R v Su & Goerlitz [2003] VSC 305

Supreme Court of Victoria|2003-07-29|Before: COLDREY J

RULING - Admissibility of electronically recorded record of interview - Suspect refused requested access to legal practitioner - Failure to defer commencement of questioning - No reasonable grounds for refusal of access or failure to defer - Exclusion of interview pursuant to fairness and public policy discretions - Effect of breach of s.464C of the Crimes Act 1958 - Relationship of common law discretions to contravention of s.464C - Subsequent interview after access to legal practitioner also excluded - Insurmountable forensic disadvantage created by initial police conduct - Issue of admissibility of DNA results of forensic sample obtained from suspect pursuant to s.464R and s. of the - Factors relevant to exercise of discretion where real evidence involved.

1 Alexander Su and a co-accused, Shaun Goerlitz, face trial on a charge of kidnapping. Application has been made on behalf of the accused, Alexander Su, for the exclusion of the audiotaped record of interview conducted with him by investigating police on 18 March 2001. There is a further application seeking the exclusion of the results of the analysis of a forensic sample provided by the accused on the same date.

2 An examination of the impugned material was undertaken by way of a voir dire, with both the prosecution and the defence adducing evidence.

3 Before considering the relevant law in this case it is desirable to summarise broadly the factual matrix in which it must be applied.

4 On Saturday 3 March 2001, the victim, JL, was forcibly abducted from his Glen Waverley home by three men. It is the Crown case that one of the abductors was Robert Fernandez, who has pleaded guilty to one count of common law kidnapping. The second participant, an Asian male, remains unknown and at large, whilst the third abductor, and the driver of the vehicle in which Mr L was taken from the scene, is alleged to have been the accused Alexander Su.

5 JL was first taken to a garage and then to a private house, where he remained until 10 March. During that time he was kept primarily in the custody of the unknown Asian male, ("the minder"), although visited by the accused Su on a number of occasions. On one such occasion Su informed L that he was being paid $200,000 by another person for his role in the kidnapping. On 6 March a telephone demand requiring $1.5 million for the safe return of L was made to his mother, RS. The caller is said to have been Alexander Su.

6 In the ensuing days, telephonic communication between Su and the L family was made on a number of occasions. One of the messages from Su to L's mother, RS, was to the effect that the death of L had been ordered by those for whom he was working if police became involved in the matter.

7 A call to the L home phone was made on 7 March from a public phone box in Murrumbeena. It was traced by police and a cigarette butt with Su's DNA on it was found at the scene.

8 On 10 March JL was transferred by his captors to the Jika International Motor Inn, the ("Jika Motel"), in Fairfield. On 11 March Su brought an unidentified Asian male to Room 54 where L was being held. That person told L that if it was not for Su, he would have been dead days ago. Su also told L that he could walk out of the door but if he did so, he and his family would have to flee overseas. As early as 4 March, Su had been told that if he ran he would need to keep running or eventually other people would pay him back. Although there were a number of subsequent occasions where Su and L were in public together, including visits to cafes, a hotel and the Crown Casino, L never sought to escape or seek assistance for his plight.

9 About this time a folder containing a SIM card was placed in the backyard of AL, an uncle of JL. That card was for a mobile telephone number in the apparently fictitious name of Brown. Also in the folder was a note from JL telling AL that he, JL, would be all right as long as the instructions of the kidnappers were followed. A voice-mail message was left on AL's phone telling him to retrieve the folder from the backyard and, in a subsequent telephone call, he was directed to give the SIM card to either VL, (JL's brother), or his mother RS. Thereafter, the card was effectively in the possession of VL and a number of phone calls by Su to the Brown telephone number were answered by VL. It is not necessary to detail their content.

10 On 12 March, Su, together with the co-accused, Shaun Goerlitz, visited JL at the Jika Motel and on 14 March, Goerlitz, using his Honda Prelude vehicle, drove JL, together with Su and the minder, to the Bell Motor Inn, Preston. A room was booked at this establishment. Later that day Su told L that he might be able to have the ransom price reduced to $800,000.

11 On 15 March, Su collected L and the minder from the Bell Motor Inn and Goerlitz drove the party back to the Jika Motel. On the Crown account of events Goerlitz was apparently performing general duties such as obtaining food for JL and later medication for Su and acting as a driver.

