Supreme Court New South Wales

• Medium Neutral Citation: R v Sumpton [2014] NSWSC 1432
• Hearing dates: 7-10 October 2014
• Decision date: 13 October 2014
• Jurisdiction: Common Law
• Before: Hamill J

Decision

The evidence is excluded.

• Catchwords: CRIMINAL LAW - admissions - admissions influenced by oppressive conduct - unlawful detention - requirement to take suspect before authorised officer "as soon as is reasonably practicable" - improper questioning in earlier interview - improper pressure to change version of events - failure to comply with LEPRA - whether unlawful conduct is also relevant to "oppressive conduct" under s 84 - meaning of oppressive conduct - delay in taking accused before authorised officer.
• Legislation Cited: Evidence Act 1995 (NSW); Law Enforcement (Powers and Responsibilities) Act 2002 (NSW); Police and Criminal Evidence Act 1984 (UK)
• Cases Cited: Em v The Queen [2007] HCA 46; 232 CLR 67; Habib v Nationwide News [2010] NSWCA 34; 76 NSWLR 299; Higgins v R [2007] NSWCCA 56; Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216; McDermott v The King [1948] HCA 23; (1948) 76 CLR 501; R v MM [2004] NSWCCA 364; Palmer v The Queen [1998] HCA 2; 193 CLR 1; R v Clarke (1997) 97 A Crim R 414; Regina v Dungay [2001] NSWCCA 443; 126 A Crim R 216; R v Fulling [1987] 2 All ER 65; R v Heffernan (Court of Criminal Appeal (NSW), 16 June 1998, unrep); R v LL (Court of Criminal Appeal (NSW), 1 April 1996, unrep); R v Taylor (Court of Criminal Appeal (NSW),18 April 1995, unrep); R v Truong (1996) 86 A Crim R 188; R v Ul-Haque [2007] NSWSC 1251; 177 A Crim R 348; R v Ye Zhang [2000] NSWSC 1099
• Category: Interlocutory applications
• Parties: Crown; Andrew Mervyn Sumpton (Accused)
• Representation: Counsel: J McLennan SC (Crown); M Dennis (Accused); Solicitors: New South Wales DPP (Crown); Legal Aid NSW (Accused)
• File Number(s): 2012/165950

Judgment

1 The accused is charged with murder. He seeks the exclusion of a police interview conducted with him on 25 May 2012 ("the impugned interview"). The interview was conducted in a cell adjacent to the charge room of the Grafton Police Station and was recorded by means of a hand held digital recorder. The interview contains significant admissions. The accused submits that the admissions were influenced by oppressive conduct on the part of the police and relies on the provisions of s 84 of the Evidence Act 1995 (NSW). He also submits that it is unfair to use the evidence given the circumstances in which the admissions were made: s 90 of the Evidence Act. Finally, he submits that the admissions were obtained improperly or unlawfully and seeks exclusion of the interview pursuant to s 138 of the Evidence Act.

2 I have found resolution of the objection extremely difficult. It would be a significant step to exclude evidence of the accused's confession to murder. On the other hand, the conduct of the police and the circumstances in which the admissions were made have been subject to very substantial and valid criticism.

3 Submissions on the voir dire concluded at around 3:00 pm on Friday 10 October 2014. Two jury panels were summoned for the trial to commence today (Monday 13 October 2014). I have deferred the attendance of those panels until tomorrow. These reasons have been prepared in that context and are, by necessity, less extensive than the careful arguments of the parties deserve.

THE CASE IN A NUTSHELL

4 Early in the morning of 18 May 2012, police and firefighters attended a house fire at the home of Michelle Roberts in South Grafton. The accused was present immediately outside of the house when the fire brigade arrived. Inside the house, the emergency workers found the body of Michelle Roberts. She was dead. Post mortem examination showed that she died of multiple stab wounds and also had injuries consistent with blunt force trauma. The forensic evidence relating to the fire supports an inference that the fire was deliberately set.

5 It is the Crown case that the accused was attempting to have some form of sexual liaison with the victim and, for reasons that are unexplained, became violent and killed her by stabbing and bashing her. He then attempted to cover up his deed by setting fire to the house. The prosecution case appears to be a powerful one.

6 In the days following the murder, and up until the time of the impugned interview, the accused gave a series of exculpatory accounts to the police. This included a signed statement and recorded interview on 18 May 2012 and an electronically recorded interview consisting of more than 2,500 questions on the evening of 24 May and into the early hours (12:50 am) of 25 May 2012 ("the ERISP"). At some time around 1:00 pm on that day, detectives spoke to the accused in the cells at Grafton police station. He confessed. It is that confession that is subject to this ruling.

THE EVIDENCE ON THE VOIR DIRE

7 The evidence on the voir dire was taken from Tuesday 7 to Thursday 9 October and I received comprehensive and helpful submissions from both counsel on Thursday 9 and Friday 10 October 2014.

8 Exhibit VD-1 is a bundle of documents tendered by the prosecution. It included the statements of relevant police officers, the custody management records, the typed statement signed by the accused on 18 May 2012 and the transcripts of recordings of conversations between police and the accused on 18 May 2012, 19 May 2012, 24 May 2012 (2) and 25 May 2012.

9 Exhibit VD-2 is a CD containing an electronic copy of the audio recording of the impugned interview. This recording was played in Court on the first day of the voir dire.

10 Exhibit VD-3 is a certificate of analysis relating to the DNA analysis.

11 Exhibit VD-4 is a transcription of the Duty Book of Detective Burke relating to events of 25 May 2012 and in particular arrangements to get the accused to Court on that day.

12 Exhibits VD-5 and VD-6 are respectively a transfer note and a detention warrant extending the statutory investigation period.

13 Exhibit VD-7 is the Crown case statement and this is supplemented by exhibit VD-8, a statement of Andrew John Hayes dated 8 October 2014. The latter document emerged upon material being produced on subpoena for the purpose of the voir dire.

14 Detectives Sippel and Burke (who conducted the ERISP and the impugned interview) gave evidence as did Officers Williams, Ruehe, Gibson and Osborne, each of whom played some role in the management of the accused while he was in police custody. The accused also gave evidence.

15 In addition to the documents and oral evidence, a view of relevant places at the Grafton Police Station was conducted in the presence of the accused. Inspector Gillette played the role of "pointer" or "shower" and he gave short evidence on the voir dire.

THE PROSECUTION CASE

16 As I have said, the prosecution case against the accused appears to be a powerful one. In point form, it is to the following effect:

• The accused was with the deceased shortly before she was killed.
• The accused was present at the scene after she was killed and when fire fighters arrived.
• Evidence of three separate seats of fire supports the conclusion that the fire was deliberately lit.
• The cause of death was multiple stab wounds and Ms Roberts also suffered a number of other injuries consistent with her having been severely beaten.
• The deceased had her underpants around her knees supporting the inference that there was some form of sexual encounter before she was killed.
• The accused had a number of scratch marks on his body.
• The accused had a burn to his hand.
• The accused asked a neighbour (Darius Ohlsen) to support a false version to the police as to how he had obtained the scratch marks (that he had fallen from a chair).
• The accused told a number of deliberate and material lies, supporting a consciousness of guilt. These included (but are not limited to):

Lies as to what he was wearing.

Lies as to his inability to have sex or his lack of interest in sex.

• The accused demonstrated a consciousness of guilt by:

Washing his clothing and shoes shortly after the murder.

Requesting his neighbour to perpetrate the false account as to how he obtained his injuries.

