R v JF [2009] ACTSC 104

[2009] ACTSC 104 (27 August 2009)

EVIDENCE - pre-trial application - voir dire - admissibility of admissions - Evidence Act 1995 (Cth), s 189; Court Procedures Rules 2006 (ACT), rr 4752, 4753, 4737 - first admission influenced by violent and oppressive conduct - Evidence Act 1995 (Cth), s 84 - whether second admission influenced by prior inadmissible admission.

EVIDENCE - proper procedure when questioning a young person - Children and Young People Act 1999 (ACT), s 79; Crimes Act 1914 (Cth) s 23K - failure to provide time for suspect to confer with 'interview friend'.

EVIDENCE - admissibility of admissions - Crimes Act 1914 (Cth), s 23V - proper procedure when questioning - failure to tape-record questioning when practicable to do so - contrary to the interests of justice to admit such evidence - vulnerability of the suspect - guidelines for police questioning.

EVIDENCE - admissibility of taped interview - discretion to exclude - Evidence Act 1995 (Cth), s 90 - factors considered - period of remand - Crimes Act 1914 (Cth), s 23C -allowable discounted time - alleged failure to provide sleep and food to suspect - alleged prejudice due to conduct of suspect's lawyer - seizure of clothes.

EVIDENCE - whether prior questioning formed part of later questioning.

Evidence Act 1995 (Cth), ss 75, 84, 85, 90, 135, 137, 138, 142(1), 189

Crimes Act 1914 (Cth), Pt IC, s 23A, 23C, 23K, 23V

Crimes Act 1900 (ACT), ss 23, 54(1)

Court Procedures Rules 2006 (ACT), r 4733, 4737, 4752

International Covenant on Civil and Political Rights (opened for signature 19 December 1966, 999 UNTS 171, entered into force 23 March 1976)

The Australian Law Reform Commission, Evidence (Report 26, AGPS, 1985)

Dennis I, "The Admissibility of Confessions under Sections 84 and 85 of the Evidence Act 1995 An English Perspective" [1996] SydLawRw 2; (1996) 18 Syd L Rev 34

Lars (aka Larsson), Da Silva, Kalanderian (1994) 73 A Crim R 91

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637

R v GH [2000] FCA 1618; (2000) 105 FCR 419

Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562

R v Douglas [2000] NSWCCA 275

R v Ye Zhang [2000] NSWSC 1099

Truong (1996) 86 A Crim R 188 (192)

R v Ul Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348

Higgins v The Queen [2007] NSWCCA 56

R v Heffernan (unreported, NSWCCA, Smart, James and Sperling JJ, 16 June 1998)

Wily v Fitz-Gibbon [1998] FCA 121

R v Helmhout (No 2) [2000] NSWSC 225

R v Paris (1993) 97 Cr App R 99

Raso (1993) 68 A Crim R 495

R v Jackson [2005] ACTSC 127

R v Rees [2005] ACTSC 91

R v Barklimore [2007] ACTSC 3; (2007) 167 A Crim R 377

Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216

Smith (1996) 86 A Crim R 398

Dos Santos (1995) 80 A Crim R 350

R v Tan Seng Kiah [1997] NTSC 144; (1997) 7 NTLR 61

Tan Seng Kiah v The Queen [2001] NTCCA 1; (2001) 160 FLR 26

Foo v The Queen [2001] NTCCA 2; (2001) 161 FLR 279

R v Lee [1950] HCA 25; (1950) 82 CLR 133

Em v The Queen [2007] HCA 46; (2007) 232 CLR 67

R v Gilham [2008] NSWSC 88

R v Birks (1990) 19 NSWLR 677

R v Waters [2002] ACTSC 13; (2002) 129 A Crim R 115

Heatherington v The Queen [1994] HCA 19; (1994) 179 CLR 370

Smith v The Queen (1996) 16 WAR 205

1. The admissions made to the accused's uncle are inadmissible.

2. The admissions made to Sergeant Bird are inadmissible.

3. The interview recorded with Constable Purcell, save for the agreed excisions, is admissible.

1. The accused, to whom I will refer as J, was born on 19 November 1990. At the time of the alleged offences he had turned 17 less than two months before. In these proceedings he is to be treated as a young person. He is charged with a serious offence, namely that on 1 January 2008 he sexually assaulted a woman without her consent, knowing that she was not consenting or being reckless as to whether she was consenting.

2. The matter is listed for trial to commence on 14 September 2009.

3. Before me is a pre-trial application (r 4752 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules)) for the exclusion of certain items of evidence which the prosecution intends to adduce at the trial.

4. Such an application is to be conducted in accordance with s 189 of the Evidence Act 1995 (Cth) (the Evidence Act). This section requires that, in the case of a jury trial, the hearing to determine the "preliminary question", as the admissibility of the evidence is called in the section, is to be held in the absence of the jury (s 189(2)). The facility of conducting such a hearing after the accused has been arraigned but before the jury has been empanelled, as contemplated by r 4737 of the Court Procedures Rules, is a sensible approach. That it is made before the empanelment of the jury is of no consequence: Lars (aka Larsson), Da Silva, Kalanderian (1994) 73 A Crim R 91 (at 97, 107-8). Such a hearing is commonly referred to as a "voir dire".

5. The application requires a written application (r 4753) and this has the advantage that the court can, as it is required to do, determine whether there is an issue which requires such a proceeding: Lars (aka Larson), Da Silva, Kalanderian (at 114).

6. I note that the voir dire is not an "interlocutory proceeding" for the purposes of the hearsay exception in s 75 of the Evidence Act: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637. It is, in a relevant sense, part of the trial itself.

7. It is not necessary to set out the whole of the events surrounding the alleged commission of the offence, but in order to understand the application, it is necessary to set out certain background facts. It is important to note, however, that they are, for the most part, only allegations at this stage that will have to be proved to the requisite degree at trial.

8. The accused, J, attended a New Year's Eve party at the home of his paternal uncle with his father and a sister. A number of other adults and children were also present. During the evening, alcohol was drunk, including by J. Sometime after midnight, the complainant went to bed. Sometime later, she accused J of having had sexual intercourse with her.

9. The events thereafter are the subject of this pre-trial application. Initially, J denied the accusation but his uncle became aggressive, "both verbally and physically". Sergeant Chris Bird of the Australian Federal Police, one of the officers attending the scene, was later told that the uncle had punched J. After this, J admitted to his uncle that he had had sexual intercourse with the complainant. This is the first admission, in point of time, that was challenged by J.

10. J later ran away and his father went to look for him and found him. By the time they returned, the police had arrived. Sergeant Bird immediately approached J and his father at about 3.40 a.m. and straight away asked J whether he had been drinking, which J admitted. He then arrested and cautioned J and asked him whether he had had sex with the complainant and J said that he had. At this time, Sergeant Bird had a hand-held tape recorder in his police vehicle but did not produce it or use it to record the conversation he had with J. This was the second admission challenged by J.

