R v Gillard - [2007] SASC 182

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v GILLARD
[2007] SASC 182
Reasons for Ruling of The Honourable Justice Nyland
21 May 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - WARRANTS FOR ARREST AND DETENTION - ISSUE AND VALIDITY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE
Accused jointly charged with Gerald Preston with two counts of murder and one count of attempted murder – application to exclude various records of interview – whether failure to comply with the requirements of order for extradition pursuant to Service and Execution of Process Act (Cth) 1992 – failure to comply with the provisions of s 74D of Summary Offences Act 1953 – Form 6 1921 used for warrant – whether valid warrant pursuant to s 103 Summary Procedure Act 1921 – no mandatory requirements as to form - details required by s 20 Summary Procedure Act 1921 included – warrant valid - no improper conduct on part of police – statements made by accused voluntary – non compliance with s 74D inadvertent - statements admissible pursuant to s 74E(1)(b) Summary Offences Act 1921.
Correctional Services Act 1982 s 28; Criminal Law Consolidation Act 1935 ss 11, 269MB(1); Magistrates Court Rules 1992 Rr 38.01, 38.03; Service and Execution of Process Act 1992 (Cth) ss 83, 83(1), 89(1); Summary Procedure Act 1921 ss 20, 58, 103; Summary Offences Act 1953 ss 74C, 74D, 74E, 74F, 74G, 78(3), referred to.

R v GILLARD
[2007] SASC 182
REASONS FOR RULING ON VOIR DIRE ON RULE 9 APPLICATION MADE ON 13 OCTOBER 2006.
NYLAND J:

Kevin Wayne Gillard (Gillard) was jointly charged with Gerald David Preston on an information dated 15 September 1997 with having committed at Lonsdale on 15 August 1996: (1) the murder of Leslie Shane Knowles; (2) the murder of Timothy Lawrence Richards; and (3) the attempted murder of Robert Kym Traeger.
On 27 October 1998, both Gillard and Preston were found guilty of all three charges. Gillard was sentenced to be imprisoned for life and the non-parole period was fixed at 25 years. An appeal against those convictions was dismissed by the Court of Criminal Appeal on 21 December 2000.
On 12 November 2003, the High Court allowed an appeal by Gillard against the order of dismissal of the Court of Criminal Appeal. Gillard’s convictions were quashed and an order was made for a new trial.
Rule 9 Application:
On 15 September 2004, Gillard was re-arraigned in the Supreme Court and pleaded not guilty to all of the charges against him. On 1 December 2004, an application was filed pursuant to Rule 9 in which Gillard sought the making of the following orders:
1.An order excluding any evidence of conversations between the accused and Police Officer Lacey on 9 December 1996 being admissible in these proceedings.
GROUNDS
1.1     This warrant for his arrest was issued without foundation and, in any event, was invalid on its face.
Particulars
The warrant for the apprehension of the accused was issued pursuant to s58 of the Summary Procedures Act 1921 and accordingly was not a valid warrant for the arrest of a person on an Information charging an indictable offence.
1.2     The apprehension/arrest of the accused was unlawful.
1.3     The accused was not cautioned in relation to his right to remain silent after the Police Officer had formed the belief that he was the Kevin Wayne Gillard named in a warrant issued by the Adelaide Magistrates Court on 6 November 1996.
2.An order that any evidence of conversations between the accused and Queensland Police Officers on 9 and 10 December 1996 be inadmissible in these proceedings.
GROUNDS
2.1     The conduct of the Queensland Police Officers, and in particular Detective Bob Campbell was:-
(a)Such as to render the admission of the evidence unfair to the accused; or alternatively
(b)Unlawful or improper in that the arrest/ apprehension of the accused was unlawful; alternatively the question was illegal because there was no power to interrogate the accused;
2.2     The circumstances in which the accused was kept in custody were oppressive;
2.3     Once the identification of the accused had been established, it was improper for the accused to be interviewed in relation to the substantive allegations;
2.4     The accused’s free will was overborne by the circumstances of his apprehension and retention in custody;
2.5     The accused was questioned without Police Officers arranging for the presence of the solicitor who had appeared on the accused’s behalf in Court on 10/12/96, or any other solicitor to be present at the time of the interview;
2.6     Police Officers continued to question the accused after he had indicated that he did not wish to answer any further questions;
2.7     There was no medical, and in particular psychiatric, assessment or evaluation of the accused’s condition prior to questioning or at any time up to about 9.10pm on 13 December 1996 and the accused was not given medication necessary for his psychiatric condition.
2.8     There was no basis for continuing to keep the accused in custody because of the invalidity of the warrant purportedly used to justify his arrest.
3.An order that any evidence of the conversations between the accused and Police Officers Sherry and Roy on 11, 12, 13 and 17 December 1996 be inadmissible in these proceedings.
GROUNDS
3.1     The conduct of Detectives Sherry and Roy was:-
(a)Such as to render to admission of the evidence unfair to the accused; or alternatively
(b)Unlawful or improper in that:
(i)The arrest/ apprehension of the accused in Queensland was unlawful;
(ii)The accused was questioned in Queensland by Detective Sherry and Roy in circumstances in which they had no authority to do so;
(iii)Police Officers Roy and Sherry failed to comply with the requirements of Section 74C of the Summary Offences Act 1953;
(iv)The circumstances of the accused’s apprehension, retention in custody and extradition to South Australia were oppressive and overbore his free will such that any admissions were not made voluntarily;
(v)There was no basis for the Queensland Magistrate to make an order for the extradition of the accused to South Australia in the absence of a valid warrant for the arrest of accused (s83 Service and Execution Process Act (Cth) 1992);
(vi)Detectives Sherry and Roy had ample opportunity to take accused before the Magistrates Court in Adelaide upon their arrival in South Australia and their failure to do so further denied the accused access to proper legal advice.
3.2     Detectives Sherry and Roy failed to comply with the requirements of the order for extradition made pursuant to the Service and Execution of Process Act (Cth) 1992 in the Brisbane Magistrates Court on 12 December 1996 in that they should have taken steps to bring him before a Court in South Australia as soon as practicable and/ or place him in the custody of City Watch House Adelaide, and FURTHER that there was no authority for the accused to be questioned or questioned further or removed from custody for the purpose of questioning;
3.3     The accused was taken from custody, for the purpose of being interviewed and assisting with investigations by attending various locations on 13 December 1996 without authority and/ or in circumstances which were oppressive to the accused such that they overbore his free will and any admissions were not made voluntarily;
3.4     Police Officers continued to question the accused after he had indicated that he did not wish to answer any further questions.
4.     Not relevant.
5.An order that any evidence of the telephone conversation between Gerald Preston and Kevin Wayne Gillard on 2 October 1996 and Kevin Wayne Gillard and Ronald Preston on 14 September 2996 be inadmissible in these proceedings.
GROUNDS
5.1     Such evidence is irrelevant;
5.2     The probative value is far outweighed by its prejudicial value;
5.3     One or both participants to these conversations were intoxicated.
The voir dire hearing with respect to these matters commenced on 1 February 2005. At that time, Mr Kimber appeared as counsel for the Director of Public Prosecutions and Mr Boucaut appeared as counsel for Gillard. The voir dire thereafter proceeded and evidence was called by the prosecution on 1, 2 and 3 February 2005.
On 4 February 2005, the matter was stood over at the request of Gillard’s counsel due to problems encountered with respect to Gillard’s health. Investigations were then made concerning Gillard’s mental state and on 15 December 2005 to 20 December 2005, I heard evidence and submissions directed to Gillard’s fitness to stand trial.
On 23 February 2006, I recorded a finding that Gillard was mentally unfit to stand trial. That is, I considered that he would not be able to respond rationally to the charge or follow the evidence or the course of the proceedings. In those circumstances, it was necessary for me to proceed pursuant to the provisions of s 269MB(1) of the Criminal Law Consolidation Act 1935 (“CLCA”) to hear evidence and representations put by the prosecution and defence relevant to the question of whether a finding should be recorded that the objective elements of the offence of murder had been established.
Before proceeding with the trial of the objective facts, I considered that it was necessary to complete the hearing of Gillard’s voir dire application. The hearing of the voir dire resumed on 21 August 2006 at which time Mr Kimber again appeared for the DPP and Mr Richards appeared for Gillard.
The evidence at the voir dire was primarily confined to the evidence of the various police officers who were involved in Gillard’s apprehension in Queensland, his subsequent return to Adelaide and the interviews conducted with Gillard at various times. The defence did not call any evidence on the voir dire. Before turning to a discussion of the evidence I indicate that I thought that each of the police officers gave a truthful evidence and did the best he could to give accurate and reliable evidence about these matters, notwithstanding difficulties in recalling events which occurred approximately 10 years ago.