• The ERISP contains answers that are either demonstrably false or risible.
• On admission to the Grafton Correctional Centre, the accused made admissions to a Co-ordinator (Andrew Hayes) in which he said that he had been with the victim drinking all day, that he blacked out and "woke up with blood all over himself and she was a mess". He told Mr Hayes that he set the place on fire because "she was fucked and I had to get rid of the evidence". Mr Hayes made notes of this conversation shortly afterwards.
• While sharing a cell with a man ("ZS") the accused made substantial admissions including that he had "flipped out" and used a "serrated knife" to stab the victim. He said he had scratches on his lower back from the victim trying to fight him off. He said that he had thought about trying to get rid of the body but had set the house on fire instead. He went home and washed his clothes and then returned to the scene.
• There is DNA evidence supporting the inference that the victim's blood was on the accused's shoes. The statistical improbability of the blood being that of another person is extremely high.
• There is DNA evidence supporting the inference that the accused's DNA was under the fingernails of the victim.
• The Crown intends (subject to objection) to rely on evidence of a number of witnesses said to establish a relevant tendency in the accused. The victim was of "Asian" appearance. There is evidence from a variety of sources that the accused watched "Asian porn" and visited Asian prostitutes. This evidence goes to support the Crown case theory that there was "sexualised contact" between the accused and the victim during which the accused became angry.
• Apart from its admissibility as tendency evidence, the Crown also relies on that body of evidence to prove that the accused told lies to investigating police in relation to his interest in sex and capacity to have sex.

THE ARREST AND DETENTION OF THE ACCUSED

17 The accused was arrested at 5:07 pm on 24 May 2012 at his home in South Grafton. He was taken before the Magistrate at Coffs Harbour at around 4:11 pm the following day: cf ss 99, 114 Law Enforcement (Powers and Responsibilities Act 2002 (NSW) ("LEPRA").

18 Upon his arrest, the accused was informed that he was under arrest for the murder of Ms Roberts and told that he did not have to say anything. The police recorded the conversation that then occurred. That conversation concluded at 5:16 pm and the accused was taken to Grafton Police Station.

19 The accused arrived at Grafton Police Station at 5:30 pm on 24 May 2012. He was entered into custody. Sergeant Williams created (or commenced) a custody management record at 5:48 pm. Sergeant Williams was the Custody Manager from that time until 2:41 am when Senior Constable Pipes took over. Sergeant Ruehe replaced SC Pipes at 6am.

20 I accept, in spite of the accused's somewhat diffident evidence on the subject, that Sgt Williams read the document setting out the accused's rights pursuant to Part 9 LEPRA a few minutes before 6:00 pm. From the records, that appears to have taken about 10 to 15 minutes. It appears that the accused was in the dock at that time. The dock is a small Perspex box in front of the charge desk.

21 The accused was moved to "Cell 1" at around 6:15 pm and provided with dinner at 6:35 pm. Cell 1 is in the same room as the charge desk and dock. It is a relatively small "room", the front of which appears to be constructed of transparent Perspex. The bed "only consists of a foam mattress, which would be covered in some sort of vinyl and there [is] a blanket or a number of blankets" (T 166).

22 At 7:06 pm the accused was observed to be "in good health". At 7:08 pm he was moved from the cell to "ERISP room 1". That room is a very short walk (about 30 seconds) from the charging area. It is around a corner and down a corridor. Unlike the charging area, dock and cells it is not under video surveillance. It is small, windowless, room with facilities capable of recording (video and audio) interviews between police and witnesses or suspects.

23 The ERISP was commenced at around 7:12 pm. Present in the room were the accused and Detectives Sippel and Burke. Based on the transcript, the accused was then asked 1,252 questions although that is not precisely accurate because a number of questions involved interchange between the participants in the conversation. Mr Sippel conducted most of the interrogation although Mr Burke also asked questions.

24 At around 9:00 pm Detective Burke said "We'll have a break". The accused was told that they would "take a break for a couple of minutes".

25 At 9:04 pm the accused was returned to Cell 1. At 10:35 pm he was said to be "in good health resting in cell awaiting detention warrant application".

26 During this period, a detention warrant was obtained from Mr Piper, an authorised officer under Part 9 of LEPRA: see s 118 LEPRA. The warrant extended the maximum investigation period by six hours commencing on 10:10 pm on 24 May 2012. The six hour extension "excluded times that are not to be taken into account under s 117 LEPRA". The accused spoke to the Magistrate who granted the detention warrant (Q 1270-1275).

27 The accused was returned to ERISP room 1 at 10:51 pm. The ERISP recommenced at 10:51 pm.

28 At around 12:30 am on 25 May 2014 the questioning started to become inappropriate and improper. Shortly after 12:42 am the accused said "we're gunna terminate the interview as effectively as of right now". Mr Sippel said "the reason you're stopping the interview is that you have murdered this lady" and continued for a short time to direct questions at the accused.

29 Inspector Williams entered ERISP room 1 at around 12:46 am. The accused made a complaint to him as to the conduct of the officers. That complaint was to the effect that the officers had called him a liar. On the other hand, he said that Inspector Williams had "been brilliant actually".

30 There is a conflict in the evidence as to whether or not, shortly after this, the accused told Mr Sippel that he wanted to see a lawyer, to which Mr Sippel responded "I don't care what you want."

31 The accused was returned to Cell 1 at 12:55 am. Certain forensic procedures were undertaken at around 1:10 am in the ERISP room.

32 The custody management record shows that the charging process took place from 1:43 am and 4:00 am. There is no evidence as to precisely what this involved or why it took in excess of 2 hours. However, nothing turns on that matter except to note that the accused was observed to "appear ok" in the cell at 2:45 am and 3:20 am.

33 The accused was observed to be asleep in his cell at 4:42 am, 5:33 am, 6:32 am, 7:08 am, 7:35 am and 8:14 am. He was given breakfast at 8:35 am and requested a cigarette (which he was given) at 9:24 am.

34 I interpolate here that the accused was charged within the time required by the warrant extending the investigation period. However, once he was charged at about 4:00 am, s 99 of LEPRA required him to be taken before an "authorised officer" to be dealt with according to law "as soon as is reasonably practicable". The accused concedes that the earliest time that it was reasonably practicable to take him before an authorised officer was the opening of ordinary business hours. The parties agree that this was 9:00 am on 25 May 2014. The evidence is, and the prosecution concedes, that the Registrar of the Grafton Local Court was an authorised officer and was available at and from around that time.

35 In spite of the availability of an authorised officer at the Court House next door to the police station, the accused was still in the cell at Grafton Police Station at 2:00 pm and beyond. In the meantime, he had made the impugned confession.

36 I turn to consider how that transpired and what happened between 9:24 am, when the accused was permitted to smoke a cigarette, and 4:03 pm when the records show that the accused was spoken to by a solicitor before going before the Magistrate in Coffs Harbour.

37 The custody management records suggest that at 10:12 am, 10:58 am and 12:17 am the accused was sleeping in his cell. During that period of time, according to the evidence of Mr Ruehe, Mr Sippel and Mr Burke, the police were making enquiries and decisions about whether the accused would be taken before the Registrar in Grafton or the Magistrate in Coffs Harbour. Initially it seems that the intention was to take the accused before the Registrar at Grafton Local Court. There was no reason that this could not be done shortly after 9:00 am. However, police were concerned that there was no Police Prosecutor in Grafton at the time and also that they may wish to seek a suppression order as to the victim's injuries. Mr Burke says that he attempted to consult a lawyer about the suppression order. There was also consultation with the Police Prosecutor in Coffs Harbour.

38 In any event, a decision was taken to transfer the accused to Coffs Harbour. Precisely when and by whom that decision was made is unclear on the evidence. There is no sound reason why that decision could not have been taken very shortly after 9:00 am.

39 There is no evidence that the accused was made aware that he was to be taken before a Magistrate at Coffs Harbour at any time between the time he was charged (sometime before 4:00 am) and shortly before 1:00 pm. There is some evidence, to which I will return, that he may have been told this at around 12:53 pm, that is shortly before the impugned interview.

