CRIMINAL LAW AND PROCEDURE - Sentencing Act 1995 s 85 - admission made in the course of official questioning - whether a statement which is shown by other evidence to be unlikely to be true is unreliable for the purposes of subs (2).

CRIMINAL LAW AND PROCEDURE - Sentencing Act 1995 s 138 - admissions obtained during unlawful detention - whether discretion to receive illegally obtained evidence properly exercised - nature of test under s 138 considered.

HELD: Trial judge correctly applied tests prescribed by ss 85, 138 - exercise of discretion did not miscarry.

NEWMAN J: I have had the advantage of reading in draft form the judgment of Mr Justice Barr. I agree with both the reasons he gives and the orders he proposes.

LEVINE J: I have read the judgment of Barr J in draft. I agree with the orders his Honour proposes and his reasons therefor.

BARR J: The appellant appeals against convictions and seeks leave to appeal against sentences recorded in the District Court. In September 1996 he was arraigned on charges of receiving a stolen motor vehicle, namely a Triumph Sports sedan registered number OXP-735, being an accessory after the fact of receiving a stolen motor vehicle, namely Holden Commodore sedan registered number NYU-841, and assaulting a police officer. He pleaded not guilty and the jury returned verdicts of guilty on the first two counts but were unable to agree about the third. His Honour Judge Luland QC sentenced the appellant to penal servitude for two years on the first count. The sentence comprised a minimum term of eighteen months and an additional term of six months. His Honour imposed a concurrent fixed term of nine months on the second count.

On 16 December 1994 the appellant and Miss Kerrie Ann Hollands resided together at Killarney Vale. At about 2 pm Miss Hollands left the premises after a domestic disturbance, went to a neighbour's premises and telephoned for help. Uniformed police officers attended in response, arriving at 2.30 pm. Miss Hollands, the appellant and a friend of his, Mr Royce Field, were present. One of those officers arrested the appellant and placed him in the back of a police vehicle. In a shed at the rear of the premises the police noticed two partially stripped motor vehicles. One was the Triumph, the subject of the first charge, and the other was an unregistered Holden Commodore. The uniformed officers got in touch with detectives and waited for their arrival. During that time, at about 3.10 pm, Senior Constable Dooley asked the appellant where he had got the cars from and he said that they were his, that he did them up for friends. When he was asked who owned them, he replied, "Peter's one bloke's name and I can't remember the other girl's name".

Detectives arrived at about 3.15 pm and looked at the motor vehicles and other things in the shed. They saw registration plates and compliance plates which had been removed from vehicles. There were also registration papers, licences, NRMA papers and other documents which aroused the suspicions of the detectives. The compliance plates of the Holden Commodore were missing, and the detectives found two compliance plates that appeared to belong to a Holden Commodore. They also found two boxes containing metal punches bearing assorted numbers and letters, such as might be used to punch identification numbers into metal.

One pair of registration plates found in the garage bore the letters and numbers NYU-841. Enquiries made during the evening of the same day revealed that those plates had been attached to a Holden Commodore, which had been stolen during the previous month. It was also established that the Triumph had been stolen.

The appellant was removed from the police vehicle and was asked about contents of the shed. He denied knowing anything about the cars and said, "People just leave them here for me to do work on." He denied removing the compliance plates from the vehicles. The questioning continued and the appellant became agitated and grabbed Detective Davis by the front of his shirt. A struggle followed and the Detective fell over some obstruction on the ground. That was the subject of the third count.

Those things happened about 5.30 or 6 pm. The appellant was taken to the Entrance police station between 7 and 7.30 pm to be charged with the domestic violence offence. At 8.30 pm the detectives asked him whether he wanted to say anything more about the vehicles. According to the detectives, he apologised for his earlier behaviour and admitted involvement with the vehicles. They took him to the detectives' office and conducted an interview, which commenced at 8.48 pm and ended at 10.28 pm. Throughout that period the police believed from what they had seen at the appellant's premises and from the results of enquiries they had made during the evening that the Triumph and the Holden Commodore in the garage had been stolen and that the Holden Commodore to which the registration plates NYU-841 had belonged had been stolen.

