Pollard v The Queen

[1992] HCA 69

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON and McHUGH JJ

POLLARD v. THE QUEEN

(1992) 176 CLR 177

24 December 1992

Criminal Law

Criminal Law—Evidence—Confession—Questioning of accused in custody—Duty to inform of right to communicate with relative and lawyer before questioning commences—Commencement of questioning—Effect of non-compliance—Confession made where recording facilities available inadmissible unless recorded—Questioning at different places—Recorded confession—Earlier questioning not recorded—Whether confession admissible—Crimes Act 1958 (Vict.), ss. 464A(2), (3), 464C, 464H(1)(d), 464J(d).

Decisions

MASON C.J. Subject to the comments which follow, I am in general agreement with the reasons given by Toohey J. for concluding that s.464H(1)(d) of the Crimes Act 1958 (Vict.) did not render inadmissible the evidence of the videotaped interview of the applicant by the police at the St Kilda Road Police Complex.

2. The Minister's second reading speech in which reference was made to the "firm view" of the Shorter Trials Committee and the Coldrey Committee "that universal tape-recording of interviews with suspects by law enforcement officials would have substantial benefits ... for the administration of justice" ((1) Victorian Legislative Council Parliamentary Debates (Hansard), 3 May 1988, p 1010) indicates that the legislation was prepared with that recommendation in mind. However, s.464H(1) does not provide for universal tape-recording of such interviews. Instead, it provides that evidence of a confession (a term which I use to designate a confession or admission) made to an investigating official by a person who (a) was suspected or (b) ought reasonably to have been suspected of having committed an offence is inadmissible in evidence unless certain prescribed requirements are complied with.

3. The sub-section does not simply provide, as it might have done had the legislature intended to give effect to the "firm view" of the two committees, that a confession is inadmissible unless the entire interrogation of the person investigated was tape-recorded and the tape-recording is available to be tendered in evidence. The reason why the sub-section does not so provide is that the legislature intended that a confession made in the course of an interview which was not tape-recorded should be admissible in two situations. One is where the confession was made before the commencement of questioning, in which event the confession is admissible if the substance of it was confirmed by the person and the confirmation was tape-recorded, the recording being available to be tendered in evidence ((2) s.464H(1)(c)). The other is where the confession was made during questioning at a place where facilities for an interview were not available, in which event the confession is admissible if the substance of it was confirmed and the confirmation was tape-recorded, the recording being available to be tendered in evidence ((3) s.464H(1)(e)). Moreover, s.464H(2) specifically provides that a confession otherwise inadmissible by reason of s.464H(1) may be admitted into evidence in the exceptional circumstances mentioned in s.464H(2). In these respects s.464H(1) departs from the "firm view" of the two committees.

4. That conclusion does not negate the possibility that, on its true construction and in all other respects, s.464H(1) requires the tape-recording of the questioning of suspects by an investigating official. However, the sub-section is not drawn in a way that is particularly apt to achieve that result. As it is drawn, the sub-section gives rise to the question: what is meant by the words "confession ... made during questioning" where they appear in pars (d) and (e)?

5. In resolving that question, the first point to be made is that the later words "the questioning and anything said by the person" appear to relate naturally back to the earlier words and appear to take their meaning from those earlier words. Next, it is important to note that the words "during questioning" do not exist in isolation. In each of the two paragraphs they appear as part of the more extensive expression "during questioning at a place", which is followed by a clause describing the place by reference to the presence of facilities for conducting an interview in par.(d) and the absence of such facilities in par.(e). As each paragraph begins by focusing on the making of a confession during questioning at a place, it is natural to read the requirement that the questioning and anything said by the person be tape-recorded so that it refers to the questioning at the place already described.

6. True it is that par.(c) refers to "questioning" unrelated to place but that is because that paragraph is directed to a confession not made during questioning, so that the absence of any association between the questioning and a place has no significance. Hence, par.(c) is no assistance in determining what is meant by "questioning" in the two succeeding paragraphs. It is also true that the references to "place" in pars (d) and (e) are occasioned by the need to differentiate between confessions made during questioning at a place where there are requisite facilities and confessions made during questioning at a place where there is an absence of such facilities as a preliminary to prescribing different requirements for each of the two situations. It is suggested that, once it is recognized that this need for differentiation is the reason for qualifying "questioning" by reference to a place, then the later words "the questioning and anything said by the person" should be read as referring to the entire process of interrogation, except to the extent that pars (c) and (e) make contrary provision. Whether the need for differentiation entirely explains the way in which the two paragraphs are structured must remain a matter of conjecture. This being so, the explanation proffered has limited value in the construction of the provisions.

7. Moreover, it is to be noted that par.(e) only requires that the substance of the confession be confirmed and tape-recorded; it does not require that the entire questioning and anything said on a subsequent occasion when a previous confession is confirmed should be tape-recorded, notwithstanding that it would be expected that an investigating officer seeking to secure recorded confirmation of a confession made at a place where there were no facilities might well take the suspect to a place where such facilities are available. Similar comments apply to par.(c).

8. For present purposes, the significant features of sub-s.(1) are that (i) it expressly recognizes, in particular in par.(e), that the process of interrogation will be broken up, as in fact it must be in some circumstances; (ii) it proceeds, in pars (d) and (e), to refer to a "confession ... made during questioning" at a place; and (iii) the requirement, which immediately follows, is for tape-recording of "the questioning and anything said by the person" (emphasis added). These considerations tell against the argument advanced by the applicant. Further, if it be accepted that the expression "facilities were available to conduct an interview" in par.(d) refers to tape-recording, as I think it does, albeit this is a question fraught with difficulty, the arguments against the applicant become even stronger. That is because it is natural and logical to associate the requirement of tape-recording in par.(d) with the questioning which takes place where the tape-recording facilities are available.

