• Criminal Law Consolidation Act 1935 s19(2);
• Summary Offences Act 1953 s7(1)(a), s79A;
• Bail Act 1985 s13;
• Public Intoxication Act 1984 s7, s10, referred to.
• R v Lobban [2000] SASC 48, applied.
• R v Rankine (Unreported, Court of Criminal Appeal, 18 June 1993, Judgement No S3990.3);
• Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, distinguished.
• Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54;
• Question of Law Reserved (No 1 of 1998) [1998] SASC 6634; (1998) 70 SASR 281;
• Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, discussed.
• The Queen v Swaffield (1998) 192 CLR 159, considered.
• Public Intoxication Act 1984 s11(1), referred to.
• The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321;
• Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54;
• R v Lobban [2000] SASC 48;
• Question of Law Reserved (No 1 of 1998) [1998] SASC 6634; (1998) 70 SASR 281, applied.
• Report of the Royal Commission into Aboriginal Deaths in Custody (1991) , considered.

Counsel: MRS M E SHAW QC - Solicitors: ABORIGINAL LEGAL RIGHTS MOVEMENT INC

Counsel: MR A E SCHAPEL - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2000] SASC 405

[2000] SASC 405

1 BLEBY J. Port Germein is a small coastal town about 28 kilometres north of Port Pirie. It has one police officer. At the date of the offence the subject of this appeal it was Senior Constable Michelle Smith. On 23 May 1999 Constable Smith had occasion to arrest the appellant at Port Germein on charges of failing truly to answer questions, resisting arrest, offensive behaviour and disorderly behaviour. The arrest took place at about 2.15pm. In her cross-examination Constable Smith assented to a description of the appellant at that time as "staggering around on the road", "extremely unsteady on his feet", "eyes glazed and bloodshot", "speech being slurred, with a strong smell of liquor about him", "a common drunk" and "continually staggering around, waving his hands in the air". In order to effect the arrest she applied a capsicum spray to the appellant's face.

2 Constable Smith had been the Port Germein police officer for five years. The appellant was well-known to her as, presumably, was she to the appellant. She had arrested the appellant on several previous occasions for disturbances, some of which had been violent domestic disturbances involving property damage and assaults. She had never been the object of acts of violence of the appellant.

3 Having arrested the appellant, Constable Smith was required to take him to the nearest police station with charging and detention facilities. That was at Port Pirie. During the trip to Port Pirie the appellant was kicking and punching the rear of the cage car and yelling abuse.

4 Capsicum spray causes extreme irritation to the mucous membrane of the eyes, causing difficulty in keeping the eyes open. Its effects are ameliorated by irrigation with water. The appellant was supplied with a bottle of water in the cage car. Shortly after arrival in Port Pirie his face was also sprayed with a water spray.

5 On arrival at Port Pirie and during the charging procedure the appellant was described by Constable Smith as being abusive and aggressive and severely affected by alcohol. His abusiveness became worse once he was placed in the observation cell after being charged with the Port Germein offences. Constable Smith agreed that he appeared irrational and disturbed as well as being "extremely intoxicated". His movements in the charge room were recorded on video tape.

6 Sergeant Dillon, who had charge of the detention facilities at Port Pirie, described the appellant's behaviour at the time of charging as "very very aggressive ... I attributed his aggression towards over-indulgence of liquor and/or drugs".

7 Whilst Sergeant Dillon was attempting to elicit details during the charging procedure the appellant was "most uncooperative". The abuse continued once the appellant was placed in the observation cell. Sergeant Dillon made notes of some of what was said. The language included "Get me a fucking doctor. You burnt my eyeballs you cunt. I want a fucking doctor or I'll sue the arse off you". Another expression was "You white cunts", and after some 15 to 20 minutes, "I will fucking kill you. I will bury the fat cow. I will get you Michelle and your husband. I will bury you, you fucking dog. I will rape the arse out of you and as for the rest of you ..." While saying this the appellant was belting the cell wall or door with his fists.

8 It was because of the appellant's behaviour that Sergeant Dillon arranged for a tape recorder to be placed alongside the observation cell after the appellant had been placed there. This audio tape recorded further abusive language, and requests for medical treatment.

9 The appellant was entitled, of course, to certain statutory rights upon his arrest. Section 79A of the Summary Offences Act 1953 provides as follows:

"79A. (1) Subject to this section, where a person is apprehended by a member of the police force (whether with or without a warrant)--

(a) the person is entitled to make, in the presence of a member of the police force, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and

(b) where the person is apprehended on suspicion of having committed an offence--

(i) the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and

(ii) if English is not the person's native language--the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and

(iii) the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).

(2) The member of the police force who is in charge of the investigation of a suspected offence in relation to which a person has been apprehended may decline to permit--

(a) the person in custody to make a telephone call to a particular person (being a relative or friend); or

(b) a particular person (being a relative or friend of the person who has been taken into custody) to be present at an interrogation or investigation,

if the member of the police has reasonable cause to suspect that the communication between the person in custody and that particular person would result in an accomplice taking steps to avoid apprehension or would prompt the destruction or fabrication of evidence.

(3) A member of the police force must, as soon as is reasonably practicable after the apprehension of a person--

(a) inform that person of his or her rights under subsection (1); and

(b) warn the person that anything he or she may say may be taken down and used in evidence."