A typed record of the interview was made and the appellant signed it. It contained the following questions and answers -

Q.16 Can you tell me who owns the two vehicles that were in your garage?

A. Well it is a long story, but about four months ago when I lived at St. Marys these fellows turned up with the Triumph. They wanted me to number it for them and put it back together. I told them I was moving to the Central Coast area and that I would have to take it up to the coast to do the job. I then moved up the coast and trailed the Triumph up with me and put it in the garage and I have been waiting ever since to tell me what numbers I have to put on it.

Q.17 Can you tell me what you mean when you say `They wanted me to number it for them and put it back together'.?

A. They wanted me to change the engine and chassis number and put it back together for them.

A. I mig weld over the old number and then grind it away and then re-stamp them with the new number they give me. Sometimes I take the compliance plates off but they normally do.

Q.19 I now show you two sets of metal stamps in blue containers which were located in your garage this afternoon. Are these the stamps you use when you re-number the cars?

Q.21 Are you prepared to tell me the identity of the people who are supplying the vehicles and compliance plates to you?

Q.31 Can you tell me how you came into possession of the white Commodore located in your garage earlier this afternoon?

A. A couple of weeks ago they brought it around to my place and left it with me but didn't leave any numbers with me again.

Q.32 Have you carried out any work or changes to numbers on this commodore?

A. No, I only pulled the stereo out to see what I have to do to hook it back up.

Q.33. Did these persons tell you where the Commodore had come from?

Q.34 What did you think when they handed you the car and asked for new numbers to be put on the car?

A. That it was stolen and I had to do it like I always have.

Q.35 The compliance plates for this vehicle are not attached and are missing. Can you explain this?

Q.36 Did you take the compliance plates off the car?

Q.37 I will now show you one set of Commodore compliance plates which Police located in your garage on the Commodore boot. What can you tell me about them?

A. They could be off another car I am not too sure.

Q.47 (sic) I would like to speak with in relation to a set of registration plates NYU-841 which were located in your garage earlier this afternoon. These plates belong to a 1982 Holden Commodore Sedan that was stolen from the Toowoon Bay area on the 20 November 1994. I want you to understand that you are not obliged to say anything further about the matter, but whatever you say will be recorded on the word processor and may later be used in evidence. Do you understand that?

A. I remember sometime in late November, they brought around a white Commodore and I did a job on it, they must be off that I didn't know they were still there.

Q.49. Can you tell me what you did to this White commodore

Q.50 Did they tell you where they got the commodore from?

A. All they said was it was hot, they never tell where they get it from.

Q.51 Can you tell me how you knew what numbers to alter on the motor vehicle?

A. They left the Commodore there and they came the next day with the compliance plates. These plates had the chassis number on it. I grinded the original ones off and stamped the chassis number that was on the compliance plate onto the car.

A. They told me the number and I wrote it on a piece of paper. I then grinded the old number off and stamped the new one on it. After I put the new number on it I burn the piece of paper.

Q.54 Did you receive any money for work carried out on this car?

At some time during the evening Mr Royce Field got in touch with the investigating detectives and told them that he wished to be interviewed, so arrangements were made for him to be brought to the police station.

The appellant was charged with certain offences at 12.38 am on 17 December, including three counts of receiving stolen property. I assume that one of those charges related to the Holden Commodore found in the appellant's garage.

Mr Field began to be interviewed at 1.06 am. The typed record includes these questions and answers -

Q.15 Would you now care to tell me what knowledge you have in relation to the white Commodore sedan that was parked in the garage of the premises?

