The Queen v Meade

Supreme Court of Victoria|2013-05-17|Before: WEINBERG JA

CRIMINAL LAW - Trial - Murder - Accused charged with having murdered his former wife in Melbourne in July 2011 - Search conducted of accused's premises in South Australia approximately seven hours after police first attended at crime scene - South Australian police acting as agents of Victorian police - Application to exclude evidence of certain statements and gestures reportedly made to South Australian police - Accused not cautioned - Execution of search warrant not recorded - Whether evidence obtained in consequence of an 'impropriety' - Whether accused ought to have been cautioned - Whether accused relevantly 'in custody' - No sufficient evidentiary basis to have accused arrested at time of execution of search warrant - Whether execution of search warrants ought to have been recorded - Accused not viewed as a 'suspect' by investigating official at relevant time - No objective basis for suspicion - Consideration of terms 'suspicion' and 'belief' in context of statements made by accused persons in course of police inquiries - Application refused - George v Rockett [1990] HCA 26; (1990) 170 CLR 104, applied -

1 The accused is charged with having, on 1 July 2011, bludgeoned his former wife, Sally Brooks, to the head with such force that she died some ten days later. His defence is essentially one of alibi. He claims that he was not in Melbourne on the day she was attacked. Rather, he was in the Molesworth area, having spent several days prospecting for gold. He says that he left Molesworth at about 10:00am that day, and drove directly back to Adelaide where he lived. He arrived there late that evening.

2 The Crown seek to lead evidence of several statements (or gestures) that the accused made during the course of a search that was conducted at his home in Adelaide at about 12:10am, South Australian time, on the morning of 2 July 2011. That search was conducted pursuant to what is known in South Australia as a 'general warrant'. The defence does not object to evidence of the search itself being led, nor to the product of that search being tendered in the trial. It does, however, object to the evidence of the accused's statements.

3 It is necessary to identify with precision the particular statements and/or comments attributed to the accused by the South Australian police, and to explain their potential significance in the trial. However, before doing so, it may be useful to set out very briefly something of the background facts to this case.

4 The accused and the deceased first met in the mid 1980s. After a short relationship they parted, and the deceased returned to England. Eventually, they came together again and were married in January 1999. Their relationship was at times turbulent. Eventually, in February 2009, they divorced. There were three children of the marriage. As at July 2011, they were aged 10, 9 and 7.

5 The deceased had been born in England, and had family there. After the divorce, she decided that she, together with the children, would return to live permanently in England. There was an acrimonious dispute about this between the accused and the deceased. Eventually, the matter was resolved, and Family Court orders were made, by consent, allowing the deceased to take the children back to England with her.

6 As would be expected in a case of this kind, the Crown proposes to lead relationship evidence in order to establish that the accused had a motive to kill his former wife. Some of that evidence tends to show the accused in a bad light, at least as regards his treatment of the deceased. The Crown has agreed that with respect to the period prior to late 2008, the evidence will be presented in a broad, and generally neutral, fashion. It is only the period leading up to the divorce, and thereafter, that will be the subject of detailed description.

7 The circumstances surrounding the attack upon the deceased were as follows. On 1 July 2011, she took her children to school in the morning. She then arranged to have her car inspected at a nearby service depot so that a roadworthy certificate could be obtained. After dropping off her car, she then walked back to her home in Limassol Court, Donvale. It seems that she arrived some time after 9am. Shortly thereafter, she was viciously attacked in the laundry at the rear of her house. She was struck a number of blows to the head with a blunt instrument. There was a good deal of blood at the scene. Importantly, for present purposes, police located a footprint in the blood. There is evidence that this was produced by a large man's work boot which was subsequently identified as a 'Redback' model.

8 The deceased was discovered, critically injured, by a neighbour at about 4:30pm. Police were called, and immediately established a crime scene. The homicide squad did not become involved until about 8:00pm. The officer in charge was Detective Sergeant Steven Martin, a member of that squad. The informant in this case, Detective Senior Constable Kyle Simpson, also a member of the Homicide squad, reported to, and worked directly under, Detective Sergeant Martin.

9 The sequence of events relevant to this ruling was as follows. Police ascertained from the deceased's neighbours that she had been formerly married to the accused, and that the relationship had not been harmonious. They learned that she was planning to leave this country permanently on 11 July 2011. They were told that the accused lived in either New South Wales or South Australia, and that he visited Melbourne from time to time to see his children. They were also told that, so far as the neighbours were aware, the accused and the deceased had no direct contact with each other. They were provided with information regarding the accused's possible addresses.

10 Having eventually ascertained that the accused lived in Adelaide, arrangements were made to have him notified, in an appropriate way, of the fact that his former wife had been attacked, and seriously injured. In addition, it was decided that a statement should be obtained from him as to his whereabouts over the preceding day or so.

11 The accused was contacted, and asked to telephone Mr Simpson, in Melbourne. It appears that prior to speaking to Mr Simpson, he had been told of his former wife's situation. During the course of his conversation with Mr Simpson, he was provided with further details regarding what had occurred. He told Mr Simpson that he had not been in Melbourne for a number of weeks. He did not say anything to Mr Simpson about having been in Victoria that very day.

12 Soon after 10:00pm Adelaide time, South Australian police attended at the accused's home, at the behest of Victorian Police, in order to obtain from him a statement as to precisely where he had been throughout that day. That statement was obtained and relayed at once to the investigating officers in Melbourne.

13 The accused, in that statement, acknowledged that he had been in Victoria from about 28 June 2011, but claimed that he had not been to Melbourne for several weeks. As previously mentioned, he had earlier failed to mention to Mr Simpson that he had been in Victoria that day.

14 During the course of this visit to his home, South Australian police noticed a pair of large work boots close to the front entrance of the house. They took particular note of those boots because they had earlier been told by Mr Simpson that a footprint from a large work boot had been left in blood at the crime scene. They told Mr Simpson about the work boots they had seen in the accused's home.

15 For the sake of completeness, it should be noted that in the early hours of the following morning, at about 12:20am Melbourne time, a man by the name of Stefan Wycick, who was a friend of the deceased, spoke with Mr Simpson. Mr Wycick told Mr Simpson various things about the accused and his relationship with the deceased. He conveyed to Mr Simpson that, in his opinion, the accused was responsible for the attack upon his former wife.

16 On the voir dire, Mr Martin maintained that he had not been informed at that stage of what Mr Wycick had said to Mr Simpson. Mr Simpson's evidence was to the same effect. Accordingly, when Mr Martin arranged for a search warrant to be executed upon the accused's home, he was unaware of what Mr Wycick had told Mr Simpson. I should add that there was nothing in either Mr Simpson's notes, or Mr Martin's notes, to suggest that the information provided by Mr Wycick had been conveyed to Mr Martin prior to the search. For the purpose of this ruling, therefore, I proceed on the basis that Mr Martin knew nothing of Mr Wycick's views before he instructed South Australian police to carry out the search.