12 Negotiations and logistical arrangements for the exchange of L for $800,000 continued throughout 15 March and into the early morning of 16 March. At one stage this involved Su and L leaving the Jika Motel and L ringing the Brown phone number from a public phone in Station Street, Fairfield. While walking back to the Jika Motel, a police car was observed and L, at Su's bidding, ran with him and hid first in bushes and later in a shop doorway. Goerlitz and the minder were then contacted by mobile phone. They drove from the Jika Motel, picked up Su and L, and ultimately arrived at the City Park Hotel, Kings Way, Melbourne, initially booking into Room 112. Next morning a new room, 301, was booked by Goerlitz who paid cash for it.

13 On the afternoon of 16 March, Goerlitz returned to the Jika Motel to retrieve a leather jacket Su had left there. From this point onwards he was kept under surveillance by investigating police as he returned to his apartment on Southbank Boulevard.

14 During that day there were further phone calls and associated activity undertaken with the assistance of various drivers enlisted by Su. Late that evening Su, L and the minder drove to Dandenong. The minder was dropped off and played no further part in proceedings. Thereafter L was driven to The Village Green Hotel, Mulgrave, where Su left him by himself after giving him $20 to buy drinks. Subsequently, in the early hours of 17 March, L was taken by Su in a taxi to the Heat Nightclub at the Crown Casino. There, Su met his girlfriend CW. Eventually, the three of them returned to Room 301 at the City Park Hotel.

15 During the following afternoon, Su commented to L that he believed that there could be police cars in the street and it would be necessary to move to a house so as to be less obvious. Su and CW left the hotel room about 6.30 to 7.00 p.m. utilising yet another driver. L remained there, being told to give a false name if any police knocked on the door. Su phoned L about 9.35 p.m., stating that he would tell him what was happening upon his return. This phone call was the subject of an authorised interception and, in conjunction with other information, it prompted the police to attend at the City Park Hotel. JL was located at about 10.35 p.m. and escorted by police from the premises.

16 Between 2.00 a.m. and 6.00 a.m. the accused Su made seven phone calls to L's family, the last being about 6.00 a.m. from a public phone on the corner of Albert Road and Kingsway. He was arrested in this vicinity shortly afterwards. At that time he was cautioned and informed of the various rights accorded to him by virtue of s.464C of the Crimes Act 1958. These included the right to communicate or attempt to communicate with a legal practitioner. Su told the arresting officer, a Detective Senior Constable Briz, that he wished to speak to a solicitor.

17 Su was conveyed to the offices of the Tactical Response Squad at the St Kilda Road Police Complex and at 7.02 a.m. a tape-recorded interview was commenced. This interview was conducted by Detective Senior Constable Malcolm Dougherty and Detective Senior Constable Martin Boylan. It apparently began at a time when the alleged victim of the kidnapping, JL, was still being interviewed. In it the accused Su indicated his wish to talk to a legal practitioner. The interview was then suspended at 7.06 a.m., the avowed purpose being "to obtain the services of a solicitor and to make further inquiries".

18 Each of the interviewing police, who were very familiar with the course of the investigation, expressed the view that the accused would be granted access to a solicitor. Detective Senior Constable Dougherty believed he should be granted such access and Detective Senior Constable Boylan saw no problem with it occurring.

19 Nonetheless, no details of a solicitor appear to have been sought from Su and no other steps were taken to procure one. Rather, at some indeterminate time, a decision was made to refuse such access. The genesis of this decision is unclear. Both Detective Senior Constable Dougherty and Detective Senior Constable Boylan characterised it as a decision made by others - in effect, their superiors - although neither was able to nominate any particular police officer who may have made it. Mr Dougherty told the Court that one of the officers, a Senior Sergeant Tompsett, had later told him that he was not happy with the decision. Mr Dougherty said he had never denied access to a solicitor before or since and Mr Boylan expressed the somewhat Delphic view of the decision: "It came to me as a bit of a surprise, I guess, but I wasn't unsurprised that it occurred, no." He told this Court that he had no input into the decision.

