R v Sica [2012] QSC 429

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE - VOLUNTARY STATEMENTS - VOLUNTARINESS - GENERALLY - where applicant discovered the bodies of three deceased persons on 22 April 2003 and contacted the police - where applicant accompanied police to a police station and was interviewed that evening and into the morning of 23 April 2003 - where applicant was advised of his rights - where applicant's father was present for the initial part of the interview only - where applicant became distressed during the interview and stated he needed medication for back pain - whether s 249 of the Police Powers and Responsibilities Act 2000 (Qld) applied to the interview - whether police complied with any statutory requirements - whether the state of mind and health of the applicant affected his capacity to respond to questions - whether the interview evidence should be excluded from tender at the trial

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY - where applicant agreed to a "walk though" at the crime scene, in which he would show police officers what he had done on entering the property - where applicant was advised of his rights - where applicant became significantly distressed part-way through the walk through - where respondent accepts that the record of the walk through after this point should be excluded - whether whole of walk through recording should be excluded from tender at the trial

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - PERSISTENT AND LENGTHY QUESTIONING - where applicant accompanied police to a police station for further questioning on 31 March 2004 - where applicant was searched and had property taken from him - where applicant was advised of his rights, and that he was not obliged to accompany police - where applicant was handcuffed while in the police car - where applicant asked to make a phone call on arrival at the police station - where police arranged for applicant's father to be present during the interview - where applicant interviewed over a lengthy period from approximately 1:30pm on 31 March to 5:03am on 1 April 2004 - where applicant identified discomfort due to being cold, having back pain and needing medication - whether applicant was placed under arrest prior to accompanying police - whether applicant's answers were given voluntarily - whether applicant was denied the statutory right to seek legal advice - whether conduct of the police officers conducting the interview was oppressive - whether conduct of applicant's father during the interview unduly influenced the applicant - whether record of interview should be excluded from tender at the trial

Police Powers and Responsibilities Act 2000 (Qld) (version 3 revised), s 246, s 249, s 268

Police Powers and Responsibilities Regulation 2000, Schedule 10 (s 34)

Alderson v Booth [1969] 2 QB 216, applied

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, applied

Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, cited

Cornelius v The King (1936) 55 CLR 235, applied

Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508, applied

McDermott v The King (1948) 76 CLR 501, applied

Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, applied

R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239, cited

R v Prager [1972] 1 WLR 260, cited

The King v Lee [1950] HCA 25; (1950) 82 CLR 133, applied

The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321, cited

The Queen v Swaffield (1998) 192 CLR 159, applied

Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, applied

Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656, applied

Wilson v New South Wales (2010) A Crim R 499, applied

M R Byrne SC, with B G Campbell, for the respondent

Director of Public Prosecutions (Queensland) for the respondent

[1] PETER LYONS J: On 22 April 2003, the applicant summoned police to the house where the Singh family resided, at 20 Grass Tree Close, Bridgeman Downs. The bodies of three deceased children of the Singh family, Neelma, Kunal, and Sidhi, were in a spa bath located on the upper floor of the house, along with some bed linen. The police interviewed the applicant that evening and into the early hours of the following morning. On 25 April 2003 they conducted, with the applicant, a "walk through" interview at the Singh house. They again interviewed the applicant on 31 March and 1 April 2004. This application seeks the exclusion of evidence of these three interviews.

[2] The applicant has been charged with the murder of the three Singh children. The prosecution case is largely circumstantial. To a significant extent, it is based upon the relationship between the applicant and Neelma, and contact between them in the period leading up to the deaths of the three children. Some reliance is placed upon statements made by the applicant, later admitted in the interviews to be untrue, about dealings with Neelma and the Singh family.

[3] The prosecution alleges that the killings most likely occurred in the early hours of Monday, 21 April 2003; that it is likely that Neelma was killed first; and that the other two were killed to prevent detection of Neelma's killing by the applicant.

[4] On 22 April 2003 the applicant, accompanied by his two children and a niece, went to the Singh home. It is apparent from the record of interview conducted later that day that he told police that he entered the home, and in due course found the bodies of the three children; which led to his summoning the police to the home.

[5] Detective Sergeant Zitny was one of the police who came to the Singh home on 22 April 2003. He was the principal investigating officer for the case. When he arrived, both the applicant and the applicant's father, Mr Carlo Sica, were present. Later in the afternoon, Detective Sergeant Zitny and Constable Naumann took the applicant to the Petrie Police Station. By arrangement, Mr Carlo Sica went to the police station at about the same time.

[6] On the way to the Petrie Police Station, a conversation between the applicant and police officers took place, this being electronically recorded by means of what was described as a field tape.

[7] At the police station, an interview was conducted with the applicant. An audio-visual recording was made of the interview. There were in total seven periods of interview (each on a separate tape), the last being for the purpose of obtaining the applicant's consent to the provision of a DNA sample. The other six periods involved questioning the applicant about his visit to the Singh house on 22 April 2003, and his relationship with Neelma, and with the Singh family generally. Each of these periods was of the order of 40 minutes in length, the longest being 45 minutes. There were breaks between the periods, in one case of only a few minutes, and otherwise of lengths varying between about 14 minutes, and a little less than an hour.

[8] When the interview was concluded, police drove the applicant to his home at 111 Trouts Road, Stafford, for the purpose of obtaining from him clothing which he had worn on visits to the Singh home.

[9] On 25 April 2003, Detective Sergeant Zitny telephoned the applicant to arrange his attendance at the Singh home for the purpose of interviewing him as they walked through the home (walk through). An audio recording was made of this call. A video recording was made of the walk through, being approximately 130 minutes in duration.

[10] Detective Sergeant Zitny spoke by telephone with the applicant on 7, 11, 18 and 22 June 2003; 4, 8 (twice) and 15 July 2003; and 18 August 2003. He also spoke with the applicant on 19 December 2003 for some 40 minutes at the Singh home. An audio recording was made of each of these conversations.

[11] On 31 March 2004, the applicant was approached by police, and asked to go with them to the Petrie Police Station. While he was being driven there, and on arrival while awaiting the attendance of his father, conversations with him were electronically recorded (again using field tapes). He was then interviewed, audio-visual recordings being made of this process. There are some 17 tapes of this interview. The recordings on the tapes are generally between 40 and 50 minutes in length, though two (Tape 15 and Tape 17) are somewhat shorter. The interview occurred between 1:30pm on 31 March 2004, and shortly after 5:00am on 1 April 2004. Generally the breaks between the recordings were a few minutes in duration, with a longer break of about 20 minutes around 9pm, a break of about 12 minutes shortly before 11pm, and breaks varying in length from about 9 minutes to about half an hour on some occasions between the recordings thereafter, until about 3:45am. There was then a break of a little less than an hour and a quarter before the final very brief period at 5:00am. It is proposed to call evidence in the prosecution case of the events recorded by video, but not of those recorded on the field tapes.

[12] It is a well established requirement that a statement must be voluntary in order to be admissible: see for example The King v Lee.[1] The judgment of the court in Lee went on to explain:[2]

"The word 'voluntary' in the relevant connection does not mean 'volunteered'. It means 'made in the exercise of a free choice to speak or be silent'."

[13] It follows that a statement may be voluntary, notwithstanding that it is the result of some questioning, prompting, or other invitation to speak made by a person in authority.

[14] The requirement applies to confessions of guilt, and to other admissions of fact.[3] It is unclear whether the requirement applies to a statement made by an accused person, the making of which the prosecution seeks to prove because it is untrue.[4]

[15] In McDermott v The King[5] Dixon J said:

"... (I)t is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made ... An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority. That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject." (References omitted.)

[16] In the present case there has been no submission that the statements of the applicant were the result of a threat or inducement by a person in authority. However, Dixon J did not limit the rule to cases of inducement. His Honour said:[6]

"It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will."

[17] Earlier, his Honour had said with reference to a confessional statement by an accused person:[7]

"If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary."

