Criminal Law - Evidence - Confessions and admissions - Statements - Records of interview - Electronic recording - Admissions recorded in notes later confirmed during audio visual record of interview - Admissibility of evidence of admissions - Whether reasonable explanation for police not conducting an audio visual record of interview at the time the admissions were made.

Evidence Act 2001 (Tas), s85A.

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Police interrogation - Other cases - Improperly or unlawfully obtained evidence - Whether search conducted improperly - Questioning conducted at same time as search and not observed by accused - Whether interview illegally or improperly conducted with accused as a prisoner - Whether interview to be excluded.

Evidence Act 2001 (Tas), ss138, 90.

Search Warrants Act 1997 (Tas), s13.

Corrections Act 1997 (Tas), ss17, 38.

Criminal Law (Interrogation and Detention) Act 1995 (Tas), s6.

Sims v Thomas [2007] TASSC 106; (2007) 17 Tas R 114, followed.

R v Em (2003) NSWCCA 374, referred to.

Judgment Number: [2010] TASSC 35

1 The accused has pleaded not guilty to a charge of trafficking in a controlled substance contrary to the Misuse of Drugs Act 2001, s12(1). The Crown case is that on 18 October 2008 the accused had possession of methylamphetamine and cannabis for the purpose of trafficking.

2 On 18 October 2008 police officers and a police drug detector dog searched the accused's home at James Street, Devonport and found a quantity of methylamphetamine and cannabis. Detective Orme questioned the accused and, according to the case presented by the State, the accused made admissions regarding possession of the drugs. Detective Orme made handwritten notes of that conversation. Some eight months later when the accused was an inmate at Risdon Prison serving a term of imprisonment, police officers arranged an interview with the accused at Bellerive Police Station. The duration of the interview was approximately one hour. The audio visual record of that interview shows the accused in prison issue clothing, and with his hands behind his back. He was in handcuffs for the whole of the interview. In that interview Detective Orme read back to the accused his notes of the conversation during the search, and the accused was asked to admit that the notes were an accurate record of the questions and answers. The accused admitted that they were accurate. He was questioned in some more detail about the drugs and made further admissions.

3 A voir dire has been conducted before empanelment of the jury pursuant to the Criminal Code, s361A. I have received evidence from witnesses and heard submissions from counsel. The defence seeks to exclude the evidence of the search of the house and Detective Orme's interview with the accused at the house during the search. The defence also seeks to exclude the entirety of the audio visual record of interview held on 10 June 2009. The objections raised by the defence are as follows:

1 The search was illegally conducted because the police did not permit the accused to observe the search of his premises as he was entitled to do (Search Warrants Act 1997, s13) and the police did not inform him that he was entitled to observe the search. The search evidence was illegally obtained and ought to be excluded pursuant to Evidence Act 2001, s138.

2 The evidence of admissions made by the accused at the house during the search recorded in the handwritten notes of Detective Orme, is inadmissible because the police did not conduct an audio visual record of that interview as required by the Evidence Act, s85A.

3 The evidence of the reading back of the conversation during the audio visual record of interview is inadmissible because of non-compliance with the Evidence Act, s85A.

4 The entirety of the police interview conducted at Bellerive Police Station should be excluded because of the prejudicial impact of the accused wearing prison issue clothing and in handcuffs.

5 The entirety of the police interview conducted at Bellerive Police Station should be excluded pursuant to the Evidence Act, s138, because the questioning was unlawful due to a failure to comply with procedures in the Corrections Act 1997 governing police visiting and interviewing prisoners.

6 The entirety of the audio visual record should be excluded pursuant to the Evidence Act, s138, because the accused was not informed of his rights, including his entitlement to communicate with a legal practitioner as required by the Criminal Law (Detention and Interrogation) Act 1995 ("the CLDI Act"), s6.

1">4 The relevant evidence may be divided into two categories: first, evidence of the search including Detective Orme's questioning of the accused at the time of the search and, second, evidence regarding the audio visual recorded interview eight months later, on 10 June 2009.

5 The evidence from Detective Orme regarding the search evidence was that he and four other police officers attended the accused's home. The purpose of going there was to investigate whether the accused was selling a controlled drug MDMA (ecstasy) and also to investigate offences of possession and use of MDMA. Detective Orme had a search warrant relating to offences of sell, possess a controlled drug, MDMA. There were other people present at the house: a woman, Dana Smith and two men, Luke and Paul Abraham, and two children. People were corralled into the kitchen area, some were already in that area. Detective Orme spoke to the accused in the lounge area. The accused was shown the warrant and Detective Orme commenced questioning the accused. After a couple of questions they entered the kitchen area and Senior Constable Poke asked the accused some questions while they waited for the dog handler and police dog to attend. Detective Orme conducted a written record of interview with the accused. Detective Orme gave evidence that the notes were shown to the accused and signed by him.

6 Detective Orme gave evidence that Detective Sergeant Williams indicated that there were a number of drug items located in the house. Detective Orme went to the bedroom and was shown a bag which contained what he believed to be methylamphetamine.

