [1950] HCA 25; (1950) 82 CLR 133 at p 159 are also to be borne in mind in such a situation; though here the accused was clearly not an uneducated man, those comments apply generally to the ordinary person. I am satisfied that the situation envisaged in R v Lee (supra) at p 159 did not obtain here. 73. However, I do not consider, in the circumstances, that Edwards' failure to record "the questioning and anything said" by the accused during the period 3pm to 8pm, in terms of s142(1) of the Act, demonstrated irresponsible behaviour on his part in the investigation, as Mr Kilvington submitted. 74. I turn to the witnesses. As noted earlier, the principal matter for consideration is the respective credit to be attached to the evidence of Edwards and Gibson on the one hand, and the accused on the another. 75. As to Edwards, I do not accept Mr Kilvington's submission that he demonstrated a "very defensive and aggressive attitude", and tended not to answer questions and to be evasive. To the contrary, I found Edwards to be a convincing, restrained and careful witness. There was some apparent divergence between his evidence and that of Gibson - in particular, as to the time at which the accused started to talk about his "blank period" (items 9 and 26), and as to the degree to which Edwards questioned the accused, and item 35 - but it was not such in my opinion as to raise any doubt as to their respective credibility. In fact, in the circumstances, these discrepancies tend rather to show the honesty of these two witnesses. I should say that I accept Edwards' account (item 9), which accords with that of the accused (item 10), that the latter started to talk about his "blank period" at about 4:30pm; Gibson may have misunderstood the thrust of the questioning on the point - see item 26. I accept Gibson as to the degree of questioning of the accused by Edwards. 76. As to Gibson, I do not accept Mr Kilvington's attack on the credibility of her evidence on the basis that she was "somewhat waspish under pressure"; I consider that she was an honest, impressive and largely accurate witness, with good recall. 77. I do not consider that what Mr Kilvington termed "the objective indicia of reliability" - the giving of direct and coherent evidence with a beginning, a middle and an end, connected by a "logical thread" - was lacking, as regards the evidence of these two vital Police witnesses. 78. On the other hand, I considered that the accused lacked credibility, and the application to his evidence of those "objective indicia", on which Mr Kilvington relied, does not persuade me that his account is other than one largely fabricated to take advantage of the fact that in the 5 hours between 3pm and 8pm Edwards failed to utilize the electronic recording facilities available at the Centre, to record their exchanges. I make that finding despite a scenario of purported fact painted most skilfully by Mr Kilvington, to the opposite effect. In assessing the accused's credibility, I should record that I place some weight on his demeanour during the videoed interview on Monday night at 10.31pm, and in the videoed re-enactment on Tuesday morning, as indicating no sign of a person whose will to speak or to be silent had been overborne; however, in doing so, I bear in mind Mr Kilvington's submission that his behaviour in those videos is explicable on the basis that his will had already been broken because he had earlier succumbed to pressure. For the reasons earlier indicated, I do not think that that was the case; nor did he give the slightest indication of it. 79. In making this assessment of the respective credibility of the witnesses, I should say that I am well aware of the practical difficulties faced by any person being questioned in the isolated and Police-controlled atmosphere of a Police Station. I bear in mind that "all custodial interrogation is inherently coercive" - Miranda v Arizona [1966] USSC 143; (1966) 384 US 752; 16 L Ed 2d 694; but see Oregon v Mathiason [1977] USSC 15; (1977) 429 US 492; 50 L Ed 2nd 714. Here the accused was not in custody, between 3pm and 8pm; nor, I am satisfied, did he think he was. He was voluntarily 'helping' the police with their enquiries; see p 29. I am aware that this is often a mere euphemism, a stock cliche, by which the Police blur the line between freedom and arrest. I am satisfied it was not so here. Powerful social and psychological forces nevertheless operate in a Police interrogation which may destroy the voluntariness of admissions thereby obtained. A major purpose of any Police interview of a suspect is often the obtaining of admissions on which criminal proceedings can be founded. I also recognise the fact that Police members are usually well practised in giving evidence, as Edwards was, with the consequent difficulty in assessing accurately their credibility; see McKinney v The Queen (supra) at p 476. A person cannot be lawfully detained in custody until he has been arrested. Here, however, I do not consider that the accused was in custody lawfully or otherwise, or deprived of his freedom of action in any significant way, until about 8pm when he started to make inculpatory admissions. 80. By the nature of the accused's allegations, his evidence involved imputations on the character of Edwards and Gibson and thereby, exceptionally, enabled the Crown to seek to adduce and rely on evidence of the accused's own character and previous criminal record, on the question of his credibility; see s9(7)(b) of the Evidence [1961] HCA 74; Act and Dawson v The Queen (1961) 106 CLR 1 at pp 4-10. Mr Kilvington stressed that none of his prior offences involved "essential dishonesty", but that does not mean that they are not relevant to his credit; that is why I permitted the matter of his record to be raised in cross-examination, bearing in mind the need to be cautious and sparing in the exercise of that discretion, and the considerations mentioned by Smith J in R v Brown [1960] VicRp 62; (1960) VR 382 at 398. I note the accused was forthright in admitting the accuracy of Edwards' hand-written note of his admissions (Exhibit P2); he had however signed that note. I also note his straightforwardness in detailing his criminal record - though I consider he could hardly have done otherwise. Mr Kilvington rightly conceded that the accused had a "bad record". 81. Against this assessment of the respective credibility of the important witnesses, I now state my findings on the accused's allegations (pp 3-8) which lie at the root of this application. FINDINGS AS TO THE ALLEGATIONS OF OPPRESSIVE CONDUCT BY THE POLICE 82. The accused makes fourteen allegations; I bear in mind that multiple causes may individually contribute to, and taken together result in, the making of an inculpatory admission, even though no single cause by itself is sufficient to have induced the admission; see Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257 at pp 308-9. 83. As to item (iv) at p 4, I do not consider that Edwards told any "interrogatory lie" in relation to the alleged use (item 19, p 14) of the Polaroid photograph (Exhibit D1). I accept Edwards' evidence (item 41 p 19) that this photograph was not taken until after the videoed interview was completed at 11:29pm on Monday 31 January. I reject the accused's evidence (item 15) that it was taken at about 5:30-6:00pm, and that Edwards told him (item 19) that he had been identified by the victim by reference to it. I should say that in making that finding I accept Mr Kilvington's submission that the Police clearly would have wanted to record the accused's physical appearance at that time (Monday, 31 January), as the identification of the intruder seen in the early hours of Saturday 29 January was very much in issue. 84. I attach no significance adverse to the Police to the fact that they arranged (items 6 and 12, pp 12-13) for the victim to attend Berrimah Police Centre on Monday afternoon 31 January, while the accused was there; I accept that the Police wanted to see whether the victim could successfully produce an Identikit description of the intruder, and that they did not at any time intend to have her there attempt to identify the accused either by physically observing him at the Centre or by inspecting the Polaroid photograph (Exhibit D1), which I am satisfied was not taken until well after the victim had left the Centre - item 17. Nor do I think that it is other than unfounded speculation to attribute to Police an intention to see if the cyclist Mr Shepherd could identify on Monday 31 January the man he saw early on Saturday morning 29 January, from the Polaroid photograph of the accused (Exhibit D1); see item 16, p 14. 85. At to item (i) on p 3, the submission that the formal videoed interview (Exhibits P6 and P7) involved oppressive conduct founds on the allegation that it took place shortly after five hours of "reasonably gruelling interrogation", and not on anything which occurred during that interview itself. Similarly, with the first admissions at about 8pm (Exhibits P2-P4). It is clear that a prolonged period of interrogation can by its length alone constitute oppressive behaviour by Police; see Cornelius v The Queen [1936] HCA 25; (1936) 55 CLR 235 at pp 246-7, and McDermott v The Queen (supra), pp 511-12. However, I do not consider that the accused was questioned by the Police continuously over the five hours or so between about 3:20pm and 8:00pm. Bearing in mind what I am satisfied Edwards was doing and arranging to be done in that time (items 6, 12, 16, and 17, for example), and his approach to the interrogation in that period (items 6, 11, and 13, for example), and the many coffees and the meal supplied to the accused, I consider that Edwards' estimate of some two hours of actual questioning overall within the 5 hour period is close to the mark (transcript, pp.61-2). I consider that this period of questioning was not excessively long in the circumstances, nor was it oppressive in its nature; see items (i) and (ii) on p 3. 86. I do not consider that the questioning during the period prior to the accused making admissions shortly before 8:00 pm is properly characterised as "softening up" by Edwards. 87. Further, as to items (i) and (ii) on p 3, I consider that the likelihood is that Edwards questioned the accused more closely after he started to talk about a "blank period" in his memory which covered the time when the alleged assaults were believed to have been perpetrated; I accept the accused's evidence that he may have been taken over his story about six times in all by Edwards (transcript, p.129). It is clear that a person in custody should not be subjected to cross-examination, but questions of degree are involved; asking questions while observing reasonable standards of propriety in doing so, is a reasonable way to get answers. In any event, I consider that the accused was not "a person in custody" until he made admissions about 8:00pm on Monday 31 January. 88. As to item (ii) on p 3, I do not accept the accused's evidence that Edwards was continuously expressing disbelief in his story; accordingly, I do not accept that Edwards' questioning in the period prior to the admissions at about 8pm amounted to cross-examination of the accused, or to questioning which tended to overbear his free choice whether to speak or not. The accused admitted in evidence that he was aware that he "did not have to say anything", and that he went to the Berrimah Police Centre because he was "asked to assist (Police) with their inquiries" (transcript, p.142). I am satisfied he was well aware of his rights in that respect, as would be expected of a person with his previous criminal record. 89. As to item (i) on p 6, I note that the accused was formally arrested after 8:00pm (Exhibit P4, p 5). Mr Kilvington submitted that in fact he had been unlawfully arrested much earlier, either at the time he entered the Police car in Byrne Circuit at about 2.50pm, or at some time after he had arrived in the car at the Berrimah Police Centre at about 3pm, and in any event no later than when he informed the Police of the "blank period" in his mind - that is, I find, at about 4:30pm. 90. Police in the Territory may lawfully arrest a person without warrant, and take him into custody, only where they believe on reasonable grounds that he has committed, is committing, or is about to commit an offence; see s123 of the Act. At common law Police could arrest a person without warrant if they reasonably suspected he had committed a felony; but that power is necessarily superseded by the heavier requirement of 'reasonable belief', in s123. Edwards clearly could not lawfully have arrested the accused until he made admissions about 8pm; suspicion is less than reasonable belief, there is no power to arrest on suspicion, and Edwards had no reasonable grounds to form a belief that the accused had committed the offences, until about 8pm. It is also clear, for the purposes of the voir dire proceedings, that a person is regarded in law as being under arrest and held in custody when Police by their words or conduct would have given a reasonable person grounds to believe, and in fact have caused the person in question to believe, that he would not be allowed to leave should he try to do so. This legal consequence obtains, even if in fact the Police did not intend their words or conduct to have that effect; see R v Amad [1962] VicRp 75; (1962) VR 545 at pp 546-7 and R v Trotter (1992) 60 A Crim R 1 at p 13. In other words, an arrest occurs when a Police officer makes plain by what he says and does that the suspect is no longer a free person, as Hunt J put it in R v O'Donoghue (1988) 34 A Crim R 397 at p 401. 91. Here, since the Police never told the accused that he was not under arrest, the actual conduct of the Police is of importance, as Mr Kilvington submitted. Police are not normally required to inform a person that he is not under arrest; they are not obliged to say "You do not have to come" - see R v M (1976) Qd R 344. The accused was admittedly well aware that he was not under arrest; in his favour, I treat his admission to that effect as an understanding on his part that he had not been formally arrested. But the Police behaviour was not such as would have caused any substantial ambiguity in the mind of a reasonable person as to whether he was under arrest, and hence there was no obligation on the Police to inform the accused he was not under arrest and free to go; see R v S and J (1983) 32 SASR 174 at p 189. 92. As to item 2 (pp 10-11), I am satisfied that the accused was told on entering the Police car at Byrne Circuit about 2.50pm on Monday 31 January that the reason the Police wanted to speak to him was an incident involving a child assaulted at Moil Crescent on Saturday 29 January. 93. I do not consider it is accurate to describe the accused as then being "for all intents and purposes ... in custody"; in Mr Kilvington's striking phrase, "as though his feet were tied together". I have no doubt that the Police viewed him with suspicion - he was staying in a house quite close to the victim's home, had previous convictions for sexual assault, and his clothing as seized by Edwards early in the afternoon of Monday 31 January before going to the University (the seizure itself being indicative of suspicion) was roughly within the victim's description of the clothing worn by the intruder. I am satisfied, however, that the accused was not in a position of "de facto arrest" or in custody until he made his first inculpatory admissions shortly before 8:00pm; see R v Conley (1982) 30 SASR 226 at pp 239-240, per King CJ. I observe that there is always the possibility of ambiguity as to status where persons attend at a Police station "to assist the Police with their inquiries." This can be removed by a requirement that the volunteer be told on arrival, orally and in writing, that he is free to leave at any time, not obliged to answer questions, entitled to have someone told of his whereabouts, and to consult a solicitor in private; that is desirable, but it is not yet the law. 94. Police power to arrest without a warrant is set out in s123(1) of the Act. It is a basic obligation of a Police officer to be fully aware of the limitations on his power to arrest, since the citizen's right to personal liberty under the law is "the most elementary and important of all common law rights"; see Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 at p 152, per Fullagar J. The protection of that right is a purpose of s142(1). Until the accused made admissions at about 8pm he was clearly a suspect only, and could not lawfully be arrested under s123(1); nor was he. I note in passing at this point that s142(1) of the Act is not directed to a person arrested but to "a person suspected", a category into which in my view the accused fell certainly no later than about 4.30pm on Monday 31 January, and in all probability from the time he entered the Police car at about 2.50pm that day. The Police say they regarded him as a "possible suspect" but in the circumstances that is a distinction without a difference. 95. I will deal with the other allegations relied on to support submissions (a) and (b) (pp 3-9), more briefly. Mr Kilvington referred to the provision of an unwanted dinner as showing a "subtle form of intimidation" by the Police, but I reject this and accept Edwards' account (item 17, p 14). 96. I do not accept the accused's account that he overheard a telephone conversation between two Police officers, the contents of which intimidated him (item (vii), p 4). I accept the account at item 36, p 18. 97. Access to a legal adviser is one of the most important and fundamental rights of the citizen, and a fundamental safeguard to a suspect. It is not listed in s140 as a right about which the Police are required to inform a person in custody before questioning him; cf s464C(1)(b) and (2) of the Crimes Act 1958 (Vic). I do not accept the accused's account that Edwards denied him access to a lawyer (item (iii), p 4 and item (v), p 8). Nor do I accept his account that Edwards told him he would be bailed if he "came clean" (item (vi), p 5), or told him the "interrogatory lie" about fibres from the flannelette shirt being found on his belt (item (v), p 4); or that Gibson threatened to "get the heavies" on him (item (viii), p 5). I consider that he fabricated his evidence in those four respects, and this alleged denial of right, inducement, trick and threat did not occur. 98. I do not accept the accused's account that the Police gave him the impression that he could not leave until he talked (item (ii), p 7). I consider that he was well aware that the Police could not exercise any restraint whatsoever on him, or detain him in any way, unless they arrested him. If he nevertheless came to think that he could not leave, that was a product of matters in his own mind, not stemming from anything the Police had said or done. There was no breach of s140 of the Act because the accused was not a "person in custody" until after he gave an account at about 8:00pm which contained incriminating detail (item (iii), p 7); clearly, Edwards would not then have permitted him to leave. Thereafter, he is to be treated as under arrest and in custody; see Amad (supra). I do not consider that Edwards cautioned the accused too late, in the circumstances (item (iv), p 8 and Exhibit P4, p 1). Police are not required under s140 to alert a suspect who is voluntarily assisting them and not in custody, to his rights; see R v Leecroft (1987) 46 SASR 250, comment at p 32, and R v M (supra). 99. As to the submission (item (vi), p 8) that the accused was not brought before a Court "as soon as is practicable after being taken into custody" as required by s137(1) of the Act, in that he was not brought before a Court at 10am on Tuesday 1 February instead of 2pm that day, I note that s137(1) is expressed to be subject to s137(2) and (3), which provide, as far as material:- "(2) NOTWITHSTANDING ANY OTHER LAW IN FORCE IN THE TERRITORY (including the common law), but subject to subsection (3) a MEMBER of the Police Force MAY, FOR A REASONABLE PERIOD, CONTINUE TO HOLD A PERSON HE HAS TAKEN INTO LAWFUL CUSTODY IN CUSTODY TO ENABLE - (A) THE PERSON TO BE QUESTIONED; or (b) investigations to be carried out, to OBTAIN EVIDENCE of or in relation to an offence that the member believes on reasonable grounds involves that person, whether or not - (c) it is the offence in respect of which the person was taken into custody; ... (3) A member of the Police Force may continue to hold a person under subsection (2) for the purposes of enabling the person to be questioned or investigations to be carried out to obtain evidence of or in relation to - (a) the offence in respect of which the person was taken into