20 The evidence of the interviewers that the decision was made at the behest of senior officers was contradicted by Detective Inspector Robert Sitlington, who told the Court that a Detective Senior Sergeant Paxton had approached him stating that the interviewing members had wanted access to a solicitor by Su denied. On a consideration of various factors, which I will mention subsequently, Mr Sitlington directed that there should be no contact between Su and a solicitor.

21 No notes were taken of any discussion about, or the reasons for, this decision by any of the police involved and neither Mr Tompsett nor Mr Paxton were called to give evidence on the voir dire.

22 I regard the memory of the events deposed to by the interviewers, who were, after all, charged with the responsibility of dealing directly with the accused, as more likely to be correct than the evidence of Mr Sitlington. What is clear is that the accused was not told of the decision until the interview with him recommenced some two and a half hours later at 9.34 a.m. Once again, upon being informed of his rights, he requested to see his solicitor. He was told (question 61): "Well, at this stage we're not allowing you to see a solicitor on the basis of the integrity of the investigation is still continuing." (sic). Precisely what this meant was not explained to Su but the fact that the investigators wished to speak to him was reiterated.

23 There is no suggestion made that any of the questioning could have been deferred until legal advice was obtained. Indeed, it was asserted by Mr Dougherty that the question of a deferral was considered and he was specifically directed to interview the accused forthwith. His task was to get as much information as he could from Su, albeit no specific information was referred to by his superiors. When cross-examined about this matter, Mr Sitlington denied any such direction but claimed that he assumed questioning would occur because there may be some valuable information required in relation to the safety of people. More specifically, the witness referred to questions about the names of other suspects, which he believed would be asked as a matter of urgency.

24 An examination of the ensuing questions and answers indicates no such urgency and no such line of inquiry. The accused is asked about his business activities, his assets and his places of abode. The movements of L during the kidnapping are then traced. It is not until some 193 questions from the commencement of the substantive questioning that there is any effort to ascertain possible accomplices and their whereabouts. The accused mentions the name of a Mr W from Taiwan as the person responsible for his looking after JL and states that Mr W in fact sent an intermediary to request that he do so. No questions were addressed to ascertain the intermediary's details. Some 65 questions later the name of the person owning the Dandenong property, where L had stayed for some days, is sought. In essence, the interview does not contain the type of questions that Mr Sitlington believed would have been asked of the accused.

25 Next in the sequence of events a forensic sample is sought from Su. I will deal with that procedure and its ramifications discretely.

26 At 11.22 a.m. the interview with the accused is recommenced and his rights repeated. In response, he once again states that he wants to talk to a solicitor. He indicates the solicitor's name is Theo and that further details are in his diary. The police indicate that they will try and make contact with the nominated solicitor, and, in fact, this task is accomplished.

27 The evidence on the voir dire indicated that the solicitor concerned was a Mr Theo Magazis and that the accused's conversation with him was relatively short, occurring between 11.40 a.m. and 11.43 a.m. A notation made by Mr Dougherty was in these terms: "Conversation with solicitor completed. Informed he was advised of his rights." One interpretation of that note, and in my view the most probable, was that Mr Magazis told Mr Dougherty that he had informed the accused of his rights.

28 In evidence before this Court, the accused confirmed the short nature of the call, estimating its length variously at 1½ or 2 minutes. He deposed to telling Mr Magazis that he had been arrested by the police, who alleged he was a kidnapper, and that he asked him what he should do. The solicitor responded that he should make a "no comment" record of interview.

29 Su told the court that he had never before been interviewed by the police and he had wished to talk to a lawyer because he was confused and did not know what to do. In the course of the brief conversation he had not told Mr Magazis that he had already been interviewed by police about these events for a period in excess of 30 minutes.

30 When the interview resumed at 12.26 p.m. the accused indicated his intention to put the advice of Mr Magazis into practice. He was asked by the interviewing police at question 403:

"Okay. What we're going to do is question you in relation to the - as we said, the offence of kidnapping of JL. Do you wish to say anything further in relation to that at this stage, in relation to the kidnapping of JL? Do you wish to make any comment in relation to it?" Answer: "No comment." Question 404: "You'll have to speak a bit louder." Answer: "No comment."