17 There was a significant body of evidence contained in the depositions regarding what took place during the course of the search. It seems that at least six South Australian police officers were involved. All of them made statements, but none were cross-examined at the committal.

18 As previously indicated, the search was conducted pursuant to a general warrant. Such a warrant is available in South Australian pursuant to s 67 of the Summary Offences Act 1953 (SA). It does not require the approval of a judicial officer. These warrants are, apparently, issued to police officers by the Commissioner, and are addressed to those police officers personally. They authorise those named officers to carry out searches in circumstances where they have reasonable cause to suspect that, at the premises to be searched, 'there is anything that may afford evidence as to the commission of an offence'.[1]

19 Presumably, the South Australian police, having executed this warrant, were satisfied that such 'reasonable cause' existed. They could only have reached that state of satisfaction based upon what Mr Martin had told them.

20 It should be noted that there is no challenge to the validity of the search warrant executed at the accused's home. It is not suggested that the search was in any way unlawful, or that any of the items seized by police were not lawfully taken. Rather, as I have said, it is submitted that various statements made by the accused during the search should be excluded in the exercise of my discretion.

21 When asked to identify precisely the evidence that he sought to have excluded, Mr Morrissey SC identified the following four matters:

The statement by the accused 'I didn't take them [meaning the boots] to Melbourne'.[2] This statement is potentially damaging to the accused's case (based as it is upon his having gone to regional Victoria but not to Melbourne) because the jury may take it to be an admission that he had, in fact, travelled to Melbourne, and lied to police about having done so.
The identification by the accused of clothing he had worn on his trip to Victoria. Mr Morrissey pointed to the following passage in Senior Constable Dunne's statement: 'I asked MEADE to identify clothing he had worn during his trip in the past few days to Victoria. He identified 2 shirts on the bedroom floor next to a blue bag and a pair of beige trousers.' In and of itself, this statement is not damaging. It does, however, link up to various statements that the accused made to his wife, Irina, in the weeks after the deceased had died, and is, to that extent, capable of advancing the Crown case.
The fact that the accused volunteered receipts from his trip to Victoria for the purchase of fuel. Once again, his having done so is innocuous, save for the fact that the accused asserts that he also attended at other stores on his way back to Adelaide. It might be thought that he ought also to have been able to produce receipts from those stores if his account were true.
The identification by the accused of other clothes he had worn during his trip to Victoria, as indicated in the following passage in Mr Dunne's statement: 'I asked MEADE if he had wor[n] any other clothes during his trip and if there was any in the laundry. MEADE took me to the laundry and identified a red checked shirt that was in the washing basket.' This statement must be understood in context, having regard to various things said by the accused to Irina post-offence which suggested that the police had not been thorough in their search.

22 Mr Morrissey submitted that the evidence of these statements, and of the actions attributed to the accused, should be excluded pursuant to s 138 of the Evidence Act 2008 ('Evidence Act') on the basis that it had been obtained 'improperly'. His case, put simply, was that the South Australian police who executed the warrant were obliged, at the very least, to audio record the statements made by the accused, pursuant to s 464H of the Crimes Act 1958 ('Crimes Act'). He submitted that the failure to record that evidence constituted an impropriety of a kind that should not be condoned.

23 Mr Morrissey submitted, in the alternative, that the evidence in question, not having been recorded, should be excluded pursuant to s 90 of the Evidence Act. He submitted that it would be 'unfair' to the accused to admit that evidence in those circumstances.

24 Mr Morrissey advanced a separate and distinct argument as to why this evidence should be excluded. He submitted that the South Australian police had been under an obligation to advise the accused of his right to remain silent before asking him any questions. They had not done so. This was said to constitute a breach of s 464A(3) of the Crimes Act, and thereby to trigger the operation of s 138 of the Evidence Act.

25 Mr Morrissey again submitted, in the alternative, that the failure of the South Australian police to caution the accused triggered the operation of s 90 of the Evidence Act.

26 Two key premises provided the bases for these submissions. First, it was said that, when questioned by the South Australian police during the course of the search, the accused was a person 'suspected' of having committed an offence. Even if he was not, at that stage, so regarded, it was submitted that he ought, on reasonable grounds, to have been so suspected.

27 Secondly, it was said that when the warrant was executed, the accused was relevantly 'in custody'.[3] That being so, the police were under an obligation to caution him before asking any questions.

28 Both Mr Martin and Mr Simpson gave evidence on the voir dire. Each maintained that he had not regarded the accused as a 'suspect' prior to the execution of the search warrant at his home.

29 Mr Simpson acknowledged that the accused was a 'person of interest', and 'on the radar'.[4] However, he insisted that, to his mind, that did not mean that the accused should be regarded as a 'suspect'.

30 Mr Martin's evidence was to the same effect. He emphasised that, as far as he was concerned, there was no basis whatever, at about 12:40am Melbourne time, to have the accused arrested. He said that he would not have contemplated ordering his arrest, in the absence of telling evidence being discovered during the course of the search of the premises. In other words, he had not, at that stage, formed a 'belief' that the accused had attacked Ms Brooks. When pressed as to whether he even considered that the accused 'might have done it', Mr Martin denied replied that he was 'keeping an open mind'.[5]

Was a caution required pursuant to s 464A(3) of the Crimes Act 1958?

31 In order to do full justice to the non-caution limb of Mr Morrissey's argument, it is necessary to set out something of the legislative background to this application.

32 A useful starting point concerns the power to arrest. The pertinent legislative provision, to be found in the Crimes Act, is, relevantly, as follows:

Powers of member of police force or protective services officer to apprehend offenders

(1) In addition to exercising any of the powers conferred by section 458 or by or under any other Act a member of the police force, or a protective services officer on duty at a designated place, may at any time without warrant apprehend any person -

(a) he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard and determined summarily); or

(b) he believes on reasonable grounds has committed an offence elsewhere which if committed in Victoria would be an indictable offence against the law of Victoria (including any indictable offence which may be heard and determined summarily).

...

33 It is instructive to note that s 459 requires the existence of a belief 'on reasonable grounds' that a person has committed an indictable offence. There is clear law to the effect that a 'belief' requires a greater degree of certainty than does a suspicion. Yet, suspicion itself must be grounded on fact.