Furthermore, s 13 of the Bail Act 1985 provides:

"13. (1) Where a member of the police force arrests a person who is, upon arrest, eligible to apply for release on bail, the member of the police force--

(a) must, as soon as reasonably practicable after delivering the arrested person to a police station after making the arrest, take reasonable steps to ensure that the arrested person and, where the arrested person is a child, any guardian who is present, understands that the arrested person is entitled to apply for release on bail under this Act; and

(b) must ensure that the arrested person and, where the arrested person is a child, any guardian who is present, receives--

(i) a written statement, in the prescribed form, explaining how, and to what authorities, an application for release on bail may be made under this Act; and

(ii) the appropriate form for making an application for release on bail.

(3) An eligible person who has been arrested on a charge of an offence must, if not released beforehand, be brought before the appropriate authority on the charge in relation to which he or she was arrested as soon as reasonably practicable on the next working day following the day of arrest but in any event not later than 4 p.m. on that day."

10 Constable Smith was not party to advising the appellant of any of his rights at any stage. The evidence of Sergeant Dillon, accepted by the Magistrate at trial, was that he had told the appellant that he had a right to make a telephone call to advise a relative or friend of his whereabouts, and that if there was to be an investigation or interrogation he would have access to a solicitor. He was not informed of his right to refuse to answer questions or of his rights to an interpreter. He was not informed that a tape recording was being made of what he was saying in the holding cell. He did not inform the appellant of his rights to bail.

11 Sergeant Dillon was aware that there were outstanding warrants for the arrest of the appellant for non-payment of fines, etc., although he did not have the warrants at the time. At that stage, to his mind, bail was "not a consideration" unless the warrants were to be suspended for some reason.

12 It should also be added that no attempt was made by any of the police officers present to interrogate the appellant concerning the offences with which he had been charged. Sergeant Dillon considered that the appellant was not capable of rational conversation because of mood swings, although he was able to respond to vocal commands if it suited him.

13 It should also be noted that the appellant repeatedly asked for medical attention, apparently for the effects of the capsicum spray and for an alleged complaint of asthma. He claimed he was still suffering the effects of the spray for some time after he was placed in the cell. I will return to consider the timing of these events in more detail.

14 The charges giving rise to the convictions the subject of this appeal were not those relating to his behaviour at Port Germein but those relating to his behaviour at Port Pirie, with particular reference to Constable Smith. Those charges came later, and were not those with which he was charged at about 4.00pm on 23 May.

15 The charges which arose out of the appellant's post-arrest behaviour, and which form the subject of this appeal, concern threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 and offensive language contrary to s 7(1)(a) of the Summary Offences Act 1953.

16 The appellant now appeals against his convictions on those charges.

17 The gist of the appellant's complaint is that the evidence of threats uttered by him forming the basis of the convictions ("the threats") was wrongly admitted into evidence by the Magistrate. It is claimed that there were aspects of impropriety or illegality in the appellant's treatment at the hands of the police. As I understand the appellant's submissions, these alleged improprieties fall under five heads:

(1) failure to administer rights under s 79A of the Summary Offences Act.

(2) failure properly to administer bail rights, or to abide by the terms and intent of the Bail Act;

(3) failure to obtain medical treatment for the appellant while he was in custody, despite his requests for such treatment;

(4) recording the appellant's conversation without his consent; and

(5) denial of the appellant's request for legal assistance.

18 The appellant submits that the Magistrate, in his discretion, should have excluded the evidence of the threats. It is clear that if the threats should have been excluded, it would be pursuant to the so-called "public policy discretion" contained in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. The Bunning v Cross discretion was recently considered in the Court of Criminal Appeal's decision in R v Lobban [2000] SASC 48, and I respectfully adopt Martin J's helpful analysis in that case of the present state of the discretion. He said at paras [27] - [29]:

"While the principles upon which this discretion is based were developed the joint judgment of Stephen and Aickin JJ in Bunning v Cross, the origin of the principles is found in the judgment of Barwick CJ in The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321. In Ireland, the Chief Justice spoke of the principles in the context of '[e]vidence of relevant facts of things ascertained or procured by means of unlawful or unfair acts ...' (p 334). The joint judgment in Bunning v Cross specifically observed that the discretionary process called for in Ireland applied 'only when the evidence is the product of unfair or unlawful conduct on the part of the authorities'.

A natural extension of the circumstances in which the public policy discretion is enlivened occurred in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19. It was held to apply to circumstances in which law enforcement authorities engage in unlawful conduct, not just to obtain evidence, but to procure the commission of the offence for which the accused is later prosecuted. As Brennan CJ pointed out in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at 197, the court has a duty to ensure that it does not exercise its discretionary powers to achieve an objective which 'flagrant and deliberate breaches of the law' are designed to achieve. The majority in Ridgeway (p 32) cited with approval the statement by Deane J in Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 203 which emphasised the need for the courts to ensure that they are not 'demeaned by the uncontrolled use of the fruits of illegality in the judicial process'. Their Honours concluded (p 35):

'At this stage, it suffices to say that, for the reasons given above, it should be accepted that a trial judge possesses a discretion to exclude, on public policy grounds, evidence of an offence or of an element of an offence in circumstances where its commission has been brought about by unlawful conduct on the part of law enforcement officers.'

