Director of Public Prosecutions v Secombe (Ruling)
[2025] VCC 1346
•19 August 2025 & 17 September 2025
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00284
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE SECOMBE |
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JUDGE: | Her Honour Judge Todd | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 18 August 2025 | |
DATE OF RULING: | 19 August 2025 & 17 September 2025 | |
CASE MAY BE CITED AS: | DPP v Secombe (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1346 | |
RULING
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Subject:CRIMINAL LAW – Ruling
Catchwords: s 138 application; exclusion of improperly or illegally obtained evidence.
Legislation Cited: Evidence Act 2008 (Vic) ss 138, 138(1), 139, 138(3), 139(1), 139(5), 139(2)(c); Crimes Act 1958 (Vic) ss 464A, 464, 464(1), 459, 464I, 464(1)(c), 464FA; Firearms Act 1996 (Vic); International Covenant on Civil and Political Rights art 9; Bail Act 1977 (Vic) s 3A(1)(b).
Cases Cited:Robinson v WoolworthsLtd (2005) 64 NSWLR 612.
Ruling: Evidence excluded by operation of s 138.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | OPP |
| For the Accused | Mr D. Carolan | Kurnai Legal Practice |
HER HONOUR:
Background
1On 24 July 2025 Mr Secombe made an application to exclude parts of the evidence on his trial. It was anticipated that a jury would be empanelled on 20 August 2025. Prior to empanelment, I indicated that one of the applications would succeed, that being the exclusion of the evidence of Mr Hall, with reasons to follow. These are those reasons.
The prosecution case
2Mr Secombe is charged with affray, intentionally causing injury, making a threat to kill, criminal damage and kidnapping.
3Briefly, the prosecution case is that on 24 June 2023 Mr Secombe, with another alleged offender Mr Morgan (who is not to be tried on this indictment) confronted Ms Jordyn Milliken and Mr Mitch Dunlop in their car, demanded money from them, injured Mr Dunlop, and threatened to kill Ms Milliken before taking Mr Dunlop away with them in a blue Holden.
4The prosecution case is that the two offenders were driven to this scene by a third man, Mr Hall.
5Mr Hall was not charged. He instead made a statement to police. In it, he admitted to being the driver of the blue Holden, and claimed that he had been coerced, then threatened, into performing this role. He identifies both Mr Secombe and Mr Morgan. He describes the offending. I will return to the content of Mr Hall’s statement shortly.
6Ms Milliken, the then partner of the complainant Mr Dunlop, is expected to give evidence at trial that she recognised both accused from an earlier meeting with them, having been introduced to them by Mr Dunlop; they had shared dinner with them on one occasion some months earlier.
7Mr Dunlop declined to make a statement to police and was the subject of a compulsory examination in the Magistrates’ Court on 1 December 2023. He said he does not remember anything about these events; he said he had never met Mr Secombe.
8Mr Secombe denies the offending. He denies presence at the scene.
9At trial, the prosecution will need to prove, among other things, that Mr Secombe was one of the offenders. The sources of that evidence are currently Ms Milliken and Mr Hall.
10This ruling concerns the admissibility of Mr Hall’s evidence.
The Hall statement
11I pause here to note the chronology of the emergence of Mr Hall’s statement. As I have said, the alleged offending took place on 24 June 2023. The offences were detected immediately, and police took a number of statements from witnesses the same day. Mr Secombe was arrested and taken into custody on 27 June 2023. As I understand it, the police were initially unable to identify the driver of the Holden.
12It was almost a year later, on 3 June 2024, that Mr Hall made a statement. Soon before he made his statement he was arrested, then ‘unarrested’ (the term used by the informant), but remained in the company of the police in circumstances I will soon describe. Mr Hall’s statement was handwritten and witnessed by Detective Leading Senior Constable Roberts. It was served under a ‘Notice of Intention to Call Additional Evidence’ dated 4 June 2024.
13The Summary of Prosecution Opening for Trial identifies Mr Hall as the driver of the blue Holden, and adds that Mr Hall’s involvement in the offending was ‘under duress’.[1]
[1]Summary of Prosecution Opening for Trial dated 26th April 2025 [9].
The s 138 application
14Mr Carolan, who appears for Mr Secombe, submits that by application of s 138(1) of the Evidence Act,[2] Mr Hall’s evidence is not to be admitted.
[2]2008 (Vic) (‘Evidence Act’).
15Ms Duckett, who appears for the Director, resists that submission.
Substance of the application
16Briefly, Mr Carolan argues that Mr Hall’s evidence was obtained in circumstances when he was unlawfully arrested and/or detained on 3 June 2024. He argues that Mr Hall’s statement was obtained as the result of his unlawful detention and arrest, and while he was under threat that he would be charged and taken into custody. Mr Carolan also argued that the method Detective Roberts used to obtain Mr Hall’s statement amounted to the offence of attempting to pervert the course of justice.
