R v Mohammed [2004] VSC 408

Supreme Court of Victoria|2004-08-24|Before: KAYE J.

CRIMINAL LAW - Evidence - Admissibility of record of interview - Voluntariness - Unfairness discretion - No interpreter - Forensic disadvantage to accused.

Before the empanelment of the jury in this matter, objection has been taken, on behalf of the accused, to the introduction into evidence of a tape-recorded record of interview conducted with him by investigating police members at the Shepparton Criminal Investigation Unit offices on 24 March 2003.

The accused man, Mohammed Mustaf Mohammed, has been charged on presentment, inter alia, with one count of murder and two counts of attempted murder. The charges arise out of events which occurred at Ovens River Abattoir, Yarrawonga, shortly after 7.00 a.m. on 24 March 2003. The accused was taken into custody, in a paddock near the abattoir, at 10.00 a.m. At 10.12 a.m., Detective Senior Constable Bentley, of Shepparton Criminal Investigation Unit, spoke to the accused and formally arrested him. He was conveyed to the Shepparton CIU offices, where he arrived at 11.25 a.m. An initial interview was conducted, at 11.55 a.m., at the Shepparton Criminal Investigation Unit. In that interview, the accused man was requested to undergo certain forensic procedures. That interview concluded at 12.12 p.m.

At some stage during the afternoon, Mr Mohammed spoke to a Legal Aid solicitor, Mr James Spencer. Mr Spencer then organised for Mr Ian Michaelson, from the Legal Aid Service in Shepparton, to speak to the accused man. Mr Michaelson spoke to Mr Mohammed between 5.12 p.m. and 5.20 p.m.

At 5.20 p.m., Detective Senior Constable Gale, the informant, introduced himself to the accused man. Detective Senior Constable Gale informed the accused man that he was under arrest for murder and two counts of attempted murder. He cautioned Mohammed. At that time, Mr Mohammed spoke to his aunt on the telephone. He also saw and spoke to a Muslim chaplain, Mr Elmaz, between 5.52 p.m. and 6.12 p.m. The record of interview then commenced at 6.35 p.m. The interview was suspended at 6.40 p.m., when Mr Mohammed indicated that he wished to speak to someone from the New Zealand consular office. The accused man spoke to the New Zealand consular office, and then had a meal. The interview resumed at 7.57 p.m. and terminated at 9.06 p.m.

Before the interview was conducted, efforts were made by the police to obtain the services of an interpreter for Mr Mohammed. However, no interpreter was available. A decision was made to conduct the interview rather than to defer it until the next day, or at a later time, when an interpreter might become available.

Objection has been taken, on behalf of the accused, to the record of interview, on two grounds; namely, first, it has been submitted, on behalf of the accused man, that the admissions made by him in the interview were not voluntary; secondly, in any event, it is submitted that I should exercise my discretion to exclude the interview on the basis that to admit it into evidence would be unfair to the accused man.

In order to examine the admissibility of the record of interview, I conducted a voir dire - a preliminary hearing. Detective Senior Constable Bentley, of Shepparton Criminal Investigation Unit; Detective Sergeant Gale, now of Collingwood CIU, but then, of the Homicide Squad; and Mr Mohammed, gave evidence, and were each cross-examined.

I shall first consider the issue of voluntariness. Mr Desmond of counsel, who appeared on behalf of the accused, submitted that the admissions made by his client in the record of interview were not voluntary. That submission was based on the proposition that, firstly, the accused did not understand the caution which was administered to him at the commencement of the interview, and secondly, that, in any event, his client was overborne to participate in the interview and to answer questions which were put to him.

The principles relating to the question of voluntariness of admissions have long been established in landmark cases such as R v McDermott[1], and R v Lee[2].

In R v Swaffield[3], Toohey, Gaudron and Gummow JJ noted that the basis of rejecting an admission as involuntary, lies in the fundamental requirement of the common law that a confessional statement must be made in the free exercise of a choice to speak or to be silent.