The majority in Ridgeway also held that the public policy discretion extends to circumstances where a criminal offence has been induced by improper, though not unlawful, conduct on the part of authorities."

19 The basis for the exercise of the discretion is not unfairness to the accused (which is mitigated by another discretion), but rather a policy against the prosecution gaining an advantage by virtue of improper or illegal conduct on the part of investigating authorities. It involves the court using what sanction it can to maintain the proper administration of justice. In Question of Law Reserved (No 1 of 1998) [1998] SASC 6634; (1998) 70 SASR 281, Doyle CJ said at 287:

"The rationale underlying the exercise of the discretion to exclude evidence, if the discretion is so exercised, is that considerations of public policy may require the court to prevent the prosecution from gaining 'curial advantage' by using improperly or unlawfully obtained evidence, and may require the court not to appear to approve of the illegality or impropriety by which the evidence was obtained, by allowing the use of the evidence as part of the prosecution case.

20 The discretion was originally developed in the context of the exclusion of confessions. Clearly, the threats which the appellant says should be excluded are not confessions, but instead constitute the actus reus of a new offence distinct from that for which he was taken into custody. However, it is now clear that the Bunning v Cross discretion has been extended to include non-confessional evidence in an appropriate case: Lobban, per Martin J at para [31]. Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 itself is an example of this extension.

21 The Magistrate touched only briefly on the matter of the public policy discretion, and the extent to which the appellant was accorded his statutory rights following his arrest. He said, at paras [10] - [17] of his judgment:

"... Mr Charles contends that Sergeant Dillon failed to give the defendant his rights under s 79A of the Summary Offences Act. There is an admission by Sergeant Dillon that he gave the defendant some of his rights e.g. the right to make a phone call, but not the rights pursuant to s 79A(1)(b). The s 79A(1)(b) rights relate to any interrogation or investigation to which the apprehended person is subjected to [sic] while in custody. The defendant in this case was not interrogated or interviewed because of his state of sobriety.

Paragraphs (a) and (b) of s 79A(1) also draw a distinction between persons arrested on warrant and person arrested on suspicion. Persons arrested on warrant are only entitled to the telephone call rights in para (a) whereas persons arrested on suspicion are entitled to the rights in both paras (a) and (b). Ref R v Warner (1988) 49 SASR 125.

Although it was stated in evidence that the defendant had outstanding warrants at the time of his apprehension at Pt Germein, it is not clear whether he was arrested for his behaviour at Pt Germein or was arrested pursuant to the outstanding warrants. I assume that it was the former because he was brought to the charge counter at Port Pirie and was charged with offences from Pt Germein. In the circumstances the defendant should have been advised of his full rights under s 79A.

This of course related to the offences from Pt Germein and in my opinion has no relevance to the charges before this court which resulted from the defendant's subsequent behaviour in the cells.

I fail to see how the omission of the s 79A rights with respect to the offences from Pt Germein can in any way have a bearing on offences committed after the defendant was charged, processed and placed in the cells.

Mr Charles also contended that Sergeant Dillon misled the Aboriginal Legal Rights Office when, in his telephone conversation to that office he gave the impression that once the warrants were attended to, and the defendant calmed down, he would be released on bail. In fact, he was not released on bail, he was taken before the Pt Augusta Court the next day and he was refused bail by the Court.

Mr Charles submits that this amounts to illegality and gross unfairness to the defendant. He contends that this is further compounded by the fact that the defendant requested 'legal aid', the inference being that he wanted a phone call to legal aid, and that somebody is heard to say 'No' on the tape. Sergeant Dillon denied that he said that, and there were other people in and about the charge area and, therefore, it was impossible to determine who said it and whether it was in response to the defendant's request for 'legal aid' or for something totally unrelated to it. There seems to be no evidence before this court as to whether in fact the warrants were sorted out and the defendant did calm down sufficiently for the police to consider bail as stated to Aboriginal Legal Rights.

All that is evident from the file is that the defendant was brought before the Pt Augusta Magistrates Court the next day and bail was refused by the Court. I do not believe that this submission by Mr Charles has any merit." (Emphasis added)

"Mr Charles further contended that the overall treatment of the defendant at the hands of the police, including inter alia:

(1) The defendant was denied a request for medical treatment.

(2) He was denied a telephone call to "legal aid" (although Sergeant Dillon rang Aboriginal Legal Rights).

(3) He was not granted police bail as intimated by Sergeant Dillon on the phone to Aboriginal Legal Rights.

(4) The defendant was not advised that he was being audio taped.

(5) The defendant was not at any stage whilst he was in the cells cautioned about his language in the usual police manner.

(6) That he was not given his rights pursuant to s 79A and, in particular, cautioned pursuant to s 79A(3)(b)

amounted to gross unfairness and the court should in the exercise of its discretion exclude all of the evidence including the offensive language and the threats, thus leading to a dismissal of both charges.

