R v Frugtniet - [1999] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 158 of 1998 No. 159 of 1998

THE QUEEN
v
BRIAN OWEN REGINALD WORRELL FRUGTNIET
AND
SUZANNE MARIE FRUGTNIET

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JUDGES: BROOKING, PHILLIPS and BUCHANAN, JJ.A.
WHERE HELD: MELBOURNE
DATES OF HEARING: 20-21, 28 April 1999
DATE OF JUDGMENT: 19 May 1999
MEDIA NEUTRAL CITATION:

[1999] VSCA 58 1st Revision - 19 July 1999

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Criminal law - Evidence - Conspiracy - Counterfeiting of travellers' cheques - State offences - Citizen's arrest by federal currency squad member -- Detention of suspect in custody - Admission of record of interview - Questioning and investigation by federal police officer - Whether by an "investigating official" within Subdivision (30A) or by one having like powers and duties - Whether Subdivision (30A) applicable - Whether breaches of Subdivision (30A) established - Application to appeal dismissed - Crimes Act 1958 (Vic.) ss.458, 464, 464A, 464C, 464H.
Criminal law - Conspiracy - Counterfeiting of travellers' cheques - Co-accused -
Whether separate trial required - Application to appeal dismissed.
Criminal law - Sentencing - Totality - Parity - Whether double punishment for "making"
and "using" false document - Application to appeal dismissed - Crimes Act 1958
s.83A(1), (2).

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APPEARANCES: Counsel Solicitors
For the Crown Mr L. Lasry, Q.C. and Solicitor for Public
Mr M.P. Taft Prosecutions (C'th)
For the Applicants Mr D. Grace, Q.C. and Victoria Legal Aid
Ms S. Stokes

BROOKING, J. A.:
PHILLIPS, J.A.:
BUCHANAN, J.A.:

On 5 December 1991, as part of the culmination of police investigations into the production of counterfeit American Express travellers' cheques with a face value of over US$2.8m., Brian Frugtniet, a travel agent, was arrested at the Hilton Hotel in Melbourne. Six and a half years later, on 19 June 1998, he and his wife, Suzanne Frugtniet, who had also been a travel agent, were convicted in the County Court at Melbourne of two offences against the Crimes Act 1958, conspiracy to make false documents and conspiracy to use them. In the meantime - on 12 December 1994 - Brian Frugtniet had been convicted in the District Court of New South Wales on ten counts, five of making and five of using a false instrument, namely, a counterfeit bank cheque. The Victorian convictions resulted in his being sentenced to a total effective five years six months' imprisonment with a non-parole period of three years six months and to Suzanne Frugtniet's being sentenced to a total effective two years' imprisonment with a non-parole period of 12 months. Each of them seeks leave to appeal against conviction. Each of them also applied for leave to appeal against sentence, but Suzanne Frugtniet has abandoned that application.
The proceedings
There are eight grounds of Brian Frugtniet's application for leave to appeal
against conviction:

"(1)

The learned Trial Judge erred in failing to permanently stay the trial as an abuse of process arising from the Crown's failure to call Brent John Dallimore during the Crown case.

(2)

The learned Trial Judge erred in failing to stay the trial as an abuse of process arising from the unfairness and injustice that flowed from criminal proceedings being conducted in both New South Wales and Victoria.
(3) The learned Trial Judge erred in not excluding the record of
interview. The error arose in the following areas:

(i) Voluntariness
(ii) Unfairness
(iii) Public Policy

(iv)

In applying s.464H(1)(d) of the Crimes Act 1958 (Vic.), the trial Judge erred:
(a)        in ruling that the untaped questioning of the applicant at the AFP offices and the taped questioning of the applicant in the 'formal' taped record of interview were not part of or the same questioning;
(b)        in failing to consider or place sufficient weight on:

(i) the extent of the untaped questioning of the applicant at the AFP offices;
(ii) the relationship between the questions and answers in the 'formal' taped record of interview and the untaped questions and answers at the AFP offices;
(iii) the fact that the taped questioning picked up statements made earlier off tape at the AFP offices and built on them;
(c)         in relying on the Crown submission that certain questions asked of Sgt McLeod by counsel for the applicant on the voir dire emphasized 'deferral of the interviewing rather than that it was taking place during the relevant period during the afternoon';
(d)        in failing to exclude the 'formal' record of interview

(v) The trial Judge erred:

(a) in ruling that the applicant was brought before a bail justice within a reasonable time of being taken into custody;
(b) in determining whether the applicant was brought before a bail justice within a reasonable time by reference to:
(i) the criteria in s.464A(4);
(ii) the powers given to investigating officials in s.464A(2);

(c) in failing to rule:

(i)

that it was unlawful for Sgt McLeod and Const. Holmesby to question the applicant or carry out investigations in which the applicant participated;

(ii)

that it was unlawful for Sgt McLeod to delay taking the applicant before a court or bail justice in order to question him or carry out further investigations;
(d) in failing to exclude the 'formal' record of interview.

(4) The Learned Trial Judge erred in finding that 30A [an intended reference to Subdivision (30A)] of the Crimes Act did not apply to the interview.
(5) The trial miscarried following the determination of the learned Trial Judge to permit the Crown to lead evidence from the witness Janet Cassidy of actions described as conclusiveness of guilty behaviour. The ruling to allow such evidence led to a miscarriage in the circumstances of this case when the Crown did not address argument as to this evidence in its final address.
(6) The learned Trial Judge erred in permitting the Crown to cross examine the witness Dallimore on matters that related to the Accused's character and prior offending.
(7) The learned Trial Judge erred in ruling that the Crown
could ask leading questions of its own witness Willy Go.
(8) The trial miscarried following improper communications
to the jury."

Suzanne Frugtniet's application is based on seven grounds:

"(1) There was improper communication made to the jury.

(2)

The learned Trial Judge erred in failing to grant a separate trial as enunciated as the 'Darby Principle' thereby permitting the considerable prejudice from the co-accused to adversely affect the case, which was different and merely circumstantial.

(3)

The learned Trial Judge erred in failing to stay the trial as an abuse of process arising from the Crown's failure to call Brent John Dallimore during the Crown case.

(4)

The learned Trial Judge erred in law by exercising his discretion to dismiss the application by the accused that the case against the accused be stayed by reason of the principles of ('Ridgeway', 'Bunning & Cross').

(5)

The learned Trial Judge erred in permitting cross-examination of witnesses Willy Go and Janet Cassidy and applying the case of Thynnes wrongly.

(6)

The learned Trial Judge erred in determining that the s.321 counts of conspiracy to make and use contrary to s.83A(1) and (2) were justiciable in the State of Victoria.
(7) The learned Trial Judge erred in determining that counts 1 and 2
were not duplicitous."