34 As the High Court said in George v Rockett:[6]

[S]uspicion and belief are different states of mind... Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove'. The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.[7]

35 It should be said at once that Mr Morrissey did not contend that I should find that Mr Martin held a belief, prior to the execution of the search warrant, that the accused had attacked his former wife. As Mr Martin himself rightly observed, if he had held that belief, he could have had the accused arrested.

36 The real question regarding the obligation to caution is whether the accused fell within the terms of s 464A(3). That section requires a caution to be given, but only in circumstances where the person thought to be involved is, relevantly, 'in custody'.

37 The phrase 'in custody' is relevantly defined in s 464(1), as follows:

(1) For the purposes of this Subdivision a person is in custody if he or she is -

(a) under lawful arrest by warrant; or

(b) under lawful arrest under section 458 or 459 or a provision of any other Act; or

(c) in the company of an investigating official and is -

(i) being questioned; or

(ii) to be questioned; or

(iii) otherwise being investigated -

to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.

38 Mr Morrissey relied only upon subsection (c) of this definition of 'in custody'. In other words, he submitted that there was 'sufficient information in the possession of [Mr Martin] to justify the arrest' of the accused prior to the execution of the warrant.

39 Plainly, Mr Martin was the relevant 'investigating official'.[8]

40 One difficulty with Mr Morrissey's submission is that, on no view of the facts, was there, prior to the execution of the search warrant, sufficient information in Mr Martin's possession 'to justify the arrest of [the accused] in respect of' the attack upon Ms Brooks. Indeed, Mr Morrissey acknowledged that, on the state of the evidence led on the voir dire, it was impossible to find that the accused could, at that stage, have been arrested by the South Australian police.[9]

41 Mr Morrissey was correct to make that concession. Section 459(1)(a), which deals with arrests by members of the police force, requires a 'belief on reasonable grounds' that the person to be arrested has committed an indictable offence. As previously mentioned, that involves a significantly greater level of certainty than does mere suspicion. On the evidence, neither Mr Martin nor Mr Simpson held any such belief.

42 Once it is clear that the accused was not in custody within the meaning of s 464(1), there was no obligation on the part of Mr Martin, or the South Australian police, to caution him. Accordingly, this limb of Mr Morrissey's submission, in so far as it is the prelude to an application for discretionary exclusion under s 138, must fail. The same can be said of the non-caution limb of the s 90 argument.

43 There are other difficulties with Mr Morrissey's submission regarding the need to have cautioned the accused. Putting s 464(1) to one side, I have real doubt as to whether, even at common law, the police would have been obliged, prior to the execution of the search warrant, to have regarded the accused as a suspect.

44 There is a considerable body of authority, at common law, dealing with the question when a caution must be issued.

45 In R v Dolan,[10] for example, King CJ, after referring to the English Judges' Rules adopted in 1964, said:

It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution... It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable ground for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions.[11]

46 As previously noted, both Mr Martin and Mr Simpson gave evidence before me that they regarded the accused, at that stage, as no more than a 'person of interest'. They said that the purpose of the search was to locate material with a view to either inculpating or exculpating him. If I accept their evidence, as I do, it does not appear that they regarded the accused as a 'suspect', at least in the sense spoken of by King CJ.

Ought the accused's statements during the execution of the search warrant have been recorded?

48 The critical legislative provision here is s 464H of the Crimes Act, which, relevantly, provides as follows:

464H Recording of confessions and admissions

(1) Subject to subsection (2), evidence of a confession or admission made to an investigating official by a person who -

(a) was suspected; or

(b) ought reasonably to have been suspected -

of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless -

(c) if the confession or admission was made before the commencement of questioning, the confession or admission was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person and the confirmation was recorded by audio recording or audiovisual recording; or

(d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording; or

(e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was recorded by audio recording or audiovisual recording; or

(f) if the confession or admission was made during questioning in accordance with an order made under section 464B(5), the questioning and anything said by the person was recorded by audiovisual recording -

and, if either an audio recording or an audiovisual recording was made, that recording or, if both an audio recording and an audiovisual recording were made, the audiovisual recording is available to be tendered in evidence.

(2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances -

(a) are exceptional; and

(b) justify the reception of the evidence.

(3) If the questioning or confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section or the giving of information is recorded as required under section 464B(5H) or 464G, the investigating official must give to the person or his or her legal practitioner without charge -

(a) if either an audio recording or an audiovisual recording was made, a copy of that recording as soon as practicable but not later than 7 days after the recording was made; and

(b) if both an audio recording and an audiovisual recording were made -

(i) the audio recording as soon as practicable but not later than 7 days after the recording was made; and

(ii) if the person is charged with an offence to which the recording relates, a copy of the audiovisual recording as soon as practicable but not later than 7 days after the person is charged; and

(c) if a transcript of the recording is prepared, a copy of the transcript as soon as practicable but not later than 7 days after the transcript was made.

49 It is interesting to note that the relevant South Australian provision, s 74D of the Summary Offences Act 1953 (SA), also sets out the recording requirements an 'investigating officer' must comply with if that officer 'suspects, or has reasonable grounds to suspect, a person ... of having committed an indictable offence', and proposes to interview that person.

50 By way of background, s 464H was considered by the High Court in both Pollard v The Queen[12] and Heatherington v The Queen.[13] In broad terms, each of those cases dealt with the statutory obligation to record police questioning in the context of an apparent fragmentation of police interviews. No fragmentation of that sort occurred here.

51 As a summary of the general tenor of s 464H, it is useful to refer to the following, generally expressed, comments of Mason CJ, Deane and McHugh JJ in Heatherington:

Despite what was said in the Minister's speech during the second reading of the Bill ((3) Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 22 April 1988 at 1821.), the legislation [that is, s 464H] does not provide that a confession is inadmissible unless the entire interrogation is tape-recorded and the tape-recording is available to be tendered in evidence. Instead, the section expressly allows for the admissibility of evidence of a confession which was not tape-recorded when there are no facilities for recording and the confession is subsequently confirmed (par.(e)) or when the confession occurs before the questioning begins and it is subsequently confirmed (par.(c)). It also allows a court to admit evidence of an otherwise inadmissible confession if the court is satisfied on the balance of probabilities that exceptional circumstances justify the reception of the evidence (s.464H(2)). On the other hand, even where the requirements of s.464H are satisfied, a court retains the ordinary discretion to exclude unfairly or improperly obtained evidence ((4) s.464J(c) and (d) and see, generally, Pollard (1992) 176 CLR at 183 per Mason CJ, 197-198 per Deane J, 219 per Toohey J, 227-228 per McHugh J). Clearly enough, the primary object of s.464H like that of other provisions of Sub-div.(30A) of the Act, is not to protect the guilty from acknowledging guilt but to ensure that alleged confessions or admissions are genuine and voluntary and not unfairly obtained.[14]

52 I note also that s 464H is not confined to admissions or confessions made during the course of 'official questioning',[15] or in the context of a formal interview.