40 In any event, once the decision was taken, arrangements had to be made to transfer the accused from Grafton to Coffs Harbour. That proved to be problematic. Sergeant Ruehe gave evidence of how busy he was ("I was all over the place"). He said that there were insufficient police in Grafton to allow two of them to take the accused to Coffs Harbour. He could not say when he became aware of the transport difficulty. He was asked if it was 10:00 am, 11:00 am or 12:00 pm and replied "I cannot give you an exact time". He tried to organise a "half way run" whereby police form Grafton would meet police from Coffs Harbour between the two towns. This could not be arranged. Eventually, detectives from Coffs Harbour came to collect the accused. The evidence does not permit a precise finding as to when that occurred but it was after 1:48 pm (when the impugned interview concluded). Mr Ruehe thought that the records suggested that the accused arrived at Coffs Harbour Police Station at around 2:38 pm.

41 Mr Burke and Mr Ruehe were asked whether police could have been recalled to duty to transport the accused. Both officers agreed that this was possible but that each knew that their superiors would not allow it. Mr Burke said:

"Without tarnishing the name or the good name of the Coffs/Clarence Local Area Command overtime is a very difficult subject to broach with anyone".

42 Mr Ruehe gave the following evidence:

"Q. Is that because the transporting of a prisoner to court is not seen as a high priority issue?

A. No, that's because basically we - we depend, we're reactive police officers, we depend on - on servicing our community. We prioritise any and every job and if we've got say a serious domestic or other work to do then that's going to be more important. Obviously we'll prioritise, so where possible, I mean it's in our interests to go and transport a prisoner as soon as possible, because as soon as I would have gotten Mr Sumpton down at Coffs Harbour, he's no longer my responsibility so I'm going to do my darndest to get him down there, but obviously on the day, the resources just weren't available.

Q. So you didn't ask for anyone to be recalled to duty because you expected based on your experience that the answer would be no?

A. That's correct."

And:

"Q. The transport, would it be fair to say that the transporting of prisoners in the Coffs/Clarence Local Area Command is not a matter that is seen as warranting recall to duty of any additional officers?

A. That's pretty much right.

Q. And that fact goes some way to explaining the delay in transporting Mr Sumpton?

A. That's correct."

43 The Crown Prosecutor agreed that the way this evidence was given suggested that Sgt Ruehe thought that "he'd almost be laughed at for asking" for police to be recalled to transport the accused to Coffs Harbour.

44 At around 12:53 pm Sgt Ruehe printed a document entitled "receipt of records". This is page 12 of the custody management record. This is, potentially, an important document. The document is to be completed just prior to a prisoner being transferred. It is initialled by the accused in seven places and signed by him at the bottom. Sergeant Ruehe said that his practice of many years was to print this document and immediately have the accused sign it. However, he could not say whether he did or did not do this on this occasion. If he followed his usual practice, Sgt Ruehe said that the accused would have signed the document before the impugned interview commenced. The accused himself conceded that this was possible. However, Sgt Ruehe could not exclude the possibility that the document was printed at around 12:53 pm but not signed until shortly before the appellant left Grafton police station, that is after the impugned interview. Beneath the signature of the accused is a space for the date and time of signing to be recorded. The date is recorded as 25/5/12. The time space is blank.

45 At some time at around 1:00 pm on 25 May 2012 Detectives Sippel and Burke entered the cell where the accused had been since the early hours of that day. They had a conversation that was not recorded electronically and not adopted in the course of the impugned interview. The accused did not dispute the substance of this conversation although there is an issue as to whether, at the end of the conversation, the accused said "give me five", meaning "give me five minutes to decide whether I want to be interviewed again". The detectives say that he did. The accused denies this. The detectives gave evidence that they were not sure exactly what the accused meant by saying "give me five". There is also a dispute as to whether the accused told the detectives to "fuck off". The accused says that he did. The detectives deny this.

46 On the basis of what followed, it is more likely than not that the accused did say words to the effect of "give me five" and did not tell the officers to fuck off. What followed is that the detectives returned to the cell at around 1:09 pm with a hand held digital recorder and conducted the impugned interview.

47 After the impugned interview was conducted the accused was transferred to Coffs Harbour Police Station. He saw a solicitor at about 4:03pm. He was then taken before the Magistrate.

THE ACCUSED WAS DETAINED UNLAWFULLY

48 I find that at the time of the impugned interview, the accused was subject of unlawful detention.

49 He was not taken before an authorised officer to be dealt with according to law "as soon as [was] reasonably practicable" after he was charged: cf s 99 LEPRA and compare the somewhat different circumstances in Regina v Dungay [2001] NSWCCA 443; 126 A Crim R 216.

50 Once it became clear to the police that there was to be a significant delay in transporting the accused to Coffs Harbour, the question of taking him before the Registrar in Grafton should have been, and was not, revisited.

51 I do not accept that the resistance of the Local Area Command to pay police overtime for transporting prisoners justifies a failure to comply with the requirements of the law. I do not accept that the difficulties in arranging transport, or the preference to take the accused before the Magistrate in Coffs Harbour, means that it was not reasonably practicable to take the accused before an authorised officer until after 4:00 pm on 25 May 2012.

52 Sergeant Ruehe, who was the custody manager from 6:00 am until the accused left Grafton, was not made aware that the accused had terminated the ERISP at around 1:00 am. Although the evidence is silent on the issue, it seems that he was unaware of the complaint made to Sgt Williams. Whether he would have conducted himself differently if he had been aware of this information is not known. What is known is that he was, on his own account, extremely busy ("all over the place").

53 On the basis of all of the evidence, I have concluded that compliance with the requirements of the law (and the possibility that the accused was unlawfully detained) was a matter of some indifference to the police charged with the responsibility of the investigation and the custody management of the accused.

IMPROPER QUESTIONING OF THE ACCUSED

54 The Crown Prosecutor does not dispute the fact that a number of the questions asked by the police in the ERISP were "inappropriate". He said I would be justified in criticising the detectives and described their conduct as "wrongheaded, undesirable, poor questioning technique and various other matters". He conceded that some of the questioning was "improper" although he fell short of conceding that the questioning was improper for the purpose of s 138 of the Evidence Act.

55 The prosecutor's concession is a fair one although, in light of the material, it would have been difficult to take any other stance. By contrast, the detectives generally asserted in cross-examination that they could see nothing wrong with their questioning of the accused.

56 Mr Dennis who has ably represented the accused on the voir dire approached the matter by grouping the questions in what he describes as different themes. The themes were these:

(1) Questions assuming the guilt of the accused.

(2) Questions asking the accused to comment on the evidence of other witnesses and, in particular, asking him to comment on why those other witnesses might have said things they allegedly said.

(3) Questions reversing the onus of proof.

(4) Questions involving misrepresentations of the evidence.

(5) Questions belittling the accused or ridiculing his account.

(6) Questions tending to undermine the accused's right to silence.

57 Mr Dennis submits that taken globally, the questioning was "grossly" improper and taken with the length of the accused's detention and other matters, amounted to oppressive conduct for the purpose of s 84 of the Evidence Act.

58 I propose, given the limited time available to prepare this judgment, to refer to some of the most flagrant examples of inappropriate questioning.

59 When the accused was arrested, the following conversation occurred:

Q. Do you understand you're under arrest for the murder of Michelle Roberts?

A. I just don't believe it.

Q. All right. I want to know why you did it."

60 This question assumed the guilt of the accused. It was asked before the appellant was taken to the police station and provided with his rights under LEPRA. There was a caution administered but Mr Dennis is correct when he submits that the question should not have been asked. Mr Sippel said that he could see nothing improper in this approach and claimed that he was simply "putting the allegation to him which I would be required to do" and advising him as to why he was under arrest. He denied that he was focussed on obtaining an admission. I do not accept Mr Sippel's evidence on this subject.