9. The one question so far not clearly resolved in my mind is whether par.(d) is capable of being read as a requirement that, where confessions are made at two places at which the requisite facilities are available, the interrogation at both places must be tape-recorded if the later confession is to be admissible. In this respect, the applicant relies upon the rule of construction, expressed in s.37(c) of the Interpretation of Legislation Act 1984 (Vict.), that prima facie the singular includes the plural. The answer to the submission, it seems to me, turns on what is meant by the words "evidence of a confession or admission" at the beginning of sub-s.(1) because the subsequent references to "the confession or admission" relate back to what appears at the beginning of the sub-section. It is evidence of a confession (in the sense in which I use that term) which is rendered inadmissible. In other words, par.(d) is concerned with the "questioning at a place" during which the particular confession was made which is sought to be tendered in evidence. The rule of construction is therefore displaced.

10. The critical question then is whether the applicant made separate confessions at Frankston and at St Kilda Road or whether he made one confession in the course of questioning at both places. In my view, the correct answer is that the applicant made two confessions, each made at a different time and place.

11. I acknowledge that the interpretation which I have given to s.464H(1) produces some unsatisfactory consequences, especially because it enables the recorded interrogation to be admitted in circumstances in which it is preceded by an unrecorded interrogation. The existence of an antecedent unrecorded interrogation can give rise to the very sort of problem against which the relevant provisions provide some safeguard. However, in my view, the language and structure of the provisions dictate the interpretation which I favour. I do not find any assistance in s.464A, which is directed to a different problem, fixing the time during which a person may be held in custody for the purpose of questioning and investigation. Section 464H, it should be noted, is not confined to confessions made by suspects in custody; it is directed to confessions made by suspects generally.

12. Although no reliance was placed on s.464J(c) in this case, it may be that the discretion of the court to exclude "unfairly obtained evidence" could be exercised to meet some of the detriments arising from antecedent unrecorded interrogations. However, as the effect of the section was not argued, I refrain from expressing a view about it.

13. I agree with the applicant's contention that there was a breach of the statutory duty imposed by s.464C(1) on the investigating police to inform the applicant when he was in custody of the matters prescribed and to defer the questioning and investigation for a time that was reasonable in the circumstances to enable him to communicate with any of the persons designated in the sub-section. I agree also that, as a consequence of the breach, the evidence of the applicant's confessional statement should have been excluded. I would adopt the reasons given by Deane J. for reaching this conclusion, subject only to the qualification that it may be that something less than reckless disregard of the statutory duty by Detective Minisini, with the acquiescence of the other police, would have justified an exercise of judicial discretion to exclude the evidence on both public policy and unfairness grounds. For example, the magnitude or significance of the breach of duty may, in itself, have justified exercise of the discretions.

14. I would grant the application for special leave, allow the appeal and set aside the order of the Court of Criminal Appeal of Victoria. In lieu of the order made by that Court, I would order that leave to appeal to that Court be granted, the appeal to that Court allowed, the applicant's convictions quashed and a new trial ordered.

BRENNAN, DAWSON AND GAUDRON JJ. The applicant was convicted after a trial in the County Court of Victoria upon one count of aggravated rape, three counts of rape, one count of attempted rape and one count of indecent assault. An application for leave to appeal against conviction was dismissed by the Court of Criminal Appeal.

2. This application for special leave to appeal raises one ground only, namely, that the Court of Criminal Appeal was wrong in deciding that there was no error in the admission in evidence at the trial of a videotaped interview of the applicant by the police. The admissibility of the video recording depends upon the proper construction of ss.464C and 464H of the Crimes Act 1958 (Vict.) but, before turning to those sections, it is necessary to refer to the relevant facts found by the trial judge upon a voir dire held to determine the question of admissibility.

3. On 23 January 1990 the applicant and the prosecutrix went to a motel room at Seaford. Intercourse, oral, anal and vaginal, occurred. The applicant left the motel and returned home. The prosecutrix alleged that she had been raped and on 26 January 1990 at about 6.40 a.m. the accused was intercepted by the police as he was driving to work. He was given some sort of caution, described by the trial judge as "a cursory warning", and requested to return to the C.I.B. office at Frankston to be questioned regarding the prosecutrix's allegations. The accused was then transported to the C.I.B. office at Frankston, arriving there at about 7.05 a.m. He remained in a room at that office until about 10.30 a.m. when he commenced a journey to the St Kilda Road police complex in Melbourne in order that a video record of interview might be made there.

4. A detective named Sterling was in charge of the investigation with the assistance of another detective named Minisini. Sterling introduced Minisini to the applicant at about 7.30 a.m. saying, in the presence of Minisini: "As I said before, what we want is your version of what occurred on Tuesday, and as certain allegations have been made, we want to clear the matter up. At this stage I'm awaiting advice from other sections of the Police Force to get back to me and I'm not sure how long it will take." Sterling then left the applicant with Minisini and another policeman.

5. The trial judge found that Minisini deliberately read the prosecutrix's statement in front of the applicant, probably to invite the applicant to ask questions. The applicant did in fact ask questions regarding the allegations made by the prosecutrix. The applicant was questioned about those allegations and his response was noted. No caution was given by Minisini to the applicant before the questioning took place in the Frankston C.I.B. office nor was the applicant invited, permitted or apprised of his rights to communicate with a friend, relative or lawyer. Although there were facilities at the C.I.B. office for tape-recording an interview, no tape-recording was made of the conversation which took place. Notes were, however, taken by Minisini. The trial judge found that the applicant was "clearly very upset and, on occasions, very distressed, not by the behaviour of police towards him, but by a realisation of the enormity of the situation he found himself in and the desperate situation with respect to his family relations, his work and his life generally by reason of the charges laid against him by the prosecutrix". The trial judge also said: "I have no doubt that Minisini obtained a valuable insight into the accused and an understanding of what his version of the evening's events was likely to be when a formal interview was to be conducted. Indeed, it is significant, and in support of this finding, that it was Mr. Minisini who in fact conducted the record of interview when video facilities were finally made available at the St. Kilda Road complex rather than Sterling, who was the officer-in-charge of the investigation."

6. On the way to the St Kilda Road complex the applicant said: "This shouldn't have happened" and when asked what he meant, he said: "This obsession, this thing in the back of my head, it possessed me. That's why I did those things with the girl." There was no specific confirmation of this remark in the subsequent video record of interview but answers which were recorded were consistent with it.

7. The interview conducted by Minisini and videotaped at the St Kilda Road complex began as follows:

"Q 1 Mark, do you agree that the time is now 12.25 p.m.?