However, due to the circumstances and history of this case I am of the opinion that s 79A did not apply to the defendant's behaviour and language whilst in custody in the Port Pirie Police Station cells for the Pt Germein offences and contrary to Mr Charles' submissions I see no reason for excluding the evidence of the defendant's utterances and behaviour, including the evidence on the audio tape." (Emphasis added)

22 It will be necessary to examine several aspects of these comments.

23 The Magistrate found that the appellant should have been afforded his complete rights under s 79A of the Summary Offences Act, and was not. In that respect he was plainly correct. The rights set out in s 79A are entrenched rights which belong to all arrested persons. They impose on an arresting police officer or an officer in whose custody an arrested person is placed a number of corresponding obligations. They may be listed as follows:

1. An obligation to allow an arrested person to make a telephone call to a nominated relative or friend (s 79A(1)(a));

2. An obligation to allow an accused person to have a solicitor, relative or friend present during any interrogation or investigation to which the person is subjected while in custody (s 79A(1)(b)(i));

3. An obligation to allow a person to be assisted at an interrogation by an interpreter, if English is not the person's native language (s 79A(1)(b)(ii)); and

4. An obligation not to require answers to questions where the accused exercises his right to refrain from answering (s 79A(1)(b)(iii)).

24 In addition, the Act imposes the following further obligations on such a police officer:

5. As soon as is reasonably practicable after the apprehension, to inform the person of his or her rights under subsection (1) (s 79A(3)(a)); and

6. As soon as is reasonably practicable after the apprehension, to warn the person that anything he or she may say may be taken down and used in evidence (s 79A(3)(b)).

25 On the Magistrate's findings, the first obligation did not arise because, although the appellant was informed of his right to make a telephone call, he did not seek at any time to exercise that right.

26 The obligations numbered 2, 3 and 4 did not arise because there was no interrogation and it was not likely that there would be. All the evidence that the police needed to prove the offences which occurred at Port Germain was available from Senior Constable Smith. Any reasonable police officer would have realised, in any event, that any attempt to interrogate the appellant about those offences would have been quite futile, given his then state of sobriety, both from the point of view of obtaining rational answers and from the point of view of the admissibility in evidence of any answers obtained under such circumstances. I am therefore prepared to infer that there was no intention on the part of any police officer at Port Pirie on that day to interrogate the appellant about the alleged offences which had occurred at Port Germein.

27 That may explain the reason why the appellant was not informed as to some of his rights under subsection (1)(b). However, subsection (3) does not require the information of those rights to be given only if there is to be an interrogation. That advice must be given regardless of whether an interrogation is then intended, so that there can be no misunderstanding as to the arrested person's rights if he or she considers that an interrogation or investigation may be under way. The obligation is to be informed of those rights "as soon as is reasonably practicable after the apprehension". No-one in this case suggested that the appellant should have been informed of his rights under subsection (1) before the charging process took place at Port Pirie. Nevertheless, it was not properly carried out at that time, when it was reasonably practicable to do so.

28 There was also clearly a failure on the part of the police to warn the appellant that anything that he might say might be taken down and used in evidence - the sixth obligation mentioned above. Whatever intention the police officers may have had about not interrogating or investigating the Port Germein offences, this warning is fundamental. It does not merely warn that the results of an interrogation may be taken down and used, but that anything the arrested person may say may be used in evidence. It includes statements volunteered by an arrested person and not merely statements made as a result of questioning.

29 The obligation is to inform the arrested person of this right "as soon as reasonably practicable" also. The reason for that requirement is obvious. It is so an accused person does not, without warning as to the consequences, proceed to volunteer what might be harmful admissions, the significance of which he might not otherwise be aware, and which he might later regret.

30 However, Mr Schapel for the respondent submitted that it would not have been desirable for the appellant to have been given his complete s 79A rights immediately upon his arrival at the police station, as he was too intoxicated and too distressed to have been able to adequately comprehend the effect of those rights. As I have said, the section refers to the need to inform the arrested person "as soon as is reasonably practicable after the apprehension" of that person. On this subject, there is a dictum of Perry J from R v Rankine (CCA, unreported, 18 June 1993, Judgment No S3990.3). That was a case where an accused was given his s 79A rights at the time of his arrest, while being held face-down on the ground by STAR Force officers and amidst his screams and shouts. The accused was asked whether he understood those rights, and he replied "Yes". Perry J said, at pp 2 - 3 of his judgment:

"In my opinion, to attempt effectually to give the warnings and make the enquiries required by s 79A(1) whilst the suspect is in the position in which the appellant was described to be by Sergeant Connell, is to reduce the statutory procedures to a farce. The obligation is to inform the person of his or her rights "as soon as is reasonably practicable after the apprehension" of the person (s 79A(3)). Informing a person of his rights under the section is intended to afford a real and effective opportunity for the suspect to consider the implications of his position, and so far as is possible to elect whether he wishes to say anything, and if so whether he wishes some other person, including a solicitor, to be present during the interrogation. It is unreal to think that the appellant could possibly have applied his mind properly to those matters whilst being held face down on the ground. . . .

Where a degree of violence is thought to be necessary to effect an arrest, the police officer should wait until the process of arrest has been completed and the suspect given an opportunity to settle down and consider his position. Only then should there be any attempt at interrogation, or any attempt to inform him of his rights under the section. Furthermore, if the person arrested appeared to be under the influence of liquor, there should neither be an attempt at interrogation, nor any attempt to inform him of his rights, until he has reached such a state of sobriety as to demonstrate a likelihood that he understands the significance of what might be said to him. I see nothing to suggest that to wait a little while in such circumstances is outside of the rubric of the phrase "as soon as is reasonably practicable". That expression should not be given a meaning which overrides the ordinary dictates of common sense and fairness."