53 Also by way of background, in 1991 the High Court, in McKinney v The Queen,[16] noted that the introduction of s 464H occurred in the context of recording devices becoming being readily available to police. Mason CJ, Deane, Gaudron and McHugh JJ said:

Given the existence and increasing availability of reliable and accurate means of audiovisual recording and given that the decisions in Carr and Duke cannot be satisfactorily reconciled, we are of the view that it is incumbent upon the Court to reconsider the whole question. ... The Court was informed by counsel for the respondent that audiovisual recording of interviews would soon commence in New South Wales and that it was anticipated that every police station in that State would be appropriately equipped within two years. Section 464H of the Crimes Act 1958 (Vic) renders a confession inadmissible in Victoria unless it is recorded. And, in Tasmania, it seems that interviews are routinely recorded, unless occurring in a remote part of the State where equipment is not available. A rule of practice will operate to counter the relative disadvantage accruing to an accused person who is interviewed while in police custody at a place lacking recording facilities. And, as the means of recording become generally available, the absence of a recording will tend to bring the reliability of a confessional statement into issue, thus raising the question whether, in line with what was said in Bromley v. The Queen [1986] HCA 49; (1986) 161 CLR 315, at p 319, and quite apart from anything said in Carr, a warning should be given.[17]

54 I will later return to the question whether any significance attaches, in the context of this case, to the ready availability or otherwise of appropriate recording equipment in South Australia.

Was the accused a 'suspect' at the time of the execution of the general warrant?

55 As I have previously indicated when dealing with the failure to caution limb of Mr Morrissey's submission, the accused was not, in my view, a 'suspect' at the time of the execution of the warrant in South Australia. Nor ought he reasonably to have been so regarded.

56 The term 'suspect' has a long-established meaning in the context of police questioning. As I have previously mentioned, the authorities make it clear that a suspicion that a person has committed an indictable offence falls well short of a belief that they have done so.

57 The starting point in this area is English authority, which stems largely from judicial analysis of the admissibility of confessions by accused persons in police custody following the promulgation of the Judges' Rules in 1912.[18]

58 In R v Voisin,[19] decided in 1918, L T Lawrence J said of the Judges' Rules that:

[They] have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners, contrary to the spirit of those rules, may be rejected as evidence by the judge presiding at the trial.[20]

59 The 1912 Judges' Rules, at least so far as they might be thought relevant to the subject of the present application, stated that 'whenever a police officer has made up his mind to charge a person with a crime he should first caution such person before asking any questions or further questions as the case may be'.[21]

60 In 1964, the relevant rule was amended to refer specifically to the need to caution not only persons to be charged, but also those who are suspected of having committed an offence. It read, in full, as follows:

As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or any further questions, relating to that offence.[22]

61 Notably, this provision set out an objective standard of suspicion, to be assessed on the basis of what evidence was in the possession of the relevant police officer.

62 The status of the Judges' Rules of 1964, and their role, was usefully summarised by the English Court of Appeal in R v Ovenell.[23] There, Blain J, delivering the judgment of the Court (Diplock LJ, Phillimore and Blain JJ), said:

Three things require to be said about the Judges' Rules. First, they are not mandatory upon or even directed to the court at all. They are rules of conduct directed to the police and no more - indeed, to no one but the police, although it is understandable that investigating officers of other services might be thought to be comparably placed with police officers. Secondly, where a statement has been made without caution in circumstances where compliance with the rules would have necessitated a caution, it is a matter for the trial judge to exercise his own discretion as to whether the statement should be admitted or not. No doubt in exercising that discretion, so long as the statement is not inadmissible, he will apply his mind, inter alia, to such factors and principles as the balance between probative value and potential prejudice.[24]

63 In Van der Meer v The Queen,[25] Mason CJ commented upon the application, in this country, of the standards that had been set out in the Judges' Rules. His Honour said:

The Judges' Rules no longer have a part to play in the United Kingdom. They were displaced by the new regime introduced by the Police and Criminal Evidence Act 1984 (UK) which introduced entirely new procedures regulating, amongst other things, powers of arrest and detention and conditions of detention and questioning: see Leigh, "The Police and Criminal Evidence Act 1984: (1) Search, Entry and Seizure", (1985) Criminal Law Review 535.

It has been repeatedly stated that the Judges' Rules do not have the force of law in Australia. It is worthwhile repeating the statement made by the Chief Justices of the Commonwealth, the Australian States and New Zealand at the conclusion of their conference in New Zealand on 1 February 1965. The statement was in these terms:

1. Neither the old nor the new English Judges' Rules have the force of law in Australia or in New Zealand. In considering whether confessional statements made by persons charged with crimes ought to be admitted in evidence the Australian and New Zealand courts have taken into account whether police officers have complied with the spirit of these Rules. But our courts have never regarded compliance or non-compliance as a decisive factor and have always emphasised that it is for the court to take into account all the circumstances of an individual case in determining whether a confessional statement should be admitted.

2. The Australian Chief Justices emphasised that they had no authority to make any such rules. It is for the authorities in charge of the various police forces to make their own rules for the good conduct and guidance of their officers. The judges are always on their guard to ensure that fair conduct is observed by the police in the examination of suspects. The law requires a judge to determine whether in the light of all the circumstances of a case there are such elements of unfairness in the use made by the police of their position in relation to the accused that a confession alleged to have been made by him ought to be rejected. There is a right of appeal against the decision of a judge admitting an incriminatory statement.

This statement reflected the view expressed by Dixon J in McDermott v R (1948) 76 CLR 501 at 514-15: "This court is now invited to lay it down that the practice now obtaining in England must be followed and in particular that the Judges' Rules must be accepted as a standard of propriety. To do so would be to go beyond the function which this court so far has exercised in appeals by special leave in criminal matters. No rule of law has yet been established either here or in England imposing either upon the judge at a criminal trial or upon the Court of Criminal Appeal the duty of rejecting confessional statements if they have been obtained in breach of the 'Judges' Rules' or if they have been obtained by questioning the accused after he has been taken into custody or while he is 'held', though held unlawfully."

In like vein, in R v Lee [1950] HCA 25; (1950) 82 CLR 133, the court said (at 154): "With regard to the Chief Commissioner's Standing Orders, which correspond in Victoria to the Judges' Rules in England, they are not rules of law, and the mere fact that one or more of them have been broken does not of itself mean that the accused has been so treated that it would be unfair to admit his statement. Nor does proof of a breach throw any burden on the Crown of showing some affirmative reason why the statement in question should be admitted.