Brian Frugtniet has abandoned all his grounds except grounds 3(ii)-(v) and 4. Suzanne Frugtniet has abandoned all of hers except the second, complaining of the failure to order separate trials. The result of the raising of a large number of grounds which were, at a late stage, abandoned has been that large quantities of material have been needlessly copied, organised and placed before the Court and much time and money wasted.
The ground alleging improper communications to the jury was introduced into each application on 12 August 1998 in consequence of affidavits sworn by Brian Frugtniet's father stating that he had been telephoned by one of the jurors on 19 July 1998 - one month after the verdict - and informed that the juror had during the course of the trial received written material referring to the trial in New South Wales on the counterfeit bank cheque charges and a newspaper cutting stating that immediately after Brian Frugtniet's conviction on those charges his wife had been arrested and charged with a number of serious fraud offences arising out of her actions as a travel agent in making unauthorised alterations to airline tickets. Brian Frugtniet's father further deposed that the juror had told him that just before the jury retired to consider its verdict he had received further material including newspaper cuttings suggesting that both accused were involved in a massive fraud and had got away with millions. The juror was said to have added that the material had been seen by other members of the jury, that he himself had reported the incidents to the judge's tipstaff and that he had been told by the tipstaff that the judge had asked that the matter be not mentioned, since the police were investigating it. These allegations led the listing of these applications for mention on 4 September 1998 and the making of submissions to the Court of Appeal about the way in which the allegations should be investigated. Enquiries were made of members of the jury, and other investigations carried out, and the results were placed on affidavit. The jurors of whom enquiries were made included the particular juror referred to by Mr Frugtniet senior in his affidavit. The enquiries resulted in a complete denial of the allegations that had been made in support of the ground of appeal. That ground of appeal is one of the many abandoned grounds. The report of the trial judge (which includes an intimation of his tipstaff's willingness to make an affidavit) is in terms which suggest that the abandonment of the ground was a prudent course.
The material placed before us for the purposes of the applications begins with nineteen lever-arch files, which themselves contain by no means all of the material that was before the trial judge. To these nineteen files are to be added a further four comprising summaries of proceedings and of evidence, a chronology, outlines of submissions, copies of authorities, copies of statutes and extrinsic materials, and other documents. The summary of evidence itself comprises 212 pages. The summary of the transcript, merely identifying witnesses and exhibits, runs to 29 pages. These summaries relate only to the trial, not to the enormous voir dire. The preparation of these lengthy summaries - a task requiring skill, care and much time - would not have been necessary had it not been for the presence of numerous grounds of appeal since abandoned. We have a concise but none the less 24 page chronology headed "Chronology Melbourne Trial and Sydney Prisoner Transfer Application and Other Relevant Sydney Applications". We will annex a copy of this chronology to our reasons as part of them, but the criticisms we make of the state of affairs disclosed by this chronology is of course confined to steps taken in and in relation to the criminal proceedings in Victoria.
This Court has already had occasion to observe that criminal proceedings in this State are in some respects out of control: Director of Public Prosecutions Ref. No. 2 of 1996 [1998] 3 V.R. 241 at 245. In the consideration of what took place in this case, full allowance must be made for complications resulting from the proceedings in New South Wales and from the efforts to obtain legal aid. But when full allowance is made for these and other matters, we feel bound to say that this case is yet another illustration of how, with the assistance - or perhaps we should say subject to the burden - of their concomitant quasi-criminal proceedings, criminal cases in this State, even those of an admittedly complicated kind, are taking far too long to reach the court of trial, and then to reach the stage of the empanelling of a jury, and then to reach the stage of verdict. The appended chronology speaks for itself. We draw from it but a few examples. On 11 August 1995 Brian and Suzanne Frugtniet asked the judge to disqualify himself on the ground of bias. Seventeen days later that application was abandoned. On 3 April 1996 they applied to the judge to disqualify himself for apprehended bias. That application was rejected. Brian Frugtniet applied to the Supreme Court to review the ruling. On 15 April 1996 this application was dismissed. On 15 July 1996 Suzanne Frugtniet foreshadowed an application asking that the judge disqualify himself. In October 1996, having been refused a separate trial, she applied to the Supreme Court for judicial review of that determination. On 28 November 1996 estimates were given of five to seven days as the duration of the hearing of that application and an application made by the co- accused Seyfarth. Those applications were both dismissed on 20 February 1997. An application launched by Brian Frugtniet on 29 January 1997 sought a declaration from the Supreme Court that two documents were void. The papers were never served by him and the application was struck out for want of prosecution a month later. Another application in respect of apprehended bias was made in September 1997. The trial of Brian and Suzanne Frugtniet did not begin until 5 March 1998 notwithstanding that they had been committed for trial on 11 December 1992.
One matter deserves special mention. It is the voir dire. This began on 13 March 1996; it was subject to many interruptions. The taking of evidence concluded more than 16 months later, on 23 July 1997. It was followed by oral argument and written submissions. On 24 July 1997 a further voir dire was sought, but mercifully the judge, on 31 July 1997, determined that he would not hold it. The ruling in relation to the voir dire that had commenced on 13 March 1996 was given on 14 August 1997. We have not attempted the melancholy task of calculating how many witnesses were called and how many pages of transcript were produced on the voir dire.
The last two decades have seen what we should like to think is the apogee of the long criminal trial, with its attendant quasi-criminal proceedings, and the apotheosis of its boon companion, the bloated voir dire. The importance which the voir dire has assumed was marked by the publication in 1997 of a textbook devoted to it containing 5,522 footnotes: Stephens, Voir Dire Law. If, on the basis that the courts seem unable to keep the length of criminal trials within reasonable bounds, the legislature was ever minded itself to intervene, the incubus constituted by the interminable voir dire might prove to be a useful starting point.
We make it plain that none of our criticisms is in any way directed to the trial judge in this case, who, in the environment which we judges have created, did his best to keep things on the move and who conducted the proceedings with exemplary patience and fairness and the most painstaking care. Nor is anything we say critical of Mr Grace, who came into these matters at a late stage. It is indicative of the fairness and diligence of the judge that none of the grounds of appeal - including the numerous jettisoned ones - calls in question anything said or not said in the charge after a long and onerous trial in the notoriously difficult field of conspiracy.
The facts
We return to the underlying facts in the present case. On 26 November 1991 Det. Sgt. McLeod was in charge of the Australian Federal Police ("AFP") Currency Squad. This squad was based in Melbourne and was the principal federal police agency dealing with investigations into suspected counterfeiting. On 26 November McLeod was informed by Det. Sgt. Vickery of the New South Wales police force that information had been received from a man named Dallimore suggesting that counterfeit travellers' cheques were in Melbourne or were being produced in Melbourne. McLeod believed that there might be a connection with a suspected project to counterfeit both travellers' cheques and United States currency that had been investigated by his squad earlier in 1991. Shortly after his initial conversation with Vickery, McLeod received further information from him to the effect that a man named Seyfarth (Brian Frugtniet's brother) would be coming to Melbourne to pick up the counterfeit travellers' cheques, that Brian Frugtniet appeared to be implicated and that a false passport was to be used at the time of negotiating the counterfeit cheques. On 3 December McLeod was told by Vickery that he had been informed that Seyfarth was coming to Melbourne the following day to collect counterfeit travellers' cheques. Seyfarth was placed under AFP surveillance and was seen to travel from Sydney to Melbourne in company with the informer (Dallimore) and a man named Chapman. From Tullamarine the men went to the Hilton Hotel. On the same day they visited the hotel again. On 4 December the men visited the Travel Trend office in Melbourne. McLeod understood that Brian Frugtniet was the proprietor of the Travel Trend business in Sydney and that another of his brothers, Rudi, was the proprietor of the Travel Trend business in Melbourne. Later again on the same day the men negotiated a counterfeit American Express travellers' cheque at one bank and attempted to negotiate one at another. That night Seyfarth and Dallimore returned to Sydney. The next day, 5 December, McLeod learnt that Brian Frugtniet was staying at the Hilton Hotel in Melbourne and was due to leave the hotel that same day. The New South Wales police told McLeod that they had learnt that Seyfarth would shortly go overseas and that they intended to arrest him at once. The Crown case was that it was intended that the great bulk of the counterfeit cheques should be cashed in Europe.
In addition to working in conjunction with the police force of New South Wales McLeod had the co-operation of the Victoria police. On 27 November he sought and obtained advice from Mark Pedley, who was then Senior Assistant Director of Public Prosecutions (C'th). He asked Pedley whether the counterfeiting of travellers' cheques was a federal offence. After considering the Crimes (Currency) Act 1981 of the Commonwealth and the common law, Pedley advised McLeod that the counterfeiting of travellers' cheques was not an offence under that Act but that an agreement to counterfeit travellers' cheques was a conspiracy to defraud at common law and was a State offence. Pedley added that members of the AFP had authority to lay charges for State offences. He also advised that they had authority to make an arrest using the citizen's arrest power under the Victorian Crimes Act (s.458). When the evidence given on the voir dire by Pedley and McLeod is read together, it appears that in the course of this initial advice McLeod was advised that the interviewing should be in accordance with the Victorian Crimes Act. Search warrants were discussed and Pedley advised McLeod that in order to cover all eventualities both a search warrant under the Commonwealth Crimes Act and a search warrant under the Victorian Crimes Act should be obtained, the latter by one of the members of the AFP who was also a special member of the Victoria police. McLeod later ascertained that no member of the AFP in Victoria was a special member of the Victoria police.
In consequence of this advice McLeod on 4 December spoke to Sgt. McCann of the Victoria Police Fraud Squad and provided him with information later used by McCann to obtain a search warrant under the Victorian Crimes Act which was executed at the premises of Crown Printing during the evening of 5 December. McLeod was in touch with McCann on several occasions during 4 December.

At 11.36 a.m. on 5 December McLeod, in company with other members of the AFP, went to a room at the Hilton Hotel in Melbourne, where he found Brian Frugtniet together with his mistress, Janet Cassidy, and a man named Peris, who was alleged to have prepared the plates from which the cheques were made and who later turned Queen's evidence. Somewhat later McLeod told Frugtniet that he was under arrest for conspiracy to defraud American Express. That was the offence later mentioned to Frugtniet by McLeod, near the end of his formal interview. It seems that Frugtniet was in fact charged by McLeod with the common law offence of conspiracy to defraud and with making a false document contrary to s.83A(1) of the Victorian Crimes Act.
A large quantity of counterfeit American Express travellers' cheques were found in Frugtniet's hotel room. When Seyfarth and his companion were arrested in Sydney on 5 December they had in their possession passports in false names and counterfeit American Express travellers' cheques with a face value of US$15,000.
McLeod contacted the Victoria Police Fraud Squad at about 1.00 p.m. on 5 December, about an hour before Frugtniet was taken to the AFP headquarters in Latrobe Street, Melbourne. As a result, Det. Sen. Const. Magill of the Fraud Squad and other members of that squad were present at the AFP headquarters during the afternoon. At about 4.30 p.m. Magill was introduced to Frugtniet as an officer assisting with the AFP enquiries. Magill thereupon had a conversation with Frugtniet about searching his vehicle (which was in the hotel carpark). Magill tape recorded this conversation. AFP officers then accompanied Magill and Frugtniet to the carpark, where the vehicle was searched. The "field interview", as it became known, was conducted by McLeod in the presence of Magill between 5.48 p.m. and 6 p.m. during the course of the search of Frugtniet's vehicle. It was video-taped. The search was completed at about 6 p.m., whereupon Magill, the AFP officers and Frugtniet returned to AFP headquarters, where the formal interview was begun by McLeod at about 6.40 p.m.
Earlier that afternoon - the time appears to have been shortly after 1.40 p.m. - McLeod had telephoned Pedley, from whom he had already received advice on 27 November, told him what had taken place and asked him whether he should follow the State or the Federal legislation as regards questioning and investigation and as regards search warrants. They discussed whether it appeared that State or federal offences had been committed. In particular, they discussed the possibility of charges under the Passports Act of falsifying passports, and McLeod told Pedley that they had not found any falsified passport in Frugtniet's hotel room. They agreed that, since counterfeit travellers' cheques had been found in that room, the charge should relate to those cheques. McLeod was advised by Pedley that the appropriate offence was the common law offence of conspiracy to defraud, that accordingly the time limits fixed by the Commonwealth Crimes Act were not applicable - this was and was understood to be a reference to the investigation period allowed by s.23C of the Commonwealth Crimes Act 1914 - and that it was appropriate to comply with the State reasonable time requirements for the conduct of enquiries and interviewing of offenders. McLeod was advised that the federal police were entitled to hold Frugtniet and question him for a reasonable period of time. He was further advised that because it was contemplated that charges would be laid for a State offence, not a Commonwealth one, State search warrants should be obtained by members of the Victoria police.
Brian Frugtniet's challenge to record of interview
After the voir dire the judge determined to receive in evidence on the trial the formal record of interview of Brian Frugtniet but to exclude the "field interview". In the formal interview Frugtniet in many places admitted, and nowhere disputed, his complicity in the conspiracies with which he was to be later charged. The only gloss he put upon the matter was to assert that the project had originated, not with him, but with unidentified associates of his brother, the co-accused Seyfarth. The first issue raised by Frugtniet on the voir dire was that of voluntariness, an issue with regard to which he faced, it must be said, great difficulties having regard to the terms of the formal record of interview itself. He failed on that issue and, while the grounds of appeal challenge this determination, that challenge has been abandoned. The other challenges relied on the provisions of Subdivision (30A) of the Crimes Act and an appeal to the discretion to exclude evidence in criminal cases.

(1) "Investigating official"