Background – the prosecution case:
At the commencement of the voir dire hearing, Mr Kimber provided the court with a document setting out the broad outline of the prosecution case on the understanding that the document was for use solely on the voir dire. That document contains some reference to the evidence of witnesses from the first trial who are now deceased and it was accepted that there might need to be some argument as to the admissibility of that evidence. In addition, Mr Kimber indicated that not all factual matters set out on the document were necessarily found in the statements filed, as some of the facts referred to in the document were extracted from oral evidence of witnesses given at the first trial or from matters that were agreed at the first trial. Bearing in mind those limitations I have to some extent relied upon that document to provide a background as to the issues which now arise for determination on the voir dire.
The deceased, Knowles, conducted a motor vehicle repair business in a workshop at Lonsdale. The deceased, Richards, was a friend of Knowles and worked for him. Knowles also employed two motor mechanics, one of whom was the victim, Traeger.
The prosecution case against Gillard with respect to the murders of Knowles and Richards and the attempted murder of Traeger is that the crimes were committed as part of a joint enterprise with Gerald Preston. Gillard and Preston were close friends and at the time of the alleged offences had known one another for about ten years. It is the prosecution case that at about midday on Thursday, 15 August 1996, Gillard drove Preston to Knowles’ workshop at Lonsdale in a stolen yellow Ford Econovan. Gillard parked the van in front of an open roller door entrance to Knowles’ workshop. At that time, Traeger and another mechanic Leane were inside the workshop working on vehicles. Knowles and Richards were in a small office inside the entrance to the workshop. In order to get to the office it was necessary to walk through the workshop area.
The prosecution allege that Preston alighted from the van and entered the workshop. He was masked and armed with a 9 mm Luger pistol. Gillard, however, remained outside in the driver’s seat of the van. Preston walked through the workshop into the office and confronted Knowles and Richards. He asked which one of them was “Les”. Both denied being “Les”, following which it is alleged that Preston shot Knowles and Richards in the head from close range. Preston then went to leave the office but to do so he had to walk through the workshop. He noticed Traeger there and fired a shot at him. The bullet grazed the inside of Traeger’s left forearm but did not cause any serious injury. Preston then got back into the passenger side of the van which was driven away by Gillard.
On the prosecution case, a motor cycle group may have had some involvement in these crimes. In statements made to the police when eventually apprehended in December 1996, Gillard said that he feared bikies and there was evidence that Preston had a close connection to a member of the Hells Angels in Melbourne, namely, a man by the name of Terry Tognolini. There was evidence at the first trial that Tognolini paid or promised to pay Preston $10,000 or thereabouts for killing Knowles, although it is not known why Tognolini wanted Knowles killed although there is some suggestion that Knowles may have been involved in illegal drug or other criminal activities.
About 10 or 15 minutes after the shooting, a yellow van, similar to the one used by the offenders, was located behind a shop called “Spotlight” on Beach Road, Christies Beach. It was being burnt. Spotlight was about 900 metres from where Preston then lived and about 2 kms from Gillard’s address. The van at Spotlight had been set alight with the use of petrol. It was later established that the van had been stolen from North Terrace, Adelaide about three days earlier.
A few days after the shootings police received information from a man called Brent Dutson who lived in a block of units at Washington Street, Hilton. He told police that in the period preceding the shootings he had seen the van parked in a carport allocated to a unit occupied by Preston’s brother, Ron. The prosecution propose to call evidence from Ron Preston that the van had been left there by Gillard and was collected from there on 15 August 1996.
As part of the investigation, the police intercepted telephone calls to and from the home and mobile telephones of Preston between the period from 2 September 1996 to 27 November 1996 and Gillard participated in some of those calls. The prosecution proposes to rely on those calls in which Gillard participated to establish that for a considerable period of time after the shootings, Gillard continued to associate with Preston.
The prosecution allege that the ongoing relationship between the two men after the shooting is consistent with them having been involved in a joint enterprise on the day in question. Gillard’s continued association with Preston included looking after Preston’s premises while he was in Melbourne visiting Tognolini in the middle of September 1996.
A police door knock was conducted at the units in Washington Street, Hilton on 16 September 1996 about the stolen van. Preston had been advised of that door knock by his brother. On the prosecution case, given the close relationship between Gillard and Preston until the day before the door knock, and Gillard’s involvement with the van, there was a strong inference that Gillard was told about that door knock. The same day that Preston became aware of the door knock, Preston was looking for Gillard, and Gillard subsequently indicated anxiety about understanding where he stood with Preston.
The police continued their enquiries relating to the van. Eventually, on Sunday, 3 November 1996, police went to the home of Preston’s parents at Moonta. There they discovered two tins each of which contained wet cement. One tin contained a 9 mm Luger pistol and the other contained two pistol magazines which were suitable for the Luger, a quantity of ammunition, an ignition switch and a key which fitted the ignition switch. Later ballistic tests indicated that the Luger pistol had fired the projectiles and cartridge cases that the police had located at Knowles workshop. The ignition switch came from a Ford Econovan or the Mazda equivalent and could be fitted to the same model Econovan as the one alleged to have been used in the shootings.
On the prosecution case, Gillard stole the van from North Terrace on Monday, 12 August 1996 by unplugging the ignition switch which was in the vehicle and plugging in an ignition switch for which he had a key. The “foreign ignition switch” was then removed from the van before it was set alight behind the Spotlight store.
Gerald Preston was subsequently arrested on 3 November 1996 at his home at 27 Salter Crescent, Christies Beach. On 6 November 1996, a warrant was issued out of the Adelaide Magistrates Court for Gillard’s arrest.
The Apprehension of Gillard in Queensland:
In late November or early December 1996, Queensland police became aware that the South Australian Police were looking for Gillard. Richard Lacey, a police officer stationed in Dutton Park police station, which is about 4-6 kms out of the centre of Brisbane, gave evidence on the voir dire as to his involvement in the subsequent apprehension of Gillard in Queensland.
Lacey was on duty on Monday 9 December 1996 with Detective Sergeant Hatton. At about 6 pm, Lacey received a telephone call from Senior Constable Jamie Black who advised that he had received a telephone call from an employee at the St Vincent de Paul hostel to advise that Gillard had booked in there. Lacey and Hatton collected Black and then went to St Vincent de Paul and were directed to the shower block area. Lacey said he was able to recognise Gillard as he looked similar to the posters that were displayed in the police station (VD P8).
The poster indicated that Gillard was wanted for a double murder at Lonsdale South Australia and extradition was considered. The poster included the statement:
Has been known to carry a concealable firearm. APPROACH WITH CAUTION POSSIBLY ARMED AND DANGEROUS.
The evidence of Richard Lacey:
Lacey’s recollection was that when he saw Gillard he was wearing only a towel. Lacey approached him and said (Tr 36-37):
A.Okay. I approached him.
I said ‘Kevin, is it?’
I said ‘I’m Richard Lacey and this is Steve Hatton. We’re from the Dutton Park CIB’.
He said ‘Yes’.
I said ‘We want to speak to you about an incident which occurred in South Australia’.
He said ‘So I suppose I’m coming with you’.
I said ‘That’s what we would like. I would rather talk about this at the office’.
He said ‘No worries’.
Hatton said ‘Do you want to know what this is about?’
He made no reply. We then returned to the office of the Dutton Park CIB.
Lacey said that before they left St Vincent de Paul they collected a green army style duffle bag belonging to Gillard. Lacey said that Gillard was not handcuffed whilst in his presence and he did not consider that Gillard was under arrest. Lacey said that they arrived back at Dutton Park at about 6.40 pm. They took Gillard to the CIB office where Gillard was given a seat in the day room. Lacey said that he had a further conversation with Gillard in that area in the following terms (Tr 40-41):
A.Yes. I said ‘Kevin, are you from South Australia?’
He said ‘Yeah’.
Detective Hatton then said ‘When did you get to Queensland?’
He said ‘A couple of months ago’.
Hatton then said ‘Why did you come here?’
He said ‘For a holiday and to see my brother’.
I said ‘We’ve received information that you may be involved in a murder in South Australia. Do you know anything about this?’
He said ‘No’.
I said ‘There is some other detectives who want to talk to you about this. They have all the details. Are you prepared to wait a little while with us until they get here?’
He said ‘Yeah’.
Q. What happened then.
A.At this stage, the defendant – sorry, the accused – placed his head in his hands and crouched over (INDICATES).