11. Sergeant Bird then placed J in a police car and he was driven back to the City Watch House. He was there examined by a medical practitioner. She noticed that he had not slept since about 10.30 a.m. on 31 December 2007. She advised that he was fit to be interviewed conditionally upon him having six hours sleep and something to eat. J was then placed in a cell in the Watch House where his clothes were seized by police.

12. At about 11.30 a.m., Constable Carly Purcell, with Detective Sergeant Elias Petropoulous, conducted an interview with J and recorded it on video and audio tape. Initially J's mother was present at the interview. When asked whether he wished to contact a lawyer, J said he did and the interview was interrupted so that this could be arranged.

13. About an hour later, a lawyer attended and sat in on the interview. J indicated that he was "happy with [the lawyer] who [was] sitting" with him during the interview. A short time later, J's mother requested that she not continue attending the interview and she left. J was asked "... are you still happy to continue if your mum leaves and you've got [the lawyer] here?" and he answered "Yes".

14. During the interview, the lawyer behaved in a somewhat unusual fashion. It is clear that some of the exchanges with him are inadmissible and the prosecution accepted that the transcript and recording would have to be edited to remove those passages. It appears that these areas a agreed by counsel for the parties but if I am wrong about that, that will have to be determined before the trial.

15. The interview concluded at 1.55 pm on 1 January 2008. J contends that none of the interview is admissible. I was not taken to specific parts of the interview, but in the application, J asserted that answers to a number of questions constituted admissions. This was the third of the admissions challenged by J.

16. J was later charged but it appears that he was not charged until about 5.10 pm, over three hours after the interview concluded.

17. The application in proceeding was a lengthy document. It identified the three admissions referred to above. In addition, it sought exclusion of the whole of the interview.

18. It set out the grounds of the application in some detail and also the "factual background", though this was not in affidavit form and was not sought to be tendered at the hearing.

19. The application referred to annexures, which were attached, marked "A" to "J". By consent, I admitted them and marked them as exhibits with the letters they bore as annexures.

20. I had before me the case statement (r 4733(c)(ii) of the Court Procedures Rules). The prosecution called Constable Purcell and Sergeant Bird and the medical practitioner who attended on J at the Watch House. After some issues were ventilated, Constable Purcell was recalled the next day and gave further evidence. Each witness was cross-examined.

21. The documents I had before me included the transcript of the interview (with the audio tapes of it), two statements of J's uncles, the statements of a number of other attendees at the party, including J's father, a statement of the number of police officers who attended, the report of the medical practitioner who attended at the Watch House, a note that is given to detainees in the Watch House setting out their rights, obligations and what to expect and a list of the other detainees at the Watch House for the whole of 1 January 2008. A DVD was also tendered with the video recording of the camera in J's cell while he was in the Watch House.

22. J did not give evidence. He was, of course, not obliged to do so: R v GH [2000] FCA 1618; (2000) 105 FCR 419 (at 431). This, however, had the capacity to, and did, leave some gaps in the evidence.

23. By the time all the evidence had been adduced and J's counsel, Mr Ken Archer, had made his oral submissions, all the time allotted for the hearing of the application had been exhausted. Accordingly, Mr S Drumgold, who appeared for the prosecution, agreed to put his submissions in writing. He did so. Mr Archer then filed a brief reply and separately referred me to a further decision of the Court of Criminal Appeal, New South Wales, Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562.

24. It is convenient to approach this matter by dealing with each admission in turn.

25. The first admission was that said to have been made to J's uncle. The evidence of the circumstances of that was set out in the statement of one of J's uncles. He refers to the complainant's complaint to him and he then puts it to J in the presence of his father. In his statement, he said:

I went outside and called [J's father] and [J] over in front of the shed which is about ten metres from the outside table. I explained to [J's father] what [J] had been accused of.

I said: Did you fucking do it, did you do it?

He said: No I didn't do it. I wouldn't do anything like that.

J's uncle recounts some further conversation with the complainant and continues:

[J] and his Dad ... started having a fight.

[J's father]: I want you to tell the truth [J], tell me the truth. Did you fucking do that or not?

...

[J] kept denying it that he hadn't done this. By this stage I believed [the complainant and J's uncle's partner] so I grabbed [J] by the shirt and took him out through the side gate and told [J's father] that I was going to take him away.

I threw him up against the wall at the side of our house.

I said: Did you fucking do it [J]? If you did they will find out, they will do tests. They're going to fucking find out.

[J] continued to deny it to me that he had done it. I swung at [J]. I think I may have connected with his arm once when I swung. I dragged [J] across the road and pushed him into a tree.

[J] kept saying 'I wouldn't do that [J's uncle], I wouldn't do that.

[J's father] came over again with [J's uncle's partner] and said to [J] that [the complainant] was going to get tested and that it would show up and that if he done it [sic] he would be found guilty.

[J's uncle's partner] said: [J], this is your last chance to say whether you did it. I need to know if you did it.

[J] said: Aunty ... I wouldn't do that to you.

[J's uncle's partner]: You didn't do it to me, you did it to [the complainant].

I said: They will test you and if you have done it, it will show up, cause the cops are on their way and they will definitely test you.

[J's father] said: This is your last chance to let us know the truth.

[J] said: Yes.

[J] also nodded his head when he said this.

I said: Do you realise what that is, it's bloody rape?

He said: I was drunk I was drunk I was drunk.

I said: You weren't that drunk, you haven't had that much.

26. Some further perspective on this can be gleaned from the statement of J's father where he states:

1. About 5 to 10 minutes later, [J's other uncle] and I [namely J's father] went around to the side of the house where [J] and [J's uncle] were standing next to the driveway. I saw that [J] was crying and [J's uncle] was very angry. He was yelling at [J].

I heard [J's uncle] yell: How dare you come to my house and do that to my friend.

I got angry. I can't remember what I said to [J]. [J's other uncle] intervened and took me aside again to calm me down. [J's uncle] dragged [J] by the shirt around to the front of the house.

1. [J's other uncle] and I walked around to the front of the house. I saw [J] was sitting on the front steps crying. I saw he had skin off both of his knees. I could see fresh grazes and blood on his knees. I saw [J's uncle] was standing over him yelling and swearing at him. I don't remember everything he said.

27. Mr Archer challenged this admission on the ground that the court could not be satisfied that it was not influenced by the violence committed by J's uncle.

28. In the case statement this admission is accompanied by an annotation as follows:

(The prosecution does not intend to actively lead this conversation as an admission in the Crown case because of the likelihood it has been influenced by violence or the threat of violence).

29. At the hearing, however, Mr Drumgold stated that this was no longer the position of the prosecution and that it did intend to rely on these admissions.

30. Section 84 of the Evidence Act provides:

1. Exclusion of admissions influenced by violence and certain other conduct

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or

(b) a threat of conduct of that kind.

