R v Gillard & Preston No. Sccrm-97-221 Judgment No. S6984

R v GILLARD & PRESTON

[1998] SASC 6984

Criminal

MULLIGHAN J The accused Kevin Wayne Gillard and Gerald David Preston were jointly charged with two counts of murder and one count of attempted murder. The charges arise out of shootings at Lonsdale on 15th August 1996 when a man entered a motor vehicle workshop and shot dead Leslie Shane Knowles and Timothy Lawrence Richards and shot and wounded Robert Kim Traeger.
It was the Crown case that the accused Preston was the gunman and the accused Gillard drove the vehicle used in the shootings. It was alleged that they participated in a joint criminal enterprise with the common purpose of murdering Mr Knowles and that the others were shot due to uncertainty on the part of the accused Preston as to the identity of Mr Knowles. At the time the three victims were in the workshop and which of them was Mr Knowles was not known to the gunman.
Both accused pleaded not guilty to each of the charges. Before the jury was empanelled, the accused Gillard sought the exclusion of the evidence of admissions he had made to police officers on various grounds and of evidence of a telephone conversation between the two accused also on various grounds. Both accused sought an order for separate trials and the accused Preston sought exclusion of evidence of conversations overheard by way of listening devices on the ground that the warrants issued under the Listening Devices Act 1972 were invalid. I permitted a voir dire hearing on the first application of the accused Gillard and heard extensive argument on all of the applications. I ruled that all evidence be admitted and against the application for separate trials. I intimated that I would give my reasons for those rulings at the end of the trial and I now do so.
Before turning to each application, it is appropriate to say something about the Crown case. The three men were shot a little before 12.15 pm on Thursday, 15th August 1996 at the workshop of the business conducted by Mr Knowles at Donegal Road, Lonsdale. The gunman entered the workshop in disguise carrying a military Luger gun. Mr Knowles and Mr Richards were in the office of the premises. The two men were friends and Mr Richards was employed by Mr Knowles. The gunman went to the office and asked which of them was Mr Knowles WHO did not identify himself. He was shot through the head at close range. Mr Richards said that he was not Mr Knowles and he too was shot through the head at close range. Mr Traeger was outside the office in the workshop working on a motor vehicle with a Mr Leane who was under the vehicle. As the gunman left the office he saw Mr Traeger who had heard and seen what had occurred in the office. It seems that he did not see Mr Leane who remained under the vehicle. Mr Traeger said that he was not Mr Knowles and offered to show his driver’s licence. The gunman shot at the direction of his head but Mr Traeger put up his arm and dropped to the ground. He was wounded in the arm. The gunman left. As I have said, it is the Crown case that the accused Preston was the gunman.
It is the Crown case that the accused Gillard stole the vehicle used in the shootings some time on the previous Monday. It was a yellow Ford Econovan. It was stolen from the northern side of North Terrace opposite the City West Campus of the University of South Australia which is to the west of Morphett Street Bridge. It was owned by Mr Dinsdale, a tradesman, who was working at the time at the University premises. The Crown case is that the accused Gillard broke into the vehicle. He disconnected the ignition switch and connected his own switch which had a key. He drove the van to the unit at Washington Street, Hilton occupied by Ronald Preston, the brother of the accused Preston, and told him not to touch the vehicle, that it came from his brother and that it was to stay there for a couple of days. On the day of the killings, the van was collected by the accused Gillard. If the accused Preston was not with him at that time, the accused Gillard collected him sometime before the murders. The two accused drove in the van to the vicinity of Donegal Road and made some observations. They drove to a telephone box on O’Sullivan’s Beach Road. The accused Gillard telephoned the workshop and asked if Mr Knowles was there. Receiving an answer in the affirmative, he hung up and returned to the van. The men went to Donegal Road, put on disguise and the accused Gillard drove to the workshop and pulled up at the roller door entrance. The accused Preston left the van with the gun and carried out the shootings. He returned to the van and the accused Gillard drove to Christies Beach to a previously selected location in a carpark behind a block of shops. This location could not be seen from the road. The accused Preston left the van and walked to his home at 27 Salter Crescent, Christies Beach, which was nearby, to dispose of the gun and perhaps the disguise. The accused Gillard set fire to the van, removed the false number plates which had been used on the vehicle, and set off to his home, which was also nearby. He disposed of various items including the number plates at places which he pointed out to the police.