Nonetheless, the interviewers continued to question him.

"You've spoken to your solicitor. Is it correct that you are going to make a - answer 'no comment' to the questions that we put to you in relation to this offence ?"

Question 441: "You - you - you're nodding your head, is that a yes?" Answer: "Yeah."

32 Thereafter, questions are asked about various telephone calls to the L household and the accused's movements in company with JL are explored. Partial admissions are made by the accused.

33 After a suspension of the interview, it is resumed at 1.55 p.m. and the accused's rights are once again detailed. Yet again, the accused requests to speak to his solicitor. The context is as follows (question 751 and following):

Question: "Do you wish to exercise any of these rights before the interview proceeds?" Answer: "I really want to speak to the solicitor again." Question: "You wish to speak - - - ?" Answer: "Because - - - " Question: "Is it true you've already spoken to a solicitor once this morning?" Answer: "Yeah, I want to speak to him again because - - - " Question: "You want to speak to him again, okay. Well, we'll - - -?" Answer: "I didn't - I - I should tell him about the situation I'm facing, he doesn't know so he'll probably come down tomorrow. I don't want to wait that long, I want to really see him, you know? Talk it over with him."

34 The interview was then suspended for some six minutes and communication, albeit brief, occurred with Mr Magazis. The gist of this exchange was that Su asked Mr Magazis to come and see him and was told by the solicitor that he could not do so at that stage. (I should interpolate that there is no suggestion that these matters were not said by Mr Magazis.).

35 In the continuing interview, the accused gives a further account of his role in the detention of Mr L and, on occasions, declines to comment on questions put to him.

36 It is not suggested that the interview with the police was other than a voluntary one but in his evidence on the voir dire, Su stated that had he been told initially by his solicitor to make a "no comment" record of interview, he would have done so. Having told the police that he was involved with JL in the first part of the interview, he participated in the continuation of that interview, despite legal advice to make no comment, because he felt he needed to explain more. In the factual context that I have detailed, I see no reason not to accept Su's evidence on this aspect of the matter.

37 I now turn to the reasons proffered for the refusal to allow the accused to have access to a solicitor.

38 According to Mr Dougherty, the reasons he was given by his superiors for this denial were, first, the safety of the family of the victim, who were still at their Glen Waverley home; secondly, the fact that an accomplice, Shaun Goerlitz, was still at large; thirdly, the police undercover operative posing as VL was still at large, (a matter, incidentally, that the witness had not mentioned at the committal proceedings); and fourthly, that there were still two unknown persons involved in the offence.

39 As to how access to a solicitor might have had any relevance to these matters, Mr Dougherty expressed the opinion that "either wittingly or unwittingly" a solicitor may have contacted family members or relatives of the accused who may have arranged to take revenge on the L family for notifying the police. Further, they may have tried to ascertain the identity of the undercover operative. It was further put that, through the actions of the solicitor, other persons involved in the kidnapping may have been notified and Shaun Goerlitz may have been assisted in escaping. Mr Sitlington confirmed these matters in his evidence.

40 There is no independent written record to indicate whether all these factors were considered at the time of the decision or are now advanced in a retrospective rationalisation of the situation. Clearly, however, there must have been some factors present in the mind of the decision-maker, (or decision-makers), which led to the course adopted.

41 Whilst one must be careful not to indulge in the luxury of hindsight, the validity of the reasons given can be weighed against the admitted factual situation at the time. First, the L family, although still at their suburban home, were under the protection of armed police; secondly, the accomplice Shaun Goerlitz was at his Southbank Boulevard flat, which was being kept under police surveillance; and thirdly, the contact of the undercover operative, being Su, had been in police custody for some hours. Moreover, the catalogue of telephone calls by Su to VL in the early hours of the morning of 18 March revealed his belief that L had been taken into police custody. All these considerations undermine the cogency of the reason provided by the police investigators for the stance that was adopted.

42 Further, the police approach may, on one view, be regarded as exhibiting a level of paranoia at the role of a solicitor in these circumstances as well as a low opinion of the ethics of the legal profession. There was nothing at all to prevent the investigators seeking an undertaking from a solicitor that, in view of the ongoing dynamics of the investigation, no persons would be contacted at Su's behest. Additionally or alternatively, Su could have been told that the role of the solicitor was strictly as legal adviser, not messenger.