[18] In Tofilau v The Queen[8] Gummow and Hayne JJ discussed the rules relating to the exclusion of evidence as the result of inducement by a person in authority, and by reference to the principle of "basal voluntariness", as follows:[9]

"As pointed out above, the overarching principle is that a confession cannot be admitted into evidence unless it is shown to have been made 'voluntarily'. Both the rules governing the exclusion of evidence of certain confessions made to persons in authority and the principle of 'basal voluntariness' take their place as aspects of this one principle. Both also identify criteria that found a legal conclusion: that the confession was not made 'voluntarily'.

That this is the way in which the rules operate is most obviously apparent in the rule concerning statements made to persons in authority. The particular content that is given to both the concept of 'inducement' and the concept of a 'person in authority' constitute the criteria that yield the relevant legal conclusion: that the confession was not made voluntarily. But as the reasons of Dixon J in McDermott show, application of the rule about 'basal voluntariness' also depends upon identifying the criteria that are to found the legal conclusion that a confession was not made 'voluntarily'. The relevant conclusion is described as the will being 'overborne'. The circumstances that yield that conclusion, and provide the criteria which govern the availability of the legal conclusion, are described as 'the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure'. All are species of compulsion."

[19] These passages indicate that the relevant criteria relate to the conduct of other persons, which resulted in the confession; and the conclusion that the confession was not voluntary follows from the establishment of at least one of these criteria. However, their Honours said earlier:[10]

"When one turns to the common law respecting the inadmissibility of some confessional statements, it must first be said that the common law tests of voluntariness have never required a subjective inquiry into the mind of the confessionalist to determine why it was that he or she made the statement of which evidence is to be given."

[20] Their Honours then noted that such evidence is excluded because it is "deemed ... unreliable as a class".[11]

[21] The statement that no inquiry is required into the state of mind of the confessionalist may not reflect the view of other members of the Court. In Tofilau, speaking of the questioning which produced the confessions, Callinan, Heydon and Crennan JJ said:[12]

"The police officers were at times importunate. They were insistent that each appellant confess his guilt. By their questioning they applied pressure. The question whether each appellant confessed involuntarily thus turns on whether the importunacy was so persistent, and whether the insistence and the pressure were so sustained or undue, as to overbear his will."

[22] In The Queen v Swaffield[13] Brennan CJ quoted from his earlier judgment in Collins v R,[14] where his Honour had said:

"So the admissibility of the confessions as a matter of law ... is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focusing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused."

"The curial concern about unreliability was subsumed by a concern about the nature of the inducement and its effect on the will of the confessionalist."

"In determining objections to the admissibility of a confession that is said to have been made involuntarily, the court does not attempt to determine the actual reliability of the confession. Rather, it assesses the nature and effect of any inducement to make the confession in order to determine whether the confession was made because the will of the confessionalist was overborne by the conduct of a person or persons in authority."

[25] In Cornelius v The King,[17] Dixon, Evatt and McTiernan said:

"The second question which arose for decision was whether the nature of the treatment to which the prisoner was subjected at the detective office deprived the confession he made of voluntariness, independently of the supposed threat and promise. Approval or disapproval of the measures taken by the detectives to obtain a confession appears to us to be beside the point in deciding this question. What matters for present purposes is the effect produced upon the prisoner."

[26] Matters such as the length of any individual period of questioning, the length of time between periods of questioning, the availability of refreshment, and the character of the person being questioned, have all been considered relevant.[18] An interrogation may be the means or occasion of imposing on a suspect such mental or physical strain for so long a time that any statement that is thus made should not be attributed to the suspect's own will, but to the suspect's inability further to endure the ordeal, and his or her readiness to do anything to terminate it.[19]

[27] Finally, it should be noted that the onus is on the prosecution to establish on the balance of probabilities that the statement was made voluntarily.[20]

Principles relating to discretionary exclusion of evidence

[28] It is now well recognised that a voluntary confession may be excluded from evidence on discretionary grounds. In The Queen v Swaffield[21] three classes of case in which this might occur were identified.

[29] In one class of case, the discretion arises because, as the test is often formulated, the prejudicial effect of the evidence is greater than its probative value (the prejudice ground). In another class of case, the evidence may be excluded on the ground it would be unfair to the accused to admit it (the unfairness ground). The third class of case focuses on considerations of public policy which make it unacceptable to admit the evidence, notwithstanding that any statement of the accused was made voluntarily, and notwithstanding that its admission would work no particular unfairness to the accused (the public policy ground).

[30] The prejudicial effect referred to in the test relating to the prejudice ground is not the fact that evidence tends to establish the guilt of the defendant; rather it is the risk that the evidence might be inappropriately used by the jury to reach a conclusion that the defendant is guilty.[22]

[31] The common formulation for the test for exclusion on the prejudice ground is not entirely accurate. There is authority for the proposition that the evidence may be excluded if it is of relatively slight probative value, but admission of it would be highly prejudicial to the accused.[23]

[32] The occasion for the exercise of the discretion arises because the confession is found to be voluntary. However, the effect of circumstances on the freedom of the accused to choose to speak or not to speak has been identified as relevant to the exercise of that discretion on the fairness ground. In Swaffield, the joint judgment of Toohey, Gaudron and Gummow JJ includes the following:[24]

"However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances."

[33] With respect to the unfairness ground, their Honours also noted that one consideration "... may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted",[25] referring to Van der Meer v The Queen.[26] In Van der Meer, the criterion which had been applied was stated a little more broadly, in the following terms:

"Had the police observed the principles governing the interrogation of suspects, it might well have transpired that the statements would not have been made or not have been made in the form in which they were made."[27]

[34] In relation to the unfairness ground, the reliability of the confession or admission is often a matter of considerable importance.[28] The applicant's submissions refer to a statement made by Dixon J in Sinclair v The King,[29] as explaining the sense in which a confessional admission might be considered to be reliable. That statement is included in the following passage:

"Confessions, like other admissions out of Court, are received in evidence as narrative statements made trustworthy by the improbability of a party's falsely stating what tends to expose him to penal or civil liability."

[35] His Honour went on to note that the improbability to which he referred might be negatived by the circumstances in which the confession or admission was made.

[36] The reliability or otherwise of a confession or admission has been referred to as a touchstone for the exercise of the fairness discretion, though it is not the only one.[30] As will become apparent, the prosecution relies upon statements made by the applicant in the course of the interviews, not for their truth, but because they were untrue; the making of the untrue statements springing from a realisation of guilt, and a fear of the truth.[31] In respect of such statements, reference to their reliability is inapt.[32]

[37] The relationship between the discretion to exclude evidence on the unfairness ground, and the discretion to exclude evidence on the public policy ground, was discussed by Deane J in Pollard v The Queen.[33] His Honour said:

"The considerations relevant to the exercise of the two discretions overlap: the unlawfulness of the police conduct will be relevant to the question of unfairness to the accused and, since it is the policy of the law that a criminal trial be fair, considerations of actual or possible unfairness to the accused are likely to be relevant to the question of public policy. Ordinarily, it will be convenient for the question whether the evidence should be excluded on either ground to be dealt with on a single voir dire hearing since any evidentiary material will commonly be relevant to both grounds. Nonetheless, the two discretions are distinct and independent."

[38] It is in the nature of the exercise of a discretionary judgment that a balance of competing considerations is required. The seriousness of the crime has been identified as a relevant consideration.[34] Another considerations is the need to allow police freedom of action in the investigation of crime in order to ascertain the wrongdoer.[35] A further consideration is "the desirable goal of bringing to conviction the wrongdoer".[36] A related consideration is "the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground."[37] However, there is also the "public interest in the protection of the individual from unlawful and unfair treatment".[38] Associated with this is "the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law".[39] In Pollard, Deane J spoke of the need "to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct"; and of the need "to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process".[40] In relation to the public policy ground, the absence of any conscious appreciation by police that they are acting unlawfully may reduce the significance of their unlawful conduct.[41] Whether the nature of the illegality has any effect on the cogency of the evidence may, in some circumstances, also be relevant.[42] The ease with which the police might have obtained the evidence lawfully may also be relevant, though this consideration may not always have the same consequences.[43]

[39] Although unfairness often provides support for the exercise of the discretion to exclude a confession on the public policy ground, that is not essential. In Swaffield, Toohey, Gaudron and Gummow J said:[44]

"It was said by Gibbs CJ, Wilson and Dawson JJ in Cleland that it will only be in an exceptional case that a voluntary confession which it would not be unfair to the accused to admit could be rejected on the ground of public interest.[45] That is too narrow an approach, particularly in the light of Ridgeway."

