28 The trial judge did not bear in mind that it is a requisite for a valid arrest that the arrest be for the purpose of taking the arrested person before a judicial officer to be dealt with according to law as soon as is reasonably practicable. As the arrest of the appellant was solely for investigative purposes, it was unlawful.
29 I appreciate that Pt 10A of the Crimes Act provides for the detention (for a limited period) of a person after arrest for the purposes of investigation. But such a lawful detention is dependent upon a lawful arrest having been effected (see s 356B(1)(a) and s 356C(1) and (2)).
30 I have pointed out that the trial judge said that if the arrest were illegal because the appellant was not informed of the grounds for his arrest then that illegality was only marginal. For that reason, his Honour said that illegality did not "require the evidence [of the interview] to be excluded".
31 I have concluded that his Honour erred in his view as to the illegality of the arrest. In the circumstances, this Court is required to exercise its own discretion as to whether the evidence of the interview (that was obtained "in contravention of an Australian law" within the meaning of s 138(1) of the Evidence Act) should be admitted (cf R v Foster at 553).
32 The test under s 138(1) of the Evidence Act is whether "the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". Unless the Crown can show that it is desirable, in accordance with the test so laid down, that the evidence of the interview be so admitted, it should be excluded.
33 In determining whether the evidence should be admitted, factors of fairness and public policy are relevant (cf R v Foster, albeit that the High Court was there dealing with what evidence should be excluded rather than admitted). In the present case it is the issue of fairness that is predominant.
34 I shall first mention those factors, relied on by the Crown, which tend to support the admission of the evidence.
35 Accepting the transcript of the interview at face value, the probative value of the admission is fairly strong, although regard must be had to the appellant's assertions throughout the interview that he "touched", "rubbed" and "fingered" the complainant on the vagina (which assertions were inconsistent with penetration).
36 The offence itself is a most serious one and the evidence of the confession is crucial. Without it, as the Crown accepts, the prosecution must fail. This an important factor to be taken into account.
37 I also accept that the fact that the police had reasonable cause to suspect that the appellant had committed a crime of a sexual nature in regard to the complainant tends to support the desirability of admitting the evidence.
38 Another factor in favour of the Crown is, as Ms Woodburne pointed out, the fact that the manner and type of questions were entirely fair. They were not leading questions and the answers on which the Crown relies were volunteered by the appellant.
39 I now come to the factors which militate against the admission of the evidence.
40 The gravity of the illegality is an important factor under s138. Ms Woodburne submitted that the existence of Part 10A diminished the gravity of the unlawfulness of the arrest. She pointed out that, subject to a lawful arrest, the police were entitled to detain for the purposes of investigation. Accordingly, she submitted, if they arrested a person for that purpose alone (and the arrest for that reason was unlawful), the departure from the law should not be regarded as being particularly serious.
41 I disagree with this submission. Section 356C(1) of the Crimes Act makes it clear that Pt 10A does not confer any power upon the police to detain a person who has not been lawfully arrested. The common law has always jealously guarded citizens against arbitrary arrest: Williams v R. The duty to bring an arrested person before a judicial officer as soon as is reasonably possible is one of the foundations of a democratic society. Our law recognises that no person should be arrested merely for the purposes of investigating whether he or she has committed a crime. Part 10A does not detract from this fundamental principle. In my opinion, the illegality involved in the appellant's arrest has to be regarded as being serious indeed.
42 In considering the question of fairness further, the testimony of the complainant has to be taken into account. Her evidence was to the effect that the appellant was not guilty of the offence charged. Firstly, the complainant, as I have mentioned, stated that the appellant had not participated in any of the sexual acts performed upon her. Secondly, she testified that some person unknown to her inserted two fingers in her vagina at a time when she was on the bonnet of the car and the driver, Jarrett, was performing a sexual act upon her. According to the complainant it could not have been the appellant who inserted his fingers in her vagina because he was too far away at the time. There was evidence on the part of the appellant himself that was consistent with him not being at the scene at the relevant moment.
43 A further important factor involves the conduct of Detective Gilmour. Prior to the interview Detective Gilmour said to the appellant:
"I am going to ask you some questions about an allegation that has been received that earlier today when you were with [the men in question] in a black Ford sedan you sexually assaulted [the complainant]. Do you understand that?
The appellant replied in the affirmative. Detective Gilmour then said:
"I am going to ask you some questions. You do not have to say or do anything if you do not want to. Do you understand that?"
The appellant again replied in the affirmative.
44 The statement by Detective Gilmour that he had received an allegation that the appellant had sexually assaulted the complainant was false. No such allegation had been made by the complainant. Detective Gilmour made the statement as a result of a misunderstanding on his part that I accept may have been reasonable. That, however, is not a satisfactory answer to the point. The fact is that, prior to the interview, the appellant was falsely told that the complainant had asserted that he had sexually assaulted her. This was unfair.
45 Ms Woodburne pointed out that, in his testimony during the voir dire, the appellant had not said that Detective Gilmour's false statement had influenced him in making the admission. While this fact is not without weight, it is apparent from the interview that the appellant, who is an Aborigine, is not an educated person and it is not likely, in my opinion, that he would have appreciated the need to draw attention to Detective Gilmour's false statement. True it is that the appellant's counsel said nothing about the issue at the trial, but it seems that its significance was simply not appreciated by those then representing the appellant. Common sense tells one that such a statement could well have had a bearing on the appellant's responses in the interview.
46 Ms Woodburne drew attention to evidence that, when Detective Gilmour administered the caution, the appellant was not listening to what was being said. That is not to say, however, that the appellant did not hear the false statement by Detective Gilmour.
47 According to the appellant, at the time of the interview he was scared. It is again common sense that, had he been told that the complainant had not made any allegation of sexual assault against him, his fear would have been alleviated to a significant degree. Had that occurred, the appellant may have answered the questions in the interview differently.
48 Ms Woodburne drew attention to the test for unfairness laid down in R v Lee (1950) 82 CLR 133. I accept that that is the test that should be applied. The High Court said there (at 154) that the requisite question is, "[W]hether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused." Their Honours stated that they knew of no better exposition of the whole matter than that which is to be found in the judgment of Street J in R v Jeffries (1946) 47 SR (NSW) 284 at 311-14. Street J said, relevantly:
"It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him."
49 In applying that test it is also salutary to bear in mind what was said in R v Lee at 159 and repeated in R v Foster at 555, namely:
"The uneducated - perhaps semi-illiterate - man who has a record and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a 'statement' may be 'taken' which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the 'statement' made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them."
50 In my opinion, the force of the nature of the illegality, the false statement by Detective Gilmour, the omission to tell the appellant of the complainant's statement exculpating him, the nature of her evidence generally and the other statements made by the appellant in the interview, outweigh the factors relied on by Ms Woodburne who, in a cogent argument, said everything that could possibly have been said on behalf of the Crown.
51 In all the circumstances I consider that it would be unfair to the appellant to admit the evidence of the interview.
52 Once the evidence of the interview is excluded there is no evidence inculpating the appellant. Accordingly, the appeal should succeed, the verdict of the jury should be set aside and a verdict of acquittal should be entered.
53 STUDDERT J: I agree with the orders proposed and I agree with the reasons expressed by Ipp AJA.
54 GREG JAMES J: As do I.
55 IPP AJA: Those will be the orders of the Court.