Peter Jonathan Gollan v R Phillip Richard Webster v R Nos. SCCRM 93/506 and SCCRM 93/507 Judgment No. 4555 Number of Pages 21 Criminal Law and Procedure Evidence

[1994] SASC 4555

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MOHR(2) AND MILLHOUSE(3) JJ

CWDS
Criminal law and procedure - evidence - unlawful detention - duty to inform of reason for arrest - duty to inform of rights upon arrest - exercise of judicial discretion to exclude evidence subsequently obtained against the accused on the grounds of illegality, unfairness and public policy - the decision of the trial Judge to allow in subsequent evidence, despite breaches of ss 78,79a and 81 of the Summary Offences Act, upheld - proper to admit the evidence. Summary Offences Act (SA) ss.75,78,79a and 81. R v O'Neill 48 SASR
51; Dumbell v Roberts (1944) 1 All ER 326; Dallison v Caffery (1965) 1 QB 348; R v Ireland (1970) 126 CLR 321; Bunning v Cross 141 CLR 75 and Pollard v R
(1992) 110 ALR 385, applied. Petty v R 171 CLR 635, discussed.

Criminal law and procedure - evidence - unlawful detention - obligation to release an accused person as soon as is reasonably practicable when no longer any just cause to detain exists - detention technically unlawful however police mistakes genuine oversight, not of serious magnitude - failure of trial Judge to exercise discretion upheld - proper to admit evidence. Williams v R
(1986) 161 CLR 278 and Cleland v R (1982) 151 CLR 1, applied.

Evidence - admissibility and relevancy - sufficiency of inferential chain regarding circumstancial evidence - appeal against convictions dismissed.

HRNG ADELAIDE, 21-22 April 1994 #DATE 19:5:1994

Counsel for appellant Gollan:     Mr G Lang

Solicitors for appellant Gollan: Aboriginal Legal Rights
   Movement

Counsel for appellant Webster:     Mr J Lyons

Solicitors for appellant Webster: Aboriginal Legal Rights
   Movement

Counsel for respondent:            Ms A M Vanstone QC

Solicitors for respondent:         Director Of Public
   Prosecutions (SA)

ORDER
Appeal against convictions dismissed.

JUDGE1 KING CJ I agree that these appeals should be dismissed for the reasons given by Justice Mohr.

JUDGE2 MOHR J On the evening of the 6th August 1992 at about 11 p.m. Mr Nesbitt and his 15 year old daughter were sitting at home watching television. An aboriginal man armed with a screwdriver entered the room in which they were sitting. He was followed by another aboriginal man armed with a hammer. They were followed by an aboriginal woman. Then followed an horrific series of events. Mr Nesbitt was seriously assaulted and robbed of about $500.00. His daughter was raped three times by one of the men and once by the other. They were both charged with rape. The first with three counts and the other with one. There was a further count of wounding with intent to do grievous bodily harm. On each count the two appellants and the woman were jointly charged.

2. All were found guilty of armed robbery. The two male appellants were found guilty of all counts of rape and all three acquitted on the count of "wounding with intent to do grievous bodily harm" but guilty of unlawful wounding.

3. At trial and on appeal there was no dispute that the offences had been committed and that two aboriginal men and an aboriginal woman had been involved. The contest at the trial which was held by a Judge without a jury was whether or not the appellants were the offenders.

4. Before the trial proper began there was a long "voir dire" directed to the exclusion of certain evidence concerning events which occurred in Adelaide from about 7.25 a.m. on the 7th August 1992. The evidence taken at the "voir dire" hearing was admitted as evidence at the trial proper and formed part of the proceedings.

5. The chronology of events before and after the commission of the offences was that about 8.30 pm on the 6th August the appellants left an address at Buckland Avenue Murray Bridge. At about 11 pm the offenders entered the Nesbitt home at Gray Street Murray Bridge. The offenders left in Mr Nesbitt's Ford motor car using the keys taken from Mr Nesbitt.

6. The car was found at about 6 am on 7th August overturned on the Mypolonga Road north of Murray Bridge. Certain items were recovered from it which assumed significance if the evidence of what happened after 7.25 am on 7th August was properly admitted. There was apart from that evidence the evidence of a Mr Jones a taxi driver who picked up two male and one female aborigines from an address 76 Railway Terrace at about 2.30 am and drove them to Adelaide. One of the male passengers identified as being named Webster. During the trip the taxi stopped at a Mobil Service Station for petrol. The female and one male entered the shop which was part of the service station and that was recorded on a video. The video showed that the woman was wearing shoes which matched the description of the shoes worn by the female offender according to the evidence of Tracey Nesbitt.

7. During the offence at the Nesbitt house an axe was used and this one was subsequently recovered from 76 Railway Terrace Murray Bridge. Other items taken from the Nesbitt house were found along the presumed path of the offenders from the overturned car to 76 Railway Terrace. The blood stained hammer was found about 300 metres from the overturned car. It had been taken from a tool box in a utility parked just around the corner from Mr Nesbitt's house.

8. Mr Jones' evidence was that he left his passengers in Hindley Street Adelaide at about 4 am that morning.

9. The appellants and the female were seen at about 7.25 am near the Old Queens Arms Hotel in Wright Street Adelaide. A police patrol car attended at these premises following a complaint from the bar room of a disturbance. Their car was soon joined by another and then another so that there were six police officers present. Two Constables entered the hotel. They were Constables Doecke and Schneebichler. They removed Webster from the hotel and Carter followed their car. The appellant Gollan was then seen to alight from a Datsun car and approach the group. A Constable White had noticed that the Datsun had a broken window. He made a vehicle check and was told the vehicle had been reported stolen. The facts of this report proved to be correct which thereupon he detained Gollan for illegal use. He was handcuffed. Constable Kittel arrested Carter and Doecke arrested Webster. They were handcuffed. The time then was about 7.42 am The three were taken to the Adelaide Police Station for further investigations to be made.