(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

31. The prosecution bears the onus of showing that the admission was not influenced by the relevant conduct: R v GH (at 431). The standard of proof is, under s 142(1) of the Evidence Act, the balance of probabilities.

32. The section has not been subject to extensive consideration but it appears that the following are clear:

(1) the source of the conduct prohibited by the section is immaterial; it does not have to come from a person in authority or during "official questioning": R v GH (at 427-8);

(2) clearly, the prohibited conduct must be causally connected to the admission: R v Douglas [2000] NSWCCA 275 (at [58]-[61]);

(3) the prohibited conduct need not be the only influence on the accused; there may be other reasons why the admission is made: R v Ye Zhang [2000] NSWSC 1099 (at [44]);

(4) the test to determine the causal relationship between the conduct and the admission is not a stringent test: R v Ye Zhang (at [44]);

(5) inhuman conduct means conduct incompatible with the International Covenant on Civil and Political Rights (opened for signature 19 December 1966, 999 UNTS 171, entered into force 23 March 1976): Truong (1996) 86 A Crim R 188 (192).

33. There is some uncertainty about whether reliability is relevant. The Australian Law Reform Commission, Evidence, (Report 26, AGPS, 1985) vol 1 (at [965]) clearly thought not. It was the impropriety of the conduct and the lack of voluntariness of the admission that was relevant. See also Dennis I, "The Admissibility of Confessions under Sections 84 and 85 of the Evidence Act 1995: An English Perspective" [1996] SydLawRw 2; (1996) 18 Syd L Rev 34 (at 36-8). It seems to me that it is not relevant. What is proscribed are unacceptable forms of conduct in the context of questioning and not questions of reliability or voluntariness, though these are likely to be put at risk by such conduct, which is part of the reason for rejecting such evidence.

34. Clearly, on the evidence of J's uncle, there was violence, almost certainly actually inflicted. There was also the confrontation by J's uncle and his partner and J's father.

35. The section refers to violent or oppressive conduct. I can see nothing in the events that could be encompassed within the terms "inhuman or degrading conduct." "Violent conduct" is easy to understand and there was violent conduct here.

36. The term "oppressive conduct" has not been exhaustively defined. Indeed, in Ul Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348 (at 378), Adams J noted that "the precise boundaries of... 'oppressive ... conduct' are uncertain". In Higgins v The Queen [2007] NSWCCA 56, Hoeben J (Sully and Bell JJ agreeing) held (at [26]) that "the concept [of oppressive conduct] should not be limited to physical or threatened physical conduct but can encompass mental and psychological pressure".

37. Because of the effect of the section, namely automatic exclusion of the confession, with no discretion, and a relatively low threshold of causation, it does seem that the conduct involved should be of a relatively significant level of impropriety.

38. Thus, so far as oppressive conduct is concerned, as Smart J (with whom James and Sperling JJ agreed) said in R v Heffernan (unreported, NSWCCA, Smart, James and Sperling JJ, 16 June 1998):

There are sound reasons for not giving an expansive interpretation to "oppression" in s 84 of the Evidence Act. The section applies to both civil and criminal proceedings. The section does not confer a discretion; if evidence of an admission falls within the terms of the section, then the evidence is not to be admitted. The section places the onus on the issue of admissibility on the proponent of the evidence (assuming that the evidentiary onus under [s 84(2)] has been satisfied). It is sufficient to require the exclusion of evidence of an admission under s 84, that the court is not satisfied that the making of the admission was not 'influenced by' any conduct of the prescribed [sic] kinds.

39. Oppression" has been described in another context as the exercise of authority or power "in a burdensome, cruel and unjust manner": Wily v Fitz-Gibbon [1998] FCA 121. That seems a most inappropriate description. As Professor Dennis (at p 39) has pointed out, in England:

Oppression was a matter of degree which depended to a considerable extent on the circumstances of the interrogation and the character of the suspect.

40. In R v Helmhout (No 2) [2000] NSWSC 225, a young mother was warned that if she did not tell the truth she would look like a bad mother. As she feared that her children would be removed from her, the confession was excluded under s 84.

41. In R v Paris (1993) 97 Cr App R 99, an interview was described as oppressive when it included shouting, bullying and hectoring. It has to be said, however, that it occurred over some 13 hours spread over 5 days during which the accused denied his involvement more than 300 times.

42. In R v Ye Zhang, the accused was offered witness protection in return for co-operation in the context of two alternatives: to co-operate or be charged with murder. This was at the same time as being told he could expect a reduced or no sentence for co-operation. There was also a threat of physical violence and he was told that once the detective had left the room, there would be no further opportunity for co-operation. This, combined, was held to be oppressive conduct sufficient for the purposes of s 84.

43. In this case, I am satisfied that the violence combined with the confrontation did amount to violent and oppressive conduct.

44. It seems to me that, while J has not given evidence that he was influenced by the conduct of his uncle in beating him and by the others (unnecessary to make out the challenge if there is sufficient evidence in the prosecution case: R v GH (at 431)), I cannot be satisfied that the confession was not influenced by that conduct.

45. J initially denied the offence and denied it after the violence. The questioning that followed where he was confronted by people who were close relatives, together with the violence, appears to me to be oppressive in all the circumstances. He was a young man, he had been drinking, he had not slept for over 14 hours. It is difficult not to think that the conduct may well have influenced him to make the confession. Having denied the offence shortly before, he then admitted it in response to the relevant conduct.

46. In response, Mr Drumgold submitted that J had made the same admission three times under different circumstances within the space of an hour. The first admission, however, is this admission. Given that there is no issue in a determination under s 84 of reliability, the prosecution's argument has little weight. In any event, once an admission has been made, it is, no doubt, somewhat easier, impelled by one's sense of consistency, to repeat it. As Professor Dennis says (at p 37), there is a real issue about a "second confession" (and, presumably, a third or subsequent confession) for it must also be proved not to have been influenced by the earlier conduct. No other significant submission was made to support the admission.

47. Accordingly, the admission made to J's father, uncle and uncle's partner is not admissible.

48. When Sergeant Bird arrived at the scene of the party, he saw J and his father walking back to the premises. He approached them and the case statement records the following:

Sergeant Bird cautioned [J] and confirmed the person with him was his father. He then had the following conversation with [J]:

Sergeant Bird: How much have you been drinking?

[J]: Yes.

Sergeant Bird: How much?

[J]: About 8.

Sergeant Bird placed him under arrest and asked what happened, to which [J's father] said: He went inside and when he came out he said he made some

Sergeant Bird asked: Did you have sex with her?

[J]: Yes.

Sergeant Bird: Did you ejaculate?

[J]: No.

Sergeant Bird: Are you sure?

[J]: Ahh, no.

Sergeant Bird: So, you are not sure?

[J]: No.

Sergeant Bird: Where did it happen?

[J]: On the couch, in the front room.

As [J] made the last admission as to the location, he also pointed towards the windows of the left side of the house.