On the Crown case the accused Preston was “contracted” to murder Mr Knowles by a motor cycle group and was paid a fee of $10,000.
As might be expected, the shootings caused a major police investigation. It is unnecessary for present purposes to set out the detail of that investigation. It is sufficient to say that by the following week, the accused Preston was a suspect. As will be seen, listening devices were installed in his home. Information implicating him was received from various sources. The police were able to link the murder weapon and the van to him and he was arrested on 3rd November 1996 and charged with the murders and the attempted murder. On that day, police found the murder weapon at the house of the father of the accused Preston at Moonta.
Initially any involvement in the murders by the accused Gillard was not known to the police but they became aware of evidence which implicated him. He left Adelaide some time in October 1996 and went to Brisbane. The police did not know of this move or his whereabouts for some time but in early December they suspected that he was in Brisbane because he had been using a bankcard of some type in automatic teller machines. A wanted poster had been prepared of the accused Gillard and photograph and it had been sent to police in various States along with information about the murders and the two accused. Detective Campbell of the Queensland Police Station at Dutton Park, a suburb of Brisbane, in a general sense had responsibility for the matter in Queensland. Detective Sherry and Detective Roy who were stationed at Christies Beach were assigned to work on the investigation with particular reference to the accused Gillard. Detective Sergeant Feltus, the South Australian police officer who was responsible for the administration of the investigation of the shootings and all information did, or should have, passed through him. At his request, Detective Sherry was instructed to commence preparations for extradition of the accused Gillard in case he was located interstate.
A warrant for the apprehension of the accused Gillard was issued by the Magistrates Court of South Australia on 6th November 1996 on the charge of murder on 15th August 1996 at Lonsdale. The warrant was issued pursuant to the provisions of the Summary Procedure Act 1921 and commanded the Commissioner of Police and each member of the Police Force of South Australia to apprehend the accused Gillard and, unless bailed, bring him as soon as practical before the Court to answer the charge and to be dealt with according to law. As will be seen, the terms of the warrant are important. At this time the police were not aware of the whereabouts of the accused Gillard.
On 9th December 1996 Police at Dutton Park were informed by the Manager of a nearby St Vincent de Paul Hostel that the accused Gillard may be at those premises. Queensland Police went to the hostel and spoke to Gillard at about 6.30 pm. To use a neutral expression, he accompanied them back to the Dutton Park Police Station. At the Hostel and at the Police Station, there was conversation. The accused Gillard seeks exclusion of the evidence of most of those conversations in the exercise of discretion. Detective Campbell came on duty at about 10.00 pm. He had conversations with the accused Gillard commencing at 10.25 pm. The accused Gillard seeks the exclusion of those conversations on the grounds that, in the circumstances, what he said was not voluntary or, in the alternative, there are grounds for excluding the evidence in the exercise of discretion.
The accused Gillard was taken to the Brisbane Watchhouse at about 11.00 pm to 11.30 pm where he was admitted. He was brought before a Magistrate in Court the following morning and, upon the application of the Police Prosecutor, the application for extradition was adjourned, and the accused Gillard was remanded in custody, until the following Thursday, 12th December 1996. He was returned to the Brisbane Watchhouse. At about 5.00 pm on that day, Detective Campbell and Detective Benson, also of the Queensland Police, returned to the Brisbane Watchhouse and saw the accused Gillard. Detective Campbell had a further conversation with him. He then left and had a brief conversation with him. The accused Gillard seeks exclusion of the evidence of these conversations on the ground of lack of voluntariness or, alternatively, in the exercise of discretion.
Detective Sherry and Detective Roy were attending a police training course at Echunga in South Australia on the Monday and the Tuesday of that week. They learned of the apprehension of the accused Gillard on the Monday evening soon after he was taken to the Dutton Park Police Station. Immediately enquiries were made as to what was necessary for them to go to Brisbane. They travelled to Brisbane on the Wednesday, arriving just after the middle of the day. They saw the accused Gillard and spoke to him briefly. The next morning, Thursday 12th December 1996, the accused Gillard again appeared before the Magistrate. Detective Sherry produced the original warrant to the Magistrate who ordered, without opposition, that the accused Gillard be returned to South Australia to appear at the Adelaide Magistrates Court at 10.00 am on Monday, 16th December 1996 and, for that purpose, that he be delivered, together with the record of the proceedings in that Court, into the custody of Detective Sherry. The order was drawn up and signed by the Magistrate.