The court went on to say (at 154): "The rules may be regarded in a general way as prescribing a standard of propriety, and it is in this sense that what may be called the spirit of the rules should be regarded. But it cannot be denied that they do not in every respect afford a very satisfactory standard. ... It is indeed, we think, a mistake to approach the matter by asking as separate questions, first, whether the police officer concerned has acted improperly, and if he has, then whether it would be unfair to reject the accused's statement. It is better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused."[26]

64 Returning now to the content of the Judges' Rules, Lawton LJ, in R v Osbourne,[27] addressed the meaning of the phrase 'evidence which would afford reasonable grounds for suspecting that a person has committed an offence' in r 2 of the 1964 Judges' Rules. His Lordship said:

The rules contemplate three stages in the investigations leading up to somebody being brought before a court for a criminal offence. The first is the gathering of information, and that can be gathered from anybody, including persons in custody provided they have not been charged. At the gathering of information stage no caution of any kind need be administered. The final stage, the one contemplated by rule III of the Judges' Rules, is when the police officer has got enough (and I stress the word "enough") evidence to prefer a charge. That is clear from the introduction to the Judges' Rules which sets out the principle. But a police officer when carrying out an investigation meets a stage in between the mere gathering of information and the getting of enough evidence to prefer the charge. He reaches a stage where he has got the beginnings of evidence. It is at that stage that he must caution. In the judgment of this court, he is not bound to caution until he has got some information which he can put before the court as the beginnings of a case.

On that view of the Judges' Rules the next question is: what information had the chief inspector when he started his interrogation which would have enabled him to put evidence before the court?[28]

65 A restatement of r 2 of the 1964 iteration of the Judges' Rules is now to be found, in the United Kingdom, in paragraph 10.1 of the Code of Practice for the Detention, Treatment, and Questioning of Persons by Police Officers.[29] It states, relevantly, 'a person whom there are grounds to suspect of an offence must be cautioned before any questions ... are put to them'.[30]

66 This provision has been interpreted consistently with the test set out in Osbourne. In particular, it has been said that a 'mere hunch' or 'sixth sense' that a person has committed an offence will not amount to the requisite level of suspicion.[31]

67 Importantly for present purposes, there is also English authority as to the meaning of the term 'reasonable suspicion'. The leading case on this point is the Privy Council's advice in Hussien v Chong Fook Kam.[32] The issue there under consideration was whether a police officer had 'reasonable suspicion' that an offence had been committed, such that he had been entitled to exercise his power to arrest. In a passage subsequently adopted and endorsed in George v Rockett, to which I have already referred, Lord Devlin, delivering the advice of the Privy Council, distinguished reasonable suspicion from prima facie proof. His Lordship said:

The test of reasonable suspicion prescribed by the Code is one that has existed in the common law for many years. The law is thus stated in Bullen and Leake, 3rd ed. (1868), p. 795, the "golden" edition of (1868):

"A constable is justified in arresting a person without a warrant, upon a reasonable suspicion of a felony having been committed and of the person being guilty of it."

Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof. In Dumbell v. Roberts [1944] 1 All E.R. 326 , Scott L.J. said, at p. 329:

The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction; ..."

There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. There is a discussion about the relevance of previous convictions in the judgment of Lord Wright in McArdle v. Egan (1934) 150 L.T. 412 . Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case. Thus the fact that the accused has given a false alibi does not obviate the need for prima facie proof of his presence at the scene of the crime; it will become of considerable importance in the trial when such proof as there is being weighed perhaps against a second alibi; it would undoubtedly be a very suspicious circumstance.[33]

68 I now turn to more recent authority, in this State, upon what makes a person a 'suspect'.

69 In R v Heaney,[34] Phillips CJ, Crockett and O'Bryan JJ put the matter in this way:

The section [s 464H] is not concerned with a state of mind founded upon speculation or "mere idle wondering" (Kitto J in Queensland Bacon Pty Ltd v Rees) but is concerned with a state of mind arrived upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created.[35]

70 In Commissioner for Corporate Affairs v Guardian Investments Pty Ltd,[36] Ormiston J considered the meaning of a statutory provision which enabled the Commissioner for Corporate Affairs to carry out an investigation where he or she had 'reason to suspect that a person' had 'committed an offence [under the Act]'.

71 His Honour noted that the term 'suspect' was common in legislation, but its meaning was not always clear. He expressed a preference for the reasoning of Kitto J in Queensland Bacon Pty Ltd v Rees,[37] where his Honour had said:

In the first place, the precise force of the word 'suspect' needs to be noticed. A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect a fact exists is more than a reason to consider or to look into the possibility of its existence. The notion which 'reason to suspect' expresses in subs(4) is, I think, something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.[38]

My conclusion is that the word "suspect" requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation as to whether an event has occurred or not. In the present case I am not satisfied that the witness Whitehouse had, adapting Kitto J's words, any more than reason to consider or look into the possibility of the existence of offences by one or more persons against one or more of s267, s555 and s556. He had reason to take that course, but I consider that that is not sufficient to constitute a reason for suspecting that any specific offence has been committed by any particular person against any one of those sections. In addition it should be noted that s267 and s556 each describe at least two offences.[39]

73 In applying this line of authority, it is necessary to consider precisely who it is that must have suspected, or ought to have suspected, the accused to have been involved in the attack upon Ms Brooks.

74 On this question, the Victorian Court of Criminal Appeal held, in R v Vollmer,[40] that:

[T]he provision must be interpreted as pointing to the "investigating official" to whom the confession or admission is made. Were it otherwise it would mean that if but one of a large team of police involved in an investigation in fact suspects X, then a confession made to another member of the team, who does not suspect X and who saw no reason to comply with the provisions of subdiv 30A, would not be admissible unless the confession was later confirmed upon a tape-recording.[41]

75 As previously noted, it was accepted that, in the present case, the South Australian police, in executing the warrant, were acting as agents for the Victorian police. Mr Martin agreed with that proposition on the voir dire when it was put to him by Mr Morrissey. He did so because, during the search, the South Australian police acted upon his instructions as to what to seize and what to look out for.[42]

76 The Victorian investigation was, as I have said, conducted under the oversight of Mr Martin. It was he who contacted an Inspector in South Australia for the purpose of obtaining a verbal authorisation in respect of the execution of the warrant.[43] It was he, too, who had telephoned Detective Sergeant Wilson of the South Australian police to discuss the 'items of interest' that had earlier been observed at the accused's home in South Australia, and to discuss with him the use of the general search warrant to secure items of an evidentiary nature. It was that conversation between Mr Martin and Mr Wilson which prompted the execution of the search warrant.[44]

77 Mr Martin said that, during the course of that conversation, he told Mr Wilson that the accused was 'a person of interest'.