A Yeah. Q 2 Mark, I'm going to speak to you today in relation to an allegation of rape, which occurred at the Seaford Hotel, in Seaford, on - er - Tuesday the 23rd of January 1990. Before I speak to you about those matters, I must inform you that you are not obliged to say or do anything, but anything you say or do may be given in evidence. Do you understand that?

A Yes. Q 3 I must also inform you of the following rights. You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner. Do you understand these rights?

A Yes."

There was a barely perceptible pause after the third answer and the interview continued. The applicant subsequently gave an affirmative answer to the question: "You agree, that - er - prior to this interview commencing, we've had a previous conversation at Frankston in relation to this matter. Is that right?" On a number of occasions reference was made by both Minisini and the applicant to the previous interview. The applicant also made significant admissions in the course of the videotaped interview, although he maintained that the prosecutrix was a willing party to the sexual intercourse which occurred.

8. At the conclusion of the voir dire, the trial judge rejected submissions made on behalf of the applicant that the admissions made on the videotape were not voluntary and that, even if voluntary, they were obtained in circumstances that would render it unfair to use them against the applicant. He also appears to have rejected submissions that the videotape was illegally or improperly obtained. He accordingly ruled that it was admissible in evidence. In so ruling, the trial judge treated the questioning at Frankston as a different questioning from that which was recorded at the St Kilda Road complex. He appears to have assumed compliance with the requirements of s.464C on the occasion of the questioning at St Kilda Road. He concluded his findings by saying: "I find that the failure to comply with s.464H(1)(d) at Frankston C.I.B. does not affect what happened at the St Kilda Road complex. If s.464H(1)(d) is complied with at the St Kilda Road complex, then the recording made at that facility is admissible and I find accordingly."

9. Sections 464C and 464H of the Crimes Act appear in subdiv.30A of Div.1 of Pt III. That subdivision is headed "Custody and Investigation" and commences with s.464. Section 464A deals with the detention of a person in custody before being released or brought before a bail justice or the Magistrates' Court and modifies previous statutory requirements which in turn had modified the common law ((4) See Williams v. The Queen (1986) 161 CLR 278, at pp 311-312). Under s.464A(1)(c), a person taken into custody for an offence must be brought before a bail justice or the Magistrates' Court within a reasonable time of being taken into custody.

10. Sub-section (4) of s.464A sets out matters which may be considered in determining what constitutes a reasonable time. They include such matters as "(a)ny need to transport the person from the place of apprehension to a place where facilities are available to conduct an interview or investigation" ((5) s.464A(4)(d)), "(a)ny 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" ((6) s.464A(4)(f)) and "(a)ny time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest" ((7) s.464A(4)(j)). It is clear that the words "the questioning" in this last consideration refer to the entire process of questioning while the person concerned is in custody ((8) See also s.464A(4)(c) and (i) which refer respectively to "(a)ny 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" and "(a)ny time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention" (emphasis added)). And in this regard it should be noted that, by virtue of the definition in s.464(1) ((9) Section 464(1) provides:

"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."),
a person is, for all practical purposes, in custody from the time he or she comes into the company of a police officer ((10) By s.464(2) "investigating official" includes "a member of the police force") possessed of sufficient information to justify his or her arrest. Sub-section (2) of s.464A is as follows:
"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 sub-section (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."

Sub-section (3) requires the customary caution to be given "(b)efore any questioning or investigation under sub-section (2) commences".

11. Section 464C, so far as is relevant, provides:
"(1) Before any questioning or investigation under section

464A(2) commences, an investigating official must inform the person in custody that he or she - (a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and

(b) may communicate with or attempt to communicate with a legal practitioner -

and, unless the investigating official believes on reasonable grounds that - (c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or

(d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed -

the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication."

12. Section 464H, so far as is relevant, provides:

"(1) Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who - (a) was suspected; or (b) ought reasonably to have been suspected - of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless - (c) if the confession or admission was made before the commencement of questioning, the confession or admission was tape-recorded, or the substance of the confession or admission was confirmed by the person and the confirmation was tape-recorded; or

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

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

and the tape-recording is available to be tendered in evidence. (2) A court may admit evidence of a confession or
admission otherwise inadmissible by reason of sub- section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances - (a) are exceptional; and (b) justify the reception of the evidence."

By definition under s.464, tape-recording includes audio recording and video recording.

13. It is convenient to turn first to the submission that the video recording made at St Kilda Road was inadmissible under s.464H. It is to be noted that that section, in speaking of "questioning", speaks of a single, identifiable period of questioning. It necessarily does so because it refers to "the commencement of questioning" and to confessions and admissions made "during questioning". So much was accepted by the argument for the respondent. But, it was contended, there might be separate or discrete periods of questioning and the condition for admissibility of a confession or admission under s.464H(1)(d) - that "the questioning and anything said by the person questioned (be) tape-recorded" - is satisfied if a tape-recording is made of questions and answers in the period of questioning during which the confession or admission was made. The contrary submission for the applicant was that "the questioning" which must be tape-recorded is the entire process of questioning, commencing with the first question asked after the person comes into custody in the sense defined in s.464(1). The submission for the applicant is consistent with the other provisions of subdiv.30A, particularly s.464A, and with the structure and language of s.464H itself.

14. As we have said, s.464A envisages a limited period of time - a reasonable time - during which a person may be held in custody for questioning or while an investigation is being carried out. This is a substantial modification of the common law which did not permit a person to be detained for the purpose of questioning ((11) See Williams v. The Queen (1986) 161 CLR, at p 305). Section 464A recognizes that the questioning or investigation may be suspended or delayed, but it plainly regards the questioning or investigation as an entire process which commences after the person is taken into custody in the extended sense involved in the definition in s.464(1).

15. Clearly, having regard to the matters which may be taken into consideration in determining what is a reasonable time for the purposes of s.464A(4), the questioning need not be a continuous process; it may be interrupted for various purposes and, hence, there may be identifiably separate periods of questioning. However, any separate period is only part of the entire process of questioning contemplated by s.464A.