The formulation of the concept of voluntariness in those terms was initially derived from the judgment of Dixon J in R v McDermott[4], which was later adopted by the High Court in R v Lee [5].

The principle of voluntariness, and in particular the requirement that any confession or statement be made in the exercise of a free choice to speak or to be silent is of particular moment in a case such as this.

Mr Mohammed was born in 1978 in Somalia. At some stage his family moved to Ethiopia. In March 1998 he then migrated to New Zealand where he remained until 2002. He then moved to Australia.

It is clear from the viewing of the video taped record of interview, and from listening to the tape recording of the initial record of interview, that the accused man has a limited understanding and an even more limited command of spoken English.

In R v Li and Another[6], Coldrey J excluded as involuntary an interview conducted on an accused man where he was satisfied that the accused man had not understood the caution administered to him at the commencement of the interview and the associated rights attached to that caution.

"The breadth of the concept of voluntariness is often misunderstood. In my view it extends to and encompasses the situation where answers are given by an accused person who lacks understanding that such questions need not be answered, and as a result, feels compelled to participate in the interview process. In such circumstances the interview will be non-voluntary. This is so even though the interview itself may be conducted in an ostensibly co-operative fashion."

I also refer to R v Nguyen[7], and also to the decision of the Full Court of the Supreme Court of Victoria in R v Buchanan[8].

The question then is whether the accused man, Mr Mohammed, did have sufficient understanding of the caution administered to him so as to exercise a free choice whether to answer the questions put to him or to remain silent. The Crown bears the onus of proving voluntariness on the balance of probabilities. I refer to Wendo v R[9], in the judgment of Sir Owen Dixon C.J.

Before I return to consider the record of interview itself, it is convenient that I first express my views as to the oral evidence which was called before me on the voir dire.

Both Mr Bentley and Mr Gale gave evidence that notwithstanding the obvious limitations of understanding and expressing English of the accused man, nevertheless Mr Mohammed did understand sufficiently what was put to him so as to make proper answer to those questions. In particular, both police officers gave evidence that when they interviewed the accused man, they were then of the view, from what they observed, that the accused man understood the cautions which they had administered to him and had a proper appreciation of his rights, especially his right to remain silent.

It is, of course, for me to determine whether the interview was voluntary in the sense which I have already discussed, notwithstanding the then views of the police officers who conducted the interviews. Their impressions of the accused man's demeanour, and their views, may well have been genuinely entertained by them, but those impressions may either be incorrect or may have been affected by the concern of the police officers to continue with and advance their enquiries into the serious set of events which they were investigating.

It is clear that Mr Bentley in particular had some concern as to Mr Mohammed's grasp of the English language. At 12.12 p.m, after conducting the initial interview, he wrote in his notes: "Further interview to be conducted with an interpreter." In the ensuing two and a half hours, Mr Bentley made at least five attempts by telephone to organise an interpreter but was unable to do so. Mr Gale did not know of the notation which Mr Bentley had made in his notes concerning the further interview being conducted with an interpreter, but he was aware that Mr Bentley had made a number of efforts to obtain the services of an appropriate interpreter.

The police had limited, if any, information concerning the background of Mr Mohammed when they interviewed him. The only information they had concerning his ability to understand and speak the English language was derived from their own discussions with him. These matters are relevant to the weight which I place on the views of the police which were expressed to me during the voir dire.

Mr Mohammed gave evidence on the voir dire. I shall be circumspect in what I say about his evidence, given that a trial is shortly to commence.