10. A fourth person one Lindsay was also spoken to about the Datsun. He had an explanation which if true explained how the Datsun came to be there. Some argument was addressed on the topic of Lindsay not being arrested while the other three were but a perusal of the transcript shows that on giving his explanation he agreed to accompany the police to the police station while checks were made. He did so and apart from checks being made he played no further part in the events. It was suggested to the learned trial Judge and to this court that the arrest of the three and in particular the two appellants was in fact not because of the suspected illegal use of the Datsun but that that was merely an excuse and the real purpose was because they were suspects regarding the Murray Bridge offences.

11. The officers concerned had attended a briefing at 7 am that morning. During that briefing the Murray Bridge offences were mentioned and broad descriptions of the three offenders read out to the officers. They made notes in their note books.

12. One officer Constable Kittel gave evidence that she suspected at the hotel that the three could be those wanted for questioning in relation to the Murray Bridge offences. At the briefing no mention was made of any suspicion that the offenders were in Adelaide.

13. The "voir dire" on this topic was lengthy and thorough.

14. His Honour dealt with the matter at length and I quote him:-
    "The evidence discloses that Kittel thought that the
    three persons detained could be those wanted for
    questioning with respect to the Murray Bridge matter
    mentioned at the 7.00 am parade. Her evidence, and that
    of those who heard her speak of this at the Hotel, is
    that that possibility played no part in the action that
    any of them then took against the three accused. I
    accept that evidence and find that the action taken by
    the officers at the Hotel was not prompted by any belief
    or suspicion that the accused were, or could be the
    persons referred to in the Murray Bridge matter brought
    to their attention at the 7.00 am parade. I reject the
    submissions that the restraints imposed upon the liberty
    of each of the three accused at Wright Street was for
    any ulterior purpose such as detaining or questioning
    them about their possible involvement in the Murray
    Bridge offences. The swift action of those detaining
    the three accused was their way of dealing with what
    they saw as a volatile situation in a known trouble
    spot, best defused, according to them, by being dealt
    with away from the scene and at the Adelaide Police
    Station, less than a five minute drive away. Questions
    remain about the lawfulness, fairness and propriety of
    their actions and those of others. The power to arrest
invoked from s75 of the Summary Offences Act, 1953 here
    required a reasonable cause to suspect that the arrested
    person had committed an offence. This is challenged,
    particularly because of what Carter and Webster said at
    the scene. It is also submitted that the obligation to
    inform a person of the fact of arrest was not discharged
    in Webster's case. Unlawful detentions occurred. The
    demands or conditions in ss78, 79a and 81 of the Act
    were not satisfied, calling for the consideration and
    exercise of judicial discretions to exclude evidence
    subsequently obtained against the accused. When Webster
    was detained by Constable Doecke at the Hotel, he was
    not told he was under arrest. Arrested he certainly was
    after Doecke took his name and address and warned him
    that he was not obliged to answer any further questions.
    Webster told Doecke, after Doecke had himself been
    informed that the Datsun had been reported as stolen,
    that he had got a ride with Lindsay to the Hotel and
    that he, Webster, did not know that the Datsun was
    stolen. Doecke had made some enquiries of Webster about
    his knowledge of the car and asked whether he wanted
    Aboriginal Legal Rights present during any further
    interview. The officer said that his conversation with
    Webster began at 7.40 am and that by 8.15 am they were
    both at the Adelaide Police Station when Doecke asked
    Webster if he understood that he had been detained
    regarding an illegal use. Webster assented to this,
    after which Doecke informed him of his rights as
required by paragraph (a) in s79a(3) of the Summary
    Offences Act. Doecke failed to satisfy (b) of that
    subsection when purporting to satisfy (a) and informing
    Webster of his rights at the Adelaide Police Station.
    Subsection (3) of that section required Doecke to inform
    Webster of those rights 'as soon as is reasonably
    practicable after ... apprehension'. Besides the
    complaints that the detention for the illegal use is
    unlawful, given the failure to tell Webster of his
    arrest at the scene and that the officer failed in his
duty under subs(3) of s79a of the Summary Offences Act,
    it is complained that paragraph (b) of subs (3) of that
    section was not complied with when Webster was
    'rearrested' after 10.00 am The last point will be dealt
with later. In R v O'Neill 48 SASR 51 at 57, the Chief
    Justice properly emphasised:- 'A suspect must be
apprehended pursuant to s75 and must be told, where
    possible, of the offence for which or on suspicion of
    which he has been apprehended. He may then be detained
    in accordance with s78(2) for the purpose of the
    investigation before being delivered into the custody of
    the officer in charge of the nearest police station.'

Just before saying this, the Chief Justice spoke of the
    requirement of a valid arrest including, 'the
    requirement that the arrested person be informed, where
    conditions permit that to occur, of the reason for his
    apprehension.'