One of the questions his Honour had to determine was the meaning of the expression "investigating official" which is used many times in Subdivision (30A). It is defined in s.464 of the Crimes Act as meaning "a member of the police force or a person appointed by or under an Act (other than a member or person who is engaged in covert investigations under the orders of a superior) whose functions or duties include functions or duties in respect of the prevention or investigation of offences." Two things were common ground before the judge. The first was that McLeod, who conducted both the "field interview" and the formal interview, was an investigating official notwithstanding that he was a member, not of the Victoria police, but of the AFP. The second was that Frugtniet had been lawfully arrested by McLeod pursuant to s.458 of the Victorian Crimes Act, which empowers "any person, whether a member of the police force or not" to "apprehend and take before a bail justice or the Magistrates' Court to be dealt with according to law or deliver to a member of the police force to be so taken" any person he finds committing an offence, where he believes on reasonable grounds that the apprehension is necessary for one or more of the reasons mentioned in s.s.(1). "Offence" is defined in s.s.(2) and the expression "finds committing" is given an extended definition by s.462.
In his ruling after the conclusion of the voir dire the judge accepted as correct the view which both the defence and the Crown had invited him to adopt with regard to the arrest of Frugtniet, namely, that it was duly made pursuant to s.458 of the Victorian Crimes Act. But although both sides had invited him to rule that AFP officers were investigating officials as defined in s.464 of the Victorian Crimes Act, his Honour determined that they were not. Before us, it has remained common ground that the arrest of Frugtniet was duly made pursuant to s.458. But Mr Grace has submitted that the view which his client urged the judge to take on the investigating official point was wrong and that it should be held by this Court, as it was by the judge, that the expression does not include AFP officers. Mr Lasry, while not conceding that AFP officers are not investigating officials as defined by the State Act, accepts that there are difficulties in arriving at the conclusion that they are.
The judge held that a member of the AFP was neither "a member of the police force" nor "a person appointed by or under an Act" within the meaning of the definition of investigating official. We agree with this conclusion. As regards the first branch of the definition, if one was to consider the expression "a member of the police force" appearing in s.464 without regard to other places in the Crimes Act where it appears and without regard to s.48 of the Interpretation of Legislation Act 1984, it would be hard to avoid the conclusion that the use of the definite article shows that the Victoria police force is intended. Although we live in a federation in which the AFP performs important functions and duties in Victoria, it is difficult to treat "the police force" as meaning the two distinct forces created by Victorian and Commonwealth law, quite apart from the question of the position of the police forces of other States and the Northern Territory. Leaving aside Subdivision (30A), the phrase "a member of the police force" appears in ten sections of the Crimes Act as in force at the time of this investigation: ss.30 and 31 (hindering or resisting police), ss.317, 458, 459, 459A and 465 (arrest and search), ss.361 and 479C (removal to and from prison and escape) and 399B (communication with alibi witness). It is to be found in many sections in Subdivision (30A) as then in force, and in a number of sections that have been added to that Subdivision since that time. Generally speaking, the impression given by the Act is that it is concerned with the local police force. It may be noted that Part IIA, dealing with extra-territorial offences, contains in s.340 a definition of "police force" as the police force of Victoria and a definition of "appropriate authority" intended to identify in relation to the police forces of other States or a Territory an officer equivalent to the Victorian Chief Commissioner of Police. Section 67A, which post-dates the investigation in the present case and appears in a Subdivision dealing with child pornography, defines "law enforcement agency" as including the police force of Victoria or of any other State or of the Northern Territory and the AFP.
In our opinion the more natural meaning of the expression "a member of the police force" in the definition of "investigating official" is a member of the police force of Victoria. There is in addition s.48 of the Interpretation of Legislation Act, whereby, unless the contrary intention appears, a reference in an Act to an officer or office shall be construed as a reference to an officer or office in and for Victoria.
As regards the second branch of the definition of "investigating official" ("appointed by or under an Act"), by s.38 of the Interpretation of Legislation Act, unless the contrary intention appears, in all Acts the expression "Act" means a Victorian Act. Moreover, the legislative history of the definition in s.464 tells against the suggestion that a contrary intention should be found, so that "Act" is taken to include a Commonwealth Act. Subdivision (30A) was introduced into the Crimes Act by the Crimes (Custody and Investigation) Act 1988. In the Bill for that Act the words used in the definition were "or a person appointed by or under an Act or a Commonwealth Act ..". Consistently with this, the Explanatory Memorandum stated that "investigating official" includes police and other Commonwealth or State investigators. As a result of an amendment proposed by the Government the words "or a Commonwealth Act" were deleted. In dealing with that amendment in the Legislative Assembly the Attorney-General said (Hansard, 22 April 1988, p.1822):
"A further amendment removes the application of the Crimes Act to Commonwealth investigations operating in Victoria. That is a technical requirement."
Presumably the amendment was proposed because doubt was entertained about the validity of the provisions as they stood in so far as the Subdivision purported to bind Commonwealth officers. Compare Coco v. Newnham (1990) 97 A.L.R. 419 at 449-56; Shaw v. Coco (1991) 102 A.L.R. 75 at 80-81 per McPherson, S.P.J. and 98-99 per Ryan, J.; 54 A.Crim.R. 128 at 133-4 and 151-2; R. v. Grollo & Howard (1994) 75 A.Crim.R. 271 at 291; Lane's Commentary on the Australian Constitution, 2nd ed., pp.879-82; Zines, The High Court and the Constitution, 4th ed., pp.353 et seq. We think it impossible to construe the definition in such a way as to re-introduce the words deleted from the Bill. It may be noted that another section in the Subdivision (s.464J) uses the phrase "an Act or a Commonwealth Act".
We find it unnecessary to consider whether the construction of "investigating official" should be affected by the question whether Subdivision (30A) would be beyond the legislative power of the State of Victoria if the expression included members of the AFP. We do no more than observe that the Subdivision casts numerous duties upon the "member of the police force" and "the Chief Commissioner of Police". The latter is required, by s.464Z(1), to deliver a copy of authorities given by him to the Minister, who is to lay them before both Houses of Parliament. The idea that a Commonwealth officer should be placed in this position is a striking one.
The Court of Criminal Appeal has in two unreported decisions held that a member of the police force of Queensland is not an "investigating official": R. v. Weston, 5 August 1992; R. v. Bartlett, 14 September 1994. We note that in R. v. Grollo & Howard (1994) 75 A.Crim.R. 271 at 290-1 Einfeld, J. of the Federal Court was of the view that s.464M of the Victorian Crimes Act, empowering a member of the police force to apply to the Magistrates' Court for an order that a suspect provide fingerprints, did not extend to members of the AFP. In Queensland there has been a good deal of consideration of whether a member of the AFP is "a member of the police force" within the meaning of a State section dealing with listening devices. The question was answered in the negative by Lee, J. in Coco v. Newnham (1990) 97 A.L.R. 419. On appeal, the Full Court of Queensland divided on the point, McPherson, S.P.J. and Dowsett, J. being of opinion that AFP members were included and Ryan, J. being of the contrary opinion: Shaw v. Coco (1991) 102 A.L.R. 75; (1991) 54 A.Crim.R. 128. That litigation arose out of committal proceedings. The subsequent conviction led to the decision of the Court of Appeal in R. v. Coco (1993) 67 A.Crim.R. 203, where all three judges held that a member of the AFP was "a member of the police force". Coco's further appeal succeeded on a different point: Coco v. R. (1994) 179 C.L.R. 427. Only Toohey, J. dealt with the point now being discussed. In his view (at 459-60) federal police officers were not comprehended.
We have given careful consideration to the decision of the Court of Appeal of Queensland in R. v. Coco. Notwithstanding the views there expressed, we do not in the end entertain any real doubt that the conclusion of the trial judge in the present case was correct and that a federal police officer is not an "investigating official".

(2) The powers and duties of an investigating official

But that is not the end of the matter. It was McLeod's evidence that, although travellers' cheques did not fall within the Crimes (Currency) Act, the Currency Squad was called upon to investigate cases of possible counterfeiting of travellers' cheques. By s.9(1) of the Australian Federal Police Act 1979, a member of the AFP has, in addition to his other powers and duties -

"(c) in relation to:

(i) the laws of the Commonwealth;

(ii)

matters in connection with property of the Commonwealth or of an authority of the Commonwealth;

(iii)

matters arising on or in connection with land or premises owned or occupied by the Commonwealth or an authority of the Commonwealth; and
(iv) the safeguarding of Commonwealth interests;
the powers and duties that are conferred or imposed on a constable, or on an officer of police, of the rank that is, or is declared by the regulations to be, equivalent to the rank that the member holds in the Australian Federal Police, in the place in which the member is acting."

This provision is sufficient to attach to McLeod the powers and duties of an "investigating official" under Subdivision (30A) of the Victorian Crimes Act provided that McLeod was acting in relation to the safeguarding of Commonwealth interests. Was he so acting? This question was not raised before the judge, but the position taken up by Frugtniet then was that McLeod was an investigating official, so that it was unnecessary to consider whether he had the powers of such an official although he was not one.

Foreign exchange controls are imposed by the Banking (Foreign Exchange) Regulations, made under Part III of the Banking Act 1959 (C'wth). Section 39(8) of that Act contains this definition of "foreign currency":
"foreign currency includes notes, coins, postal notes, money orders, bills of exchange, promissory notes, drafts, letters of credit and travellers' cheques payable or expressed otherwise than in Australian money, and also includes rights and instruments of title, to money other than Australian money."
It contains a corresponding definition of "Australian currency", using the phrase "payable or expressed in Australian money". By regulations 5 and 6 (as in force both now and at the time of Frugtniet's arrest):
"5(1) Subject to subregulation (3), except with the authority of the
Bank:
(a) a person shall not, either on his own behalf or on behalf of

another person, buy, borrow, sell, lend or exchange in Australia,
or otherwise deal in Australia with, foreign currency; and

(b) a resident, or a person acting on behalf of a resident, shall

not buy, borrow, sell, lend or exchange outside Australia, or
otherwise deal outside Australia with, foreign currency.

Subject to subregulation (3), except with the authority of the Bank, a person shall not be a party to a transaction that has the effect of or involves a purchase, borrowing, sale, loan or exchange of, or that otherwise relates to, foreign currency, being a transaction that takes place in whole or in part in Australia or to which a resident is a party.
(2)

(3) The Bank may authorise an agent of the Bank:
(a) to enter into any transaction prohibited by subregulation (1) of this regulation, or into any transaction included in a class of such transactions and it shall be lawful for the transaction to be entered into accordingly; and
(b) to be a party to any transaction prohibited by subregulation (2) of this regulation, or to any transaction included in a class of such transactions, and it shall be lawful for the agent of the Bank to be a party to the transaction accordingly.
.....".
"6(1) A person shall not, except with the authority of the Bank, take or send out of Australia any Australian currency or foreign currency, other than foreign currency obtained under the last preceding regulation.
Nothing in this regulation shall apply to a money order issued in Australia and payable outside Australia."
(2)

The Bank is of course the Reserve Bank of Australia. Regulation 44 provides for the appointment of agents of the Bank. Regulation 39 empowers the Bank to issue general authorities for the purposes of the regulations. As regards travellers' cheques, authorities have for many years been in existence, granted by the Bank pursuant to regulation 39 and authorising American Express International Inc. and Thomas Cook Ltd. respectively to undertake travel-related foreign exchange business.

The regulation-making power is conferred in these terms by s.39(1) of the
Banking Act:
"39(1) Where the Governor-General considers it expedient to do so for
purposes related to:
(a)        foreign exchange or the foreign exchange resources of Australia;
(b)        the protection of the currency or the protection of the public credit or revenue of Australia; or
(c)         foreign investment in Australia, Australian investment outside Australia, foreign ownership or control of property in Australia or of Australian property outside Australia or Australian ownership or control of property outside Australia or of foreign property in Australia;
the Governor-General may make regulations, not inconsistent
with this Act, in accordance with this section."
The Regulations contain recitals appropriate in the light of this grant of power.

30	In the decision rejecting a challenge to the validity of regulation 6 (Watson v. Lee (1979) 144 C.L.R. 374), Stephen, J., at 398-400 considered the history of foreign exchange controls and referred to Professor Nussbaum's work on Money in the Law.

No doubt, as Mr Grace contended, "foreign currency" as defined by s.39 does not include counterfeit currency. But, contrary to his further submission, in view of the scheme that has been laid down by delegated legislation we think that Commonwealth interests are safeguarded by an investigation into a suspected conspiracy of the kind disclosed in this case. He took us to the Second Reading Speech in the House of Representatives on 19 February 1986 (Hansard, p. 866) on the Bill for the Australian Federal Police Amendment Act 1986, which introduced into s.9 of the Principal Act sub-paragraph (1)(c)(iv), referring to "the safeguarding of Commonwealth interests". Of this the Minister said:
"The Australian Federal Police Amendment Bill 1986 is intended to ensure the more effective operation and administration of the Australian Federal Police. One of the functions the AFP is currently required to perform is the protection of persons from time to time considered under threat, including Ministers of the Crown, judges and witnesses. At present it is not clear that the powers conferred on the members of the AFP under section 9 of the Act adequately cover this protective function if it is performed outside the Australian Capital Territory and beyond the limits of Commonwealth places in the States and Northern Territory. At present, section 9 gives a member of the AFP the powers and duties of an officer of the Police in the State in which the member is acting only in relation to certain functions of the AFP. The Bill would extend these functions to include the safeguarding of Commonwealth interests, thereby giving members of the AFP clear power to discharge the protective function."