Legoe ACJ and Matheson J, by contrast, were content to state that s 79A had been complied with.

31 While Perry J's remarks were no doubt appropriate in that case, they merely illustrate that what is reasonably practicable will depend very much on the circumstances. In most cases, delay in the administration of rights to arrested persons should be contemplated only in unusual circumstances. In the case of an intoxicated person, the police cannot be expected to be experts in the analysis of when a suspect is sufficiently sober to understand the rights contained in s 79A. Even when moderately intoxicated, some suspects may be capable of comprehending the rights to a sufficient extent to make a difference to their behaviour. A preferable course in circumstances such as the present case might be for the intoxicated suspect to be advised of his or her rights at or shortly after the time of arrest, even if doubts are entertained about the suspect's sobriety and comprehension, and for the rights to be administered again, as a precaution, once it is beyond doubt that the suspect has sobered up and will fully understand the rights. In that way, the risk of volunteering ill-advised statements is minimised from the outset. In this case, far from this procedure being followed, the full complement of rights was not administered to the appellant at any time.

32 However, the Magistrate concluded that as the failure to administer the s 79A rights to the appellant could only relate to the Port Germein offences, and could have no application to any new offences committed once in the cells at Port Pirie so far as the Bunning v Cross discretion is concerned.

33 What is the effect of that non-compliance on the evidence sought to be led by the prosecution? It does not affect the validity of the original arrest, which has not been called in question. In my opinion, it does not render the detention unlawful. It would clearly justify the refusal to admit evidence of any conversation tending to show that the appellant was guilty of the Port Germein offences, for which he had been arrested. However, the basis of exclusion of any evidence of that nature is not the public policy discretion of illegally or improperly obtained evidence, even though it may be obtained as a result of impropriety on the part of the police, such as a failure to give the s 79A rights. The basis of exclusion of that type of evidence where the warning has not been given is fairness to the accused: that a confession not shown to be voluntarily and freely given with full knowledge of the rights not to give it, should not, in fairness, be admitted. The evidence would be excluded because it was not a conversation had or an admission made when the accused was fully informed of his rights not to have it or to make it as the case may be. It is the unfairness discretion referred to by Toohey, Gaudron and Gummow JJ in The Queen v Swaffield (1998) 192 CLR 159 at 189 that arises upon a breach of a s 79A obligation. However, the evidence in this case is not of a confessional nature. It has nothing to do with proving the Port Germein offences.

34 Nevertheless, I accept that a failure by a police officer to comply with the obligations imposed by s 79A(3) constitutes unlawfulness and impropriety for the purposes of the public policy discretion to exclude evidence. Can it be said that the failure to inform the appellant of all his rights under s 79A(1)(b) and the failure to warn that anything may be taken down and used in evidence had the effect of causing or inducing the appellant to utter the words which constituted the threat the subject of this present charge?

35 Subject to the appellant's rights to bail, a matter which is referred to below, there was no obligation under s 79A to provide the appellant with access to legal advice generally, merely because he was being held in custody. If he were being held for the purpose of interrogation with a denial of such rights, then the position might well be different: Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 per Gibbs J at 539 - 540. The failure to inform the appellant of his subsection (1)(b) rights can have had no material effect on him because, in fact, there was no attempt to interrogate him and, as I have inferred, no intention to do so. It was not the failure to give that advice which can have caused or contributed to the outburst said to constitute the threats to Senior Constable Smith, or which can have caused or contributed to the offensive language used by the appellant.

36 What about the failure to comply with s 79A(3)(b)? The purpose of that warning is to make an arrested person fully aware that if he chooses to say something which might incriminate him, it may be used in evidence against him in relation to the offence or offences with which he is charged.

37 The words which the appellant used, and which became the actus reus of each of the present charges, were not relevant to the proof of the Port Germein offences. They were alleged, in themselves, to be the subject of new offences.

38 The purpose of the warning required by s 79A(3)(b) is not to warn against committing an offence but to warn against the consequences of saying something about the events for which the person has been arrested and charged. There is no requirement on an arresting officer to warn a person arrested that if, in the presence of a police custodian, the person says or does something which constitutes an offence, evidence may be given of that offence in a court of law. If an offence is committed, evidence of that conduct constituting the offence may be given, including evidence of any conversation forming part of or evidencing an essential element of that offence.

39 Does it make any difference that in this case an essential element of each offence is the speaking of words? In my opinion it does not. The purpose of the warning is not to warn against committing an offence but to warn of the consequences of an admission which might be evidence of some other offence - to protect an accused person from unfairness arising in respect of confessional evidence. As such, a failure to comply with s 79A(3)(b) will seldom give rise to a Bunning v Cross discretion to exclude the evidence.

40 It cannot be said in this case that the failure gave rise to the appellant's outburst, or that it has procured the commission of the present offences, or that it has enabled the prosecution to obtain relevant evidence of the offences: Question of Law Reserved (No 1 of [1998] SASC 6634; 1998) 70 SASR 281 per Doyle CJ at 288. In so far as the appeal relies on the failure to comply with s 79A(3) Summary Offences Act, it cannot succeed.