16. We should add that, so far as s.464A(3) is concerned, it is necessary to distinguish between the duration of the questioning which that sub-section contemplates and the period of a reasonable time referred to in sub-s.(2). It would be wrong to regard the former as being co-extensive with the "reasonable time" referred to in sub-s.(2). As already indicated, the questioning begins when questions are first asked of a person in custody. And it ends when no more questions are asked, whether or not a reasonable time has then elapsed. If the questioning of a person in custody were to continue beyond a reasonable time, that person not having been brought before a bail justice or the Magistrates' Court, it would constitute questioning during a period of unlawful detention and the admissibility in evidence of any confession or admission made during that period would depend, not only upon compliance with the provisions of s.464H, but also upon the application of the common law rules regarding voluntariness, fairness and overriding public policy in which the unlawful detention would be a highly relevant consideration. Indeed, s.464J expressly provides that nothing in subdiv.30A affects the onus on the prosecution to establish the voluntariness of an admission or confession or the discretion of a court to exclude unfairly, improperly or illegally obtained evidence.

17. The applicant's submission is also consistent with the structure and language of s.464H, particularly in that pars (c), (d) and (e) of s.464H(1) require the tape-recording of different things. Paragraph (c), which applies in the case of a "confession or admission ... made before the commencement of questioning", requires that "the confession or admission (be) tape-recorded" or that "confirmation (of its substance by the person making the confession or admission be) tape-recorded"; par.(d), which applies in the case of a "confession or admission ... made during questioning at a place where facilities (are) available to conduct an interview" (which is this case), requires that "the questioning and anything said by the person questioned (be) tape-recorded"; and par.(e), which applies in the case of a "confession or admission ... made during questioning at a place where facilities (are) not available to conduct an interview", requires that "the questioning and anything said by the person questioned (be) tape-recorded" or that "confirmation (of its substance by the person questioned be) tape-recorded". Two things appear from this: first, par.(d) requires tape-recording of "the questioning", that is, something more than the tape-recording of the confession or admission, or of its substance; secondly, pars (d) and (e) envisage that "the questioning" will not always be the same as "an interview". That last distinction is also to be seen in the terms of s.464A(4), particularly in pars (d) and (j) to which some reference has already been made ((12) See fns (5) and (7)).

18. The argument in favour of construing s.464H(1)(d) as requiring no more than the tape-recording of that period of questioning in which the confession or admission is made is that "the questioning" in the latter part of that paragraph is to be read as relating back to "questioning at a place where facilities (are) available to conduct an interview" which, it is clear, may sometimes be a separate part of the entire questioning process. That argument would have much to commend it if s.464H stood isolated from the rest of subdiv.30A. However, it is far from persuasive in a context where "the questioning" is used in various places in s.464A to signify the entire process of questioning. Indeed, it would be surprising if those same words were intended to have a different meaning in s.464H.

19. The other consideration urged on behalf of the respondent was that, if s.464H(1)(d) requires the tape-recording of the entire questioning process, it involves impracticality. There are two answers to that. First, s.464H(1)(d) requires tape-recording only (although this requirement may also be satisfied by audio recording), and there is nothing impractical about a police officer using a hand-held tape-recorder during questioning at "a place where facilities (are) not available to conduct an interview". There is difficulty in knowing what is meant by that expression, particularly having regard to the fact that par.(e) contemplates that facilities to conduct an interview may not be available at a place, yet the questioning at that place may be tape-recorded. It would, however, seem safe to assume that, if there is not something more technically advanced than a hand-held tape-recorder, the place is not one at which facilities are available to conduct an interview.

20. Secondly, that argument is not to the point if s.464H was intended to avoid fragmentation of questioning with some of it being recorded and some not. There are good reasons for thinking that the purpose of s.464H was to ensure that the entire questioning process should be tape-recorded. It is clear from the second reading speech for the Bill which resulted in the enactment of subdiv.30A ((13) Legislative Council Parliamentary Debates (Hansard), 3 May 1988, p 1010) that one of the main purposes of the new subdivision was to ensure the integrity of the questioning process and to reduce the scope both for impropriety and for allegations of impropriety during questioning. If the entire questioning process is recorded that purpose is advanced; if not, there remains scope for impropriety and for allegations to that effect and, to that extent, that purpose is not advanced. As s.35(a) of the Interpretation of Legislation Act 1984 (Vict.) directs that "a construction that would promote the purpose or object underlying (an) Act ... shall be preferred to a construction that would not promote that purpose or object" and as that construction is entirely consistent with subdiv.30A and with the structure and language of s.464H itself, s.464H(1)(d) should be construed as requiring the tape-recording of the entire questioning process.

21. At the risk of some repetition, it is as well to set out the way in which s.464H operates. As already indicated, the questioning may consist of a number of different periods of questioning and may occur in a number of different places, but a particular confession or admission will be made during a particular period of questioning at a particular place. Under s.464H(1)(d), if that place is a place where facilities are available to conduct an interview, evidence of the confession or admission is inadmissible unless the questioning and anything said by the person questioned (that is, the whole questioning, whether it comprises one or more parts, and not just the questions and answers constituting the confession or admission or the questions and answers given at the place where the confession or admission was made) are tape-recorded.

22. Under s.464H(1)(e), if a confession or admission is made at a place where facilities are not available to conduct an interview, it too is inadmissible in evidence unless the questioning and anything said by the person questioned (again, the whole questioning) are tape-recorded or the substance of the confession or admission is confirmed by the person questioned and that confirmation is tape-recorded. However, "the questioning" will be tape-recorded if, at a place where there are no facilities for conducting an interview - a car, for example - a hand-held tape-recorder is used. If questioning is to occur subsequently at a place where facilities are available to conduct an interview then s.464H(1)(d) in effect requires police officers to refrain from asking questions if a tape-recorder is not available. And should a confession or admission be volunteered in those circumstances, s.464H(1)(e) requires, as a condition of admissibility, that it be subsequently confirmed on tape.

23. And, of course, even if the confession or admission is inadmissible by reason of a failure to comply with s.464H(1)(d) or (e), a court may, under s.464H(2), admit it in evidence if it is satisfied on the balance of probabilities that the circumstances are exceptional and are such as to justify its admission.