49. In the circumstances pertaining, there were a number of protections that police are required to afford persons suspected of or arrested for offences. That J was a minor added to those protections.

50. The Children and Young People Act 1999 (ACT) provided in s 79:

79 Interviewing young people

(1) This section applies if a police officer -

(a) suspects that a young person may have committed a serious offence or an offence against the person or property; or

(b) reasonably believes that a young person may be implicated in the commission of such an offence; or

(c) is holding a young person under restraint.

(2) If this section applies, a police officer may not interview a young person in respect of an offence or cause the young person to do anything in relation to the investigation of an offence -

(a) unless 1 of the following adults (who is not a police officer) is present:

(i) a person with parental responsibility for the young person;

(ii) a relative of the young person acceptable to the young person;

(iii) a lawyer acting for the young person or some other suitable person acceptable to the young person; or

(b) unless -

(i) the police officer has taken reasonable steps to secure the presence of a person mentioned in paragraph (a); and

(ii) it was not practicable for such a person to be present within 2 hours after the person was requested to be present; and

(iii) someone else (who may be a police officer) who has not been involved with the investigation of the offence is present.

(3) However, a police officer -

(a) is not required -

(i) to permit a person whom the police officer reasonably believes to be an accomplice of the young person in relation to the offence to be present while the young person is being interviewed, or is doing anything, in relation to the investigation of the offence; or

(ii) to take steps to procure the presence of a person mentioned in paragraph (2)(a) whom the police officer reasonably believes to be an accomplice of the young person in relation to the offence; and

(b) may interview a young person, or ask or cause a young person to do a particular thing, if the police officer reasonably believes that it is necessary to do so without delay to avoid danger of the death of, or serious injury to, a person or serious damage to property.

51. It was submitted that J's father was a person who fulfilled the role required under s 79(2)(a)(i). That must be true. It was suggested by Mr Archer that he could not fulfil that role as he may be a witness in the case. That does not seem to be a disentitling factor. Certainly were he an accomplice, that would prevent him undertaking that role, but that is not his position here.

52. It seems to me that Sergeant Bird complied with his obligations under s 79.

53. The Crimes Act 1914 (Cth) (the Crimes Act), however, also imposes obligations. Section 23K refers to the similar duties in relation to minors. It provides:

23K Persons under 18

(1) Subject to section 23L, if an investigating official:

(a) interviews a person as a suspect (whether under arrest or not) for a Commonwealth offence, and believes on reasonable grounds that the person is under 18; or

(b) believes on reasonable grounds that a person who is under arrest or a protected suspect is under 18;

the official must not question the person unless an interview friend is present while the person is being questioned and, before the start of the questioning, the official has allowed the person to communicate with the interview friend in circumstances in which, as far as practicable, the communication will not be overheard.

(2) An interview friend may be excluded from the questioning if he or she unreasonably interferes with it.

(3) In this section:

interview friend in relation to a person to whom subsection (1) applies, means:

(a) a parent or guardian of the person or a legal practitioner acting for the person; or

(b) if none of the previously mentioned persons is available - a relative or friend of the person who is acceptable to the person; or

(c) if the person is an Aboriginal person or a Torres Strait Islander and none of the previously mentioned persons is available - a person whose name is included in the relevant list maintained under subsection 23J(1); or

(d) if no person covered by paragraph (a), (b) or (c) is available - an independent person.

(4) The rights conferred by this section are in addition to those conferred by section 23G but, so far as compliance with this section results in compliance with section 23G, the requirements of are satisfied.

54. This section applies (as, indeed, does the whole of Part IC of the Crimes Act) to Territory offences punishable by imprisonment exceeding 12 months, as is the case with the offence with which J was charged, namely s 54(1) of the Crimes Act 1900 (ACT), where the penalty is imprisonment for twelve years. To understand the application of this section, it is necessary to have regard to s 23A of the Crimes Act, which provides:

23A Application of Part

(1) Any law of the Commonwealth in force immediately before the commencement of this Part, and any rule of the common law, has no effect so far as it is inconsistent with this Part.

(2) This Part does not exclude or limit the operation of a law of a State or Territory so far as it can operate concurrently with this Part.

(3) In subsection (2):

law of a State or Territory includes such a law that is given a particular application by a law of the Commonwealth.

(4) Where a law of a State or Territory would, apart from this subsection, require the electronic recording of confessional evidence in relation to a Commonwealth offence (whether or not expressed as a condition of the admissibility of that evidence), that requirement ceases to apply on the commencement of this Part.

(5) The provisions of this Part, so far as they protect the individual, are in addition to, and not in derogation of, any rights and freedoms of the individual under a law of the Commonwealth or of a State or Territory.

(6) If an offence against a law of the Australian Capital Territory is punishable by imprisonment for a period exceeding 12 months and the investigating official concerned is a member or special member of the Australian Federal Police, this Part applies to that offence as if:

(a) references to Commonwealth offences included references to that offence; and

(b) references to a law of the Commonwealth included references to a law of that Territory.

55. While relatively similar to s 79 of the Children and Young Peoples Act 1999 (ACT), s 23K additionally requires the police officer to permit the interview friend to communicate with the suspect before the interview commences in circumstances where the police will not overhear the communication.

56. It is clear that J and his father were walking back to the residence where the offence is said to have occurred but it appears that when J's father left to find him, he did not know the police had been called; the police had certainly not then arrived.

57. Thus, although J and his father had had time together, certainly out of hearing of the police, I do not consider that in these circumstances this is what is meant by the section. In my view, the section means that after contact has been made with police, who can indicate that they wish to interview the minor and what the issues are, then the interview friend must be given an opportunity for a private conversation with the minor.

58. I take this from the use of the words "the official has allowed" and from the obvious purpose of the section, namely to permit the interview friend to discuss with the minor what options he or she has and what attitude to take to the questioning.

59. The breach, however, cannot be considered egregious. J and his father knew what it was that the police wanted to discuss with J and can hardly have been taken by surprise. From the statement of J's father, they clearly saw the police well before they arrived at the residence where the police were. It is, however, a breach nevertheless.

60. There were, however, other breaches. Section 23V of the Crimes Act regulates the admissibility of confessions. It relevantly provides:

23V Tape recording of confessions and admissions

(1) If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:

(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission - the questioning of the person and anything said by the person during that questioning was tape recorded; or

(b) in any other case:

(i) when questioning the person, or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person during questioning, of the things said by or to the person during questioning; and

(ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her during questioning and a copy of the record was made available to the person; and

(iii) the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading ; and

(iv) a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and

(v) before the reading referred to in subparagraph (ii), an explanation, in accordance with the form in the Schedule, was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).

...

(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.

61. There is no doubt that, for the purposes of this section, the conversation between Sergeant Bird and J was a questioning: Raso (1993) 68 A Crim R 495.

62. The evidence was clear that Sergeant Bird had a tape recorder in the police car in which he had driven to the residence. He did not use it. He claimed that this was through inadvertence.