41 Section 13 of the Bail Act 1985 is set out above.

42 At no stage was the appellant informed of his rights under subsection (1). His argument is that because of that, his continued arrest was unlawful, and that evidence of anything said or done by him after the time that he became entitled to be informed of those rights should be excluded in accordance with the proper exercise of the public policy discretion. I am prepared to assume that, in normal circumstances, the appellant would have been entitled to have been informed of his rights under s 13(1) at the conclusion of the charging procedure and before any of the relevant threats or offensive language was uttered.

43 The short answer to the appellant's contention lies in the Public Intoxication Act 1984. Section 7 of that Act provides that where a member of the police force has reasonable grounds to believe that a person who is in a public place is under the influence of a drug or alcohol and that by reason of that fact the person is unable to take proper care of himself, the member of the police force may apprehend the person and take him to a police station (among other places). The officer in charge of the station may detain the person, but must discharge the person before the expiration of ten hours from the time of apprehension if the person has, in the opinion of the officer in charge, so recovered from the effects of the drug or alcohol as to be able to take care of himself. Section 10 of the Act provides that a person who has been so detained shall, until he is discharged in accordance with the Act, be deemed to be in lawful custody while he is kept in the police station.

44 There was ample justification, if not at the time of his original arrest at Port Germein, at least by the time of his arrival at Port Pirie police station, for the officer in charge of the Port Pirie police station to detain the appellant under that Act. Sergeant Dillon seems to have been aware of that position because, when speaking on the telephone to an officer of the Aboriginal Legal Rights Movement about the appellant, he said that if the appellant did calm down, he could be released on bail. In his mind it was not an option at that time. During that period there was no obligation to inform the appellant of his rights to bail under s 13 of the Bail Act. He had none. That right only arose at the end of what would have been the period of lawful detention under the Public Intoxication Act. The alleged offences the subject of the present charges were committed before the telephone call to which I have referred and while the appellant was severely intoxicated. They were not committed at a time after he was entitled to exercise any rights under the Bail Act.

45 The alleged failure to obtain medical treatment for the appellant while he was in custody, despite his requests for such treatment, requires some closer analysis of the timing of the various events which took place at the Port Pirie police station. Although not the subject of detailed findings by the Magistrate, the sequence of events is reasonably clear because whilst he was in the charge area, movement of the appellant activiated a video tape recording which recorded his movements and conversations, except for a short period while the tape was changed. It did not record conversations while there was no movement. At a later stage, after the appellant had been placed in the holding cell, a portable tape recorder was placed outside the cell to record on audio tape any sounds produced by the appellant. From a combination of the video tape, the audio tape and the evidence of the police officers, the sequence of events is reasonably clear.

46 During the very early part of the charging procedure, whilst the appellant was in the charge area, he complained of burning eyes from the capsicum spray. Two police officers present sprayed his eyes with water. He continued to complain of burning. He was staggering and supporting himself on the charge desk and moving about the area. Within three minutes of his arrival he complained: "I've got bad asthma and that, can you give me some help?". He asked for some toilet paper, which was provided, with one of the police officers saying, somewhat cynically, "It doesn't affect asthma".

47 That was the first of three requests for medical assistance made within one minute, one of which included a request for a doctor.

48 The requests were repeated, becoming steadily louder and more abusive, with continuing complaints of irritation to the eyes and requests for water.

49 During this time, the charging procedures continued. The appellant was searched and the police arranged for the removal of some earrings from him. The process was somewhat extended because of the appellant's intoxicated condition and non-cooperation.

50 His requests for a doctor were ignored. He was then placed in a cell, adjacent to the charge area. He became more abusive, beating on the cell door and windows. It was then that he first uttered the threats and the language the subject of the present charges.

51 After the first of these threats, the audio tape recorder was placed by the cell door. That recorded continuously for some time. From that tape it is clear that the abuse and the threats continued and were interspersed with further requests for a doctor, with complaints of not being able to breathe and of eye irritation.

52 One then hears on the tape Sergeant Dillon's side of the telephone call which he made to the Aboriginal Legal Rights Movement. That call was made in accordance with a protocol whereby Port Pirie police would inform an officer of the ALRM whenever they held an Aboriginal person in custody. The content of the conversation is not now relevant for present purposes, but it was only after that, and after the appellant had uttered the threats and the abusive language that the appellant later made requests, in very general terms, for legal assistance.

53 It can therefore be seen that at the time when the appellant was placed in the cell, shortly before he uttered the material threats and abusive language, he had made several unheeded and unacknowledged requests for medical assistance associated with the irritation to his eyes and alleged subjection to an attack of asthma.

54 The appellant's increasingly offensive language and ultimately the threats directed at Senior Constable Smith would appear to have been a direct consequence of a number of factors. The first was the ongoing irritation to his eyes caused by the capsicum spray. Second was the ignoring by police of his concerns over asthma and his requests for a doctor. There was his enforced confinement in the holding cell and, of course, the appellant's intoxication. Absent any one of those factors, the words in question may not have been uttered. One would have to conclude that the failure to respond to the requests for assistance was a contributing cause to the ultimate threats and abusive language.