61 In a series of questions from Q 2286 both detectives put the statement of a witness to the accused that contradicted the accused's account of what he was wearing at the time. He was then asked a series of questions by both officers: "So this is witness is wrong. Is that what you are saying?" (Sippel, Q 2292), "is that witness wrong" (Burke, Q 2296 and 2298), "so that is not true" (Sippel, Q 2306) and "Why would a person tell us this? (Sippel, Q 2307).

62 In reference to a "second witness" on the same subject the accused was asked "Is that second witness wrong as well?".

63 Detective Sippel then put to the accused, as a matter of fact "Because you never changed, you never changed when you went up with Mandy and Vic with the lady and Vic did you?" (Q 2359) and "That's why these witness have seen you wearing shorts ... and this jumper" (Q 2360-2361).

64 At that point, Mr Burke chimed in "The penny's dropping isn't it Andrew?" (Q 2362) and when the accused asked what he meant he returned to the theme of asking whether the witnesses "are wrong. Is that right?" (Q 2364-5).

65 The detectives moved on (from around Q 2379) to confront the accused with the DNA evidence. This included:

"Q 2395 How can you explain that?

A I can't I can't.

Q 2396 It's because you murdered her.

A No I didn't no.

Q 2397 There's no other explanation you've given these versions ---

A ....

Q 2398 --- there's no other explanation ---

A No

Q 2399 --- other [than] that you murdered her that night in that house. Is this correct?

A No."

66 The accused was told "Mate, it's time to tell the truth" (Q 2418) and asked "Well how do you explain that?" (Q 2419) and then:

"Q 2434 Because I'll tell you want happened Andrew. You left her house after you murdered her and you went back to your house"

67 When the accused offered an explanation for the fact (as it was put to him) that "the victim's blood was on his shoes" he was told by Detective Burke "You know that's ridiculous Andrew --- that's a ridiculous suggestion" (Q 2477-8).

68 The accused then complained about being called a liar (A 2480) to which Mr Sippel replied "No-one called you a liar". That was, with respect to the detective, somewhat disingenuous.

69 The accused then attempted to terminate the interview (Q 2485). However the interrogation went on:

"Q2487 --- at the beginning of the interview you do not have to answer our questions.

A well it's stopped.

Q2488 You don't want to go any further?

A it's stopped. I will not, will not when I know I have done fuckin' nothing wrong---

Q2489 The reason you're stopping---

A --- but tried to help youse blokes.

Q 2490 [00:43:50] --- the reason you're stopping the interview is that you have murdered this lady.

A Is that right?

Q2491 That's how you got the scratches.

A Is that right?

Q2492 That's how her blood, she, she did those scratches that's how you got them.

A Do you know what, do you know what they call that mate?

Q2493 What?

A That's called an assumption and you know when an ---

Q2494 What's ---

A --- do ---

Q2495 --- what's, what's that?

A Hang on, hang on, hang on a minute, Hang on a minute.

Q2496 No, no. What, what's that?

A Do you know ---

Q2497 What do you call that?

A Do you know what an assumption is when people go making assumptions and all too often they're making arses of themselves.

Q2498 All right. Now, now you've, okay you've just asked that the interview be stopped?

A Finished.

Q2499 All right. Now what I want to do, there's other, there's more allegations. Do you wish to hear those allegations?

A No, not really, let the ...deal with it mate.

Q2500 [00:44:36] all right. Is there anything further you wish to say that this matter?

A No.

Q2501 Have the answers that you've given in this record of interview been made of your own free will?

A All you're gunna get from now on mate is no comment.

Q2502 Okay, all right. Has any threat, promise or offer of advantage been held out to you ---

A No comment, no comment.

Q2503 Okay I will leave the room and I'll have a senior police officer come and speak with you okay?

A Can I just use the toilet?

Q2504 In a minute---

A Yep.

Q2505 --- I'll just have the, just finish this and you can use the toilet. SIPPEL leaves the room. Andrew, this is Inspector Williams he's currently in charge of the police station who you met earlier.

A yep ...

Q2506 This isn't, this isn't any part of the interview the interview's been stopped at your request. What his role is here is to ask you some questions on how the interview was conducted okay?

A Yep.

Q2507 And whilst he does that myself and Detective Sergeant Burke will leave the room.

A So that's still being recorded?

Q2508 Still being recorded yes."

70 It is well established that police are not required to accept the first answer that a suspect provides them with and are entitled to press the suspect with persistence: R v Clarke (1997) 97 A Crim R 414 at 419-420. A certain degree of "cross-examination" is permissible and police officers are not "prevented from asking the suspect to answer what has been alleged against him by others": R v Taylor (Court of Criminal Appeal (NSW),18 April 1995, unrep); McDermott v The King [1948] HCA 23; (1948) 76 CLR 501 at 517 (Williams J). However, as Hunt CJ at CL said in R v Taylor:

"What is not permitted is questioning which is oppressive, overbearing or unfair; or questioning which is aggressive or overbearing or questioning in which the police officer repeatedly and scornfully expresses disbelief of the suspects denials."

(Authorities and citations omitted)

71 I have not been invited to view the video recording of the ERISP and can assume that the tone of the interrogation is not the problem.

72 Nevertheless, my review of the latter part of the interview establishes questioning that was repetitive, scornful, ridiculing, overbearing and unfair. The proposition (at Q 2489) that the accused was terminating the interview because "you have murdered this lady" was particularly egregious but it is the cumulative effect of the questioning which causes greater concern.

73 Of course, the admissibility of the ERISP is not the question with which I am concerned. The Crown accepts that much of the questioning was inappropriate (or worse) and I am told that the ERISP will be edited to exclude those parts that are objectionable. The question is whether the conduct of the detectives in the ERISP, individually or in combination with other matters, should lead to the exclusion of the impugned interview around 12 hours later.

74 The accused makes specific complaint that the questioning relating to the DNA evidence contained false representations. There was significant cross-examination on this subject. The complaint is twofold. The first is that it is misleading to put to the accused that "the victim's blood was on your shoes." DNA evidence does not allow for such certainty. Rather, all that can be said is that there was blood on the shoes and it was, to a greater or less degree of probability, consistent with the blood of the victim. I did not find Mr Sippel's responses in relation to this evidence very convincing. My impression was that he was deliberately avoiding the questions.

75 Be that as it may, I am not persuaded that the relevant questions were such as to mislead the accused in an unfair way. The fact is that the evidence (if accepted) established that there was blood on the accused's shoes and that the likelihood of it being the blood of somebody other than that of the victim was extremely small. The police were entitled to put that to him and to ask him for an explanation. The way they did so was inappropriate but I do not find the interrogation to have been misleading or false in that respect.

76 There is more substance in the accused's complaint about what is generally known as "secondary transfer". The suggestion that the only way that the "victim's blood" could have been on the accused's shoes was because he was there when she was dead (Q 2474-2476) is inaccurate. When the accused posited a possible explanation for the evidence, he was told that it was a "ridiculous" suggestion. The questioning was calculated to put to the accused that there was only one possible explanation for the evidence and that explanation was that he was guilty of murder. That is a misleading statement. The method and vigour with which it was pursued was inappropriate and unfair.

77 One further aspect of the submissions that I should touch upon is the suggestion that the questions about whether the witnesses were "wrong", their statements "untrue" and "why" they would make those statements inverted the onus of proof. There is ample authority to support this argument as a matter of law: see, for example, Palmer v The Queen [1998] HCA 2; 193 CLR 1 at [8] (Brennan CJ, Gaudron and Gummow JJ).

78 However, I accept the Crown Prosecutor's submission that it would not immediately or necessarily occur to a relatively uneducated man (such as the accused claims to be) that there was a reversal of the onus of proof. I am not sure that this argument, while technically correct and rendering the relevant questioning inadmissible, is a matter that would have operated on the accused's mind over the ensuing 12 hours.