I agree with counsel that there seems to be no good
    reason why Webster could not have been told why he was
    being arrested before he was, in fact, handcuffed and
    placed into a cage car. Certainly, the action of Doecke
    was, like those of his colleagues, swift. After the
    event it appears high- handed and lacking in a proper
    regard for the liberty of the subject and the need to
    exercise care in the exercise of the power of arrest.
    In all the circumstances, I regard any failures by
    Doecke as inadvertent, but not reckless or deliberate.
    Given the conversation between Webster and Doecke at the
    Hotel, the arrest of Gollan and possibly also Carter
    before him, Webster may well have known why he was being
    detained when that did occur at the Hotel. I am
    inclined to think that he did. His admission at the
    Police Station, a little after 8.00 am, makes any
    failure by Doecke technical rather than significant and
    serious. But that and any failure to discharge duties
    imposed upon Doecke, or any other police officer, by
    s79a of the Summary Offences Act call for a
    consideration of the exercise of a discretion to exclude
    evidence. I assume any irregularities with respect to
    the Adelaide arrests to be relevant to the Murray Bridge
    offences for the purposes of considering the exercise of
    a discretion to exclude evidence subsequently obtained
    with respect to them. In Gollan's case White's evidence
    discloses that whilst Gollan was told he was arrested at
    the Hotel, he was not told of his rights until he was at
    the Adelaide Police Station and after White had
    contacted Aboriginal Legal Rights to advise them that
    persons were detained and to request attendance at the
    Adelaide Police Station. It is complained that rights
    were not disclosed to Gollan as soon as reasonably
practicable, as required by s79a(3). Carter was
    arrested by Constable Kittel within two minutes of that
    officer's arrival at the scene, according to that
    officer's evidence. Carter was asked for and gave her
    full name and address. Whilst noting this, Kittel said
    she heard over the radio the report that the Datsun was
    reported as stolen, as a result of which Carter was
    asked about the car, with Carter saying that the owner
    was inside. Carter was also asked whether she was
    associate with Gollan and Webster. She said she was and
    that she had ridden in the car that day. She was then
    told she was being detained on suspicion of having
    committed the offence of illegal use, which prompted
    Carter to say that she did not know it was stolen and
    that she could not drive. The arrest then took place.
    Carter was handcuffed and placed in the rear of a police
    car where, at 7.46 am, a further conversation occurred
    when Carter was asked whether she understood that she
    was detained on suspicion of having committed an
    offence, namely illegal use. Kittel's evidence is that
    Carter did understand that and asked how long she would
    be held for. Kittel told her that she had power to
    detain her for up to four hours and asked whether she
    could ring Aboriginal Legal Rights, after which the
    officer read to Carter her rights as required by s79(a)
of the Summary Offences act. Whilst this was being done
    Carter said she wanted Billy Williams rung from
    Aboriginal Legal Rights, with Kittel being asked if she
    could ring him. Kittel's evidence is that she said she
    could. Another officer rang Legal Rights but no request
    for Billy Williams was conveyed. That is a failure
    about which complaint is made in the most helpful and
    coherent submissions of Carter's counsel. Reliance is
    placed upon the observations of Scott LJ in Dumbell v
Roberts (1944) 1 All ER 326 at 329, where his Lordship
    observed that the British principle of personal freedom
    and the presumption of innocence applied also to the
    police function of arrest, if in a 'very modified
    degree', 'at least to the extent of requiring (police)
    to be observant, receptive and open-minded and to notice
    any relevant circumstance which points either way,
    either to innocence or to guilt. (Police) may have to
    act on the spur of the moment and have no time to
    reflect and be bound, therefore, to arrest to prevent
    escape; but where there is no danger of the person who
    has ex hypothesi aroused their suspicion, that he
    probably is an "offender" attempting to escape, they
    should make all presently practicable enquiries from
    persons present or immediately accessible who are likely
    to be able to answer their enquiries forthwith. ...
    (Police) should act on the assumption that their prima
    facie suspicion may be ill-founded. That duty attaches
    particularly where slight delay does not matter because
    there is no probability, in the circumstances of the
    arrest or intended arrest, of the suspected person
    running away. The duty attaches ... simply because of
    the double-sided interest of the public in the liberty
    of the individual as well as in the detection of crime.'

Just before this Scott LJ spoke of the duty of police
    when arresting without warrant, 'to be quick to see the
    possibility of crime, but equally they ought to be
    anxious to avoid mistaking the innocent for the guilty.'

I think it is obvious in this case that the police here
    fell into that trap and mistook the innocent for the
    guilty with respect to the illegal use charge. In
Dallison v Caffery (1965) 1 QB 348 at 370 and 371,
    Diplock LJ observed that an arrest is with reasonable
    and probable cause if an officer 'has been credibly
    informed at the time of the arrest' of facts which make
    it probable that the person arrested committed the crime
    suspected. An officer must act honestly and reasonably
    in the discharge of his duties and in any exercise of a
    power of arrest. So, as Lord Diplock observe in
    Dallison, the officer must believe that there was
    reasonable and probable cause for the arrest. The test
    whether there was reasonable and probable cause is an
    objective one, 'namely, where a reasonable man, assumed
    to know the law and possessed of the information which
    in fact was possessed ... would believe that there was
    reasonable and probable cause.'