78 Mr Martin's state of mind shortly before the execution of the warrant (and by extension that of Mr Wilson, whose knowledge of the matter was sourced from Mr Martin), emerged in the following part of Mr Martin's evidence:

Did you use that term "person of interest" specifically to avoid using the term "suspect"?---No, he wasn't a suspect at that stage. He was a person of interest. That's what was relayed to Detective Wilson.[45]

...

There was certainly no position where there was any justification to arrest Mr Meade. He wasn't at that level and he wasn't in my mind, on the information I received, at the suspect level. He was a person of interest and a person that further inquiries needed to be made to establish whether he's exonerated or he goes up into the suspect category.

MR MORRISSEY: Yes?---And that was my mind at the time I briefed Wilson.

79 Mr Martin later elaborated upon the instructions that he had given to Mr Wilson as follows:

Sergeant Wilson was briefed that Mr Meade at that stage when I asked for the search warrant was a person of interest only, he was not a suspect. He was not to be arrested unless the circumstances came to be, as in a confession or significant evidence was located. At no stage was Mr Wilson told to interview Mr Meade or to give him any formal caution.[46]

80 The two questions to be answered on this application therefore are whether, contrary to his evidence before me, Mr Martin in fact considered the accused to be a suspect at the time he briefed Mr Wilson and gave him instructions as to how to conduct the search, or, alternatively, whether Mr Martin ought reasonably to have been of that opinion.

81 It was put to Mr Martin on the voir dire that Sergeant David Oldfield of the Crime Scene Investigation Unit,[47] who was present at the crime scene, had recorded in his notes, prior to the execution of the search warrant, a description of the accused as a 'suspect'. That could really only be of significance, in the context of this application, if Mr Martin had told Mr Oldfield that he viewed the accused in that light. Mr Martin expressly denied having done so,[48] and was not challenged in that regard. As the Court in Vollmer made clear, it is not to the point that a particular individual connected to the investigation might have considered the accused to be a suspect. The critical issue is whether the investigating official responsible for making decisions in relation to the investigation shared that view.

82 It is useful at this stage to set out the matters of which Mr Martin was aware, as he understood them to be, prior to the execution of the search warrant:

(a) It appeared that the assailant had gained entry to the Limassol Court property through a back window.[49]

(b) The accused and the deceased had had an acrimonious marriage which had ended, some years earlier, in divorce.[50]

(c) There had been issues between them regarding the custody of the children.[51] There had been further issues, more recently, as a result of the deceased's plan to return to England on 11 July 2011, and to take the children with her.[52]

(d) These latter issues had been resolved, in some way, which allowed her to do so.[53]

(e) A neighbour of the deceased, Mr Smith, had said he had not seen the accused for some time, but that there were 'issues' between the accused and the deceased.[54]

(f) The accused had initially said to Mr Simpson, over the telephone, that he had not been in Victoria for some weeks.[55] However, in his statement to the South Australian police, his position had changed. He told them that he had been in regional Victoria for the past few days, and more particularly in the vicinity of Molesworth.[56] He said nothing at that stage about having been to Melbourne.

(g) Molesworth was only about a one and a half to two hour drive from Melbourne.[57]

(h) The assailant had apparently worn a large man's work boot which had left markings in the deceased's blood.[58]

(i) South Australian police had observed a pair of large work boots near the front entrance of the accused's property.[59]

(j) There was every likelihood that the assailant, whoever it may have been, would have got some of the deceased's blood onto his clothing.

(k) No evidence, apart from the footprints in blood, had been found at the crime scene to which the assailant could be linked.

83 It should be remembered that the general warrant was executed at 12:10pm South Australian time. Mr Martin had not arrived at the scene in Limassol Court, Donvale until approximately 8pm, Victorian time. Police had first arrived at the scene at about 5pm. The investigation as to who had attacked Ms Brooks was still very much in its earliest stages as at the time the search warrant came to be executed.

84 In that regard, the comments of the Court of Criminal Appeal in R v Alexander[60] should be borne in mind:

In approaching the matter, the narrowing focus of hindsight must be avoided. In our view it would have been wholly precipitate to characterise the applicant when being questioned in a preliminary way by O'Loughlin at the premises as suspected or a person who ought reasonably to have been suspected within the meaning of s 464H(1). The enquiries were in their infancy... In the ebb and flow of preliminary enquiry, mere advertence by an investigating officer to the possibility of a person having committed an offence falls far short of the purview of s 464H(1)(a) and (b).[61]

85 To be perfectly clear, I accept Mr Martin's evidence that, at the time of the execution of the warrant, he did not consider the accused to be a 'suspect'. I also accept Mr Simpson's evidence that he was of the same view. Nor, in my opinion, would it have been reasonable for Mr Martin (or indeed Mr Simpson) to have regarded the accused as a 'suspect' at that very early stage of proceedings.

86 At the time of the execution of the general warrant, Mr Martin was simply, and very properly, exploring the possibility that the accused may have been involved in the attack upon his former wife. As Whelan J noted in R v Szitovszky,[62] it is 'not sufficient to merely demonstrate that the investigating officer was considering and looking into the possibility that the accused had committed the offence'.[63] I consider that the evidence in this case goes no further than that.

Was the accused 'questioned' or about to be 'questioned'?

87 Turning then to the next aspect of the 'recording' argument, the obligation to record, upon which Mr Morrissey relied, pursuant to s 464H(1)(c), is triggered only by questioning,[64] either actual or imminent.[65] The evidence before me, however, is that the South Australian police were specifically told by Martin not to interview the accused, but only to carry out the search.

88 Of course, it was implicit, given the task at hand, that they would ask any questions that were reasonably incidental to the effective conduct of the search. For example, it could reasonably have been anticipated that they would ask the accused questions such as 'where do you keep your computer?' They might also reasonably expect to get an answer to a question of that sort.

89 In my opinion, questions of that kind do not constitute 'questioning' within the meaning of that term as contemplated by s 464H(1)(c). The fact that the accused volunteered, or 'blurted out', when shown the list of items to be seized that the boots had not been with him on his trip (whether to Melbourne, as the Crown would have it, or to Victoria) does not, of itself, trigger the operation of s 464H. It is not a response to 'questioning' of a kind contemplated by that provision.

90 If, contrary to my finding that the police were under no obligation, pursuant to s 464H, to record anything said by the accused during the course of the search, their failure to have done so constituted an 'impropriety', the question would arise as to whether this evidence should be excluded pursuant to s 138 of the Evidence Act. It is useful to set out s 138 in full:

Exclusion of improperly or illegally obtained evidence

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

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

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning -

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(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.