A. In September this year I bought a white holden Commodore number QFK-105, off Julie White in Baulkham Hills. She advertised this car in the paper and I paid $1500.00 for it. I bought it to sell it and make some money off it. I took the car to Gary's house, actually Gary drove it up there for me and I started to do it up. One day I was at the Pub in Bateau Bay when I was offered an identical Commodore for $500.00. This car was in much better condition so I bought it. I knew that it was stolen but it was too good to miss.

A. I told him where to deliver it. About two days later the same bloke dropped it at the corner near Gary's house and I paid him the $500.00. I then took it into the garage. I removed the compliance plates and rego label and rego plates from the stolen car. Then I put the rego plates QFK-105 from the other car I bought in Baulkham Hills onto the stolen car. I also took the compliance plates off the car I bought and put those onto the stolen car. I then changed the engine and chassis number.

Q.26 I will now show you a set of New South Wales registration plates NYU-841, are those the plates you removed from the stolen Commodore?

Q.32 Was Gary ROOKE or Kerrie HOLLANDS aware of what you were doing with these cars?

During that interview the police became aware for the first time that Mr Field was claiming to be the legitimate owner of the Holden Commodore found in the appellant's garage and that he had been the receiver of the Holden Commodore to which the registration plates NYU-841 had been attached. Enquiries confirmed that Mr Field's purchase of the first vehicle was genuine.

At the trial, objection was taken to the tender of the record of interview and a lengthy voir dire was held, at the conclusion of which his Honour expressed his intention to admit the record, together with evidence of preceding oral admissions. The trial proceeded. On 5 September 1996 his Honour delivered a written judgment giving reasons for admitting the evidence.

The first ground of appeal complains that his Honour erred in admitting the record of interview into evidence. It was submitted that in considering the questions of the admissibility of the record and of the exercise by the Court of the discretion whether to admit it or not his Honour applied superseded common law rules and failed to apply the tests prescribed by the Evidence Act 1995.

The appellant gave evidence on the voir dire and denied making the oral and written admissions attributed to him. He said that the police had assaulted him at his house and at the police station. He said that the answers in the record had been concocted by the police and that he had signed it only because he feared that they might carry out their threat to have his children placed in foster care unless he did what they wanted. His case was that the police evidence was obtained by violence and threats, that he was unlawfully detained at the time, that the police gave no satisfactory explanation for their failure to use ERISP equipment to record the interview and that the contents of the record of interview themselves demonstrated that the record could not be relied upon.

The police officers denied that they had assaulted or threatened the appellant. The appellant and Miss Hollands swore that they had. His Honour expressed himself satisfied that the appellant was not assaulted at his house and rejected the evidence of assaults and the threat at the police station. It followed that his Honour was satisfied, using the terminology of s 84, Evidence Act 1995, that the admissions in the record of interview, and their making, were not influenced by violent conduct or threats.

The first complaint under this ground of appeal is that his Honour did not enquire, as s 85 required him to, whether the circumstances in which the appellant's admissions were made were such as to make it unlikely that their truth was adversely affected. The section is as follows -

Criminal proceedings: reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental intellectual or physical disability to which the person is or appears to be subject, and

(b) if the admission was made in response to questioning:

(i) the nature of the questions and the manner in which they were put, and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

It was submitted that the following circumstances bore upon the necessary enquiry.

1. The Holden Commodore in the garage belonged to Field, who had come by it legitimately. The facts that the appellant was friendly with Field and that the car was found in the appellant's garage made it likely that the appellant would know this. The appellant said in evidence on the voir dire that he knew that the car was Field's. There was no evidence to counter it. In the circumstances the answer which police said the appellant gave to questions 31 - that the two unidentified persons had delivered the car to him - and 34 - that the appellant thought at the time that the car was stolen - could not be true. Although a suspect can lie in answering the questions of investigating police officers, there is no reason why the appellant should have incriminated himself by lying when he had an innocent explanation for possessing the car. The only reasonable explanation for the answers was that the police concocted them in putting together a version which they believed was true. It was only afterwards, when they interviewed Field, that they realised that it was not true. It was then too late to change anything.