43 Most of the problems which it was asserted prevented the provision of legal advice were resolved prior to the portion of the record of interview which commenced at 11.22 a.m. The L family were at the police complex; Goerlitz had been arrested in his apartment and the undercover operative had returned from the field. However, the unknown offenders were still at large. The decision was then taken to allow access to a solicitor. It is to be noted this was within two hours of the initial refusal. Subsequently, the balance of the record of interview took place in the manner to which I have already referred.

44 Against the factual background that I have set out, I turn to consider the legal consequences.

45 It was submitted by Mr O'Connell, on behalf of the accused, that the police conduct was in breach of s.464C of the Crimes Act 1958 (the Act). That section may be regarded as part of a code setting out, amongst other things, the procedures applicable to the interrogation of a person taken into police custody. Section 464A permits the questioning of such a person, having informed that person of the circumstances of the offence and that he or she does not have to say anything. Additionally, such questioning is subject, (inter alia), to the provisions of s.464C of the Act. That section, so far as is relevant, reads:

"(1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she - (a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and (b) may communicate with or attempt to communicate with a legal practitioner - and, unless the investigating official believes on reasonable grounds that - (c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or (d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed - the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication."

46 In R v. Heaney[1], the Victorian Court of Criminal Appeal held that the contravention of s.464C did not automatically lead to the exclusion of admissions obtained in breach of it. Rather, the discretion of the trial judge to rule such evidence inadmissible was enlivened. The section was considered by the High Court in Pollard v. R[2]. This was a case where the initial questioning of a suspect in police custody commenced without caution or the provision of information to him that he could communicate with a friend, relative or lawyer. At a subsequent time and place, the suspect was cautioned, told of his rights, and a videotaped interview was conducted. The seven member court held unanimously that the videotaped interview should be excluded on the grounds there had been a breach of s.464C, (albeit there were some variations in the reasons given by the judges).

47 McHugh J, in the course of his judgment, had this to say at (p.235):

"Section 464C is a procedural rule whose objective is to ensure that a person is treated fairly while in custody for the purposes of the Act. It is one of the checks and balances on the extension of the common law powers of police investigation and interrogation which is conferred by other provisions of sub-div. (30A) of Div. 1 of Pt III of the Act. The Consultive Committee on Police Powers of Investigation said that the right of access to friends, relatives and lawyers prior to any questioning was 'a most important safeguard to the suspect'. In pursuance of its objective, the section seeks to neutralize the psychological disadvantage which could otherwise be suffered by a person who is questioned while detained in police custody and isolated from contact with the outside world. It also seeks to ensure that that person will have the opportunity of obtaining legal advice before answering questions, making statements or assisting the police in their investigations. When regard is had to the objective of s.464C, the obtaining of a confession or admission in breach of that section should be regarded as raising a prima facie case of unfairness calling for the discretionary rejection of the confession or admission. Unless the prosecution discharges the evidentiary burden of displacing that prima facie case of unfairness, the trial judge should as a general rule reject the tender of the confession or admission as evidence."

48 On one view, this formulation is supported by Mason CJ and Deane J. In particular, Deane J commented, (at pp.203 and 204):

"In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an "isolated and merely accidental non-compliance" [Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at p.78] with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest "the real evil" at which the discretion to exclude unlawfully obtained evidence is directed, namely, 'deliberate or reckless disregard of the law by those whose duty it is to enforce it'. [Bunning v Cross (ibid) p.78] In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence."

"I agree with the applicant's contention that there was a breach of the statutory duty imposed by 464C(1) on the investigating police to inform the applicant when he was in custody of the matters prescribed and to defer the questioning and investigation for a time that was reasonable in the circumstances to enable him to communicate with any of the persons designated in the sub-section. I agree also that, as a consequence of the breach, the evidence of the applicant's confessional statement should have been excluded. I would adopt the reasons given by Deane J for reaching this conclusion, subject only to the qualification that it may be that something less than reckless disregard of the statutory duty by Detective Minisini, with the acquiescence of the other police, would have justified an exercise of judicial discretion to exclude the evidence on both public policy and unfairness grounds. For example, the magnitude or significance of the breach of duty may, in itself, have justified exercise of the discretions."