In his evidence, the accused man stated in essence that after his arrival at the Shepparton Police Station he requested Mr Bentley on approximately six occasions to organise both a doctor and an interpreter for him. He stated that Mr Bentley appeared to ignore those requests. In the first interview the accused man did not again raise his desire to have both an interpreter and a doctor attend to him. He stated that he did not do so because at that stage he had already given up making that request. Mr Mohammed stated that he originated from Somalia. He claimed that in Somalia if a person crossed the police they would be tortured. When the police refused to permit him access to a doctor and to an interpreter at the Shepparton Police Station, he said that he was scared and therefore he agreed to undergo the interview and to answer questions.

Having observed the accused man give evidence and be cross-examined, I do not accept the reason which he advanced for participating in the two interviews. First, he claimed that he had made at least six requests for a doctor and an interpreter at ten minute intervals before the first interview. Yet only 30 minutes expired between his arrival at the Shepparton Police Station and that first interview.

It is hard to understand why, if he did make so many requests for a doctor and an interpreter before the interview, he did not repeat that request during the first interview conducted by Detective Senior Constable Bentley at 11.55 a.m.

Further it is evident that during the day the police did take steps to assist the accused man and did permit him to avail himself of various rights. He was given two meals, he was permitted to speak to his aunt, and he saw two solicitors from the local Legal Aid Service. The police arranged for him to see the chaplain, Mr Elmaz. During the second interview which commenced at 6.35 p.m. he was permitted to speak to a representative of the New Zealand Consul when he requested access to that person.

In those circumstances I do not accept that Mr Mohammed had during the day in question an honest perception that if he refused to speak to the police he would suffer at their hands. I reject that as an explanation by Mr Mohammed as to why he did participate in he interview. My rejection of Mr Mohammed's evidence does not, however, necessarily resolve the question as to whether the record of interview was voluntary. For the purpose of determining that question it is necessary for me to examine in a little detail the two interviews.

The first record of interview which was commenced at 11.55 a.m. was conducted by Detective Senior Constable Bentley. Mr Bentley gave the accused man the caution as to his rights in the usual terms. He was asked whether he understood what he was told, and the accused man answered "Yeah". However, when Mr Bentley asked him to tell him what he meant the accused man said "I don't understand". Bentley then explained to the accused man his rights by telling him that if he did not want to say anything he did not have to.

The second record of interview which commenced at 6.35 p.m. was conducted by Detective Senior Constable Gale in the presence of Mr Bentley. Mr Gale at Question 164 commenced by advising the accused man that he was not obliged to say or do anything unless he wished to do so, but anything he might say may be given in evidence. He was asked whether he understood that, and the accused man responded, "Explain?" He was then asked "Do you understand that?" to which he replied "Can you explain that again?" Detective Senior Constable Gale told the accused man at Question 171, "I must inform you you are not obliged to say or do anything, so you don't have to say or do anything." To that the accused man responded, "What do you mean?" Mr Gale then proceeded again to explain the caution to the accused man telling him that he did not have to say anything and he did not have to do anything. Mr Gale stated that if he, Mr Gale, asked the accused man to say something he did not have to. After taking care to explain those matters to the accused man he then tested the accused man's understanding of the caution in the following terms, at Questions 186 and 187. Question 186: "If I ask you a question?" Answer: "Yeah." Question 187: "Do you have to answer the question?" Answer: "If I can."

It was clear both to Mr Gale then and to me when I saw the video tape that the accused man at that stage had not understood the caution which had been administered to him, and if I may say so, with some degree of care. Once again Mr Gale attempted to explain the caution to the accused man. He told the accused man that he did not have to say or do anything and that if he did not want to say something he should say nothing. There then occurred the following passage at Questions 190 to 192.

Question 190: "No need. You can sit there and say nothing at all, just not a thing?" Answer: "Quiet." Question: "Be quiet if you want to." Answer: "OK." Question 192: "OK, so then we go down to -I just now want you to explain to me what that means?" Answer: "That means if you not answer if you - I mean if you ask me question if I am not happy don't answer question and be quiet."