2. If Field was telling the truth when he said that he had changed the engine and chassis numbers of the stolen car and that the appellant was not aware of what he was doing with the car, the appellant's answers to questions 48 - that the unidentified persons previously referred to brought the car to him - and 49 - that he changed the numbers on it - could not be true. Again, the only reasonable explanation for these answers was concoction by the police.

3. There was no satisfactory explanation why the police had chosen to record the interview on a word processor and not by the use of ERISP equipment, which was available at the police station. The interviewing officers, Detective Senior Constables Davis and Atkinson, gave evidence that the equipment was malfunctioning, but there was no documentary evidence to support that assertion.

4. The appellant was unlawfully detained. Between 2.30 pm and 6 pm he was confined to the back of a police paddy wagon whilst police enquired about the cars and things found in the garage. There was no justification for so confining him and denying him the right to be charged and apply for release on bail.

In my opinion, not all the matters contended for by the appellant could have been considered by his Honour for the purposes of s 85. I think that the expression "the circumstances in which the admission was made" as used as in subs (2) is intended to mean the circumstances of and surrounding the making of the admissions, not the general circumstances of the events said to form part of the offence to which the admissions are relevant. That is because, first, it is the plain meaning of the words. Secondly, it follows because subs (1) intends the section to have effect only where there is official questioning (or an act of the kind relevant under para (1)(b)). So far as the present appeal is concerned, the section may be said to be intended to require courts to inquire, where appropriate, into the process by which official questioning produces evidence tendered at trial. If the circumstances of the official questioning are such as to produce untruthful or unreliable evidence of admissions - adversely to affect their truth - the evidence is inadmissible. But the section is only concerned with the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury. The authors of ALRC 26 said, at para 765, speaking of the draft forerunner to s 85, "the trial judge should determine as a preliminary issue whether the reliability of the admission may have been impaired by the way it was obtained" (emphasis added). This construction is consistent with subs 189(3), which says -

(3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion of not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant.

It was submitted by the appellant that his Honour must have thought, contrary to the requirement of s 85, that the reliability of the confessional material was entirely a matter for the jury. I do not agree. What his Honour said (at T77) was that the truth or otherwise of what was said in the record of interview was not material to the voir dire. His Honour was correct. That was a question for the jury. The question for his Honour, under s 85, was whether in the circumstances pointed to by the appellant, the making of the answers was reliable, that is, whether the circumstances were such as to make it unlikely that the truth of what the appellant had said was adversely affected. His Honour referred during his judgment to the possible inconsistency between what the appellant knew about Field and the provenance of the cars and what he told the police. He said that that had led to the argument that the admissions must be unreliable. His Honour referred to McKinney and Judge v The Queen (1990-1991) 171 CLR 467 and observed that an inconsistency between records of interview in that case did not lead to their rejection because of unreliability. All his Honour was saying was that the proper thing to do was to leave such matters for the jury's consideration. The "reliability" to which his Honour was referring was the ultimate question, namely whether what was contained in the record of interview was true. It had nothing to do with the unreliability dealt with by s 85.

I think that only three of the matters ventilated on the voir dire related to the circumstances in which the admissions were made. By far the most important one was the alleged beatings and threat. The others were the fact that the record was made by the use of a word processor instead of by video and audio tape, and the unlawfulness, if that is what it was, of the appellant's detention. In my opinion, the circumstances of the appellant's knowledge of Field and the provenance of the cars and any inconsistency between that knowledge and the answers he was recorded as having given to the police did not fall within the circumstances contemplated by subs (2).