Upon these authorities it is submitted that each arrest
    was unlawful. The submission that the true purpose of
    each arrest was to detain unlawfully and improperly for
    the Murray Bridge offences has already been rejected.
    The action of the officers was swift or, as Scott LJ put
    it, 'quick to see the possibility of crime'. Any
    obligation 'to be anxious to avoid mistaking the
    innocent' was not discharged at the Hotel or before
    arrest, particularly in the case of Webster and Carter.
    That being said, I do not accept that there was no
    reasonable cause to arrest the accused. In my view, all
    officers at Wright Street were acting conscientiously
    and in good faith, not intending any deliberate or
    reckless disobedience of the law in doing what they did.
    Those arresting had reasonable cause to suspect. In my
    judgment the officers acted as they did honestly and
    conscientiously. In the process they failed to pay due
    regard to the high standards of propriety imposed upon
    them by such statements as that quoted from Scott LJ.
    On that basis I must consider that failure and any
    statutory breaches relevant to the exercise of a
    discretion to exclude evidence subsequently obtained.
    The agony of the moment led to the non-compliance with

    the highest standards expected of police officers.
    Their action would be the more serious had there been no
    report of a disturbance or if the Hotel was not a known
    trouble spot, or if a commendable attitude to defuse
    potentially volatile situations by leaving the scene
    involved more time than it did to go round the corner to
    the Police Station, or if, for example, there was no
    evidence of the three accused having been affected by
    liquor. I refer also to the evidence of the individual
    officers' reasons why they displayed, what has been
    described as the high-handed attitude of placing these
    people in handcuffs. In all the circumstances of the
    occasion I refuse to characterise any failure of any
    officer at the Hotel as wilful or reckless disobedience
    of the law. I accept their denials of an ulterior
    Murray Bridge purpose. Their demeanour in the witness
    box, in the face of long and sometimes vigorous
    cross-examination, did not erode but rather confirm their
    credibility, both generally and particularly. I pause,
    to say that that is my view with respect to the evidence
    of all police officers. With respect to two in
    particular, White and Hills, there are aspects of their
    evidence which, as has been disclosed in the course of
    submissions, is plainly reconstruction, and reflection,
    if not mistaken. This prompts me not to accept or act
    upon some positive aspects of some of their evidence.
    In all the circumstances, I find with respect to the
    Queen's Arms Hotel incident, the statutory obligations
    were sufficiently discharged without undue delay or as
    soon as reasonably practicable, if not at the scene, at
    the Adelaide Police Station. For the purposes of
    considering the exercise of a discretion, I assume the
    failure to enquire and in Webster's case, to inform of
    the fact of arrest at the scene, constituted Adelaide
    Police Station may not have been as soon as reasonably
    practicable."

15. His Honour had the advantage of seeing and hearing the evidence of the officers concerned about what happened on at the Hotel and subsequently. His decision turned to a large extent on credibility and in the light of his findings and despite the submissions made to this court I see no reasons to depart from his findings nor with the exercise of his discretion in the light of these findings.

16. While the appellants were under arrest at the Police Station events moved on. Constable Will had made enquiries following what Lindsay had told him and by 9.20 am had satisfied himself that the Datsun, although previously reported stolen, was not on that morning still in the category of stolen vehicles nor was it being illegally used. He reported that to the acting Sergeant, Senior Constable Wills. Constable Wills was second in command to Inspector Langmead who was the Duty Inspector.

17. Before 9.20 am Inspector Langmead and Constable Wills had decided that in the light of information received from Murray Bridge Police Officers concerning the offences committed there, that the appellants were to be released from arrest on the illegal use charges and rearrested on a charge of rape. Three detectives were en route from Murray Bridge having left at about 8.50 am and due in Adelaide at about 9.50 a.m.

18. What happened was that Carter was released and rearrested at 9.50 am Webster at 10.08 am Gollan complained of stomach pains at about 9.45 am and was taken to the Royal Adelaide Hospital. While there in the presence of Constable White an officer from the forensic branch caused Gallan to strip. In the course of that a pair of keys labelled "Ford" were found.

19. I find I can do no better than to set out the reasoning of his Honour on what transpired at least after 9.20 am in regard to the two appellants. In doing so reference is made to the female suspect but this, of course, has no relevance on these appeals.
    "It is plain that there are proper causes to criticise
    the lack of reasonable cause in the officers effecting
    the "rearrest" after 9.20 a.m., as much as it must be
    said that it was less than perfect for Inspector
    Langmead and Senior Constable Hills not to inform the
    accused soon after 9.20 am of what had happened with
    respect to the Adelaide matter and what was the reason
    for their continuing detention. The evidence
    establishes delay in discharging obligations arising
    from what was disclosed to Hills by 9.20 am that
    morning. Any detention upon suspicion with respect to
    the Datsun could not continue. Any further detention
    could only be lawful and justified by a proper detention
    with respect to the Murray Bridge matters. The evidence
    with respect to the release from the unlawful use charge
    and the disclosure on a detention with respect to the
    Murray Bridge matters could be said to have occurred
    without undue delay in the case of Carter. Perhaps also
    with Webster, but not so, on the face of it, in the case
    of Gollan. Arguments were advanced to me denying the
    power to arrest until the first detention was properly
    completed. It was asserted that release from detention
    was to be immediate rather than without undue delay,
    particularly as it would take but a few minutes to tell
    the accused and show the accused the way out of the
    Adelaide Police Station. In Williams v The Queen
(1986) 161 CLR 278, Mason and Brennan JJ said at 299:-
    'The jealous protection of personal liberty accorded by
    the common law of Australia requires police so to
    conduct their investigation as not to infringe the
    arrested person's right to seek to regain his personal
    liberty as soon as practicable. Practicability is not
    assessed by reference to the exigencies of criminal
    investigation; the right to personal liberty is not what
is left over after the police investigation is finished.'