7 He also saw bags of cannabis in the bedroom. Meanwhile the accused remained in the kitchen as he had done during the search. Detective Orme gave evidence that people were able to move around the house. He said that he did not stop the accused from going anywhere in the house and observing the search. He agreed the accused was not shown the drugs that were located. Detective Orme agreed in cross-examination that he did not inform the accused that he could go and watch the search, and did not inform him that that he was entitled to do so.

8 In cross-examination Detective Orme was asked about the fact that he merely asked the accused, "who owns the bags of cannabis", without specifying the number of bags. Detective Orme's response was that he had said to the accused that he had located a number of bags of cannabis and he had specified the four that were located in the shelf in the lounge room and the six that were located in the bedside drawer in a bedroom, but that that was not recorded in the notes.

9 Detective Orme agreed that the notes of the interview would not contain every word mentioned between him and the accused. He agreed that the accused's house is approximately two kilometres from the police station. He was asked about the option of taking the accused to the police station.

"And there was nothing to stop you from taking the accused to the police station, was there? ... No, but that's not our normal process." (VD 77)

10 Detective Orme gave evidence that he believed the accused was in possession of a bag of methylamphetamine and bags of cannabis, as well as one pill of MDMA. It was not until about a month after the search when he saw the Drug Exhibit Sheet that he appreciated that a number of individual bags of methylamphetamine had been found at the house and that, together with the bags of cannabis, there was an aggregate quantity which reached the statutory quantity deemed to be a trafficable quantity (Misuse of Drugs Act, s3A(1)(e)). On the drug exhibit sheet there was a reference to 16 bags of amphetamine and the weight described as "traces". He then attended the property office in Burnie to check the weight in those bags. He weighed some of the bags, which had been described on the drug exhibit sheet as traces, and found quantities that he considered to be "useable", equivalent to street deals.

11 The accused gave evidence that Detective Orme questioned him off and on for a period of about an hour and a half to forty five minutes. At one point Detective Orme told the accused that he had found a bag "that's got some white stuff in it". He was not given the opportunity to see it. He was not shown any of the other items that were seized. The accused gave evidence that he signed and initialled the notes without reading them because he wanted to get it all over and done with. He was concerned about the effect of the police presence on the children, and once they located the cannabis, he said "can we go down the police station and charge me, take me to court, bail me take me into custody, whatever, I just want to get this away from the kids - my family doesn't need to see this sort of stuff". Detective Orme denied the accused said that or anything along those lines.

12 In cross-examination the accused was asked whether he was allowed to go anywhere in the house and the accused responded no, because he was standing with police being asked questions. The accused agreed during cross-examination that the hand-written notes accurately recorded the questions asked and answers he gave. He agreed he had made a number of admissions to having and using methylamphetamine and cannabis.

13 Detective Orme gave evidence that he conducted a video interview with the accused at the Bellerive Police Station on 10 June 2009. At that time, the accused was a prisoner housed at Risdon Prison. Detective Orme gave evidence that he made arrangements through the "Director" to attend and speak to the accused. He gave evidence that he spoke to Mr Rod McIntosh at the prison about the process, and Mr McIntosh informed Detective Orme that he would transfer custody to him for the purpose of the interview to be conducted at the Bellerive Police Station.

14 Detective Orme gave evidence that on 10 June 2009 he attended the prison and went through a screening process and was directed to the division of the prison where the accused was housed. The accused was brought into the reception area. Detective Orme informed the accused the reason he was there, which was to interview him in relation to the search that had occurred in October the year before. Detective Orme informed the accused that they would go to the Bellerive Police Station and conduct a video interview if the accused was happy with that. Detective Orme gave evidence that the accused said, "Yeah" and "asked if I could take him to KFC, McDonalds on the way". In response, Detective Orme said, "Well, we'll go to Bellerive and see what happens first". In explanation, Detective Orme gave evidence that he had no intention of taking him to KFC or McDonalds.

15 Detective Orme gave evidence that he had to complete paperwork at the prison involving a transfer of custody of the accused and that he did not arrest him.

16 In cross-examination it became apparent that Detective Orme had not spoken to the Director of Corrective Services or anyone known as the Director, but rather he had telephoned the general reception number, and been put through to a male person who could answer his questions in relation to the procedure for removal of a prisoner from the prison. When he collected the accused, he signed a piece of paper placing the custody of the accused into his hands.

17 In cross-examination Detective Orme agreed that at the prison he had not warned the accused of any rights that the accused may have. He did not inform him that the could contact a lawyer. He did not feel there was any need to. Detective Orme agreed that when he asked the accused if he was happy to come to the Bellerive Police Station, the accused asked whether "it could wait until after lunch". Detective Orme said, "We'd need to get on and do it now". He agreed he said to the accused "They'll look after you when you get back", and the accused suggested that they would not. Detective Orme agreed that he did not inform the accused at any stage that he was entitled to a lawyer and that he did not do so because the accused was not under arrest.

18 Questions were asked of Detective Orme about keeping the accused in handcuffs during the interview. He denied that the accused asked to have the handcuffs removed. When asked about the impact on a jury of seeing the accused in handcuffs and prison uniform, he said that there was nothing he could do about that at that particular time. He stated that he did not consider it appropriate to remove the handcuffs. His decision was based on the fact that the accused appeared to be comfortable enough and that the accused was a large person, in custody for other matters. His concern was that other prisoners have been able to get out of the police station before, and he did not want that to occur. During cross-examination Detective Orme stated that he did not make enquiries about whether the accused would have access to his own clothing that could have been worn during the interview.