79 I take a different view of the assertion by Mr Sippel that the accused terminated the interview because he was guilty of murder (Q 2489-2490). That was an egregious abuse of his position of power over the accused. It could serve no purpose other than to harangue the accused and was apt to lead him to believe, as Mr Denis submitted, that his termination of the interview could lead to an inference of guilt. It is true, as submitted by the Crown, that the accused maintained steadfast in terminating the interview. Just a few questions later he said "finished" (A 2498) and "no comment" (A 2501-2). It is also true that there is no evidence from the accused as to what he took from that comment.

80 After the ERISP was concluded, the accused was subject to forensic procedures and was charged. There is no evidence that he received any further advice as to his rights. As I have found, he was unlawfully detained from some time shortly after 9:00 am until the time that the detectives visited him in his cell.

81 At sometime around 1:00 pm, Detective Sippel and Burke approached the accused in his cell. As I have said, the conversation was not recorded and was not adopted in the course of the impugned interview. However, with a couple of exceptions to which I have already referred, the accused does not contest the content of the conversation. Mr Dennis relies on some aspects of that conversation in his submission that the pressure under which the accused was placed, taken with the other aspects of the accused's detention, are relevant to whether the admissions were influenced by oppressive conduct. Mr Sippel gave the following account of that conversation in his statement:

"113. Detective Sergeant Burke and I attended the Custody Room and walked to the accused cell.

I said, "Andrew, we just want to give you an opportunity to tell us anything more about what happened at the house in South Grafton before you go to Coffs Harbour. We're not recording our conversation on a recorder at this point but as I said to you before you don't have to answer our questions as anything you do say may be used in evidence at court. Do you understand that?

The accused said, "Yes Matt I understand. I just don't know, I've already told you everything I can. I don't know what else I can tell you. I would tell you if I knew. I don't know what happened, everything was good, we were laughing. You said to me if I had any problems I could come and see you or call you and I did."

I said, "yeah and I helped you see a counsellor."

The accused said, "yeah you did and I appreciate. I can't tell you something that I can't remember. I know we had a good time and were drinking and laughing. If I could figure it out I would tell you."

114. The accused continued to speak about the fire in South Australia that he had mentioned in the previous conversations and about a little girl across the road. The accused continued that he was a nice bloke and he hadn't appreciated being called a liar.

Detective Burke said, "Well I want to give you an opportunity to tell us what actually happened within the house. You are facing a charge that effectively carries life and to say you don't remember doesn't add up."

I said, "Think about the family Andrew. We have to tell them things and they want to know how their mother died. They want answers about how she died.

The accused said, "If I could remember I would tell you, I told you everything I know." The accused sighed and placed his head in his hands. He said, "We were in the house and we were fooling around you know. But she was alive when I left her. I never hurt that woman."Yeah we fooled around had a drink, everything was fine, we had a good night, a good night." "I left her in the house she was happy. Did something change, I don't know."

I said, "Andrew I can tell you that the deceased lady wasn't severely burnt and her body is telling us a lot of information. Now as I've said many times to you before you don't have to talk to us if you don't want to but we are waiting for more results and will probably have to speak to later about those.

115. Detective Burke and I went to leave the cell.

Detective Burke said, "Andrew if you want to get in contact with us and have a talk you can call Matt or I from goal."

I said, "think things through and through and if you want to see me again you know where to find me."

The accused said, "Give me five.""

116. Detective Sergeant Burke and I returned to the office and had a discussion. A short time later I obtained my handheld recorder and we returned to the custody room

82 Mr Burke provided a very similar version of this conversation in his statement:

"40. Detective senior Constable SIPPEL and I attended the charge room and walked into the cell occupied by the accused. The accused was sitting comfortably on the cell foam mattress with his back against the wall. There were remnants of a McDonald's meal in front of the accused.

Detective SIPPEL said, "Andrew, we just want to give you an opportunity to tell us anything more about what happened at the house in South Grafton before you go to Coffs Harbour. We're not recording our conversation on a recorder at this point but as I said to you before you don't have to answer our questions as anything you do say may be used in evidence in court. Do you understand that?"

He said, "yes Matt I understand. I just don't know, I've already told you everything I can. I don't know what else I can tell you. I would tell you if I knew. I don't know what happened, everything was good, we were laughing. You said to me if I had any problems I could come and see you or call you and I did."

Detective SIPPEL said,"yeah and I helped you see a counsellor"

He said, 'Yeah you did and I appreciated it. I can't tell you something that I can't remember. I know we had a good time and were drinking and laughing. If I could figure it out I would tell you".

41. The accused spoke about a fire in South Australia and a little girl who lived across the road from him in South Grafton that he had saved. The accused had mentioned these two subjects in previous conversations with Detective Senior Constable SIPPEL and I. The accused said that he was a "nice bloke" and didn't appreciate being called a "liar".

I Said, "well I want to give you an opportunity to tell us what actually happened within the house. You are facing a charge that effectively carries life and to say you don't remember doesn't add up".

Detective SIPPEL said,"Think about the family Andrew. We have to tell them things and they want to know how their mother died. They want answers about how she died".

He said,"If I could remember I would tell you, I told you everything I know".

The accused sighed and placed his head in his hands.

He said,"We were in the house and we were fooling around you know. But she was alive when I left. I never hurt that woman. Yeah we fooled around had a drink, everything was fine, we had a good night, a good night. I left her in the house, she was happy. Did something change, I don't know".

Detective SIPPEL said, "Andrew, I can tell you that the deceased lady wasn't severely burnt and her body is telling us a lot of information. Now as I've said many times to you before you don't have to talk to us if you don't want to but we are waiting for more results and will probably have to speak to you later about those".

Detective senior Constable SIPPEL and I went to leave the cell.

I said, "Andrew, if you want to get in contact with us and have a talk you can ring Matt or I from goal".

Detective SIPPEL said,"Think things through Andrew and if you want to see me again you know where to find me".

The accused said,"Give me five".

83 It will be seen that, for the first time, the accused (at least implicitly) admitted to some form of sexual contact with the victim.

84 Mr Dennis submits that this conversation continued to apply improper pressure on the accused and that this, in combination with the other circumstances surrounding the accused's detention and the improper questioning in the ERISP in the early hours of that day, meant that the admission was influenced by oppressive conduct. He places emphasis on:

The reference to what "actually happened" was (once again) based on an assumption, presented as fact, that the accused's earlier accounts were false.

The reference to the offence as one "that effectively carries life" was improper and misleading.

The detectives failed to correct the misleading impression created at the end of the ERISP that the termination of the interview could be interpreted as evidence that the accused had committed the murder.

The reference to the feelings of the victim's family was a form of emotional pressure that was inappropriate in the circumstances prevailing at the time. It was also implicit that the accused knew what had happened.

WAS THE ACCUSED DENIED A REQUEST FOR A LAWYER?

85 The accused gave evidence (T 126) that after the conclusion of the ERISP and on the way from the ERISP room to the cells:

"I said something to Detective Sippel about 'I want a lawyer' and his response was 'I don't care what you want'."

86 Mr Sippel was cross-examined about this (T 56):

"Q. And then after Inspector Williams spoke to the accused you came back, correct?

A. Yes.

Q. And you escorted him to the cells didn't you?

A. Yes.

Q. And I suggest to you sir that on the way to the cells the accused said words to this effect to you: "I want to speak to a solicitor"?

A. No I don't recall, to be quite honest I don't even recall if I took him to the cell.

Q. Well I'm suggesting to you that you did?

A. Okay.

Q. I'm suggesting to you that the accused said the words "I want to speak to a solicitor"?

A. Okay.

Q. What do you say to that?

A. I don't recall that no.

Q. So are you saying you don't know one way or the other?

A. Yes.

Q. And I suggest to you that you responded to him 'I don't care what you want'?

A. No that's not true."

87 Neither of the witnesses to this conversation was particularly creditworthy. Both were somewhat evasive in answering questions. I agree with the Crown Prosecutor that the accused at times failed to engage with the questions at all and avoided "direct questions, simply put." Similarly there were occasions where my impression was that Mr Sippel was evasive.