24. Turning to the circumstances of this case, the applicant was clearly in custody at the C.I.B. office at Frankston in the sense defined in s.464(1). If he was not under lawful arrest he was in the company of an investigating official being questioned or to be questioned to determine his involvement in the commission of an offence and there was sufficient information in the possession of the investigating official to justify his arrest in respect of that offence. Indeed, he was apparently in custody in the defined sense during the journey to Frankston, but it does not appear that any questions were then asked. Thus, it seems that questioning commenced at Frankston, with no tape-recording being made, although facilities were available at Frankston to conduct an interview. The questioning continued in the car on the journey to St Kilda Road and was apparently then suspended. Questioning re-commenced at St Kilda Road. The questioning which took place there was part of the entire questioning process which commenced with the asking of the first question after the applicant came into custody in the sense defined in s.464(1) which, as we have said, was at Frankston, rather than in the car on the way to Frankston. There were facilities available at the St Kilda Road complex to conduct an interview and the questioning there and anything said by the applicant was video recorded.

25. The prosecution did not seek to tender evidence of any confession or admission made by the applicant during questioning at Frankston. The view was apparently taken by the prosecution that, for the purposes of s.464H (and, presumably, s.464C), there were separate questionings at Frankston, in the car on the way to St Kilda Road and at the St Kilda Road complex. It seems that because the questioning at Frankston was not tape-recorded although facilities were available, the prosecution considered that evidence of any confession or admission made by the applicant during questioning at Frankston would have been inadmissible. And no objection was taken on behalf of the applicant to evidence of the admission made in the car on the journey from Frankston to St Kilda Road.

26. It was the admission in evidence of the video recording of the interview at the St Kilda Road complex, containing as it did admissions by the applicant, to which objection was taken. And once it is recognized that s.464H contemplates, as it does, the one questioning commencing at a particular point of time and possibly continuing at different times and places, the admissions made at St Kilda Road were part of the questioning which commenced at Frankston, continued in the car and concluded at St Kilda Road. They were admissions made at a place where facilities were available to conduct an interview and they were tape-recorded. But before those admissions were admissible in evidence, it was not just the questioning at the place where they were elicited which s.464H(1)(d) required to be tape-recorded, but the whole of the questioning, that is, the whole of the questioning which commenced at Frankston and concluded at St Kilda Road. Since neither that portion of the questioning which occurred at Frankston nor that in the car on the way to St Kilda Road was tape-recorded, evidence of the admissions made by the applicant at St Kilda Road was not admissible, notwithstanding the fact that the questioning which took place at St Kilda Road was video recorded.

27. This result is, we think, required by the structure and language of subdiv.30A, in particular s.464H. And as already indicated, it also accords with one of the main purposes for which the legislation was enacted. Subdivision 30A was enacted to implement the recommendations of a committee (the Consultative Committee on Police Powers of Investigation) known as the Coldrey Committee. Those recommendations were preceded by recommendations of another committee known as the Shorter Trials Committee. The second reading speech of the Minister introducing the relevant Bill in the Legislative Council contains the following passage which makes clear the other main purpose for which subdiv.30A was enacted ((14) Legislative Council Parliamentary Debates (Hansard), 3 May 1988, p 1010):

"It was the firm view of the Shorter Trials Committee and the Coldrey committee that universal tape-recording of interviews with suspects by law enforcement officials would have substantial benefits, financial and otherwise, for the administration of justice. It should be borne in mind that in many criminal trials a great deal of time is taken in determining the admissibility of an alleged admission by the accused; often it is the only real issue in the trial. Tape-recording will eliminate many of these disputes. As a result, trials will be shortened and more guilty defendants can be expected to plead guilty, leading to a great saving of public money."

If evidence of a confession or admission made during a tape-recorded interview at one police station were admissible under s.464H even when it was preceded by an interview at another police station which was not tape-recorded, a principal object of the legislation would be likely to be largely defeated. The argument would remain, as this case demonstrates, that the tape-recorded confession or admission was inadmissible or should not be admitted because it was involuntary or was unfairly, improperly or illegally obtained and, for the purposes of that argument, what occurred during the first interview would be of significance, even if the prosecution could lead no evidence of it. Evidence of what occurred at the first interview would be receivable on a voir dire, as in this case, which would be likely to lengthen the trial substantially. It is to avoid such a result that the legislation provides that, save for the tape-recording of the substance of a confession or admission as allowed by s.464H(1)(e), for a confession or admission made to an investigating official during questioning to be admissible the whole of the questioning should be tape-recorded and not just that portion of the questioning containing the confession or admission upon which the prosecution seeks to rely.

28. The conclusion that the video recording of the interview conducted at the St Kilda Road complex was inadmissible is sufficient to determine the appeal in the applicant's favour, but it is desirable to add some comments regarding the application of s.464C, upon the assumption that the requirements of s.464H had been met.

29. Upon the view which we take of s.464C, there was a breach of its provisions by the failure to advise the applicant of his right to communicate with a friend or relative or with a legal practitioner before questioning began at Frankston. Section 464C requires that advice to be given before any questioning or investigation under s.464A(2) commences ((15) See also s.464G). It is clear from s.464A(2) that questioning for the purposes of that sub-section commences when a person in custody for an offence is informed of the circumstances of that offence and is first questioned. As we have said, the applicant was in custody at Frankston, he was there informed of the circumstances of the offence (which may also have been done when he was intercepted on his way to work) and it seems that questioning under s.464A(2) began there, no questions having previously been asked.

30. Not only was the applicant not given the information required by s.464C before the questioning at Frankston commenced, but it would appear that he was not given the caution required by s.464A(3). That sub-section requires an investigating official to inform the person in custody, before any questioning under sub-s.(2) commences, 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. Whatever the nature of "the cursory warning" given to the applicant when he was arrested, it would appear to have been sufficiently removed in time and place from events at Frankston for s.464A(3) to have required the statutory caution to have been given before the commencement of questioning there.