19 Roderick McIntosh, correctional officer at Risdon Prison, gave evidence on the voir dire. He has held the position of correctional officer for about nine years, and his day-to-day duties involve transferring custody of prisoners or detainees to police officers. The process in place is that a form "Temporary Removal of Prisoner or Detainee" under the Corrections Act, s38, is completed. The prisoner's or detainee's details are completed and the date and time out of the prison facility. It is signed by Mr McIntosh's correctional supervisor and the police officer, before custody of the prisoner is handed over to police. Mr McIntosh gave evidence during cross-examination that he had looked for a copy of the form relating to the accused leaving the prison in June 2009, but could not find it in the time available to him.

20 The accused gave evidence that he had no notice that the police would be attending the prison. He had been exercising in the yard and his name was called over the PA system and he was directed to "processing". Two police officers were waiting for him in that area of the prison. He was asked how he was, and then one of the officers said, "You come with us to do an interview over to Bellerive Police Station". The accused gave evidence that he said, "Do I have to do it now, it's nearly lunch time?" The accused gave evidence that the officers said, "No, we'll go and do it now because they'll fix you up when you get back with some lunch". In cross-examination the accused stated that he thought he had to go with police.

21 The accused gave evidence that there was some further conversation and he was handcuffed before he got in the car. He was driven to Bellerive and he got out of the car and he walked down the street in handcuffs. He asked that the handcuffs be taken off, but the police would not allow it. He described sitting through the interview with handcuffs on as "pretty uncomfortable".

22 The accused gave evidence that he was not given the right to contact a lawyer. He said he was asked about the conversation with police during the search of his house eight months earlier, and the notes that were taken, and he gave evidence that he did not have a clear recollection of that conversation. He agreed the notes were a correct record because his signature was on the bottom of them, and he thought he really had no choice but to agree. In cross-examination he said that he knew in some circumstances he was entitled to a lawyer, but at that stage he was in prison and "things are different down there. Things work different". He did not know that he was allowed to ring a lawyer because he was in custody. His experience was that in the past he could talk to a lawyer before his interview, but this time because he was in custody he did not think he had that right.

1 The search was illegally conducted because the police did not permit the accused to observe the search of his premises as he was entitled to do and the police did not inform him that he was entitled to observe the search.

23 It is argued for the defence that evidence obtained during the search, including the drugs seized, were illegally obtained because the accused did not observe the search of his premises and was not informed by police that he was entitled to observe the search. It was argued that by questioning the accused in a room away from the search effectively denied the accused the entitlement to be present and watch the search being undertaken. It was submitted that the evidence of the search was illegally obtained and ought to be excluded, pursuant to the Evidence Act, s138. The Search Warrants Act contains a provision entitling an accused to be present during a search carried out under that Act. Section 13(1) provides:

"(1) If a warrant is being executed and the occupier of the warrant premises or another person who apparently represents the occupier is present at the premises, the occupier or other person is entitled to observe the search being conducted."

24 It is noted that the Act does not require police to inform an accused that they are entitled to observe the search or to facilitate their presence during the search. The questioning took place on a voluntary basis and the accused was issued with a caution regarding his right to silence. I note that a person in the accused's position was free to decline the interview or refuse to participate in an interview on the basis that they wished to observe the search.

25 On the other hand, I can see that the practice of conducting an interview at the same time as the search can create an impression, and in fact did create the impression in the accused's mind, that he ought to remain with the police during the questioning process. For this reason it is undesirable that an interview take place at the same time as the search away from the place where the search is being conducted. I do not consider the conduct of police amounts to a breach of the Search Warrants Act, s13, but it had the practical effect of undermining the accused's entitlement provided for in that section. There were steps that could have been taken to offset these consequences. Detective Orme could have informed the accused of his entitlement under s13 and offered to delay the interview until after the search.

26 The question arises as to whether there has been any impropriety for the purposes of s138. Section 138 provides, in part:

(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 a 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."

27 The onus of proof in relation to s138 rests on the accused to establish that the evidence was obtained improperly or illegally. Once that onus has been discharged, it is for the Crown to satisfy the Court that the desirability of admitting the evidence outweighs the undesirability of admitting it: see R v Salem (1997) 96 A Crim R 421. In Robinson v Woolworths Ltd (2005) 158 A Crim R 456, the New South Wales Court of Criminal Appeal considered the meaning of "improperly". It was considered that the common law principles regarding the concept of impropriety, set out in Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 should be applied. Basten JA summarised those general principles, and noted the following:

"First, it is necessary to identify what, in a particular context, may be viewed as 'the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be 'quite inconsistent with' or 'clearly inconsistent with' those standards."

28 I consider that it is at odds with the role of law enforcement officers to impede the occupier's entitlement to observe a search being conducted. Section 13 of the Search Warrants Act is an important safeguard for citizens. The reality is that many people, like the accused, would not be aware that they had the right to observe the search, and it is important that the police, by their conduct and engagement with occupiers, should not discourage searches being observed. Otherwise the entitlement is negated. I conclude that there has been impropriety.