88 As Mr Dennis submits, there are only two witnesses to this conversation. One (the accused) positively asserts that he asked for a lawyer while the other (Mr Sippel) says that he cannot remember one way of another whether there was such a request.

89 The Crown places emphasis on the fact that the accused did not ask Sgt Williams, who the accused described as "brilliant" at the end of the ERISP, for a solicitor after Mr Sippel allegedly refused his request. Nor did he complain about Sippel's behaviour to Sgt Williams. Against that, there is no clear evidence of what, if any, interaction there was between Sgt Williams and the accused after the conclusion of the ERISP. He was not involved in the charging process (1:43 to 4:00 am) or the forensic procedure (1:10 to 1:11 am) although the custody management record (pp 5 and 8) suggests that he was responsible for taking the accused to and from his cell for the forensic procedure and provided him with a drink at 1:48 am. The accused's evidence as to why he did not complain to Sgt Williams was that he was "another copper" (T 155).

90 With admirable fairness, the Crown Prosecutor accepted that it was appropriate to take into account the conduct of Mr Sippel immediately prior to the conclusion of the interview in deciding whether this conversation occurred. That is to say, the attitude disclosed after the accused attempted to terminate the interview - including the continued questioning and the suggestion that the accused was ending the interview because he was guilty.

91 Having considered the evidence carefully, I am satisfied on the balance of probabilities that there was a request for a solicitor. I am not certain precisely what form it took and I am unable to conclude that Mr Sippel said the words ("I don't care what you want") attributed to him by the accused. However, I am satisfied that whatever precise form it took, the accused made a request for lawyer and that no action was taken to comply with that request. In coming to this conclusion, I am persuaded by the conduct of both the accused and Mr Sippel at the conclusion of the interview. The accused had decided that he had had enough and for the first time exercised his right to decline to speak to the detectives. In those circumstances, it makes sense that he would tell the detective that he wanted a to see a lawyer. Similarly, the attitude displayed by Mr Sippel at the end of the interview is consistent with an attitude of indifference to the accused's rights.

92 The failure to comply with the request for a solicitor is a breach of s 123 LEPRA.

THE CIRCUMSTANCES AND CONTENT OF THE IMPUGNED INTERVIEW

93 The first thing to note about the impugned interview is where it was held. Rather than moving the accused out of the cell to the ERISP room, the Detectives conducted the interview in the small cell where the accused had been detained for most of the morning.

94 Mr Dennis confronted the detectives with the fact that this arrangement meant that the custody manager was not involved. Mr Sippel gave the following evidence (T 62-65):

"Q. And sir, moving him out of the cell to the ERISP room might have engaged the custody manager, correct?

A. Not necessarily, but I mean it's a different scenarios as to what would have happened at that point.

Q. All right well when somebody is moved from a cell to an ERISP interview room, the custody manager has to make some log of it, don't they?

A. True. Well he should do, yes, as custody manager, yes.

Q. And a diligent custody manager might as the accused whether they wished to exercise any of their rights?

A. Up to the custody manager."

95 Mr Burke said (T 71):

"Q. And are you able to tell us why it was that you chose to record the conversation with a handheld device rather than with taking him into an ERISP room?

A. I've done interviews in that fashion previously without any adversity attached to that procedure. Mr Sumpton was comfortable in that area, being the cell that he'd been in overnight. Detective Sippel and I walked into that cell and after a very brief conversation activated the recorder and Mr Sumpton appeared very comfortable in his surroundings and I didn't want to take him out of those surroundings."

96 Both Detectives denied the sinister suggestion that they conducted themselves in this way in order deliberately to avoid the involvement of the custody manager. Whatever the intention of the detectives, the impact was that there was no involvement of the custody manager and no notation in the custody management record relating to this interview. Along with the absence of a time below the signature on the "Receipt of Records" document, it makes it very difficult to know the order of events between 12-53 (when the Receipt of Records was printed) and 1:09pm when the impugned interview commenced.

97 The accused made substantial admissions in the impugned interview. Amongst other things he said:

"I can't understand why I'd go and do something like that. We were having a good time." (Q6)

"I must have set a fire ..." (Q 8)

"I think she was dead" when he left her because "there was blood everywhere." (Q 14-15)

"I think I stabbed her." (Q 28)

He wasn't sure what he used to stab her but it may have been "glass" or "a knife" ... "just some object in the room" (Q 44)

"I was sure she was deceased." (Q 63) "because I'd stabbed her" (Q 64).

He was "not sure if I hit her" (Q 85) but he may have hit her with something. (Q 88)

98 Having listened to the interview in Court, I am of the view that it constitutes compelling evidence against the accused.

99 The Crown places emphasis on the tone of the interview and the fact that there is no submission that the questioning was unfair. He refers to the fact that the accused called Mr Sippel by his first name and that the accused twice (at Q 22 and 176) said he was "happy" to be interviewed. There was also a caution administered at the beginning of the interview and questions at the end of the interview confirmed that the answers were given of the accused's free will.

ADMISSIBILITY OF ADMISSIONS UNDER THE EVIDENCE ACT

100 Part 3.4 of the Evidence Act provides for the admissibility of admissions. The accused relies on ss 84 and 90 which provide:

"84 Exclusion of admissions influenced by violence and certain other conduct

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or

(b) a threat of conduct of that kind.

(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced."

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 a defendant to use the evidence."

101 The accused also relies on s 138. Section 138 is not concerned specifically with admissions but creates a "discretion to exclude improperly or illegally obtained evidence". If evidence is obtained improperly, or in contravention of an Australian law or as consequence of an impropriety or of a contravention of an Australia law such evidence:

"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"

102 Section 138(2)(b) makes specific provision in relation to admissions "made during or in consequence of questioning" where false statements are made "in the course of the questioning" and those statements are "likely to cause the person who was being questioned to make an admissions".

103 Section 138(3) provides a non-exhaustive list of matters to be taken into account in exercising the discretion.

104 A fundamental difference of approach to these provisions arises on the submission of the parties.

105 Mr Dennis submits that material that might be caught by the discretion under s 138 can also be taken into account in determining whether the admission was influenced by (relevantly) oppressive conduct (s 84). He says that, in determining whether the admission was influenced by oppressive conduct (s 84), I am required to take into account the whole of the circumstances including circumstances that would also constitute unlawful or improper conduct for the purpose of the discretion (s 138).

106 The learned Crown Prosecutor submits that evidence of illegality or impropriety can be taken into account either by reference to the discretion in s 138 or the exclusionary rule in s 84. In other words it cannot be taken into account under both provisions. He says that this approach is supported by the judgment of Gummow and Hayne JJ in Em v The Queen [2007] HCA 46; 232 CLR 67 at [92]-[122] especially at [120]-[123].

107 The Crown Prosecutor gave an example of a police officer punching a suspect and submitted that if that conduct did not amount to oppressive conduct under s 84 it could not then be taken into account under the discretion in s 138. To take an example from the present case, he submitted that if I took the view that the alleged misrepresentations made by police in the course of the ERISP were not excluded under s 138, those matters could not be taken into account in considering whether the whole of the circumstances amounted to oppressive conduct under s 84. This submission was subject to a deal of discussion in the course of argument and the Crown maintained the submission that the judgment of Gummow and Hayne JJ "seems to require a drawing out of the threads". The Crown conceded that the Em v The Queen concerned s 90, not s 84, and that neither the joint judgment of Gleeson CJ and Heydon J nor the dissenting judgment of Kirby J touched upon the issue.

108 I accept the submission of the accused and reject the submission of the learned Crown Prosecutor. I do so for the following reasons.