In the light of this we should, Mr Grace said, construe the phrase so introduced into s.9 as confined to the protection of persons from time to time considered under threat, such as Ministers of the Crown, judges and witnesses. Quite apart from the consideration about to be mentioned, we would not regard the Second Reading Speech as making it appropriate to limit the natural meaning of the words "the safeguarding of Commonwealth interests". The additional consideration is that the phrase has appeared in s.8 of the Principal Act, dealing with the functions of the AFP, ever since its enactment; it is difficult to see how the Second Reading Speech on the Bill for the amending Act could be used to cut down the scope of the same phrase in s.8, and it is highly unlikely that the phrase bears a wide meaning in s.8 and a narrow one in s.9. The Second Reading Speech may show what gave occasion to the amendment, but it does not control its meaning.
Mr Grace went on to argue that even if Commonwealth interests were being safeguarded by the present investigation, s.9(1) of the Australian Federal Police Act did not operate, or at all events was not shown to have operated in the present case, since it was not shown, as required by s.9(1), that the "member of the police force" mentioned in the definition of "investigating official" was "a constable, or ... an officer of police, of the rank that is, or is declared by the regulations to be" equivalent in Victoria to the rank held by Det. Sgt. McLeod in the AFP. Mr Grace referred us to what was said by Dowsett, J. in Shaw v. Coco (1991) 102 A.L.R. 75; (1991) 54 A.Crim.R. 128, evidently to draw attention to the remarks (A.L.R. at 107; A.Crim.R. at 160) about s.9(2) of the Australian Federal Police Act and the need to show either actual equivalence in rank or equivalence in rank declared by regulation.
We do not think there is anything in this further point.
"Constable" is, by s.9(3), defined for the purposes of para.(a) of s.9(1) as including a member of the police force of a State or Territory. It is a different paragraph of s.9(1) - para.(c) - which uses the expression "the powers and duties that are conferred or imposed on a constable, or on an officer of police, of the rank that is, or is declared by the regulations to be, equivalent to the rank that the member holds in the Australian Federal Police, in the place in which the member is acting". We do not think any discussion of the history of the office of constable is necessary. (By s.11 of the Police Regulation Act 1958, every member of the police force, whether a constable or of higher rank, has all the powers, privileges and duties of a constable at common law or by statute.) If "constable" in s.9(1)(c) should be given the same meaning as in s.9(1)(a) and accordingly includes a member of the police force of Victoria with that rank, then, since the definition of "investigating official" includes constables as members of the police force, s.9(1)(c) is brought into operation as regards any member of the AFP, regardless of rank. But the same result follows if "constable" in s.9(1)(c) is not to be given the same meaning as in s.9(1)(a). For on this view we would treat "officer of police" in s.9(1)(c) as bearing the same meaning as "member of the police force" in the definition of "investigating official". Since every "officer of police" in Victoria is a "member of the police force" within the meaning of the definition of "investigating official", the result of s.9(1)(c) is that every member of the AFP, from the highest to the lowest in rank, has the powers and duties of an "investigating official".
It follows that McLeod had, by force of s.9(1) of the Australian Federal Police Act, the powers and duties of an "investigating official" under Subdivision (30A) of the Victorian Crimes Act. But our view of the proper outcome of this application would be the same even if we thought McLeod was not placed in the same position as an "investigating official" by s.9(1) of the Commonwealth Act. We say that for the following reasons.

(3) Under section 458 alone

Section 458 of the Crimes Act, pursuant to which McLeod arrested Frugtniet, authorises any person, whether a member of the police force or not, without warrant to "apprehend and take before a bail justice or the Magistrates' Court to be dealt with according to law or deliver to a member of the police force to be so taken" any person he finds committing an offence as defined where he believes on reasonable grounds that the apprehension is necessary within the meaning of the section. The definition section with which Subdivision (30A) begins, s.464, provides that for the purposes of the subdivision a person is in custody if, inter alia, "under lawful arrest under section 458". By s.464A(1) every person taken into custody for an offence must, "within a reasonable time" of being taken into custody, be either released unconditionally or on bail or brought before a bail justice or the Magistrates' Court. The remaining three sub-sections of s.464A empower an "investigating official" within the reasonable time referred to in subs.(1), to question a person suspected of having committed an offence who is in custody for that offence and to carry out investigations in which that person participates, and what is a "reasonable time" then falls to be assessed accordingly - which is the provision made by subs.(4). In terms, however, subs.(4) seems to presuppose the involvement of an "investigating official" (or, we would add, a person having by virtue of s.9(1) of the Australian Federal Police Act the powers of an "investigating official").
The section conferring the power of arrest on private persons - s.458 - has been in the Crimes Act since the Crimes (Powers of Arrest) Act 1972 came into operation. Subdivision (30A) was introduced into the Crimes Act by the Crimes (Custody and Investigation) Act 1988. Section 458 says nothing about the time within which the person arrested is to be taken before a bail justice or the Magistrates' Court or delivered to a member of the police force. No doubt the common law requires that this be done within a reasonable time in the absence of some statutory provision governing the matter of time: Williams v. R. (1986) 161 C.L.R. 278. We heard some discussion of the question whether s.464A(1) was such a provision, or whether by implication - either from the other subsections of s.464A or the context of Sub- division (30A) more generally - s.464A(1) had no application unless an "investigating official" was involved (or, we would add, a person having the powers of such an official). If there was such an implied limitation on the scope of s.464A(1) and if in consequence s.464A(1) had no application in the instant case, the operation of s.458 must have been governed wholly by the common law with the result that the detention of Frugtniet under s.458 was unlawful once a reasonable time (determined otherwise than under s.464A) had expired. On the other hand if there was no such implied limitation on the scope of s.464A(1) so that that subsection applied notwithstanding that no "investigating official" (or the like) was involved, the detention of Frugtniet would have been governed, in part, by s.464A(1), though not by the succeeding subsections of that section (for want of an "investigating official" or the like). Either way the result would be the same: the critical period would be a reasonable time as allowed at common law. Neither the applicant nor the Crown suggested that the outcome of the present application would be affected by the resolution of the implied limitation question and we shall not resolve it.
As we said earlier, it is our opinion that, while McLeod was not an "investigating official", he had the powers and duties of one by force of s.9(1) of the Australian Federal Police Act; but if, contrary to our opinion, he did not have those powers and duties, then plainly, upon his arrest under s.458 Frugtniet ought to have been taken before a bail justice or the Magistrates' Court far more promptly than he was, or delivered to a member of the police force. Granted that such should have occurred within a reasonable time according to the common law, Mr. Lasry suggested that the one step or the other should have been taken, say, 45 minutes after arrest, and so much may be accepted for the sake of the argument. Instead, Frugtniet was detained in custody at AFP headquarters and questioned until after midnight. The question then, on the hypothesis that McLeod did not have the powers and duties of an "investigating official", was whether the record of interview that resulted should have been excluded in the exercise of the judge's discretion.
In the grounds of appeal, Frugtniet relied upon three things: involuntariness, unfairness and public policy, in addition to the breach of various provisions of Subdivision (30A) other than s.464A(1). It is scarcely surprising that the first, voluntariness, was not argued before us. On a reading of the record of interview, it would be difficult to imagine less aggressive questioning or a more willing respondent. That Frugtniet's will was overborne by his anxiety about his wife's learning of his liaison with Janet Cassidy was flatly rejected by the trial judge after hearing evidence on the voir dire, including the evidence of Frugtniet himself, and, as we have said, the point was not pursued on this application.
As for unfairness and public policy, Mr Grace referred us to the recent decision of the High Court in R. v. Swaffield and Pavic v. R. (1998) 192 C.L.R. 159 in which the relationship between the two was explored. Mr Grace did not contend that the admissions made by his client in the record of interview were rendered unreliable because of events on 5 December; rather his submission was that those admissions would never have been made if s.458 had been observed. Had the police taken Frugtniet promptly before a bail justice as required by s.458, said Mr Grace, there would have been no questions, no interview and no record of interview to place before the jury on Frugtniet's trial. Therefore, according to Swaffield (he said) considerations of public policy, if not also considerations of fairness, required that the record of interview be not admitted.
But in our opinion the premise to this submission is not made out; for we have no doubt what McLeod would have done if he had been told by Pedley (from whom he obtained advice about his obligations) that he was required to act only under s.458. Given the critical stage of the investigation when Frugtniet was apprehended with Peris and Cassidy in the hotel room on 5 December, with arrests imminent in Sydney and an urgent need to discover the printer and recover evidence before it was removed or destroyed, McLeod would not have taken Frugtniet before a bail justice or the Magistrates' Court: he would have exercised the other option given him under s.458 and delivered Frugtniet then and there to the Victoria police.
Earlier in these reasons we recounted facts which show how closely McLeod was acting at the time in conjunction with local police both in New South Wales and in Victoria, and that Det. Sen. Const. Magill of the Victoria Police Fraud Squad and other members of that squad were present at AFP headquarters when Frugtniet was taken there. Indeed, it was Magill who procured the search warrant for the motor vehicle, who conducted the tape recorded interview with Frugtniet about searching his vehicle, who went with McLeod when he took Frugtniet back to the Hilton Hotel carpark for that search and who was present while the "field interview" was video recorded. All this occurred during a period of intense investigation, ending with Frugtniet's being taken back to AFP headquarters at about 6 p.m. If at any time after he entered the hotel room it had been made known to McLeod that he was obliged to act under s.458 only, he would surely not have put at risk the fruition of his investigation. Instead he would simply have delivered Frugtniet to the Victoria police (probably in the person of Magill) and it is equally clear that, once that was done, Frugtniet would have been held in custody pursuant to Subdivision (30A). A member of the Victoria police would then have constituted the "investigating official" within the meaning of the definition in s.464 and that definition could have raised no impediment to the questioning that ensued.
For those reasons the submission should be rejected, that there would have been no record of interview had proper procedure been followed by McLeod, acting in accordance with s.458 (whether or not in conjunction with s.464A(1)). But the rejection of that submission on the ground that Frugtniet would have been handed over to a member of the State police who would then have conducted the interview leads naturally to a consideration of the question whether there was compliance with the other provisions of Subdivision (30A) relied upon by Mr Grace and, if there were breaches of the statute (as contended by Mr Grace), the question how far, if at all, such breaches of the statute bore upon the exercise of the judge's discretion to admit the record of interview into evidence notwithstanding such non-compliance. If it can be concluded that the statute was complied with or that such breach or breaches as occurred did not militate against admission of the record of interview into evidence, then at the end of the day Frugtniet was not prejudiced by the default under s.458 (being the failure of McLeod to deliver Frugtniet to Magill, or other member of the Victoria police). And as will be seen that is indeed the conclusion to which we come.