Having carefully viewed the enhanced video of the interview it did appear to me that the accused did have an understanding of his right to remain silent when he answered the questions 190 to 192. His answer to Question 192 was quite spontaneous and was expressed mainly in his own words. His demeanour and the tone of his voice also supported the impression which I had gained that the answer given by the accused man did properly reflect an understanding by him of his rights.

The accused man was cross-examined by Ms Pullen, who appeared on behalf of the Crown on a voir dire. In particular he was cross-examined in relation to the answers to Questions 190 to 192 at pp.196 to 197 of the transcripts, and I quote the following passage: Question: "When you gave that answer to Mr Gale what did you mean by that answer?" Answer: "He told me you don't have to talk from the beginning, and my understanding was I don't have to talk." Question: "You don't have to give an answer if you don't want to; is that right?" Answer: "I don't know whether we understand or not. Previously he told me if you don't want to answer the question you don't have to answer." Question: "You understood you didn't have to answer the question?" Answer: "Yes, but I thought he was not serious about it." Question: "What did you mean you thought he wasn't serious about it; what made you think that?" Answer: "I ask him for an interpreter and he told me there's going to be no interpreter and he insisted that I have to have the interview, and I thought he was not serious about everything he said."

In another question further on Ms Pullen asked: "But you understood you answer the question - if I'm not happy don't answer the question, be quiet?" The answer, in cross-examination, was, "I did say - say yes, but I was having no confidence any."

That evidence, in my view, was a clear concession by the accused man that he finally did understand that he had a choice to remain silent. His answers to Ms Pullen in cross-examination, do remove the misgivings that I had previously entertained, from earlier parts of the record of interview, concerning his comprehension of his right to silence. Indeed, the point which Mr Mohammed made, in cross-examination, was not that he did not understand what was said to him by Mr Gale about his rights, but rather that he did not consider Mr Gale was genuine when Mr Gale informed him that he could decline to answer questions put to him during the interview.

I shall return later, when considering the discretion, to the inability of the police to obtain an interpreter for the record of interview. However, I do not consider that that circumstance did cause the accused to believe that the police were not genuine when they informed him of his rights. The following factors support that conclusion.

First, when he was arrested, at 10.12 a.m., in the paddock, Mr Bentley informed the accused of his rights, including his right to speak to a legal practitioner. In the first interview, which commenced at 11.55 a.m., the accused man himself recalled, at Questions 43 and 44, that Mr Bentley had told him of that right. During the afternoon, on two occasions before the second record of interview, which commenced at 6.35 p.m., he had access to, and spoke to, two Legal Aid solicitors.

Secondly, the accused man was also told he had the right to speak to a friend or a relative. Before the second record of interview, he spoke to his aunt on the telephone.

Thirdly, during the afternoon, the accused man had discussions with the police concerning Halal food, or food which is prepared in a manner acceptable to those of the Muslim faith. The police made a local Muslim minister available to speak to the accused, to assist him with those types of requirements.

Fourthly, in the second record of interview, the accused man told the police he was a citizen of New Zealand. When he was told he could speak to someone from the New Zealand consular office, Mr Mohammed said he wished to do so. The interview was forthwith suspended, and the accused man spoke to a representative of that office.

Those four factors are important. They show that on a number of occasions the police did make available to the accused man rights or facilities which had been discussed with him. I can discern nothing, from the video tape, which might have caused the accused man to consider that Mr Gale was not genuine when he told him of his right to remain silent. Nor can I discern anything, from the demeanour of Mr Mohammed in the interview, that he felt intimidated or pressured into not remaining silent.

Mr Desmond, on behalf of the accused, also contended that the accused did not understand the second limb of the caution, namely that anything he said in the record of interview may be recorded and given in evidence. Mr Desmond contended that if an accused person did not understand that aspect of the caution, then the accused person could not make an informed decision whether to exercise his or her right to silence.

When all the circumstances are considered, I am persuaded that the accused man did have sufficient understanding that anything he said during the record of interview would be recorded, for use by the police, in relation to legal proceedings against him arising out of the events of that day.