50 Whether Pollard v. R altered the common law discretion enabling a trial judge to exclude evidence because its reception would be unfair to the accused or on the grounds of public policy was the subject of consideration by the Victorian Court of Criminal Appeal in R v. Percerep[3]. It was an application for leave to appeal against the admission into evidence of a video taped interview. The Court remarked (at p.120):

"It is abundantly clear that Pollard underlines the necessity for a trial judge to make an assessment of the seriousness of a breach of s.464C, so as to enable him to decide whether, on grounds of fairness to the accused, or of public policy, the evidence ought to be rejected. It is not so clear that the High Court has laid it down that "ordinarily", a breach will result in the exclusion of the evidence, and the question will be whether the evidence displaces the prima facie case of unfairness. Certainly, Mason CJ, Deane and McHugh JJ are of that view."

51 The Court concluded that it did not have to determine the issue of whether, in light of the decision in Pollard, the common law discretion should now be regarded as being fettered. In Percerep the Court held that the failure of the interviewing police to defer the interview to accommodate the accused's expressed wish to contact a solicitor, as well as having made no endeavour to contact a solicitor, constituted a serious breach of s.464C, particularly given the absence of the matters referred to in ss.(1)(c) or (1)(d) of that section. In the circumstances the exercise of the Judge's discretion to admit the interview had miscarried.

52 The effect of the operation of s.464C has also been specifically considered in such later cases as R v. Crupi[4] and R v Frugtniet and Frugtniet[5].

53 The exercise of the fairness and public policy discretions has been considered relatively recently by the High Court in R v. Swaffield; Pavic v. R[6]. In R v. Heaney and Welsh[7], I endeavour to explain the state of the current law. I commented (at p.664):

"Putting aside the issue of voluntariness, the current approach of the majority of the High Court to the exclusory discretions seems to be as follows. The fairness discretion encompasses considerations of the effect of the conduct of law enforcement officers upon the reliability of the impugned material. The term 'law enforcement officers' may be regarded as including persons acting as their agents. The fairness discretion will also come into play where some impropriety by law enforcement officers or their agent has eroded the procedural rights of the accused, occasioning some forensic disadvantage. Those procedural rights include the right to choose whether or not to speak to the police. Importantly, the method of eliciting an admission or confession will clearly be relevant in determining whether it would be unfair to an accused to admit it into evidence. The discretion to exclude evidence on the grounds of public policy may be enlivened where no unfairness to an accused is occasioned, but nonetheless, the method by which the confessional evidence has been elicited is unacceptable in light of prevailing community standards. This broad discretion will involve a balancing exercise."

54 As the cases make clear, s.464C is part of a statutory scheme which, in broad terms, balances the powers of police investigators with the rights of a suspect in custody. As McHugh J. put it, the section "is one of the checks and balances on the extension of the common law powers of police investigation and interrogation". The refusal to permit a suspect to communicate with a legal practitioner - a right accorded by the legislation - is a serious step to take without compelling reasons.

55 The reasons advanced in the instant case for adopting that step were not noted at the time and, significantly, were not obvious to the interviewers, (both of whom were briefed on the current state of the investigation), at the conclusion of the 7.02 a.m. interview. If the interviewers were apprised of additional information between that time and the 9.34 a.m. interview, it was not revealed in the course of this voir dire. Rather, it appears that the officers were subjected to a directive from a superior officer. Neither the state of the investigation, as I have discussed it, nor the jaundiced view of that superior officer of the role which may be played by a solicitor, provided reasonable grounds for the refusal of access to a legal practitioner.

56 If reasonable grounds had existed, it was nonetheless open to the investigators to defer the questioning. Indeed, even on the police account, the purported impediments to communication with a legal practitioner ceased to exist within two hours of the decision. It was acknowledged by Detective Senior Constable Dougherty that there was no concern, given the complexity of the case, that a deferral would infringe any of the legislative provisions. Indeed, he conceded the existence of the expectation that any of the concerns leading to a denial of access would be resolved in the near future. However, the option of deferral was rejected.