(4) The provisions of Subdivision (30A)

Thus, we approach the question of compliance with the provisions of Subdivision (30A) for two reasons. First, though McLeod was not an "investigating official" by virtue of the definition in s.464, we think that he had the powers and duties of one, by virtue of s.9 of the Australian Federal Police Act and so was entitled and bound to act according to Subdivision (30A). If that is wrong, McLeod's relevant default lay only in not delivering Frugtniet to a member of the Victoria police in compliance with s.458 upon his arrest, and the question of compliance with Subdivision (30A) then falls for consideration for the purpose of determining whether Frugtniet was prejudiced by the default under s.458, given that, had there been no such default, the investigation would then have been prosecuted by a member of the Victoria police who was himself an "investigating official" by virtue of the definition in s.464. Either way, the next question is to weigh what happened against those provisions of Subdivision (30A) in particular upon which Mr Grace relied.
The trial judge considered compliance or not with those provisions for a somewhat different reason. Rejecting the common submission by both sides (a submission which was rested by the Crown on s.35 of the Interpretation of Legislation Act 1984) that McLeod was himself an "investigating official" within the definition in s.464 and on that account governed directly by Subdivision (30A), his Honour considered that none the less questions of fairness and public policy, as bearing upon the discretions affecting the admission of the record of interview, fell to be determined against the requirements of Subdivision (30A) because that contained the expression of Parliament's view about what was fair in such circumstances. That was the approach taken in, for instance, R. v. Weston, but for reasons already given we need not consider it further.
(a) Section 464A(1)
The first complaint is that the questioning of Frugtniet went beyond what was a "reasonable time" within the meaning of s.464A(1), construed in the light of the provisions in particular of sub-ss.(2) and (4). Here, the position at common law (as elaborated, for instance, in Williams v. R. (1986) 161 C.L.R. 278), although much relied upon by Mr Grace, is of no assistance to Frugtniet beyond providing the background against which s.464A falls to be understood; for s.464A makes new and special provision for the very questioning not permitted at common law. In this instance, the time that elapsed between the arrest of Frugtniet at the hotel and his being taken before a bail justice falls naturally into two, the period before and the period after the commencement of the formal interview at about 6.40 p.m. The argument tended to focus on the former rather than the latter, although of course the conclusion depended upon the whole.
Undoubtedly 14 hours is a long time between being taken into custody and being taken before a bail justice - "unquestionably an unusually long period of time" as the judge himself observed - and so prima facie difficult to justify as a reasonable time within the meaning of s.464A. (In passing, we simply note that in different circumstances 16 hours was considered not unreasonable in R. v. Saxon [1998] 1 V.R. 503.) What is a reasonable time in any given case necessarily depends upon all of the particular circumstances and, as the judge said, there were a number of special features here, including the complexity of the investigation; the need to co-ordinate police activity in two States and, in particular, the need to preserve evidence so far as possible; the need to identify, if possible, the printer and to search his premises; the search of the motor vehicle in the hotel car park; and the making of arrangements to interview not only Frugtniet but all three persons apprehended in the hotel room. In the light of all that, it is not surprising that the commencement of the formal interview of Mr Frugtniet was delayed for a number of hours. Again the evidence of McLeod on the voir dire gives a pretty fair indication of the many demands being made upon him as he sought to organise events on 5 December - and even if the task of questioning Frugtniet had been undertaken by another (a member of the Victoria police) it must have required the attendance of McLeod, with his special knowledge of the investigation. McLeod did concede that in hindsight he might have conducted the search of the motor vehicle earlier than he did, but that is of no particular significance to the overall picture. More importantly perhaps, there is no suggestion in any of the material (including the record of interview) that Frugtniet himself had any difficulty with the delay that preceded the commencement of his formal interview: indeed the evidence is to the contrary. It was not until about 6.40 p.m. that McLeod told Frugtniet that he proposed to conduct a formal interview. When asked then if he would participate, Frugtniet said simply: "Of course. I told you before I was prepared to co-operate."
As for what then followed, the interview lasted until shortly after midnight. It was interrupted on a number of occasions (as the record of interview shows), apparently for good cause. On each occasion, as the interview was resumed Frugtniet was asked if he was "prepared to continue with this interview" and, when he signified assent, he was reminded of the caution earlier given, that he was not obliged to answer questions. Because of the interruptions the interview is not to be measured simply by the time between start and end. As the judge said when ruling on these submissions:-
"The formal record of interview between 6.45 p.m. and 12.16 a.m. lasted 5 hours 22 minutes. However, as I have previously mentioned, there were a number of breaks during which the interview was suspended, for a variety of reasons. The total time of these breaks amounted to some 2 hours 13 minutes, with a consequence that the record of interview itself lasted 3 hours and 9 minutes. During that period Mr. Frugtniet was cautioned 11 times and consented to the record of interview continuing on 11 occasions. It is to be noted that Mr. Frugtniet had two telephone conversations with his solicitor (Mr. Ward) at approximately 8.28 p.m. and 11.09 p.m. There was one telephone call to his wife immediately prior to the first telephone conversation with Mr. Ward.
During the formal record of interview Mr. Frugtniet was offered food and/or drink a number of times and was provided with same whenever he requested it."
At the end of the interview, Frugtniet was asked about his treatment by police and whether he had "any complaints at all about any police officers", and he said not.

Section 464A allows a reasonable time for questioning and for investigations in which the suspect participates and in our view the judge was correct in determining that in this case a reasonable time was not exceeded. His Honour had regard to the unusually long period of time between entry into the hotel room and resort to a bail justice but he had regard, too, to the special features of the case already mentioned. His Honour concluded:-
"After considering the long and detailed evidence given by Mr. McLeod as well as the other witnesses who were involved in the activities on that day, I am quite satisfied that the time taken by the police in carrying out necessary duties as part of the investigation which they were entitled to carry out before taking Mr. Frugtniet to a bail justice, was, in all the circumstances, a reasonable period of time. If I am wrong in that assessment of the reasonableness of the time taken to bring Mr. Frugtniet before a bail justice, I would nevertheless have concluded that such unlawfulness as there was in detaining Mr. Frugtniet for longer than was necessary was not of itself productive of any unfairness towards Mr. Frugtniet, nor was the unlawful conduct as evidenced by the time taken such that it would be appropriate to exercise either of the discretions in favour of the exclusion of the record of interview."
Notwithstanding the submissions made by Mr Grace, his Honour is not shown to have erred in this conclusion. Indeed, we agree with him.
(b) Section 464A(3)
Mr Grace then relied upon supposed breaches of s.464A(3) and s.464C(1). The first requires a caution, the second information that the person in custody may communicate with friend or relative, or legal practitioner. Both are prefaced by the phrase "before any questioning or investigation under [s.464A(2)] commences". The judge gave careful consideration to these complaints and concluded that there was nothing in either of them, and again, we agree.
Mention has been made already of the judge's finding that in the course of the interview, Frugtniet was cautioned, or reminded of the caution, on 11 occasions. Moreover, as McLeod's evidence discloses, he was also cautioned much earlier in the day, and more than once. Indeed, it was in the hotel room that he was first cautioned. After a dispute over whether he should use the telephone (a dispute won by McLeod's physically intervening to prevent such use), Frugtniet was told he was under arrest for conspiracy to defraud American Express and immediately cautioned. Shortly after 3 p.m. on 5 December when being asked who printed the counterfeit travellers' cheques, Frugtniet was expressly reminded of the caution earlier given and, it seems from the judge's ruling, he was reminded again before the "field interview" conducted and recorded in the carpark at the Hilton Hotel when the motor vehicle was searched.
By the time the formal interview was commenced at about 6.40 p.m., Frugtniet can have been in no doubt at all about his right to remain silent, and if there was a breach of s.464A(3) we do not see how that breach could fairly be regarded as militating against the admission, in the exercise of discretion, of a record of interview beginning at 6.40 p.m. Mr Grace was entitled, however, to point to the particular wording of s.464A(3) which requires that "the person in custody" be cautioned "before any questioning or investigation ... commences" (our emphasis). It is perhaps a nice point whether Frugtniet was "in custody" (a term defined in s.464(1)) before he was arrested in the hotel room during the altercation about his using the telephone, but even if he was "in custody" from the moment when the police entered the hotel room we see no error in the conclusion reached by the judge. His Honour said:-
"By the same token, the failure on the part of Mr. McLeod to caution Mr. Frugtniet before any questioning began in Room 922 is not of itself a matter calling for the exercise of either of the two discretions in favour of excluding the records of interview. As the evidence discloses, the caution was given within a period of no more than 20 minutes after entering into the room and following answers to questions which in my view were not damaging to Mr. Frugtniet. In any event those answers are not, and cannot be, sought to be led in evidence by the Crown. There was, in my view, no unfairness accorded to Mr. Frugtniet as a result of this omission. So far as the exercise of the Bunning v. Cross discretion is concerned I would view that omission on the part of Mr. McLeod as an 'isolated and merely accidental non-compliance' or, certainly not at the other extreme postulated by Deane, J. in Pollard as being a course of conduct 'which involved deliberate and reckless breach of statutory requirement imposed by the legislature to regulate police conduct in the interest of the protection of the individual and the advancement of the due administration of criminal justice'."
It may be noted that, even after being cautioned in the hotel room, Frugtniet appeared very willing to co-operate with police; for he volunteered his permission to search the room without the need for a search warrant and, when that search was over, he volunteered his permission to search the motor vehicle. (McLeod took advantage of the first offer, though not the second.)
(c) Section 464C(1)
The position in respect of s.464C(1) is not very different. That provision requires that "the person in custody" be informed of the right to communicate with a friend or relative and with a lawyer; Mr Grace's submissions focussed on the latter. Again there is no doubt that Frugtniet was told of his right to contact a legal practitioner at the start of the formal interview and was asked if he wished to do so, though at trial his answer was in dispute. According to the record of interview prepared by the police, Frugtniet replied: "No, don't think so". As is apparent from the judge's ruling, his counsel contended that Frugtniet had in fact said "yes" and that the record was to that extent incorrect, but the judge ruled otherwise and that point was not pursued before us. As with the caution, the argument mounted on this application focussed on events well before the commencement of the formal interview, and in this instance events in the hotel room in particular.
When the altercation erupted in the hotel room over Frugtniet's attempting to use the telephone (the altercation that precipitated his arrest) Frugtniet was demanding to use the telephone to contact his office and McLeod was plainly concerned that he should not use the telephone at all at that stage. He had first physically intervened to prevent Frugtniet taking an incoming call and when Frugtniet asked to call his office he had told him that he could not, because "if you ring them evidence is likely to be destroyed and ... police enquiries in New South Wales hindered." McLeod had added that the police there were intending to arrest Frugtniet's brother for complicity in the counterfeiting. At that point, McLeod's evidence discloses, Frugtniet "became extremely agitated and nervous, and said: 'I've got to ring my office'". Shortly afterwards he grabbed the telephone receiver and events led then to his being placed under arrest and handcuffed, until he "calmed down". According to McLeod's written statement, Frugtniet said: "I want to ring my office, and call my solicitor", and again use of the telephone was denied him, but this time in these terms:
"You can't at the moment, but once I'm advised that the New South Wales police have your brother in custody and providing it won't hinder inquiries you can ring your office. You can ring your solicitor once we get back to my office."
The trial judge was critical of this postponement of any contact with the solicitor, but, with respect, we should have thought it could be justified under s.464C(1)(c). That provision allows for permission to make the communication mentioned in sub-s.(1) being refused if the communication "would result in the escape of an accomplice or the fabrication or destruction of evidence". His Honour was of opinion that to contact the solicitor could not impede the police investigation, but in our view there was no guarantee that contact with the solicitor might not have led, however innocently, to contact between the solicitor and Frugtniet's office, the very contact which Frugtniet appeared so anxious to make and McLeod equally anxious to prevent. However that may be, once back at AFP headquarters and notwithstanding that he had not yet heard that Frugtniet's brother had been located in Sydney, McLeod asked Frugtniet about contacting his solicitor. According to McLeod's written statement, this exchange occurred:

"I said:

'I told you at the hotel that you could ring a solicitor once we got back to our office. Do you want to ring a Solicitor?'
FRUGTNIET said: 'No.'