55 That failure by the police to respond was not unlawful. Was it improper, such as to call for the exercise of a discretion to reject the evidence of the conversations which followed?

56 Three questions arise for consideration. The first is whether the conduct is of a type that could give rise to the exercise of the public policy discretion. Second is whether the conduct caused or contributed to the commission of the offence. If the answer is "yes" to both of those questions, it must then be asked whether it called for the exercise of the discretion to exclude the evidence. The Magistrate only considered one of those questions in relation to this particular conduct. In doing so, he erred, and it now falls to me to consider whether the occasion for the exercise of the discretion arose, and if so, whether it should have been exercised to exclude the evidence.

57 Whilst the test of unlawfulness or impropriety is that used in a number of cases, the principle has its foundation in The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321. There, Barwick CJ (at 334) spoke of the principle arising in the context of evidence ascertained or procured "by means of unlawful or unfair acts". The joint judgment of Stephen and Aikin JJ in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 75 referred to the discretion arising "only when the evidence is the product of unfair or unlawful conduct on the part of the authorities".

58 Martin J, with whom Doyle CJ and I agreed in R v Lobban (supra) at [40] and [41], described the discretion as arising in respect of "unlawful, improper or unfair conduct".

59 Thus, impropriety will extend to unfairness to an accused, but not unfairness brought about by some impairment of the quality of the evidence led at the trial. It is unfairness to an accused by unfairly taking advantage of conduct on the part of the authority in the gaining of evidence or in bringing about the commission of an offence.

60 It is clear that unfairness to an accused is not an essential element. It will often form part of the circumstances giving rise to the exercise of the discretion. But it will not follow that merely because there may have been some element of unfairness or impropriety, the discretion must be exercised against the admission of the evidence. The court is involved in a public policy judgment between ensuring proper standards of conduct on the part of investigating authorities, on the one hand, and bringing to justice those who have committed offences, particularly serious ones, on the other. As Doyle CJ said in Question of Law Reserved (No 1 of [1998] SASC 6634; 1998) 70 SASR 281 at 287 - 288:

"When the court exercises the discretion, it declines to allow the prosecution to make use of evidence obtained through illegality or impropriety, because to do so would be to allow it to benefit by its own wrongdoing, and would give the appearance of approving of the relevant illegality or impropriety. Of course, as the cases make quite clear, the court has to put into the scales as well the importance of securing the conviction of those who commit criminal offences....

If the evidence in question was not obtained by unlawful or improper means, this discretion does not arise. It does not arise simply because the discretion is directed to preventing the curial advantage that would be gained from the use of the evidence, and from avoiding the appearance of approval by allowing the use of the evidence....

But the foundation of the discretion, and its object, do not give the courts a roving commission to search for illegality or impropriety by those responsible for the enforcement of the law. The discretion does not give a power to exclude evidence whenever there is some association between that evidence and illegal or improper conduct, or whenever an attempt is made to bolster prosecution evidence by resort to illegal or improper conduct. To exercise the discretion in that fashion would be to use the exclusion of evidence as a means of punishing wrongdoing by those responsible for the enforcement of the law. That is not the responsibility of the courts. Or, to be more precise, the exclusion of evidence is not the means by which wrongdoing is to be punished by the courts. As the majority said in Ridgeway (at 37) with reference to improper conduct by law enforcement officers in the course of investigating criminal activity:

'A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of an offence with which the accused is charged.'

In other words, the discretion arises when the improper or illegal conduct has procured the commission of an offence or has enabled the prosecution to obtain the relevant evidence."

61 The evidence must therefore have that necessary disqualifying element, or an element that justifies the court expressing its disapproval of the conduct, not merely by verbal expression of disapproval, but by imposing a sanction against the conduct by declaring inadmissible the evidence thereby obtained.

62 If the conduct was undertaken for the purpose of obtaining the evidence or of having the offence committed, that will tend towards a finding of impropriety. One cannot say here that the ignoring of the appellant's pleas for a doctor were undertaken for the purpose of making the appellant commit an offence.

63 The conduct complained of does not consist of any deliberate act, or indeed of any act at all. The complaint is of an omission - a failure to respond in any way to a request.

64 Let me say at the outset that I have enormous sympathy for the predicament in which police officers find themselves in how best to deal with interpersonal relationships in a variety of difficult and often fast-moving situations. How to deal effectively with a severely intoxicated and uncooperative person is one of such predicaments. I can understand and sympathise with the inevitable cynicism that develops to the demands of such persons. That cynicism can only increase with repeated contact, and with attempts to cope with such people who, in custody, may become aggressive and abusive. One can understand a degree of scepticism about a complaint of asthma and inability to breathe while the complainant at the same time seems to have little difficulty in shouting loudly.

65 However, the complaint in this case related to medical disabilities, one of which was certainly actual and one of which may only have been potential. In the case of asthma, it may be frequently recurring. A police officer cannot be expected to know anything of the complainant's medical history or of his ability to diagnose or forecast the onset of a recurring condition. Complaints in those circumstances must be taken seriously. It is not for a medically untrained police officer to determine whether a complaint of this nature is genuine or not, or to take upon himself or herself the determination that it is not.