57 It was suggested by Detective Inspector Sitlington that immediate questioning was appropriate "because there may be some information there that is required in relation to the safety of people". No specifics were spelt out. Indeed, one's confidence in the accuracy of this explanation, as distinct from it being a retrospective rationalisation, is eroded not only by the discrepancy in the evidence of the police witnesses as to whether or not the immediate questioning was directed by a superior officer, and its purpose, but also by the fact, as I have noted, that the questions themselves were not directed towards establishing the identity and whereabouts of co-offenders.

58 I am driven to the conclusion that there were no reasonable grounds for failing to defer the questioning. Accordingly, both in initially refusing the accused access to a solicitor and in failing to defer the questioning, the investigating police were in breach of the provisions of s.464C. Whether categorised as deliberate or reckless, the breaches here, whatever the genuineness of the investigators' motivation, were serious ones.

59 The contravention of s.464C is not mitigated by the fact that the interview was voluntary and that the accused was informed of his right not to answer police questions. Section 464C is designed to ensure that a suspect may obtain legal advice for the very purpose of deciding whether or not to exercise the right to silence incorporated in the legislation. Had that opportunity existed, the interviewing process may, (and on the accused's evidence would), have proceeded very differently in this case.

60 In my view, the breach of the accused's procedural rights creates such a forensic disadvantage that it would be unfair to admit this interview into evidence. This is a result which I have reached applying the common law discretionary principles, (preserved by s.464J of the Act). If the approach of Mason, CJ. and Deane and McHugh, JJ. in Pollard's case is to be adopted - and in my opinion to do so would be justified where a breach of 464C(1)(b) has occurred - there is an even more compelling basis for the exclusion of this evidence.

61 I have also concluded that despite the seriousness of the offence the method by which the admissions of the accused have been elicited is such to attract the operation of the public policy discretion. Applying that concept as it is defined in the authorities would also result in this part of the interview being excluded.

62 The next question for consideration is whether the subsequent portions of the interview should, nonetheless, be admitted into evidence.

63 It was submitted by Mr Kayser on behalf of the Crown that the material elicited after the accused had access to a solicitor should be admissible. It was argued that the questions and answers which relate, (inter alia) to telephone calls, may be understood without reference to the initial interview. The defence, on the other hand, contended that the primary breach of s.464C tainted the whole of the interview.

64 It was conceded by Detective Senior Constable Dougherty that the first section of the interview was the platform or foundation for the subsequent questioning. This was an appropriate concession. As I indicated earlier in these reasons, I accept that the accused was faced with a dilemma and felt that, in view of his prior admissions of his role in the detention of Mr L, he needed to further explain his actions.

65 There is guidance as to the approach which may be taken in these circumstances to be found in such cases as R v. Amad[8]. That was a case of murder arising out of "a confusing affray", about which the accused had twice been cross-examined without a caution by police interviewers in breach of the Chief Commissioner's Standing Orders. In the course of these interviews the accused had resorted to false denials and inventions to escape from the stress of his situation. Subsequently, two further interviews were conducted without the foregoing improprieties. These interviews were undertaken by the accused at the suggestion of his sister and, although voluntary and ostensibly truthful, they contained some discrepancies.

66 Mr Justice Smith, the trial judge, found that much of the material in the third and fourth interrogations constituted an expansion of admissions obtained in the second interrogation and was effectively the result of the improper conduct which occurred in the first and second interviews. Moreover, if the accused were to give evidence, it would be difficult to avoid conflict between such evidence and one or both of his third and fourth accounts. Smith J found that the accused would be subject to a "dangerous disadvantage". That can only mean a forensic disadvantage. In the circumstances, His Honour invoked the fairness discretion, (then enshrined in the case of R v. Lee[9]), to exclude all of the interrogations.

67 Similarly, in Pollard's case, the subsequent interrogation was ruled inadmissible where the breach of s.464C had occurred at the time of the earlier questioning.

68 In my view, the subsequent questioning in the instant case is based upon, and flows from, the questioning in the 9.34 a.m. interview. By this stage, the accused's position is effectively forensically untenable.