It was clear to the accused that he was being interviewed by the police about those traumatic events. It was clear that he was at least in potential trouble because of those events, and that is why the police were interviewing him. He knew the interview was being video recorded; Mr Gale had gestured to the camera when he told the accused of that fact. The accused man had been told, and he understood, that he could see a solicitor. As I have stated, he in fact saw two solicitors. In evidence, the accused man did not say that he did not understand that what he said might be used in court proceedings against him.

In all those circumstances, I do accept, on the balance of probabilities, that the accused man did understand that anything he might say might be later used against him in proceedings arising out of the events of the day.

Mr Desmond also contended that the interview was not voluntary, because when the interview was recommenced after a one and quarter hour break, at 7.57 p.m., the caution was not again administered to him. I do not accept that submission. The period of time between the suspension of the interview and the recommencement of it, was spent affording the accused man his right to speak to the New Zealand consular office, which had been requested by him in the first part of the interview. When the interview was recommenced, shortly before 8.00 p.m., it was plain that it was a continuation of the first segment of that record of interview. It was not, on any view, a new or separate interview process, which would have required a new caution to be administered.

This case is, in my view, distinct from the decision of Smith J, in R v Hartwick and others No.1[10], especially at paragraph 5. I thus conclude that, on the balance of probabilities, the interview was voluntary.

For completeness, both parties relied on answers given by the accused man in the terms: "I can't answer," which he gave to approximately six questions. Ms Pullen, the learned Crown prosecutor, contended that those were examples of the accused man invoking his right to say nothing.

Mr Desmond made two submissions arising out of that category of answers, namely: first, that if they were such examples of the invocation of the right to silence, the police overbore the exercise by the accused man of that right by continuing to question him; and secondly, that if they were not such examples, then the answer given by Mr Mohammed, i.e. "I can't answer", was eloquent evidence of his limitations and difficulties of coping with the English language.

I must say it is not clear to me what the accused man meant by the answers "I can't answer" which he gave to Mr Gale. Certainly it is not clear to me that on all the occasions on which he made that answer he was exercising his right to silence. Rather it seemed to me that in the majority of the times when he made that answer that he was in fact stating that he could not answer the question because he simply did not have the ability to express the answer in English. That impression was supported by the statement made by the accused man under cross-examination at p.200 of the transcript when he said that he gave the response "I can't answer" to a number of questions because "there was no language for it to answer properly."

For the reasons which I have already stated, I have concluded that the record of interview was voluntary.

I now turn to the second question, namely whether I should exclude the record of interview in the exercise of my discretion.

Mr Desmond contended that in the exercise of my discretion I should reject the interview on the basis that it would be unfair to admit it into evidence. In this context the concept of unfairness relates to the right of the accused man to have a fair trial. In R v Swaffield[11], the majority of the court quoted with approval the dictum of Wilson, Dawson and Toohey JJ in Van der Meer v R[12]where Their Honours stated:

"The question is not whether the police have acted unfairly. The question is whether it would be unfair to the accused to use his statement against him.

Unfairness in this sense is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."

The particular circumstance on which Mr Desmond relies again concerns a limited appreciation in command of the accused man of the English language. In R v Warrell[13], the Court of Criminal Appeal of Victoria referred to cases such as R v Anunga[14], which recognised the need for additional care to be taken in the interviewing of persons whose ethnic background may place them at a significant disadvantage to other members of the community.

In this context I note that s.464D(1) of the Crimes Act specifies that where a person in custody does not have a knowledge of English sufficient to enable him to understand the questioning, the interview should be deferred until a competent interpreter is present.

As I have already stated, it is clear from a viewing of the video-taped interview that the accused man had a limited understanding and an even more limited command of the English language. It became clear during the interview that on a number of occasions he did not understand the thrust of questions that were put to him and they had to be repeated or clarified.