The accused Gillard was returned to the Brisbane Watchhouse which is in the same building as the Magistrates Court. Detective Sherry, Detective Roy and Detective Campbell then went to see the accused Gillard in the Watchhouse. They saw him in an interview room and there was a brief conversation which commenced at 9.44 am and was recorded on audio tape. At the end of that conversation, there was further conversation and other events occurred which will be related shortly. The accused Gillard was then interviewed commencing at 10.05 am and made various admissions. He seeks exclusion of the evidence of those conversations on the same grounds.
On the next day, he was returned to Adelaide. He was taken from the Adelaide Airport to the Adelaide Watchhouse arriving at about 4.00 pm. Earlier in the day at 1.30 pm Detective Harding, after discussion with Detective Roy made an application to a Magistrate in Adelaide pursuant to s78 of the Summary Offences Act 1953 and the Magistrate authorised the removal of the accused Gillard from the Adelaide Watchhouse from 3.30 pm to 7.30 pm for the purpose of a further interview and to attend various scenes in the Christies Beach and Lonsdale areas. As will be seen, this application and authorisation were misconceived.
After the accused Gillard was admitted to the Adelaide Watchhouse, he was removed and taken to the Major Crime Task Force Office in Angas Street where he was interviewed from 4.41 pm which concluded at 5.35 pm. This interview was recorded on video tape. He made various admissions but denied that he knew murder was to be committed. The accused Gillard was then taken out in a police car with Detectives Sherry, Roy, Harding and Jeffries. On the Crown case, he pointed out various significant locations and matters and he made further admissions. This interview concluded shortly before 8.00 pm. During this time another police officer, Detective Jeffrey, obtained from another Magistrate an extension of the period during which the accused Gillard could be away from the Adelaide Watchhouse until 9.30 pm. He was returned to the Watchhouse shortly after 8.00 pm.
He appeared in the Magistrates Court in Adelaide on the Monday morning in accordance with the order of the Brisbane Magistrate and was remanded in custody to a future date in the usual way for the proceedings to take their course. He then came under the care of the Department for Correctional Services and was kept on remand in prison. Up until then, he had been in police custody since his arrest.
Detective Sherry sought from the Manager of Yatala Prison the release of the accused Gillard into his custody for the purpose of investigation of the offences pursuant to s28(4) of the Correctional Services Act 1982. That section provides, inter alia, that when a person has been charged with an offence, the manager of a correctional institution must, at the request of a member of the police force, release the prisoner into the custody of that member of the police for the purpose of investigation of the offence, obtaining evidence as to the commission of the offence or identifying the prisoner as the person who committed the offence, in accordance with law. That request was authorised by Detective Superintendent Schramm of the Major Crime Task Force and was granted by the Manager. On 17th December 1996 Detective Sherry removed the accused Gillard from prison and took him to the Holden Hill Police Station with Detective Roy for the purpose of further interview. That interview commenced at 2.53 pm and was completed at 3.06 pm. It was recorded on video tape and the accused Gillard made further admissions.
He seeks the exclusion of all of those interviews by Detective Sherry and Detective Roy on the grounds that what he said was not voluntary or, in the alternative, on discretionary grounds.
Before discussing the issues raised by these objections, I mention the witnesses.
At the voir dire hearing Queensland Police Officers, Detective Lacey, Detective Hutton, Constable Black and Detective Campbell gave evidence. The South Australian Police Officers who gave evidence were Detective Sherry, Detective Roy, Detective Harding, Detective Jeffrey and Detective Sergeant Feltus. They were all cross-examined extensively. Very serious allegations were put to most of the Queensland police and to Detective Sherry and Detective Roy which are discussed shortly. I found all of the police witnesses to be reliable, accurate and truthful which I judged not merely by their demeanour and manner of giving evidence but by the plausibility and what they said in the context of all of the evidence. The accused Gillard gave evidence and he was cross-examined extensively. The first observation which I make is that his version of events was, standing alone, highly improbable and unlikely. When considered along with other evidence which I found acceptable, I had no hesitation in rejecting his evidence. I found him to be unimpressive as a witness and lacking in credit. I reject his evidence where it is in conflict with the evidence of the police officers.