109 Having read carefully the passages in Em v The Queen, I am unable to discern any support for the proposition that is being urged. The interaction of s 90 (the unfairness discretion) and s 138 involves different considerations to the interaction between s 84 and s 138. Em v The Queen concerned the failure to issue a caution. It was conceded that s 138 was not engaged (see [118]). Gummow and Hayne JJ said at [119] that a failure to issue a caution was:

"to be considered under s 138. It was not relevant to the exercise of the discretion under s 90".

110 By reference to what their Honours said at [109]-[113] it seems that the conclusion in [119] followed from what was meant by "unfairness" in s 90. This reasoning does not inform the interaction between ss 84 and 138.

111 In R v Ul-Haque [2007] NSWSC 1251; 177 A Crim R 348 Adams J considered the admissibility of interviews between a terrorism suspect and officers of ASIO and the Australian Federal Police. His Honour considered the operation of ss 84, 85 and 138. There is nothing in his Honour's judgment (especially at [92]-[105]) that suggests that the impugned conduct could only be taken into account in respect of one or other of those sections. His Honour appeared to consider the same conduct in relation to both provisions. I note that R v Ul-Haque was decided only a few weeks after the decision in Em v The Queen and it seems that the prosecutor made no submission of the kind with which I am confronted.

112 On the other hand, in R v Ye Zhang [2000] NSWSC 1099 Simpson J appeared not to consider the oppressive conduct that she had found for the purpose of excluding the evidence under s 84 (offering an inducement and threatening to hit) when she turned to consider the operation of s 138. However, her Honour did not consider the question here raised by the Crown and the decision was made long before the High Court's decision in Em v The Queen.

113 In R v LL (Court of Criminal Appeal (NSW), 1 April 1996, unrep), Smart J considered the application of ss 84 and 138 by reference to the same factual circumstances. Again there is nothing to suggest that his Honour was called upon to consider a similar submission to the one made in this case.

114 See also R v Truong (1996) 86 A Crim R 188.

115 In R v Fulling [1987] 2 All ER 65 the English Court of Appeal was concerned with the operation of the Police and Criminal Evidence Act 1984 (UK) ("PACE"). I treat with some caution comments made in relation to a differently structured statute. However, their Honours said (at 69-70):

"We find it hard to envisage any circumstances in which such oppression would not entail some impropriety on the part of the interrogator."

116 I agree with those comments. While they were made in a different context and under a substantially different statutory regime, they support the proposition that material that supports a finding that evidence was unlawfully obtained might also be used to determine whether an admission was influenced by oppressive conduct.

117 For what it is worth, there is nothing in the Chart at the commencement of Chapter 3 of the Evidence Act that offers support for the Crown's submission. That chart suggests that s 84 should first be considered and that discretionary exclusion should be considered thereafter.

118 To give it some relevant content, the submission can be considered by reference to a clear and specific example in the present case. As I have held, there was a breach of s 99 LEPRA and the accused was detained unlawfully. That is a matter that might be considered under s 138. It would be surprising, and contrary to the purposes of the legislation, if the unlawful detention is not also relevant to whether the admissions were influenced by oppressive conduct.

119 For these reasons, I have concluded that the same material that might give rise to a discretion to exclude evidence because it is unlawfully and improperly obtained can (and should) also be considered in determining whether the cumulative impact of those matters constitutes oppressive conduct for the purpose of s 84.

OPPRESSIVE CONDUCT

120 Oppressive conduct is not defined in the Evidence Act. It has been held that it should not be given an "expansive interpretation": R v Heffernan (Court of Criminal Appeal (NSW), 16 June 1998, unrep).

121 In Ye Zhang (supra) and Higgins v R [2007] NSWCCA 56 at [26] it was held that:

"Section 84 does not require the isolation of single reason or a single incident of conduct provoking the confession. There may be a number of factors working together"

122 In Higgins v R Hoeben J (with whom Sully and Bell JJ agreed) went on to say at [26]:

"I also accept that there is no definition of 'oppressive' in the Act and that the concept should not be limited to physical or threatened physical conduct and can encompass mental and psychological pressure."

123 The concept of "oppressive conduct" should be read ejusdem generis with the other proscribed conduct identified in s 84. That is, the meaning of oppressive conduct should draw some meaning and content from the fact that s 84 also refers to "violent, inhuman and degrading" conduct: cf R v Ul-Haque (supra) at [94]. In R v Ul-Haque Adams J noted at [94] that "the precise boundaries of 'oppressive ... conduct' are uncertain" but was of the view that the conduct in that case was well within those boundaries.

124 In Habib v Nationwide News [2010] NSWCA 34; 76 NSWLR 299 the Court of Appeal (Hodgson, Tobias and McColl JJA) undertook an extensive consideration of s 84 in the context of a defamation case. I have been greatly assisted by that consideration.

125 At [176]-[195] the Court of Appeal analysed the common law position in relation to requirement that voluntariness was a precondition to the admissibility of a confession and the common law discretions to exclude confessions. The Court then at [196]-[207] examined of the ALRC reports and second reading speeches leading up to the introduction of the provision. It noted at [201] the observations in the Final Report on Evidence as to the deficiencies in the common law of voluntariness and the "tendency to admit rather than to exclude". The Court at [232] again referred to that concern in considering the purpose of the section in the context of an argument concerning whether the appellant bore an onus.

126 At [241] their Honours said:

"In R v JF (at [37]), Refshauge J commented that because the effect of s 84 was '...automatic exclusion of the confession, with no discretion, and a relatively low threshold of causation, it does seem that the conduct involved should be of a relatively significant level of impropriety'. With respect, that imposes a gloss on the section which, in our view, is not warranted by its language. The only question s 84(1) poses is whether the 'admission and [its] making' were 'not influenced by' conduct of the nature identified. At best, as was said in Heffernan (at 22), the wide scope of the section in its application in both civil and criminal proceedings is a reason for not giving 'an expansive meaning to 'oppression' in s 84."

127 The Crown prosecutor submits that the criticism of Refshauge J was not justified. I disagree with that submission and am, in any event, bound by the decision of the Court of Appeal.

128 The Court also referred to the case of R v Fulling (supra) and the differences between s 84 and the relevant provisions in s 76 of the PACE Act. It noted that in R v Fulling (supra) the Court adopted the dictionary definition of "oppression" namely

"... [the] exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc.; the imposition of unreasonable or unjust burdens ...."

129 The Crown accepts that this is an appropriate basis upon which to consider the question of whether the impugned admissions were influenced by "oppressive" conduct.

CONCLUSION AS TO ADMISSIBILITY

Section 84

130 This is not a case like R v Ul-Haque or Habib v Nationwide News where oppressive conduct is clearly established. Nor is it a case like R v Higgins where there was almost no evidence capable of amounting to oppressive conduct. In that case, all that was relied on was the fact that the appellant was required to attend the "bank interview" as a condition of his employment and the bank investigators had expressed incredulity at some of his answers.

131 Unlike Ul-Haque, this is a case at the "boundaries" of oppressive conduct.

132 In accordance with the provision in s 189(3) I have disregarded the issue of whether the admission was true. Further, in spite of the policy underlying the common law of voluntariness and matters discussed ALCR reports (as to which see Habib v Nationwide News at [198]), the operation of s 84 does not require a consideration of whether "the truth of the admission was adversely affected": cf s 85 Evidence Act (reliability of admissions by defendants). As Simpson J said in R v Ye Zhang at [52] "evidence of an admission will not be admitted because the admission can be shown, by other evidence, to be truthful."

133 As Adams J said in R v Ul-Haque the relevant test is not whether the will of the accused was overborne. The Court of Appeal endorsed this proposition in Habib v Nationwide News at [237].

134 Having considered the matter anxiously, I have concluded that the accused was subjected to conduct that can properly be described as "oppressive". It involved the exercise of authority and power in a burdensome, harsh and wrongful manner and imposed on the accused unreasonable and unjust burdens.