29 It is necessary to undertake the evaluation under s138 and assess whether the desirability of admitting the evidence is outweighed by the desirability of not admitting it. I have taken the approach to s138 set out later in these reasons. The evidence of the search is important evidence. The impropriety was not deliberate or calculated to achieve some improper or sinister purpose. To reveal this, I note that there is no suggestion that the drugs found by police were not in the accused's possession, and there is no criticism of the handling of the drugs and items found. In fact, the only advantage to police in doing what was done in this case was that it was more efficient from their point of view, as they were able to attend to two tasks at once - search and interview. It was not a grave instance of improper conduct. This is not a case where there is evidence that the impropriety of their actions in conducting the search at the same time as the interview had been brought to the attention of police in the past, and they continued with an improper practice. In conclusion, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it.

30 It is convenient to deal with the next two objections together:

2 The evidence of admissions made by the accused at the house during the search recorded in the handwritten notes of Detective Orme is inadmissible because the police did not conduct an audio visual record of interview as required by the Evidence Act, s85A, and the exceptions provided for in that section do not apply.

3 The evidence of the reading back of the questioning of the accused during the audio visual record of interview is inadmissible pursuant to the Evidence Act, s85A.

1">31 The Evidence Act, s85A, provides:

"85A Admission in serious offence

(1) Evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible unless -

(a) there is available to the court an audio visual record of an interview with the defendant in the course of which the admission was made; or

(b) if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) could not be made, there is available to the court an audio visual record of an interview with the defendant about the making and terms of the admission or the substance of the admission in the course of which the defendant states that he or she made an admission in those terms or confirms the substance of the admission; or

(c) the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) or (b) could not be made; or

(d) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

(2) A reasonable explanation includes but is not limited to any of the following:

(a) the admission was made when it was not practicable to make an audio visual record of it;

(b) equipment to make an audio visual record of the interview could not be obtained while it was reasonable to detain the defendant;

(c) the defendant did not consent to an audio visual record being made of the interview;

(d) the equipment used to make an audio visual record of the interview malfunctioned.

(3) This section applies only to an admission in the course of official questioning by a defendant who, at the time of making the admission was, or ought reasonably to have been, suspected by an investigating official of having committed the offence."

32 The preliminary question that arises is whether s85A has application to the questioning that took place in this case. The prerequisites for the application of s85A are as follows:

4 at the time of the admission the accused was or ought reasonably to have been suspected by an investigating official of having committed the offence that he was admitting.

33 Some of the key words and phrases are defined in s3 of the Evidence Act. The first prerequisite, "admission" is defined in s3 as:

"'admission' means a previous representation that is -

(a) made by a person who is or becomes a party to a proceeding, including a defendant in a criminal proceeding; and

(b) adverse to the person's interest in the outcome of the proceeding."

34 The phrase "previous representation" and "representation" are also defined:

"'previous representation' means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced;

...

'representation' includes -

(a) an express or implied representation, whether oral or in writing; and

(b) a representation to be inferred from conduct; and

(c) a representation not intended by its maker to be communicated to or seen by another person; and

(d) a representation that for any reason is not communicated; ...".

(a) in the case of a defendant of or over the age of 18 years, an indictable offence that cannot be dealt with summarily without the consent of the defendant; and

(b) in the case of a defendant under the age of 18 years, any indictable offence for which the defendant has been detained; ...".

"'official questioning' means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence; ...".

"'offence' means an offence against or arising under an Australian law; ...".

35 A number of observations may be made about s85A. The provision is a threshold requirement for the admissibility of evidence in a proceeding for a serious offence. If such proceedings do not eventuate, the provision is not enlivened. The application of the provision applies regardless of whether serious proceedings were within the contemplation of the investigating officer conducting the questioning. All that is required is that the officer ought to have suspected, or ought reasonably to have suspected, that the defendant had committed the "offence".

36 In this case, s85A has application to the admissions made by the accused to police during the search. These proceedings are for a serious offence, trafficking in controlled substance. The admissions occurred in the course of "official questioning". There is no question that Detective Orme suspected that the accused had committed the offence of selling MDMA about which he was being questioned. The fact that the proceedings before the Court now are not the proceedings within Detective Orme's contemplation and indeed he did not have in mind a serious offence such as trafficking that could only be dealt with by indictment, is not a material factor in considering the prerequisites for the application of the provision, although as will be seen, it may have a bearing on establishing one of the exceptions in s85A(1).

37 I also consider that the section applies, not only to evidence of the admission made to Detective Orme at the accused's house, but also to the later confirmatory evidence during the audio visual record of interview on 10 June 2009. The section applies to exclude "evidence of an admission" without any other limitation placed on the type of evidence to be excluded. I note that it has not been argued by the State that the section only applies to exclude the admission first made in the course of official questioning, not other indirect evidence of it such as later confirmation that the notes of the official questioning are correct. In essence, I consider that the adoption or confirmation of an admission by an accused must, in itself, be evidence that the earlier admission was made. Both the admission in the course of official questioning, as well as later confirmation of it, are "evidence of an admission" within the meaning of s85A.