63. It cannot be suggested that it was not reasonably practicable to record the confession made by J. Accordingly, s 23V(1)(a) applies. Sergeant Bird did not comply with it. The confession is, therefore, inadmissible unless s 23V(5) is engaged successfully.

64. This case was quite similar to that considered by Crispin J in R v Jackson [2005] ACTSC 127 where his Honour said (at [16]):

...it is clear, from the fact that the accused was immediately cautioned, that he was being questioned as a suspect and equally clear that the conversation could have been tape recorded. Indeed, the police had taken a portable tape recorder with them but chose to leave it in the car. No reason has been advanced for not proceeding to tape record the conversation. Accordingly there is no evidence of any special circumstances in this case by reason of which I could conclude that the admission of the evidence would not be contrary to the interests of justice.

65. I do not find that Sergeant Bird deliberately left the tape recorder in his car, but he did leave it there. It was said to be due to inadvertence. This makes the breach less culpable but hardly less of a breach. Similarly, I do not consider that the omission was intended to try and distinguish the conversation from questioning which is subject to s 23V, as seemed to be the intention in R v Rees [2005] ACTSC 91 (at [14]).

66. As Higgins CJ said in R v Barklimore [2007] ACTSC 3; (2007) 167 A Crim R 377 (at 391-2), it is not enough under s 23V(5) for the admission of the confession not to be contrary to the interests of justice, there must be special circumstances making it so.

67. There was a vain attempt in the interview which was conducted later at the police station, and which was recorded properly, to comply with a version of s 23V(1)(b). It was not a proper compliance: Sergeant Bird's notes were merely read out to J and he was asked whether he recalled the conversation. He was not given a copy as required; he was not given an opportunity to interrupt the reading to draw attention to errors or omissions nor was he asked whether there were any such errors or omissions; and no explanation in accordance with the Schedule or even approximating it was given. While compliance with s 23V(1)(b) might in itself or in combination amount to a special circumstance, it was not followed here.

68. Mr Drumgold submitted that I should approach the question with what McHugh J had described in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 (at 251-2) as a "purposive construction". His Honour said (at 250-1):

Acting on the recommendations and findings of various commissions and inquiries, all Australian legislatures have enacted legislation that seeks to protect the rights of accused persons during a period when their rights are vulnerable by reason of the mistaken recollection or lies of police officers. The enactments of the various legislatures are broadly similar in principle although they differ in detail. In general, they identify the period of vulnerability as commencing with the time when the facts raise a suspicion of the accused's guilt. In most jurisdictions, the period is thereafter open-ended. The enactments recognise that miscarriages of justice may occur when there is no mechanical record confirming an allegation by police officers that the accused has confessed to a crime or made a damaging admission after he or she was or ought reasonably to have been seen as a suspect. The evident policy of the enactments is that it is against the interests of justice to admit evidence of such confessions or admissions unless there is a mechanical record of such confession or admission or an acknowledgement of it, or in some jurisdictions that exceptional circumstances justify the admission of the evidence. (footnotes omitted)

69. Later, though not referred to by Mr Drumgold, his Honour said (at 253-4):

The mischief at which s 8 [the relevant equivalent to s 23V] is aimed is clear: the attack on the integrity of the administration of justice by false or unreliable confessions or admissions allegedly made by suspects during a police investigation of a serious criminal office. It should be interpreted, so far as possible, to overcome that mischief. The prohibition in the section may not be confined to oral confessions. Arguably, it includes written as well as oral confessions unless 'in the course of official questioning' impliedly excludes a written confession or admission.

70. That, of course, is to be accepted but it does not seem to me to assist the prosecution in this case.

71. Mr Drumgold then relied on the following as factors to be relied on in the exercise of a discretion to admit the evidence under s 138 of the Evidence Act: the admission was the second made by J; it was in the presence of other police officers; its truth was supported by forensic evidence; the breach was inadvertent and not deliberate; a contemporaneous note was made by Sergeant Bird. He submitted further that Sergeant Bird had sworn to the making of the admission; the non-compliance was not made in bad faith and the admission was of "vital importance" to the case.

72. None of these matters seem to me to amount to special circumstances. Undoubtedly the evidence was important to the prosecution and, subject to my concerns about s 84, was probative. The first admission was influenced by violent and oppressive conduct so the second may also be tainted as it was made relatively soon after and again in the presence of his father but, in any event, cannot be bolstered by the first. In addition, it has to be said that most police "verbals" were sworn to by police and were claimed to have been made in the presence of other police. Most police "verbals" were recorded in what was said to be a contemporaneous note.

73. If the evidence was so vital, then the statutory regulations should have been followed and not breached.

74. As Wallwork J said in Smith (1996) 86 A Crim R 398 (at 410) exclusion is not a question of fairness only but also a matter of public policy. The policy is that confessions be recorded and inadvertence cannot be used to circumvent the clear obligations that the legislature has imposed on investigators.

75. While inadvertent, the failure to record was blatant and no real attempt was made to rectify that. In my view, the admissions are inadmissible and the desirability of admitting them is not outweighed by the undesirability of admitting evidence that has been obtained in this way.

76. It is, in this context, worth repeating what was said by Nash DCJ in Dos Santos (1995) 80 A Crim R 350 (at 356) for his recommendations about the conduct of interviews do not seem to have been heeded. His Honour said:

I should say something as to the procedure I consider ought to be adopted when an investigating official (which would include officers of the AFP or any officer of a Government department carrying out an investigation into a Federal criminal offence) conducts an interview with a person who may be suspected of having committed such an offence.

The official should have with him a tape-recorder unless it was not reasonably practicable to have one in the circumstances of the proposed interview.

Before the interview beings, and without reference to the suspect, the tape-recorder should be activated so that whatever is thereafter said will be recorded.

The procedure to be adopted in the course of the interview, including the fact that it will be tape-recorded, should be explained to the suspect who should also be given the usual caution that he need not answer any questions.

The tape-recorder should be activated throughout this time.

If, as happened here, the suspect says something along the lines this accused said, namely 'I don't want the tape-recorder being used. I will only talk with it switched off', with the recorder still activated, and using this case merely as an example, the official should say something along the lines of 'I will switch it off if you insist and then Detective Ward will make notes of our conversation. However I must tell you that the law requires me to have our conversation tape-recorded if possible. This is for your protection so there can be no dispute as to what I ask and how I ask it, and as to what you say and how you say it. In these circumstances do you still insist that I switch it off or shall I leave it on?'

Depending on the suspect's answer, and provided he is prepared to be interviewed, the interview can proceed with it being recorded on tape or note form as the case may be.

If the latter, the provisions of s 23V(1)(b) of the Act should be complied with, including once more the switching on of the tape-recorder and the preliminaries to and the reading of the questions and answers being tape-recorded, unless the suspect, of his own statement, without being asked again, insists on it being switched off. If the latter, the suspect should also be given the opportunity of signing the notes.