135 In summary, and without repeating the matters that I have set out above, I am drawn to that conclusion based on the following matters:

The accused was unlawfully detained for a period of many hours.

The accused was not informed that arrangements were being made to take him before a Court or that there was a delay in doing so. He was simply left in his cell for some hours after he was charged. Even though he may have known (because he had been arrested before) that he would be taken to court, I accept his evidence that all he knew was that this would happen "eventually" or "sooner or later".

The accused was in police custody for a total period (lawful and unlawful) of around 23 hours before he was taken before a magistrate and around 20 hours before his confession.

Aspects of the questioning of the accused at the time of his arrest ('I want to know why you did it') and towards the end of the ERISP was unfair and improper in that it assumed his guilt and ridiculed and belittled his answers.

When he terminated the interview after a period of many hours, the detectives continued to question him for a short period and put to him that he was doing so because he was guilty of murder.

The implicit suggestion that his termination of the interview was capable of giving rise to an inference that he was guilty was never withdrawn.

He was denied access to a lawyer after asking for one.

While the custody records show that he was observed to be "sleeping" at various times between 4:42am and 8:14am and again between 10:12am and 12:17am, I accept his evidence that he would not "have had that much sleep. I know I'd lay under the blanket for hours, awake." (T 238). I also accept his evidence that his sleep patterns had been disturbed over the preceding days.

He was approached in the cell by the same detectives about whom he had complained to the custody manager (Sgt Williams) at the conclusion of the ERISP in circumstances where the new custody manager (Sgt Ruehe) played no role.

He was told that the offence with which he was charged "effectively carried life", that his account didn't add up and that the detectives were giving him an "opportunity" to talk before he was taken to Coffs Harbour. Thereafter, he was told that he could "ring [the detectives] from gaol".

He was approached to provide further information after he had clearly, and repeatedly, indicated that he sought to exercise his right to silence after more than 2,000 question in the ERISP.

He was subject to psychological and emotional pressure to change his version of events.

He was subject to questioning in a small confined space in circumstances where the designated custody manager was not involved in any meaningful way before, during or after the interview.

136 For the evidence to be admissible I must be satisfied that the admission, and the making of the admission, were not influenced by the oppressive conduct that I find took place: see, for example, R v Ye Zhang (supra) at [39]-[44]. l am not so satisfied.

137 The Crown has attempted to persuade me that the true cause of the confession was that the accused wanted to get the matter "off his chest" (see Q 90) and was demonstrating a true consciousness of guilt and willingness to take responsibility for his actions (Q 170). However, the Crown properly concedes the correctness of the approach of Simpson J in R v Ye Zhang at [44]:

"However, s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of the police is one of those factors (or more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible."

138 I adopt that reasoning although it may be more accurate to speak in terms of the oppressive conduct "influencing" - rather than provoking or causing -the confession.

139 In view of the history of the legislation, as examined by the Court of Appeal in Habib v Nationwide News at [196]-[207], it is not necessary, and may be contrary to the purpose of the provision, to speak in terms of voluntariness or in terms of whether the accused's will was overborne: see Habib v Nationwide News at [237].

140 I am not satisfied, as a matter of fact, that the confession was not influenced by oppressive conduct which is to say conduct whereby the accused was subject to the exercise of police powers that was wrongful, burdensome, unjust and harsh.

141 Having reached that conclusion, there is no discretion. The evidence must be excluded.

SECTION 90

142 Having come to that conclusion it is unnecessary for me to consider s 90 any further. Very few submissions were directed to s 90. The focus of the argument was on ss 84 and 138.

SECTION 138

143 Although it is not strictly necessary to do so, I should record my conclusions in relation to the application to exclude the evidence under s 138.

144 For the reason already articulated, I am satisfied that there was impropriety and contravention of Australian law. This involved, at least, non-compliance with s 99 LEPRA and the consequent unlawful detention of the accused. It also involved the failure to comply with his request for a lawyer. There was also improper questioning before the ERISP, towards the end of the ERISP and in advance of the impugned interview.

145 Contrary to Mr Dennis' submission, I am not satisfied that the police made false statements to the accused in the course of the questioning for the purposes of s 138(2)(b). I have concluded that the correct application of that provision to the circumstances of this case is that the reference in the sub-section to the "course of the questioning" is a reference to the questioning during the impugned interview. The questioning during the ERISP is not part of the relevant "course of questioning". It is a separate course of questioning. The use of the definite article is significant - the section refers to a false statement made "in the course of questioning". I gain some comfort in that conclusion from the decision of Gleeson CJ, Hayne and Heydon JJ in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 although I accept that the circumstances are not truly analogous.

146 If the final resolution of the question of admissibility involved the exercise of the discretion under s 138, I would be inclined to the view that the prosecution has discharged the onus and that "the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which [this] evidence was obtained". However, I would not find that decision an easy one to make.

147 My conclusion is based on a consideration of a variety of factors including those referred to in s 138(3) of the Evidence Act. In summary:

The probative value of the evidence is extremely high: s 138(3)(a). I accept the Crown Prosecutor's submission that apart from the obvious probative value of a recorded confession, the evidence also has the capacity to provide corroboration for other admissions made by the accused (to Mr Hayes and ZS). Those admissions, especially in the case of ZS, are likely to come under a significant attack at the trial.

The evidence is "important" s 138(3)(b). However, I do not find this to be a particularly compelling circumstance because the Crown case remains extremely powerful even in the absence of this evidence.

The "public interest in the conviction and punishment" for a crime as serious as this one militates in favour of admission: s 138(3)(c), R v Dalley [2002] NSWCCA 284 per Spigelman CJ at [5]-[7] with whom Blanch J agreed, contra Simpson J at [97]; R v MM [2004] NSWCCA 364 at [54].

Contrary to the submission of the Crown, the impropriety and contravention of Australian law was grave: s 138(3)(d).

Contrary to the submission of the Crown, I find the breaches to have been at least reckless: s 138(3)(e). As I have said, there appeared to be a certain indifference to the accused's right to be taken before an authorised officer to be dealt with according to law.

The conduct amounted to a breach of some of the rights recognised by the International Covenant on Civil and Political Rights: s 138(3)(f). It is at least a breach of Article 9 of the International Covenant.

148 I also consider that it is relevant to the exercise of the discretion that there appeared to a form of systemic failure exemplified in the resignation of Sgt Ruehe that any request for police to be recalled for the mere transport of a prisoner was destined to fail.

149 As Simpson J said in Dalley v R (at [93]):

"Because of the importance of the protective provision of Part 10A it should not lightly be concluded that contraventions of those provisions will not result in the exclusion of evidence obtained as a result of the contravention."

150 In R v Dungay (supra) the Court of Criminal Appeal was considering a case where an accused person was arrested for the purpose of questioning. There was no evidence of an intention on the part of the police to take the accused before a Magistrate. The trial Judge allowed evidence of a confession to sexual assault. It was the only evidence against the accused. The Court of Criminal Appeal overturned the decision as to admissibility, allowed the appeal and entered a verdict of not guilty. Ipp JA said at [41]:

"The common law has always jealously guarded citizens against arbitrary arrest: Williams v R. The duty to bring an arrested person before a judicial officer as soon as is reasonably possible is one of the foundations of a democratic society. Our law recognises that no person should be arrested merely for the purposes of investigating whether he or she has committed a crime. Part 10A does not detract from this fundamental principle. In my opinion, the illegality involved in the appellant's arrest has to be regarded as being serious indeed."

151 These various factors pull in different directions. However, due to the seriousness of the charge and the very high probative value of the evidence, I would be inclined to exercise the discretion in favour of admission of the evidence. However, in view of the decision I have reached under s 84, discretion under s 138 does not truly arise.

CONCLUSION AND ORDERS

152 The evidence is rejected.

153 There will be a non-publication order over this judgment until the conclusion of the trial.

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Decision last updated: 05 November 2014