Also, before considering factual issues, it is appropriate to make some observations about the relevant law. In my view much of the case of the accused Gillard on the discretionary grounds proceeded on a wrong premise. It seemed to be overlooked that he was arrested on a warrant about which there was no challenge. It was a warrant issued by the Magistrates Court and was directed to the South Australian Police, including the Commissioner. The warrant was to apprehend the accused Gillard and bring him before the Court as soon as practical. As the accused Gillard was located and apprehended in Queensland, the law relevant to his apprehension and the procedure after apprehension is to be found in Part 5 of the Service and Execution of Process Act 1992 (Cth).
Section 82 of the Act provides that a person named in a warrant issued in a State may be apprehended in another State by a member of the police force of that State and it is not necessary to produce the warrant when the person is apprehended. Pursuant to s83, as soon as practicable after being apprehended, the person is to be taken before a Magistrate of the State in which the person is apprehended. The warrant, or a copy of the warrant, must be produced to the Magistrate if available and, if not, the Magistrate may adjourn the proceeding for such reasonable time as the Magistrate specifies and remand the person on bail or in such custody as the Magistrate specifies. The total period of any adjournments must not exceed five days. Upon the warrant being produced, the Magistrate must order that the person be remanded on bail to appear in the place of issue of the warrant as the Magistrate specifies or that the person be taken, in such custody or otherwise, as the Magistrate specifies, to a specified place of issue of the warrant: s83(8). These provisions constitute a code for the apprehension and management of persons apprehended interstate when a warrant is issued in the State where the crime was committed and State law does not apply: R v Forrest (1988) 35 ACrimR 421 per King CJ at p424.
In what follows I recite matters of fact which are my findings after consideration of all of the evidence.
It was contended by the accused Gillard that it is the cumulative effect of events from the time when he was approached by the Queensland police at the Hostel which served to demoralise him and render him susceptible to inducements and the effects of violence alleged to have been made at the Brisbane Watchhouse on 12th December 1996 so that his will was overborne and what he said lacked voluntariness or, alternatively, there are circumstances which justify the exclusion of the evidence in the exercise of discretion. I mention each of these events in turn and the conclusion I reached about them.
Detective Lacey, Detective Hutton and Constable Black arrived at the Hostel at about 6.20 pm and, after a brief conversation with the Manager, approached the accused Gillard in the shower area upstairs and spoke to him. Detective Lacey introduced himself and said that he wanted to speak to him about an incident which occurred in South Australia. The accused said, “So, I suppose I’m coming with you”. Detective Lacey said, “That’s what we’d like. I’d rather talk about this at our office”. The accused Gillard said, “No worries”. Detective Lacey said, “Do you want to know what it’s about?” and the accused Gillard made no reply. According to Detective Lacey, they then gathered clothes and personal belongings which the accused Gillard had lodged at the Hostel and went to Dutton Park Police Station in a police vehicle. Detective Hutton and Constable Black confirmed this conversation. According to Detective Lacey, he did not arrest or apprehend the accused Gillard at this time. He believed that he was the person named in the warrant, but he had not seen the warrant and at that stage he could not discount the possibility that he was not the person named in the warrant. If he had been sure, he would have apprehended him at that time. If the accused Gillard had declined to go with him to the police station or had attempted to get away, he would have apprehended him, but as it happens he did not do so.

In his evidence the accused Gillard gave a different version of those events. He said that there was virtually no conversation upstairs and he went downstairs where the following conversation occurred with Detective Lacey asking the question:
“Q       Are you Kevin Gillard.
A      Yes I am.
Q      Can you prove it.
A      Yes I can.

The accused Gillard said that he produced his banking card and showed it to Detective Lacey:

“Q     Would you mind coming with us.
A      [words to the effect] I haven’t got a choice. Have I a choice?
Q      No.”

According to the accused Gillard, he was taken out to the footpath, handcuffed and put into a police vehicle. He was then taken to Dutton Park in the police car. Detective Lacey, Detective Hutton and Constable Black all denied the version of the accused Gillard, including that handcuffs had been used. There are some notes of police which appear inconsistent with their version of events. Detective Lacey’s own notes made at 10.20 pm record that the accused Gillard had been arrested but not when that occurred or by whom. When interviewed by Detective Campbell and Detective Benson at 10.25 pm that night, the accused Gillard acknowledged that he had been at the police station for three or four hours and he was asked if he was happy to stay there whilst the police conducted their enquiries and he said, “No choice”. In his brief for the prosecution for the extradition hearing, Detective Campbell wrote that the accused Gillard was arrested and conveyed to the Dutton Park Police Station.