In either case, although it may not strictly always be required pursuant to s 23V(2) of the Act, a copy of the recording should be made available to the suspect. Naturally this need not be done if it is decided that no charge will be preferred against the suspect but, in case a decision to charge or issue a summons is later made, it would be wise to comply with this provision.

77. Hopefully, these words will be drawn to the attention of police officers and other investigators and they will heed them.

78. The third matter is the interview conducted by Constable Purcell with J commencing at 11.31 a.m. on 1 January 2008.

79. Mr Archer, for J, submitted that the whole interview should be excluded or at least any admissions in it. The latter proposition seems to amount to the same as the former. The interview is, or course, hearsay. It is only admissible for any admission in it. The balance is admissible to give context and coherence to the admissions. Once the admissions are excluded, there is no basis for the balance to be admitted.

80. Mr Archer submitted that it should be excluded because:

(1) the time limit in s 23C of the Crimes Act had been exceeded;

(2) at 11.30 a.m., J was unfit to be interviewed because he had not slept nor been fed as recommended by the examining medical practitioner;

(3) the behaviour of the lawyer assisting J was so bad that it would be unfair to admit the interview.

81. Section 23C of the Crimes Act relevantly provides:

23C Period of arrest if arrested for non-terrorism offence

(1) If a person is arrested for a Commonwealth offence (other than a terrorism offence), the following provisions apply.

(2) The person may be detained for the purpose of investigating either or both of the following:

(a) whether the person committed the offence;

(b) whether the person committed another Commonwealth offence that an investigating official reasonably suspects the person to have committed;

but must not be detained for that purpose, or for purposes that include that purpose, after the end of the investigation period prescribed by this section.

(3) The person must be:

(a) released (whether unconditionally or on bail) within the investigation period; or

(b) brought before a judicial officer within that period or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.

(4) For the purposes of this section, but subject to subsections (6) and (7), the investigation period begins when the person is arrested, and ends at a time thereafter that is reasonable, having regard to all the circumstances, but does not extend beyond:

(a) if the person is or appears to be under 18, an Aboriginal person or a Torres Strait Islander - 2 hours; or

(b) in any other case - 4 hours;

after the arrest, unless the period is extended under section 23D.

...

(7) In ascertaining any period of time for the purposes of subsection (4) or (6), the following times are to be disregarded:

(a) the time (if any) that is reasonably required to convey the person from the place at which the person is arrested to the nearest premises at which the investigating official has access to facilities for complying with this Part;

(b) any time during which the questioning of the person is suspended or delayed to allow the person, or someone else on the person's behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter or other person as provided by this Part;

(c) any time during which the questioning of the person is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter or other person to arrive at the place where the questioning is to take place;

(1) At 3.32 a.m Sergeant Bird arrived at the residence where the offence had allegedly been committed. He was briefed and six or seven minutes later saw J and his father walking up the street. He spoke to them when they arrived. He arrested J at 3.40 a.m. He then had a short conversation with another police officer and placed J in a police vehicle.

(2) The medical practitioner was contacted at 4.15 a.m. from the Watch House. J must have arrived some time before then. Sergeant Bird spoke to J's uncle at 4.10 a.m, so J must have left without Sergeant Bird.

(3) After arrival, J was placed in a holding cell and his clothes were taken from him. The removal of his clothes, said to be for seizure, took about two minutes from 4.26 a.m. to 4.28 a.m.

(4) The medical practitioner arrived shortly before 5.20 a.m. when she commenced her examination. She recommended six hours sleep before interview. She finished her examination at 5.40 a.m.

(5) At 11.09 Constable Purcell arrived at the Watch House and sought to have J taken to an interview room for the interview.

(6) After J was in the interview room, Constable Purcell went to the foyer of the police station and escorted J's mother to the interview room where she was allowed to speak to J in private before the interview commenced.

(7) The interview commenced at 11.31 a.m. and was suspended at 11.34 a.m. to have a lawyer contacted.

(9) The interview was suspended between 12.36 a.m. and 12.38 p.m. while J's mother was, at her request, escorted out of the police station.

(10) The interview was suspended between 12.49 pm and 12.56 pm so that J could consult with his lawyer.

(11) The interview was suspended at the request of J's lawyer at 1.14 pm and resumed at 1.29 pm.

83. The central issue is the interview. It seems to me that certain of the periods referred to above are clearly to be disregarded by virtue of s 23C(7). Thus, I find that the following periods are to be disregarded for the following reasons:

(a) The time between 11.34 and 12.27 pm - s 23C(7)(c);

(b) The time between 12.49 pm and 12.56 pm - s 23C(7)(b);

(c) The time between 1.14 pm and 1.29 pm - s 23C(7)(b).

84. I am undecided about the two minutes while J's mother was escorted out of the police station but that event does not appear to fall within any of the exemptions under s 23C(7).

85. This, according to my calculations, is 69 minutes.

86. The time between 3.40 a.m. and 4.15 a.m. is unclear. Some of that is clearly to be disregarded because of s 23C(7)(a). I do not consider it is simply "driving" time that is to be disregarded, but also putting J in the car, perhaps some limited waiting while arrangements are made, and then disembarking at the Watch House. Of those 35 minutes, I am prepared to say fifteen minutes can be disregarded under that provision.

87. The period between 4.15 a.m. and 5.20 a.m. is to be disregarded under s 23C(7)(d) for the medical practitioner to arrive. The examination took between 5.20 a.m. and 5.40 a.m. Mr Archer submitted that the medical practitioner did not provide treatment and that, therefore, the exemption did not apply to these periods. I do not accept that. The examination to see whether J was fit to be interviewed was, in my view, medical attention. An examination is a preliminary to treatment. Even if no treatment is provided, that examination amounts to medical attention. Here, in any event, some "treatment" was recommended, namely sleep and a meal.

88. I except from these periods the two minutes taken to seize J's clothes, which is part of the investigation.

89. The period between 5.40 a.m. and 11.09 a.m. is to be disregarded by virtue of s 23C(7)(e) and (h). While the intoxication was not a major issue, it was a factor in the mind of the medical practitioner. The major issue was the sleep factor, though combined with the intoxication.

90. Mr Archer submitted that the intention of the legislation was to limit the time a person was in custody in the investigative phase. He submitted that the period recommended by the medical practitioner was not really necessary.

91. The practitioner had made the recommendation so that J could participate "optimally" in the interview. This, according to Mr Archer was inconsistent with the legislation.

92. It seems to me that the police would have been derelict in ignoring the conditions imposed by the medical practitioner. She had good reasons for her recommendation and the police were obliged to respect it.

93. I note that in R v Tan Seng Kiah [1997] NTSC 144; (1997) 7 NTLR 61, the court accepted that a period from 7 a.m. on 1 July to 4.55 pm on 3 July (for what would be a four hour period under s 23C(4)) was acceptable where periods under s 23C(7) were taken into account. That decision was upheld on appeal: Tan Seng Kiah v The Queen [2001] NTCCA 1; (2001) 160 FLR 26.