[40] The role of impropriety in the investigation, in a determination whether to exclude a confession on the unfairness ground, was stated by Brennan J in Duke v The Queen[46] in the following terms:

"Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of the free choice to speak or to be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case."

[41] It has been said that the courts are opposed to anything in the nature of a cross-examination of suspects by the police, particularly when the suspects are in custody.[47] In Van Der Meer v R[48] Mason J explained cross-examination in this context as "attempting to break down a prior voluntary account given by the suspect of his relationship with the critical events in relation to the crime". His Honour cited the following statement by Williams J in McDermott v R:[49]

"But the mere asking by the police of a question which would only be asked in cross-examination at the trial does not, in my opinion, amount to cross-examination ... A cross-examination for this purpose would be an examination intended to break down the answers of the accused to questions put by the police to which they had received unfavourable replies."

[42] For the applicant, it was submitted that evidence of the interview conducted on 22 and 23 April 2003 should be excluded both on the unfairness ground and the public policy ground. One of the factual matters relied upon was that the applicant wished his father to be present for the interview; but his father left at about the time of the first break in the interview, and did not return. It was submitted that the police had engaged in "arrogant behaviour" and took a "laissez-faire approach" to proper procedures in the interview the following year, and, relying on Knight v Jones, ex parte Jones[50] this conduct is relevant to a consideration of the police conduct on 22 and 23 April 2003. In addition, reliance was placed on the fact that the applicant had just discovered the dead bodies of persons well known to him.

[43] With reference to the walk through on 25 April 2003, it was submitted that Mr Carlo Sica sought to be present, but that his request was denied by police. This was relied upon for the proposition that the evidence should be excluded on a discretionary basis. In addition, at the hearing, reference was made to an occasion when the applicant was in an upstairs bathroom in the Singh family home, when he punched a mirror. It was submitted that his emotional state was such that evidence of what occurred thereafter should be excluded.

[44] With respect to the interview which commenced on 31 March 2004, it was submitted that the conduct of the police rendered the answers involuntary. It was also submitted that the overbearing and demeaning attitude shown by the police towards the applicant, the fact they were "simply intent on questioning the applicant", and the lengthy questioning in the face of repeated reference to and requests for a solicitor have the consequence that evidence of the interview should be excluded both on the fairness ground and the public policy ground. The grounds set out in the applicant's application included an assertion that the circumstances in which the interviews were conducted were such as to produce unreliable answers; and that the police used the applicant's father as a person in authority or police agent which corrupted the performance of his role as a support person for the applicant. The applicant contended that he was placed under arrest, and one of the grounds stated in the application was that no extension of time was sought or granted in respect of the interview, apparently referring to the provisions of Part 2 of Chapter 7 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA). The grounds also challenged compliance by the police with the provisions of the PPRA relating to the right to remain silent, and the right to have a lawyer present.

[45] With respect to the interview which commenced on 22 April 2003, it was submitted for the respondent that the absence of Mr Carlo Sica from the interview did not constitute any breach of the provision which was then s 249 of the PPRA. It was also submitted that its requirements could be waived by the person being interviewed. It was further submitted that if there was a breach for the provision, that would enliven the discretion to exclude evidence of the interview. It was submitted the applicant was plainly willing to speak to police, and there was nothing of sufficient concern to justify the exclusion of the interview on a discretionary basis.

[46] With respect to the walk through, the respondent submitted that the applicant participated in this willingly. If his father was excluded from the walk through, that was authorised by s 268. In any event, any breach of the PPRA was not sufficient to warrant exclusion of the evidence of the walk through.

[47] The respondent submitted that the applicant willingly participated in the interview which commenced on 31 March 2004. The applicant's father was, at the applicant's request, present throughout the interview. The applicant was reminded of his rights on a number of occasions. He was provided with food and drink; and toilet breaks were taken when he asked for them. It was submitted that, in any event, he was at no disadvantage during the interview. Although reference was on occasion made to a solicitor, the applicant did not wish to have a solicitor present.

[48] Generally it was submitted for the respondent that, so far as confessions and admissions are concerned, reliability is an important consideration for the fairness discretion; but this consideration could not be important where the prosecution intended to prove that a person interviewed had made untrue statements. However, it was conceded that the fairness discretion could be exercised to exclude such statements.

[49] It is convenient to consider in greater detail the events which occurred on each of these occasions; and then to discuss the admission into evidence of what then occurred.

[50] At about 2:30pm on 22 April 2003, the applicant made a telephone call to the 000 emergency number, which resulted in a telephone conversation with a police officer in the course of which the applicant asked the police come to 20 Grass Tree Close, Bridgeman Downs. In the course of the call, the applicant said that his ex-girlfriend had lived at the house. He also said that the last occasion on which he had been at the house had been the previous Thursday. He also stated that his parents had just arrived.

[51] There is an audio recording of a conversation which occurred a little later that day between Detective Sergeant Zitny and the applicant, with Detective Naumann present. Detective Sergeant Zitny informed the applicant that the police needed to know "exactly what went on here today with as far as your movements ...", which the applicant accepted; and that they would have to go back to the Petrie Police Station and "seek your assistance". Detective Sergeant Zitny explained that they would work out a step by step chronological order of events from what the applicant could tell them. The applicant volunteered that his mobile phone was available.

[52] Detective Sergeant Zitny then said that there were some formalities which he had to carry out. He stated that the applicant was not under arrest, and that he was free to leave at any time unless he was arrested, and that he was present voluntarily. He asked the applicant if he understood this, and the applicant agreed. Detective Sergeant Zitny then explained the applicant's right to silence, and that any statement he made might be used in evidence. He asked the applicant if he understood that, to which the applicant agreed.

[53] Detective Sergeant Zitny also explained to the applicant his right to contact a relative or friend, or a lawyer, who could be present for questioning; and that questioning would be delayed to enable such a person to attend. The applicant was asked if he wished to speak to anyone at the moment, to which he replied in the negative. Detective Sergeant Zitny then reminded the applicant that he had previously stated that he wished his father to attend. The applicant explained that he was on parole. He also volunteered that Neelma's father (Mr Singh) "hates my guts". He stated that Mr Singh had "tried to put me up on assault charges ... because I stopped him from beating up his wife one day. She told me to protect her after he molested his 12 year old daughter".

[54] In response to further questions, the applicant stated that he had seen three people in the house, naming them, and giving their ages as well as the dates of birth for Neelma and Sidhi. The applicant volunteered the registration number for his vehicle (it was in fact his father's vehicle). When asked, he said that he last saw Neelma on Sunday afternoon at his house. He also said that he had last seen Sidhi on the previous Wednesday. The applicant said that he was not allowed to communicate with Neelma; that he thought that Kunal would report any communication to Neelma's parents; and accordingly he had not had anything to do with Kunal since February.

[55] The applicant said that he was last at the Singh home on the previous Thursday night and Friday morning. He then said that he was on medication, for pain in his back. He was then asked how long he had been at the Singh home on the Thursday night, to which he replied an hour and a half. He then said that his arm hurt "really bad".

[56] The applicant stated he had maintained a sexual relationship with Neelma, although he had a new girlfriend as well.

[57] On arrival at the police station, Detective Sergeant Zitny invited the applicant to have a "quick smoke" before they went inside. He was offered something to drink, and told that he could speak with a friend, relative or solicitor. The applicant stated that he would like his father present for the interview. He also said that he was unwell, and again that he was on medication which he had taken earlier in the afternoon. Before his father joined the group, the applicant was asked for details of his recent movements, which he provided.