I said:

'You're entitled to contact a solicitor if you want to. If you change your mind tell me and I'll make arrangements for you to ring a solicitor.'
FRUGTNIET said: 'Alright'."

This declining of the invitation to contact a solicitor scarcely supports the present complaint under s.464C.

During the conversation concerning the printer's identity that began at about 3 p.m. Frugtniet was again reminded expressly of his right to communicate with a solicitor, when this exchange is noted by McLeod as occurring:-

"I said:

'Alright before we go any further with this I want to remind you that the caution I gave you earlier that you're not obliged to answer any of my questions still applies. Do you understand that?'
FRUGTNIET said: 'Yes.'

I said: 'I also advised you earlier that you are entitled to
communicate with a lawyer.'
FRUGTNIET said: 'Yes, but what's the point?'
I said: 'It's up to you. Do you want to ring a lawyer?'
FRUGTNIET said: 'No, but can I ring my wife.'"

This last request was again refused for the time being because it might prejudice the pending execution of search warrants by the police in Sydney. During the formal interview that began at about 6.40 p.m. Frugtniet did finally telephone his wife and after that call was made, McLeod's statement has this exchange:-

"I said: 'I asked you at the start of the interview if you
wanted to contact a lawyer and you said no.'
FRUGTNIET said: 'That's right. What good can a lawyer do me. I've
got nothing to hide and I'm trying to co-operate.'"

McLeod then told Frugtniet that his solicitor had already telephoned and Frugtniet indicated that he would contact him.

In the light of the foregoing it is difficult to consider that the present complaint under s.464C stems from any real or legitimate concern over the first refusal to let Mr Frugtniet use the telephone at the hotel. Again Mr Grace can point to the express statutory requirement that "the person in custody" be informed of the right to attempt such contact "before any questioning or investigation under section 464A(2) commences"; but even if there was a breach it can scarcely be thought, in all the circumstances, to have led to any unfairness or to require that the formal record of the interview that began at about 6.40 p.m., with the apparent willing co-operation of Frugtniet, should not be admitted into evidence. We can only agree with the judge that in the particular circumstances the point taken by reference to s.464C was of no real significance to the exercise of the discretion.
In saying that, we do not overlook that, when it came to the so-called "field interview" (which took place in the hotel carpark and began approximately an hour before the formal interview), the judge was of a different mind. In this respect his Honour said in his ruling:-
"However when it comes to the field interview, although it shows that Mr. Frugtniet was cautioned, it is equally clear that he was not specifically informed of his right to communicate with a legal practitioner. Although it is clear that the obligation to inform a person in custody of his right to communicate with a legal practitioner is one which is imposed 'before any questioning or investigation' commences and that there is no obligation to repeat the advice of that right, it seems to me that as a matter of fairness, an investigating official should remind the person of that right before each discrete period of questioning commences. This appears to be the practice which has developed ever since the provisions of sub-division 30A came into operation in 1989. I accept the evidence of Mr. McLeod that Mr. Frugtniet was told of the right to communicate with a legal practitioner at about 11.50 a.m. back in the hotel room, albeit that information was couched in terms of telling Frugtniet that he would be permitted to ring his solicitor but not until they returned to the AFP office. ..... I consider that Mr. Frugtniet should have been reminded of his right at the beginning of the taped field interview."
In view of the terms of the earlier discussion with Frugtniet on the point, we are not sure that we would have excluded the record of the "field interview" merely for want of some reminder about the right to communicate with a lawyer, but our opinion on that is of no relevance; the admission of that record of interview is not now an issue. Nor, however, is what was said in that regard of any direct relevance to the proper exercise of the discretion in relation to the record of the formal interview that began about an hour later, and at the commencement of which Frugtniet was formally reminded yet again of his rights to communicate with others.
(d) Section 464H
The last of the alleged breaches of Subdivision (30A) relied upon by Mr Grace centred on the requirements of s.464H. Section 464H expressly renders inadmissible "evidence of a confession or admission made to an investigating official" unless the conditions laid down by paragraph (c), (d) or (e) are met. (Sub-section (2) confers a discretion on the Court to admit evidence otherwise inadmissible if the circumstances are exceptional.) Paragraphs (c) and (e) are not presently relevant. Mr Grace's point was that the condition laid down in paragraph (d) had not been met. That condition was that "the questioning" during which the confession or admission was made "and anything said by the person questioned was tape-recorded".
Now, the formal interview which commenced at about 6.40 p.m. on 5 December was tape-recorded, and thus far s.464H was satisfied. Counsel's submission, however, was that that interview was only a portion of "the questioning" which had to be tape-recorded by virtue of s.464H, the relevant "questioning" having begun much earlier in the day - if not in the hotel room where Frugtniet was first apprehended, then certainly by 3 p.m., when questions were put about the identity of the printer. Of course, Mr Grace could not complain about the questions and answers in the "field interview" (in the hotel carpark), for that was video-recorded (though the recording was excluded by the judge's ruling). But it was enough for counsel's purposes to point to the questions asked of Frugtniet about the printer in mid-afternoon, which were not tape-recorded. For want of a recording of those questions and the answers given, there was a breach of s.464H(1) (it was said), or at all events there would have been a breach of that provision had there been "an investigating official" asking the questions.
In aid of his submissions, Mr Grace pointed to the decisions of the High Court in Pollard v. R. (1992) 176 C.L.R. 177, and Heatherington v. R. (1994) 179 C.L.R. 370, the first to point up the importance of compliance with s.464H and the second to reinforce the requirement that questioning which "builds upon" earlier questioning can properly be regarded as all of a piece. As for the latter, Mr Grace pointed to a number of occasions during the formal interview when McLeod referred to questions earlier asked, some of which were mentioned in his written statement and some of which were not. This reference back, he submitted, was what served to link the earlier questioning with the later and led to the conclusion, rejected by the judge, that the tape-recording of the formal interview did not in itself satisfy the requirements of s.464H(1).
The first such occasion of reference back provides an example of the type of thing relied upon by Mr Grace. At page 10 of the record of interview, this appears:-

"McLEOD: OK. Do you agree that earlier this afternoon I ah, asked you a number of questions in relation to counterfeit American Express Travellers' Cheques?
FRUGTNIET: Yes.
McLEOD: And ah, what did you then tell me about those ah,
American Express Travellers' Cheques?
FRUGTNIET: Sorry.
McLEOD: Do you remember that earlier today I asked you about the counterfeit American Express Travellers' Cheques?
FRUGTNIET: Mm, yes.
McLEOD: And do you agree that I also asked you what you knew about those travellers' cheques and the printing of those cheques?
FRUGTNIET: Yes. Ah, what I admitted was my knowledge of the, of these cheques. Um, as I said um, ah, I was in a bad predicament and ah, some people who said they are friends of Eddy's um, asked if this can be done because we have printers to do on our brochures and um, that we would be rewarded."

After confirming that Frugtniet had also said that Janet Cassidy "had nothing to do with ... printing of the travellers' cheques", McLeod then proceeded:-
"What I would like you to do now if you, if you could please, is to explain to me the procedure that started all your involvement with these counterfeit travellers' cheques right from the start?"

Other examples of this reference back can be found on pages 27, 31 and 32 of the record, where these exchanges appear:-

(On page 21)
"McLEOD:

And ah, is it correct that earlier today you told me that this particular gentleman who produced the ah, travellers' cheques was also working as a print..printer producing the brochures for your, your business?
FRUGTNIET: Yes, ah, yes.
McLEOD: How long have you known this particular
printer?"

(On page 31)
"McLEOD:

Mm. Do you agree that ah, earlier this afternoon when you and I were t..talking about this Gamini [the printer] that you ah, explained to me that you indicated to Gamini that if he didn't produce the ah, the travellers' cheques that he might lose the rest of your business?
FRUGTNIET: I didn't indicate that, I didn't indicate that, but I
think that's what he sort of felt..
McLEOD: Oh right."

(On page 32)
"McLEOD:

Right, Do you agree that ah, earlier this afternoon you indicated to me that, or rather, I asked you, where they would have got the original American Express Travellers' Cheques from to make the counterfeits from? Do you remember that?
FRUGTNIET: Yes.
McLEOD: And ah, what did you tell me then?

FRUGTNIET:

Well I h... I carry my own travellers' cheques which I, I carry when I travel and I believe it was taken from my travellers' cheques.
McLEOD: Did you actually hand Gamini any travellers'
cheques to ah ..."

After each of these exchanges the questioning proceeded, the reference back to an earlier question having been made, in our opinion, simply for the purpose of introducing the topic - and in a neutral way, not to lead Frugtniet but to give him the opportunity to assent to or deny what was put (as witness the exchange on page 31). In those circumstances it is difficult we think to characterise what happened as "building upon" the earlier questions, if by that expression is meant that the earlier questions and the later questioning were all of a piece so as to attract the requirements of s.464H(1) to the whole. The issue raised in this instance by reference to s.464H is not to be resolved in any mechanistic way: it is always a question of fact and degree. So it was in Pollard, and so too in Heatherington.