94. In any event, there is no sanction for breach of s 23C save for the discretionary exclusion of any evidence obtained through the breach: Foo v The Queen [2001] NTCCA 2; (2001) 161 FLR 279 (at 287). Where police followed a recommendation of a medical practitioner as to rest and recuperation so as to make the detained person better able to participate in the interview, it seems highly unlikely that a court would not exercise a discretion to admit the evidence. In this case, were that required, I would do so.

95. Between 11.09 a.m. and 11.31 a.m., there was some (unspecified) time while J's mother was brought to him and they spoke. I am prepared to disregard ten minutes of this time.

96. Taking these matters into account, I calculate the total investigative time as 103 minutes, well under the two hours. I note that this is less than the period calculated by Constable Purcell, but I was not favoured with her calculations. She may have been less generous to the prosecution with some of the estimations that inevitably had to be made.

97. I reject the challenge to the interview on the basis that the time limited under s 23C was breached at least until the conclusion of the interview.

98. The second issue raised about the interview is that, contrary to the advice of the medical practitioner, J did not sleep and did not eat so it was unfair to interview him at 11.30 a.m. when he would have not slept since about 10.30 a.m. the previous day, 24 hours later.

99. Indeed, Mr Archer submitted that it would have been fairer to interview J at about 5.40 a.m. at the conclusion of the medical attention he received. There is no doubt that if that had occurred, a challenge to the interview would have been mounted on the basis that the recommendations of the medical practitioner had not been followed.

100. This argument is based on the power of a court under s 90 of the Evidence Act to exclude evidence of an admission due to unfairness. The section is in the following terms:

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

101. The section is based on but is different from the common law discretion described in R v Lee [1950] HCA 25; (1950) 82 CLR 133.

102. This section has been recently considered by the High Court in Em v The Queen [2007] HCA 46; (2007) 232 CLR 67. Unfortunately, the Court was divided on some issues so it is not entirely clear how the courts are to apply it.

103. It was clear, however, that this is a wide, residual discretion available to be exercised by the court. It appears that it should be considered after the other grounds for exclusion in the Evidence Act have been considered and applied if appropriate, such as appear in ss 84, 85, 135, 137 and 138 of the Evidence Act, though this was the only express finding of Gummow and Hayne JJ (at 104) and the other members of the majority, Gleeson CJ and Heydon J did not decide explicitly on this issue. Their Honours did, however, consider the other grounds of exclusion as "Evidentiary gates through which the evidence passed" (at 79).

104. Their Honours directly disagreed about the relevance of the reliability of the admission. Gleeson CJ and Heydon J considered that reliability was important (at 93) while Gummow and Hayne JJ held that, unlike at common law, it was not important at least when made to police in the course of official questioning (at 104- 5).

105. Gleeson CJ and Heydon J noted (at 91) that the onus was on the accused to raise the matters that make the admission unfair.

106. Gummow and Hayne JJ noted (at 103) that the focus of the section was on the fairness or otherwise of using the admission in evidence rather than the circumstances of its making.

107. Gleeson CJ and Heydon further noted (at 95) that it was not unfair for police officers to take advantage of the ignorance or stupidity of the accused.

108. Kirby J, in dissent, noted (at 121-2) that the unfairness was directed only to unfairness to the accused and only in the relevant criminal proceedings. It is also not unfairness involving unfair prejudice, which is dealt with in ss 135 and 137 of the Evidence Act. His Honour held (at 127) that the discretion to reject the evidence was at least as broad as the common law power. It should not be constrained, his Honour also held, by "language restrictions imported from the language of other exclusionary provisions in the [Evidence] Act".

109. All members of the Court held that the fact that the recording of the admission in that case was done in secret did not activate the discretion.

110. In R v Gilham [2008] NSWSC 88, the only decision on s 90 I can find decided since Em v The Queen, Howie J held that admissions made in an interview should not be excluded under s 90 even though the accused was being held in illegal custody, because he was being detained merely for questioning and should have been taken before a court.

111. In this case, the challenge as to unfairness depended upon my finding that J did not sleep and did not consume a meal, as recommended by the medical practitioner.

112. The first issue is easy to resolve. The evidence of Constable Purcell was that J was offered a meal and declined. In my view, that disposes of the issue. Absent quite extraordinary circumstances, the duty of the police was to make a meal available; they could not make him eat it nor was there an obligation on them to determine how much he ate.

113. The question of sleep occupied much of the time of the hearing. As noted, J did not give evidence on the hearing, as was entirely his right. That, however, meant that I could only draw inferences from the other evidence. That other evidence was a DVD of the Watch House CCTV so far as the cell in which J was lodged was concerned and a list of people lodged in the Watch House that day, together with the following evidence from Constable Purcell. That evidence was as follows:

MR ARCHER: Have you had any experience yourself in what, in doing work in the watch-house? - Some, yes.

That seems to me, but you correct me if I'm wrong to be a very large number of people who were in custody that night? - Yes it would.

Very large, it seems to me? - Yes.

And I note that a lot of them concern breaches of the peace? - I haven't reviewed it in that much detail that I could comment on that.

It's a matter of the submission I suppose. And in relation to some of the terminology used, can I just draw your attention, just by way of example to the matter of [a detainee], he is on that list. It's just of an example of an entry that I want you to explain if you could. What does that mean, 'lodged statistic', statistic only? - The lodged in custody statistics only is normally a reference to an apprehension for intoxicated or disorderly within a public place.

So, how many of those appear on that? - I believe 21 from count.

Thank you. And how long have you worked in the watch-house for? - My experience in the watch-house was limited to approximately a period of two weeks, at least five to five and a half years ago.

And in that experience and perhaps from information that you've gleaned from other people such as [another detainee] as an example, do those who are lodged as drunk and disorderly, if I could just use that colloquialism, they often tend to be quite loud and stroppy and a bit contrary? - they can be, yes.

114. I have watched the DVD. Mr Archer's instructor also made notes of events that occurred during this period. It referred to every movement discerned by her that J made. It also identified when police passed the cell. The recording did not have any sound.

115. While it is clear that J moved about and certainly sat up at one point, he did lie still for a large part of the time. He showed some restlessness, but that is, from common experience, not inconsistent with sleep.

116. I have no doubt that there was some noise and disturbance in the Watch House that night, but I am quite unable to say that it was such that J could not have slept through it, particularly given the state of his intoxication and tiredness.

117. I cannot find that J did not sleep during a large part of the time that he was in the Watch House. This ground of challenge to the interview also fails.

118. The third challenge was to the behaviour of the lawyer who was called in to sit with J during the interview.

119. Mr Archer referred to the departure of J's mother. There was no indication of why she chose to do so. All that is recorded is that she says "Excuse me, I don't want to sit in on this, if you don't mind, if that's all right". She then left. J was asked "are you still happy to continue if your mum leaves and you've got [the lawyer] here?" and he responded "Yes". There is nothing in this circumstance which makes the admission of the interview unfair.