[58] The formal record of interview commenced shortly before 5:00pm on 22 April. At the outset, the applicant stated that he had been educated to year 12, and that he was a technical engineer in relation to computers. He was advised of his right to remain silent; his right to speak to a friend, relative or lawyer, and that time would be allowed for someone to attend; and that he was not under arrest but was present on a voluntary basis.

[59] The applicant was then questioned in considerable detail about his dealings with the Singh family.

[60] At 5:43pm, there was a break to change tapes. In this break two things happened. One was that the applicant's consent was obtained for police to have access to his mobile telephone to download the contents of the SIM card. The second was that Mr Carlo Sica left the room to be interviewed by another police officer.

[61] When the recording resumed at 6:07pm, the applicant was asked to confirm his consent to the downloading of the SIM card of his mobile phone, which he did. He was again advised of his right to remain silent, that his answers were being recorded and might later be used in evidence, and that he had the right to speak with a solicitor, friend or relative, and that time would be allowed to permit the arrival of such a person. The applicant declined to exercise those rights. Reference was then made to the fact that Mr Carlo Sica was no longer present, and the applicant was asked whether he was "quite happy for that", to which he replied in the affirmative. The applicant then volunteered something which he remembered in the break, relating to difficulties with the alarm system at the Singh home.

[62] The applicant was then questioned further about his dealings with members of the Singh family, his knowledge of the alarm system, and extensively about his activities the previous day. In the course of questioning he referred to the fact that he was having trouble with the battery of his car, and for the last two days had been parking on a hill to start it. He was also questioned about his activities earlier on the day of the interview.

[63] The next recording commenced at 7:10pm. The applicant was again reminded that he did not have to answer questions; that his answers were being recorded; and that the recording could be used as evidence at a later time. He was asked whether he was present on a voluntary basis; and was reminded that he had the right to have a friend, relative or solicitor present during the questioning. He was then asked if he was happy to be present by himself, to which he replied in the affirmative. The questioning resumed. The applicant was questioned extensively about his movements when he entered the house earlier that day, and saw the bodies of the three Singh children in an upstairs bathroom.

[64] The next recording commenced at 8:30pm, and the applicant was again advised of his rights and that he was present on a voluntary basis, in a similar manner to what had occurred at the beginning of the earlier recordings. These statements were not repeated when the 5th and 6th recording periods commenced, but the applicant was reminded of the warnings previously given and was told on one occasion that those warnings continued to apply.

[65] Throughout this period, the applicant continued to answer questions. At times he identified means by which his answers might be confirmed. From time to time he can be heard sniffling, suggesting either that he was unwell or upset or both. When asked about finding the bodies, he became upset. However, the applicant appeared generally able to answer questions without undue difficulty.

[66] The 6th recording commenced at 11:57pm. Shortly after it commenced, Detective Sergeant Zitny asked the applicant who he thought was responsible for the deaths of the Singh children. The applicant replied "I'm telling you God ... is my answer ... My answer is God is responsible for this". When Detective Sergeant Zitny asked him to comment on the suggestion that the applicant was responsible, he replied in the negative. The applicant then said, "[l]ove the question you ended on". The applicant was then asked whether he had taken part in the conversation of his own free will, to which he replied in the affirmative; whether there had been any threat, promise or inducement to take part in the conversation, to which he replied in the negative, and whether he had any complaints about the way he had been treated by the police, to which he again replied in the negative. Detective Naumann then commenced to ask some questions. At that point, the applicant said that he needed his medication. However he continued to answer the questions, in the course of which he also volunteered some additional information that he had forgotten in giving his earlier answers.

Consideration of admission of interview of 22-23 April 2003

[67] In determining what happened in the course of this interview, for the purpose of deciding whether to exclude it or part of it from evidence at the trial, I get no assistance from a consideration of police conduct on 31 March and 1 April 2004. The primary reason for that is that, on each occasion, what happened has been recorded. In respect of the April 2003 interview, there has been no suggestion of any relevant event other than what has been recorded. Moreover, a significant period of time separates the two occasions. In that period, further investigation had been carried out. There was some alteration in the view of Detective Sergeant Zitny about the potential involvement of the applicant. It is clear that by the end of March 2004, Detective Sergeant Zitny regarded the applicant as the primary suspect; whereas, on 22 April 2003, he regarded the applicant as a "person of interest". Given that the death of the three members of the Singh family had only that day come to the knowledge of the police, and that when he commenced to ask questions of the applicant, Detective Sergeant Zitny had had very little opportunity to learn anything of the circumstances, it is unlikely that by that time he had formed a view that the applicant was likely to be responsible for their deaths. There is therefore no reason to determine what happened in April 2003, by reference to events which occurred a year later.

[68] Although one of the grounds of the application appears to be based on a view that the applicant was arrested on 22 April 2003, no serious attempt was made to demonstrate this, and I am not prepared so to find.

[69] Some of the applicant's written submissions are based on the proposition that Mr Carlo Sica was prevented from returning to the interview with the applicant on this occasion, despite his requests to do so. There was no evidence to demonstrate these facts, and I am again not prepared to make a finding to that effect.

[70] Section 249 of the PPRA[51] requires a police officer, before starting to question a "relevant person" for an indictable offence, to inform the person that the person might telephone or speak to a friend or relative to inform the person of his or her whereabouts, and ask the person to be present during questioning. The police officer is required to delay questioning for a reasonable time to allow the "relevant person" to make the telephone call, or speak to a friend or a relative; and, if the friend or relative is to be present, than the police officer must delay the questioning for a reasonable time to allow that to occur.

[71] It may be doubted whether s 249 had any application to the interview which commenced on 22 April 2003. Section 246 of the PPRA defines a "relevant person" as a person who is "in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence". It is doubtful that at that time, the applicant was in the company of Detective Sergeant Zitny for the purpose of being questioned as a suspect involved in the murder of the three members of the Singh family.

[72] In any event, on several occasions the information required to be provided by s 249 was given to the applicant. He expressed a desire to have his father present, and that occurred at the commencement of the formal interview at the Petrie Police Station. It is clear that although Mr Carlo Sica left the interview during the first break in recording, the applicant was prepared for the interview to continue in his father's absence. As has been mentioned, he was again told he had the right to speak to or telephone another person, including a solicitor, friend or relative; and that the interview could be deferred. The applicant declined to take that opportunity. In my view, assuming s 249 of the PPRA did apply, the applicant was not denied the rights identified in that section by the continuation of the interview in the absence of his father.

[73] As has been mentioned, the applicant showed some signs of emotional distress in the course of the interview, particularly when being questioned about his finding the bodies in the upstairs bathroom. In the course of the hearing, some emphasis was placed on behalf of the applicant on occasions when he showed signs of being unwell; and on the fact that he said he suffered from back pain, and on one occasion stated that he needed his medication. I do not consider that these matters unduly affected the capacity of the applicant to respond appropriately to questions. There is nothing to suggest that his ability to choose not to answer questions was affected by them; nor that they give rise to concerns about the reliability of his answers. While it may have been appropriate to make arrangements to obtain the applicant's medication when he said that he needed it, the failure to do so does not seem to me to constitute impropriety, or make the use of his answers unfair, particularly when this occurred as the interview was drawing to a close.

[74] Attention was also drawn to the fact that Detective Naumann's questions were asked after questions that appeared designed to end the interview. There is, however, no evidence that the applicant came to that view; nor that it played any role in his answering the questions. It could not sensibly be suggested that he considered that the warnings given earlier in the interview were of no relevance to Detective Naumann's questions. The applicant did not appear reluctant to answer the questioning undertaken by Detective Naumann.

[75] In my view, the evidence of the interview carried out on 22 and 23 April 2003 should not be excluded on discretionary grounds.

[76] In the course of questioning on 22 April 2003 about what he did when he entered the Singh home that day, the applicant stated that he would show police officers what he had done. On the morning of 25 April 2003, Detective Sergeant Zitny telephoned the applicant to arrange this. Detective Sergeant Zitny said that the walk through could occur when it was convenient to the applicant, but he preferred it to occur "sooner rather than later". The applicant asked whether he should bring someone with him. He was told that it was a matter for the applicant; but, because his father had been inside the house on 22 April, he probably could not have his father present. The applicant then asked whether his father could come and wait outside, a proposition accepted by Detective Sergeant Zitny. An audio recording was made of this conversation.