More significant in my view is the fact that on important occasions it seems clear that the accused man lacked the basic capacity to state his version of the events which occurred in comprehensible English. His ability to express himself, even in relation to relatively simple matters, was most limited. This constituted a significant handicap for the accused man, particularly at critical stages of the record of interview.

The accused's difficulty in expressing himself was evident throughout the interview. There are two particular sections of the record of interview which have caused me special concern. First the accused was asked, at Question 350, whether he had problems at work because he was of the Muslim faith. In halting English he explained that he had some problems. The answers which he gave at this point are hard to follow. The broken English in which they were expressed almost certainly did not convey properly or fully the problems which Mr Mohammed wished to explain had preceded the fateful day on which the offences occurred. In that context the accused man was asked if the "topic of religion had been brought up again today" at Question 368. The accused's answer to that question is recorded at Question 370.

It is difficult, if not impossible to understand what the accused man said at that point. Certainly he seems to have said that someone stated something to him last Friday about he or someone else being a Muslim. He then seemed to indicate that either he was told that a Muslim, or he was told that someone who did something to a Muslim, had been caught, but was now safe and free. The accused man then said that the same person who said that to him then said, "I'm worry about you."

It is clear that the answer at Question 370 is of great importance in this case. The background to the events which erupted in the early hours of 24 March 2003 are of central significance particularly since the accused at the final directions hearing has foreshadowed that issues such as self-defence and provocation will arise at the forthcoming trial. It is impossible to understand what the accused man was endeavouring to say, certainly it is impossible to be confident that one accurately understands what he was endeavouring to convey. Just as importantly it is clear that the accused man was simply incapable of expressing in English that which he wanted to say to the interviewer.

The second group of answers with which I am concerned were given in the context of discussing Mr Regan, the first person who the accused is alleged to have attacked on 24 March 2003. The accused man stated at Question 403 that that person had previously accused him of making a bomb and that he was worried about the accused. The accused man at Question 406 then stated that they were working very close together. The other man was using the knife. The accused man stated that he told the other man "Put your knife away because everyone have - I don't know - little pocket to put your knife" and he gestured to the position of his own pocket.

Then occurred the following passage at Questions 407 to 409. Question: "Yeah?" Answer: "He all the time he not putting the knife, he keep in hand, he's working and yeah." Question 408: "OK, so he doesn't put the knife away?" Answer: "Yeah." Question 409: "And how does that make you feel?" Answer: "I am fearing for - he can - because he can (indecipherable word/words) we are very close like accident."

I interpolate that the accused man may have misused the word "accident" at that point although it is purely a matter of speculation. Later in the interview he in fact used the word "accident" at Question 671 to describe what he had done during the day, and at Question 676 he said he thought an accident was "I think when someone do something bad".

This segment of the interview, that is at Questions 407 to 409, is of course of central importance to the foreshadowed defence of self-defence. It may also have some relevance to other issues such as the accused man's mental state. It is clear that the accused man was substantially and significantly handicapped in conveying in the English language just what he says the other man, presumably Mr Regan, was doing with the knife and why he, the accused man, was in fear of him.

It is in this context that I must address the question whether the admission into the evidence of the record of interview would unfairly place the accused man at a forensic disadvantage. It is of course not unfair to an accused man to admit into evidence admissions which are adverse to his case. However, that is not the point in this case. If the interview were admitted into evidence, there is I consider a considerable risk that words spoken by Mr Mohammed during the interview might be misconstrued and unfairly so by the jury, that is the jury may give them a different meaning to that which Mr Mohammed intended to convey during the interview. Further, there is an even greater risk that the record of interview might be used to criticise the accused man either for an inconsistency or for recent invention if at the forthcoming trial he were to advance a more comprehensive or different account of the events than that which appears to have been conveyed in the record of interview. Any such apparent inconsistency or recent invention may well be due simply to the fact that the interview was conducted on an accused man who only had a limited understanding of the questions put to him, but even more importantly a significant limited ability to convey his version of events in the English language. Put simply, it would in my view be significantly unfair to the accused man to leave him at the risk of having any evidence given by him criticised on account of inconsistency or recent invention when those circumstances may simply be the product of his limitations in the use of the English language.