Applicable statutory provisions
17I first set out the content of the applicable statutory provisions. Section 138 of the Evidence Act reads as follows:
Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(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—
(a) the probative value of the evidence; and
(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.
18Section 139 of the Evidence Act reads:
Cautioning of persons
(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—
(a) the person was under arrest for an offence at the time; and
(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and
(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and
(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.
(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.
(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if—
(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
(b) the official would not allow the person to leave if the person wished to do so; or
(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
(6) A person is not treated as being under arrest only because of subsection (5) if—
(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth; or
(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.
19Section 464A of the Crimes Act[3] provides:
[3]1958 (Vic) (‘Crimes Act’).
Detention of person in custody[4]
[4]Notes omitted.
(1) Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be—
(a) released unconditionally; or
(b) released on bail; or
(c) brought before a bail justice or the Magistrates' Court—
within a reasonable time of being taken into custody.
(2) If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—
(a) inform the person of the circumstances of that offence; and
(b) question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.
(3) Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.
(4) In determining what constitutes a reasonable time for the purposes of subsection (1) the following matters may be considered—
(a) the period of time reasonably required to bring the person before a bail justice or the Magistrates' Court;
(b) the number and complexity of offences to be investigated;
(c) any need of the investigating official to read and collate relevant material or to take any other steps that are reasonably necessary by way of preparation for the questioning or investigation;
(d) any need to transport the person from the place of apprehension to a place where facilities are available to conduct an interview or investigation;
(e) the number of other people who need to be questioned during the period of custody in respect of the offence for which the person is in custody;
(f) any need to visit the place where the offence is believed to have been committed or any other place reasonably connected with the investigation of the offence;
(g) any time taken to communicate with a legal practitioner, friend, relative, parent, guardian or independent person;
(h) any time taken by a legal practitioner, interpreter, parent, guardian or independent person to arrive at the place where questioning or investigation is to take place;
(i) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention;
(j) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest;
(k) the total period of time during which the person has been in the company of an investigating official before and after the commencement of custody;
(l) any other matters reasonably connected with the investigation of the offence.
20Section 464 of the Crimes Act is a definitions provision. Section 464(1),[5] which concerns when a person is ‘in custody’, is in these terms:
[5]Crimes Act (n 3).
Definitions
(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.
21Section 459 of the Crimes Act governs when a police officer may arrest a person without a warrant:
Powers of police officer 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 police officer, 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).
22Finally, section 464I of the Crimes Act makes it clear that police do not have power to detain a person who is not under arrest:
No power to detain person not under arrest
Nothing in sections 464 to 464H (except as provided by an order made under section 464B(5)) confers a power to detain against his or her will a person who is not under arrest.
Issues I must decide
23I have distilled the issues in this application into the following questions:
(a) Was Mr Hall’s arrest lawful?
(b) Was Mr Hall ever given his caution and rights?
(c) Was Mr Hall detained by police after he was told he was no longer under arrest?
(i)If he was detained, was that detention lawful?
(d) Was Mr Hall’s statement obtained as the result of a threat of charge and imprisonment?
(e) If the evidence was obtained as the result of unlawful conduct, should it nevertheless be admitted when regard is had to the matters in s 138(3)?[6]
[6]Evidence Act (n 2).
The body-worn camera recordings
24Before setting out the arguments, my factual findings and legal conclusions, I will describe the events shown on the body-worn camera (‘BWC’) recording, which was eventually obtained by Secombe’s representatives and which shows approximately 48 minutes of police interaction with Hall from 11:07 am to 11:55 am on 3 June 2024. This was the lead up to Hall travelling with Roberts to the Horsham Police Station to make a statement.
25Roberts later gave evidence before me about the matters depicted on the BWC recordings.
26While watching the recording prior to this hearing, I made notes of the relevant exchanges. It is not official transcript, but after giving the parties an opportunity to check this, there is a kind of agreed record of the relevant parts of the BWC recordings. Hall’s first name is ‘Demo’ and he is addressed by that name throughout.
27I now summarise these events as seen on the body-worn camera.
11:06 am – A warrant is executed
28At 11:06 am Detective Roberts is walking up the stairs in Unit 5/6 Searle Street, Horsham. The unidentified wearer of the BWC follows behind him and says:
“I’m with you”.
29Roberts enters an upstairs bedroom. A man, who we later learn is Demo Hall, is asleep under the bedclothes, and then roused by Roberts who says:
Detective Roberts: Hey mate, Demo [inaudible] Police mate. Pull the blanket down. Stand up. You right? Turn around, move out here.
(Addressed to the camera wearer:) Check the other rooms.
30At 11:07:55 am, Roberts is out of view while the BWC wearer then looks into the neighbouring upstairs bedroom. This checking takes 14 seconds, which is audio recorded, though we cannot see Roberts and Hall for this period. The BWC wearer then returns to the area outside the first bedroom, saying “clear in here”. By this time, Hall is on the upstairs landing outside his bedroom, wearing a t-shirt and underpants. He is kneeling, his hands are held behind his back by Roberts, who is holding a pair of handcuffs. The following exchange takes place:
Detective Roberts: Stand up.