It is contended that the accused Gillard was, in fact, apprehended by Detective Lacey at the Hostel at about 6.30 pm and that although no formal words of arrest or apprehension were used, the circumstances admit of no other interpretation as the accused Gillard was deprived of his liberty: see R v Conley (1982) 30 SASR 226 per King CJ at pp239-240.
I accept without reservation the evidence of Detective Lacey and the other officers as to what happened at the Hostel. It is on their version of events that consideration must be given as to whether the accused Gillard was apprehended. In my view, that conclusion is not justified. As King CJ pointed out in Conley, an invitation or request to go to a police station does not amount to a deprivation of liberty even though the police officer would have made an arrest if the person concerned had not complied and believed that arrest would be the result of non-compliance: see pp239-240.
The accused Gillard alleged that on the way to the Dutton Park Police Station he was sitting in the back of the police car between two police officers. Detective Lacey asked him if he liked Harley Davidson motor bikes. The accused Gillard said that he did. He was asked if he was a Hell’s Angel and he said that he was not. He alleged that Detective Lacey said to him that Hell’s Angels were in Brisbane looking for him and they did not like him. All of the Queensland police officers who went to the Hostel denied that any such conversation occurred. I accepted their evidence and rejected the evidence of the accused Gillard and the contention that the police were attempting to intimidate him at this time.
The contention is that the accused Gillard was detained for the purpose of questioning. After the accused was taken to Dutton Park Police Station, he was kept in the C.I.B. Office in an open area which is described as the day room. Detective Lacey contacted Detective Campbell at about 7.00 pm who was not due to start duty until 10.00 pm. I accept that he was not permitted to start duty at an earlier time for administrative reasons and that Detective Lacey regarded him as the appropriate person to deal with the accused Gillard.
Whilst waiting for Detective Campbell, the accused Gillard was given a meal and a non-alcoholic drink. During this period, Detective Lacey had a conversation with the accused Gillard. He was told that the police had received information that he may be involved in a murder in South Australia. The accused Gillard said that he knew nothing about it. Detective Lacey said that there were other detectives who wanted to talk to him about the matter and he was asked if he was prepared to wait and he answered in the affirmative. According to Detective Lacey, the accused Gillard then put his face in his hands and the following conversation occurred. Detective Lacey asked the questions:
“Q....... What’s up.
AThis is going to get me killed.
Q...... What do you mean.
AThey’ll fucking kill me.
Detective Hutton said, “Who is ‘they’?”
AThe bikies, mate.”
The accused Gillard remained in the day room until Detective Campbell arrived. He was quiet and compliant and appeared troubled. According to the accused Gillard, Detective Lacey went up close to him and said, “Bang, bang, bang, bang” in his ear and “He’s going into himself”. The accused Gillard was picking at a scab where he had earlier been bitten by a dog on the right upper arm and he said that either Detective Lacey or Constable Black said to him “Don’t pick that. Don’t make it bleed. If you are going to bleed, it’s going to be because of the injuries we inflict on you”. He said that Detective Lacey wanted him to talk. He was yelling in his ears and said, “You start talking young man”. He repeated yelling “bang” on another occasion five to ten minutes later. According to the accused Gillard, he was given four stubbies of beer whilst in the day room for which he paid.
All of these allegations were denied by Detective Lacey, Detective Hutton and Constable Black. I accepted their evidence and concluded that no such incidents occurred. There were no threats. Beer was not given to the accused Gillard and he was treated appropriately and properly at all times. He was given a meal and a newspaper to read whilst waiting for Detective Campbell.
In cross-examination he claimed that he had been in custody for five hours before he saw Detective Campbell and that he was “pretty messed up”. He said questions had been bounced off him all night.
I rejected that evidence. It was not put to the police officers. It was mentioned for the first time in cross-examination and was a fabrication. Also, the demeanour of the accused Gillard as revealed in the video recording of the interview of him by Detective Campbell does not suggest that he was “messed up”.