I said to him ‘What’s up?’
He said ‘This is going to get me killed’.
I said ‘What do you mean?’
He said ‘They’ll fucking kill me’.
Hatton said ‘Who is “they”?’
He said ‘The bikies, mate’.
Hatton said ‘Which bikies?’
He said ‘I can’t tell you’.
‘You will have to wait until the other detectives get here’.
He said ‘Yeah’

Lacey said that he subsequently contacted Detective Campbell, who had been looking after the matter in Queensland, as well as Mick Sherry of the South Australian police.
Lacey said he also contacted Sergeant Plant of the Queensland police, as officer in charge, to obtain permission to call Detective Campbell out on overtime to attend to the matter. Lacey said that whilst they waited for Campbell, Gillard continued to be seated in the day room. He was given a local paper to read and supplied with a meal from McDonalds. Lacey said that during that time there was no further conversation about the Lonsdale shootings. The only conversation related to enquiries about having a drink or going to the toilet and the like. During this period he described Gillard as (Tr 45):
… like a quiet person, he was resigned, seemed a little bit weary, he wasn’t a very talkative person and that’s possibly by nature. I didn’t draw any inference from that personally, but very quiet, resigned type of person.
Lacey said that Campbell arrived at about 9.40 pm and his partner, Detective Benson arrived a short time after that. Lacey updated Campbell, and then introduced Campbell to Gillard, from which point, Gillard became Campbell’s responsibility. Lacey remained in the CIB area until about 10.20 pm when he made notes of the two conversations he had with Gillard. He said that to ensure accuracy, the notes were completed with Detectives Hatton and Black, who agreed that they were accurate.
In cross-examination, Lacey said that he was not actively involved in the search for Gillard although he was aware that he was the subject of an enquiry from South Australia as the office in which he worked was fairly small. He was aware that Gillard was wanted in regard to a double murder and it was only later that he found out a third person had been shot. He did not know the details of the shootings. He was aware that Gillard was wanted on a warrant in relation to a double murder. He did not know anything about his mental condition but was aware of the information on the poster. He had no knowledge of his illnesses. When Gillard had his head in his hands, he just “appeared resigned and quiet, like someone with the weight of the world on his shoulders”.
Lacey said he was not armed when he went to St Vincent de Paul and they were not going there to arrest Gillard. They simply went to see if he would accompany them back to the police station. Lacey denied that Gillard was given the impression that he had no choice but to go with them. Lacey said that three police officers had gone instead of two as there were three of them working that night and all three would have gone to any job no matter what it was. Lacey conceded that his notes were headed “In relation to the arrest of Gillard” but said that was a heading simply for him to use later on when looking through his notebook. He said the fundamental reason for going to St Vincent de Paul was to apprehend Gillard for the double murder in South Australia and not to arrest him the warrant per se. He was adamant that Gillard was not arrested at St Vincent de Paul. Lacey said they took Gillard’s bag simply to keep his property with him.
Evidence of Stephen Hatton:
Stephen Hattton confirmed that he accompanied Lacey and Black to St Vincent de Paul and spoke to Gillard in the shower block area.
Hatton also said that Gillard was not arrested at any time that night, nor was he handcuffed. He said that back at the police station Gillard was given a seat in the general area of the CIB office. He said that at one stage in the CIB room Gillard “placed his head into his cupped hands … He was very quiet and appeared to be upset” (Tr 82).
Hatton did not believe he was armed and could not recall any warnings about approaching Gillard, although he was aware that the enquiry involved the shooting murders of two people. He did not recall being aware of the information in the poster about Gillard being known to carry a concealable firearm. He did not think the word “Lonsdale” or “murders” were mentioned to Gillard at the hostel, but they indicated to Gillard that they wished to speak to him about “an incident that had occurred in South Australia”. Hatton said that he actually asked him if he wanted to know what it was about and Gillard did not reply (although in the witness statements this particular comment is mistakenly attributed to Lacey).
Hatton said that Gillard was not handcuffed when he was in the CIB office, as at that time they did not have the power to handcuff someone unless he had been arrested.
Hatton said that Gillard’s words “So I suppose I’m coming with you” conveyed to him “a person that knew what we were there about and he was coming back with us of his own free will” (Tr 95).
Hatton’s impression of Gillard’s demeanour at the police station was that of a person about to cry. It was put to Hatton that Gillard had not mentioned bikies but Hatton said he definitely had and the first time he heard about it being a bikie related matter was when Gillard mentioned it.
Evidence of Jamie Black:
Jamie Black said that on 9 December 1996, he received a phone call from one of the supervisor/caretakers at St Vincent de Paul, that a person by the name of Gillard had booked in to stay at the hostel that day. He then contacted Lacey and went with him and Hatton to the hostel and was present when Lacey spoke to Gillard in the shower block area.
Black said he took Gillard’s bag back to the police car. Black was seated in the back seat behind the driver on the trip back to the police station. He said that at the station, he observed Gillard’s demeanour which he described as “Anxious at different times, probably to a level of depression or a depressed state” (Tr 109).
Black obtained a Big Mac meal for Gillard from a nearby McDonald’s restaurant, which consisted of burger, fries and a drink. He recalled that Gillard ate the burger but was not aware if he ate all the fries.
Black left the office at about 10.45 pm but Campbell and Benson arrived before he left. Black also was not armed when they went to the hostel. He could not recall what Gillard had on when they saw him but did not think that he was naked. He said that Gillard was not handcuffed while he was sitting in the car with him.
When asked in cross-examination about Gillard’s demeanour, Black said (Tr 117):
My definition of a person that’s anxious is someone that’s going from a stable-presented demeanour to becoming a little bit irrational as in facially, mannerisms facially and physically changing.
He said Gillard was:
Flushed with the depressive part, I suppose that’s part of the flushing as well as how I am describing depression. Also body language, head in the hand, just slumping in a seat more.
Black thought Gillard degenerated over time but by the time Campbell arrived at the station his demeanour had picked up a little.
Evidence of Robert Campbell and Grant Benson:
Robert Campbell was also stationed at Dutton Park police station. In November 1996 he became aware that the South Australian police were looking for Gillard with respect to two murders committed at Lonsdale. He was appointed as the responsible officer for the investigation in Queensland.
Included in the material he received was a copy of the warrant (VDP6). Campbell had also seen the wanted poster. Information had been received that Gillard had been accessing a bank account at a certain location and that he may have been someone itinerant and may have frequented a number of men’s hostels.
In mid to late November 1996, Campbell spoke to Detective Senior Constable Michael Sherry of the South Australian police. Campbell made some enquiries and left his contact details at a number of hostels in the area which included St Vincent de Paul.
On 9 December 1996, Campbell was due to commence work at 10 pm to be partnered with Benson. At about 7 pm he received a call from Lacey to the effect that Gillard had been located at St Vincent de Paul. To avoid incurring penalty rates Campbell did not arrive at the police station to start his shift until about 9.30 pm. He saw Gillard seated in a chair in the middle of the CIB office. Lacey told Campbell that he had attempted to contact Sherry but was having difficulty getting in touch with him. Campbell did not recall discussing anything about Gillard’s arrest with Lacey but made the assumption that Gillard had been arrested by virtue of the warrant. After speaking to Lacey, Campbell contacted Sherry and told him that Gillard had been located and was at the station and that it was his intention to interview him at the station. He asked Sherry whether that was acceptable, and Sherry said “Fine”.
Campbell said he did not have any great detail about the investigation at that stage. He said Benson arrived at about 10 pm. Campbell recalled that Black and Hatton were there at the same time. He had a brief conversation with Gillard (Tr 138):
I said ‘My name’s Detective Bob Campbell. I’m in charge of this investigation here in Queensland on behalf of the South Australia detectives. Do you understand that?’
The accused said ‘Yeah’.
I said ‘Kevin, I would like to interview you about some things that happened in South Australia in relation to a double murder’.
He said ‘Yeah, I know’.
I said ‘I will get some tapes together to interview you. All interviews are done on tape in Queensland’.
The accused said ‘Okay’.
Campbell said that at the end of the conversation, Gillard was taken to an interview room which was situated on the ground floor of the Dutton Park police complex. Campbell said before the interview commenced he had to get some tapes from the duty sergeant’s office but Benson stayed with Gillard. Gillard then returned to the interview room and conducted an interview with Gillard which was recorded on video (VDP12). The transcript of that interview is contained in VDP13. The interview commenced at 10.25 pm and concluded at 10.36 pm. Towards the end of the interview Campbell referred to Gillard being located at “St Vinnies” and then said:
Q.Okay, and you’ve been here with the police since then.