Even if Mr Mohammed did not give evidence, in my view the admission into evidence of the record of interview would be significantly unfair, since on the face of it it contains an incomplete and at times incoherent and incomprehensible account by the accused man of the events which preceded the critical acts which are the basis of the charges against the accused man. It is not only what the accused man said that might unfairly do him harm. In addition it is what he was unable to say which might cause the injustice. A simple viewing of the videotape leaves with me the firm impression that the accused man could well have stated much more to the interviewer and might have given a more convincing and thus credible explanation of the circumstances which preceded the critical events, had the interview been conducted through the medium of an interpreter.

In those circumstances, I do consider that the accused has established that it would be unfair to him if I were to admit the record of interview into evidence.

Mr Desmond also relied on the fact that when the second interview recommenced, at 7.57 p.m., Mr Gale did not readminister the caution to the accused. At that time, a delay of some one and a quarter hours had taken place. Of itself, I do not consider that the failure to readminister the caution would justify the exercise by me of the discretion to exclude the interview. However, I do consider it is another factor which adds to my conclusion that, in all the circumstances, it would be unfair to admit the record of interview into evidence. There was nothing at all improper about the delay, during which the police were making conscientious efforts to contact the New Zealand Consul, on behalf of the accused. Nevertheless, the fact is that the accused man had earlier had difficulty understanding what had been conveyed to him about his right to remain silent. He was obviously unfamiliar with that right. Equally obviously, he had recently migrated from a part of the world in which such a right is not commonplace. Although he had understood his right, it is, in my view, of significance that it was not reinforced to him before the recommencement of the interview process. While I do not consider that this factor, of its own, would justify the exercise by me of the discretion to exclude the record of interview, I do consider that it is relevant to that issue.

As I have noted, the courts have emphasised that the exercise of the discretion to exclude a record of interview, is grounded in the concern that an accused man not be placed in an unfair and unjust forensic disadvantage if the evidence were to be admitted.

For reasons I have already stated, I am of the firm view that this is a case where the exercise of the discretion is necessary. It would, in my view, make for an unfair and unjust trial, if the record of interview were to be admitted. In coming to that conclusion, I do consider, and take into account, that there are two parties to these proceedings. The Crown, which represents the State and the people of Victoria, have a legitimate interest in having admissible evidence called and being determined by a jury. My role is to balance the competing interests of the parties. In exercising that discretion, I give full weight to the interest of the Crown, and to the interests which it represents.

Ms Pullen contended that a voluntary confession should only be excluded as unfair in an exceptional case. I do not accept that the authorities in fact support such an extreme proposition.

In Cleland v R[15], Sir Harry Gibbs CJ, and Wilson and Dawson JJ, adopted the views expressed by Brennan J, when a member of the Federal Court, in R v Collins[16], that it would only be in an exceptional case that a voluntary confession which would not be unfair to the accused to admit, could be rejected on the grounds of public policy. In other words, the Court was adopting the view that where the discretion based on unfairness did not justify the exclusion of a record of interview, then a record of interview should only be excluded, on grounds of public policy, in exceptional cases.

I also note that the view expressed by the majority in Cleland, was not accepted by Toohey, Gaudron and Gummow JJ, in Swaffield v R[17].

Thus, for reasons which I have expressed, albeit at some length, I do accept that the record of interview was voluntary. However, I rule that in the exercise of my discretion it would cause an injustice if it were to be admitted into evidence, and I therefore exclude it on that basis.

[15] [1982] HCA 67; (1982) 151 CLR, 1 at. 9, 17, and 34-35.

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