When Detective Campbell arrived, he spoke to Detective Lacey and then by telephone to Detective Sherry. He then had a short conversation with the accused Gillard. He introduced himself and said that he wanted to interview him about “some things which happened in South Australia in relation to a double murder”. The accused Gillard said, “Yeah I know”. Detective Campbell told him that interviews in Queensland are conducted on tape. They eventually went to an interview room and an interview using a video recorder was commenced at 10.25 pm. Detective Benson was present. He was informed of his rights and was cautioned. He was asked, and answered, questions about his identity and features of his background and present circumstances. Then he was asked questions about the murders and, in short, he denied any involvement in the shootings. He did say some things of significance and which are relevant in the Crown case, including that he declined to comment when asked if he knew the accused Preston, but it is unnecessary to mention these matters for present purposes. However, in general terms he said that his only knowledge of the shootings was from what he had read in the newspapers. He told Detective Campbell that he had been in Glenside Hospital and that he had had suicidal tendencies. He agreed that he had taken part in the interview of his own free will. At the end of the interview which concluded at 10.36 pm, he was asked if there was anything else which he wanted to say and he said, “No”.
Detective Campbell left the room. The interview had also been recorded on audio tape and in accordance with the required procedure in Brisbane a copy of the audio tape was given to the accused Gillard. Detective Campbell and Detective Benson noticed that he had become very agitated and nervous. Detective Campbell and the accused Gillard had the following conversation:
“Q....... You seem a bit anxious. Is there something else you’d like to tell us.
AI can’t, mate.
Q...... Why.
AI know why, because of who’s involved.
Q...... Who’s that.
AYou know who.
Q...... Not unless you tell me.
AYeah.
Q...... Well, I’ve just given you an opportunity to tell us on tape what you know. If you like, you can tell me whatever you know now.
ALook. I’m not saying any more, I don’t know anything.”
The accused Gillard denied most of this conversation. According to him, after Detective Campbell asked him if he had something else he would like to tell them, he said “I’ve nothing to say”.
I rejected the evidence of the accused Gillard and accepted the evidence of Detective Campbell and Detective Benson and find that the conversation occurred as they have related.
Some time after 11.00 pm the accused Gillard was taken to the Brisbane Watchhouse.
It is convenient to mention the contentions of the accused Gillard up until this stage. First, it is submitted that he was apprehended by Detective Lacey. I do not think it much matters whether he was apprehended at the hostel or not in view of the obligation under the Service and Execution of Process Act to take him before a Magistrate as soon as practical after having been apprehended. Detective Lacey took him to the Dutton Park Police Station at about 6.30 pm well after court hours. There is no obligation to arrange for a Magistrate to sit out of hours merely because a person has been apprehended on a warrant. However, as I have said, I do not think Detective Lacey apprehended the accused Gillard at that time or at any other time. He was apprehended by Detective Campbell at about 10.36 pm at the conclusion of his interview with the accused Gillard.
It was submitted that the accused Gillard was detained at the Dutton Park Police Station for the purpose of questioning. I rejected that submission. I accepted that Detective Lacey kept the accused Gillard at Dutton Park Police Station pending the arrival of Detective Campbell and that it was reasonable to do so. There was no obligation in law to take him elsewhere only to treat him fairly and take care of him. Detective Campbell had the control of the matter. It was appropriate that he be the police officer to speak to the accused. He was coming on duty that night and it was reasonable to keep the accused at the police station during the evening. It was not late at night and Detective Campbell was expected at 10.00 pm. It appears that the basis of this submission is that the continued presence of the accused Gillard at the Dutton Park Police Station before the interview by Detective Campbell and Detective Benson was unlawful because it was solely for the purpose of questioning him. If that was the sole purpose for keeping him at the police station and the police were in breach of an obligation to deal with him in some other way such as to take him to the Brisbane Watchhouse without delay, such detention could be unlawful: see Williams v The Queen (1986) 161 CLR 278. However, as has been seen, the obligation imposed upon the police was to take him before a Magistrate as soon as practicable which, in the circumstances, was the next morning. Strictly speaking, if the accused Gillard had been arrested, there was no obligation in law to take him to the Watchhouse at any time as long as he was cared for appropriately. Of course, police officers in these circumstances may well use a local Watchhouse but as far as the Service and Execution of Process Act is concerned, they are not obliged to do so. Keeping him at Dutton Park Police Station was entirely reasonable in the circumstances.