In Heatherington, the interview which was recorded during which the suspect made a full commission, lasted for some two hours. It followed an earlier interview lasting for some five to ten minutes, which was not tape-recorded. Unlike what happened in this case, the second interview was altogether "self contained in the sense that the questions and answers did not on their face relate back to or refer to the questions and answers on the first occasion": 179 C.L.R. at 377 per Mason, C.J., Deane and McHugh, JJ. Yet that was not regarded as determinative; it was but a factor for consideration: see also at 383 per Brennan, Dawson and Gaudron, JJ. (who differed, not on this point, but in the result). The task under s.464H(1) is to identify the period of "the questioning" which must be tape-recorded. Obviously, as was made plain in Pollard, the legislative provision focuses on the questioning during which the answers were made which are sought to be adduced in evidence: the task is to identify the beginning and the ending of that "questioning" for the purpose of determining if s.464H(1)(d) has been complied with.
Given that in this case, save for the "field interview" and the brief interview recorded by Magill, the tape-recording began with the formal interview, which commenced at about 6.40 p.m., it is difficult to see what course could have been followed to avoid argument under s.464H(1). McLeod chose to refer back to earlier questions and answers in order to introduce a topic, and now it is said that the earlier questions should have been tape-recorded. Had no such reference back been made, it might well have been argued that that was merely a ploy by the police to isolate the later questions and to make them appear what they were not - separate and discrete from the earlier questions. The answer is that which was given in Heatherington where the first of these two situations was under consideration: the fact that there is no reference back is a factor but it is not determinative. In our opinion the same is so here; the fact that there is reference back to earlier questions is a factor, but it is not determinative.
As Toohey, J. said in Heatherington at 386:-
"The issue is very much one of fact. A decision on such a matter made by a trial judge is one with which an appellate court would not ordinarily interfere unless the trial judge had misunderstood the legislation or had applied a test which was inconsistent with the legislation."
We see no such error here. Having considered the arguments put, we are not persuaded that the questioning which began at about 6.40 p.m. "built upon" earlier questions and answers in such a way as to make the earlier part of the later. The trial judge considered this submission and rejected it on the basis that, while the questions asked before 6.40 p.m. were part of the continuing investigation, they were nonetheless discrete and formed no part at all of "the questioning" which fell to be tape-recorded under s.464H(1)(d). The judge was criticised for referring to a submission of counsel for the accused which, as he apprehended it, emphasised "deferral of the interviewing rather than asserting that it commenced ... in the afternoon of 5 December 1991". Mr Grace submitted that this misapprehended counsel's submission, but we do not think it matters: that was not a necessary part of his Honour's reasoning. Essentially, the question raised by the submission was to be determined as a question of fact and degree and, having read again those portions of the record of interview which were said to be linked to earlier questions and answers, we reject the submission that "the questioning" which fell to be tape- recorded according to s.464H(1)(d) commenced before the formal interview.
Conclusion on Brian Frugtniet's conviction
These then were the alleged breaches of ss.464A, 464C and 464H. In our view, none of the submissions made by Mr Grace in this respect was made out. It follows that the provisions of Subdivision (30A) afforded no basis for the rejection of the record of the interview that commenced at about 6.40 p.m. It remains true that if, contrary to the opinion we expressed earlier, McLeod did not have the powers and duties of a member of the Victoria police (including those powers and duties found in Subdivision (30A)), McLeod was in default under s.458 when he failed to deliver Frugtniet to a member of the Victoria police at some time (which need not be fixed) before 6.40 p.m.; but, had the correct procedure been followed, Mr Frugtniet's position would not have been materially different thereafter. As Mr Grace has not established that there was a breach of the provisions of Subdivision (30A), we cannot regard the mere failure of McLeod to deliver Frugtniet to a member of the Victoria police as such a default as in itself to warrant rejection of the record of interview in the exercise of discretion. After all, McLeod was apparently doing his best, in line with the advice he twice received from Pedley, to act according to State laws: certainly there was no deliberate or reckless breach of statutory requirements of the type referred to by Deane, J. in Pollard at 204. Each case must depend upon its own facts and in the circumstances here, given the nature of the attack made upon the judge's decision, we cannot say that the judge's discretion miscarried when he admitted the record of interview into evidence.
Brian Frugtniet's sentence
We turn to Brian Frugtniet's application for leave to appeal against sentence. He was sentenced to be imprisoned for a term of five-and-a-half years on the count of conspiracy to make false documents and to be imprisoned for two-and-a-half years on the count of conspiracy to use false documents. The terms were to be served concurrently. The judge directed that the applicant serve a term of three-and- a-half years' imprisonment before he was to be eligible for parole. The maximum penalty for each of the crimes was a term of seven-and-a-half years' imprisonment.
Frugtniet is now aged 47 years. He had no prior convictions at the time of the commission of the offences. He was born in Colombo and lived there until he completed secondary school and some university education. The applicant married in Sri Lanka and then travelled with his wife to Germany where he studied mechanical engineering. In 1977 the applicant, his wife and child migrated to Australia. The applicant has been largely self-employed in Australia, his principal business being that of a travel agent. The applicant and his wife have three children aged 23, 17 and 9 years.
On 12 December 1994 Frugtniet was, as we have mentioned, convicted in the District Court of New South Wales on five counts of making and five counts of using a false instrument contrary to s.300 of the Crimes Act (N.S.W.). The offences of making and using false instruments each carried a maximum penalty of ten years' imprisonment. The offences were committed between 1 and 19 October 1991. (The first overt act pursuant to the agreements the subject matter of the conspiracy charges occurred in late October or early November 1991.) The false instruments were counterfeit National Australia Bank cheques with a face value of $58,135.78. On 27 January 1995 Frugtniet was sentenced on the first count in the indictment, according to his counsel, to what amounted to a term of imprisonment of two years, with a minimum term of 18 months. On each of the other counts the applicant was sentenced to a term of 12 months' imprisonment to be served concurrently with the sentence on the first count.
The fact that the conspiracy trial in Victoria did not commence until 5 March 1998 was due in part to the New South Wales trial and an appeal from the result of that trial, but was largely caused by a multiplicity of applications and proceedings brought by Frugtniet and his co-accused. Frugtniet applied twice to disqualify the trial judge on the ground of bias, changed his counsel and solicitor several times, issued subpoenas which were contested, brought proceedings in an attempt to prevent his transfer to Victoria pursuant to the Prisoners (Interstate Transfer) Act 1983, sued the New South Wales Legal Aid Commission, made applications for legal aid under s.360A of the Crimes Act 1958, brought proceedings to set aside the presentment and warrant for his arrest, and generally appealed against any decisions that were adverse to him, on occasion as far as the High Court. Some indication of the dimensions of the avalanche of applications, proceedings and appeals launched by the applicant may be gleaned from the fact that between the committal of the applicant for trial on 11 December 1992 and the commencement of the trial on 5 March 1998, there were more than 60 appearances by or on behalf of the applicant before various courts in Victoria, New South Wales and Canberra, apart from appearances in connection with the disposition of matters preliminary to the trial such as the admissibility of evidence.
The grounds of the application for leave to appeal against sentence are:
"1. That the sentence imposed on the accused is manifestly
excessive.
2.         The learned trial judge failed to adequately apply the Mill principle in determining the totality of the sentence to be imposed.
3.         The learned trial judge failed to apply the correct principles of parity when sentencing.
4.         The learned sentencing judge erred in doubly punishing the applicant for the same conduct thereby giving rise to a substantial miscarriage of justice."
It is convenient to deal with the first and second grounds of appeal together. Frugtniet relies upon the decision in Mill v. R. (1998) 166 C.L.R. 59. In that case the appellant committed three armed robberies, two in Victoria and one in Queensland in a period of six weeks. In September 1980 he was sentenced in respect of the Victorian offences to a term of ten years' imprisonment with a minimum term of eight years' imprisonment. On his release on parole he was convicted of the Queensland offence and sentenced to a term of eight years' imprisonment with a recommendation that he be considered for parole after three years in recognition of the sentence he had already served for the Victorian crimes. The High Court approved the statement of principle by Street, C.J. in R. v. Todd (1982) 2 N.S.W.L.R. 517 where his Honour said, at 519-20:
"It would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. ... [W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on a subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
The High Court held that the sentencing judge erred in failing to apply the principle to the head sentence. The Court said, at 66:
"In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time."
In the course of his sentencing remarks the trial judge acknowledged that the principle referred to in Mill v. R. was to be applied. He said:
"I agree with the submissions made by Mr. Papas on your behalf, based on the principle of totality as explained by the High Court in Mill v. R. ... that I should approach my present sentencing task, so far as you are concerned, by considering what effective head sentence would have been likely to have been imposed if you had been committed and convicted of all the offences within the one jurisdiction and had been sentenced at the same time."
The combined effect of the sentences imposed in New South Wales and Victoria was a head sentence of seven-and-a-half years' imprisonment and a minimum term of five years' imprisonment. The trial judge said that he would have ordered some cumulation had the sentences been imposed at the same time and he took into account the principle of parity and the mitigating factors that the greater part of the New South Wales sentence was served in maximum security, the delay in bringing Frugtniet to trial, the fact that he had no prior convictions, and the fact that he suffered from arthritis. His counsel submitted that as the judge took those matters into account and reduced the head sentence to five-and-a-half years' imprisonment, his Honour must have started from a point that was an excessive punishment for the crimes. Further, it was submitted that given the overlapping nature of counts 1 and 2, the comparative seriousness of the Victorian offences and the fact that the New South Wales offences were committed at the same time, it would not have been proper to have ordered any cumulation of the New South Wales offences.
We would question whether the factors tending to decrease the sentence other than totality, Frugtniet's lack of prior convictions and the conditions of his imprisonment in New South Wales were of any significance. As will be seen, the principle of parity required a sentence that reflected the dominant role played by the applicant in the criminal enterprise, and the judge recognized that the applicant was to blame for the bulk of the delay in bringing him to trial.
In our opinion notionally increasing the sentence to allow for the term of imprisonment imposed in New South Wales and the mitigating factors which are applicable does not demonstrate that the judge started with a sentence that was manifestly excessive. Frugtniet played the dominant part in an ambitious, complex conspiracy. He found and recruited Peris, the graphic artist, and Gamini Suriarachi, the printer. It was he who engaged the man Go to advise as to the equipment that was required, to purchase an encoder and printing machine and to procure a computer program to provide a numbering system for the cheques. It was he who supervised the work of the artist and printer, taking pains in an attempt to produce close copies of genuine travellers' cheques. The judge observed that Frugtniet took meticulous care and carefully planned the operation. In addition to his leading role in planning and establishing the means to forge the travellers' cheques, he also participated with his brother in the establishment of the system to utter the forged instruments. Frugtniet delivered to Seyfarth the passports that were to be falsified and used by those who were to cash the cheques. Frugtniet was aware of the cashing of travellers' cheques in Australia as a test and participated in raising the funds for travel to Europe, where the rest of the cheques were to be cashed.
Frugtniet played the leading part in a criminal enterprise of substantial size. The sum potentially involved was at least US$2.8m. That sum represented the loss that would have been sustained if the face value of the cheques had been met. Travellers' cheques are an important element in the international exchange of goods and services. A great deal of commercial activity throughout the world depends upon the integrity of that medium of exchange. The sentence imposed upon the applicant should have reflected the objective of operating as a general deterrent to those minded to attack that part of the world's financial systems.
Overall we consider that the part played by the applicant in conspiracies which constituted grave criminal activities warranted punishment towards the upper end of the range that was available to the judge. In our opinion the length of the sentence imposed upon him neither is manifestly excessive nor demonstrates that the trial judge failed to pay due regard to the effects of the New South Wales sentence.
We do not agree with the contention that the sentence for the New South Wales offences and the Victorian sentence could not properly be made cumulative to some degree. While the personnel, plant and equipment engaged were common to both the forging of the bank cheques and the travellers' cheques, the enterprises were distinct, each aimed at different targets in different countries. As the judge in New South Wales observed, bank cheques are an important part of the financial system because they are generally regarded as equivalent to cash.
It was submitted on behalf of Frugtniet that the sentencing judge appears to have thought that the totality principle stated in Mill v. R. applied only to the head sentence. It was pointed out that his Honour said, in the passage quoted in paragraph 76 above, that he should apply the principle in considering what effective head sentence would have been imposed if Frugtniet had been convicted of all the offences at the same time. In our opinion the principle of totality exemplified by Mill v. R. is satisfied if the head sentence properly reflects the fact that the applicant has been previously sentenced in another State in respect of an offence of the same nature and committed at about the same time, and a minimum term is set which in all the circumstances is appropriate to that head sentence. We do not consider the principle requires the fixing of a minimum term less than that which would otherwise be appropriate in relation to the head sentence. If the principle operates to reduce a head sentence, it will generally reduce the minimum term.
The third ground of appeal against sentence is that the judge failed to correctly apply the principle of parity.
Peris and Suriarachi, the graphic artist and printer, were each sentenced to a term of two years' imprisonment, which was wholly suspended for two years. Peris was also sentenced to a term of 12 months' imprisonment for the crime of falsifying passports under the Passports Act 1938 of the Commonwealth, but he was released immediately upon entering into a bond to be of good behaviour for 12 months. Both Peris and Suriarachi made early pleas of guilty and co-operated with the authorities by providing important evidence in the trial of Frugtniet and his wife. Their parts in the conspiracy were secondary. They were recruited by Frugtniet and were his subordinates. Seyfarth was sentenced to a term of four-and-a-half years' imprisonment with a minimum term of three years' imprisonment. Seyfarth entered a late plea of guilty. He participated only in the conspiracy to cash the forged travellers' cheques, and he was subject to the anxiety of a trial long delayed largely through no fault of his own. Seyfarth was not convicted of any offence arising from the forging of the bank cheques. The applicant's wife was sentenced to a term of two years' imprisonment on the charge of conspiracy to make a false document and to one year's imprisonment upon the charge of conspiracy to use a false document. The terms were made concurrent and a minimum term of 12 months' imprisonment was fixed. The judge remarked that the role of the wife was that of "assistant to the main players".
The principle of parity requires that there should not be a marked disparity between the sentences imposed upon co-offenders which gives rise to a justifiable sense of grievance. Disparity is a question of the proportion between sentences, "that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality": Postiglione v. R. (1997) 189 C.L.R. 295 at 302 per Dawson and Gaudron, JJ. In that case the fact that the appellant's co-conspirator was the principal organizer in the conspiracies and the appellant co-operated with and assisted the authorities was held to require that the co-conspirator receive a markedly greater sentence than the appellant.