Mr Hall: What’s going on?
Detective Roberts: You’re under arrest.
Mr Hall: What for?
Detective Roberts: At this point, fucking kidnapping.
Mr Hall: What do you mean kidnapping?
Detective Roberts: Downstairs.
Mr Hall: Can I put shorts, pants on?
31Roberts then applies the handcuffs to Hall’s wrists behind his back. The three, Hall, Roberts and the BWC wearer then spend some time looking for pants in one of the bedrooms until they find a pair of shorts, which Hall is helped into. At 11:10:28 am Hall is helped downstairs.
32Once there, we see a number of police conducting a search in and around the unit. Another occupier, a woman who we later learn is Hall’s sister or cousin, is having a conversation with police and registering her protest at police using force to enter her property.
33The BWC wearer moves outside. Other police can be seen in and around the unit and the one next door, where another search is already under way. There appears to be one young person from the neighbouring unit arrested and sitting on a chair. Apparently in relation to this, a woman is calling out “I need to see them I’m their mother”.
34It is now 11:11 am. At this stage, another BWC, worn by an officer stationed at the end of the shared driveway to the units, captures Roberts and the handcuffed Hall making their way out of the unit and down the driveway towards the street. One of the officers, recorded on the BWC, expresses some surprise to see Hall wearing handcuffs.
35At 11:12 am Roberts and Hall arrive at the end of the driveway where it meets the street. Roberts says:
Need somewhere private to talk to Demo.
36Another officer, it is unclear who, is heard to say:
I don’t wanna record this.
37Hall mentions it being cold. From somewhere, a hoodie is produced and offered to Hall. He can’t put it on because of the handcuffs, which are then removed. Hall says:
I’m not going to run anywhere guys, you know that
[unidentified officer]: I was going to hold you anyway mate
38I pause here to note that Hall is a slightly built Aboriginal man who looks younger than his 27 years. At all times he is mild and compliant.
39A number of police, at a minimum two, in uniform, remain at the driveway entrance throughout what happens next, and stand within 2-3 metres of Hall, who either sits or lies on the concrete driveway.
40Detective Acting Sergeant Adam Bronca is a tall, armed police officer. He engages Hall in casual discussion about his family during pauses in Roberts’ questioning. At least one other police officer is present and wearing a BWC. They are joined sometimes by other uniform and non-uniformed police. We later learned that 15 police in all were at the property that morning.
41At 11:15 am, there is this exchange between Hall and Roberts:
Mr Hall: So what’s this? Kidnapping? –
Detective Robets: The Tommy Morgan thing
Mr Hall: Fuck Tommy Morgan
Detective Roberts: You’re better off staying away from all that shit my friend Demo
Mr Hall: Yeah look what I just got brought into look at all this all for nothin’. Look at [inaudible] carrying on
42The casual conversation between Hall and Bronca then resumes. At 11:19 am the following exchange occurs:
Detective Roberts: – You’re not under arrest anymore mate, but you’re still in our custody.
Mr Hall: – yep. yeah alright. Custody[7] sounds nice. Sorry. I got a weird brain (laughs).
[7]There is some dispute about the transcript of this – Mr Hall either says ‘custard’ or ‘custardy’ or ‘custody’.
43After telling Hall he is not under arrest anymore, Roberts walks back up the driveway towards the units. The other police, including Bronca, remain in place. Hall does not move.
44More conversation about Hall’s family unfolds between Bronca and Hall. Hall remains seated on the concrete. Police remain standing, close to him.
45At 11:20 am Roberts returns from the units and Hall says:
Mr Hall: About the time … Fucken ‘I was in Stawell when all that went down’…Tommy and all that I’ve been fighting with Tommy for ages…family’s funeral.
46Hall is still on the driveway while a series of exchanges and phone calls take place between Roberts and the wearer of the BWC about another part of this, or another investigation. At some stage, Hall is given a lit cigarette to smoke.
47At 11:26 am, Roberts, standing, smoking a cigarette, addresses the still seated Hall about the car said to have been used in the offending. The following is said:
Detective Roberts: What are those Aboriginal’s names that live at Lilac Street – sort of a bit of an elder fella?
Mr Hall: Gerry?
Detective Roberts: Gerry. He reckons you took the car. Blue car.
Mr Hall: Nah I didn’t take it. He wanted to sell it to me. But I said I’m not buying it because… cars on the road.
Detective Roberts: Mate your fingerprints are on it. So you must have fucking driven it.
Mr Hall: I touched the car. Yeah. Cause it was Uncle Gerry’s car it was at his house.
Detective Roberts: You weren’t driving it when –
Mr Hall: Nah I wasn’t driving it…[inaudible]… I wasn’t (living?) in Stawell at the time…[inaudible]. [inaudible] has got the car now.