custody, only if it is an offence the maximum penalty for which, in the jurisdiction in which it is believed to have been committed, is imprisonment for any period; or ..." (emphasis mine) 100. Section 137(2), in providing for a person to be held in custody "for a reasonable period" for the purposes specified, substantially modifies the common law as set out in Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278. To a degree it legislatively restores the validity of the approach favoured by Lord Denning MR in Dallison v Caffery (1965) 1 QB 348 at p 367. See generally on s137(2) the Report of the Consultative Committee on Police Powers of Investigation (Vic) (the Coldrey Committee), April 1986; and Heiss and Kamm v The Queen, (unreported, Court of Criminal Appeal, 7 October 1992) at pp 65-69. 101. Section 138 lists 15 factors which are to be taken into account, "so far as it is relevant" to do so, in determining "what is a reasonable period for the purposes of s137(2)", though those factors do not limit "the discretion of ... the court" in determining the reasonable period. The statutory factors include for example "(m) the time during which the ... questioning ... was suspended ... to allow the person to rest", and "(r) the time taken to arrange and conduct an identification parade". "Questioning", in the context of factor (m) above, refers "to the entire process of questioning while the person concerned is in custody"; see Pollard v The Queen [1992] HCA 69; (1992) 110 ALR 385 at p 391, where a minority in the High Court considered a very similar provision in corresponding Victorian legislation. Somewhat curiously, the statutory factors in s138 do not include the voluntary engaging in a re-enactment, which has for years been common Police practice and is a reasonable investigative measure. Nevertheless, I consider that where an accused freely agrees, as here, to take part in a re-enactment of a crime, he is agreeing to take part in what is simply part and parcel of Police questioning and investigation under s137(2). 102. About 8pm, after the accused had volunteered admissions, he was for the first time held "in custody". Late that Monday night he went to bed and was allowed to rest, in terms of item (m) in s138, (p 36). In the light of s137(2) and (3) of the Act as applied to the circumstances of this case, I consider that it was lawful for the Police to "continue to hold" the accused "in custody" on Tuesday morning 1 February, when he agreed (as I find he did) to take part in a videoed re-enactment later that morning, because that was "a reasonable period" for which the Police could "continue to hold" him "to enable (him) to be questioned" further by way of the re-enactment. I consider that bringing him before the Court at 2:00pm that day after the re- enactment, instead of 10:00am, complied with the requirements of s137(1) when read with s137(2). I should add that if, contrary to this conclusion, the proper view is that the accused was not brought before a Court as soon "as is practicable after being taken into custody", I would not in all the circumstances regard the 4-hour delay as one which would attract the discretionary exclusion of Exhibit P10. Edwards clearly acted throughout in good faith. 103. I have dealt at pp 27-37 with all the allegations on which Mr Kilvington relied to found his first two submissions. In general, I do not accept that the accused was subjected on Monday 31 January to oppression by the Police which had the effect of overbearing his will to speak or to be silent, and to render his admissions involuntary. The fact that he made admissions is not, as such, evidence that his will was overborne. CONCLUSION ON SUBMISSION AS TO VOLUNTARINESS 104. On the basis of the findings of fact at pp 26-37, I am satisfied that the admissions made about 8:00pm on Monday 31 January 1994 (Exhibits P2-P4) were clearly made voluntarily by the accused, in the legal sense of having been made in the unfettered exercise of his own free will, the exercise of his free choice to speak or to remain silent, as were his later admissions that night in the formal videoed interview (Exhibits P6 and P7) and in the videoed re-enactment on 1 February (Exhibit P10). As to those videos, since I find there was no oppressive Police behaviour on Monday 31 January, the question of whether its effect had later dissipated simply does not arise. The Crown has discharged the onus it bears of proving on the balance of probabilities that the admissions were voluntary; see Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559 and the authorities cited by Deane J in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at p 19. Accordingly, I reject Mr Kilvington's first submission ((a), at pp 2-5). CONCLUSION ON SUBMISSION AS TO DISCRETIONARY EXCLUSION: FAIRNESS DISCRETION 105. As to the question of the discretionary exclusion of these voluntary admissions, first on the basis that it would be unfair to receive them into evidence at the trial and use them against the accused, I note that the answer depends on "the conduct of the Police and all the circumstances of the case"; see R v Lee (supra) at p 154. Any evidence of Police impropriety or other conduct which may have caused the accused to make inculpatory admissions, as well (on the other hand) as evidence which suggests that the admissions are reliable, are to be taken into account. The onus lies on the accused to establish unfairness, on the balance of probabilities; see the authorities cited in Cleland v The Queen (supra) at p 19, per Deane J. 106. In light of the findings of fact at pp 27-37 I do not consider that it has been shown that the Police used unfair, improper or illegal methods to obtain the admissions which the accused made, or that he was denied procedural fairness. I do not consider it has been shown that his admissions, which are relevant, are probably unreliable. I consider that it is manifest that the admission into evidence of the accused's admissions would not be unfair; they should not be excluded on that basis. CONCLUSION ON SUBMISSION AS TO DISCRETIONARY EXCLUSION: PUBLIC POLICY DISCRETION 107. As to exclusion on public policy grounds, on the findings as to the allegations relied on by Mr Kilvington I do not consider it has been shown that the admissions were made in circumstances of unfair, improper or unlawful methods of interrogation by the Police such that the public interest warrants their exclusion, when the competing requirements of public policy are weighed. The evidence of the admissions has not been shown to have been unlawfully obtained. They should not be excluded on public policy grounds. SUMMARY - DISCRETIONARY EXCLUSION 108. In summary, in light of the factual findings on the allegations relied on by Mr Kilvington to enliven the exercise of the discretion to exclude, I do not consider that it has been shown on the balance of probabilities that the Police conduct and the circumstances of the case were such as to justify excluding the accused's admissions from the evidence to be placed before the jury at the trial, in the exercise of the Court's residual discretion, applying the considerations set out in Cleland v The Queen (supra) at pp 5-6, 18-20, 23-4, 27-31, and 34-36 and Foster v The Queen [1993] HCA 80; (1992) 113 ALR 1 at pp 6, 13-14 and 19-21. See also Pollard v The Queen (supra) at pp 403-406, per Deane J. I reject Mr Kilvington's second submission ((b), at pp 6-9). 109. I should say that this conclusion is drawn subject to considering Mr Kilvington's third submission ((c), at p 9); but, subject thereto, the accused has failed to establish facts which would justify the exercise of the exclusionary discretion in his favour. 110. There is one aspect of the evidence I merely mention in passing, since nothing was sought to be made of it in argument. When Police merely suspect a person they cannot proceed to obtain evidence by seizing his clothing, unless they have lawful authority to do so; cf s119(1) of the Act and see Levine v O'Keefe [1930] VicLawRp 10; (1930) V.L.R. 70. Improperly obtained evidence may be excluded from the evidence at trial; see Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, at pp 75-80, for the relevant factors. 111. I turn next to Mr Kilvington's third major submission ((c) at p 9), that the admissions are rendered inadmissible in evidence at the trial because s142(1) of the Act was not complied with; he also submitted that if they were inadmissible because of s142(1) they should not be admitted in the exercise of the Court's overriding discretion in s143. THE EFFECT ON ADMISSIONS OF SS142(1) AND 143 OF THE ACT 112. Section 142(1) of the Act is set out at p 9. It is expressed to be "subject to Section 143" which provides, as far as material:- "A court MAY ADMIT evidence to which this Division applies even if the requirements of this Division have not been complied with ... if, HAVING REGARD TO THE NATURE OF AND THE REASONS FOR THE NON-COMPLIANCE ... AND ANY OTHER RELEVANT MATTERS, the COURT IS SATISFIED that, in the circumstances of the case, admission of the evidence WOULD NOT BE CONTRARY TO THE INTERESTS OF JUSTICE." (emphasis mine) 113. These provisions are designed to ensure the fair treatment of suspects being questioned and should not be narrowly construed; for example, see R v Li [1993] VicRp 59; (1993) 2 VR 80 at p 87, per Coldrey J. Just as ss137(2) and 138 have vested new and necessary power in the Police in order that they may properly perform their function of investigating crime, so ss142(1) and 143 operate as practical constraints upon the exercise of that power, to ensure it is not used improperly; see pp 21-2. THE EFFECT OF S142(1)(B) OF THE ACT (P9) A "PERSON SUSPECTED" 114. Mr Cato rightly conceded the strength of Mr Kilvington's submission that when the accused first made admissions about 8pm, s142(1)(b) required that a tape recorder should already have been switched on. Once the accused started to "open up" on his "blank period", Mr Cato rightly conceded, he became a "person suspected", for the purposes of s142(1)(b) of the Act. 115. The concept of "person suspected" is central to s142(1). Section 142(1) is "directed to confessions made by suspects generally", as Mason CJ said in Pollard (supra) at p 388; that is, it is not confined to persons in custody, as are ss137 and 140. Mr Kilvington rightly conceded that before s142(1)(b) applied, the accused had to be "a person suspected of having committed a relevant offence". Who then is "a person suspected"? 116. Both Mr Cato and Mr Kilvington referred to the obiter discussion of the concept of "suspect" in R v Bina Raso (1993) 68 A Crim R 495; see in particular the discussion by Ormiston J at pp 526-9, with whose views I respectfully agree. See also George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at p 115, where it is noted that "suspicion and belief are different states of mind", and that suspicion ordinarily connotes a state of surmise where proof is lacking; I respectfully agree - suspicion is much less than belief, which includes or absorbs suspicion. See also Shaaban Bin Hussein v Chong Fook Kam [1969] UKPC 26; (1969) 3 All E R 1626 at pp 1630-1, and Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VicRp 81; (1984) VR 1019 at pp 1024-5. 117. I respectfully agree with Mildren J in R v Maratabanga (unreported, Supreme Court of the Northern Territory, 23 June 1993) at p 9 that the person by whom the accused is "a person suspected" must be the interrogating Police officer to whom the admission in question is made, and his suspicion need not be a reasonable suspicion; as his Honour says, s142(1) "provides for a subjective enquiry only". The question is, did the Officer honestly suspect the accused of having committed the offence? As to the meaning of "suspected" in s142(1), his Honour said at pp 9-10:- "... 'suspected' is not subject to any special definition and must therefore be taken to have its ordinary English meaning. I reject the submission of Mr Wallace that this word is