[77] A video recording was made of the events which occurred on 25 April 2003 at 20 Grass Tree Close, Bridgeman Downs. The nature of the exercise was explained to the applicant, and he was asked whether he was happy to participate, to which he replied in the affirmative. His right to remain silent was explained, which he understood. He was also reminded of his right to speak to a friend, relative or solicitor; and that if he wished to have such a person present, the police were prepared to wait a reasonable time for that to happen. When asked whether he wished anybody to be present, the applicant replied in the negative. He was also asked to confirm that he was present on a voluntary basis.

[78] In the course of moving onto the premises and through them, the applicant was asked in some detail about what had occurred on 22 April 2003.

[79] The applicant was taken to the garage area; and then through parts of the lower level of the house. The party then proceeded upstairs, including into some of the bedrooms and then to an upstairs bathroom. This was not the bathroom where the bodies were found. The applicant had, up to this point, shown some signs of being upset, and perhaps unwell; but at this point an incident occurred during which he showed signs of being significantly distressed. The prosecution accepts that evidence of the balance of the walk through should be excluded.

Consideration of admission of the "walk through" interview

[80] Again, it seems to me doubtful whether the provisions of s 249 of the PPRA applied. In any event, Detective Sergeant Zitny informed the applicant of the rights identified in that section, and the applicant indicated he was willing to participate in the walk through, and did not wish to exercise those rights. No impropriety has been established, by reference to the PPRA.

[81] Although the applicant appears to have been upset, I am not satisfied that that would make the use of the interview unfair. My reasons are similar to those for not excluding the evidence of the interview of 22 April 2003.

[82] No other basis has been advanced on behalf of the applicant to exclude the evidence of the walk through interview, prior to the incident in the upstairs bathroom.

[83] I am not satisfied that evidence of the walk through, prior to the incident in the upstairs bathroom, should be excluded on a discretionary basis; but I would excluded the evidence of the balance of the walk through interview.

[84] As has been mentioned, on a number of occasions between April 2003 and March 2004, Detective Sergeant Zitny spoke to the applicant, usually by telephone, but on occasion face to face. At some point, the applicant became aware that these conversations were being recorded.

[85] On the morning of 31 March 2004, a number of police officers went to the office of the Department of Corrective Services, it being expected that the applicant would attend there in accordance with his parole conditions. The police officers approached the applicant in the car park. Detective Sergeant Zitny asked the applicant to come to the police station for the purpose of further questioning in relation to the murder of the three members of the Singh family. The applicant was told that he did not have to come if he did not wish to do so; but he indicated that he was prepared to come. Detective Sergeant Zitny then asked him for his car keys and his sunglasses, and submitted him to a search. The applicant was placed in handcuffs. He was then shown a search warrant for his motor vehicle which was then seized. The applicant was then told of his right to remain silent, which was explained to him. He was asked if he understood what he was being told, to which he replied in the affirmative. He was then told of his right to telephone or speak to a friend or relative, or a lawyer, whom he could ask to be present during questioning; and that the questioning would be delayed for a reasonable time to allow such a person to attend. He was then placed in a police car.

[86] As the police car moved off, Detective Sergeant Zitny said to him that he was not under arrest, and that he had agreed to accompany the police back to the police station for the purpose of answering questions. The applicant's response was, "What about the handcuffs?" He was told that they would be taken off at the police station, and that they were being used "for safety reasons".

[87] At some time in the course of the trip to the police station, the applicant said, "I wonder who tipped the media off".

[88] The applicant was then taken into the police station. At some point he said, "When do I get my phone call Detective Zitny?" Detective Sergeant Zitny responded that the applicant no doubt had a lot of questions for him. The applicant said, "I'd like my phone call first please, please". Detective Sergeant Zitny replied, "You'll have an opportunity to do that when I'm prepared to let you do it." The applicant then said he would not answer questions until he was able to make a phone call; and that he would like his family to know what was happening.

[89] Shortly after, Detective Sergeant Zitny said that he had a lot of questions for the applicant; and that the applicant would be provided with "an opportunity to listen to what the evidence suggests".

[90] There was then further discussion in which the applicant renewed his request for a telephone call to a member of his family. He was then asked if there were other reasons why he would not be able to answer questions, and he said that one was that he did not have a solicitor present and another was that he did not trust the police, making reference to the presence of media at his house that morning. Detective Sergeant Zitny said that he would arrange for a phone call to be made "at my convenience", but not immediately.

[91] After changing the recording tape, Detective Sergeant Zitny identified the serious nature of the matter being investigated, and stated that he would reiterate warnings previously given to the applicant, asking him whether he understood, to which the applicant replied, "No comment". There was then an interchange in relation to the applicant's response, in the course of which the applicant expressed a wish to have a solicitor present, and to make a telephone call. A little later, the handcuffs were taken off. Shortly after that, Detective Sergeant Zitny stated that he had made arrangements to have the telephone call organised, confirming that the applicant wished to ring his family and identifying the appropriate telephone number. A little later, the applicant stated he wished to have one of the members of his family present.

[92] Detective Sergeant Zitny stated that he was not going to ask questions prior to the telephone call. He then began to outline the areas of questioning, at which point the applicant said that he had been advised by his solicitor not to go over the matters about which he had been previously questioned, and that if he was arrested not to say anything without the solicitor being present.

[93] Detective Naumann stated that he had asked another officer to telephone the family, to which the respondent responded, "Yeah, yeah, that's who I want, the family". He was asked whether he wanted a solicitor present at that stage to which he responded in the negative. A little later the applicant stated, "You should have just rang me up and I I would have come in".

[94] Some time passed, apparently while attempts were made to arrange for the attendance of a member of the applicant's family. The applicant indicated that it did not matter which family member attended. In this period, the applicant stated that the police had been listening in to and recording his telephone conversations. He also spoke a little disparagingly of a previous search of his car. He stated that his back was "playing up". He also stated that he was cold (he was lightly dressed).

[95] Conversation then continued for some time. There was a degree of sharpness in what was said, both by Detective Sergeant Zitny, and by the applicant. At one point, apparently when Detective Sergeant Zitny was not in the room, the applicant said that, by reference to what he had been told by his solicitor, he would answer new questions, but not questions he had already answered. He also said, when told he had the right to choose which questions to answer, "Well we'll see what the Solicitor says too". He was asked whether he would talk to the police when his father came, "I've got to see because I got to see what's happening the Solicitor (sic)". He also said, "we got someone picked out for this occasion". The "someone" was an unnamed solicitor; and "this occasion" was "the day that youse come and arrest me".

[96] Detective Naumann commented that there was "a bit of toing and froing match between you and (Detective Sergeant Zitny)", to which the applicant replied, "No, Joe and I we just chat like that".

[97] A little later, when asked about what he would tell the police in the interview, the applicant said, "I'll just do what my solicitor says". Later the applicant again referred to his back condition, to being cold, and on one occasion to having a headache.

[98] Eventually, Mr Carlo Sica arrived at the police station. The applicant was then given the opportunity to speak with him.

[99] The formal record of interview commenced subsequently, apparently shortly after 1:30pm on 31 March 2004. In addition to the applicant, Detective Sergeant Zitny and Detective Naumann, the applicant's father and some other police officers were present.

[100] At the outset, Mr Carlo Sica asked whether the applicant had been arrested, and was told that he had not.

[101] Shortly after the recording commenced, the applicant was reminded of his right to remain silent and asked whether he understood, to which he replied in the affirmative. He was also told of his right to telephone or speak to a friend, relative or a lawyer, who could be present; and that questioning would be delayed for a reasonable time to enable such a person to attend. He was then reminded of his request to have his father present and asked whether he was happy for that to happen, to which he replied in the affirmative. Detective Sergeant Zitny then referred to an earlier statement by the applicant that he was not keen to answer questions that had already been asked of him, the applicant interjecting that that was his solicitor's wishes.