Detective Roberts: So what you’ve gotta do to prevent yourself from being charged with kidnapping with Tommy and Jamie… is to make a statement to say you weren’t with them [inaudible due to BWC Officer talking]…that date if you need a date…work out where you were that day and tell us why your fingerprints are on the car.
Mr Hall: Well my fingerprints were on the car because it was at my family’s house.
Detective Roberts: That’s what you’ve gotta do.
Mr Hall: Ah, easy.
Detective Roberts: And I won’t charge ya.
48This conversation continues; it is necessary to quote it at length. Again, there is no dispute that the following exchange took place at 11:26 am. Roberts is standing, at least two uniform police members are close by.
Mr Hall: Look I don’t even know what the fuck’s going on like – first I’ve heard about kidnapping…[inaudible]…Tommy…[inaudible]…(didn’t know?) I was involved
Detective Roberts: Well you are. And it’s common sense so don’t think I’m being a fucking asshole – your fingerprints are on the car, and the bloke who owns it says he gave it to ya. Right, so. So they’re the facts. Okay.
Mr Hall: Yeah, Uncle Gerry.
Detective Roberts: Yes. He said he gave you the car before he went to Adelaide.
Mr Hall: He didn’t give me the car he –
Detective Roberts: Lent it to you.
Mr Hall: We were gonna talk about buying it.
Detective Roberts: Well he lent it to you.[8]
[8]I note that Gerry’s statement dated 22 December 2023 says that he lent Hall the car.
Mr Hall: No he didn’t, cause I didn’t have a licence.
Detective Roberts: I don’t care about your licence. I don’t fucking – you’re Aboriginal you don’t have to have a licence – [laughing] – I don’t care about that. I care about the fact he’s told ya he lent the car to you. And a few days later, there’s a kidnapping with that car.
Mr Hall: Yeah see nah –
Detective Roberts: It’s not rocket science mate.
Mr Hall: Yeah I didn’t drive it though.
Detective Roberts: That’s what you need to stick to otherwise you’re going to go to [inaudible]. Otherwise, these are your options. Tell the truth and say yeah I was driving I didn’t know what they were doing, and then I’ll [inaudible] take… give me a statement to that effect. Or, say you weren’t driving it and tell me where you were.
Mr Hall: [nodding].
Detective Roberts: Mate Demo. Fuck mate, your people have known me for fucking 30 years. I’m not gonna fuck you over. If you fucking were in the car and you felt intimidated by these two fucking blokes just tell the truth.
Mr Hall: It’s Jamie of course you’re gonna be intimidated.
Detective Roberts: Yeah well just tell the truth. And we’ll fucking, you’ll be a witness and fucking. They’re fucked, they’re fucked.
Mr Hall: Jamie, he’s the one that fucked it.
49At 11:29 am the conversation continues:
Detective Roberts: The girl fucking – the girl knows them. She’s already given evidence to say it was them – they’re fucked. So why get yourself into trouble. Why? Tommy’s gonna fucking – he’s sitting on the fence a little bit with it all – so he won’t get in as much strife – but, he’s fucked up too. He knows it. I’ve known Tommy for 30 years mate.
Mr Hall: I don’t even know what’s happening. I say no – Jamie put a knife to my throat.
Detective Roberts: Right. Look I can imagine – you haven’t been arrested fucking 12 months ago have you when I first locked everyone up. So its procrastinated a little bit [DH inaudible interjection] – because I believed you’d be a witness. I believed that.
50I note here that Roberts’ tone of voice is emphatic, enthusiastic even, when he speaks the word ‘right’.
51At this point, Hall’s sister or cousin arrives at the end of the driveway. She explains to Roberts that she is worried about the warrant at her house because she doesn’t want this “coming back to DHHS”. She talks to the police about her house and children.
52At 11.34 am we see Roberts walk towards the wearer of the BWC and make what I will describe as two ‘film director’s’ cut gestures across his neck. The BWC wearer responds by putting his hand over the camera before switching it off. There is a break of about two minutes in the recording, which then resumes at 11:36 am.
53Hall is still seated on the concrete when at 11:41 am another officer, who we later learn is an Ararat Detective, (AD) arrives and says to Roberts, referring to Hall:
AD: He hasn’t been arrested has he?
Detective Roberts: He’s been arrested.
AD: He has been? So he’s coming back to the station?
Detective Roberts: Some shape or form.
AD: Right.
Detective Roberts: If I can get some privacy I’ll sort that out.
(…)
AD: He is coming back?
Detective Roberts: In some shape or form. As an offender or witness.
54At 11:42 am the wearer of the BWC walks away and faces his camera to the street. One of the officers says, “we’ll go over here”. The two carry on talking about other matters. After a time the wearer turns back towards the house, and we see Roberts and Hall in conversation though we cannot hear what is being said. The BWC wearer or the person standing near him says:
Does a rat know he’s a rat?