equivalent to the state of mind of a police officer who, having reached the accusatory stage of an interview, is required by the Judges' Rules to give a caution. .... It is clear from the wording of the Rules that a person may be suspected well before a police officer decides that he is going to charge an accused: see Webb v Cain [1965] VicRp 12; (1965) VR 91 at 95. The Shorter Oxford Dictionary contains the following definition of 'suspect': "to believe or fancy to be guilty

... etc with insufficient proof or no proof." The Macquarie Dictionary contains the following meaning: "to imagine to be guilty ... etc. with insufficient proof or not proof." The difficulty is that SUSPICION IS A STATE OF MIND WHICH CAN VARY CONSIDERABLY. THE SUSPICION MAY BE VERY SLIGHT OR IT MAY BE VERY STRONG, OR IT MAY BE SOMEWHERE IN BETWEEN; IT MAY BE REASONABLE OR UNREASONABLE; IT MAY BE BASED ON SOME FACTS WHICH MIGHT BE EVIDENCE IN A TRIAL, OR IT MAY BE BASED ON NOTHING MORE THAN INTUITION OR INSTINCT. But, in my opinion, the kind of suspicion required must be such as to engender a belief, whether reasonable or not, and whether or not proof is lacking, in the mind of the police officer that the person being questioned is probably guilty of the relevant offence." (emphasis mine) 118. With respect, while I agree with the passage emphasized, I do not consider that to suspect the person he is questioning, in terms of s142(1), the Police officer must at that time believe that he is probably guilty of the offence. Suspicion in general lies somewhere between mere speculation that the person committed the offence, without any factual foundation

• a mere idle wondering - and a belief based on reasonable grounds that he committed it. It is a state of mind which arises from a consideration of known facts less than those required for a belief, resulting in an apprehension that the person might possibly have committed the offence. It requires a degree of conviction which is beyond mere speculation, and based upon some factual foundation. In my opinion, as indicated at p 32, the accused was a "person suspected" by Edwards when he went with Edwards to the Berrimah Police Centre at about 2.50pm. Thereafter, the requirements of s142(1) were required to be met if (subject to s143) evidence of a confession made by the accused during any subsequent questioning by Edwards was to be admissible. THE "QUESTIONING" DURING WHICH THE ADMISSIONS WERE MADE

119. Mr Cato conceded that "commencement of questioning" in terms of s142(1) occurred when Edwards started to make a contemporaneous handwritten note (Exhibit P2) of what the accused was saying, at about 8pm. In fact, I consider that the "questioning" commenced at about 3.20pm and continued over intermittent periods totalling some 2 hours until about 8pm when the accused first made inculpatory admissions; and thereafter that questioning continued when he was in custody, in the audio-interview (Exhibits P3 and P4) the video interview (Exhibits P6 and P7), and the videoed re-enactment (Exhibit P10). I deal with the "questioning" at pp 47-72.
120. The concession by Mr Cato, rightly made in my view though not going as far as I consider the facts require, meant that the question whether there had been non-compliance with s142(1) of the Act was not subject to full adversarial argument. CONCLUSIONS ON EFFECT OF NON-COMPLIANCE WITH S142(1)(B)
121. I may express immediately my conclusion on the legal effect of what was a clear non-compliance with s142(1): I consider that, subject to s143, evidence of the admissions made by the accused about 8pm, as recorded in Edwards' note (Exhibit P2) and in the audio tape (Exhibits P3 and P4), and of his admissions some 2 hours later in the videoed interview (Exhibits P6 and P7), and in the re-enactment next morning (Exhibit P10), is inadmissible in evidence before the jury at the trial by virtue of s142(1)(b) of the Act. This is because the first admissions, about 8pm, were "made during questioning", and there was in reality only one period of "questioning" during which those admissions (Exhibits P2-P4), the admissions later that night (Exhibits P6-P7), and in the re-enactment next day (Exhibit P10), were made. It is necessary, however, to explain the basis for this conclusion.
122. The leading authorities are Pollard v The Queen (supra) and Heatherington v The Queen [1994] HCA 19; (1994) 120 ALR 591; it is necessary to examine these authorities in some detail. Both stemmed from Victoria and concerned the construction of s464H of the Crimes Act 1958 (Vic); the factual situations were somewhat different, in that in Pollard (supra) there were 2 interviews at different times in 2 different places, while in Heatherington (supra) there were 2 interviews at different times in the same place. In Pollard all 7 members of the High Court agreed as to the disposition, but split 4/3 on the point of present importance. In Heatherington (supra) the Court split 4/3 as to the disposition of the case, but the minority (the same minority as in Pollard) now accepted and applied the approach of Toohey J, one of the majority judges in Pollard, though arriving thereby at a different result to the majority.
123. In Pollard (supra) the Police interviewed the accused at Frankston CIB office following his arrest. This interview was not recorded though recording facilities were available there; the Crown did not seek to adduce its contents in evidence. Deane J said (p 406) that this interview lasted "a substantial part of the time" the accused remained in the interview room (some 3 1/2 hours). Toohey J noted (p 412) that one Police witness said it lasted for 1 1/2 hours, and McHugh J considered (p 421) that it lasted "about one and a half hours". The accused was at Frankston for some 3 1/2 hours in all before being taken to the St. Kilda Police Complex where he was interviewed on video, by the same Police officer, some 5 hours after arriving at Frankston. He made significant admissions in the videoed interview, which referred back to the Frankston interview. The Crown successfully adduced the video in evidence at trial over the accused's objection that it should not be admitted, because of a failure to comply, inter alia, with s464H of the Crimes Act 1958 (Vic). The High Court unanimously granted special leave to appeal, and allowed the appeal; by majority, it ordered a new trial. Subsections 464H(1) and (2) provide, as far as material:- "(1) Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who: (a) was suspected; or (b) ought reasonably to have been suspected: of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless: (c) if the confession or admission was made before the commencement of questioning, the confession or admission was tape-recorded, or the substance of the confession or admission was confirmed by the person and the confirmation was tape-recorded; or (d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded; or (e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded, or the substance of the confession or admission was confirmed by the person questioned and the information was tape-recorded: ... and the tape-recording is available to be tendered in evidence. (2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub-section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances: (a) are exceptional; and (b) justify the reception of the evidence."
124. It can be seen that s464H(1) corresponds roughly with s142(1) of the Act (p 9), and s464H(2) roughly with s143 (p 41), though there are major differences in the wording.
125. The High Court had to decide whether "questioning" in s464H(1)(d) meant the questioning at both Frankston and St Kilda, or just at St Kilda where "the confession ... was made." A majority of the Judges (Mason CJ, Deane, Toohey and McHugh JJ) appear to have held that on the proper construction of s464H(1), where there is more than one interview at different places and a confession or admission is made during one of the periods of questioning, it is not always necessary that the whole of the questioning during both interviews be taped; what s464H(1) requires is that the interviews, during which the confession or admission was made, be taped. On the facts of the case, only the questioning at St Kilda had to be taped. Their Honours wrote separate opinions. Mason CJ, Deane and McHugh JJ appeared to consider that in any event only the "questioning" at the second place had to be taped; Toohey J held that whether or not both interviews must be taped is a question of fact, in each case.
126. Mason CJ said of s464H(1) and (2) at pp 386-7:- "(Subsection 464H(1)) does not simply provide ... that a confession is inadmissible unless the entire interrogation of the person investigated was tape-recorded and the tape recording is available to be tendered in evidence. The reason the subsection does not so provide is that the legislature intended that a confession made in the course of an interview which was not tape-recorded should be admissible in two situations. (His Honour then referred to ss464H(1)(c) and (e), and continued:) Moreover, s464H(2) specifically provides that a confession otherwise inadmissible by reason of s464H(1) may be admitted into evidence in the exceptional circumstances mentioned in s464H(2). ... As it is drawn, (s464H(1)) gives rise to the question: what is meant by the words "confession ... made during questioning" where they appear in paras (d) and (e)?"
127. I interpose that the corresponding words in s142(1)(b) of the Act are "confession ... made during the questioning"; see p 9. His Honour continued at p 387:- "In resolving that question, the first point to be made is that the later words "the questioning and anything said by the person" appear to relate naturally back to the earlier words and appear to take their meaning from those earlier words. Next, it is important to note that the words "during questioning" do not exist in isolation. In each of the two paragraphs ((d) and (e)) they appear as part of the more extensive expression "during questioning at a place", which is followed by a clause describing the place by reference to the presence of facilities for conducting an interview in para (d) ... . As each paragraph begins by focusing on the making of a confession during questioning at a place, IT IS NATURAL TO READ THE REQUIREMENT THAT THE QUESTIONING AND ANYTHING SAID BY THE PERSON BE TAPE-RECORDED SO THAT IT REFERS TO THE QUESTIONING AT THE PLACE ALREADY DESCRIBED." (emphasis mine)
128. I interpose to note that since s142(1)(b) does not draw the distinction made in the Victorian provision s464H(1)(d) and (e), based on "places" where "facilities" are available, a construction of s142(1)(b) based on a "natural" reading of its language, limiting the "questioning" to "questioning at a place", simply is not open. The Chief Justice then discussed other matters relevant to the significance of "place" in s464H(1) to the construction of the words "the questioning and anything said by the person" in (d) and (e), and continued at p 388:- "For present purposes, the significant features of subs (464H) (1) are that (i) it expressly recognises, in particular in para (e), that the process of interrogation will be broken up, as in fact it must be in some circumstances; (ii) it proceeds, in paras (d) and (e), to refer to a "confession ... made during questioning" at a place; and (iii) the requirement, which immediately follows, is for tape-recording of "the questioning and anything said by the person" (emphasis added). These considerations tell against the argument advanced by the applicant (that the words "questioning ... questioned" in s464H(1)(d) referred to the entire process of interrogation). Further, if it be accepted that the expression "facilities were available to conduct an interview" in para (d) refers to tape-recording, as I think it does, albeit this is a question fraught with