I rejected the contention that the accused Gillard was in unlawful detention at the Dutton Park Police Station and that he was kept there for the purpose of questioning. The evidence of statements made by the accused at the police station was relevant and admissible. There is no reason to suppose that they were not made voluntarily and there is no reason to exclude them in the exercise of discretion.
When the accused Gillard arrived at the Brisbane Watchhouse, he was taken to the reception area and to the sergeant on duty. He was asked about his health and he told the sergeant that he had received treatment in Adelaide for “mental problems”. He also said that he was taking medication in the form of antibiotics following a recent dog bite. He was searched and examined by the sergeant. It seems that some form of charging procedure occurred but it would seem, unnecessarily. He was taken to a padded cell. His clothes were taken and he was given a smock to wear and then to another cell which enabled him to be monitored. He was placed on what is called suicide watch.
I accepted that those procedures were undertaken for the personal protection of the accused Gillard as earlier in the year he had been in a mental hospital in Adelaide and had told Detective Campbell that he had had suicidal tendencies. Detective Campbell had been informed by police in Adelaide that the accused Gillard had a psychiatric history. The Watchhouse sergeant had a clear responsibility to take appropriate care of the accused Gillard which included taking precautions against self harm. The smock was of such material and design that it could not be used in any self harming process. In my view, there can be no valid criticism of the police because of the manner of treatment of the accused Gillard in the Brisbane Watchhouse.
Detective Campbell returned to the Dutton Park Police Station and prepared a brief for the prosecution to use at the Magistrates Court the next morning. In this brief, it was requested that the application for extradition be adjourned until the following Thursday morning as Detective Campbell and Detective Roy expected to arrive in Brisbane on Wednesday. In this brief, Detective Campbell included, “If all is finished early enough on Wednesday, may even try to get the matter on 2.30 court”. I accept that he did so because he was not aware of the enquiries which Detective Sherry and Detective Roy had to undertake and consequently it may have been possible to get the matter on earlier than the Thursday.
After the accused Gillard appeared in the Magistrates Court on the Tuesday morning, he was returned to the Watchhouse and kept in a cell under close supervision and dressed in the smock. When Detective Campbell saw the accused that afternoon, he told him that he had spoken to South Australian Detectives and that they would arrive in Brisbane the next day to make the application for extradition on the Thursday. He told him that he would probably be remanded into custody to go to South Australia. The following conversation then occurred:
“Q....... Do you have some worries about that
ASome
Q...... Why is that.
ABecause of who’s involved.
Q...... You said that last night. Is there something you want to tell me.
AI’ve had a lot of time to think about this. I think I’m alright by myself.
Q...... Do you need protection.
AI’ll be alright.
Q...... Are you worried about someone in particular that’s tied up with this murder.
AYeah.
Q...... Who would that be? Someone from a bikie group.
AThey’ll get to me wherever I am. There’s nothing you can do.
Q...... Why would they want to do that.
ATo shut me up. I’m not saying any more.”

Detective Campbell then left and prepared notes of this conversation. He returned to the accused Gillard and asked him if he was prepared to read and sign them as a true and accurate record of the conversation. The accused said, “Nup. I’m gonna look after myself”.

In my view, there is no reason to suppose that the accused Gillard did not speak on this occasion voluntarily. He was well aware that he did not have to speak to Detective Campbell. He was in lawful custody having been remanded by the Magistrate according to law and the purpose of Detective Campbell going to see him was entirely appropriate, namely to inform him as to what was happening. The evidence of these conversations and the demeanour of the accused Gillard was relevant and admissible and there was no reason to exclude the evidence.
The accused Gillard also said that he believed that he had not been given his medication for the dog bite when at the Brisbane Watchhouse. If that is so, it does not seem to have had any significant effect upon him. He made no complaint about it to any police officers and there was nothing about his behaviour which suggests lack of medication had any effect upon him.
It was contended that Detective Sherry and Detective Roy could have travelled to Brisbane before the Wednesday and their failure to do so was designed to keep the accused Gillard in custody in the Watchhouse in circumstances difficult for him which had the effect of softening him up and demoralising him for proposed questioning. I rejected that contention. Detective Sherry and Detective Roy had to make arrangements to travel to Brisbane. These arrangements were made on the Tuesday. In the circumstances there was no urgency. The accused Gillard was in lawful custody and would remain so until his next appearance before the Magistrate on the Thursday morning. I accepted that there are various administrative steps which must be taken before the two police officers could travel interstate. It was appropriate that those arrangements be made on the Tuesday and for the travelling to be undertaken on the Wednesday. I rejected the contention that there was delay in order to condition the accused Gillard prior to questioning and I also rejected the contention that the accused Gillard was in any way affected so as to compromise his ability to handle an interview by police.