55At 11:55 am Hall is in the rear passenger seat of an unmarked police car which is reversing out of the driveway; Roberts is seated next to him.
56Shortly afterwards, Hall makes a statement, witnessed by Roberts, setting out how he was the driver of the blue Holden, that Tommy Morgan and Jamie Secombe were his passengers, and that he was forced, at knifepoint, to participate in those events. The statement is read back to him while he his filmed.
Evidence of DLSC Roberts
57Roberts had made a statement in relation to the arrest of Hall dated 20 June 2024. On 18 August 2025 DLSC Roberts gave evidence on a voir dire. He has been a police member for 38 years.
58He said that prior to the 3 June 2024 two warrants were obtained by police pursuant to the Firearms Act 1996[9] to search the two units at 5 and 6, 6 Searle Street.[10] He said the search warrants did not relate to Hall but to an aggravated burglary that occurred the weekend prior.
[9](Vic).
[10]See Exhibit D1 on Pre-Trial Application.
59He said Hall had been a ‘person of interest’ in his investigation of the offences on 24 June 2023 and that he had obtained evidence of a fingerprint on the blue Holden which matched Hall’s fingerprint. He had tried without success to locate Hall. He had some information from a witness Gerry Branson[11] that Hall was lent the blue Holden at the relevant time. Hall was a relative of Branson and called him ‘uncle’. He was also related to Mr Morgan and Mr Secombe. There was no other evidence implicating Hall, apart from his fingerprint on his uncle’s car.
[11]Statement dated 22 December 2023 served under Notice 4 June 2024.
60Roberts said in his evidence that he attended the warrants because he thought there might be a chance Hall was present.
61He agreed that all together some 15 uniform and CIU police members were involved with the execution of the warrants. He said his intention was, if he located Hall, to place him under arrest for the kidnapping. He agreed the warrant did not name Hall.
62Initially, Roberts said in his evidence that he “unarrested” Hall (Roberts’ term) because Hall had said something that caused him to believe that he was an unwilling participant in the crime. However, he later agreed that up to the point of his ‘unarrest’, Hall had only ever denied being present. He agreed that there was no record, prior to the day of the warrant, that suggested Hall was an unwilling participant in the crimes he was investigating.
63Roberts agreed that he knew Hall was related to both Mr Morgan and Mr Secombe. He agreed he did not put Hall in touch with a solicitor.[12]
[12]Transcript of Proceedings, Director of Public Prosecutions v Jamie Secombe (County Court of Victoria, Judge Todd, 18 August 2025) 20.16-18.
64He said that after Hall’s statement was made, he had some further interactions with him, and was concerned for his welfare, and worried that that he could be “gotten to”.[13]
[13]Ibid 23.23.
65In his statement about Hall’s arrest, Roberts had said :
I had a conversation with him placing him under arrest for kidnapping and issuing him his caution and rights.[14]
[14]Statement of Detective Senior Constable Neale Roberts dated 20 June 2024 [4].
66In his evidence Roberts maintained he did give Hall his caution and rights. He recalled giving the caution to Hall in the room upstairs, before taking him downstairs and outside. He said his “usual practice” was to arrest and give caution and rights at the same time; he conceded that it “does appear to be the case” that the arrest was not simultaneous with the caution and rights.[15]
[15]Transcript of Proceedings (n 12) 33.18-19.
67Some time ago, before the disclosure of the BWC recordings, Roberts had given evidence at a s 198B hearing that there were no uniform members in his presence when Hall was arrested upstairs at the property. On the voir dire before me Roberts accepted that that was clearly incorrect. He did not accept, however, given his memory about giving the caution, that the entirely of his interactions with Hall in the bedroom were captured by BWC either with vision, audio or both.
68Roberts said that he had no memory of cautioning Hall outside.
69Roberts was asked about his stated need, at various times, for ‘privacy’ to conduct his conversations with Hall. He agreed that when he arrived at the end of the driveway, he had had a number of conversations with Hall while there. He agreed that the officer who says “don’t want to record this” before turning away possibly did so in response to Roberts’ statement that he needed privacy to talk to Hall. He said his reasons for wanting to conduct an interview ‘in private’ and not have the conversation recorded by BWC were “in fairness” to Hall.[16]
[16]Ibid 41.3.
70Roberts agreed that he knew that if a person was not under arrest they were then at liberty, and free to go, and that without a basis to hold somebody, that the arrest is unlawful.
71He agreed that at the moment Hall was told “you’re not under arrest anymore …but your still in our custody” he was still under physical guard by a number of police members and that it was “as clear as day” to Hall that he was not free to go.[17] Roberts gave evidence that if Hall had said after he was ‘unarrested’, “I’m out of here” he would have allowed him to leave.[18]
[17]Ibid 46.4.
[18]Ibid 46.12-13.
72He also accepted that what was said to Hall, that is “you’re still in our custody” is a precise contradiction of that position.