difficulty, the arguments against the applicant become even stronger. That is because it is natural and logical to associate the requirement of tape-recording in para (d) with the questioning which takes place where the tape-recording facilities are available." 129. I note again that s142(1)(b) of the Act does not turn on the existence of "facilities" at a "place", as does s464H(1)(d). His Honour continued at p 388:- "The one question so far not clearly resolved in my mind is whether para (d) is capable of being read as a requirement that, where confessions are made at two places at which the requisite facilities are available, the interrogation at both places must be tape-recorded if the later confession is to be admissible. In this respect, the applicant relies upon the rule of construction, expressed in s37(c) of the Interpretation of Legislation Act 1984 (Vic), that prima facie the singular includes the plural. The answer to the submission ,it seems to me, turns on what is meant by the words "evidence of a confession or admission" at the beginning of subs (1) because the subsequent references to "the confession or admission" relate back to what appears at the beginning of the subsection. It is evidence of a confession (in the sense in which I use that term) which is rendered inadmissible. In other words, PARA (D) IS CONCERNED WITH THE "QUESTIONING AT A PLACE" DURING WHICH THE PARTICULAR CONFESSION WAS MADE WHICH IS SOUGHT TO BE TENDERED IN EVIDENCE. The rule of construction is therefore displaced." (emphasis mine) 130. I interpose to note once again the stress his Honour placed on the concept of "place" in reaching his conclusion on the application of s464H(1)(d) to a situation where confessions are made at two places, a concept which plays no part in s142(1)(b) of the Act. His Honour concluded at p 388:- "The critical question then is whether the applicant made separate confessions at Frankston and at St Kilda Road or whether he made one confession in the course of questioning at both places. IN MY VIEW, THE CORRECT ANSWER IS THAT THE APPLICANT MADE TWO CONFESSIONS, EACH MADE AT A DIFFERENT TIME

AND PLACE. I acknowledge that the interpretation which I have given to s464H(1) produces some unsatisfactory consequences, especially because it enables the recorded interrogation to be admitted in circumstances in which it is preceded by an unrecorded interrogation. THE EXISTENCE OF AN ANTECEDENT UNRECORDED INTERROGATION CAN GIVE RISE TO THE VERY SORT OF PROBLEM AGAINST WHICH THE RELEVANT PROVISIONS PROVIDE SOME SAFEGUARD. HOWEVER, IN MY VIEW, THE LANGUAGE AND STRUCTURE OF THE PROVISIONS DICTATE THE INTERPRETATION WHICH I FAVOUR. I do not find any assistance in s464A, which is directed to a different problem, fixing the time during which a person may be held in custody for the purpose of questioning and investigation. SECTION 464H, it should be noted, is not confined to confessions made by suspects in custody; IT IS DIRECTED TO CONFESSIONS MADE BY SUSPECTS GENERALLY." (emphasis mine) 131. Deane J reached his decision on the basis that there had been a breach of s464C, which corresponds broadly to s140 of the Act, and on that basis the exercise of the discretionary exclusion power (on both fairness and public policy grounds) had miscarried. However his Honour said at pp 400:- "As Brennan, Dawson and Gaudron JJ demonstrate in their joint judgment, the provisions of subdiv 30A of the Crimes Act 1958 (Vic) (the Act) support the approach that the "questioning" or "investigation" of a person in custody is prima facie to

be understood, for the purposes of that subdivision ,as an entire process which may encompass different periods of questioning or investigation at different places. Thus the reference to "any questioning" in s464C must be understood in that sense. None the less, IT APPEARS TO ME THAT, IN A CASE SUCH AS THE PRESENT WHERE QUESTIONING UNDER S464A ENCOMPASSED DIFFERENT PERIODS OF QUESTIONING AT DIFFERENT PLACES, THE PHRASES "QUESTIONING AT A PLACE" AND "THE QUESTIONING" IN S464H(D) AND (E) MUST BE CONSTRUED AS REFERRING NOT TO THE WHOLE OF THE OVERALL QUESTIONING BUT TO THE PARTICULAR PERIOD OF QUESTIONING IN WHICH THE RELEVANT CONFESSION OR ADMISSION WAS MADE. It follows that I agree with Mason CJ, Toohey J and McHugh J that the videotape of the interview at the St Kilda Road Police Complex between the applicant and the two police officers was not rendered inadmissible by reason of the provisions of that section." (emphasis mine) 132. Toohey J said at pp 413-417:- "The applicant's principal argument in regard to s464H(1)(d) was that his questioning began at Frankston and concluded at St Kilda Road. Before the Court of Criminal Appeal it was

contended that the questioning was one and indivisible and could not be severed. And, the argument ran, as there was a failure to tape-record so much of he questioning as took place at Frankston, there was a breach of para (d) of s464H(1); that breach infected so much of the questioning as took place at St Kilda Road. Before this court counsel for the applicant put the argument a little differently, contending that it was the words "during questioning" in s464(1)(d) that were all-important and that those words were wider than the idea of something that was one and indivisible because questioning, by its very nature, was a process. It must be said immediately that s464H presents problems of construction and that, whatever construction is given to it, practical difficulties result. ...

Subsection (1) (of s464H) is made subject to subs (2) so that there resides in the court a power to admit evidence of a confession or admission rendered inadmissible by subs (1) if the court is satisfied on the balance of probabilities that the circumstances are exceptional and justify the reception of the evidence. NO ATTEMPT WAS MADE IN THE PRESENT CASE TO SUPPORT THE ADMISSIBILITY OF ANY CONFESSION OR ADMISSION MADE BY THE APPLICANT BY REFERENCE TO SUBS (2). Where there is a challenge under s464H, the first inquiry must be by reference to subs (1). (His Honour then referred to s464H(1)(c), (d) and (e) and continued:) it is apparent that the intention of the subsection is to ensure that evidence of a confessional nature from a suspect is not received into evidence unless it is tape-recorded. But it must be understood that s464H is concerned with the admissibility of evidence. Nothing in that section or elsewhere in subdiv 30A imposes an express obligation on investigating officials to tape-record interviews with suspects. (Section 464G requires tape-recording, if practicable, in the circumstances to which ss464A(3), 464C(1) and 464F(1) relate. Those provisions deal with particular information required to be given to a person in custody. There are other comparable sections in the subdivision.) It is possible to conjure up situations with which, arguably, the section does not deal. What if, for instance, ,a person suspected of having committed an offence is questioned and denies any complicity in the offence, the questioning is tape-recorded and later the person returns to the police station where he or she makes a frank admission of guilt unaccompanied by any questioning? Is that admission excluded by s464H(1) unless it is tape-recorded? Again, what if an admission of guilt is made in a written statement provided by the person? Is evidence given of such a statement "evidence of a confession or admission made to an investigating official"? And if the person is not suspected or ought not reasonably to have been suspected of having committed an offence, that person's admission or confession is not within the terms of s464H. These examples demonstrate that the framers of s464H may not have achieved all they set out to do. But the section has to be given a meaning and an operation which are intelligible so far as it is possible to do so. ... Sometimes, especially when the questioning of a person has taken place on more than one occasion or at more than one place, it may not be easy for the trial judge to determine, as a question of fact, whether the requirements of s464H(1) have been met. But the subsection itself, with its division into paras (c), (d) and (e), seems to recognise that there

may be more than one "questioning"." 133. I interpose to note that (c) does not point to a recognition that there may be more than one "questioning"; it is (d) and (e), taken together, which point that way. There is nothing in s142(1)(b) of the Act which similarly contemplates that there may be more than one "questioning". Toohey J continued: "Section 464H(1) is confined in its operation to evidence of a confession or admission made by a person who was suspected or ought reasonably to have been suspected of having committed an offence. It is not expressly confined to a confession or an admission made by a person in custody. And it is concerned only with the admissibility of evidence, not directly with the questioning of persons in custody. ... Section 464A is not concerned with whether questioning is one process, with the place or places where questioning takes place or with the presence or absence of facilities for recording what may be said, except in so far as those matters bear on whether the time taken for questioning is reasonable. On the other hand, s464H(1) does not impose obligations on investigating officials. If evidence of a confession or admission is obtained in breach of the section, it will not be admitted into evidence, subject to the operation of subs (2). There are no other consequences. CERTAINLY A TRIAL JUDGE SHOULD BE ASTUTE TO ENSURE THAT INVESTIGATING OFFICIALS DO NOT TRY TO AVOID THE OPERATION OF S464H(1) BY FRAGMENTING THEIR QUESTIONING, AS TO BOTH TIME AND PLACE. IN ANY EVENT, THE TRIAL JUDGE WILL REFUSE TO ADMIT CONFESSIONAL EVIDENCE IF IT WAS NOT OBTAINED VOLUNTARILY AND MAY REFUSE TO DO SO IF IT WAS OBTAINED UNFAIRLY, ILLEGALLY OR IMPROPERLY. (See Van der Meer v R [1988] HCA 56; (1988) 62 ALJR 656, at 665-6; [1988] HCA 56; 82 ALR 10, at 26.) SECTION 464H(1) DOES NOT IMPINGE ON THOSE AREAS OF INADMISSIBILITY, EXCEPT THROUGH THE OPERATION OF SUBS (2). (Paragraphs (c) and (d) of s464J of the Act provide that nothing in subdiv 30A affects the discretion of a court to exclude unfairly obtained evidence or illegally or improperly obtained evidence.) It is obvious that in some circumstances questioning may properly take place on a number of occasions and, it may be, at a number of places. But if the Crown seeks to lead evidence of a confession or admission made on any of those occasions, its admissibility will be determined by the operation of the section. And even if the Crown