31. Unlike s.464H, neither s.464A(3) nor s.464C prescribes the consequences of a failure to comply with their requirements. Having regard to the express continuation under s.464J of the right to silence and the common law rules relating to involuntary confessions and unfairly, illegally or improperly obtained evidence, no statutory consequences ought to be implied. At common law, before a confession or admission by an accused person is admissible in evidence, the prosecution must establish on the balance of probabilities that it was voluntary ((16) See Cleland v. The Queen (1982) 151 CLR 1, at pp 12, 19; MacPherson v. The Queen (1981) 147 CLR 512, at p 522; Collins v. The Queen (1980) 31 ALR 257, at pp 258, 271, 310). Even if it was voluntary, the trial judge has a discretion to exclude it if it would be unfair to the accused to admit it. In addition, the trial judge has a separate discretion to exclude, on the grounds of public policy, evidence which has been improperly or illegally obtained ((17) See R. v. Lee (1950) 82 CLR 133; Bunning v. Cross (1978) 141 CLR 54; Cleland v. The Queen (1982) 151 CLR 1).

32. The exercise of the discretion to exclude evidence which has been improperly or illegally obtained involves a balancing of competing public policy considerations and is not so much concerned with the individual accused as with "whether the illegal or improper conduct complained of in a particular case is of sufficient seriousness or frequency of occurrence as to warrant sacrificing the community's desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end" ((18) Cleland v. The Queen (1982) 151 CLR, at p 34).

33. Indeed, it has in the past been questioned whether the discretion to exclude illegally or improperly obtained evidence has any application to confessional evidence having regard to the special sensitivity of the law in that area or whether it is confined to real evidence, that is, evidence of a physical character. However, since Cleland v. The Queen ((19) (1982) 151 CLR 1) it must be accepted that the discretion to exclude illegally or improperly obtained evidence does extend to confessional evidence, although in practice its application is likely to be infrequent.

34. In a case where it is established that a confession or admission by an accused was made voluntarily but the evidence warrants further consideration of whether it ought to be admitted, it will often be a convenient course for a trial judge to ask first whether it would be unfair to the accused to use the confession or admission against him before considering, if the evidence warrants it, whether it should be excluded on the ground that it was illegally or improperly obtained. If the first question is answered in the affirmative, it will be unnecessary to proceed to the second question.

35. In this case, however, it is clear that the exercise by the trial judge of his discretion on either basis must have miscarried because of his misconception that, for the purposes of subdiv.30A, there were separate questionings at Frankston and St Kilda Road. This meant that he failed to appreciate that the obligation to give the caution required by s.464A(3) and the information required by s.464C arose before the commencement of questioning which, it seems, occurred at Frankston and that the consequences of the failure to give the caution and the information extended to the interview at St Kilda Road which was part of the same questioning as commenced at Frankston. Clearly, an appreciation of the true scope of the statutory requirements was essential to a proper exercise of the discretion to exclude the evidence in question not only upon the ground of unfairness but also upon the ground of public policy ((20) See Reg. v. Ireland (1970) 126 CLR 321, at pp 334-335).

36. For these reasons special leave to appeal should be granted and the appeal allowed.

DEANE J. The detailed background facts and the issues involved in this case are set out in other judgments. As Brennan, Dawson and Gaudron JJ. demonstrate in their joint judgment, the provisions of subdiv.30A of the Crimes Act 1958 (Vict.) ("the Act") support the approach that the "questioning" or "investigation" of a person in custody is prima facie to be understood, for the purposes of that subdivision, as an entire process which may encompass different periods of questioning or investigation at different places. Thus the reference to "any questioning" in s.464C must be understood in that sense. Nonetheless, it appears to me that, in a case such as the present where questioning under s.464A encompassed different periods of questioning at different places, the phrases "questioning at a place" and "the questioning" in s.464H(d) and (e) must be construed as referring not to the whole of the overall questioning but to the particular period of questioning in which the relevant confession or admission was made. It follows that I agree with Mason C.J., Toohey J. and McHugh J. that the videotape of the interview at the St Kilda Road Police Complex between the applicant and the two police officers was not rendered inadmissible by reason of the provisions of that section. There remains for consideration the effect of the provisions of s.464C of the Act.

2. Section 464C must be read in the context of s.464A which relevantly provides:
"(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 sub-section (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."

Section 464 provides that, for the purposes of the presently relevant provisions of the Act, "a person is in custody" if a number of designated circumstances exist, including: "he or she is ... 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".

3. Section 464C(1) is in mandatory terms. It applies in relation to "questioning or investigation under s.464A(2)". Omitting some presently irrelevant qualifications, it provides that before any such questioning or investigation commences:
"an investigating official must inform the person in custody
that he or she -

(a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and (b) may communicate with or attempt to communicate
with a legal practitioner -

and... the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication" (emphasis added).

Section 464C(2) provides that, subject to sub-s.(i), if a person wishes to communicate with a friend, relative or legal practitioner, "the investigating official in whose custody the person then is ... must afford the person reasonable facilities as soon as practicable to enable the person to do so" (emphasis again added). The effect of s.464C(1)'s directive that, "before" any questioning or investigation under s.464A(2) "commences", the specified information "must" be given and the questioning or investigation "must" be deferred for a reasonable time thereafter is that any questioning or investigation which would otherwise be authorized by s.464A(2) but is in breach of that directive is unlawful. The present appeal has been argued on the basis that it is common ground that any questioning of the applicant was, for the purposes of s.464C, "questioning ... under s.464A(2)".

4. The videotaped interview at the St Kilda Road Police Complex ("St Kilda Road") commenced approximately five and a half hours after the applicant had been taken into custody. In the meantime, he had been held in custody at the Frankston C.I.B. offices ("Frankston") for some three and a half hours and, after being taken to St Kilda Road, for almost a further hour there before the videotaping commenced. During those periods, and notwithstanding the questioning of the applicant by Senior Detective Minisini at Frankston, no effort at all had been made by the police to comply with the requirements of s.464C. It was only after the videotaping of the interview had actually commenced that the following exchange occurred between Detective Minisini and the applicant:
"(Detective Minisini:) I must also inform you of the
following rights. You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner. Do you understand these rights? (Applicant:) Yes." Even at that late stage, the applicant was not asked whether he wished to communicate with any of the designated persons. Nor was he informed that, if he did, the interview would be deferred to enable him to attempt to do so. Without any inquiry at all and after only an almost imperceptible pause, Detective Minisini proceeded with the questioning. In those circumstances, neither the recitation of the accused's rights nor the applicant's affirmative reply to Detective Minisini's question "Do you understand these rights?" provides any foundation for the argument advanced on behalf of the Crown that the police officers complied with s.464C(1)'s requirement that they "must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication".