73Roberts agreed that he had ‘unarrested’ Hall at a time before Hall had given him any information about the allegations, other than broad denials of presence. He accepted that the things Hall was told, being “you’re not under arrest anymore but you’re still in our custody” could be highly confusing for him. I recall again here that Hall had said, at the time the handcuffs were being removed: “I’m not going to run anywhere guys, you know that.”
74He agreed that in the conversation that followed he had said to Hall, in effect: ‘You need to make a statement and I won’t charge you’. He agreed that he had proposed to Hall that he give one of three versions of events in a statement, described as ‘options’. He said in re-examination he would simply have let Hall go if he hadn’t agreed to make a statement.
75Roberts agreed that he had said, within Hall’s earshot, that Hall was “coming back to the station in some shape or form… either as a witness or as a suspect”. He agreed that this sounds like the ‘shape or form’ of Hall’s return to the station was dependent upon whether Hall was willing to provide a statement.
76He agreed that this inferred that there were only two ‘options’ available to Hall: make a statement, or be arrested, again. He said this was merely a “bravado type comment” for the benefit of the other Detective,[19] not said for the benefit of Hall, who he acknowledged was within earshot. It was suggested to Roberts that the comment “if I get some privacy, I can sort that out” was to be able to tell Hall what it was he had to say to ensure that he went back to the police station as a witness, rather than as an accused in custody. Roberts denied this.
[19]Ibid 61.13.
77Roberts testified that there was “never the evidence there to charge Mr Hall”,[20] and that, in the absence of a confession from him, a brief would never have been authorised.
[20]Ibid 66.09.
78He agreed that on a number of occasions after arresting Hall at the house he sought ‘privacy’ to speak to Hall, and that this extended to indicating to the member wearing the BWC not to record parts of this interaction. The reason he gave for this was that videoing someone speaking with police is just as intrusive as if they were observed by members of the public passing by. He agreed that requesting the BWC not record parts of what occurred “doesn’t look good” but “is what it is”.[21] He acknowledged that at one point he made what appears to be a film directors’ cutting gesture across his neck directed at the wearer of the BWC, who then ceases recording. He agreed that later he recorded Hall reading over his statement back at the station and that this represents a “very different” approach to video recording Hall.
[21]Ibid 75.16-17.
79He said that he may have conducted a briefing with other members before attending the execution of the warrant about his intentions with Hall that day.
80Roberts said that it looks like he was “holding [Hall] to account” – but it was, “…just a process I was going through in my mind to get a result, which was obtain a statement from Mr Hall about the truth of what occurred on that day.”[22]
[22]Ibid 80.26-30.
Submissions of Ms Duckett
81Ms Duckett said Hall’s arrest was lawful pursuant to s 459 of the Crimes Act; given Roberts believed on reasonable grounds that Hall had committed the indictable offence of kidnapping.
82She argued that no caution was required to be given to Hall once his status was adjusted from ‘suspect’ to ‘person of interest’ after Roberts advised that the initial arrest was withdrawn. She argued that the questioning of Hall, being merely a person of interest after he was told he was no longer under arrest ‘whilst not applaudable’ was ‘realistic’.[23] Witnesses are not required, she argued, to be given the caution.
[23]Prosecution Response to Pre-Trial Response dated 24 July 2025 [5].
83Further, she argued that there was no covert behaviour on the part of the police.
84There was no evidence that anything that occurred was unlawful.
Submissions Mr Carolan
85Mr Carolan argued that I should find that there was a failure to caution Hall and, as a result, there was deemed impropriety by operation of s 139(1):[24] Hall was under arrest and not given a caution.
[24]Evidence Act (n 2).
86He argued that it was plain that Roberts arrested and ‘unarrested’ Hall to put him in a position whereby his ‘options’ were either, make a statement implicating Mr Secombe or be taken into police custody and charged. Mr Carolan argued that the ‘options’ given to Hall by Roberts, were either: you weren’t there, or you were there but you didn’t know what they were doing, or you were there and you were intimidated. Mr Carolan argued these ‘options’ were calculated to make Hall give one of those three statements, regardless of their truth. He argued that the invitation to make a statement without regard to its truth amounted to the offence of attempting to pervert the course of justice.
87Mr Carolan argued that Roberts’ conduct and the unlawful detention of Hall offended his right to liberty and freedom from unlawful arrest, both rights which are enshrined at Article 9 of the International Covenant on Civil and Political Rights.[25]
[25]Opened for signature 16 December 1966, [1980] ATS 23 (entered into force 23 March 1976) (‘ICCPR’).
88Mr Carolan argued that these breaches by Roberts were deliberate and performed by an experienced officer of senior rank who knew at all times that his conduct was unlawful. He argued that it would have been simple to follow the lawful procedures either for arrest and interview, or for invitation to make a statement. In those circumstances, the Crown cannot establish that the evidence should, though unlawfully obtained, nevertheless be admitted.
Findings and conclusions s 138
89I turn now to my findings and conclusions of law.