[102] The applicant was then interviewed over a lengthy period. The initial questioning was directed to his knowledge of computers and computer-related matters. He again mentioned that his back hurt, and said that he had not taken medication in the previous seven days. On one occasion, Mr Carlo Sica's mobile telephone rang. He left the room to answer the call. The applicant said he was prepared to continue with the interview in his father's absence.

[103] The applicant was then questioned at some length about his previous contact with Neelma. He was asked about his visits to the Singh home. Later he was asked whether he had sent offensive emails relating to Sonia, the eldest of the Singh children, in November 2002 and January 2003. He denied sending these emails. He was also questioned about text messages from him which had been recorded on Neelma's mobile phone, and a telephone conversation between Neelma and him, similarly recorded, suggesting that Neelma was considerably more reluctant to be involved in a relationship with him, than he had indicated in earlier answers. At times he was informed of the content of statements obtained from other persons. He was told that he was not obliged to comment on the statements. Sometimes he commented on them, and on other occasions he did not.

[104] Later the applicant was asked about some offensive emails relating to Neelma, sent in the early part of March 2003. The applicant's responses were somewhat evasive, but he did not admit sending them. Somewhat later, he was asked about text messages from March 2003, in which he appeared to deny sending these emails.

[105] At about 8:50pm there was a break in the interview of about 20 minutes. The applicant and his father had the opportunity to speak together. When the interview resumed the applicant stated that all of the emails had been sent by him, and that everything else he had said about them was untrue. Mr Carlo Sica stated that he had advised the applicant that it was better to tell the truth about the emails, because it would make him look bad if he lied when he denied sending them. The applicant also admitted that he alone had made up the story that he had a brain tumour, to encourage Neelma to resume their relationship.

[106] The interview continued for a considerable period of time thereafter. The applicant was asked about a number of text messages sent in April 2003. He was questioned extensively about a program called Cyberscrub found running on the computer at his home on the morning of 23 April 2003. He was then questioned extensively about his contact with Neelma from 13 April to 20 April 2003. At about 1:00am the applicant was shown a chart correlating telephone calls and text messages between him and Neelma for the Singh home; with occasions when the Singh burglar alarm was activated or deactivated. The purpose of the chart appears to have been to demonstrate that the applicant was expected to come to the Singh home late on the night of 20 April 2003, a proposition consistent with a statement made by the applicant earlier in the interview, his explanation for not going being that Neelma had said she was unwell.

[107] The applicant was also told of the discovery of footprints, apparently the result of a foot with bleach on it stepping on the carpet in the Singh house. He agreed to provide impressions of his feet. He was questioned about having done housework in the Singh home.

[108] The applicant was shown a garden fork, which, he was told, was believed to have been used in connection with the murders, and asked whether he had ever touched it. He thought he had not.

[109] When asked, the applicant denied having killed the Singh children.

[110] The applicant was subsequently formally asked to consent to giving sample footprints, which he did. Tape 17 records the applicant confirming the truth of the answers he had given in the interview; that he had not been subjected to a threat or promise, or offered an inducement; that he had been told on a number of occasions that he was not obliged to answer questions; that he was offered the opportunity to speak with somebody, and that his father had been present for the interview; and that he had no complaints about the conduct of the interview. Property which had been taken from him earlier was then returned to him.

Interview of 31 March and 1 April 2004: were the answers given voluntarily?

[111] In my view, the applicant's answers throughout this lengthy interview were given voluntarily. At various stages during the interview, including towards the end of tape 14, the applicant chose to answer, "No comment", to questions asked of him. His denial of the commission of the offences, again very late in the interview, is not consistent with the actions of a person whose will has been overborne; but rather indicates the contrary. At the end of the questioning, when the applicant was asked to consent to providing footprints he was told that he was not obliged to do that if he did not wish to do so. He was also then told that he was free to contact anyone he wished, prior to providing the footprints. He said that he had wanted to ring his solicitor but that the solicitor would probably be asleep, "so no". At that point, his father said that he could provide the footprints on the following day, to which the applicant replied, "No I'll do it ... I'll do it. No it's alright." In my view, the applicant's conduct supports the view that his will had not been overborne in his dealings with the police.

[112] Before discussing whether all or some of the interview of 31 March - 1 April 2004 should be excluded, some other matters require attention.

[113] Chapter 7 Part 2 of the PPRA regulates the questioning of a person who has been lawfully arrested for an indictable offence. For the applicant, it was submitted that he had been arrested on the morning of 31 March 2004; and that the questioning extended well beyond the period provided for in Part 2 of Chapter 7. These submissions were made in support of the applicant's reliance on the public policy ground to exclude evidence of the interview.

[114] The submissions of the parties did not initially deal in any depth with tests for determining whether a person has been arrested, though supplementary written submissions were provided on this question. The term "arrest" is not defined in the PPRA.

[115] In Alderson v Booth,[52] Lord Parker CJ said (with the agreement of Blain and Donaldson JJ):

"There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying 'I arrest you' without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant's notice, and did bring to the defendant's notice, that he was under compulsion and thereafter he submitted to that compulsion."

[116] This statement was adopted in Hatzinikolaou v Snape[53] by the New South Wales Court of Appeal.

[117] In Wilson v New South Wales[54] Hodgson JA (with whom the other members of the court agreed) said:

"The requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission."

[118] The statements made by Detective Sergeant Zitny to the applicant when he was first approached on the morning of 31 March 2004, and again shortly thereafter in the police vehicle, as well as the statement to Mr Carlo Sica in the presence of the applicant at the commencement of the interview, made it plain that the applicant had not been arrested. Some of the conversation between the applicant and Detective Senior Constable Naumann might be thought to suggest the contrary. The applicant referred to the events which were happening as "the day that youse come and arrest me", a statement later taken up by Detective Senior Constable Naumann with the applicant. The detective did not suggest that the applicant had misunderstood what was happening.[55] It appears that this conversation occurred in the absence of Detective Sergeant Zitny. It also occurred prior to Detective Sergeant Zitny's statement to Mr Carlo Sica that the applicant was not under arrest. Detective Sergeant Zitny had charge of the dealings with the applicant, and of the investigation.

[119] The handcuffing of the applicant, and the search of his person, would be consistent with the making of an arrest. Reliance was also placed on the presence of six police officers, and that possession was taken of his sunglasses. The applicant also relied upon the fact that, at some point, Detective Sergeant Zitny appeared to touch the applicant on the shoulder; and on commands given to the applicant when initially approached by the police.

[120] In his evidence-in-chief Detective Sergeant Zitny explained the use of the handcuffs by reference to a concern for the personal safety of the police officers involved, as well as the applicant. In cross-examination, he stated that he continued to monitor the risk associated with dealing with the applicant. In re-examination he stated that his conduct was consistent with his understanding of the Queensland Police Service guidelines found in the Operational Procedures Manual. The applicant's submissions did not suggest that Detective Sergeant Zitny's understanding of the guidelines was in error.

[121] The applicant's reaction to the conduct of the police is not without some ambiguity. He agreed to go voluntarily to the police station to be interviewed. He did not protest at the use of handcuffs. When, in the police vehicle, Detective Sergeant Zitny informed him that he was not under arrest, he queried the use of the handcuffs. However when Detective Sergeant Zitny told Mr Carlo Sica that the applicant was not under arrest, the applicant did not express any disagreement.

[122] I note also that the applicant stated that he had legal advice not to answer questions in the absence of a solicitor, if he was arrested; yet he did so over many hours. The recording indicates that the applicant appeared intent on complying with the advice he had received from his solicitor in relation to answering questions.

[123] I am not satisfied that the police communicated to the applicant an intention to make an arrest; or that he was being subjected to compulsion for the purpose of securing his attendance at the Petrie Police Station.

[124] For the applicant, reliance was placed on a document which became Exhibit 13. This appeared to contain instructions about the approach made to the applicant, and his subsequent interview. In my view, it is no substitute for the evidence of what occurred on 31 March 2004, particularly the recording of what was then said.

Was the applicant denied the opportunity to speak with a solicitor?