chooses, as here, not to rely upon something said on an earlier occasion, THE EARLIER OCCASION MAY BE TREATED BY THE COURT AS PART OF THE SAME QUESTIONING IF CIRCUMSTANCES, IN PARTICULAR PROXIMITY OF TIME AND PLACE, SO DICTATE. QUESTIONS OF DEGREE ARE NECESSARILY INVOLVED. (As to 'place", it is true that s37(c) of the Interpretation of Legislation Act 1984 (Vic) provides that, unless the contrary intention appears, "words in the singular include the plural". But the issue still is whether the same questioning is involved at each place.) While the Court of Criminal Appeal did not refer to the precise timing of the events that took place, it is clear that they regarded the intervals of time and place and the difference between the more informal exchange at Frankston and the long and detailed interview at St Kilda Road as sufficient to treat the questioning at St Kilda Road as not the same questioning as that which took place at Frankston. It may be, as the trial judge observed during his ruling on the voir dire, that at Frankston Detective Minisini "obtained a valuable insight into the accused and an understanding of what his version of the evening's events was likely to be when a formal interview was to be conducted". But THE ISSUE IS STILL WHETHER THE QUESTIONING AT ST KILDA ROAD WAS THE SAME QUESTIONING AS THAT WHICH TOOK PLACE AT FRANKSTON. IT IS NECESSARY TO FOCUS ON THE QUESTIONING WHICH PRODUCED THE ANSWERS SOUGHT TO BE ADDUCED IN EVIDENCE. IS THAT QUESTIONING, IN TERMS OF S464H(1), AFFECTED BY WHAT TOOK PLACE EARLIER? It is not directly to the point that what took place earlier may itself not be adduced in evidence. Clearly, views on this matter may differ but I do not think it can be said that the approach taken by the Court of Criminal Appeal disclosed any error of principle or misunderstanding of the legislation. The court made a judgment on their assessment of the evidence given at trial." (emphasis mine) 134. McHugh J said at pp 422-424:- "The applicant contends that the provisions of s464H of the Act made the record of interview at St Kilda Road inadmissible because, in breach of that section, the questioning of the applicant at Frankston was not tape recorded although facilities were available at Frankston to record the interview. The applicant argued that, if the questioning of a person in custody has been conducted at more than one place and facilities were available to conduct an interview at those places, a confession or admission, made at one of those places, is inadmissible unless the questioning at all places was tape-recorded. In my opinion, the evidence of the recorded interview at the St Kilda Road complex was not rendered inadmissible by reason of a breach of s464H. ... However, contrary to the applicant's contention, a tape-recorded interview does not become inadmissible because no tape-recording was made of earlier questioning which had been conducted at a place where facilities were available to conduct an interview. Both subs (1)(d) and subs (1)(e) of s464H make a confession or admission admissible if it was "made during questioning" and the questioning and anything said by the person were tape-recorded at the place where the questioning was conducted. GRAMMATICALLY, THE WORDS "THE QUESTIONING" WHERE they appear for the second time in s464H(1)(d) and s464H(1)(e) REFER TO THE "QUESTIONING AT A PLACE" etc which appears earlier in those paragraphs. The ordinary grammatical meaning of both paragraphs is that A

CONFESSION OR ADMISSION IS ADMISSIBLE IF IT WAS MADE DURING QUESTIONING AND THE QUESTIONING AND ANYTHING SAID BY THE PERSON QUESTIONED AT THAT PLACE WERE TAPE-RECORDED. Accordingly, it is not a condition of the admissibility of a confession or admission under those paragraphs that any earlier or later questioning of the person at another place must also have been tape-recorded if facilities to conduct an interview were available at that other place. Moreover, it seems unlikely that the legislature could have intended that a tape-recorded confession or admission made during questioning should become inadmissible because some later stage of the questioning at some other place was not recorded. If that is so, there is no reason to suppose that a confession or admission, made during questioning at a particular place is inadmissible because some earlier stage of the questioning at some other place was not recorded. ... Section 464H(1) is concerned to lay down the conditions of admissibility of a confession or admission made by a person who "was suspected or ought reasonably to have been suspected" of having committed an offence. Section 464H(1)(d) is concerned with a confession or admission made during questioning at a place where facilities were available to conduct an interview. It is a condition of the admissibility of a confession or admission made at that place that the questioning and anything said by the person in custody were tape-recorded. To read the paragraph as if the words "a place" included "places" would introduce a new and different category concerning the admissibility of confessions and admissions. ... I am also unable to accept the suggestion that the word "questioning" where it secondly appears in s464H(1)(d) and

(e) refers to the whole process of questioning that is authorised by s464A(2) and not to the word "questioning" where it first appears in those paragraphs" (emphasis mine) 135. The minority in Pollard (Brennan, Dawson and Gaudron JJ) considered that the accused's admissions at St Kilda Road were "part of the questioning which commenced at Frankston" (p 397). The trial judge and the majority treated these as separate questionings. Their Honours said at p 393:- "It is convenient to turn first to the submission that the video recording made at St Kilda Road was inadmissible under s464H. It is to be noted that that section, in speaking of "questioning", speaks of a single, identifiable period of questioning. It necessarily does so because it refers to "the commencement of questioning" (in s464H(1)(c)) and to confessions and admissions made "during questioning" (in ss464H(1)(d) and (e)). So much was accepted by the argument for the respondent. But, it was contended, there might be separate or discrete periods of questioning and the condition for admissibility of a confession or admissions under s464H(1)(d) - that "the questioning and anything said by the person questioned (be) tape-recorded" - is satisfied if a tape-recording is made of questions and answers in the period of questioning during which the confession or admission was made. The contrary submission for the applicant was that "the questioning" which must be tape-recorded is the entire process of questioning, COMMENCING WITH THE FIRST QUESTION ASKED AFTER THE PERSON COMES INTO CUSTODY IN THE SENSE DEFINED IN S464(1). The submission for the applicant is consistent with the other provisions of subdiv 30A, particularly s464A, and with the structure and language of s464H itself." (emphasis mine) I interpose to note in passing that the reference to "into custody in the sense defined in s464(1)" is a reference to a very extensive definition in the Victorian Act designed to establish when a person is "in custody", which finds no counterpart in the Act. Section 464(1) of the Crimes Act 1958 (Vic) provides:- "For the purposes of this Subdivision a person is in custody if he or she is: (a) under lawful arrest by warrant; or (b) under lawful arrest under section 458 or 459 or a provision of any other Act; or (c) in the company of an investigating official and is: (i) being questioned; or

(ii) to be questioned; or
 (iii) otherwise being investigated:

to determine his or her involvement (if any) in the

commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence." 136. The practical utility of such a provision is obvious, in view of the significance of "in custody" in s137(2) of the Act (p 35) in relation to the right to personal liberty (p 33), though it does not answer all the problems which may arise in determining when a suspect-invitee in a Police station becomes a person "in custody"; see, for example, McCormack v Silberman (unreported, Supreme Court of Victoria (Ashley J), 17 December 1993). It may be noted that even if some such extensive definition applied in this jurisdiction, in this case the accused was not "in custody" until he made admissions about 8pm because of the obvious lack prior thereto of "sufficient information ... to justify (his) arrest", and the fact that the Police had not caused him to believe he would not be allowed to leave (p 31). Further, s464H(1), like s142(1) of the Act, is not confined to suspects "in custody", and this is of significance. Their Honours continued at pp 393-4:- "As we have said, s464A envisages a limited period of time - a reasonable time - during which a person may be held in custody for questioning or while an investigation is being carried out. This is a substantial modification of the common law which did not permit a person to be detained for the purpose of questioning. See Williams v R (1986) 161 CLR, at 305. SECTION 464A RECOGNISES THAT THE QUESTION OR INVESTIGATION MAY BE SUSPENDED OR DELAYED, BUT IT PLAINLY REGARDS THE QUESTIONING OR INVESTIGATION AS AN ENTIRE PROCESS WHICH COMMENCES AFTER THE PERSON IS TAKEN INTO CUSTODY IN THE EXTENDED SENSE INVOLVED IN THE DEFINITION IN S464(1)." (emphasis mine) 137. I interpose that similarly, in my opinion, ss137(2) and 138 of the Act (pp 35-6) clearly regard the questioning or investigation permitted by s137(2) as "an entire process which commences after the person is taken into custody". Their Honours continued at pp 394:- "Clearly, having regard to the matters which may be taken into consideration in determining what is a reasonable time for the purposes of s464A(4), the questioning need not be a continuous process; it may be interrupted for various purposes and, hence, THERE MAY BE IDENTIFIABLY SEPARATE PERIODS OF QUESTIONING. HOWEVER, ANY SEPARATE PERIOD IS ONLY PART OF THE ENTIRE PROCESS OF QUESTIONING CONTEMPLATED BY S464A." (emphasis mine) 138. In the absence of authority, I would consider that this analysis and conclusion is compelling when applied to the differently-worded ss137(2) and 138 of the Act (pp 35-6). However, in light of the now-unanimous view of the High Court that this is not the approach to be adopted when construing s464H(1) of the Crimes Act 1958 (Vic), and the practical considerations mentioned by the majority in Heatherington (supra) (pp 65-66), I adopt the approach of the High Court at p 65 to the construction of s142(1). Their Honours continued at p 394:- "We should add that, so far as s464A(3) (which provides for the person in custody to be cautioned before questioning commences) is concerned, it is necessary to distinguish between the duration of the questioning which that subsection contemplates and the period of a reasonable time referred to in subs (2). It would be wrong to regard the former as being coextensive with the "reasonable time" referred to in subs

(2). As already indicated, the questioning begins when questions are first asked of a person in custody. And it ends when no more questions are asked, whether or not a reasonable time has then elapsed. If the questioning of a person in custody were to continue beyond a reasonable time, that person not having been brought before a bail justice or the Magistrates' Court, it would constitute questioning during a period of unlawful detention and the admissibility in evidence of any confession or admission made during that period would depend, not only upon compliance with the provisions of s464H, but also upon the application of the common law rules regarding voluntariness, fairness and overriding public policy in which the unlawful detention would be a highly relevant consideration. INDEED, S464J EXPRESSLY PROVIDES THAT NOTHING IN SUBDIV 30A AFFECTS THE ONUS ON THE PROSECUTION TO ESTABLISH THE VOLUNTARINESS OF AN ADMISSION OR CONFESSION OR THE DISCRETION OF A COURT TO EXCLUDE UNFAIRLY, IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE." (emphasis mine) 139. I interpose to note that as regards the passage emphasized I consider that the same position obtains in the Territory as regards the imperative (voluntariness) and discretionary exclusions even though there is no saving provision in Division 6A equivalent to s464J; that is to say, the discretionary power under s143 of the Act does not affect the questions of admissibility in terms of the common law voluntariness and discretionary exclusions, which must also be addressed. Their Honours continued at p 394:- "The applicant's submission is also consistent with the structure and language of s464H, particularly in that paras (c), (d) and (e) of s464H(1) require the tape-recording of different things. ... para (d), which applies in the case of a "confession or admission ... made during questioning at a place where facilities (are) available to conduct an interview" (which is this case), requires that "the questioning and anything said by the person questioned (be) tape-recorded"; ... TWO THINGS APPEAR FROM THIS: FIRST, PARA (D) REQUIRES TAPE-RECORDING OF "THE QUESTIONING", THAT IS SOMETHING MORE THAN THE TAPE-RECORDING OF THE CONFESSION OR ADMISSION, OR OF ITS SUBSTANCE; ..." 140. I consider that s142(1)(b) of the Act also makes it clear that "something more than the tape-recording" of the actual confession or admission is required. Their Honours continued at p 395:- "The argument in favour of construing s464H(1)(d) as requiring no more than the tape-recording of that period of questioning in which the confession or admission is made is that "the questioning" in the latter part of that paragraph is to be read as relating back to "questioning at a place where facilities (are) available to conduct an interview" which, it is clear, may sometimes be a separate part of the entire questioning process. That argument would have much to commend it if s464H stood isolated from the rest of subdiv 30A. However, IT IS FAR FROM PERSUASIVE IN A CONTEXT WHERE "THE QUESTIONING" IS USED IN VARIOUS PLACES IN S464A TO SIGNIFY THE ENTIRE PROCESS OF QUESTIONING. Indeed, it would be surprising if those same words were intended to have a

different meaning in s464H. The other consideration urged on behalf of the respondent was that, if s464H(1)(d) requires the tape-recording of the entire questioning process, it involves impracticality. There are two answers to that. First, s464H(1)(d) requires tape-recording only (although this requirement may also be satisfied by audio recording), and there is nothing

impractical about a police officer using a hand-held tape recorder during questioning at "a place where facilities (are) not available to conduct an interview". There is difficulty in knowing what is meant by that expression particularly having regard to the fact that para (e) contemplates that facilities to conduct an interview may not be available at a place, yet the questioning at that place may be tape-recorded. It would, however, seem safe to assume that, if there is not something more technically advanced than a hand-held tape-recorder, the place is not one at which facilities are available to conduct an interview.