90First, I do not accept Roberts as a credible or reliable witness. His account was often fundamentally in conflict with other evidence. Again, and again his explanation was demonstrably inconsistent with what is recorded on the BWC. His sworn evidence given before the release of the BWC recordings was grossly at odds with the record.
91I reject Roberts’ explanation for seeking ‘privacy’ to speak to Hall. It is patently clear that Roberts did not want what he was about to do recorded because he well knew it was unlawful. I do not accept his explanation that he was concerned with preserving Hall’s privacy. I note that Roberts organised for Hall’s statement to be filmed once he was reading it out at the station. Roberts’ efforts to prevent BWC recordings happening was for his own purpose or ‘result’. I do not accept that Roberts’ telling the other police officer that Hall was coming back “as a witness or a suspect” was an “act of bravado” for the benefit of an Ararat Detective. There is no plausible reason why these words represent an act of bravado or even if they were, why such an act might be directed at a member of the Ararat unit. Rather, his was an act directed at Hall, to place him under pressure to make a statement.
Was Mr Hall’s arrest lawful?
92I find that Roberts initially had lawful grounds to arrest Hall pursuant to the power in s 459 of the Crimes Act. He had a fingerprint on a car, and information that Hall was lent the car.
Was Mr Hall cautioned either at the time or after his arrest?
93I reject Roberts’ evidence that he cautioned Hall. This did not occur inside or outside the unit before speaking to him and asking him questions. I am confident that the entirety of Roberts’ interactions with Hall in the upstairs area was recorded either on camera, or on audio, or both. Moreover, it is very clear that Roberts did not make the arrest and provide the caution at the same time, which was his usual practice. He had no recollection of giving the caution outside. I find that Hall was never cautioned.
94I will now address the period from arrest until 11:19 am when Hall was told he was not under arrest anymore. I conclude for this period, between 11:07 am and 11:19 am, Hall was under arrest without caution and, partly in consequence of this, Hall made his statement.
95From 11:19 am to at least 11:55 am (and probably beyond that time when making his statement) he was in the company of an investigating official as defined in s 139(5),[26] and ‘in custody’ pursuant to s 464(1)(c).[27]
[26]Evidence Act (n 2).
[27]Crimes Act (n 3).
96As the result of the failure to caution, and by operation of s 139(1),[28] Hall’s statement was obtained improperly and is prima facie inadmissible.
Was Mr Hall detained after he was told he was no longer under arrest, and was that detention lawful?
[28]Evidence Act (n 2).
97Further, I find that from 11:19 am Hall’s detention was unlawful, and that this unlawful detention persisted from 11:19 am until at least 11:55 am and probably beyond.
98Hall was simultaneously told he was no longer under arrest but also told he was “still in police custody”. None of his objective circumstances changed when he was told he was no longer under arrest. He remained seated on the ground and was watched by armed police. I reject Roberts’ evidence as false when he said that he would have allowed Hall to leave had he expressed an intention to do so. Such evidence is wholly inconsistent with Roberts’ own acts at the time – the telling Hall he was “still in our custody” and the ongoing threats to take Hall back to the station “as a witness or a suspect”. Further, Hall was consistently within arm’s reach of several armed police, none of whom told him he was free to leave if he wished.
99I find that the circumstances of Halls’ detention from 11:19 am were created in order in order that he experience his situation as ‘in the balance’ between being suspect and witness; I find that this situation was deliberately orchestrated by Roberts in order to obtain Hall’s statement implicating Mr Secombe. I find Hall’s unlawful detention was one of the things operating on him when he told Roberts he would make a statement.
100I note for completeness, that if Hall was no longer under arrest at 11:19 am Detective Roberts had, pursuant to s 464I of the Crimes Act, no power to detain him.
Was Mr Hall’s statement obtained as the result of a threat of charge and imprisonment?
101In his evidence, Roberts agreed that he had given a range of ‘options’ to Hall. They were to:
1. Make a statement to the effect that “you were not driving and tell me where you were”; or
2. Tell the truth and say “I was driving and I didn’t know what they were going to do”; or
3. Make a statement to the effect that he was driving but did so having been intimidated by Mr Secombe and Mr Morgan.
102I pause to observe that each ‘option’ was exculpatory for Hall, but only options two and three would have provided police with a witness statement identifying the accused.
103Option one, that is, not at the scene but elsewhere, was discouraged by Roberts’ reminder that his fingerprint is on the car:
Detective Roberts: And it’s common sense so don’t think I’m being a fucking asshole – your fingerprints are on the car, and the bloke who owns it says he gave it to ya. Right, so. So they’re the facts. Okay.
104I observe here that it was Roberts who first introduced the idea of Hall’s acting under duress:
Detective Roberts: If you fucking were in the car and you felt intimidated by these two fucking blokes just tell the truth.
105Soon after this statement by Roberts, we see Hall reflect for a moment, I infer on his ‘options’, before saying clearly:
I don’t even know what’s happening. I say no – Jamie put a knife to my throat.