[125] Although the applicant was told, when first approached by police in the car park at the premises of the Department of Corrective Services, that he had the right to speak to a lawyer, he was not given the opportunity to make the telephone call at that time. In the discussion recorded on the field tapes, as has been mentioned, on occasion the applicant expressed interest in speaking with a solicitor. At one point, the applicant stated that he did not want a solicitor "at this stage". He indicated that he had received advice from his solicitors about answering questions, on the assumption he was not under arrest, and apparently in the absence of his solicitor. However, some of his statements suggested he contemplated the possibility that the solicitor might be present.

[126] When the formal interview commenced shortly after 1:30pm, the applicant was reminded of his right to telephone or speak to a lawyer of his choice, and to arrange or attempt to arrange for the lawyer to be present during questioning. He was told that questioning would be delayed for a reasonable time to allow that to occur. He was not asked in terms whether he wished to arrange for a lawyer to be present; but he was reminded that he had earlier requested the presence of his father, and was asked whether he was happy for his father to be present. He agreed.

[127] Shortly afterwards, Detective Sergeant Zitny referred to the applicant's previous statement that he was not "keen to answer questions that we we've (sic) already asked of you ...", at which point the applicant interposed, "Due to my Solicitor's wishes yes".

[128] When a person is in the company of a police officer for the purpose of being questioned as a suspect about his involvement in the commission of an indictable offence, s 249 of the PPRA requires the police officer, before questioning the person, to inform him that he may telephone or speak to a lawyer of the person's choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning. The section also requires the police officer to delay the questioning for a reasonable time to allow the person to telephone or speak to a lawyer; and if the person being interviewed arranges for someone to be present, the police officer must delay the questioning for a reasonable time to allow the other person to arrive. If the person being interviewed asks to speak to a lawyer, s 250 requires the police officer to provide reasonable facilities to enable the person to speak to the lawyer.

[129] Section 34 of the Police Responsibilities Code 2000 (PR Code), which is Schedule 10 to the Police Powers and Responsibilities Regulation 2000 (PPR Reg), requires the advice about the right to contact a lawyer (and other persons) to be given in terms which substantially comply with a formula set out in the section. It also requires, if the person being interviewed wants to speak to a lawyer, that the police officer make available, without unreasonable delay, a regional lawyer list or a telephone directory. It also prohibits a police officer from doing or saying anything with the intention of dissuading the person being interviewed from obtaining legal advice.

[130] The conversation which occurred prior to the commencement of the formal interview included some questions about matters potentially of relevance to the question whether the applicant was responsible for the deaths of the three members of the Singh family. However it dealt with other matters as well. A notable example is the attempt by Detective Sergeant Zitny to obtain information about a person whom the applicant appears to have suggested may have had a role in the deaths. There were also not insubstantial periods of silence. It was clear that the police officers were waiting for Mr Carlo Sica to arrive, before commencing a formal interview of the applicant. I do not consider that, during this period, the applicant was being questioned as a suspect about his involvement in the commission of offences. Moreover, the prosecution does not intend to lead evidence of this conversation. Accordingly, it is unnecessary to consider whether the PPRA and the PR Code were complied with in relation to this conversation.

[131] In my view, the statements made by Detective Sergeant Zitny at the commencement of the formal interview substantially complied with the formula set out in s 34 of the PR Code. Detective Sergeant Zitny omitted the last line of the formula, which is, "Is there anyone you wish to telephone or speak to?"; but that question was not particularly appropriate in the circumstances. The applicant had previously requested that a member of his family attend; and arrangements had been made for his father to be present. In my view, the question asked by Detective Sergeant Zitny, "Are you happy for that to happen?" was a not inappropriate adaptation of the last question in the formula, in the circumstances.

[132] While there is some ambiguity about the applicant's position in relation to the presence of a solicitor, it seems to me that, taken as a whole, his conduct indicated that he did not wish to speak to a solicitor or have a solicitor present, when the interview commenced. I have already mentioned his previous statements about the presence of a solicitor. Shortly after he had been advised of his right to speak to a lawyer, the applicant referred to the previous advice of his solicitor, and his subsequent conduct demonstrated a willingness to participate in the interview in accordance with that advice, without the presence of a solicitor. The impression given by the video recording of the interview is that the applicant is a person capable of asserting himself, and who is capable of insisting on his rights if he chooses to do so.

[133] The case conducted by the applicant suggested that the period of time taken after the arrival at the police station was "stalling" on the part of Detective Sergeant Zitny, designed to discourage the applicant from seeking the assistance of a solicitor. Suggestions to that effect were denied by the detective. The field tapes indicate that at some time a little after the applicant was first approached by police at about 10:55am, he was driven to the police station and taken to an interview room. It would appear he was in the interview room by 11:16am. He requested a telephone call to his family shortly before 11:30am. He was told that arrangements would be made for him to have a telephone call at about 11:30am. He then stated that he wanted a member of his family present, and the recording suggests that shortly afterwards an attempt was made to have that occur. Subsequently, enquiries were apparently made about what was happening about the phone call, and the arrangement for the attendance of a member of his family. At about 12:20pm, the applicant was told that his family had been contacted. Mr Carlo Sica left the Sica family home at about 12:35pm. He entered the interview room shortly before 1:15pm. On the morning of 31 March 2004, a search was being conducted of the Sica family home. The applicant is recorded as suggesting that his father may have spoken to the press, prior to arriving at the police station. Against that background, and in the absence of evidence supporting the suggestion made in the applicant's case, I am not prepared to find that the delay which occurred after the arrival of the applicant at the police station, and before he was joined by Mr Carlo Sica, was "stalling" on the part of the police. Nor am I prepared to find that the police engaged in conduct designed to prevent the applicant from requesting a solicitor. As has been mentioned, at the commencement of the formal interview, the applicant was advised of his right to call a solicitor. He made no attempt to exercise that right.

[134] I am therefore not prepared to find that there was non-compliance with the PPRA or the PR Code which might support the exclusion of the evidence of the interview on the public policy ground; or which would provide support for its exclusion on the fairness ground.

Interview of 31 March and 1 April 2004: the unfairness ground

[135] In my view, the conduct of the police officers during the formal interview did not demonstrate an overbearing and demeaning attitude towards the applicant. The tone of the formal interview was notably different to the tone of some of the discussions between Detective Sergeant Zitny and the applicant earlier in the day. Nor is there reason to think that Detective Sergeant Zitny's earlier conduct played any role in the applicant's participation in the formal interview. Indeed, it does not seem to have affected the applicant at the time it occurred: there was an element of reciprocity in the applicant's attitude expressed towards Detective Sergeant Zitny. It is apparent from the applicant's remark to Detective Naumann, mentioned earlier, that the applicant was not concerned about Detective Sergeant Zitny's manner of speaking to him. Moreover, by the time the formal interview commenced, the applicant's father had arrived, and he had had the opportunity to speak with him. Mention has been made earlier of the manner in which the applicant participated in the interview.

[136] Part of the applicant's case as presented during the hearing appears to have been that, when he was taken to the interview room, he was confronted by a portrait photograph of Neelma, and the garden fork, both being on the table in the room. The suggestion was that those things were positioned in a way designed to upset the applicant, and that that was relevant to the exercise of the discretion on the fairness ground. While there is evidence to show that each of these items was placed on the table in the interview room some hours after the interview commenced, there is no evidence to show that they were on the table when the applicant arrived; or that the applicant was affected by them.

[137] The applicant's submissions seek to make something of the role played by Mr Carlo Sica in the formal interview. At times, questions were directed to Mr Carlo Sica, and at times Mr Carlo Sica intervened. He was, on occasion, shown documents likely to be offensive or upsetting. However, there is no evidence to demonstrate that Mr Sica agreed to assist the police, or that any particular arrangement was made with him to support them in their questioning. Although the applicant's material foreshadowed that Mr Carlo Sica would be called to give evidence, that did not happen, and no explanation was given for the fact that he was not called. Mr Carlo Sica was chosen by the applicant as a person he wished to have present during the interview, to provide support to the applicant. There is no reason to think that Mr Carlo Sica did not act in what he perceived to be the best interests of his son, during the formal record of interview. The applicant and Mr Carlo Sica had the opportunity to discuss what would be in the best interests of the applicant, during the interview. They conversed a number of times in Italian. On one occasion, they spoke in the absence of police officers.