5. As I have indicated, I agree with Brennan, Dawson and Gaudron JJ. that s.464C(1)'s reference to "any questioning or investigation under s.464A(2)" must be construed as a reference to the entire process of questioning or investigation under that sub-section. That means that the interviews at Frankston and St Kilda Road are to be seen, for the purposes of s.464C, as part of a single overall series of questioning. Strictly speaking, the failure to comply with the requirements of s.464C before the questioning at Frankston commenced meant that the breach of s.464C was complete and final before the applicant was taken to St Kilda Road. It may, however, be arguable that the failure to comply with the requirements of s.464C at Frankston would have been remedied, in so far as the unlawfulness of subsequent questioning was concerned, if, after the prescribed information had been communicated to the applicant at St Kilda Road, any further questioning had been deferred for a time that was reasonable in the circumstances to enable him to make, or attempt to make, the relevant communication. However, it is unnecessary to pursue that question since it is plain that the questioning at St Kilda Road was not so deferred.

6. Section 464C contains no express provision to the effect that evidence of a confession or admission made to an investigating official under questioning or investigation carried out in breach of its requirements is inadmissible as evidence against that person in subsequent criminal proceedings ((21) Contrast s.464H(1)'s express provision that evidence "is inadmissible"). Nor is it possible to imply a provision to that effect into the words of the section. It follows that the general law must ultimately determine the question whether otherwise admissible evidence of what was said in answer to questions asked by an investigating official in breach of s.464C should, if objected to, be received in evidence in a particular case. In that regard, it is relevant to note that s.464J(d) expressly provides that nothing in subdiv.30A (of which s.464C forms part) "affects ... the discretion of a court to exclude illegally or improperly obtained evidence".

7. Cleland v. The Queen ((22) (1982) 151 CLR 1) established that, in a case where a voluntary incriminating statement has been procured by unlawful conduct on the part of the police, a trial judge should, if objection to its reception is taken on behalf of the accused, consider whether evidence of the statement should be excluded on either of two discretionary grounds. The first of those grounds is that reception of the evidence would be unfair to the accused. The second is that considerations of public policy require that it be excluded. The considerations relevant to the exercise of the two discretions overlap: the unlawfulness of the police conduct will be relevant to the question of unfairness to the accused and, since it is the policy of the law that a criminal trial be fair, considerations of actual or possible unfairness to the accused are likely to be relevant to the question of public policy. Ordinarily, it will be convenient for the question whether the evidence should be excluded on either ground to be dealt with on a single voir dire hearing since any evidentiary material will commonly be relevant to both grounds. Nonetheless, the two discretions are distinct and independent.

8. The discretion to exclude evidence of a confessional statement on the ground that its reception would be unfair to the accused has been the subject of detailed consideration in judgments in a number of cases in this Court ((23) See, e.g., McDermott v. The King (1948) 76 CLR 501, at pp 513-515; R. v. Lee (1950) 82 CLR 133, at pp 148-155). It is unnecessary that I repeat what is said in those judgments. The discretion exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements. In contrast, the discretion to exclude evidence of a confessional statement on public policy grounds is but a particular application of a wider discretion which applies generally to unlawfully obtained evidence, whether confessional or 'real' ((24) See Bunning v. Cross (1978) 141 CLR 54, at p 75). It is convenient, for the purposes of this appeal, to make some preliminary comments about that general discretion and its application to evidence of confessional statements.

9. The nature and rationale of the discretion to exclude unlawfully procured evidence on the grounds of public policy were identified by Barwick C.J., with the concurrence of the other four members of the Court ((25) McTiernan, Windeyer, Owen and Walsh JJ.), in Reg. v. Ireland ((26) (1970) 126 CLR 321). In a judgment which has subsequently been accepted as representing "the settled law in this country" ((27) Bunning v. Cross (1978) 141 CLR, at p 69), his Honour said ((28) (1970) 126 CLR, at pp 334-335):

"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."

10. It is relevant to note that Barwick C.J.'s reference, in the above passage, to "the protection of the individual from unlawful and unfair treatment" should not be understood as merely a reference to the particular accused. That point was made by Stephen and Aickin JJ., with the concurrence of Barwick C.J., in Bunning v. Cross. Their Honours said ((29) (1978) 141 CLR, at pp 74-75):
"What Ireland involves is no simple question of ensuring
fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration."

As that passage makes plain, the principal considerations of "high public policy" which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process. As Stephen and Aickin JJ. went on to point out ((30) ibid., at p 75), there are cases in which the question of unfairness to the particular accused does not play any significant part at all. In such cases, it "is not fair play that is called in question ... but rather society's right to insist that those who enforce the law themselves respect it ... A discretion exercisable according to the principles in Ireland's Case serves this end whereas one concerned with fairness may often have little relevance to the question" ((31) ibid). Ultimately, the question whether evidence of an incriminating statement procured by unlawful conduct on the part of investigating police should be excluded on grounds of public policy must be resolved by a balancing process. In that balancing of policy considerations, the relevance and importance of fairness or unfairness to the particular accused will depend upon the circumstances of the particular case ((32) ibid., at p 77; and see Cleland v. The Queen (1982) 151 CLR, at pp 24, 36).

30. Detective Minisini did not expressly inform the applicant that he was entitled to exercise his rights immediately. Nor did the words which he used clearly and adequately convey that information. Although the words which he used were taken from sub-s.(1), they did not convey the full effects of the rights conferred by s.464C. Furthermore, the conduct of Detective Minisini in continuing his questioning after a barely perceptible pause strongly suggested that the rights were not rights which could be exercised immediately or, for that matter, during the questioning. Consequently, I am unable to agree with the Court of Criminal Appeal that in this case the applicant was "made aware that he could if he wished attempt the communication immediately".