The obligation to inform an accused person of rights or
    to release when no longer any just cause to detain
    exists, must be discharged, if not immediately,
    certainly promptly, as soon as is reasonably practicable
    or without undue delay. I refer to observations at
    p.300 of the report in Williams' case with respect to
    what is a proper discharge of a duty to act forthwith.
    Restraints which the law imposes on police powers of
    arrest and detention should be scrupulously observed.
    That proposition can never ever be under-emphasised.
    The High Court has sought to spell that out on a number
    of occasions. Sufficient now to notice it in Cleland's
case (1982) 151 CLR 1 at p.26. In my view the
    continued detention of all accused occurred within a
    climate of a genuine desire of all officers involved to
    comply with the law's demands, not to ignore them or use
    any power as a subterfuge. Assuming illegal behaviour
    and detention for some period of time occurred in the
    case of all accused, I considered the exercise of
    discretions to exclude evidence subsequently obtained
    with respect to the Murray Bridge matters. I consider
    the exercise of those discretions against the fact that
    the police behaviour from their first encounter with the
    accused at the Old Queen's Arms Hotel was brought into
    question and on the assumption that some breaches of
    duty arose, though through inadvertence and innocently
    rather than in wilful or reckless disobedience of the
    law. It is not my intention to review the evidence in
    great detail. I hope that what I do say at the moment
    will be sufficient to make plain why in the end I rule
    as I do. In Gollan's case I conclude from the whole of
    the evidence that there was a genuine oversight that
    Gollan was not told of his detention with respect to
    Murray Bridge sooner than he was because of what was
    done with respect to the other accused and in light of
    his own expressed wish or demand to go to hospital. But
    for his being taken to hospital at about 9.49 a.m., I
    think his re-arrest would have been disclosed to him
    within a time that could be said to have been without
    undue delay. Thus whilst a technical breach of the law
    occurred, it is not something that calls for the
    exclusion of evidence obtained from him, even though his
    detention was unlawful and whilst he was not actually
    and formally detained with respect to the Murray Bridge
    matters until after 11.00 am at the Royal Adelaide
    Hospital. As I've already foreshadowed, the evidence
    of White and Senior Constable Hills is less than clear.
    Both engaged in reconstruction as to what occurred at
    the hospital without reference to notes. The forensic
    science officer plainly thought, when he attended the
    hospital to obtain evidence from the two accused who
    were then there, that each of them was then lawfully
    detained with respect to Murray Bridge matters. I find
    the fact that Gollan had not been 'unarrested' and
    'rearrested' was a mistake caused by a change of
    circumstances involving no improper or unlawful purpose.
    I repeat that the attack made upon Hills' credibility
    was very strong in the course of the voir dire. I have
    not overlooked why that was, nor failed therefore to
    consider very closely to what extent Hills' evidence in
    general should be accepted. I have concluded that Hills
    stays with the other officers as being one who was
    conscious of and alert to the rights of individuals and
    to police obligations. He saw it as a blatant attack
    upon his integrity that he should be told that he was
    lying about things, and, as I say, at the end of the
    day, I have concluded that there is no cause to think
    that Hills was any different from any other officer on
    this occasion. He was trying to do his best. He did
    what he could, even if it can be said he was caught out
    by the multiplicity and rapidity of events. It is the
    fact that the law expects the highest of standards of
    all police officers. It is entitled to be more
    critical, the more senior a police officer is. All of
    that is not overlooked by me in my ultimate assessment
    of credibility. I repeat that just as the demeanour of
    the junior officers in the witness box played a part in
    my ultimate assessment of them, so too was that plainly
    the case with respect to the Murray Bridge detectives,
    Inspector Langmead and Acting Sergeant Hills. In my
    view, there is a sense in which it could be said that Mr
    Gollan slipped under Hills' guard with respect to
    obligations arising at or soon after 9.20 am to
    discharge Gollan or lawfully detain him for a proper and
    lawful cause with respect to the Murray Bridge offences
    - with respect to which, I repeat, there is absolutely
    no doubt that in an objective sense, there was more than
    reasonable cause to then detain each and every one of
    the accused. It's in that climate that at the end of
    the day, I find that these failures by the police
    machine, whilst in a sense properly to be criticised and
    condemned, are not of such serious magnitude as to call
    for the exercise of the discretion to exclude -
    particularly after one has paid close regard to the
    principles spelt out in the cases that have been cited
    to me, some of which I will refer to in a moment.
    Before Aboriginal Legal Rights had arrived, White had
    Gollan give him his full name, date of birth and address
    of 76 Railway Terrace, Murray Bridge. Gollan was then
    informed of his rights. I accept White's evidence that
    at 8.15 am Gollan, having been given his rights, went to
    sleep with White staying with Gollan and proceeding to
    take an accurate description of Gollan upon instructions
    from Inspector Langmead at about 9.30 am All that then
    happened is consistent with the view that the intentions
    of the police at that time were good even if, overall,
    one can positively say their co-ordination was bad.
    Gollan awoke and complained of stomach pains at about
    9.30 am He was taken off to hospital by White upon
    express instructions from the Inspector. That explains
    why the intended release and 'rearrest' did not occur
    and that is why I am satisfied beyond reasonable doubt
    that there was no deliberate flouting of the law by any
    officer on the occasions the subject of review in this
    voir dire. But for Gollan being asleep and then
    demanding hospital care, the 'rearrest' would have taken
    place within a reasonable time of Will's advice to Hills
    at 9.20 am I say that even against the other delays that
    can be identified against the other two accused.
    White's evidence is that at the hospital a false
    allegation of assault was made by another person.
    Gollan himself agreed that was false, before a police
    officer arrived to conduct a search of Gollan before
    Gollan had been lawfully detained and told of his
    detention with respect to the Murray Bridge matter.
    Again, no doubt as to what should have happened. No
    doubt that there were breaches of duty by police
    officers. No doubt for me that those breaches were
    nonetheless unintended, certainly not deliberate or
    reckless in their disregard of the law's expectations
    and demands. I unhesitatingly accept that Van Der Ploeg
    honestly and reasonably believed Gollan to be in lawful
    custody with respect to Murray Bridge matters when he
    participated in obtaining matters from him that are the
    subject of a current objection to admissibility. I
    indicate again that I accept the thrust of the
    Prosecutor's submission to me; and I don't pause to
    spell out all those factors that she relied upon with
    respect to Mr Gollan, but I do refer to her helpful
    summary in her outline at the foot of p.4 and through
    p.5, without staying to incorporate it into these
    limited remarks. Delays with respect to Gollan were
    not all due to police incompetence. That is a factor
    which must not be overlooked. That is a factor which,
    it seemed to me, counsel wished to ignore. Equally, if
    I may, I pause to mention again that this case is
    unusual for many reasons not least of which is that this
    is not a case where the accused were brought into
    custody by police seeking them out or pursuing them as a
    result of enquiries which particular officers had.
    Rather, they were brought to police attention by
    bringing attention to themselves, if not all together,
    at least in part by the behaviour of some or all of them
    at the Queens Arms Hotel. It was the call for help
    coming from someone in licensed premises that brought,
    from the police point of view, the fortuitous encounter
    with the accused. That encounter, of course, from the
    accused's point of view, is one they would much rather
    have not occurred at all. I have already made some
    reference to White's evidence about conversations with
    Senior Constable Hills. It seems from White's answers
    that by the time he spoke to Hills from hospital, Hills
    realised the intended course of action had not taken
    place. I repeat that I find nothing sinister in that.
    It was Gollan's requests for medical attention which
    frustrated the common intention which Langmead and Hills
    had arrived at, even before Will told Hills at 9.20 am
    that the Adelaide matter could not be pursued. The
    detention of Gollan from 9.20 am until after 11.00 am
    may be labelled unlawful but not a wilful, conscious and
    deliberate flouting of the law. It arose from a
    combination of circumstances that prevented and
    frustrated the proper intentions from being carried into
    effect. As to Webster, I do not think it is necessary
    for me to say much at this stage, save to indicate - as
    I've already done - that I reject the invitation to
    exclude evidence upon grounds of illegality or
    unfairness in favour of Webster. I accept the thrust of
    the Prosecutor's submissions as to that. That is
    subject, of course, to what I've foreshadowed already;
    namely, that I have, in considering the exercise of a
    discretion to exclude evidence, assumed, in favour of
    the accused, with respect to demands to do things as
    soon as reasonably practicable. I will say a little bit
    about that, hopefully by way of clarification, before
    concluding the remarks this afternoon. In Carter's
    case, the submission is that Kittel failed to have Billy
    Williams present for any interrogation and that she also
    failed to caution Carter as soon as reasonably
    practicable, that is in the police car at 7.46 a.m., in
breach of subs(3)(b) of s79a of the Summary Offences
    Act. It is also complained that Connell and Daws failed
    to heed Carter's information to Kittel at 9.50 am that
    she did not want to be interrogated, when at 12.07 pm
    they asked her questions. Upon this basis, it is said
    that evidence obtained following these failures ought to
    be excluded in the exercise of a discretion on the
    grounds of unfairness to Carter or on public policy
    grounds. I consider the exercise of a discretion to
    exclude evidence on both those grounds consistent with
    principles identified in the cases particularly,
    Ireland's case, Bunning v Cross, and I have paid close
    and special attention to the observations of McHugh J in
Pollard (1992) 110 ALR 385 at 429; as well as to what
    has been put to me with respect to that case,
    observations by other justices with respect to other
    points and also to what has been said in the other
    recent High Court case of Foster, relied upon by counsel
    for the accused and sought to be distinguished by the
    Prosecutor. It is submitted that Carter's detention
    after 9.20 am was unlawful so that any evidence,
    including clothing and blood sampling, obtained
    thereafter should be excluded on public policy grounds.
    It is also submitted that once Will told Hills at 9.20
    am, the obligation was that Carter should be released or
    lawfully arrested. No release occurred within such time
    as was possible with the arrest of Carter at 9.45 am by
    Kittel not being lawful since Kittel had no reasonable
    cause to suspect Carter of committing the Murray Bridge
    offences. The evidence establishes that other police
    officers may have had such a reasonable cause, but
    Kittel did not. It is also complained that seizure of
    clothing from Carter was not lawful. Section 78(1) of
    the Summary Offences Act was said not to have been
    complied with. It was also put that the taking of blood
    from her was unlawful for the same reason, so that that
    evidence should not be admitted. Again, I don't intend
    to traverse much of what was put in the course of
    argument with respect to the purported arrest of each
    accused by junior officers on instructions from senior
    officers. I make plain that in my view an arrest could
    only be lawful and complete in terms of a discharge of
    duty if the officer then arresting had a reasonable
    cause for himself or herself to suspect the commission
    of the Murray Bridge offences. I accept that it is far
    from plain that any of the three 'rearresting' officers
    had a reasonable cause for themselves, so much as that
    they purported to exercise the power of arrest as if it
    was something that they could do as an act for someone
    who had such a reasonable cause. I repeat that that is
    a dangerous view to adopt and it is not a view that any
    court should sanction. It is, as I see it, a
    fundamental demand that an arrest be carried out by
    someone who either witnesses the commission of the
    offence or himself or herself has reasonable cause.
    That being said however, the circumstances of this case
    being as they are, I accept the Prosecutor's
    identification of the failures here as technical, rather
    than of enormous fundamental objection.    My

