SD: I've asked, we've been, we're in the hands of the on-call magistrate. As you know the courts aren't open as the other morning whether (ind) services an on-call magistrate and he or she is reviewing our application, they'll let us know in due course. For the purposes, the time is now fifteen minutes past 8. The execution of this search warrant is now suspended."
40 The search warrant remained suspended until approximately 19 minutes past ten, at which time the accused was told that the local magistrate had granted an extra four hours of investigation time, beginning at 20 past ten.
41 There was evidence from Detective Sergeant Liddiard on the voir dire which touched upon the present matter. He had said in his statement that he could recall an application being made for extension of the investigation period, but he was not involved in that application himself. He thought it was made by an officer or officers of the Australian Federal Police.
42 During his oral evidence, D S Liddiard said that he had been told of the application having been made by Detective Day. He thought he could recall a conversation between Detective Day and the accused in relation to the fact that an application was to be made for an extension of the detention period (transcript 2418). He was not completely sure when this conversation would have occurred, but thought it would not have been far into the suspension that the application itself was made, probably about 6.30am (transcript 2418).
43 Detective Sergeant Liddiard was asked point blank by Mr Scragg whether he had any recollection of Jamal ever being informed by any police officer of his right to make representations to the Registrar in relation to the application. D S Liddiard said that the accused was given the opportunity to speak to the Registrar and, in fact, he believed that he did do that. His recollection was that he heard the accused talking on the phone to a person, and he believed that was the Registrar. He thought this was shortly before the detention warrant was granted. As far as he could recall, the accused had been in the front bedroom by himself, although in full view of the police when he was speaking on the phone. He thought it was Detective Day's mobile phone. He conceded, however, he did not know who the accused was talking to, and he did not know what was said.
44 Finally, there is a need to mention a letter from the Crown Solicitor's Office to Mr Scragg's instructing solicitor dated 27 August 2008. This became part of Exhibit 1. It was an indication that Detective Day had been spoken to, that his telephone records had been examined, and that there was nothing to indicate that he had contacted the on-call magistrate or his/her phone in relation to the extension of the investigation period on 8 November 2005.
45 From all this evidence, I make the following findings of fact: First, although the accused asserted in his evidence-in-chief that he had not been given the opportunity to speak to the magistrate, I am perfectly satisfied that he unequivocally agreed during his cross-examination that he had been told he could speak to a magistrate. Secondly, I find that in fact he had been told of his rights in this regard but declined to take them up. Thirdly, I consider that one reason, but not the only reason, the accused made this very unequivocal concession was that he thought (erroneously) that he had been "caught" on the video being told of his rights. Fourthly, the accused then attempted to obfuscate the point by asserting that his mind was "elsewhere" during the search warrant process, and that by implication this extended to the information involved in the concession he had made. Fifthly, I do not accept that his "mind was elsewhere". An examination of the video throughout demonstrates that he was very focused, very deliberate and, despite the difficulty of his custodial situation, fairly much in control.
46 Mr Scragg argued that Mr Jamal did not acquiesce in or agree to the questions put to him as to whether he had been told he could speak to a magistrate. I reject this submission and find, as I have indicated above, that he unequivocally agreed to the proposition. It was only a little later that he attempted to prevaricate by making the reference to what he had seen on the video, and to his alleged state of mind at the time. Mr Scragg's central point however, is that there is no evidence before the Court from Detective Steven Day, and that a powerful inference should be drawn in the absence of evidence from that officer. However, in the light of the accused's unequivocal assent to the question put to him by the cross-examiner, I am not prepared to draw an inference adverse to the Crown. The matter has been satisfactorily proved out of the mouth of the accused. I infer from all of the circumstances, and the totality of the evidence I have described, including the documentary material, that the accused was told that he might make representations to the magistrate about the application. He declined to do so. In my view, subject to the next matter I will discuss, that was sufficient compliance with s 23E(2) of the Crimes Act 1914.
47 The final matter is whether I can be satisfied that the accused was informed of his entitlement before the application was made. The phrase in the section is "before making the application". This is perhaps a minor, but nevertheless, difficult point of construction. Given the nature of the application dealt with in s 23E, there is much support for the construction urged by Mr Scragg, namely that the entitlement must be conveyed to the person under arrest before the telephone, telex, fax or other electronic means is utilised to make the application. On the other hand, it makes little sense in a situation such as the present where the application was made at 6.30am, was supported by a later document not received by the magistrate until shortly before 8am, was not expected to be dealt with until some time later, and was in fact, not dealt with by the magistrate until after 10am. Those circumstances might be thought to support a more flexible construction that would lead to satisfaction of the statutory duty so long as the person under arrest were told of his rights before the magistrate came to deal with the application. I am perfectly satisfied that the accused was told of his rights before Ms Albu came to finally deal with the extension application. I could not be satisfied, however, that he was told of those rights before the telephone application was lodged. I could not be satisfied that he was told of those rights before the faxed material came into the possession of Ms Albu at about 7.50am. He may have been told prior to that time, but I am simply unable to say one way or the other.
48 In my view, the better view of the section is that the person under arrest should be told of his entitlement before the "lodgement" of the application, whether by way of telephone, telex, fax or other electronic means. In that sense, it seems to me, there was a technical breach of s 23E, although I am perfectly satisfied that the "entitlement" was conveyed to the accused at some stage prior to Ms Albu dealing with the application. Just how close this was to the determination period, I am unable to say.
49 This finding will make it necessary for me to consider s 138 of the Evidence Act 1995. I will turn to that when I have dealt with the final matter relied on by Mr Scragg.