38 The next question that arises is whether any of the exceptions specified in s85A(1) apply.

39 Counsel for the State contends that s85A(1)(b) applies. Section 85A(1)(b) provides:

"(b) if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) could not be made, there is available to the court an audio visual record of an interview with the defendant about the making and terms of the admission or the substance of the admission in the course of which the defendant states that he or she made an admission in those terms or confirms the substance of the admission; or ... ".

40 It is submitted by counsel for the State that the second limb of this exception has been met and that there is "available to the court an audio visual record of an interview with the defendant about the making and terms of the admission or the substance of the admission in the course of which the defendant states that he made an admission in those terms or confirms the substance of the admission". That is accepted. However, the exception only applies if an essential prerequisite has been met that the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in par(a) could not be made. Paragraph (a) provides:

"(a) there is available to the court an audio visual record of an interview with the defendant in the course of which the admission was made; or ...".

41 Counsel for the State argues that the reasonable explanation in this case that an audio visual record of the interview referred to in par(a) did not occur, is that at the time the notes were taken, there was no requirement to comply with s85A(1)(a) because the questions were not about a serious offence. It was noted that the questioning was not in relation to a "serious offence". The police located the methylamphetamine unexpectedly during a search for ecstasy and cannabis and the investigation of minor offences. At the time of the search there was no requirement to video any notes. In essence it was submitted that the fact that it was not contemplated that it would be a serious offence, and that it only transpired after the search that a serious offence had been committed, is the reasonable explanation for not conducting an audio visual record of interview in the first place. It was submitted that an inference can be drawn that police do not conduct audio visual records of questioning for minor offences.

42 Insofar as the submissions suggested that there is a requirement for police to conduct audio and visual records of interview for serious offences and not minor offences, that notion is rejected. As noted earlier, s85A is a threshold requirement for admissibility of evidence of admissions and it is not concerned with imposing a legal obligation on police officers as to when they are to conduct an audio visual record of interview.

43 A consideration of s85A(1)(b) reveals that it is not enough that there be a reasonable explanation for the lack of an audio visual record during which the admission was made. Rather, there must have been a reasonable explanation for why the record could not be made. Subsection (2) provides guidance as to what amounts to a "reasonable explanation" and clearly the court may take into account practical considerations:

"(2) A reasonable explanation includes but is not limited to any of the following:

(a) the admission was made when it was not practicable to make an audio visual record of it;

(b) equipment to make an audio visual record of the interview could not be obtained while it was reasonable to detain the defendant;

(c) the defendant did not consent to an audio visual record being made of the interview;

(d) the equipment used to make an audio visual record of the interview malfunctioned."

44 The first question that arises is whether there is a reasonable explanation for why the audio visual record could not be made. I am completely unconvinced of that in this case.

45 The explanation provided by Detective Orme that it is not "normal process" to conduct an audio visual record does not amount to a reasonable explanation. He did not suggest it was not practicable. A distinction between minor and serious offences might well be one observed by drug investigation detectives but no rationale was provided for it. This was not a low-level offence which did not justify the cost and resources of an audio visual record of interview. There were five police officers deployed to conduct the search. Some two to three hours were spent at the accused's home in search and interrogation efforts. In addition, a police dog and dog handler were in attendance. A search warrant was taken out. The offence under investigation of selling ecstasy was obviously of concern. The offence being investigated of selling MDMA could well result in a serious offence of trafficking being laid. That was yet to be decided. The crime of trafficking in a controlled substance is broad enough to encompass selling, and minds may differ as to whether the charge laid should be one of selling or trafficking. Enquiries and further investigation could well reveal the commission of a serious offence. During the search two mobile phones were located and two SIM cards were seized, as were a set of electronic scales and paper with names and addresses on it. A later examination of those items may reveal the commission of a serious offence. During the search some 10 bags of cannabis were located and a bag of what was believed to be methylamphetamine for which, on the accused's admission, he paid the sum of $3,200. Other bags of methylmphetamine were seized and were available to be examined if Detective Orme had explored that further, or had had that drawn to his attention. The police station and video recording facilities were two kilometres away.

46 The onus is on the State to show the existence of a reasonable explanation within the terms of s85A(1)(b) and that has not been done. In these circumstances, I am far from satisfied that there was a reasonable explanation as to why an audio visual record could not be made.

47 Counsel for the State does not rely on any of the other exceptions in s85A(1), and specifically does not rely on s85A(1)(d) covering "exceptional circumstances which, in the interests of justice, justify the admission of the evidence". The concession that this exception does not apply is consistent with the approach taken by this Court with respect to the earlier version of this provision found in the CLDI Act, s8(2)(d): R v Browne [2000] TASSC 105 at par[5].

48 The evidence of the notes of interview at the house, and the evidence confirming the substance of the admission during the audio visual record of interview, is not admissible because it does not comply with the Evidence Act, s85A(1).

49 The defence seeks to exclude the audio visual record of interview on the basis that the accused is shown wearing prison issue clothing and wearing handcuffs. It is argued that this may prejudice the jury. The State contends that the jury are not likely to recognise his clothing as prison clothing, and that the handcuffs cannot be seen in the record because his hands are behind his back noting that only a front view of the accused seated at a table is shown.