    fundamental finding in this case is that on all of the
    evidence there is no deliberate or reckless disregard of
    the law by those whose duty it was to enforce it. To
    the extent that the evidence discloses non-compliance or
    suggests it, I act upon the statements of principle
    reported in the cases cited, particularly Ireland and
    Bunning v Cross, and permit the evidence sought to be
    excluded to be led. My discretion would be exercised in
    the same way, even if breaches of duty were committed by
    any failure to tell Webster of his arrest at Wright
    Street, by any failure to enquire or make further
    enquiries before arrest or by the purported discharge of
the duty imposed by s79a(3) not being met as soon as
    reasonably practicable. If one assumes there was some
    unlawful detention of each accused before arrest with
    respect to the Murray Bridge matters, that occurred
    again, not in consequence of a wilful or reckless
    disregard of the law by any of those whose duty it was
    to enforce it. If unlawful detention occurred before a
    particular arrest with respect to Murray Bridge for
    other reasons such as a lack of reasonable cause in the
    particular officer effecting the arrest, the fact that
    there was reasonable cause to suspect the commission of
    that offence shared by the Murray Bridge detectives,
    Inspector Langmead and Acting Sergeant Hills, could be
    calls to permit the admission into evidence and whilst I
    consider the applications for the exercise of the
    discretion to exclude were for obviously good reasons, I
    decline to exercise the discretion and exclude. Any
    breach was not a wilful or reckless disregard of the
    law. Perhaps the matter might best be summed up by
    saying this was a case of 'too many cooks spoiling the
    broth'. The 'broth' in this case, at the end of the day
    I think, still has to be swallowed even if its taste is
    less than perfect, from the combination of circumstances
    and events that in a sense fell out. I should mention
    the taking of keys from Gollan. I have said already
    that it is difficult to characterise the original taking
    into lawful custody as continuing at that time, just as
    the intention to arrest as purported with respect to
    Murray Bridge was then not carried into effect. Thus
the power conferred by s81 could not be relied upon.
However, s68 of the Summary Offences Act does not call
    for a person to be taken into lawful custody as a
    condition precedent for a power to stop, search and
    detain a person reasonably suspected of having on or
    about his person evidence of the commission of an
    indictable offence. By the time Gollan was at the Royal
    Adelaide Hospital there was power to search him by
reference to s68. The suspicions were plainly those of
    the Murray Bridge detectives, perhaps also other police
    officers still at Murray Bridge, also the senior
    officers in Adelaide, whatever the forensic science
    officer or Constable White may have suspected, or not
    suspected, when the keys were produced and other things
    happened. On this basis either the search is authorised
    or, if it occurred in the manner not satisfying either
of ss68 and 81, the circumstances overall are such that
    I decline to exercise the discretion to exclude evidence
    on any of the grounds advanced to me. I did say that I
    was intending to make some reference to statements of
    legal principle and out of respect for what counsel have
    put to me I do that now, whilst indicating that I have
    not intended to overlook the point with respect to Mr
    Lyons' client that I said would be dealt with later. I
    do regard that non-compliance with statutory
    requirements as, again, technical and inadvertent. It
    does not constitute unfairness towards Webster to admit
    evidence notwithstanding that non-compliance. Only
    statements made after an indication from a particular
    accused of no longer wishing to answer questions must
    needs be excluded, in my view. The Prosecutor has made
    a concession with respect to that in the case of Carter
    and I think, in the course of the hearing, there was an
    indication of only one area of the conversation with
    Webster now sought to be led and that was to line 28 of
    page 2 of the transcript accompanying Exhibit P16. I
    accept what the Prosecutor again has put about that
    matter and decline to exercise any discretion on any of
    the established grounds. What should I say about the
    law? If there is a motivating and ultimately
    precipitating reason for my ruling, it is to be obtained
    from that part of the judgment of Stephen and Aickin JJ
    in Bunning v Cross where Their Honours observed that:-
    'An important factor in the consideration of the
    exercise of the discretion to exclude is the nature of
    the offences charged. Some examination of the
    comparative seriousness of the offences and of the
    unlawful conduct of the law enforcement authority is an
    element in the process required by Ireland's case.'