His Honour's finding that there was no violence and no threat is relevant to the matters raised under s 85 in this appeal. It was by far the most important issue raised on the voir dire. Most of the evidence went to that issue. The appellant and Miss Hollands gave evidence. Miss Hollands identified photographs which she said that she had taken of bruising to various parts of the appellant's body. The only purpose defence counsel could have had in putting forward the contention that the police had deliberately chosen not to video tape the interview was to give support to the contention that the appellant had been beaten and threatened. The intention was to demonstrate a desire by the police to conceal the events in the police station and to emphasis the appellant's inability to corroborate his version. The form of the record the police made was a subsidiary issue, and that may explain why his Honour made no reference to it in his judgment. Counsel's addresses on the voir dire were not recorded and the little defence counsel said about the appellant's case before his Honour does not suggest that it formed a strong part of the case. At T72 his Honour said -

... it seems to me ... that what the accused is saying is, "because I wouldn't say anything to the police, they assaulted me and then they fabricated their account of the record of interview." Am I wrong about that, is that your case?

Defence counsel said that it was. At T84 his Honour said -

"As I understand it the accused is saying (a) I didn't make those statements that the Crown relies upon, that's what the whole issue is about, the admissibility of the record of interview, I didn't make it. Even though I didn't make I was assaulted. I was assaulted both at the premises and I was assaulted at the police station. Thirdly, I was unlawfully detained for a period of time. Now as I understand your voir dire and after all it's your voir dire, as I understand it you'll be saying (a) I shouldn't admit the record of interview because it was involuntary. The accused is entitled to argue that even though he says he didn't make it, MacPhersons Case. Is that your argument?"

It seems quite unlikely to me that his Honour would regard the use of a word processor instead of audio-video tape as a matter of any consequence at all in adversely affecting the truth of anything the appellant had said. His Honour determined the issue of beatings and threat in favour of the Crown. The manner of recording thereby ceased to have any real importance to the issues raised on the voir dire. His Honour found that the appellant had voluntarily answered the questions recorded in the document. The appellant admitted having signed it. Besides, Detectives Davis and Atkinson, whom his Honour thought were truthful witnesses, gave evidence that the ERISP equipment was malfunctioning. Although his Honour did not say so, it seems certain that he must have believed them about that. Although the appellant complains in this appeal that their evidence was not corroborated, there was no rule that it had to be. There was no evidence to put against theirs other than that of the appellant, who had no credit in his Honour's view. Quite apart from that, there was no legal requirement at that time (before the enactment of s 424A Crimes Act) to record an interview by means of ERISP equipment, and the unchallenged evidence of the Crown was that police instructions and guidelines did not at that time require interrogating police officers to use ERISP for offences of the kind with which the appellant was being charged.

The only remaining issue is whether the detention was unlawful. His Honour was required to consider that matter under s 138, of course, but I shall assume that any unlawfulness of detention was capable of bearing on the question arising under s 85(2). His Honour found that the appellant's detention was not unlawful, but went on to state that if it had been unlawful he would not have exercised his discretion so as to reject evidence of what the appellant told the police. For reasons which I shall later explain, I think that the appellant's detention was unlawful because he was not taken before a Justice as soon as reasonably practicable. It was the length of time for which the appellant was held that made his detention unlawful.

His Honour found that no conduct by the police contributed to the admissions. The effect of what his Honour said was that the circumstances in which the appellant gave the answers recorded in the record of interview, including the length of time for which he had then been held, did not adversely affect the truth of what the appellant said. In my opinion his Honour was entitled to come to that view on the evidence. So the evidence passed the test for admissibility set by subs (2).

The appellant was arrested for assault at 2.30 pm and was kept in continuous custody until after midnight. The interrogation which brought forth the evidence objected to began at 8.48 pm. There was obviously no need to detain him for the assault for more than a short time and the sole reason for such a long detention was the desire of the detectives to investigate the circumstances of what appeared to be stolen cars. In Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 Mason and Brennan JJ (as their Honours then were) remarked at 296 that the jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences, and (at 297) that the right to personal liberty is not what is left over after the police investigation has finished. It is unlawful for a police officer having the custody of an arrested person to delay taking that person before a Justice in order to provide an opportunity to investigate that person's complicity in a criminal offence, whether the offence under investigation is the offence for which the person has been arrested or another offence (at 295).