A.Yeah, three or four hours I’ve been here.
Q.Okay. You been quite, you’re quite happy to stay here while we’re conducting our enquiries.
A.No choice.
Q.Okay. Have you taken part in this interview of your own free will.
A.I have.
Q.Is everything you told me here the truth.
A.Yes.
Q.Is there anything else you want to say.
A.No.
Q.Was any threat, promise or inducement, held out to you to take part in this interview.
A.No.
Campbell said, however, that after the interview, Gillard appeared agitated and nervous (Tr 141):
He was shaking his head repeatedly …and had a nervous or what appeared to be a nervous habit of pulling at his beard repeatedly, quite forcefully.
He said that he had a conversation with him about that, and about which he made notes and he said (Tr 142):
I said to the accused ‘You seem to be a bit anxious. Is there something else you’d like to tell us?’
The accused said ‘I can’t, mate’.
I said ‘Why?’.
The accused said ‘You know why, because of who’s involved’.
I said ‘Who’s that?’.
He said ‘You know who’.
I said ‘Not unless you tell me’.
He said ‘Yeah’.
I said ‘Well, we’ve just given you an opportunity to tell us on the tape what you know. If you like, you can tell me whatever you know now’.
He said ‘Look, I’m not saying any more. I don’t know anything’.
Campbell said that before he left the station there was some paperwork to be completed which included a bench and charge sheet required for court. Campbell and Benson left the police station with Gillard at about 11 pm and drove to the Brisbane watch house. That took about five to ten minutes. Gillard was then presented to the watch house sergeant for the charging process to take place. Campbell did not recall Gillard making any complaint during that process about police conduct towards him.
Gillard was taken into custody at about 11.55 pm. VDP14 sets out the enquiries made by the charge sergeant about Gillard’s health which includes a mention of his having had treatment. Gillard said it was “in Adelaide six months ago for mental problems. I’m all right now, I think”. A question which related to medication indicated that he only required antibiotics for a dog bite and an observation was made in the column relating to injuries that there were “stitches in right upper arm from dog bite two days ago”. There is a note about medication which refers to Metrogyl tablets three times a day and Cephalexin, one tablet every six hours, and listed in the prisoner’s property is one packet of Cephalexin and one bottle of Metrondazole.
At the end of the charging process, Gillard was required to change his clothing. He was given a smock and placed in a monitored cell on suicide watch. Campbell described this as standard procedure given the background information the police had about Gillard. Campbell remained at the watch house for about an hour to an hour and a half. By the time he left, which was early on the morning of 10 December 1996, he did not have any concerns about Gillard’s mental state. Before Campbell completed his shift he completed a QP9 which is a brief of evidence which accompanies the defendant or an accused person on their first appearance and subsequent appearances in court (VDP11).
Gillard appeared in the Brisbane Magistrates Court at about 9.30 am on 10 December 1996. He was represented by the duty solicitor and was remanded to appear in court again on Thursday 12 December 1996.
On 10 December 1996, Campbell commenced his shift at 2 pm. He enquired about Gillard’s court appearance that morning and then at about 5 pm spoke to Gillard in the interview room on the first floor of the watch house complex. Campbell said that in December 1996, that room did not contain any recording devices, but he made notes of his conversation with Gillard. The conversation was as follows (Tr 160):
A.‘How are you going?’
The accused said ‘Okay. Could do with a smoke’.
I said ‘I’ll see what I can do. I have spoken to detectives from South Australia. They will be up tomorrow morning and be making an application for your extradition the next day’.
The accused said ‘Yeah. What will happen then?’.
I said ‘You’ll probably be remanded into custody to go to South Australia’.
Q.    Did you notice something about Mr Gillard at that point.
A.    Yes, I did.
Q.    What did you notice.
A.    I noticed that he became agitated, nervous, at that time.
Q.    Was there anything specific that he did.
A.Yes. He began pulling at his beard in the same manner in which I had previously seen him.
Q.    Did you then speak to him further as a result of what you saw.
A.    I did.
Q.    Can you tell us hat was said.
A.    I said ‘Do you have some worries about that?’.
The accused said ‘Some’.
I said ‘Why is that?’.
The accused said ‘Because of who’s involved’.
I said ‘You said that last night. Is there something you want to tell me?’.
The accused said ‘I’ve had a lot of time to think about this. I think I’m all right by myself’.
I said ‘Do you need protection?’
The accused said ‘I’ll be all right’.
I said ‘Are you worried about someone in particular that’s tied up with this murder?’.
The accused said ‘Yeah’.
I said ‘Who would that be, someone from a bikie group?’
The accused said ‘They’ll get me wherever I am. There’s nothing you can do’.
I said ‘Why would they want to do that?’.
He said ‘To shut me up. I’m not saying any more’.
He said that Gillard was then returned to the cell on the ground floor. About five to ten minutes later Campbell spoke to Gillard at the door of the cell and had a further conversation (Tr 161):
I said ‘Kev, I’ve made some notes of our conversation that we had late night and today. I have to warn you that you don’t have to say anything as you are in custody. Are you prepared to read these notes and sign them as being a true and accurate record of our conversations?’.
The accused said ‘No, I’m not. I’m going to look after myself’.
On Wednesday, 11 December 1996, Sherry and Detective Sergeant David Roy arrived from Adelaide. At about 1 pm Campbell went with them to the watch house. Gillard was spoken to by Sherry and Roy in the interview room on the first level.
On Thursday, 12 December 1996, shortly after 9 am, Campbell went to the Magistrates Court with Sherry and Roy, for the extradition hearing. At that time Gillard was represented by a duty solicitor. An order was made for Gillard’s extradition to South Australia and for him to appear in the Adelaide Magistrates Court the following Monday morning. Gillard was then placed in the custody of Sherry.
After the court hearing, Campbell, Sherry and Roy escorted Gillard to the first floor interview room in the watch house. Campbell said Gillard wished to have a cigarette so he left Sherry and Roy in the interview room with Gillard and went to locate some cigarettes for Gillard. Having obtained some cigarettes, Campbell returned to the first floor, to an area near the door of the interview room. Campbell said he did not enter the room but indicated from his location to show the cigarettes. He said the door was open and he indicated to Gillard to come down with him to an area down the hallway where it was possible to smoke. He said he was in that area with Gillard for about five to ten minutes. Gillard was “apparently quite agitated. He was pacing, drawing very hard on the cigarettes that I provided to him. I noticed that he was agitated” (Tr 174). Campbell said he had no conversation with Gillard about anything to do with the Lonsdale shootings.
After Gillard finished his cigarettes Campbell returned with him to the interview room. Shortly after that, Sherry and Roy came out of the room and indicated to Campbell to monitor the accused. Campbell remained immediately inside the door while Sherry and Roy had a conversation. Sherry and Roy then returned and there was a brief conversation following which Sherry re-commenced his tape to record his interview. Campbell said at the end of the interview he thought Gillard was returned to his cell on the ground floor. On Friday, 13 December 1996 Gillard was removed from the watch house for the return to South Australia.
In cross-examination Campbell denied that Gillard had smoked the cigarettes inside the interview room. He described Gillard as not wanting to connect with anything around him. He said that Gillard’s beard was not as long as it was at present; “… it was probably about a third of that length. His actions were to grab the whiskers and take hold quite strongly and give a very hard pull on them as if he was trying to pull them out of his face” (Tr 185).
Campbell said he had been given information that Gillard was an alcoholic but he did not recall smelling alcohol on him or forming the opinion that he was under the influence of liquor, nor did he see him drinking.
Grant Benson confirmed in evidence that he was present during Campbell’s interviews with Gillard and agreed that the notes made by Campbell were accurate. As far as Gillard’s demeanour was concerned, Benson said he noticed Gillard “plucking his beard”, that is, “pulling the hairs out of his beard and dispensing with them on the floor” (Tr 222) and then the next day when they went to the watch house “he had the beard plucking going again” and he seemed a little bit agitated.
Evidence of Michael Sherry:
In 1996, Michael Sherry was attached to the South Coast CIB operating out of the Christies Beach police station. On 15 August 1996 he attended the crime scene of the Lonsdale shootings. Detective Roy was his partner. Sherry was then seconded to the major crime task force to work on the investigation of the shootings.
On 3 November 1996, Sherry was present when Preston was arrested. Part of Sherry’s responsibilities was the location of Gillard. On 5 November 1996, Sherry submitted a police apprehension report and information and a brief cover to the Adelaide prosecution section to obtain a warrant for Gillard’s arrest on two counts of murder. He did not attend in court when the application was made for the warrant but subsequently received a copy of it. After the issue of the warrant, enquiries continued to locate Gillard who was believed to be in Queensland as a result of the use of his ATM card. Sherry contacted Queensland police and was eventually referred to Campbell.