That is what was said, along with some many other
    helpful things, in Bunning v Cross at p.80, and in this
    case I do find that the comparative seriousness of the
    offences charged when examined against the unlawful
    conduct of the law enforcement authority, in the end
    leads me to say that the discretion should not be
    exercised in the favour of any accused notwithstanding
    the non-compliance with the spirit, letter or express
    demands of the law in any case. The observation of
Barwick CJ in R v Ireland (1970) 126 CLR 321 at 334, is
    obviously of importance in this case. I refer to the
    passage beginning with the words:- 'Evidence of
    relevant facts or things ascertained or procured by
    means of unlawful or unfair acts is not, for that reason
    alone, inadmissible. This is so, in my opinion, whether
    the unlawfulness derives from the common law or from
    statute. But it may be that acts in breach of a statute
    would more readily warrant the rejection of the evidence
    as a matter of discretion: or the statute may on its
    proper construction itself impliedly forbid the use of
    facts or things obtained or procured in breach of its
    terms. On the other hand evidence of facts or things so
    ascertained or procured is not necessarily to be
    admitted, ignoring the unlawful or unfair quality of the
    acts by which the facts sought to be evidenced were
    ascertained or procured. Whenever such unlawfulness or
    unfairness appears, the judge has a discretion to reject
    the evidence. He must consider its exercise. In the
    exercise of it, the competing public requirements must
    be considered and weighed against each other. On the
    one hand there is the public need to bring to conviction
    those who commit criminal offences. On the other hand
    there is the public interest in the protection of the
    individual from unlawful and unfair treatment.
    Convictions obtained by the aid of unlawful or unfair
    acts may be obtained at too high a price. Hence the
    judicial discretion.' Weight must be accorded to public
    interest in bringing to conviction those who commit
    criminal offences. 'What does the balance of
    consideration come down to in the case of each accused?'
    is a question for me, just as from the discussion in
    Bunning v Cross the nature of the offences charged has
    to be considered against the characterisation of the
    unlawful conduct. It was observed in Bunning v Cross,
141 CLR at 75, that society has a:- 'right to insist
    that those who enforce the law themselves respect it so
    that a citizen's precious right to immunity from
    arbitrary and unlawful intrusion into the daily affairs
    of private life may remain unimpaired.'