[138] The most significant consequence of Mr Carlo Sica's involvement in the interview appears to be the decision by the applicant to state that his previous answers, particularly those relating to sending the emails with pictures of Neelma and Sonia, were untrue. There is no evidence to suggest that the police played any role in the recommendation made by Mr Carlo Sica to the applicant about changing his statements on these topics. Indeed, the applicant is recorded as agreeing with the statement of Detective Sergeant Zitny, to the effect that the police did not ask Mr Carlo Sica to speak to him in relation to this, or any other matter. It is apparent from the recording that the applicant made the decision to admit that his earlier answers were untrue, at a time when police officers were not present.

[139] In my view, none of this made Mr Carlo Sica an agent of the police. Nor do I consider that it involved any impropriety by the police in relation to the applicant's statements and answers. I do not consider that it gives rise to a basis for the exclusion of the evidence of the interview.

[140] In my view, the questioning of the applicant during the interview was not cross examination of the kind which sometimes attracts the exercise of the discretion. There were occasions when the applicant indicated that he could not remember something about which he was asked, and although some further attempt was made to get information, when it was clear that the applicant had no further memory, the questioning moved to a different topic.[56] On another occasion, the applicant's refusal to answer a question, on the basis that he had already given answers about the topic, was accepted.[57] At times when the applicant expressed an unwillingness to comment, the questioning shifted to a different topic.[58] Even very late in the interview, the applicant chose not to comment about what happened between him and Neelma.[59] On a number of occasions, the applicant was reminded that he did not have to comment or answer questions.[60]

[141] The matter of greatest concern is the total length of the interview, particularly when seen against the background of the additional time for which the applicant was in the company of police officers, prior to the commencement of the formal interview. In addition, he had at times indicated that he was cold, suffering from a headache, and had back pain. It might, however, be observed that manifestations of these matters appeared less obvious as the interview progressed. In addition, something to drink was usually available to him, and he was provided with food in the course of the interview. There were several toilet breaks. The applicant did not at any time indicate that he found it difficult to continue with the interview; rather, on occasion, he expressed a willingness to proceed.[61] Even towards the end of the interview, the applicant was able to make a decision not to comment on matters put to him; or to co-operate when he thought it appropriate. He regularly gave answers reflecting a degree of uncertainty about his recollection, though at other times he gave quite definite answers. The ability to differentiate his answers in this fashion rather suggests that the length of the interview had no unduly adverse effect on his ability to answer questions.

[142] The submissions on behalf of the prosecution pointed out that a significant matter is the effect of the interview on the applicant. The applicant gave no evidence of this. Notwithstanding the length of the interview, it does not seem to me that this alone provides a particularly cogent reason for the exclusion of it, whether in part or in whole. It should be noted that, even at the end of the interview, the applicant maintained his innocence.

[143] On the other hand, there are factors which favour the admission of the evidence of the interview. Plainly these are very serious crimes. The interview took place after what appears to have been a very extensive investigation, with the result that police officers considered it appropriate to question the applicant about a significant number of matters. It has not been suggested that it was inappropriate for them to do so. The process of questioning the applicant was, therefore, inevitably likely to be lengthy.

[144] In the result, I am not satisfied that the evidence of this interview should be excluded on the ground of unfairness. I should record that the applicant has not sought the exclusion of specific passages from the interview on any particular basis.

[145] Save for the exclusion of evidence relating to part of the walk through, I propose to refuse the application.

[1] [1950] HCA 25; (1950) 82 CLR 133 at 144.

[2] The King v Lee [1950] HCA 25; (1950) 82 CLR 133 at 149.

[3] Cross on Evidence (online) at para [33595]. See also Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 at [5] per Gleeson CJ.

[4] See the discussion in Cross on Evidence (online) at para [33595], where reference was made to a decision of the Supreme Court of Canada, Piche v R [1971] SCR 23; 11 DLR (3d) 700, which held such a statement to be inadmissible; and to R v Su [1997] 1 VR 1 at 52, suggesting a similar conclusion. The author questioned the correctness of these conclusions.

[5] (1948) 76 CLR 501 at 511-512.

[8] [2007] HCA 39; (2007) 231 CLR 396.

[13] (1998) 192 CLR 159 at 169-170.

[14] [1980] FCA 72; (1980) 31 ALR 257 at 307; a longer extract from this judgment is set out in Cross at para [33605].

[15] The Queen v Swaffield (1998) 192 CLR 159 at 170.

[17] (1936) 55 CLR 235 at 251.

[18] R v Prager [1972] 1 WLR 260 at 266; [1972] 1 All ER 1114 at 1119; cited in Cross at para [33655], where examples of extended interrogation are given.

[19] Cornelius v The King (1936) 55 CLR 235 at 252; cited in Cross at para [33665].

[20] Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559; Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 12, 19; MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 at 522; Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 196.

[21] (1998) 192 CLR 159 at 189; see Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 per Gleeson CJ at [3].

[22] Tofilau per Gleeson CJ at [3].

[23] See R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239 at 244 per Connolly J; see also at 250-251 per Thomas J.

[24] (1998) 192 CLR 159 at 202.

[26] [1988] HCA 56; (1988) 62 ALJR 656 at 666.

[28] See ibid at 666; EM v R [2007] HCA 46; (2007) 232 CLR 67 at [72]- [73].

[29] [1946] HCA 55; (1946) 73 CLR 316 at 334.

[30] R v Swaffield (1998) 192 CLR 159 at [54].

[31] See for example Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

[32] R v Crooks [2001] 2 Qd R 541 at [24].

[33] [1992] HCA 69; (1992) 176 CLR 177 at 201.

[34] Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 per Deane J at 203.

[35] Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656 at 661.

[36] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 74.

[37] King v The Queen [1969] 1 AC 304 at 315, cited in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 76.

[38] The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 335.

[39] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 74.

[40] [1992] HCA 69; (1992) 176 CLR 177 at 203.

[41] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 78.

[42] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 79.

[43] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 79-80. The relevance of the considerations identified in Bunning v Cross at 78-80 was confirmed in Tofilau at [410] by Callinan, Heydon and Crennan JJ, with whose reasons on this topic Gleeson CJ agreed: Tofilau at [24]

[44] The Queen v Swaffield (1998) 192 CLR 159 at 198.

[45] Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 9, 17, 34-35. See also Collins v R [1980] FCA 72; (1980) 31 ALR 257 at 317.

[46] [1989] HCA 1; (1989) 180 CLR 508 at 513.

[48] [1988] HCA 56; (1988) 62 ALJR 656 at 661.

[49] (1948) 76 CLR 501 at 517.

[50] [1981] Qd R 98 at 101.

[51] References are to reprint No 3 (rev), in force from 10 March 2003.

[52] [1969] 2 QB 216 at 220-221.

[53] (1989) 41 A Crim R 389 at 392-393.

[54] [2010] NSWCA 333; (2010) 207 A Crim R 499 at [59].

[56] An example may be found in Tape 1, lines 1815-1851; Tape 8, lines 1649-1670; Tape 9 lines 1560-1608.

[57] Tape 2, lines 1046-1112; see also Tape 5, lines 45-59.

[58] See Tape 5, lines 272-287; lines 1558-1626; Tape 6, lines 962-998; lines 1076-1094; lines 1118-1138; lines 1961-1995; lines 2143-2177; Tape 7, lines 81-96; Tape 8, lines 244-263.

[60] A notable example relates to a chart of telephone calls and text messages between the applicant and Neelma, and the occasions when the Singh house burglar alarm was not armed: Tape 14, lines 462-476; line 766.

[61] Tape 1, line 1353-1356, when Mr Carlo Sica took a phone call; Tape 7, lines 145-152; Tape 8, line 2546; Tape 16, lines 30-84 (relating to the taking of foot impressions).