120. Mr Archer then submitted that at times during the interview the lawyer acted quite inappropriately. These interventions were somewhat intrusive and the police properly minimised them.

121. Many of his comments were, however, quite proper, suggesting that J not answer a question or not further answer a question.

122. Certainly the lawyer did make a comment that was quite inappropriate, when he suggested that J had "a reputation of fabricating the truth" but in that context he was urging "that [J] remember exactly what he does know and stick to the facts that he does know and that's all I want to advise him". These passages are, of course, inadmissible and the prosecution agreed to delete them. He then gave him some direct, appropriate advice, that if J did not "remember something and you don't remember it because you're drunk, then that's the answer you give to the Constable, you are honest".

123. There was another interaction later where the lawyer appeared to be making submissions and trying to give evidence. That, too, would be excluded and not admissible.

124. Mr Archer suggested that the lawyer had breached client confidentiality. The lawyer does at one stage comment about what he was told during a break, namely that J did not remember anything. I have no evidence that this was done in breach of the duty the lawyer had to respect J's confidential communications with his lawyer. In any event, it is entirely consistent with the answers J had given. Indeed, while perhaps clumsy, the lawyer's point in making the interjection has a rational basis.

125. Later the lawyer commented to J that "A little while ago you just kept telling me you were drunk". I have no evidence that this was said in a confidential situation. J had said in the interview that he had drunk 18 cans of beer. Indeed, at one point in the interview, in answer to a question of Constable Purcell, he stated "I was pretty drunk". The lawyer could well have been referring to that comment.

126. J ended a question with: "so I'm not blaming it on alcohol, but yes, I was, like fairly out of it". The lawyer then said "You're not blaming what alcohol, [J] [sic]?". That could be construed as an odd question, but J replied "I'm not blaming - like, I'm not blaming anything of what happened that night on alcohol because I don't know what happened".

127. There were many passages where the lawyer made no intervention and J seemed to be able to respond appropriately and rationally.

128. Looked at overall, I did not consider that these matters seemed to have had an adverse impact on J or on the way in which he answered the questions. They did not present a picture that would make admission of the interview (except the excluded, inadmissible, portions) unfair.

129. While Constable Purcell described the lawyer's participation as unusual, I have to consider the overall effect.

130. I have also to note that the lawyer was chosen by J and his parents and that J expressly accepted him even when his mother left. The test may be something like the test applied to the common ground of appeal, namely the incompetence of counsel. See R v Birks (1990) 19 NSWLR 677. It does not seem to me to reach that level here.

131. Having carefully read the whole of the interview and bearing in mind what the High Court has said in Em v The Queen, I do not consider that, with the agreed excisions, there is any unfairness in the admissions in the interview being admitted into evidence.

132. There was one issue which was not canvassed by Mr Archer. It is a thin argument, but it should be briefly addressed.

133. A number of cases have held that where questioning occurs in two places, it may be considered as one or as separate. Thus, in R v Waters [2002] ACTSC 13; (2002) 129 A Crim R 115, Gray J held that there were conversations not recorded between the accused and the police, conveying an attitude that the police expected the accused to confess immediately prior to a formal, recorded interview.

134. His Honour held (at 119) that these were not separate periods of questioning; indeed the earlier "led into the tape-recorded questioning" (at 120). As a result of the failure to record the earlier conversation, his Honour held the whole of the interview inadmissible.

135. In R v Jackson, Crispin J held that a conversation between the accused and a police officer at his place of work, which was not recorded and in which he made admissions, and which occurred with the same participants 30 minutes before the recorded interview, was part of the questioning and thus, as it was not recorded, the whole interview, including the recorded part should be excluded.

136. The High Court has provided some assistance in considering this matter. In Heatherington v The Queen [1994] HCA 19; (1994) 179 CLR 370, Mason CJ and Deane and McHugh JJ said (at 376):

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. (footnote omitted)

137. Toohey J agreed with Mason CJ and Deane and McHugh JJ, and said (at 387):

None of their Honours lost sight of the fact that, in the end, 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.

139. The distance in time and discreteness of the interviews is not necessarily determinative. In Smith v The Queen, two "informal" unrecorded interviews were regarded as part of the third, recorded interview, where they were expressly referred to and the way in which they were obtained was improper, such that it was likely to have an effect on the decision of the accused to participate in the third interview. Although the Court of Criminal Appeal did not expressly find that the three interviews amounted to one questioning, they considered that the earlier breaches rendered reliance on the recorded interview unfair.

140. In this case, I do not consider that the interviews with Sergeant Bird that I have excluded are part of the same questioning constituted by the interview with Constable Purcell and so do not affect its admissibility. I take into account the separation in time, the different participants, including interview friend, and all of the surrounding circumstances.

141. Mr Archer also complained that early after arriving at the Watch House, J had been strip-searched and that the proper procedure for that was not followed.

142. There was no claim about this in the application. For example, there was no order sought rendering any evidence of the "search" or the clothes seized to be inadmissible. Perhaps it was just part of the circumstances in which Mr Archer was noting that went to any exercise of discretion by the Court.

143. In any event, while the process of which he complained did require J to take off all of his clothes, it cannot have properly been described as a search. He was not searched. He was able to face the wall and not expose himself or be inspected in any sense.

144. It was simply, as the police were entitled to do, a seizure of clothes which may have evidentiary value. I reject the complaint. I do note that there seemed to be far too many police present for the task. That is at least undesirable. It could have been thought to be somewhat intimidating.

145. Mr Archer also complained that J was not charged until 5.10 pm, that is over three hours after the interview concluded and well outside the period of two hours in s 23C of the Crimes Act.

146. As noted above, there is no sanction for this breach and I do not consider that exclusion of the interview would be an appropriate response.

147. As Mr Archer showed, the Watch House was unusually busy on that day. It would have been better if J had been charged earlier and it is important that any unnecessary delay is minimised. I do not, however, consider that it is otherwise relevant to this application.

148. Finally, I have read Rondo to which Mr Archer referred me. It does not particularly assist. I do not consider that the violent and oppressive conduct was relevantly connected to the interview with Constable Purcell. I have not found the seizure to be an unlawful strip search. I have not found a breach of s 23C of the Crimes Act prior to the conclusion of the interview.

149. None of these matters were influential in creating an improper situation in the interview which required me to exercise a discretion under s 90 of the Evidence Act.

150. Accordingly, I propose to make the following orders:

1. That the admissions made to the accused's uncle are inadmissible.

2. That the admissions made to Sergeant Bird are inadmissible.

3. That the interview recorded with Constable Purcell, save for the agreed excisions, is admissible.

I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the plaintiff: Director of Public Prosecutions (ACT)

Solicitor for the defendant: Ben Aulich & Associates