Secondly, that argument is not to the point if s464H was intended to avoid fragmentation of questioning with some of it being recorded and some not. THERE ARE GOOD REASONS FOR THINKING THAT THE PURPOSE OF S464H WAS TO ENSURE THAT THE ENTIRE QUESTIONING PROCESS SHOULD BE TAPE-RECORDED. It is clear from the second reading speech for the bill which resulted in the enactment of subdiv 30A, (Legislative Council Parliamentary Debates (Hansard), 3 May 1988, p 1010) that one of the main purposes of the new subdivision was to ensure the integrity of the questioning process and to reduce the scope both for impropriety and for allegations of impropriety during questioning. If the entire questioning process is recorded that purpose is advanced; if not, there remains scope for impropriety and for allegations to that effect and, to that extent, that purpose is not advanced. ..." (emphasis mine) 141. Their Honours continued at pp 395-6:- "At the risk of some repetition, it is as well to set out the way in which s464H operates. As already indicated, the questioning may consist of a number of different periods of questioning and may occur in a number of different periods of questioning and may occur in a number of different places, but a particular confession or admission will be made during a particular period of questioning at a particular place. Under s464H(1)(d), if that place is a place where facilities are available to conduct an interview, EVIDENCE OF THE CONFESSION OR ADMISSION IS INADMISSIBLE UNLESS THE QUESTIONING AND ANYTHING SAID BY THE PERSON QUESTIONED (THAT IS, THE WHOLE QUESTIONING, WHETHER IT COMPRISES ONE OR MORE PARTS, AND NOT JUST THE QUESTIONS AND ANSWERS CONSTITUTING THE CONFESSION OR ADMISSION OR THE QUESTIONS AND ANSWERS GIVEN AT THE PLACE WHERE THE CONFESSION OR ADMISSION WAS MADE) ARE TAPE-RECORDED." (emphasis mine) 142. Their Honours said later at pp 395-8:- "And, of course, even if the confession or admission is inadmissible by reason of a failure to comply with s464H(1)(d) or (e), a court may, under s464H(2), admit it in evidence if it is satisfied on the balance of probabilities that the circumstances are exceptional and are such as to justify its admission. ... It was the admission in evidence of the video recording of the interview at the St Kilda Road complex, containing as it did admissions by the applicant, to which objection was taken. And ONCE IT IS RECOGNISED THAT S464H CONTEMPLATES, AS IT DOES, THE ONE QUESTIONING COMMENCING AT A PARTICULAR POINT OF TIME AND POSSIBLY CONTINUING AT DIFFERENT TIMES AND PLACES, THE ADMISSIONS MADE AT ST KILDA ROAD WERE PART OF THE QUESTIONING WHICH COMMENCED AT FRANKSTON, CONTINUED IN THE CAR AND CONCLUDED AT ST KILDA ROAD. They were admissions made at a place where facilities were available to conduct an interview and they were tape-recorded. But before those admissions were admissible in evidence, it was not just the

questioning at the place where they were elicited which S464H(1)(D) REQUIRED TO BE TAPE-RECORDED, BUT THE WHOLE OF THE QUESTIONING, THAT IS, THE WHOLE OF THE QUESTIONING WHICH COMMENCED AT FRANKSTON AND CONCLUDED AT ST KILDA ROAD. Since neither the portion of the questioning which occurred at Frankston nor that in the car on the way to St Kilda Road was tape-recorded, evidence of the admissions made by the applicant at St Kilda Road was not admissible, notwithstanding the fact that the questioning which took place at St Kilda Road was video recorded. This result is, we think, required by the structure and language of subdiv 30A, in particular s464H. And as already indicated, it also accords with one of the main purposes for which the legislation was enacted. ... If evidence of a confession or admission made during a tape recorded interview at one police station were admissible under s464H even when it was preceded by an interview at another police station which was not tape-recorded, a principal object of the legislation would be likely to be largely defeated. The argument would remain, as this case demonstrates, that the tape-recorded confession or admission was inadmissible or should not be admitted because it was involuntary or was unfairly, improperly or illegally obtained and, for the purposes of that argument, what occurred during the first interview would be of significance, even if the prosecution could lead no evidence of it. Evidence of what occurred at the first interview would be receivable on a voir dire, as in this case, which would be likely to lengthen the material substantially. It is to avoid such a result that the legislation provides that ... a confession or admission made to an investigating official during questioning to be admissible the whole of the questioning should be tape recorded and not just that portion of the questioning contained the confession or admission upon which the prosecution seeks to rely" (emphasis mine). As to the compelling nature of this analysis, I refer to my conclusion at p 59. Heatherington v The Queen [1994] HCA 19; (1994) 120 ALR 591 143. Heatherington (supra) again raised for consideration the question of the construction of s464H of the Crimes Act 1958 (Vic). The accused had been interviewed for about 5-10 minutes, initially; damaging admissions were made and although the Police made notes, the Crown did not seek to tender them at trial. After a lapse of some 40 minutes, during which the Police made further inquiries, the accused was interviewed for about 2 hours in the same place and made full admissions; this interview was taped, and was admitted into evidence at trial. The same challenge to its admission was mounted as in Pollard (supra); it involved the interpretation of "questioning" in s464H(1)(d) - see p 47 - the issue being whether the Police were required to record all the questioning (that is, both interviews) at the place where the admission was made, or merely the particular (second) interview on which the Crown sought to rely. The four Judges who had constituted the majority of the High Court in Pollard (Mason CJ, Deane, Toohey and McHugh JJ) held that evidence of the taped confession was admissible. They affirmed their approach in Pollard (supra) that if two separate periods of questioning were involved, the requirement in s464H(1)(d) that "the questioning" which yields a confession be recorded, relates to the particular period or episode of questioning during which the confession was made. The admissibility of the taped confession accordingly turned on whether the earlier interview was part of the "questioning" which produced the confession. Whether this was so involved questions of degree, and might require a weighing of a variety of factors including the proximity of time and venue, the relationship between the occasions on which questioning took place, and the relationship between the interrogations which took place on those occasions. Their Honours considered that the Court below was not in error in concluding that in fact the two interviews involved separate periods of questioning rather than the same period, though they considered the case might "approach the borderline". 144. Mason CJ, Deane and McHugh JJ in a joint judgment said at p 593:- "Clearly enough, the primary object of s464H, ... is not to protect the guilty from acknowledging guilt but to ensure that alleged confessions or admissions are genuine and voluntary and not unfairly obtained." 145. I consider that this is also the primary object of s142(1) of the Act. Their Honours noted that in Pollard (supra) a majority of the Court had accepted that there could be distinct periods or episodes of questioning, at least when the interrogation occurred at more than one place. After citing passages from the judgments of Mason CJ and Toohey J in Pollard (supra) their Honours at pp 594-5 considered that those passages:- "... support the proposition that, in a case where there have been different and distinct periods of interrogation, the expressions "if the confession ... was made during

questioning" and "the questioning and anything said by the person questioned" in s464H(d) refer not to the overall interrogation or to the overall interrogation at a particular place, but to the particular episode of questioning in which the confession sought to be tendered was made." 146. Their Honours at p 595 favoured this "more general proposition" in Pollard (supra) - "... that in a case where there have been different periods or episodes of interrogation, the requirement that "the questioning" which yields a confession be recorded relates to the particular period or episode during which the confession was made." 147. Their Honours then explained their reasons for this preference, at p 595-6:- "As a matter of language, the reference in s464H(d) to questioning "during" which a confession or admission was made can readily be construed, in a case where there have been two or more different periods or episodes of questioning, as designating the relevant period or episode of questioning.

That construction of the words of para(d) is strongly supported by the consideration that curious and obviously unintended results would flow from a construction of the reference to questioning in para(d) as designating, in such a case, not only the period of questioning during which the confession or admission was made but every material question which has earlier been asked or which is subsequently asked of the suspect at the particular place. For example, the operation of para(c) to make admissible a confession or admission made before the commencement of questioning if it is subsequently confirmed by the suspect and the confirmation is tape-recorded would be precluded if any material question or questions, however unprejudicial, had been asked before the original confession or admission was made. Again, evidence of a confession or admission made in a completed interview with respect to which the requirements of s464H(d) had been fully satisfied would be retrospectively rendered inadmissible if any material question or questions were subsequently asked of the suspect at the relevant place. Yet again, the asking of any material question or questions, however unprejudicial, at a particular place would make it necessary that the suspect be taken to some other place so that evidence of any subsequent confession or admission could be admissible. It cannot be supposed that the legislature intended to bring about such results. Much to be preferred is a construction according to which the admissibility of a confession turns on a question of substance: WHETHER THE EARLIER QUESTIONING WAS PART OF THE SAME QUESTIONING WHICH PRODUCED THE CONFESSION. If it was not, the fact that the earlier questioning was not recorded will not of itself preclude the reception of evidence of the questioning in the course of which the confession was made. The existence and circumstances of the earlier unrecorded questioning could, of course, be relevant to, and possibly decisive of, the question whether evidence of the confession should be rejected on unfairness or public policy grounds. (See Pollard ibid at CLR 183, 219) The issue here then is whether the initial period of questioning and the second period should be characterised as the same questioning. THE RESOLUTION OF SUCH AN ISSUE INVOLVES QUESTIONS OF DEGREE (IBID AT CLR 219) AND MAY REQUIRE A WEIGHING OF A VARIETY OF FACTORS INCLUDING THE PROXIMITY OF TIME AND VENUE, THE RELATIONSHIP BETWEEN THE OCCASIONS ON WHICH QUESTIONING TOOK PLACE AND THE RELATIONSHIP BETWEEN THE INTERROGATIONS WHICH TOOK PLACE ON THOSE OCCASIONS. Thus, it may transpire that, on the second occasion, the questioning is largely influenced by what was said on the earlier occasion, in which event one might the more readily conclude that a confession made on the second

