1 HER HONOUR: Mr Crawford-Fish, who appears on behalf of the accused, Joanne Rose Delly, made application for me to exclude evidence of an interview between Senior Sergeant Little (as he then was) and his client conducted at the Queanbeyan Police Station on 20 June 1998.
2 It was agreed that this preliminary issue might be determined on a voir dire hearing prior to the Crown's opening.
3 The grounds of challenge advanced were as follows:
(i) the interview was not tape recorded and is accordingly rendered inadmissible by virtue of the operation of s 108 of the Criminal Procedure Act 1986 ;
(ii) the making of the admissions was influenced by a threat made to the accused by a police officer and, accordingly, the evidence of the contents of the interview is inadmissible by virtue of s 84(1) of the Evidence Act 1995 ("the Act");
(iii) the accused was unlawfully detained at the time of the admissions and, accordingly, I would reject evidence as to the contents of the interview pursuant to s 138 of the Act;
(iv) the admissions had little probative value and should, in any event, be excluded pursuant to the exercise of discretion.
4 The accused was living in a de facto relationship with Mark Helmhout as at 20 June 1998. She was the mother of two infant children. They were all living at 10/30 Trinculo Place, Queanbeyan on the date of her arrest. Mark Helmhout's younger brother, Pieter, was staying at those premises at that time.
5 On Friday 19 June 1998, Mark and Pieter Helmhout together with the accused, Joanne Delly, and others attended the funeral of Mark and Pieter's brother, John. Following the funeral there was a wake held at the Raiders Club, Mawson. Thereafter, some members of the party, including Mark and Pieter Helmhout and the accused, returned to the Trinculo Place unit. It is the Crown's case that, during the course of the evening, a man named Paul Harris (who had also attended the funeral and the wake) was strangled by Mark and Pieter Helmhout. His body was then removed from the unit and taken by car to a park in Fyshwick where it was dumped. A man named Edward Szkudelski was present both at the killing and during the disposal of the body. Sometime thereafter, Mr Szkudelski made contact with police and informed them of the location of the deceased's body.
6 Following the discovery of the body, the police obtained a warrant to search the Trinculo Place unit. A number of police executed that warrant at around 8.30am on the morning of 20 June. Mark and Pieter Helmhout were arrested and conveyed to the Queanbeyan Police Station. They were in due course charged with the murder of Paul Harris.
7 It appears that a short time later the accused was arrested and taken to the Police Station. She had her daughter, Jasmine, then aged seven months with her.
8 Senior Constable Hughes gave evidence that he had seen the accused at the Queanbeyan Police Station sometime between 8.30am and 9.00am that morning. He had been directed by Senior Sergeant Little to "baby sit" the accused. He and Senior Constable McGee sat with the accused in an office at the Police Station. He said the only other person present was Senior Sergeant Little who would come into the office periodically to check if everything was alright. Senior Constable Hughes chatted generally with the accused while they were in the office. He described it as general banter; "how have you been", "how's the bub", "good baby" and the like.
9 At 9.45am, Senior Constable Hughes had a conversation with the accused which he recorded in his notebook. Senior Constable McGee was present at this time. Senior Constable Hughes commenced by cautioning the accused. Then he asked her for an account of her movements on the previous day. She said they had gone to the funeral and later to the Raiders Club at Mawson. At about 11.30pm they had left the Club and gone home. She gave the names of a number of people who were present at her home. She went on to state that she had had a fair bit to drink and that she had gone to bed. Senior Constable Hughes then explained that he intended to conduct an electronically recorded interview with the accused. She inquired whether she had to do that. The officer told her that she was not obliged to, which the accused replied, "can I make a statement?". Senior Constable Hughes said, "Yes" to this question and the accused replied, "Then I do that". The accused signed and dated the entry in Senior Constable Hughes' notebook.
10 Senior Constable Hughes did not arrange to take a statement from the accused following this discussion. He decided to wait for Senior Sergeant Little. The latter was a more experienced detective and Senior Constable Hughes believed that, given the gravity of the matter, it was appropriate to defer any statement taking or further interview of the accused until he obtained a direction from Senior Sergeant Little. Senior Sergeant Little was in liaison with other detectives concerning the investigation and Senior Constable Hughes did not feel he had sufficient information at his command to interview the accused.
11 At some point during the morning, Senior Constable Hughes and Senior Constable McGee escorted the accused and her baby back to the Trinculo Place unit to get some items for the baby and then they conveyed the accused and the baby to a child minder. The accused was brought back to the Queanbeyan Police Station.
12 At 1.50pm, Senior Sergeant Little conducted an interview with the accused in an upstairs room at the Police Station. Senior Constable Hughes and Senior Constable McGee were present during the interview. The interview was recorded in Senior Sergeant Little's notebook. In all, the accused was asked 81 questions (including a number of formal questions at the conclusion of the interview). The interview was not concluded until 4.55pm.
13 At the commencement of the interview the accused was, again, cautioned that she need not say anything. She was asked if she wished to communicate with a solicitor. She was asked if she agreed that she had earlier said she did not wish to be interviewed by way of a recorded interview. She agreed that was the case and gave as her reason, "I'd just rather make a statement". In response to that, Senior Sergeant Little commenced to ask her questions which he recorded (together with her answers) in his notebook. In the course of this interview, the accused gave a detailed account of the events of the preceding evening. She described being present when Pieter and Mark Helmhout commenced assaulting Paul Harris. She had seen Pieter pick up a cord. He had told her to go to the bedroom. She was aware the deceased had been strangled. It was not clear that she had witnessed this, however, Pieter and Mark had told her what they had done. The deceased's body was in the kitchen of the unit. The accused told Pieter and Mark to get the body out of her house. Pieter, Mark and Edward Szkudelski took the body away. While they were absent, the accused cleaned up the beer bottles and the ashtrays. She mopped some blood off the floor because Pieter asked her to give it a clean. About half an hour later, Pieter and Mark returned. Pieter walked straight to the couch. The accused had a smoke and went to bed. Mark had a throbbing headache so he went to bed.
14 At the conclusion of the interview, the accused was asked to read the notes. She did so and confirmed that they accurately recorded the interview. She was asked if any threat, promise or inducement had been held out to her to give the answers she had given in the interview. She said not. She was asked if the answers made by her had been given of her own free will and she said, "Yes". She signed each page of the notebook.
15 After the interview, she was escorted by Senior Constable McGee to another room in the Police Station. At 5.35pm she was conveyed back to the Trinculo Place unit by Senior Constable Hughes and Senior Constable McGee. The officers then took her to collect her children and appear to have then driven her to premises in Mawson where she stayed.
16 On 1 July, the accused attended the Queanbeyan Police Station and was shown a typewritten transcript of the notebook record of her interview with Senior Sergeant Little. She signed each page of that transcript acknowledging it as an accurate account of her interview with Senior Sergeant Little. She supplied police with a three page typewritten statement supplying further information concerning her knowledge of the circumstances surrounding the killing of Paul Harris. This statement was taken in the form of a standard witness statement. No caution was administered prior to it being taken.
17 Senior Sergeant Little said that, at the time he interviewed the accused on 20 June 1998, he did not suspect that she had committed an offence. He remained of that view when he obtained the witness statement from her on 1 July 1998.
18 It appears Senior Sergeant Little was the officer principally responsible for the conduct of any inquiries concerning the accused as at 20 June 1998. He said that, in the technical sense, the accused was classified as under arrest while she was at the Police Station that day. His own attitude was that, had she indicated she wished to leave, he would have permitted her to do so.