91 As noted earlier in this ruling, Mr Morrissey submitted that the failure to record the accused's answers to questions put to him during the course of the search meant that the evidence had been obtained 'in consequence of an impropriety' in the sense spoken of in the first limb of s 138(1)(b). As there was no suggestion of the search itself having been illegally carried out, it was not submitted that the evidence of these statements had been obtained 'in contravention of an Australian law' pursuant to the second limb of that provision.

92 One question that may arise is whether any 'impropriety' under s 138 is to be considered, in the context of s 464H, in notional terms, as though the questioning had taken place in Victoria? There is nothing to indicate that the section itself is intended to apply to investigating officials who are not Victorian police, and who are carrying out enquiries in another State. Nonetheless, it is fair to say that South Australia has its own provision which is very similar in its operation to the Victorian section. What, if any, implications flow from this?[66]

93 I note that in R v Workman,[67] the New South Wales Court of Criminal Appeal considered whether a recording of a 'pretext' telephone call with the appellant was admissible. The call was in conformity with Queensland law and Queensland police protocol. Such a recording would, however, have been unlawful had it occurred in New South Wales. It was contended, relying upon s 138 of the Evidence Act 1995 (NSW), that the recording should not have been admitted into evidence.

94 The Court unanimously rejected that contention. Grove J said:

Section 138 is directly focussed upon the obtaining of evidence and in this instance that must refer to the creation of the recording which became the subject of tender, the obtaining of which was indisputably lawful as it was the product of actions in the State of Queensland and governed by Queensland law. The invitation to consider the criminality of what occurred, if it occurred in New South Wales, is to place focus upon the presentation of evidence in distinction from focussing upon its being obtained. I do not need to draw upon it for my conclusion that the appellant's submission should be rejected, but that conclusion seems to me to be more in harmony with the spirit of s 118 of the Commonwealth of Australia Constitution than a conclusion that conduct leading to the obtaining of evidence, expressly declared lawful in Queensland, should be held to have produced improperly obtained evidence by a New South Wales court.[68]

There are Commonwealth and State laws which limit the recording of conversations. They have the common feature of striking a balance between freedom of action and the right to privacy. That involves a judgment which has been exercised by the parliaments of the States with different results. Because the balance is struck in a certain way in this State does not mean that the balance struck differently in another State is wrong or vice versa.

In these circumstances, it cannot have been intended by the parliament of this State, when enacting s 138 of the Evidence Act, that conduct treated differently under such laws, when done in another State and in conformity with the laws of that State, should be regarded as undertaken "improperly" because the conduct would be contrary to laws of this State if done here.[69]

96 As there is no material difference between the law of South Australia and the law of Victoria regarding the need to record police interviews of suspects, it is unnecessary to consider this question in any great detail. Workman does, however, suggest that regard is to be had to the fact that the process adopted was legal in the interstate jurisdiction. On my understanding of the South Australian law, there was no requirement to record the execution of the search warrant.[70] It follows that the statements volunteered by the accused did not have to be recorded.

'Balancing test' under s 138(3)

97 Assuming against the Crown that all of these conclusions are wrong, and that the South Australian police were legally obliged to record anything said by the accused during the course of the search, there is still the question whether this evidence should be admitted in the exercise of discretion. That requires consideration to be given to the balancing process contemplated by s 138. Once impropriety is established, the onus rests upon the Crown to satisfy the Court that the evidence should be received.[71]

98 Section 138(3) sets out a number of factors that the Court is to take into account in exercising its discretion to admit the evidence. The list is not exhaustive, and the matters enumerated should not be treated merely as items on a checklist.[72]

99 First, in my assessment of the probative value of the evidence and its importance in the trial,[73] I consider it to be neither particularly weak, nor, for that matter, especially cogent. It certainly has probative value, although it is recorded in a form that may not be wholly reliable, having merely been noted (broadly contemporaneously), in the statements of police officers who had attended to execute the warrant. For that reason, the context in which the accused's statements (or gestures) were made is difficult to discern with any clarity. There is also no evidence as to the emphasis or tone placed upon certain words by the accused.

100 Against that, depending upon what view the jury take of the evidence, they may regard the accused's statement that he had not taken the work boots seen by police at his premises 'to Melbourne' as an admission that he had just returned from there, and had lied to both Mr Simpson, and the South Australian police, about that fact. Of course, I recognise that the defence may have a number of possible answers to any finding that he had used the term 'Melbourne' rather than 'Victoria'. I have no doubt that some of these answers will be perfectly plausible, and may well find favour with the jury.

101 The evidence concerning the accused's statement about the boots may also take on a somewhat sinister aspect when considered in the light of what the accused said to his wife Irina regarding the inadequacies of the search that the police had conducted, in the weeks and even months after the deceased was attacked. At the very least, that evidence may put the later remarks into context. Those remarks, as recorded on the listening device transcript, include the following:

[The accused]: They didn't have my runners. I was wearing my runners when I came home, they didn't have them, the bloody idiots didn't take them, I put them out in the laundry.[74]

...

Irina Meade: Yeah but it's only because your clothes were clean, but they didn't take the dirty clothes either

[The accused] They didn't take them 'cause they're bloody stupid[75]

...

[The accused]: The very shoes I had they didn't take

Irina Meade Just I know.

[The accused] I don't know why they've kept my boots.

...

Irina Meade: ...[T]hey know your prints, footprints.

[The accused]: They don't even know what shoes I was wearing.[76]

102 Secondly, and turning to s 138(3)(c), the accused is charged with murder, the most serious offence known to our law. The gravity of that crime, on the authorities, suggests that any impropriety associated with the gathering of the evidence should be given less weight than might otherwise be the case because of the strong public interest in ensuring that anyone who has committed this offence is brought to justice. As Spigelman CJ (with whom Blanch AJ agreed, Simpson J dissenting on this point) said in R v Dalley, 'the more serious the offence, the more likely it is that the public interest requires the admission of the evidence'.[77]

103 Thirdly, subsections 3(d) and 3(e) of s 138 of the Evidence Act direct attention to the gravity of any impropriety on the part of the police, and whether such impropriety was deliberate or reckless. On this point, Mr Morrissey submitted that the impropriety arising out of the failure to record the statements made by the accused during the search should be viewed most seriously. That was particularly so given that, in his submission, Mr Martin had deliberately acted so as to deprive the accused of the benefit of having the search recorded. In that regard, he submitted that the use of the term 'person of interest' by both Mr Martin and Mr Simpson to describe the accused had been disingenuous. They knew full well, it was submitted, that the accused was a suspect, and simply set out to deprive him of his rights.

104 Mr Morrissey added that even if I did not take that cynical a view of the actions of the Victorian police, and did not find that their 'impropriety' had been 'deliberate', I ought at least find that they had been 'reckless'.