69 In all the circumstances, I have concluded that it would be unfair to admit the subsequent parts of the interview into evidence. It follows that the whole of the interview conducted with the accused Su is ruled inadmissible.

70 Up to this point, I have dealt specifically with what may be described as the verbal admissions of the accused. Objection is also taken to the admissibility of the results of the DNA analysis of forensic samples, being hair and buccal cells, provided by the accused to the investigating police pursuant to s.464R of the Act. The relevant parts of that section are as follows:

"(1) A member of the police force may request a suspect to undergo a forensic procedure only if there are reasonable grounds to believe that a procedure would tend to confirm or disprove the involvement of the suspect in the commission of an indictable offence and the suspect - (a) is suspected on reasonable grounds of having committed the indictable offence; or (b) has been charged with the indictable offence; or (c) has been summonsed to answer to a charge for the indictable offence. (2) A forensic procedure may be conducted on a suspect if - (a) the suspect gives his or her informed consent; or (b) the Magistrates' Court makes an order under section 464T(3) or 464V(5).".

71 Section 464S(1), which was enacted at a time subsequent to the earlier provisions of s.464A ff, to which I have referred, defines informed consent in these terms:

"(1) A person gives informed consent to a request to undergo a forensic procedure if he or she consents to the request after a member of the police force informs the person in language likely to be understood by the person - (a) of the purpose for which the procedure is required; and (b) of the nature of the procedure sought to be conducted; and (c) that the person may request that the procedure be conducted by or in the presence of a medical practitioner or nurse of his or her choice or, where the procedure is the taking of a dental impression, a dentist of his or her choice; and (d) of the offence which the person is suspected of having committed or with which the person has been charged or for which the person has been summonsed to answer to a charge; and (e) that the procedure could produce evidence to be used in a court; and (f) that the person may refuse to undergo the procedure; and (g) where the sample or examination sought may be obtained by a compulsory procedure and the person refuses to undergo the procedure, that an application may be made to the Magistrates' Court for an order authorising the conduct of the procedure.".

72 The submission made on behalf of the accused is that he did not give informed consent for the forensic procedure. One reason advanced for this proposition was that at the time the accused ostensibly consented to the process he had been deprived of any legal advice. A short answer to that contention is that the requirements of s.464S do not include the furnishing of legal advice. Informed consent does not mean consent informed by the advice of a lawyer. Even if the provisions of s.464C are regarded as extending to this procedure, the extent of any legal advice could only have been to either provide the sample or to require the police to seek an order from the Magistrates' Court. Assuming the latter advice was given, in the circumstances of the present case, such an order would have been inevitable.

73 Whilst the tape-recording of the police request reveals that such request and the available alternatives are not felicitously articulated, it is difficult to conclude that the accused did not ultimately comprehend what his options were. In the course of cross-examination the accused conceded that he understood that the samples were required for DNA testing and that he had the choice of agreeing to give the samples or the police could go before a Magistrates' Court seeking an order for the samples. He also agreed that he was told, albeit by the doctor in the police presence, that DNA was like a fingerprint and that the Court and the police would have access to the results of the testing. In light of these answers, it was submitted by the Crown that the information required pursuant to s.464S(1)(a) to (g) had effectively been provided and the constituents of informed consent had been made out. I agree with that contention.

74 It should be recognised that a distinction exists between the obtaining of admissions or confessions where the procedures adopted and the dynamics of the relationship between suspect and interviewer fashion the resultant material, and the obtaining of real evidence, the nature and cogency of which is objective and cannot be distorted. So much was recognised in Bunning v Cross[10]. If there was any breach of the legislative requirements by the investigating police, it certainly did not, insofar as this specific procedure is concerned, constitute a deliberate or reckless disregard of the law. Moreover, nothing done by the police affected the cogency of the evidence obtained.

75 These are all factors adverted to in Bunning v Cross. As that case also made clear, the seriousness of the offence itself is a factor to be taken into account in considering the operation of the public policy discretion. Here the offence is the serious one of kidnapping.

76 In my view, the accused has failed to demonstrate that it would be unfair to him to admit this evidence; and, further, any balancing exercise does not require the exclusion of this evidence as a matter of public policy. Accordingly, I rule that the results of the forensic analysis are admissible.

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Cases Cited (7)