The arresting officer was under a duty to take the appellant before a Justice as soon as reasonably practicable, but delayed doing so so that the detectives could continue their inquiries about the cars. In my opinion the delay rendered the appellant's detention unlawful. It is not necessary to say precisely when it became unlawful. That stage was reached before the interrogation began. It follows that the evidence objected to was unlawfully obtained and that his Honour was obliged to consider the requirements of s 138.

S 138 is the section dealing principally with evidence improperly or unlawfully obtained, including that obtained during an unlawful detention. The section is as follows, so far as is relevant to this appeal -

Discretion to exclude improperly or illegally obtained evidence

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless 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.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

It was submitted that his Honour used terminology appropriate to the common law rather than to the test prescribed by s 138. For reasons which I shall explain, I do not think that this submission is made out, but it is appropriate to consider whether and how the section differs from the common law. At common law the accused bore the burden of showing why the Court should exclude admissible evidence that had been unlawfully obtained. Merritt and Roso (1985) 19 A Crim R 360 per Hunt J at 378, 379. S 138 has changed that position and it is now for the Crown to show why unlawfully obtained evidence that it tenders ought to be admitted. That is the intent of subs (1).

In R v Ireland [1970] HCA 21; (1970) 126 CLR 321 Barwick CJ said at 335 -

"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high price. Hence the judicial discretion."

In Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 Stephen and Aickin JJ, which whom Barwick CJ agreed, said -

"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between 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. This being the aim of the discretionary process call for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration."

It seems to me that s 138 sets up a test which is really the same as the common law test. By subs (3) it sets out matters which the Court should consider if they apply to the case under consideration, but allows the Court to go beyond those matters if justice requires it. It seems to me that the matters particularised in subs (3) are of the kind which courts would have been entitled to consider in exercising the public policy discretion discussed in Ireland and Bunning v Cross.

At the end of his judgment his Honour, although he had found that the detention was not unlawful, assumed that it was unlawful in order to apply the appropriate test to the evidence. His Honour said this -

However even if the point had been reached where such was the case I would be required to exercise my discretion as to whether I should reject the admissions. Such discretion requires a balancing of competing considerations as a matter of public policy. These competing considerations are between the public interest in ensuring that offenders are brought to justice as opposed to ensuring that offenders are brought to justice as opposed to ensuring that the means used by police, which are unlawful or improper, by either deliberate or reckless disregard of the law by those whose duty it is to enforce it, is not rewarded by allowing the evidence to be tendered. In this case it was not suggested to the police that they deliberately disregarded the law, nor do I find that they were reckless in that regard.

Having found that the admissions were voluntary and signed by the accused and that no conduct by the police contributed to those admissions it would only be in exceptional circumstances that I would reject them upon public policy grounds. I intend to allow the admissions into evidence.

It seems clear to me that his Honour was applying the test under s 138. His Honour's statement of the competing considerations took up what seems to me to be the principal feature arising in this case under subs (3), namely whether the police deliberately or recklessly disregarded the law about detaining the appellant (cf (3)(e)). The very use of the terminology of subs (3)(e) shows that his Honour had regard to the section. Having found that they did not (and having earlier found that no other impropriety was involved in the interrogation of the appellant) his Honour declined to reject the evidence on public policy grounds.

His Honour did not mention that it was for the Crown to justify the admission of the evidence and not for the accused to justify its rejection, but that fact does not persuade me that his Honour did not carry out the balancing process required by subs (1). Although for clarity's sake it may be desirable when applying the test imposed by a particular section to state it in terms, it is not essential to do so. Given his Honour's findings of fact, the only circumstance that could have weighed against the admission of the evidence was the length of the detention itself. In my opinion his Honour was entitled to regard the other considerations as outweighing it, namely the probative value and the importance of the evidence and the fact that the contravention by the police officers was not deliberate or reckless. I think that his Honour's decision to admit the evidence was a proper exercise of discretion.