I repeat, that in this case I am far from satisfied that
    any officer failed to respect the law. It is easy to
    criticise after the event actions taken on the spur of
    the moment. The officers concerned having given their
    reasons for their actions, their failures have been
    noticed and taken into account with respect to the
    exercise of the discretion with respect to the Murray
    Bridge matters. Taking them into account at the most
    favourable level to the accused, I decline to exercise
    the discretion for the reasons already given. At p.78
    of Bunning v Cross it was observed that: 'The courts
    should not be seen to be acquiescent in the face of the
    unlawful conduct of those whose task it is to enforce
    the law. On the other hand, it may be quite
    inappropriate to treat isolated and merely accidental
    non-compliance with statutory safeguards as leading to
    inadmissibility of the resultant evidence when of their
    very nature they involve no overt defiance of the will
    of the legislature or calculated disregard of the common
    law and when the reception of the evidence thus provided
    does not demean the court as a tribunal whose concern is
    in upholding the law.'

Again, it seems to me, at the end of all the evidence I
    have heard on the voir dire, uncontradicted as it is by
    any evidence from the accused, I am left with the
    conclusion that there was no overt defiance of the will
    of Parliament or calculated disregard of the common law
    in what the officers found themselves doing and not
    doing on this occasion. Breaches of duty at Wright
    Street are plainly saved by the propositions just cited.
    I conclude by indicating again to pick up the language
    from Bunning v Cross at the foot of p.78, I find no
    'deliberate or reckless disregard of the law by those
    whose duty it was to enforce it'. I accept that I must
    consider whether the discretion to exclude should be
    exercised because of the magnitude or significance of
    the breaches of duty. That is the language coming from
Mason CJ in Pollard (1992) 110 ALR 385 at 389. I have
    considered that. I hope that is plain from what I have
    said and whilst there are, if you like, a series of
    bungles or less than perfect actions taken for a
    multiplicity of reasons, they all leave me in the end
    with the view that this is a case where the exercise of
    the discretion should be considered but refused. I
    don't propose to quote any further from the judgment in
    Bunning v Cross but I want to make it plain that I have
    considered each and every one of the matters that are
    the subject of specific mention in Bunning v Cross
    between pp78 and 80. I express my appreciation to all
    counsel for the attention they have properly paid to the
    pronouncements of the High Court in this still
    developing area of the law. I decline to exclude
    evidence other than that resulting from statements made
    after an accused made plain an intention not to answer
    questions. I make a formal reference to Petty's case,
    171 CLR 635, and conclude by saying that in my judgment
    no police officer was engaged in the deliberate pursuit
    of some unlawful or improper purpose on the occasions
    enquired into at the voir dire. I rule, therefore,
    that the trials are to proceed with all things
    admissible save those matters that have been identified
    in the course of argument and addresses."

20. I find myself in agreement with the conclusion reached by his Honour bearing in mind his impressions of the officers concerned as to their truthfulness and the way in which the matter developed. He had the very considerable advantage of seeing and hearing them give evidence during the course of a lengthy "voir dire" examination and cross examination. Further I agree that in the light of his Honour's findings on question of fact the exercise of his discretion did not miscarry and it was proper to admit the evidence in the light of the authorities cited by him.

21. The keys found in the possession of Gollan when he was searched at the Royal Adelaide Hospital. It was common ground that this was "compelling" evidence. Criticism was made of the chain of evidence regarding these keys but I have perused the evidence adduced on this topic and like his Honour reject it and find that it was complete. There may well have ben a degree of informality but the direct chain was there. Further criticism was levelled at the evidence of the detective who tested the keys on Mr Nesbitt's car but again the criticism in my opinion falls far short of causing a rejection of his evidence that the keys fitted when he tried them. Furthermore there was evidence from Mr Nesbitt that they looked like his keys and that he had but recently received them when he purchased the car. The dealer who sold the car gave evidence that they were joined together with the "Ford" tag in a way that he used.

22. During the course of the searches of the appellants and subsequently at a medical examination of them by the police medical officer various samples of hair were taken and glass fragments discovered. Forensic evidence showed a possible link between the appellants and the offence.

23. During the course of the trial various witnesses gave evidence of attempts to identify the accused from photographs. It was unsatisfactory. His Honour did not take it into account in reaching his verdict. In his opinion it went no way to establish guilty or innocence. He ignored it.

24. Once his Honour's acceptance of the situation regarding the arrests, release from arrest and re arrest and the admission of the evidence sought to be excluded in the "voir dire" is confirmed, the case against each of the accused was overwhelming.

25. I would dismiss the appeals.

JUDGE3 MILLHOUSE J I agree that these appeals should be dismissed.