On Monday 9 December 1996, Sherry and Roy were attending a training camp or seminar at Echunga. Late in the afternoon or early evening Sherry received a phone call from Black in Queensland who said that Gillard had been located at the St Vincent de Paul hostel. Sherry then spoke to Roy and they started to make arrangements to effect the extradition of Gillard from Queensland. Sherry said he spoke to Campbell on the Monday night and told him that they would be there on Wednesday. Sherry and Roy decided they would return to Adelaide on the Friday as they had been advised by the Queensland police that the extradition hearing was likely to be on the Thursday.
In cross-examination, defence counsel was critical of the delay in making the arrangements to go to Queensland and suggested to Sherry that the South Australian police could have made all the necessary arrangements for travel to Queensland within 24 hours, allowing them to arrive in Queensland on the Tuesday, rather than the Wednesday. Sherry maintained, however, that all arrangements were made as soon as possible after the information was received as to Gillard’s whereabouts.
Sherry also said that, in addition to there being a number of documents which needed to be collated prior to travel, Roy had to make some child care arrangements. Sherry said that even assuming everything ran smoothly and allowing for travel and the change in time zones, he did not believe that it would have been possible to arrive in Queensland any earlier than late on the Tuesday evening. Further, at that time there were only about three or so daily flights from Adelaide to Queensland and not all of them were direct flights. Sherry disagreed that the training camp that he and Roy were attending when they were informed of Gillard’s whereabouts had any impact on their departure from Adelaide or arrival in Queensland other than possibly the travel time from Echunga back to the CBD.
Sherry was also asked why arrangements had not been made to return to Adelaide on the Wednesday afternoon. Sherry said that when he advised the Queensland detectives that they would be arriving on the Wednesday he was informed that the extradition hearing would be scheduled to take place on the Thursday. Sherry recalled that the Queensland detectives made that arrangement without consultation or input from either him or Roy.
Sherry said the decision to book departure flights back to Adelaide on the Friday was based on that fact, as well as allowing time for any other inquiries that might have had to be made in Queensland. Sherry said that allowing time for further investigation and the completion of other outstanding enquiries was a practice he had followed in the past, and one that other officers also frequently followed. Sherry did not see any inconsistency in factoring in time for possible delays and/or further investigation with the requirement that an extradited person appear before a magistrate at the earliest opportunity.
The interview with Gillard on 11 December 1996:
On Wednesday 11 December 1996, Sherry and Roy went to Brisbane on an Ansett flight. They arrived at about midday and went straight to the Brisbane city watch house. Sherry said at that time there was no intention to interview Gillard in Brisbane as they preferred to have Gillard back in the South Australian jurisdiction. They went to the watch house primarily to identify Gillard. Sherry assumed that they would be led to a cell where they were simply to look through either a view window or cell bars. They did not expect to speak to Gillard. He said, however, that Gillard was led down a corridor towards the area where they were standing and was brought to them by Campbell. Sherry then had a conversation with Gillard which was in the following terms (Tr 238):
I said ‘My name is Senior Constable Sherry. This is Detective Roy. We are from the Major Crime Task Force in Adelaide. You have been arrested on a warrant for two counts of murder and we’ll be applying for your extradition back to Adelaide. You are not obliged to say anything. Anything you do say may be used as evidence. Do you understand?’
He said ‘Yes’.
I said ‘There will be an extradition hearing tomorrow. If your extradition hearing is granted we’ll take you back to Adelaide on Friday, do you understand?’
He said ‘Yes’.
I said ‘I will speak with you after court tomorrow. Do you want to call your parents or anyone else to let them know you are here?’
He said ‘No’.
Sherry said that he did not have his portable tape recorder with him at that time as it was still in his car in luggage as it had not been his intention to speak to Gillard. Sherry later inspected Gillard’s property but there was nothing of interest in it.
Extradition order:
On Thursday 12 December 1996, Sherry attended the Brisbane Magistrates Court with Roy and Campbell. Sherry advised the prosecutor that if extradition was granted, Gillard was to be remanded into his custody to appear in the Adelaide Magistrates Court on Monday, 16 December 1996 at 10 am. Sherry thought that there would be insufficient time to get Gillard before a court on the Friday due to flight times back from Brisbane and particularly as they had to go via Melbourne. Gillard was represented in court by a duty lawyer. There was no opposition to the application for extradition and the order was made (VDP24) and VDP25).
Sherry said that the Monday was selected as the return date for Gillard to appear in the Adelaide Magistrates Court as being the most realistic day given the circumstances as at the time that the return flights to Adelaide were booked, they had no idea when the extradition hearing was to take place, nor whether it was to be contested or even possibly adjourned. Sherry recalled that the only available flight to Adelaide on the Friday went via Melbourne, with a 20-minute stopover before proceeding on to Adelaide, with a scheduled arrival time of about 3.30pm. He said there were also other considerations such as transport from the airport to the CBD and the need to allow for the charging procedure.
Interview with Gillard on 12 December 1996
Sherry said that after the extradition he and Roy left the courthouse and went back to the city watch house with Campbell. That in effect was in the same building as that in which he intended to speak to Gillard to advise him of the extradition, to give him his rights and to advise him about the process for the return to Adelaide. Sherry said they then saw Gillard in a small room in the watch house. When he got back he saw Gillard in the corridor that led to the interview room. Sherry had a conversation with Gillard which was recorded on the portable tape player he had brought from Adelaide (VDP13). Sherry said initially there was only himself and Roy present as Campbell was getting some cigarettes for Gillard.
That interview commenced at 9.45 am and primarily consisted of giving Gillard his rights. The tape was then turned off. After the tape was turned off, there was a further conversation between Sherry and Gillard which was not recorded on tape. Sherry said he asked Gillard about a dog bite that he had been told about either by Campbell or by looking at the injury, or as was mentioned in some form of document. Sherry said he knew that Gillard answered but he could not recall what his explanation was. He said that he also asked Gillard if he could explain about, or did he have any knowledge of a person by the name of Kevin Gillard travelling to Tasmania at around the same time. This was because in the period leading up to locating Gillard, police became aware that a person using a pension card of some description had bought a ticket to travel to Tasmania in the name of Kevin Gillard. Gillard said something about having a pension card from some friend for a concession for a trip to Tasmania.
Sherry said that Gillard then asked a question along the lines of where he stood, or what was his position, and he advised Gillard that any conversation pertaining to this matter had to be recorded on the audio tape. Sherry replied more than once that the conversation had to be recorded on tape but Gillard indicated several times he did not want to talk on the tape.
Sherry said that he then became aware that Campbell had returned with the cigarettes. Gillard then left the room with Campbell and went down the corridor for a smoke. In his absence Sherry and Roy had a further discussion and decided they must inform Gillard that any further conversation must be on tape and that Gillard would have to decide what he wanted to do. Sherry thought Gillard was away about 10 minutes. When Gillard returned with Campbell, Sherry asked him his intentions and said that if there was to be any further conversation pertaining to the matter it must be recorded on tape.
Sherry said that Gillard then initiated another conversation asking who else had been spoken to. Sherry said that he was concerned that this form of conversation was going to continue, going backwards and forwards, so he asked Roy to step outside with him so they could formalise some plan. Sherry and Roy went outside and left Campbell in the interview room with Gillard. Sherry and Roy decided to advise Gillard of the arrest of Preston and the location of the firearm. They then returned to the room and Sherry said he advised Gillard of the fact that Gerry Preston had been arrested and that the gun had been located and then further reinforced that any further conversation had to be on the audio tape. Sherry said that Gillard replied that he actually thought it was a robbery and not a murder and that he would talk on the tape. Sherry said he then activated the audio tape and continued on the same tape as the conversation which preceded the non recorded one. This interview commenced at 10.05 am. Sherry did not read back to Gillard that portion of the conversation which had not been recorded. Gillard was again given his rights which included the right to have a solicitor or anybody else present, but Gillard said:
I, I mean it’s only a mouthpiece, isn’t it. I imagine I’m going back to Adelaide anyway aren’t I?
Sherry then asked Gillard what had made him decide to come forward and answer questions and Gillard said “I’m in fear of me life … from Gerald Preston”. Sherry then questioned Gillard about the events of 15 August 2006. Gillard said he had stolen a Ford Econovan at the request of Preston. When asked why, Gillard said that he thought he was “going nicking, stealing”. He later said he thought it was a robbery. He said he was sorry he was involved and that someone had died. He said he would not have been involved if he had known what was going to happen and described himself as “a thief … not a killer”.