66 People arrested and in custody, even when intoxicated, are completely disempowered in their ability to command the services or even the respect that others in the community may be able to. They are likely to react to that disempowerment, and to any physical needs that may arise, in a variety of unpredictable ways. The situation is exacerbated when the person concerned is a member of an already socially disempowered section of the community, such as the Aboriginal community. The consequences of ignoring requests of that nature can be catastrophic.

67 So much is clear from a brief perusal of the Report of the Royal Commission Into Aboriginal Deaths in Custody (1991). Whilst the recommendations of the Royal Commission cannot be binding on this Court as prescribing essential standards of police conduct towards Aboriginal people, recommendations 122 - 167 of the Report provide a wide range of recommendations concerning desirable measures to be implemented in respect of the health and safety of persons in police custody. Whilst they are obviously not prescriptive, they are indicative of changing community standards and expectations of conduct to be exhibited by police custodians, in particular in respect of Aboriginal people.

68 In my opinion, it was inappropriate in the present state of community understanding of and insight into the effect of neglect of possible medical needs and requirements of persons in custody to ignore requests of the type that were made in this case, and in the circumstances in which they were made. I am reinforced in that view by the fact that an ordinary common law duty of care is owed by police to persons in their custody in such circumstances. Breach of such a duty, if it results in loss or damage, will render the authority liable in damages to the person injured. To some extent that obligation is reinforced by the requirement of s 11(1) of the Public Intoxication Act (1984) that a person having the oversight, care or control of the person detained pursuant to the Act "who ill-treats or wilfully neglects" that person shall be guilty of an offence.

69 In my opinion this was an omission which was not only inappropriate, but which fell into that category of impropriety or unfairness that gives rise to the exercise of the public policy discretion. It was a neglect which, if allowed to persist, was almost certain, in the circumstances, to give rise to the type of offending which in fact occurred on this occasion.

70 I repeat: I do not consider that the police officers in this case allowed the situation to develop merely for the purpose of encouraging the commission of another offence. However, their inaction almost inevitably had that effect.

71 As to the second question, I believe in the light of the observations that I have made about the events in question, that the failure to react did cause or contribute to the commission of the alleged offences. The Magistrate seems to have been of the same view. He said:

"The defendant wanted his various requests, e.g. doctor, legal aid, blanket, etc to be taken seriously so he made the various 'declarations of hostile intent' hoping to influence the decision making process and obtain some positive advantage."

72 Did the omission call for the exercise of the discretion to reject the evidence? In my opinion, it did.

73 The conduct was not illegal. On the part of the police officers, there was probably not even a conscious apprehension of the impropriety or unfairness. There was nevertheless a conscious failure to act when some ameliorating steps could have been taken. Port Pirie is a reasonably large town. It is not as though there was no prospect of obtaining any medical assistance. It is not insignificant that the conduct had the effect, not of bringing to light evidence of some past offence, but of contributing to the commission of fresh offences.

74 One of the offences charged was a minor indictable offence carrying a maximum penalty of five years' imprisonment. It was reasonably serious. However, in weighing the conflicting public interests involved in the exercise of this discretion, one is permitted to have regard to the circumstances in which the offence was committed. I assume that all the necessary elements of the offence could otherwise be proved, although that too is a matter which was argued on the hearing of this appeal. There was undoubtedly a threat to cause harm to Senior Constable Smith and her husband. The appellant may well, at the time, have intended to arouse the fear that the threat would be carried out. It is not necessary for proof of the elements of the offence that there be an actual fear on the part of the alleged victim that the threats would be carried out.

75 Whilst I am prepared to accept, for present purposes, that, if the evidence were admitted, the offences could be proved, it must be accepted that the threats were substantially influenced by the intoxication of the appellant, and were not necessarily those which he would utter, let alone be likely to carry out, when sober. In my opinion, the circumstances are not such that the public interest in securing a conviction for that type of offence, committed in those circumstances, outweighs what would otherwise be condonation of the impropriety and unfairness, if the evidence were to be admitted.

76 The other matters of which the appellant complains relating to the admissibility of the evidence can be shortly disposed of. There was no illegality or impropriety in video-taping the charge room conduct or in audio-recording the utterances of the appellant after he became aggressive. The purpose of the video-tape was to avoid conflicts of evidence as to events occurring whenever an arrested person is brought to the Port Pirie Police Station. It has the commendable effect of ensuring that, as far as possible, police behaviour will be beyond reproach. That can only be in the public interest.

77 So far as the audio recording is concerned, although some of what was said by the appellant was unclear, it was the best evidence that could be obtained of the actus reus of the offences with which he was charged. It was not put there to entrap him in any way or to obtain an unwitting confession. It was only installed after it became apparent that other alleged offences were being committed.

78 So far as the denial of the request for legal assistance is concerned, the request did not occur until well after the alleged offences had been committed. Whether or not the request was improperly ignored, that can have had no causative effect on the behaviour of the appellant said to constitute the offence.

79 Accordingly, there is no substance in any of these complaints.

80 Other irregularities in police and bail procedures were raised in the course of argument. It is not necessary to rule on these for the purposes of this appeal.

81 In my opinion the evidence, for the reasons I have given, should have been rejected, and it follows from that that the convictions cannot stand.

82 I allow the appeal. The convictions and penalty are set aside. In lieu thereof there will be an order that the information be dismissed.