In the present case we are of the opinion that the sentence imposed upon Frugtniet was proportionate to the sentences imposed on the other participants in the conspiracies. He was indisputably the creator and master of the undertaking. Peris and Suriarachi only supplied skilled labour and they co-operated with the authorities. Suzanne Frugtniet was her husband's aide-de-camp. Seyfarth played a more important role in the organization, but it related only to the distribution of the forged cheques, and his plea avoided a long and expensive trial. We think that any lower sentence imposed upon Frugtniet would not have been proportionate to the sentence imposed upon Seyfarth.
As to the fourth ground of appeal, the conduct for which it was said that Frugtniet was punished twice was the intent to use the travellers' cheques. The fact that the cheques were intended to be used was an element in the offence the subject matter of the first count, for it was alleged that the applicant conspired to make the false documents "with the intention that they or other persons should use the said false documents to induce another person to accept them as genuine." The second count charged the applicant with conspiring to use the false documents "with the intention of inducing another person to accept them as genuine."
Frugtniet relied upon the decision in Pearce v. R. (1998) 156 A.L.R. 684. In that case the appellant was charged with maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm and with breaking and entering a dwelling house and, while therein, inflicting grievous bodily harm. The charges arose from a single episode when the appellant broke into the victim's home and beat him. The appellant was sentenced to a term of 12 years' imprisonment on each charge. The sentences were made concurrent. The majority of the Court held that the individual sentences were flawed because they doubly punished the appellant for a single act, the infliction of grievous bodily harm. McHugh, Hayne and Callinan, JJ. said, at 694:
"The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act."
In the present case Frugtniet was not punished twice for the same conduct. Section 83A(1) provides that a person must not make a false document with the intention that the maker or another person will use the document to induce another to accept it as genuine. Section 83A(2) provides that a person must not use a false document with the intention of inducing another person to accept it as genuine. One offence is the making of a false document with the intention that it be used fraudulently. The other offence is the use of a false document fraudulently. The offences are distinct.
Conviction of Suzanne Frugtniet
Suzanne Frugtniet seeks leave to appeal against her conviction on the ground that the trial judge erred in failing to order that her trial be held separately from that of her husband. She made a number of applications for a separate trial. Two applications in 1996 were made on the basis of delay, another was made at the conclusion of the voir dire evidence and three more applications were made during the trial. All applications were refused.
In Webb and Hay v. R. (1994) 181 C.L.R. 41, at 89, Toohey, J. said:
"[W]hen accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused."
See also R. v. Brown [1990] V.R. 820 at 821 per Hampel, J.
It was contended on behalf of the applicant that she was prejudiced by the joint trial as the evidence against her was significantly different from and weaker than that against Brian Frugtniet, and that prejudice could not be overcome by appropriate directions to the jury. The matters said to have caused the prejudice were:
(a)        The prosecution relied upon evidence of lies said to have been told by Brian Frugtniet and admissions made by him in the course of the record of interview, evidence which was not admissible against his wife.
(b)        The evidence of Peris and Suriarachi was corroborated as against Brian Frugtniet by the admissions made by him, whereas it was uncorroborated as against the wife.
(c)         In the course of cross-examination of Dallimore the Crown raised Brian Frugtniet's participation in the making and use of the forged bank cheques.
(d)        A letter from a bank to the applicant and her husband referring to amounts which they owed to the bank was put forward by the prosecution in cross-examination of Brian Frugtniet as a consequence of evidence given by him, and was admitted into evidence, an event which would have not occurred in a separate trial of the applicant.
The evidence of admissions by Brian Frugtniet, which was inadmissible against his wife, could be readily identified and in our opinion was not so entwined with the evidence admissible against her as to render it likely that the jury could not follow the directions of the trial judge as to the use which they could make of that evidence. No complaint is made as to the adequacy of those directions. Nor do we think that it was a difficult intellectual exercise to recognize and allow for the fact that the evidence of the accomplices was capable of being corroborated by Brian Frugtniet's admissions but could not be corroborated by any evidence admissible against the applicant. The judge directed the jury in clear terms to make that distinction.
We do not think that there was any real possibility that the jury used Brian Frugtniet's participation in the manufacture and use of the National Australia Bank cheques as a basis for concluding that Suzanne Frugtniet was a party to the conspiracy to make and use the false travellers' cheques. It was contended on her behalf that the evidence disclosed a propensity on the part of Brian Frugtniet to engage in offences concerning forgery and that as his wife she must have been aware of that propensity. It was said that the evidence may have adversely affected the jury's assessment of her and her claim of ignorance of any conspiracy. In our opinion there is no reason to suppose that the jury engaged in such a speculative and tenuous process of reasoning, particularly in the light of the direction given to them by the judge, who said:
"I will pause there, members of the jury, simply to give you this very important warning: that when Mr Dallimore gave that evidence about having given false evidence in a court in Sydney in 1994, you, as I have said over and over again to you, have to consider the evidence that bears on the guilt of Mr Frugtniet on the one hand and the guilt of Mrs Frugtniet on the other hand. Any reference to other court proceedings are not matters which constitute evidence bearing on the guilt of Mr Frugtniet, still less Mrs Frugtniet. That evidence that Mr Dallimore gave when he was cross-examined by Mr Lasry was adduced for the sole purpose of going to Mr Dallimore's credit, that is it was adduced for the purpose of endeavouring to persuade you, the jury, that Mr Dallimore was not a witness of truth and that he was a witness who would tell lies, and for no other reason. You must not use that evidence for any reason at all other than going to Mr Dallimore's credit as a witness."
The letter from the Bank was admitted in the course of cross-examination, and once admitted could be used for any purpose. In our view the letter was admissible directly against Suzanne Frugtniet, for it disclosed a motive on her part to participate in the conspiracies to make and use the false travellers' cheques. Her counsel submitted that if the letter had been tendered in the course of the Crown case instead of during cross-examination of Brian Frugtniet, she could have gained the advantage of cross-examination of the witness called to prove the letter. However, if Mrs Frugtniet did contest her indebtedness to the bank, she was in a position to lead evidence either by herself or from others, including employees of the bank, to establish her version. There was no prejudice occasioned to the applicant as a result of the emergence of the letter in the course of Brian Frugtniet's case.
Overall we are of the opinion that the leading of evidence which was admissible or occasioned only by reason of the joint trial was not so extensive or significant that any prejudice to the applicant could not be obviated by directions given to the jury as to the use which they could make of the evidence and that the directions given were adequate.
Conclusion
In the result all three applications must fail.
- - -

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr L. Lasry, Q.C. and	Solicitor for Public
Mr M.P. Taft	Prosecutions (C'th)
For the Applicants	Mr D. Grace, Q.C. and	Victoria Legal Aid
Ms S. Stokes

(4)	The Learned Trial Judge erred in finding that 30A [an intended reference to Subdivision (30A)] of the Crimes Act did not apply to the interview.
(5)	The trial miscarried following the determination of the learned Trial Judge to permit the Crown to lead evidence from the witness Janet Cassidy of actions described as conclusiveness of guilty behaviour. The ruling to allow such evidence led to a miscarriage in the circumstances of this case when the Crown did not address argument as to this evidence in its final address.
(6)	The learned Trial Judge erred in permitting the Crown to cross examine the witness Dallimore on matters that related to the Accused's character and prior offending.
(7)	The learned Trial Judge erred in ruling that the Crown could ask leading questions of its own witness Willy Go.
(8)	The trial miscarried following improper communications to the jury."

(3)	The Bank may authorise an agent of the Bank:
(a) to enter into any transaction prohibited by subregulation (1) of this regulation, or into any transaction included in a class of such transactions and it shall be lawful for the transaction to be entered into accordingly; and
(b) to be a party to any transaction prohibited by subregulation (2) of this regulation, or to any transaction included in a class of such transactions, and it shall be lawful for the agent of the Bank to be a party to the transaction accordingly.
.....".

I said:	'I also advised you earlier that you are entitled to communicate with a lawyer.'
FRUGTNIET said:	'Yes, but what's the point?'
I said:	'It's up to you. Do you want to ring a lawyer?'
FRUGTNIET said:	'No, but can I ring my wife.'"

"I said:	'I asked you at the start of the interview if you wanted to contact a lawyer and you said no.'
FRUGTNIET said:	'That's right. What good can a lawyer do me. I've got nothing to hide and I'm trying to co-operate.'"

"McLEOD:	OK. Do you agree that earlier this afternoon I ah, asked you a number of questions in relation to counterfeit American Express Travellers' Cheques?
FRUGTNIET:	Yes.
McLEOD:	And ah, what did you then tell me about those ah, American Express Travellers' Cheques?
FRUGTNIET:	Sorry.
McLEOD:	Do you remember that earlier today I asked you about the counterfeit American Express Travellers' Cheques?
FRUGTNIET:	Mm, yes.
McLEOD:	And do you agree that I also asked you what you knew about those travellers' cheques and the printing of those cheques?
FRUGTNIET:	Yes. Ah, what I admitted was my knowledge of the, of these cheques. Um, as I said um, ah, I was in a bad predicament and ah, some people who said they are friends of Eddy's um, asked if this can be done because we have printers to do on our brochures and um, that we would be rewarded."

(On page 21) "McLEOD:	And ah, is it correct that earlier today you told me that this particular gentleman who produced the ah, travellers' cheques was also working as a print..printer producing the brochures for your, your business?
FRUGTNIET:	Yes, ah, yes.
McLEOD:	How long have you known this particular printer?"
(On page 31) "McLEOD:	Mm. Do you agree that ah, earlier this afternoon when you and I were t..talking about this Gamini [the printer] that you ah, explained to me that you indicated to Gamini that if he didn't produce the ah, the travellers' cheques that he might lose the rest of your business?
FRUGTNIET:	I didn't indicate that, I didn't indicate that, but I think that's what he sort of felt..
McLEOD:	Oh right."
(On page 32) "McLEOD:	Right, Do you agree that ah, earlier this afternoon you indicated to me that, or rather, I asked you, where they would have got the original American Express Travellers' Cheques from to make the counterfeits from? Do you remember that?
FRUGTNIET:	Yes.
McLEOD:	And ah, what did you tell me then?
FRUGTNIET:	Well I h... I carry my own travellers' cheques which I, I carry when I travel and I believe it was taken from my travellers' cheques.
McLEOD:	Did you actually hand Gamini any travellers' cheques to ah ..."