The interview concluded at 10.20 am. Gillard was then led from the interview room and Sherry and Roy left the watch house. Sherry said he made notes of the off-the-tape conversation in his running sheets, although the record in the running sheet was not a complete record of everything that had taken place and everything that had been said. Sherry said that at 12 December 1996 he was aware of the provisions of s 74D of the Summary Offences Act 1953 although it was his recollection that it had only just come into effect. He said that with his knowledge as it now was, he realised that he had failed to comply with s 74D by not reading back the unrecorded conversation to Gillard. He said his understanding had since changed as a result of training, giving evidence in court, case law and the like.
He said Gillard remained in custody over night. Between 8.30 am and 9 am on Friday 13 December, Sherry went to the watch house with Roy and Campbell and took custody of Gillard. They left Brisbane at about 9.30 am. Sherry said that during the flight home he did not have any conversation with Gillard about the Lonsdale shootings or anything touching the investigation although he had some general conversation about the arrangements on the aeroplane and the avoidance of any embarrassment by Gillard being in handcuffs during the period of changing planes.
In Adelaide, they were met by members of the Major Crime Task Force and Gillard was taken straight to the city watch house. Sherry understood that Detective Terry Harding, who was with the Major Crime Task Force, arranged for an authority from a magistrate for the removal of Gillard from the watch house to the interview room of the Major Crime Task Force. Gillard was removed to that room and a video interview was then conducted. That interview commenced at 4.41 pm and continued until 5.35 pm (VDP13).
Gillard told the police about the stealing of the Ford Econovan and travelling with Preston to the factory. He said they stopped around the corner and he made a phone call to find out where Les Knowles was. They then parked outside the factory and stopped in the driveway. Gillard said that he thought “it was going to be a robbery … cos that’s all I do”. He said that he turned the radio on and Preston jumped out of the car. He left the engine running and listened to the radio. He did not see Preston with anything covering his face. When asked what he thought was going to happen at the time Preston walked into the workshop, Gillard said (p 15 of interview):
A.Someone was going to be robbed.
Q.Robbed of what.
A.Money.
Q.What gave you that idea.
A.That’s all I do. I steal money.
Q.How was he going to be robbed, in your mind.
A.Robbed, confronted, or some money was to be picked up or something like that, or drugs or whatever.
Q.What made you think this.
A.I thought that’s what I was there for. I mean why else would I be there for?
He said that Preston subsequently jumped back in the car and told him to drive. Gillard eventually parked the van around the back of some shops and later burnt and left it. He said that he did not see Preston with a gun at any time. He said (p 23 of interview):
A.    Well I’ve stolen things with Gerry before and I stole a van so I presumed that that’s stealing. If I would have known there would have been, was going to be a shooting, I wouldn’t have been involved.
Q.    Well taking the view that you believed there was going to be a robbery –
A.    Yes.
Q.    And that –
A.    That’s what I’ve presumed robbery, or something I was going to be given, or I don’t know, and that’s what, what I presumed, a robber.
Q.    Well how do you think a robbery was going to occur whilst at the same time ensuring, ensuring that the person was going to be there.
A.    ‘Cos I’d made a phone call to ask him if he was there.
Q.    How do you think this person was going to be robbed.
A.    I presume – I don’t know. I mean I have no idea. I, and I mean I don’t mix – I do, I’ve done crime but I don’t mix crime and guns, you know.
Q.    Could you repeat that.
A.    I do crime but don’t have nothing to do with crime and guns and I don’t, I don’t do armed robberies. I don’t shoot people. I do my best not to be involved with things … like that.
Q.    How do you think the robbery was going to occur.
A.    I had no idea. It could have been done by knife, I don’t know. Something could have been arranged, something’s going to be picked up.
Q.    And you’re telling us that you didn’t see Gerry Preston having any sort of weapon in his possession.
A.    No, I never saw no gun at any time or any weapon.
Q.    You’re quite sure of that.
A.    Quite sure.
It was put to Gillard that witnesses from the other side of the car park area had said that they clearly heard three loud bangs at the time that shots from the pistol were fired but Gillard was adamant that he did not hear any shots as he had the windows up and the radio on.
Evidence of David Roy:
David Roy confirmed that he also had been seconded to the Major Crime Task Force with respect to the investigation of the Lonsdale shootings and in the months following the shootings had worked closely with Sherry with the responsibility for the location of Gillard. He confirmed that he was at the training camp with Sherry when news of Gillard’s whereabouts was received late Monday. Roy said that when travel plans to Queensland were being made, he had to factor in the need to make arrangements with respect to his children. His wife was working night shift and it would have been impossible for him to have made appropriate alternative care arrangements for the children in time for him to depart for Queensland prior to the Wednesday. Roy said, however, that even without the need to make alternative child care arrangements, he did not think it would have been possible for him to go to Queensland on the Tuesday.
Roy’s evidence substantially supported that given by Sherry in relation to the events in Queenland. Roy admitted that in hindsight, the way he and Sherry handled the situation when Gillard continued to talk to them without the tape running, was in breach of the requirements of s74D of Summary Offences Act 1953. He said that the whole interpretation of that legislation had evolved since then. He said that was new legislation in 1996 and given the same set of circumstances today their response and practice would be different to what they had done then.
He recalled that on Friday 13 December 1996 he rang Major Crime Task Force in Adelaide and spoke to Terry Harding, to confirm that they were leaving Queensland that morning and that someone would need to meet them at the airport in Adelaide, and also to confirm that once Gillard had been charged at the watch house, an order would be required to remove him from the watch house to interview him in relation to the matter.
Roy recalled that they arrived in Adelaide between 3.00 and 3.30pm that day. They were met by other officers at the airport and then travelled to the city watch house with Gillard. Roy was present when Gillard was presented to the watch house sergeant. He recalled that the charging process took about ten to fifteen minutes. He said that it was standard procedure for someone who was presented at the watch house to be asked general questions about their health, and for a questionnaire to be filled in. Roy in fact filled out the questionnaire in relation to Gillard. In answer to the question “Does the prisoner appear despondent?” it appeared that the box “No” was ticked but the box “Yes” may have been ticked and then crossed out. In cross examination Roy was asked whether he could recall any indicia of Gillard being despondent or whether the answer given to that question was simply an error, and Roy answered:
I think it depends on some people’s interpretation of ‘despondent’. I think that is where I had some issues. I can still recall he was despondent in the sense that he was quiet, and probably consistent with the fears of retribution and the situation he was in. That is how I defined ‘despondent’ in the sense that rather not be in the position he was in but I had some considerations as to whether that was despondency or just other feelings or emotions. That is why I corrected myself and put ‘No’.
In answer to the question “Does the prisoner appear irrational or disturbed?”, the “No” box was ticked. For the question whether or not the prisoner had given any indication that she or he may be a person at risk, the “Yes” box was ticked and the commend made “Fears retribution (co-offenders)”. Gillard had ticked “Yes” in answer to the question about taking any medication and gave a dog bite as the reason. For the question relating to psychological or psychiatric problems, the “No” box was ticked.
Roy said that police were aware that Gillard had a psychiatric history, including an attendance at Glenside, prior to them travelling to Queensland. Roy recalled that they knew once they had seen Gillard and checked his property in Queensland that he was not taking any medication at that time. He said that during the course of his dealings with Gillard, both in Queensland and upon the initial return to Adelaide, he had never had any concerns as to Gillard’s mental health.
The evidence of Terry Harding:

In December 1996, Harding was also a member of the Major Crime Task Force and was assisting in the investigation of the Lonsdale murders. He was on duty on Friday 13 December 1996, and was aware that Roy and Sherry were in Queensland investigating the alleged murders. He recalled phone contact with one of them (but could not recall which), during which the topic of an interview with Gillard was raised. Harding recalled that his understanding at the time was that the officers were speaking to Gillard in Queensland and that they were returning to Adelaide that afternoon, at which point they were expecting to do further interviews, and perhaps attend some scenes outside the police station.
Interview on 13 December 1996:
After this phone call Harding spoke with Senior Sergeant Feltus, the officer in charge of the investigation, in relation to obtaining a magistrate’s order to remove Gillard from custody for the purpose of attending some scenes outside the police station. Harding then completed the application to have Gillard removed from custody, and attempted to arrange a time to see a magistrate. At about 1.30 pm that afternoon he saw Magistrate Swain at the Adelaide Magistrates Court (then located on Angas Street), at about 1.30 pm. During that meeting Harding indicated to Magistrate Swain that the intention was to remove Gillard from custody at 3.30 pm that afternoon. At the conclusion of the meeting, the magistrate granted the application, allowing Gillard to be removed from custody for a period of four hours, and endorsed the documentation prepared by Harding.