106This I observe, in two short sentences, provides a combination of options two and three, being both a defence to acting in complicity and simultaneously establishing the defence of duress.
107The response to this by Roberts, and seen in the on the recording, is an energetic “Right!”. This, I find, is the ‘result’ that Roberts sought, and had pursued from the start.
108I also observe that there was a fourth option, which was communicated to Hall throughout, both expressly (“as a witness or as a suspect”) and impliedly through the conduct of Roberts and other attending police, and that option was that he might decline to make a statement and, if he chose that option, he would be rearrested, charged with kidnapping and at least potentially held in custody (where his co-accused were already). This ‘option’ permeated the entire interaction even when Roberts knew he lacked evidence sufficient for a brief of evidence to be authorised on Hall.
109I find that Roberts’ actions were both considered and deliberate. I find the original arrest and handcuffing for “fucking kidnapping” was part of a lengthy performance by Roberts, the object of which was to place Hall under irresistible pressure, on threat of charge and detention in custody, to make a statement and make one of a very particular kind.
110I find that the other police present were either acquiescent in this scheme or offered their positive support for it. It is unflattering to the police culture that Roberts’ conduct was apparently so normalised and accepted by other police present.
111In this case, no argument was made on this application that there had been a breach of s 464FA;[29] nor was there argument raised in relation to the threat of custody being, for a young Aboriginal man, particularly grave given the risk of harm that being in custody poses to Aboriginal people.[30] Hall’s aboriginality was a theme that ran expressly through Roberts’ treatment of him. He made reference to “your people” and knowing them for 30 years. He joked about Aboriginal people not needing driver’s licences. I make it clear that my conclusions are not, in this case, driven by these observations. However, to make no reference to them would be to incompletely describe the power relationships that are evident in the BWC footage.
[29] Crimes Act (n 3) - Police to notify VALS within one hour or as soon as practicable when an Aboriginal person is taken into custody.
[30]See for example Bail Act 1977 (Vic) s 3A(1)(b).
112These acts were wholly inconsistent with Hall’s rights under Australian law, and with his rights to liberty and freedom from unlawful detention under the ICCPR.
113This was, frankly, an outrageous exercise of power by a senior police officer over a young Aboriginal man. I reject Roberts’ evidence that later contact with Hall was made out of concern for his welfare. Hall’s difficult situation was the direct result of his unlawful manipulation by police on 3 June 2024.
114It was open to police to either arrest Hall and, under caution, interview him as a suspect. It was also open to police to ask Hall whether he wished to make a statement, while making it clear he was under no obligation to do so. Hall may or may not have made comment at interview or agreed to provide a statement. I accept that it is unlikely that Hall’s statement would have been obtained if police had acted properly.
115I was made aware that there had been some form of formal internal police inquiry into these events, and that no further action would be taken. I understand that there is no anticipated consequence for Roberts of these events.
116I conclude that Hall’s evidence was obtained both improperly and in contravention of Australian law. The police conduct involved the deliberate, sustained and unlawful detention of a young Aboriginal man who was threatened with police custody unless he made a statement against other Aboriginal people who were his relatives.
117Moreover, I find that Roberts sought ‘privacy’ for the purpose of the unlawful intimidation of Hall. Thinking he had that ‘privacy’ Roberts did things that were both forbidden by law, and failed to do things which were required by law to be done. Other police either acquiesced in this process or gave their positive support. These actions by Roberts, done with the support of his colleagues, are clearly inconsistent with the minimum standards the community should expect and require of those entrusted with powers of law enforcement.[31] These actions would, I find, bring Victoria Police into disrepute and diminish public confidence in those entrusted with police power. It is in the public interest that no prosecution should be aided by the product of this conduct. It comes at too high a price.
[31]Robinson v WoolworthsLtd (2005) 64 NSWLR 612, 618.
118Kidnapping and assault are serious forms of personal violence, and there is a strong community interest in perpetrators being brought to justice.
119I observe that at the time of these events, police already had a statement from a witness that identified both accused. Hall’s additional statements import in the overall proceeding was not high, given the immediate and detailed identification evidence the police already had.[32]
[32]I observe here that in during later pre-trial argument, Mr Secombe entered pleas to a negotiated indictment and will be sentenced in the County Koori Court.
120Given my findings about the extent, deliberateness, and gravity of these breaches, I have balanced the s 138(3)[33] factors and conclude that no part of Hall’s statement is to be admitted in Mr Secombe’s trial for any purpose either in examination in chief or in re-examination: the desirability of admitting the evidence does not outweigh the undesirability of admitting evidence obtained in these circumstances.
[33]Evidence Act (n 2).
121My findings are made on the balance of probabilities; it is unnecessary for me to consider whether Roberts’ efforts would independently make out an attempt to pervert the course of justice.
122Hall’s evidence is excluded by operation of s 138 of the Evidence Act.
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