50 The accused is shown on the video wearing a distinctive orange long sleeved top. Any juror having had exposure to a prisoner in Tasmania in recent years is likely to recognise the clothing as worn by prisoners. The identification of the accused as a prisoner would be reinforced by the wearing of handcuffs which is obvious from the record of interview. The duration of the interview is approximately one hour and for all of that time the accused's hands are behind his back. It is obvious that he is constrained and there are times when the position of his arms appears awkward.

51 This evidence is unfairly prejudicial in the sense that there is a danger that the jury may use the evidence to make a decision on an improper basis, attaching weight to an irrelevant consideration that the accused was a prisoner and allowing speculation about the reason he was wearing handcuffs to have a bearing on their decision. In short, there "is a real risk that the evidence will be misused by the jury in some unfair way" (R v B D (1997) 94 A Crim R 131). This is not the kind of prejudice that can be satisfactorily addressed by a direction or warning by the trial judge. Given that the trial has not commenced, the appropriate course is to exclude the visual record of the interview and only permit the audio recording to be played to the jury. I can see no prejudice to the accused in taking that course in this trial.

5 The entirety of the audio visual record should be excluded because the questioning was unlawful due to a failure to comply with procedures in the Corrections Act 1997 governing police visiting and interviewing prisoners.

52 It was submitted for the defence that there had been a failure by the Director of Corrective Services to comply with requirements in the Corrections Act regarding police visiting prisoners. In arguing that the evidence ought to be excluded, there was reliance on the Evidence Act, s138, that the interview was improperly obtained, and s90, unfairly obtained.

53 The defence relied on the Corrections Act, s17, relating to visits by police:

(1) A police officer may enter a prison and visit a prisoner or detainee in accordance with procedures determined by the Director.

(2) A prisoner or detainee may refuse a visit from a police officer under this section.

(3) A prisoner or detainee is not required to answer questions asked by a police officer during a visit under this section.

(4) A prisoner or detainee may request a correctional officer or any other person appointed or employed for the purposes of this Act to be present at, or to observe but not hear, any part of an interview between the prisoner or detainee and a police officer visiting the prison.

(5) If a police officer proposes to visit a prisoner or detainee who is in a prison, the Director is to ensure that the prisoner or detainee is advised of his or her rights under this section."

54 The uncontradicted evidence is that the accused was not advised by the Director or his delegate of a right to refuse a visit from police or answer any questions. Furthermore, it is submitted that the temporary removal of the accused as a prisoner was not authorised by the Corrections Act, s38. It was submitted that his removal was not for any purpose in "aid of the administration of justice". Section 38 provides:

"38 Removal of prisoners and detainees in aid of administration of justice

The Director may direct a prisoner or detainee to be removed temporarily from the prison or other place to which the prisoner or detainee has been removed pursuant to this Part to another place in this State for any purpose in aid of the administration of justice or for any other similar purpose that, in the opinion of the Director, requires that such a temporary removal should be made."

55 It was submitted on behalf of the defence that police enquiries and interrogation of a prisoner is not in "aid of the administration of justice".

56 Counsel for the State contended that the Corrections Act, s17, does not apply as it only relates to visits by police and questions by police while visiting, and does not extend to interviews outside the prison. Further, a distinction may be drawn between visits and questioning conducted at the prison, and attendances at the prison by police in order to remove the prisoner. In relation to s38 it was submitted that it is not confined to purposes in "aid of the administration of justice" but extended to any other similar purpose. A police interview is in the interests of justice as a similar purpose.

57 The question for me to decide concerns the meaning and application of the provision in s17 and whether the requirements imposed on the Director in relation to "visits" by police extends to attendances to remove a prisoner under s38. It is logical that a requirement for the Director to advise a prisoner or detainee of his rights would relate to visits for the purpose of questioning by police at the prison, or similar reasons, and not extend to attendances to remove a prisoner or detainee to a police station for questioning or other police enquiries. The Director has jurisdiction and authority over what occurs at the prison but transfers authority to the police for the purpose of questioning outside the prison gates. It is understandable that a prisoner or detainee may require special clarification of his/her obligation to co-operate with police at the prison. If the police create an atmosphere of compulsion outside the prison, then there are standard safeguards in the CLDI Act that would apply, together with the standard obligation of the police to caution about the right to silence. I am unconvinced by the defence argument that the obligation on the Director under the Corrections Act, s17, applies in a situation of a temporary removal of a prisoner under s38.

58 The remaining issue concerns the validity of the authorisation under s38, and in particular, whether s38 applies to police enquiries. In R v Sparkes (1996) 6 Tas R 178, Underwood J (as he then was) considered an authorisation of a prisoner's release into police custody for the purpose of obtaining a blood sample to assist in a police investigation. It was argued that the prisoner's removal was unlawful because of non-compliance with the Prisons Act 1977, s22. Underwood J was satisfied that the removal of the accused was for a purpose in "aid of the administration of justice or other like purpose".

59 I am satisfied that a temporary removal of the accused for the purpose of a record of interview was authorised under the Corrections Act, s38, as a purpose in aid of the administration of justice or similar purpose. It is not necessary for me to determine whether a police interview was, in those circumstances, a purpose in "aid of the administration of justice".