occasion was made in the same or the one period of questioning which began on the first occasion and ended on the second occasion. THE PRESENT CASE MAY APPROACH THE BORDERLINE. On balance, however, we consider that the Court of Criminal Appeal was not in error in concluding that the two occasions gave rise to separate periods rather than the same period of questioning. THE TWO PERIODS WERE SEPARATED BY A SIGNIFICANT INTERVAL OF TIME DURING WHICH THE POLICE MADE FURTHER INQUIRIES. THE FIRST PERIOD WAS EXTREMELY SHORT; THE SECOND WAS VERY COMPREHENSIVE. THE SECOND WAS SELF-CONTAINED in the sense that the questions and answers did not on their face relate back to or refer to the questions and answers on the first occasion. ... The judgment of the members of the Court of Criminal Appeal discloses that their Honours appreciated that THE ISSUE WAS NOT TO BE DETERMINED BY REFERENCE TO ANY ONE FACTOR AS AN EXCLUSIVE CONSIDERATION. Thus, the fact that there was no causal relationship between, on the one hand, the second period of questioning and the confession it generated and, on the other hand, the first period of questioning was not treated as an exclusive matter for consideration. It was taken into account along with separation in time, the fact that the second interview did not purport to be a continuation of the first and the difference in character of the two interviews." (emphasis mine) 148. Toohey J said at p 602:- "The Crown cannot determine the admissibility of questioning on a particular occasion and at a particular place by refraining from adducing evidence as to the questioning of the suspect on another occasion or at another place. IF THAT OTHER QUESTIONING IS FAIRLY TO BE REGARDED AS PART OF THE QUESTIONING UNDER CHALLENGE, S464H(1)(D) REQUIRES THAT THE WHOLE OF THE QUESTIONING BE TAPE-RECORDED (s464(2) defines "tape-recording" to include "audio recording and video recording") for any part to be admissible, assuming of course that tape recording facilities were available at each place. In other words, nothing in para(d) requires as a matter of

law, that any confession or admission made by a person in custody which is tape-recorded is inadmissible unless all answers made by the suspect to all questions asked at any time and at any place are tape-recorded in accordance with the Act." (emphasis mine) 149. At p 603 his Honour observed that the question in issue on this approach was "very much one of fact." At p 604 his Honour said:- "... the issue was whether the earlier questioning was part of the questioning that was tape-recorded. It was necessary to look at the content of the earlier conversation as well as the time interval. IF, FOR INSTANCE, THE TAPE-RECORDED QUESTIONING PICKED UP STATEMENTS THAT HAD BEEN MADE EARLIER BY THE APPLICANT AND BUILT ON THEM, it would be hard to conclude otherwise than that it was the same questioning. On the other hand, THE ABSENCE OF ANY REFERENCE TO WHAT HAD BEEN SAID EARLIER IS NOT CONCLUSIVE against a finding that it was the same questioning. It would be all too easy for an investigating official to obtain answers at an interview which was not tape-recorded, then, without direct reference to those answers, use them as the basis for further questioning. But these considerations simply point up that THE TRIAL JUDGE (and in this case the Court of Criminal Appeal) HAS TO MAKE AN ASSESSMENT IN THE LIGHT OF ALL THE RELEVANT CIRCUMSTANCES." (emphasis mine) 150. The minority (Brennan, Dawson and Gaudron JJ) would have allowed the appeal. Their Honours now accepted the approach of the majority in Pollard (supra), that it was necessary to determine the particular episode of questioning in which the confession sought to be tendered had been made. They said at pp 598-9:- "It follows that, in determining the admissibility of a particular confession made by a suspect, it is necessary to identify the relevant questioning of the suspect and to find whether, if that questioning occurred "at a place where facilities were available to conduct an interview", that questioning was tape-recorded. The connection between the

confession and the questioning is purely temporal, for the operation of s464H(1)(d) is attracted when the confession has been made "during questioning". It is immaterial that the confession was not made in response to the questions asked or even that the questioning cannot be shown to be the cause of the making of the confession. (Although s464H(1)(d) postulates no test of causal relationship, in practice the relevant questioning will ordinarily contain the questions "which produced the answers sought to be adduced in evidence", as Toohey J noted in Pollard (1992) 176 CLR at 219). Both the making of the confession and the period of questioning during which the confession is made are objective facts to be found (albeit oftentimes with difficulty) by the trial judge. Admissibility depends on whether the relevant questioning was tape-recorded throughout its duration." 151. Their Honours considered that the Court below had erred in the various criteria which its members had applied to determine whether the confession had been made in a single episode of questioning embracing both interviews, and said at pp 599-600:- "The criterion of temporal relationship does not assist in ascertaining the period of the relevant questioning: THE DIFFICULT ISSUE OF FACT to be addressed under s464H(1)(d) IS not so much whether a confession is made during a period of questioning but rather THE PERIOD OF QUESTIONING DURING WHICH THE RELEVANT CONFESSION WAS MADE. And, ... it would not be right to conclude that a series of questions and answers is

"discrete" merely because that series can be considered as a logical entirety. It is necessary to examine the questions and answers in the context of the antecedent or subsequent circumstances." (emphasis mine) 152. Their Honours said at p 601:-

"WHEN THERE IS A SERIES OF QUESTIONS, INCLUDING QUESTIONS AND ANSWERS THAT HAVE BEEN TAPE-RECORDED, AND THE CONFESSION IS MADE DURING THE TAPE-RECORDED QUESTIONING, THE WHOLE SERIES OF QUESTIONS MUST BE CONSIDERED. By reference to the whole series, THE COURT ASCERTAINS WHETHER, AS A MATTER OF OBJECTIVE FACT IN ALL THE CIRCUMSTANCES - INCLUDING TIME, PLACE, CONTENT AND THE PARTICIPATING PERSONS - THE TAPE RECORDED QUESTIONING AND THE QUESTIONING IN THE REMAINDER OF THE SERIES ARE PART OF THE SAME QUESTIONING OR ARE DIFFERENT QUESTIONINGS. When s464H(1)(d) is applicable, evidence of a confession made by a suspect during questioning is admissible only if it is made during a questioning the whole of which has been tape-recorded. When s464H(1)(d) is applicable and an investigating official has questioned a suspect in order to determine the involvement of the suspect in the relevant offence, but has failed to tape-record some of those questions, a confession made during questioning that is tape recorded is not admissible if the questions which were not tape-recorded were part of the same questioning - unless, of

course, the court exercises its "exceptional circumstances" discretion under s464H(2). THE SELF-EXPLANATORY OR SELF-CONTAINED NATURE of a particular series of questions and answers OR THE FACT THAT PARTICULAR

QUESTIONS PRODUCED THE CONFESSION IS INSUFFICIENT TO ESTABLISH that the questioning in that series or the productive questions constituted a separate questioning. It may be THAT WHAT WAS ASKED in a tape-recorded interrogation that was separated in time or place from an earlier series, WAS NOT AFFECTED BY ANSWERS given during the earlier series, but that IS NOT AN EXHAUSTIVE TEST to disprove the proposition that the earlier and later questions were part of the same questioning. THE SEPARATION OF TIME AND PLACE AND THE SUBJECT MATTER of the questions asked ARE MATERIAL TO DETERMINING whether the questioning in the tape-recorded interrogation and the earlier series of questions are part of the same questioning." (emphasis mine) CONCLUSIONS FROM POLLARD AND HEATHERINGTON AS TO CONSTRUCTION OF S142(1) 153. The observation in Heatherington (supra) (p 593) (p 65), that the primary object of s464H is not to protect the guilty from acknowledging their guilt, but to ensure that alleged confessions or admissions are genuine and voluntary and not unfairly obtained, applies with equal force to s142(1) of the Act. 154. Section 142(1), like s464H, deals with evidence of confessions by a suspect, whether or not he is in custody. The reference in s142(1)(b) to "the questioning" is a reference to the questioning by a member of the Police Force during which the suspect made the relevant admission or confession. It is that questioning which must be electronically recorded if the evidence of the confession made during it is not to be inadmissible. On the face of it, s142(1) contemplates a single identifiable period of questioning. Such a situation presents no problem; it must be electronically recorded for admissions made during it to be admissible, unless excluded by one of the common law exclusions. However, there may be distinct episodes of questioning; in practice, this will frequently be the case. The problem in that case is to determine what constitutes the "questioning" for the purposes of s142(1)(b). Is it the whole of the time the subject was questioned, in the sense that the several episodes are to be treated as a single questioning, as the minority said in Pollard (supra)? Or may each episode, depending on the particular facts, be regarded as a separate questioning, as the majority held in Pollard? If confessions are made in different episodes, are they to be treated as one confession made in the course of a single questioning which covered all the episodes, or may they be treated as separate confessions made in separate questionings, if the facts point that way? 155. I think that the better approach, stemming from Pollard and Heatherington (supra), is that the "questioning" which yields the admission is the particular period of questioning during which the admission was made, but different episodes of questioning may form part of one and the same "questioning", in terms of s142(1)(b); see p 65. Questions of degree are necessarily involved in deciding that question. These authorities show that consideration of the following factors will assist in determining the answer to the question whether the earlier episode of questioning was as a matter of objective fact in all the circumstances of the particular case, part of a "questioning" which included the later episode in which the confession was made, viz:-