105 Mr Elston SC, on behalf of the Crown, submitted that, if there had been an impropriety, it had been the result of inadvertence, at worst, on the part of the Victorian police. On no view could it be said that they had deliberately flouted the law.

106 I accept Mr Elston's submission. If there was any impropriety associated with the failure to record the statements made by the accused during the course of the search, it was not deliberate. Rather, it was the product of an oversight on the part of Mr Martin in communicating with his South Australian counterparts.

107 Further, and again assuming there to have been an impropriety, I would not assess it as 'grave'. That is so even though I fully understand that s 464A(3) and s 464H were enacted for the benefit and protection of accused persons. Any putative impropriety occurred not in the context of a formal interview, but during a search of the accused's property. The questions he was asked by the South Australian police did not bear directly upon his guilt or innocence of the attack upon the deceased, but were, rather, reasonable enquiries made for the purpose of facilitating a perfectly lawful search.

108 Fourthly, s 138(3)(f) directs attention to whether the impropriety was contrary to or inconsistent with a right recognised by the International Covenant on Civil and Political Rights ('ICCPR'). Mr Morrissey did not, at first, raise any matters for my consideration on this point. He later raised the possibility that if I found that Mr Martin believed that his client had perpetrated the attack upon Ms Brooks, the provisions of the ICCPR concerning, among other matters, the privilege against self-incrimination, might become relevant. I have already indicated that, in my view, the evidence does not go nearly so far.

109 Fifthly, it was not suggested that 'any other proceeding has been or is likely to be taken in relation to the impropriety'.[78]

110 Sixthly, s138(3)(h) directs the Court's attention to the difficulty (if any) of obtaining the evidence without any impropriety. Mr Morrissey submitted that it would have been easy to have the search, and the accused's statements to police, recorded. He acknowledged that no evidence had been led as to the resources of South Australian police in this regard. On this point, Mr Elston informed me that, having made relevant enquiries, facilities do exist in South Australia for the recording of questions put by police, as they do in this State.[79] That was hardly surprising. He submitted that the better view was that the South Australian police had not recorded what the accused had said because they had been specifically instructed by Mr Martin not to interview the accused. It would be absurd to expect the police to record every interchange between themselves and anyone spoken to about an offence, and the South Australian police had acted perfectly properly.

111 This matter, as it stands, was not explored to any significant degree. In my opinion, it was of little weight in the overall balancing process, having regard to the clear instructions given by Mr Martin that the accused was not to be interviewed.

112 The particular factors which tell most strongly in favour of the admission of this evidence are its contextual importance in providing the background to a series of subsequently intercepted conversations between the accused and his wife Irina, and the fact that the accused has been charged with murder. Given my finding that any impropriety associated with the gathering of this evidence (assuming, contrary to my earlier findings, that there was any such impropriety) should not be viewed as particularly grave, and was the result of oversight rather than deliberate omission, the evidence should be admitted.

113 It follows that, even assuming that my earlier conclusions regarding the absence of impropriety are incorrect, I would nevertheless have declined to exclude the evidence of the accused's statements and communicative gestures during the search conducted at his home.

Reliance upon s 90 of the Evidence Act misplaced

114 As noted earlier in this ruling, Mr Morrissey also relied upon s 90 of the Evidence Act, which is in the following terms:

90 Discretion to exclude admissions

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 an accused to use the evidence.

115 Mr Morrissey's reliance upon s 90 was misplaced. The interaction between ss 90 and 138 of the Evidence Act was considered by the High Court in Em v The Queen.[80] In that case, Gummow and Hayne JJ observed that matters that are to be dealt with by s 138 are not, once the s 138 argument fails, also be considered for exclusion under s 90. Their Honours said:

When it is "unfair" to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. "Unfairness", whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or "safety net" provision.[81]

116 Mr Morrissey's invocation of s 90 ran directly counter to the reasoning of Gummow and Hayne JJ. That is sufficient to dispose of this submission.

117 Mr Morrissey challenged both the failure to caution the accused upon the execution of the general warrant, and the failure to record the search of the Adelaide premises. He submitted that each of these matters gave rise to the exclusion of the accused's responses identified earlier in these reasons, whether under s 138 of the Evidence Act, or s 90.

No caution under s 464A(3) of the Crimes Act 1958 was necessary as the accused was not, relevantly, 'in custody';
The execution of the general warrant in South Australia need not have been recorded because the accused was not, at that point, viewed (either subjectively or objectively), as a 'suspect';
In any event, I would have exercised my discretion under s 138 of the Evidence Act to admit the evidence; and
Section 90 has no role to play in this application.

119 The matters sought to be excluded identified at paragraph [21] of these reasons are admissible into evidence on the accused's trial.

[2] The accused is said by Senior Constable Baldwin to have made this statement. I note that Senior Constable Wilkes' statement records that the only statement the accused made in relation to the boots was 'I didn't even take those away with me'.

[7] Ibid 115 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (emphasis added).

[8] That term is defined in s 464(1) of the Crimes Act to mean 'a member of the police force or a person appointed by or under an Act ... whose functions or duties include functions or duties in respect of the prevention or investigation of offences'. It was common ground that the South Australian police were acting merely as Mr Martin's agents. The critical question is what was in his mind at the relevant time, not what the police in Adelaide were thinking.

[13] [1994] HCA 19; (1994) 179 CLR 370 ('Heatherington').

[18] The historical background to the 1912 Judges' Rules was set out by Parker LCJ in promulgating the 1964 Judges' Rules: [1964] 1 WLR 152. In brief, the 1912 Judges' Rules were the product of a letter sent from Lord Chief Justice Alverstone to the Chief Constable of Birmingham, in response to a request for advice following a circuit where one judge had censured a member of the police force for having cautioned a prisoner, and another had censured a constable for having failed to do so.

[22] Practice Note (CCA: Judges' Rules) [1964] 1 WLR 152, 153 (Parker LCJ).

[27] [1973] QB 678 ('Osbourne').

[29] Being a code of practice issued under s 66 of the Police and Criminal Evidence Act 1984 (UK).

[30] The terms of the caution to be given are set out in para 10.5 of the Code: 'You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely upon in Court. Anything you do say may be given in evidence'. Of course, this caution does not reflect the suspected person's right of silence, and differs from that to be given in this State.

[31] See, eg, Adrian Keane, The Modern Law of Evidence (7th ed, 2008) 384 citing R v Shah [1994] Crim LR 125.

[35] Ibid 532 (citations omitted) citing Walsh v Loughnan [1991] VicRp 75; [1991] 2 VR 351, 356-7 (Vincent J).

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