The exercise of the discretion to exclude the interview
31. Section 464C does not make inadmissible in evidence a confession or admission obtained in breach of the section. However, a confession or admission, although made voluntarily, may be excluded by the trial judge in the exercise of his or her discretion if it was obtained in circumstances that render it unfair to the accused to admit it into evidence ((61) R. v. Lee (1950) 82 CLR 133, at pp 150-151; Cleland v. The Queen (1982) 151 CLR 1, at pp 5, 18). If a voluntary confession or admission was obtained in breach of a procedural rule whose object is to protect an accused person against unfair methods of obtaining incriminating evidence, the sound exercise of a judicial discretion may require the rejection of the evidence. Impropriety by police officers in obtaining a confession or admission is not itself a sufficient ground for excluding a voluntary confession or admission unless the impropriety is such that public policy requires that the confession or admission be rejected as evidence. However, the effect of the impropriety may make it unjust to the accused to admit the confession or admission into evidence. In this Court, the applicant did not contend that public policy required the exclusion of the evidence. His case was that the record of interview was obtained in breach of s.464C and that it was unfair to him to admit it into evidence.

32. Section 464C is a procedural rule whose objective is to ensure that a person is treated fairly while in custody for the purposes of the Act. It is one of the checks and balances on the extension of the common law powers of police investigation and interrogation which is conferred by other provisions of sub-div.30A of Div.1 of Pt III of the Act. The Consultative Committee on Police Powers of Investigation said ((62) op cit, p 79) that the right of access to friends, relatives and lawyers prior to any questioning was "a most important safeguard to the suspect." In pursuance of its objective, the section seeks to neutralise the psychological disadvantage which could otherwise be suffered by a person who is questioned while detained in police custody and isolated from contact with the outside world. It also seeks to ensure that that person will have the opportunity of obtaining legal advice before answering questions, making statements or assisting the police in their investigations. When regard is had to the objective of s.464C, the obtaining of a confession or admission in breach of that section should be regarded as raising a prima facie case of unfairness calling for the discretionary rejection of the confession or admission. Unless the prosecution discharges the evidentiary burden of displacing that prima facie case of unfairness, the trial judge should as a general rule reject the tender of the confession or admission as evidence.

33. In the present case, the learned trial judge appears to have accepted that the record of interview was not made in breach of s.464C. Two reasons probably influenced this conclusion. First, his Honour appears to have regarded the questioning at St Kilda Road as a discrete episode which was unaffected by what happened at Frankston. Secondly, counsel for the applicant did not submit that what was said at St Kilda Road was a breach of s.464C even if the questioning at that place was a discrete episode. For the reasons I have given, however, his Honour was in error in failing to hold that the record of interview was made in breach of s.464C.

34. As a result, his Honour failed to address the question whether the evidence on the voir dire displaced the prima facie case of unfairness arising from breach of that section. It is true that the learned judge gave a number of reasons for concluding that the applicant had not discharged the onus of proving that it would be unfair to him to admit the record of interview into evidence. Thus, his Honour held that the applicant "was not overborne, was not subjected to threats or intimidation or was in a state or condition at the time of the video record of interview where he was in a state which renders his performance during the record of interview such that rendered the record of interview unfair". His Honour also held that the accused was not subjected to cross-examination, that nothing in the record of interview jeopardised the right of the accused to a fair trial, and that nothing in the surrounding circumstances affected the reliability of the statements made. However, these findings do not meet the case of prima facie unfairness arising from breach of s.464C.

35. Section 464C lays down rules which the legislature declares must be followed if a confession or admission made by a person in custody is to be regarded as fairly obtained. A breach of those rules makes it prima facie unfair to the accused to admit evidence obtained as the result of the breach. The evidence may displace the prima facie case of unfairness if it shows that the breach was insignificant or was irrelevant to the obtaining of the confession or admission. But it is not for the courts to disregard a breach of s.464C by analysing the circumstances of the case by reference to general notions of fairness. The rules which s.464C enacts express the legislature's judgment as to what is required if a confession or admission made by a person in custody is to be regarded as fairly obtained. Although s.464C does not declare that evidence obtained in breach of the section is inadmissible, failure to comply with the section will ordinarily be unfair to the accused and call for the exclusion of evidence obtained after the breach.

36. No attempt was made in the voir dire proceedings to displace the prima facie case of unfairness arising from breach of s.464C. Thus, there was no evidence from which it could be inferred that at Frankston the applicant was fully aware of his rights under s.464C but elected to waive them or that he would have made the admissions which he did even if he had been informed of those rights at Frankston. Nor was this a case where, despite the failure of the investigating officials to inform the applicant of his s.464C rights before questioning began, he was subsequently given that information before any damaging admissions were made. The information that was given to the applicant at St Kilda Road was given to him in circumstances which did not comply with the section. Moreover, it was given at a time when the applicant had already revealed to a substantial extent "what his version of the evening's events was likely to be when a formal interview was to be conducted."

37. The Court of Criminal Appeal held that there was no breach of s.464C. The learned judges of that Court held that the applicant was fully informed of his rights at St Kilda Road. Like the trial judge, the Court of Criminal Appeal appears to have treated the questioning of the applicant at St Kilda Road as a commencement of his questioning for the purpose of s.464C. For the reasons I have already given, the Court of Criminal Appeal was in error in not finding that the record of interview was obtained in breach of s.464C.

38. Accordingly, the conviction of the applicant cannot stand. The learned trial judge erred in failing to find that the questioning at St Kilda Road constituted a breach of s.464C which made it prima facie unfair to the applicant to admit the record of interview into evidence. Further, his Honour was in error in not determining whether the evidence displaced the prima facie case of unfairness arising from breach of the section. Consequently, his Honour did not properly exercise his discretion to exclude the record of interview which was made at St Kilda Road.

Order
39. Special leave to appeal against the convictions of the applicant should be granted, the appeal should be allowed, and his convictions quashed. There should be a new trial of all charges.

Orders

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of Victoria. In lieu thereof:
(i) allow the application to that Court for leave to

appeal against conviction;

(ii) allow that appeal; (iii) quash the convictions; and (iv) order that there be a new trial.