When remanded on 3 June, the accused was kept at the prison hospital, presumably for observation. On the morning of 4 June, a prison officer was involved in a conversation with the accused whilst that officer was carrying out duties in connection with another prisoner. At the conclusion of the conversation, the officer entered into his notebook his recollection of the conversation and reported its occurrence to a superior officer. By 3pm that day the officer had provided a statement to a detective constable and the notebook was retained by the police. On 4 June, police officers further interrogated the accused in relation to the murder during which the accused admitted killing the deceased.

No reference was made by those officers, during the course of the video interview, to the conversation, the notes taken or the existence of the record made by the prison officer. No opportunity was afforded by the prison officer or the interviewing police, to the accused, to check the accuracy or otherwise of the notes. Given that the import of the conversation is in the detail, rather than the general substance, the evidence of the accused given on the voir dire that he does not take issue with the general substance of the notes does not mean that the reliability of that detail is established.

The evidence is admissible and the question is whether the Court should exercise its discretion by excluding it. The principles governing the exercise of discretion have been stated by the High Court in a number of decisions commencing with Ireland [1970] HCA 21; (1970) 126 CLR 321, R v Cleland [1982] HCA 67; (1982) 151 CLR 1, Merchant [1971] HCA 22; (1971) 126 CLR 414, Van de Meer [1988] HCA 56; (1988) 82 ALR 10 and, more recently, R v Swaffield [1998] HCA 1; (1998) 151 ALR 98.

The accused was in custody. The evidence, sought to be led from a police officer, would have been excluded by reason of the Criminal Law (Detection and Interrogation) Act 1995 ("the Act"), s8. That Act is intended to ensure the reliability of statements attributed to a suspect and that the circumstances of their taking are not ones of oppression, trickery or improper conduct. The Act, s9(c) in no way impinges on the right of a court to "exclude unfairly obtained evidence".

The prison officer deposed that the current management practice at the prison is to permit conversations between officers and inmates. The modern practice departs from previous standing orders which precluded conversations other than in the performance of duty. Whilst that might be commendable, no protocols have been put in place governing questioning of, or conversations with, inmates about crimes or offences with which they are charged and for which they are awaiting trial. In this case the conversation was initiated and maintained by the prison officer. He appreciated its significance, but made no attempt to advise the accused that the conversation could be reported to investigating officers. The accused was unaware that the contents of the conversation would be supplied to those investigating officers and might form part of the evidence on his trial.

One of the factors relevant to the exercise of discretion is reliability. The officer could not recall the conversation in any but the most general and vague form. He required the use of his notes which purported to recount the precise words of the conversation. It is the detail of those words which is significant. The Crown seeks to make use of the notes to counter suggestions made by the accused in his video taped interview that he was acting in self defence. This is not a case where the Crown relies on a general admission that the accused took the life of another. It has that evidence in proper form. Rather, the Crown seeks to rely on the accuracy of the claimed detailed responses made by the accused. In this context, reliability or lack thereof is important. Given that the officer has no independent recollection of the conversation, it is the notes themselves, used to refresh memory, which are central to the issue of reliability. The accused was not afforded an opportunity to adopt or check the accuracy of the notes by either the prison or police officers. They were not made contemporaneously. It would make little sense to permit the use of unverified material obtained by a custodial officer whilst prohibiting it from a police officer. To do so would be to ignore the perils associated with the use of "verbal confessions", the perils of which have been long recognised by the courts.

The Court is not satisfied as to the reliability of the evidence.

Whilst the prison officer was under no obligation to administer a caution, it remains a fact that on realising the significance of the conversation, he made no effort to advise the accused of the possible implications of making further response to the questioning. This was not a case of a spontaneous statement. The officer initiated and maintained a line of questioning. Modern prison management practice ought not encourage officers to act as collectors of information for the police unless protocols are put in place governing such conduct. The persistence in the line of questioning, once its significance became apparent, renders the taking of the evidence, without caution, unfair.

The third matter requiring consideration is that of public policy. The courts and Parliament have required of police officers a code of conduct. In part the code is required by reason of fairness, but of equal import is the necessity to preserve the integrity of the institutions connected with the criminal justice system. The integrity of the police force, and the confidence that may be had in evidence it obtains, will be maintained if officers pay regard to the legislative scheme set out in the Act. To permit the reception of evidence from a custodial officer of statements claimed to have been made by a person awaiting trial, in circumstances such as this, would be to encourage avoidance of the legislative scheme by the use of prison officers. The effect would be to transfer perceived vices to another government agency. This is not to say that procedures such as those considered by the High Court in Davis v R [1998] HCA 1; (1998) 151 ALR 98 should be inhibited. It does mean that absent safeguards, the obtaining and provision of material by prison officers should be closely examined.

There remains the question of prejudicial effect as against probative value. The probative value is not that of an admission of the taking of life. The Crown has such evidence. It is the detail and nuance of the claimed verbatim conversation upon which the Crown relies. The probative value lies, in part, in an attempt to give further meaning to a recorded confession of some eight hours' duration. The prejudice is that the words themselves might assume a significance which they ought not possess. The prejudicial effect far outweighs the probative value.