Harding then returned to the Major Crime Task Force. Later that day he provided either Roy or Sherry with a copy of the documentation relating to Gillard’s removal from custody. He then arranged video camera equipment to take along to the scenes. He recalled that whilst he was making these arrangements Roy and Sherry were talking with Gillard. Later that day, Harding, Sherry, Roy, and Jeffery left the police station with Gillard to visit a number of locations around Adelaide. It was Harding’s understanding that this was to be a continuation of the interview that Roy and Sherry had begun with Gillard that afternoon.
Before they had completed the visits to the various locations of interest, the officers realised that they were going to run beyond the four hours authorised for Gillard to be in their custody. Magistrate Deegan was contacted and he gave verbal approval over the telephone for an extension of the order.
The authority purportedly given by each of the magistrates pursuant to s 78(3) of the Summary Offences Act 1953 was, however, a nullity as that section is concerned with persons who are apprehended without a warrant. In this case, Gillard was in the custody of Sherry pursuant to the extradition order made in the Magistrates Court in Brisbane. That did not expire until 10 am on 16 December 1996 when Gillard was required to appear in the Adelaide Magistrates Court. Before that date and time, the watch house sergeant was required to receive and surrender Gillard as required by Sherry, in accordance with the provisions of s 89(1) of the Service and Execution of Process Act 1992 (Cth). The removal of Gillard from the watch house for the purpose of those later interviews was therefore lawful. Nevertheless, the conduct of the police in obtaining those authorities is a relevant matter to take into account when considering the argument as to the exclusion of the earlier interviews and the breach of s 74D of the Summary Offences Act 1953.
Gillard’s appearance in court on 16 December 1996:
On Monday 16 December 1996, Gillard appeared in the Adelaide Magistrates Court pursuant to the extradition order which had been made in the Brisbane Magistrates Court on Thursday, 13 December 1996. Gillard was again represented by a duty solicitor and was remanded in custody.
Interview with Gillard on 17 December 1996:
On 17 December 1996, Sherry obtained an authority under s 28 of the Correctional Services Act 1982 signed by Detective Superintendent Paul Schramm to remove Gillard from Yatala Labour Prison. Sherry then had a further interview with Gillard which was primarily concerned with the ignition switch from the Econovan. Gillard was also asked further questions about driving the van, his reason for going to Queensland and his physical appearance at the time of the shooting.
Issues raised on the voir dire:
The invalidity of the warrant:
The Rule 9 notice makes a number of complaints about the conduct of the various police officers who dealt with Gillard after his apprehension in Queensland on 9 December 1996.
There is an application to exclude any evidence of conversations between Gillard and Lacey on the ground that the warrant for Gillard’s arrest was invalid. The Rule 9 notice asserts that the warrant was issued without foundation and was invalid on its face as it was issued pursuant to s 58 of the Summary Procedure Act 1921 (SPA) and was not a valid warrant for the arrest of a person charged on an information for an indictable offence. The form of the warrant is as follows:
WARRANT OF APPREHENSION
Form 6 – Summary Procedure Act, 1921 – Section 58, Bail Act, 1985 – Section 18.
Court of Origin  MAGISTRATES COURT OF SOUTH AUSTRALIA
Sitting At  ADELAIDE
Registry Address                  2 Angas Street, ADELAIDE, SA 5000
Phone Number  (08) 204 2444
Court File Number                AMC-96-36288
Originating Document Type     INFORMATION FOR AN INDICTABLE OFFENCE
Date Substantiated on Oath     06/11/1996
Complainant/Informant           POLICE
Particulars of Defendant
Name  Kevin Wayne GILLARD
Date of birth  10/11/1962
Address  NO FIXED LACE OF ABODE, SA
Particulars of Charge
Date of Offence           15/08/96
Offence Location         LONSDALE
Offence  Murder
Section and Act 11 Criminal Law Consolidation Act, 1935
(And 1 other charge)
Reasons for Issue of Warrant    WHEREABOUTS UNKNOWN
Date of Warrant Issued          06/11/1996
To the Commissioner of Police for the State of South Australia and each member of the Police Force for the said State.
You are hereby directed to apprehend the defendant and, unless bailed pursuant to the authority included herein, bring the defendant as soon as practicable before the Court to answer the charge described herein and to be further dealt with according to law.
MAGISTRATES COURT
(Signed)
REGISTRAR/JUSTICE OF THE PEACE
The Justice of the Peace who signed the warrant was Mr Garry Lees and he gave evidence on the voir dire. Due to the passage of time he was unable to recall signing this specific warrant but he was able to identify his signature thereon. He said that the warrant was issued in accordance with the practice of the court. In his experience, no other form than a Form 6 was used in the Adelaide Magistrates Court regardless of whether the warrant related to a matter on complaint or on information.
Following its issue, the warrant was recorded in the warrant book (VDP33). This is a book which identifies warrants and is required to be signed by the police officer who collects the warrant for execution.
Section 20 SPA provides that:
(1)     Every warrant for the apprehension of a defendant shall –
(a)     state shortly the matter of the information or complaint upon which it is founded;
(b)     name or otherwise describe the defendant;
(c)     order the person or persons to whom it is directed to apprehend the defendant and bring him before the court to answer the charge contained in the information or complaint and to be further dealt with according to law.
Section 58 SPA, authorises the issue of a warrant for the arrest of a defendant charged upon complaint and Magistrates Court Rules (1992). MCR 38.03 prescribes that a warrant issued pursuant to s 58 shall be on a Form 6.
Section 58 is, however, confined to matters commenced by complaint, whereas in this case, the matter was founded on an information. Section 103 SPA provides that where an information has been filed and the defendant is not in custody, the court may issue a warrant for the defendant’s arrest, but the Rules are silent as to the form that such a warrant will take. MCR 38.01, however, provides that:
Forms not provided for herein may be prepared at the direction of the court by the registrar on behalf of the court.
In this case, Form 6 was used for Gillard’s warrant, although he was not charged on complaint but on information. This is why it is asserted on behalf of Gillard that the warrant is invalid as it purported to be issued pursuant to s 58 SPA.
This argument can, howevever, be dealt with quite shortly. In order to be valid a warrant must comply with the relevant legislation. The warrant was authorised by s 103 SPA. There is no mandatory requirement as to the form of such a warrant. This warrant included all relevant pre-conditions for its issue:
·It was directed to the Commissioner of Police.
·It clearly stated that it was founded upon an information relating to an indictable offence, namely murder (s 11 CLCA).
·It correctly named the defendant.
·It required the police to bring the defendant as soon as practicable before the court to answer the charge and to be further dealt with according to law.
There was no ambiguity or uncertainty arising on the face of the warrant as it contained all the particulars required by s 103 SPA. The warrant was signed by Mr Lees and issued out of the Magistrates Court in accordance with the usual practice of the court. It is regrettable that the form did not include a reference to s 103 SPA but, in my opinion, that omission is insufficient to invalidate the warrant.
Having executed the warrant, the police were obliged to comply with the provisions of s 83(1) of the Service and Execution of Process Act 1992 (Cth) (S&EPA) which provides that “as soon as practicable after being apprehended a person is to be taken before a magistrate of the State in which the person was apprehended”. Lacey received the advice from Black that Gillard had been located at St Vincent de Paul at about 6 pm on Monday, 9 December 1996. Police arrived back at the police station with Gillard at about 6.40 pm. Gillard was taken to the watch house at about 11 pm and was finally taken into custody at about 11.55 pm. He then appeared in the Brisbane Magistrates Court the following morning at which time he was remanded to appear in court on the Thursday, which was the date on which the extradition proceedings had been listed for hearing. In my opinion the police in so doing complied with their obligations pursuant to s 83(1) S&EPA.
I refuse the application to exclude the evidence of conversations between Gillard and Lacey or any other police officer based on the argument as to the invalidity of the warrant.
The conduct of the Queensland police officers, and in particular Campbell:
Mr Richards further complained that the conduct of the Queensland police, and in particular Campbell, was unlawful and improper for a number of reasons. Mr Richards referred to a “string of oversights in relation to complying with the legislation” which, in his submission, found the discretion to exclude the various interviews subsequently conducted by the police. They had continued to interrogate Gillard in relation to the substantive allegations without him being represented by a solicitor, the circumstances in which he was detained were oppressive, they had continued to question Gillard after he had indicated that he did not wish to answer any further questions, and they had failed to arrange any psychiatric assessment prior to questioning him.