6 The entirety of the audio visual record of interview should be excluded pursuant to the Evidence Act, s138, because the accused was not informed of his rights, including his entitlement to communicate with a legal practitioner, as required by the Criminal Law (Detention and Interrogation) Act, s6.

60 It was submitted by counsel for the accused that when taken from Risdon Prison to Bellerive Police Station for questioning the accused was in custody and he ought to have been informed about his right under the CLDI Act, s6, to communicate with a legal practitioner. It was noted that he should also have been taken before a custody officer in compliance with s15 of the same Act.

61 It was argued by counsel for the State that s6 of the CLDI Act does not apply to this case at all. The accused was not under arrest and not in custody in relation to this matter. Counsel for the State relied on the nexus between s6 and s4 of the CLDI Act to show the Act applies when the person is in custody in relation to the matter the subject of the investigation or questioning.

"6 Right to communicate with friend, relative and legal practitioner

(1) Before any questioning or investigation under section 4 may commence, the police officer conducting the investigation must inform the person in custody that he or she -

(a) may communicate with, or attempt to communicate with, a friend or relative to inform the friend or relative of the whereabouts of the person in custody; and

(b) may communicate with, or attempt to communicate with, a legal practitioner."

"4 Detention of person in custody

(1) Subject to subsection (2), every person taken into custody must be brought before a magistrate or a justice as soon as practicable after being taken into custody unless released unconditionally or released under subsection (3) or under section 34 of the Justices Act 1959."

62 It was submitted that the accused was not taken into custody for the purpose of the Act. The accused was in custody in relation to the sentence he was then serving.

63 There is some assistance gained as to the meaning of "in custody" for the purpose of the CLDI Act. Section 3(2) provides:

"(2) For the purposes of this Act, a person is in custody if he or she is -

(b) under lawful arrest under section 27 of the Criminal Code or a provision of any other Act."

64 It appears from my consideration of arrest powers in the Criminal Code and the Misuse of Drugs Act that there is not a provision in that legislation to provide the police with the power to lawfully arrest the accused without warrant in the circumstances as they existed on 10 June 2009. The submissions that I have received have not addressed the application of s3(2) of the CLDI Act to the present case, but have focussed on whether the accused was under arrest for the matter being investigated. It might be argued that s3(2) of the CLDI Act is not a definitive statement of when a person is "in custody" for the purpose of the Act, and that if a person is under arrest, regardless of the lawfulness of that arrest, then they may be regarded as "in custody". For the purpose of considering the defence objection and to avoid unnecessary delay, I will assume, without deciding, that this lack of power is not fatal to the argument in relation to the CLDI Act. I turn to consider the issue central to the submissions I have received of whether the accused was under arrest at the material time.

65 In State of Tasmania v Stojakovic [2008] TASSC 48, Porter J considered whether a person was "under arrest" for the purpose of the CLDI Act, s3(2). It is apparent from the cases referred to by Porter J that whether or not an accused is under arrest is dependent on the circumstances. Porter J referred to R v Lavery (1978) 19 SASR 515:

"In R v Lavery (1978) 19 SASR 515, King CJ said at 516 - 517:

'The suspect's liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint ...'."

66 In this case there are circumstances that have a bearing on whether in reality the accused was under arrest. I note there is no significant dispute about these relevant circumstances. Detective Orme gave evidence that he informed the accused that, "We would go to the Bellerive Police Station and conduct a video interview if he was happy with that." The accused responded, "Yeah". The accused's account was that the police said, "You come with us to do an interview over to Bellerive Police Station". The accused gave evidence that he responded, "Do I have to now it's nearly lunch time?" On either view I consider that while the words uttered by the police about going to Bellerive for an interview may have been a request, it was the type of request that needed to be complied with and which could not be refused.

67 There is a dispute about whether the accused asked to be taken to KFC or McDonalds (police version), or whether the police offered to take him there (accused) that is not material. There was further conversation that is relevant. Significantly, Detective Orme conceded in cross-examination that after requesting the accused to accompany them to Bellerive Police Station, the accused asked whether it could wait until after lunch. Detective Orme gave evidence that he said to the accused, "We'd need to get on and do it now".

68 The words uttered by Detective Orme with respect to an interview at Bellerive, viewed in the context of the whole of the conversation and the circumstances that existed at the time, did not offer the accused a choice. I note that according to Detective Orme's evidence he had no intention of providing lunch to the accused. The accused's request to defer until after lunch was rejected and no reason was given. The video interview was being conducted many months after the search, presumably at the convenience of police officers. If the accused was not under arrest why could the interview not wait until after the accused had eaten his lunch? No reason is apparent from the evidence. By responding in this way the police officers were indicating that the police schedule was the only valid schedule and the accused's wishes were not a material consideration. There are other considerations which compounded the accused's sense of restraint and compulsion.

69 The accused was a prisoner. At the time of the police attendance at the prison he had been living with restraints on his liberty on a day-to-day basis. He was compelled to attend the police and directed to reception and was not given any choice about whether he saw them or not. His status as a prisoner was maintained by the treatment he received once he was transferred to their custody. He was placed in handcuffs by the police and kept in handcuffs in the police vehicle, in the street and while in the police station. It was apparent from his evidence that he felt conscious of being seen in the street in handcuffs. The fact that he was in prison clothing and wearing handcuffs was mentioned by the accused during the interview and it is apparent that he was aggrieved by it.