1. The proximity in time and place of the various episodes of questioning, and the identity of the persons participating in them. Was there a significant interval in time between the episodes? Had the Police made further inquiries in the meantime?
2. The relationship between the episodes in which the questioning took place; for example whether they differ in nature or character. Is the second episode of questioning a purported continuation of the first, or is it self-contained. Was the questioning during the episode in which the confession in question was made, discrete; or was it influenced or affected by what took place in the earlier episode? Was there any reference back, tacit or express, to what was said in the earlier episode of questioning? Was the subject-matter of the questioning, the same in both episodes?
3. No single factor exclusively determines the answer to the question whether the several episodes of questioning constituted a single "questioning" for the purposes of s142(1)(b), but a weighing of the factors should assist in the determination.
4. I return to the conclusion on the effect of s142(1)(b), set out at p 45. In the present case, the accused's first admissions about 8pm did not fall to be dealt with under s142(1)(a) of the Act; that is conceded by Mr Cato. This is because those admissions were admittedly "made during questioning" and not "before the commencement of questioning", and so fall within s142(1)(b). I accept Mr Cato's submission that Edwards nevertheless genuinely believed that s142(1)(a) was the applicable legislative provision, and that is why he later had the admissions (Exhibit P2) promptly adopted by the accused on tape (Exhibits P3 and P4). That is to say, I accept that Edwards acted in good faith, though mistakenly, in not recording "the questioning" during which the admissions were made; he did not proceed in reckless disregard of the requirements of s142(1)(b) of the Act. Mr Cato also rightly conceded that the first admissions (Exhibits P2-P4) and the admissions in the videoed interview (Exhibits P6-P7) were not made in different episodes of questioning, but in the same 'questioning'; this sufficiently appears when the factors referred to at pp 72-73 are applied to the facts. For example, there are several references in the video taped interview (Exhibits P6-P7) to matters which had been earlier discussed in Exhibits P2-4. Further, I consider that the re-enactment the following day (Exhibit P10) also fell within that same period of questioning, on applying those factors to it.
5. Mr Kilvington submitted that the first part of "questioning", for the purposes of s142(1)(b) of the Act, encompassed the whole of the period from about 3.20pm until 8pm. I accept that. As I say, the question of the effect of s142(1)(b) was not fully argued; I expressed my conclusion at p 45. The Crown relied mainly on the exercise of the discretion under s143, to which I now turn. THE EFFECT OF S143 OF THE ACT (P41)
6. I have not been referred to any authorities on the construction of s143. Mr Cato submitted that the Court should exercise its discretion under s143 and admit the admissions (Exhibits P2-P4, P6-P7, and P10) into evidence before the jury despite the non-compliance with s142(1)(b), on the basis that having regard to "the nature of and the reasons for the non-compliance", and "other relevant matters"; their admission into evidence "would not be contrary to the interests of justice".
7. Mr Cato submitted that s143 was very different in its wording to s464H(2) (p 47), the corresponding provision in the Crimes Act 1958 (Vic.) mentioned in Pollard and Heatherington (supra). He submitted that s143 of the Act imposed a less rigorous standard on the Crown than s464H(2), in that it did not require the Crown to satisfy the Court on the probabilities that the circumstances which justified the admission of the "otherwise inadmissible" evidence were "exceptional". That is clearly correct, in my view, though I consider the burden of satisfying the Court that evidence rendered inadmissible by s142(1)(b) should be admitted, as a matter of discretion lies on the Crown, and in that regard the probabilities standard applies. The Crown must satisfy the Court that having regard to all relevant matters the admission of evidence otherwise statutorily inadmissible, in the circumstances of the case, would not be contrary to the interests of justice; clearly, it is no light burden.
8. Mr Cato submitted that s143 is clearly derived from s23V(5) of the Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth) which provides:- "(5) A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters the court is satisfied that, in the SPECIAL circumstances of the case, admission of the evidence would not be contrary to the interests of justice." (emphasis mine)
9. That is clearly correct; s143 of the Act (p 41) is almost identical with s23V(5), the only apparent difference being the word "special" in s23V(5); to my mind, that word does not create any difference in effect, and the provisions are in substance identical. I consider that the word "special" in s23V(5) merely emphasizes that it is the particular circumstances of the case before the Court which form the matrix of fact in relation to which the Court must positively be satisfied that the evidence should be admitted, and that to do so "would not be contrary to the interests of justice". I have not been referred to any authorities on s23V(5). I note in passing that there is no equivalent in the Act to s23V(7) of the Commonwealth Act, which requires the jury to be warned where evidence is admitted under s23V(5).
10. Clearly, the norm is that non-compliance with s142(1) attracts as a consequence the statutory sanction that the evidence is inadmissible; to exercise the overriding discretion under s143 to admit the evidence requires that, taking account of the nature of the particular non-compliance, the reasons therefor, "and any other relevant matters", the Crown must satisfy the Court that in the circumstances of the particular case, the admission of the evidence into evidence would not be contrary to the interests of justice.
11. Mr Cato submitted that the expression "the interests of justice" in s143 is of broad scope, and requires taking into account not only what justice to the accused requires, but also society's interest in ensuring that persons who commit crimes are punished, and that the system of administration of criminal justice is, and is perceived to be, fair. He relied in that respect on to what Hunt J said in Domican v Thurgar (1989) 43 A Crim R 24 at p 26; in the context of an application for separate trials his Honour observed:- "The interests of the administration of justice are as relevant as the interests of the parties". I consider that this is the correct approach.
12. Mr Cato submitted that the "other relevant matters" to be considered under s143 are very similar to those to be considered when a trial judge is asked to exclude evidence on the basis that it has been unlawfully obtained. He submitted that these are set out in Foster v The Queen [1993] HCA 80; (1993) 113 ALR 1, where the question was whether evidence of a confession obtained by unlawful conduct should have been excluded. At pp 6-7 the majority of the High Court said:- "It is now settled (see, in particular, Cleland v R (1982) 151 CLR, at 9, 23-4, 34-5; [1982] HCA 67; 43 ALR 619; Pollard v R (1992) 67 ALJR, at 196, 203, 206, 226; 110 ALR, at 389, 399, 402-3,

429. that, in a case where a voluntary confessional statement has been procured by unlawful police conduct, a trial judge should, if appropriate objection is taken on behalf of the accused, consider whether evidence of the statement should be excluded in the exercise of either of two independent

discretions. The first of those discretions exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements. It is the discretion to exclude evidence on the ground that its reception would be unfair to the accused, a discretion which is not confined to unlawfully obtained evidence. (See, Duke v R [1989] HCA 1; (1989) 63 ALJR 139, per Brennan J at 141; [1989] HCA 1; 83 ALR 650, at 653; Van Der Meer v R [1988] HCA 56; (1988) 62 ALJR 656, per Wilson, Dawson and Toohey JJ at 665-6; [1988] HCA 56; 82 ALR 10, at 25-6. See also Collins v R (1980) 31 ALR, per Muirhead J at 277, per Brennan J at 313.) The second of those discretions is a particular instance of a discretion which exists in relation to unlawfully obtained evidence generally, whether confessional or "real". It is the discretion to exclude evidence of such a confessional statement on public policy grounds. THE CONSIDERATIONS relevant to the exercise of each discretion HAVE BEEN IDENTIFIED IN A NUMBER OF PAST CASES IN THE COURT. (See, as regards the unfairness discretion, McDermott v R (1948) 76 CLR 501, at 513-15; R v Lee [1950] HCA 25; (1950) 82 CLR 133, at 148-55; Pollard v R (1992) 67 ALJR, at 226; 110 ALR, at 429 and, as regards the public policy discretion, R v Ireland

[1970] HCA 21; (1970) 126 CLR 321, at 334-5; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, at 74-80; [1978] HCA 22; 19 ALR 641; Pollard v R (1992) 67 ALJR, at 196, 203-4, 206-9; 110 ALR, at 389, 399, 403-6.) To no small extent, they overlap. The focus of the two discretions is, however, different. In particular, when THE QUESTION OF UNFAIRNESS to the accused is under consideration, THE FOCUS WILL TEND TO BE ON THE EFFECT OF THE UNLAWFUL CONDUCT ON THE PARTICULAR ACCUSED whereas, when the question of the requirements of public policy is under consideration, THE FOCUS WILL BE ON "LARGE MATTERS OF PUBLIC POLICY" (Bunning v Cross (1978) 141 CLR, per Stephen and Aickin JJ at 77) and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case (at CLR 77-8; Pollard v R (1992) 67 ALJR, at 208; 110 ALR, at 404)." (emphasis mine) 166. I consider this approach is correct. Mr Cato submitted that there was no suggestion here that the confessional material was unreliable. As to whether it should be rejected for reasons of public policy he relied on what was said in Bunning v Cross [1978] HCA 22; (1977-78) 141 CLR 54 at pp 77-81. In summary, he submitted that the admission of the evidence would "not be contrary to the interests of justice" because:- (1) On the balance of probabilities, the confessions are voluntary and reliable. (2) Exhibits P3 and P4 constitute the audio taped record (and transcript) of the first admissions. The accused was given ample opportunity therein to correct Edwards' note at Exhibit P2. (3) The accused had had previous experience in relation to the practice and procedure of Police interrogation. (4) Edwards had acted throughout in good faith; it was never suggested that he had deliberately flouted s142(1) or his obligations thereunder. (5) Viewing the videoed interview and re-enactment (Exhibits P6, P7 and P10) shows that the accused was co-operative and was not subject to pressure by Edwards. (6) The evidence of the interviews shows that the accused was given ample opportunity to voice any concerns he might have about his treatment; he chose not to do so. 167. I accept that these six matters accurately reflect the facts. 168. Mr Kilvington submitted that it would be wrong to take into account, as a matter relevant to "the interests of justice" in s143, and favouring admission of the confession, that its contents contained details of the alleged crime of such a nature that only the person who had committed it could have provided them. I accept that. It is irrelevant for the purposes of s143 to embark upon a consideration of the truth of the confession; I note that questions on the voir dire directed to that end are improper - see Wong Kam-Ming v The Queen (1980) AC 247. At the same time I consider that it is in the "interests of justice", in terms of s143, that persons who have committed crimes be brought to book. 169. Mr Kilvington submitted that the breach of s142(1) had occurred over a long period of time; I do not accept that - see p 28. He submitted that that breach had meant that the accused, who had been subjected to improper pressure, had been unable to prove it; I do not accept that he had been subject to improper pressure. He submitted that no reasonable basis had been shown for the belief by Edwards that it was not necessary to record the earlier part of the questioning. He submitted that it should have been clear to the Police since December 1992 when Pollard (supra) was decided, that non-compliance with the provisions of s142(1)(b) would result in exclusion. I have already indicated that I accept that Edwards' behaviour stemmed from his honest albeit erroneous belief that s142(1)(a) applied; I do not consider that belief to have been unreasonable in the circumstances. 170. As to the video re-enactment on Tuesday (Exhibit P10) Mr Kilvington submitted that it should be treated as having been "made during questioning" which commenced on Monday afternoon. I accept that. He submitted, correlatively, that the re-enactment did not amount to the accused being "questioned" in terms of s137(2)(a); I accept that. He submitted that an additional reason for its exclusion was that the Police had not taken the accused before a Court at 10am on Tuesday. I have indicated that I consider that to have taken the accused before the Court on Tuesday at 2pm was to bring him before the Court within a reasonable period. CONCLUSIONS ON THE EXERCISE OF THE DISCRETION UNDER S143 171. The object of the procedure for electronic recording in s142(1)(b) is to safeguard a suspect against unfair methods of obtaining incriminating evidence against him. I am satisfied that on the facts of this case the failure to comply with s142(1)(b) did not result in any such unfair methods being used. Further, there was no calculated disregard of s142(1)(b) by the Police such as to threaten the integrity of the administration of criminal justice. 172. The exercise of the discretion of s143 requires that there be a balancing similar to that described in Bunning v Cross (supra) at p 74:- "... no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law." 173. What is involved is "society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired"; Bunning v Cross (supra) at p 75. See also the observations in R v Lee (supra) at p 155, and in R v Ireland (1970) 126 CLR at 335. 174. Here the non-compliance with s142(1)(b) lay in the failure to electronically record the questioning of the accused over a period of some 2 hours between 3.20pm and 8pm on Monday 31 January 1994. I am satisfied that during that period none of the allegations of oppressive Police conduct which were made by the accused, actually occurred. 175. The reason for non-compliance with s142(1)(b) was that Edwards did not understand what s142(1) required of him. That is understandable; the application of Pollard (supra) to s142(1) was not then clear. It has now been made clear, in this ruling, in light of the very recent decision in Heatherington (supra). 176. Dealing with "other relevant matters" entails consideration of matters relevant to the exercise of the "fairness" and "public policy" exclusionary discretions. 177. The admissions in Exhibits P2-P4, P6-P7 and P10 are not more prejudicial to the accused than probative, and the jury is not likely to be misled by them; accordingly, their admission into evidence would not hamper a fair trial, since they are not unreliable. 178. There was no abuse by Edwards of the power of arrest, in arranging for the accused to attend at the Police Centre. There was nothing by way of cross-examination in his questioning, in the sense of an attempt on his part to break down the will of the accused, or to extract admissions from him; nor was there anything in his questioning which had a tendency to induce the accused to say anything untrue. 179. In short, there is no substance in the allegations that Edwards procured the admissions by the use of unfair or improper methods of interrogation, or by oppressive methods. I do not consider that it would be unfair to admit those admissions, in the context of the trial. 180. There is a public interest in the protection of the individual from unlawful and unfair treatment before trial; that lies in society's right to insist that those who enforce the law, respect it, by not abusing its process. Here the failure by Edwards to observe s142(1)(b) was not deliberate, but inadvertent; his behaviour is therefore the less serious. I do not consider on the facts that his failure affected the cogency or quality of the evidence in question. As was said in Bunning v Cross (supra), at p 78:- "Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it." 181. I conclude that while the prima facie effect of non-compliance with s142(1)(b) is that the admissions in Exhibits P2-P4, P6, P7 and P10 should not be admitted into evidence, on the facts of this case the Crown has established that the discretion under s143 should be exercised and they should be admitted into evidence before the jury. 182. Orders accordingly.