It is convenient to deal with the two remaining grounds together. They are that the trial judge's summary of evidence in relation to whether or not the jury should accept the typed record of interview was misleading, and his directions to the jury in relation to the disputed confession in the record were inadequate.

In question 56 of the record of interview Detective Senior Constable Davis drew the attention of the appellant to a number of items of automotive equipment and asked whether he could tell him where they came from. The appellant is recorded as having replied that he thought it came from the white Commodore that had the plates NYU-841. That was the vehicle the subject of the second charge and its owner was Mr Holton, who gave evidence. During the summing up, his Honour was dealing with the record of interview and inviting the jury to look at other evidence for signs that might assist them in determining whether the statements in it were true. In doing so he referred to a submission in which the Crown prosecutor had apparently invited the jury to conclude that the information imparted in the answer was something the police could not have known about because the evidence of Detective Davis was that he had never spoken to Mr Holton about that matter. His Honour went on to say that Mr Holton had not said that he had told the police officers that that equipment had come from his car.

The second ground of appeal complains that what his Honour said was misleading, because there was simply no evidence whether Mr Holton had or had not said anything to the police on the topic.

It seems to me that all his Honour was doing was reiterating an argument put by the Crown prosecutor. It is a minor matter. It did not seem important enough to defence counsel to ask his Honour to correct or add to what he had said. In the circumstances leave is required and I would refuse leave to rely on this ground.

The remaining ground asserts that his Honour erred in the manner in which he drew the attention of the jury to the inconsistent versions of the police on the one hand and the appellant on the other. It was submitted that the matter was couched in terms of a choice between the police telling the truth and the appellant's telling the truth and that his Honour failed to direct the jury as to the third possibility, that is, that the jury might not be able to tell where the truth lay.

His Honour's directions about the truthfulness of the witnesses were interspersed with a McKinney and Judge direction and a rehearsal of the competing arguments as to the truthfulness of one version or the other. At SU20-21 his Honour said:

"Now ladies and gentlemen given all of those circumstances it is not always an easy matter to decide which of witnesses is telling the truth. Here you have to make a clear cut decision and in saying that I remind you that ultimately you have to be satisfied beyond reasonable doubt that the police are telling the truth if you are going to act upon those confessions to convict the accused. But speaking generally here you have to make a clear cut decision as to who is telling the truth. Either the accused is telling substantially the truth or the police officers are telling substantially the truth. I repeat it is only if you are satisfied beyond reasonable doubt that the police are telling the truth that you could convict the accused on that material."

"... you are sitting in judgment here of whether these two police officers are telling the truth about what occurred at The Entrance on this particular day? Or alternatively, is the Accused telling the truth? But as I say before you can convict him you have to satisfied the police are telling the truth.

Now I give you that warning to remind you that you are not sitting in judgment of the police at large, you are sitting in judgment of these two police officers and whether you accept that they are telling the truth."

"I am not attempting to suggest to you that you should not convict upon the basis of the alleged admission. If after considering the matters that I have raised with you, if you are convinced beyond reasonable doubt that the admission were made and that they were true then you should indeed act upon them if that is your finding."

In my opinion the jury would have had no doubt after those directions that they could not convict the appellant unless they were satisfied beyond reasonable doubt that the police were telling the truth about what he had said to them. That may be why defence counsel sought no further directions. There is no substance in this ground of appeal and I would refuse leave to argue it.

In my opinion the appeal against conviction should be dismissed.

The appellant sought leave to appeal against the sentence imposed, but no submissions were made in support. The sentence imposed was clearly within the range of his Honour's discretion and I would refuse leave to appeal.