Much of this argument proceeded on the premise that Gillard had in fact been arrested when he was apprehended at St Vincent de Paul by Lacey, Black and Hatton. Mr Richards referred to the fact that three police officers had attended at St Vincent de Paul to apprehend Gillard, and that when they left Gillard’s duffle bag was removed from those premises and taken back to the police station, but kept separate from Gillard in the property office on the ground floor.
Lacey, Hatton and Black were, however, adamant that they did not arrest Gillard at that time. They explained that the three of them were on duty that night and there was therefore nothing unusual about the three of them attending at St Vincent de Paul. The only reason for collecting Gillard’s property was to keep it together with him, which in my opinion was understandable given that Gillard was in effect staying in a shelter.
Despite the dangerous description given of Gillard in the wanted poster, none of the police officers was armed nor was Gillard handcuffed at any time. The treatment of Gillard when they returned to the police station is also inconsistent with an arrest. Gillard was left in the middle of the CIB room without any restraint and was provided with a meal. Although there was a delay of some hours before Campbell finally arrived at the police station, I do not believe there was anything sinister about that, and accept that the delay related to problems with overtime restrictions.
Interview with Detective Campbell:
As Gillard was not under arrest at the time that he spoke to Lacey, there was no obligation to give him a caution. Campbell’s interview started at 10.25 pm on 9 December 1996. Although Gillard had not been arrested by the police officers at St Vincent de Paul, Campbell assumed that he had been, as a result of which, at the beginning of the interview Campbell cautioned Gillard before proceeding further with his questioning.
That interview concluded at 10.36 pm. In my view there is nothing in the statements made by Gillard in that conversation to indicate that it was anything but voluntary.
Gillard appeared in court the following morning and the conversations that took place that day appear at paras 58 and 59 (supra). Mr Richards argued that these latter two conversations were conducted in the knowledge that Gillard had been represented by a lawyer in court, but the lawyer had not been informed of the fact that the police wanted to speak to him. In my opinion, there is nothing to suggest that either of the statements made by Gillard at each of these interviews was involuntary. Gillard had been advised that he did not have to answer Campbell’s questions. Campbell’s conversations were primarily concerned with advising Gillard about what had taken place. Gillard was obviously nervous at the time of those conversations and that was something that Campbell sought to clarify with him but Gillard’s concerns appeared to relate to an anxiety created by other persons who were involved rather than actions of the police.
Gillard then indicated to the police that he was prepared to look after himself. In my opinion, the fact that Gillard had been represented by the duty solicitor in the court that morning, does not lead to a conclusion that his rights to legal representation were infringed.
There is evidence that Gillard was showing some signs of anxiety by pulling his beard and the like, but I think the evidence falls short of requiring any psychiatric assessment of him at that time and there is no evidence to suggest his will was overborne as a result of any mental disability so as to render statements made by him involuntary.
The interview with Sherry on 12 Decemer 1996:
On 12 December 1996, the order was made in the Brisbane Magistrates Court for Gillard to return to South Australia and to appear in the Adelaide Magistrates Court on 16 December 1996. That morning Gillard was again represented by a duty solicitor. Mr Richards argued that thereafter there was no power to question Gillard as there was an obligation under s 83(1) of the Service and Execution of Process Act 1992 (Cth), to bring him before a court as soon as practicable, and thereafter he was in custody under protection of the court order. Mr Richards submitted therefore that the remand to 16 December 1996 had been sought for an improper purpose, namely, to allow time for questioning in Adelaide.
Mr Richards was critical of the delay by Sherry and Roy in travelling to Brisbane to extradite Gillard and their subsequent delay in returning him to South Australia. Mr Richards submitted that it should have been possible for Gillard to have been brought before the Adelaide Magistrates Court on Friday, 13 December 1996.
I reject each of these arguments. The obligation upon the police pursuant to s 83(1) Service and Execution of Process Act (Cth) had been complied with by the Queensland police when they arranged for Gillard to appear in the Brisbane Magistrates Court on 12 December 1996. Once Gillard appeared in court that day, the obligation for him next to appear in court depended on the order made by the magistrate who directed that Gillard appear in the Magistrates Court at Adelaide on 16 December 1996.
I do not accept that there was any undue delay by Sherry and Roy in travelling either to or from Brisbane Gillard’s extradition. Possibly they could have acted more expeditiously but, in my view, it was not unreasonable to make some allowance for unforeseen contingencies, particularly with respect to the flight back to Adelaide, and I therefore reject the suggestion that the remand to 16 December 1996 was sought for any improper purpose.
Breach of s 74D Summary Offences Act 1953:
There is a further complaint, namely that Sherry and Roy failed to comply with the provisions of s 74D of the Summary Offences Act 1953.
Sections 74C to 74G were introduced to take effect from 3 March 1996. Those provisions require interviews with suspected persons to be recorded on either video tape or audio tape. “Interview” is defined in s 74C to include: (a) a conversation; or (b) part of a conversation; or (c) a series of conversations.
If it is not reasonably practicable to record an interview either by video tape or audio tape, s 74D(1)(c) provides that:
(i) a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and
(ii) as soon as practicable after the interview the record must be read out to the suspect and the reading must be recorded on video tape ...
With one exception, Sherry recorded his interviews with Gillard on 12 December 1996 on audio tape, but not on video tape. There was also a portion of conversation not recorded at all and Sherry failed to read that conversation back to Gillard. In my opinion, no significance can be attached to the failure to use the video to record the interviews. Sherry explained that they had not initially intended to interview Gillard in Queensland and the interviews appear only to have come about because Gillard suddenly started asking questions about his position as well as the investigation generally.
Campbell explained that at that particular time, there were no recording facilities of any kind available at the watch house. Sherry, nevertheless, used the audio tape to record the bulk of the conversations which he had with Gillard.
The prosecution accepts, however, that there was a breach of s 74D as “off the tape conversation” which took place between Sherry and Gillard, between the other two recorded conversations on 12 December 1996 should have been read back to Gillard when the interview with him recommenced.
Sherry, in evidence, candidly acknowledged this but said it was inadvertent as the legislation had only been operative for a few months.
Section 74E(1)(b), however, provides that an interview can be admitted despite the investigating officer’s non-compliance if the court is satisfied that the interests of justice require it.
In my opinion the discretion provided by s 74E to admit the relevant conversations should be exercised in favour of the prosecution, notwithstanding the admitted breach of s 74D. I do so for a number of reasons.
I accept the evidence of Sherry and Roy that their failure to comply with s 74D was inadvertent. That is understandable, bearing in mind that at the time they conducted these interviews the legislation had only been in existence for about nine months and I accept their evidence that at that stage, neither had had the degree of training that would now apply to this particular issue. Nor, for that matter, had case law developed to such an extent as to bring home to the police the importance of complying with these provisions.

The defence have not sought to dispute the accuracy of any of the statements contained in the interviews, including that part of the interview which was not recorded. In my view, the evidence is relevant and probative and the statements made by Gillard relate to serious charges against him.
The authority to remove Gillard from custody for further interviews
I have dealt with this topic earlier when discussing interviews with Gillard after his return to Adelaide. Gillard was in Sherry’s custody at the relevant time as a result of the order made in the Magistrates Court in Brisbane and accordingly authority was not required.
Mr Richards also argued that the interview at the Adelaide City Watch House on 13 December 1996 from 4.41 pm to 5 pm was unlawful because it followed from the earlier unlawful interview and, as there was no power to arrest or detain Gillard for questioning, he should have been brought before the court. He also complained that the subsequent removal of Gillard from the watchhouse to go to the various places connected with the murder was unlawful.
Mr Richards complained that the interviews on 13 and 17 December should also be excluded as being “fruit of the poison tree”, that is, that the non-compliance with s 74D on 12 December 1996, the failure to advise Gillard’s solicitor, albeit the duty solicitor, carried over to the interviews the following day, and on that basis should also be excluded.
The steps taken by police in obtaining the authority of a magistrate to remove Gillard from custody on 13 December 1996, to conduct the later interviews (which were recorded on video) was not required, but demonstrates that the police were mindful of their obligations to protect Gillard’s rights when removing him from custody, and is inconsistent with any suggestion that the police were not vigilant in attending to their obligations under the legislation.
In my opinion, the statements made by Gillard on 12, 13 and 17 December 1996 were voluntary and are therefore admissible and for all of these reasons, on 13 October 2006 I ruled accordingly and declined to exercise my discretion to exclude any of them.