70 The accused was not informed that the treatment of him as a prisoner outside the prison, including the use of the handcuffs, arose from his status as a prisoner and not in relation to the matter being investigated. The police officers could easily have dispelled the sense of compulsion in connection with the matter being investigated and conveyed to the accused that his liberty on that matter was not under restraint. The police officers could have said to the accused words to the effect that he was under no obligation to come with them but he may do so if he wished to.

71 I conclude that the accused was under arrest for the purpose of the CLDI Act, s6. I assume for the purposes of considering the defence argument that the accused was "in custody" for the purpose of the CLDI Act, s6. Noting the finding I have made and the assumption that I have mentioned I proceed on the basis that the police officers acted in contravention of s6 by not informing the accused that he may communicate with a legal practitioner.

72 The audio visual record is sought to be excluded on the basis of the Evidence Act, ss138 and 90. In relation to s138, it is for the Crown to satisfy the Court that the desirability of admitting the evidence outweighs the undesirability of admitting it. In Sims v Thomas [2007] TASSC 106; (2007) 17 Tas R 114, at pars[7] - [8], Evans J considered the approach to be taken to s138, and following R v Camilleri [2007] NSWCCA 36; (2007) 169 A Crim R 197, and R v Em [2003] NSWCCA 374, he emphasised that the balancing process involves an evaluation and comparison of whether the desirability of admission outweighs the undesirability of admission. These are competing public interests involving "obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders": R v Camilleri (above) McClellan CJ at CL at par[31]. Matters of prejudice and ensuring a fair trial for the accused are not paramount when undertaking the evaluation required by s138. I follow that approach in applying s138 to this case.

73 In considering whether the desirability of admitting the evidence outweighs the undesirability of doing so I consider the following matters are significant. The evidence is highly probative and important in the proceedings. The contravention by police was not a grave instance of impropriety and arose from inadvertence and a failure by police to be conscious of the accused's circumstances. Detective Orme himself did not attempt to deliberately create the impression that the accused was under arrest or in custody in relation to the matter he was investigating. Significantly, I accept that Detective Orme did not consider that the accused was under arrest at the time of the interview and indeed, this was the reason why he did not inform the accused that he could contact a legal practitioner. Detective Orme's reasons for keeping the accused in handcuffs, namely, that the accused was a large person and as a prisoner, might be motivated to escape, were valid considerations and I accept genuinely held reasons, but on their own, amounted to an inadequate justification for that treatment of keeping him in handcuffs for the duration of the interview. However, it was unthinking treatment of the accused as a prisoner rather than a deliberate attempt to be overbearing.

74 I am positively persuaded that the desirability of admitting the evidence outweighs the undesirability of admitting it.

75 The Evidence Act, s90, allows the Court to refuse to admit evidence of an admission adduced by the prosecution if, having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence. Section 90 provides:

"90 Discretion to exclude admission

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if -

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."

76 In Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159, it was stated in the majority judgment that this provision is intended to invest a broad discretion in the court which may take into account all the circumstances (par[91]). The purpose of the discretion is "the protection of the rights and privileges of the accused" (par[78]).

77 The onus is on the accused to show that the evidence should be rejected on this basis (Donnelly (1997) 96 A Crim R 432). A useful statement about s90 and the purpose of the discretion is the judgment of Howie J in R v Em (above), at 104, with whom Ipp JA and Hulme J agreed:

"It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated."

78 I consider the following matters have significance in determining whether there is unfairness arising from the use of the admissions by the prosecution. I accept the accused's evidence that while, in other situations he had been informed by police and was aware that he had a right to contact a legal practitioner, he did not appreciate he had that right in this situation. A consideration in favour of admitting the evidence is that I am not satisfied that the failure to inform the accused that he was entitled to contact a legal practitioner had any real consequences for the accused. I am not convinced the accused would have contacted a legal practitioner. Further, he was well aware of his right to silence, he exercised that right during the interview and refused to answer some questions, He was informed by Detective Orme of that right and the standard form caution was issued to him.

79 There is no suggestion that in giving answers to police during questioning the accused felt overborne or gave answers that were in any respect unreliable. Counsel for the State drew my attention to a number of aspects of the interview in which the accused made self-serving statements and was not influenced by the questioning style of police. There were other instances when he refused to answer questions. He was not compelled in any way to make admissions that were not truthful. During the interview he was effective in looking after his own interests. He made exculpatory statements and effectively improved his position by giving answers that his use of drugs was greater than he had suggested during the interview at the time of the search, undermining the State's case that his possession was for the purpose of trafficking.

80 In the circumstances of this case I cannot detect any forensic advantage that has been obtained unfairly by the State by the failure of interviewing police to inform the accused of a right to communicate with a legal practitioner. It would not be unfair in the circumstances to admit the evidence of the accused's admissions.

81 For the reasons I have given, the evidence of the admissions made to Detective Orme during the search and confirmed during the audio visual record of the interview on 10 June 2009 is not admissible and it is excluded. The balance of that interview and the evidence of the search is not excluded. However, only the audio recording of the interview may be played to the jury.