Detective Sherry and Detective Campbell saw the accused Gillard at the Watchhouse at about 12.30 pm on the Wednesday. I accept that he wanted to see him to establish that he was in fact the person named in the warrant. Detective Sherry had a brief conversation with him. He introduced himself and Detective Roy and explained the purpose of their visit was to apply for extradition. He cautioned him and told him that the extradition hearing was the next day and if extradition was granted he and Detective Roy would take him back to Adelaide on the Friday. He told him that he would speak to him again the next day and asked if he wanted him to contact his parents or anyone else.
In my view, this contact was entirely proper and what transpired was appropriate.
After the hearing before the Magistrate the next day, Detective Sherry and Detective Roy returned to see the accused Gillard at the Watchhouse at 9.44 am. I accept that the purpose of the visit was to confirm what had happened before the Magistrate and to inform him of the arrangements for travel back to Adelaide.
There was criticism of the police officers in not attempting to arrange an extradition hearing on the Wednesday afternoon and the return of the accused Gillard to Adelaide on the Wednesday evening or on the Thursday with the consequence that he could appear in the Magistrates Court in Adelaide on the Thursday or the Friday. The note in the brief to the prosecutor made by Detective Campbell suggests that an earlier hearing was possible. However, there is no reason to criticise Detective Sherry and Detective Roy for not having done so. The accused Gillard was to appear before the Magistrate again on the Thursday morning. It was for the Magistrate to decide when the accused Gillard was to be brought before the court in Adelaide. No doubt he acted upon information given to him by Detective Sherry through the medium of the prosecution. Detective Sherry had earlier made arrangements to travel back to Adelaide on the Friday leaving Brisbane at about midday with anticipated arrival in Adelaide at 3.30 pm. I accepted his evidence that he did not think it was possible to have the accused Gillard brought before the Magistrates Court late on the Friday afternoon given the administration work required and the possible delay in aircraft departure times.

In my view, there was nothing inappropriate about the arrangements which were made. Even though there was no contest about the application for extradition, the police officers could not be certain that the order would be made first thing on the Thursday morning. It was prudent to allow a margin of time and make the arrangements for the Friday. Given the time required to travel from the Watchhouse in Brisbane to Adelaide, it was reasonable to fix the Monday morning as the time for the accused Gillard to appear in the Magistrates Court in Adelaide. The Magistrate in Brisbane was informed of these arrangements and he adopted them in the order he made. Having been arrested on the warrant and brought before the Magistrate in Brisbane, it was for the Magistrate to decide whether the arrangements were appropriate and he did so. There can be no suggestion that the detention of the accused Gillard was unlawful. Also, there can be no suggestion that he was kept in custody for the purpose of questioning by the police. As has been seen, there was no questioning of the accused Gillard by Detective Sherry and Detective Roy prior to the Thursday and no attempt to do so.
When Detective Sherry and Detective Campbell saw the accused Gillard at the Watchhouse on the Thursday morning, Detective Sherry had a brief conversation with him in an interview room in the presence of Detective Roy. Their purpose in seeing the accused Gillard was to inform him of his rights and to explain the outcome of the extradition hearing. Detective Roy also wanted to gauge the reaction of the accused Gillard to him being returned to Adelaide so he could anticipate any difficulties which could occur during the trip to Adelaide. I accepted that they had no intention of interviewing him at that time.
There is dispute as to what then happened. According to Detective Sherry and Detective Roy, the accused Gillard wanted to smoke cigarettes. Detective Sherry said he would organise some for him. There was conversation about whether he had been to Tasmania because the police had information that his pension card had been used by someone when paying a fare. There was discussion about the dog bite. Then the accused Gillard said that he did not want to talk on tape. He asked where he stood. Detective Sherry told him that anything said had to be recorded on the audio tape. The accused Gillard asked him who else had been spoken to and again Detective Sherry told him that any further conversation had to be on tape. By this time cigarettes had been obtained and Detective Sherry told the accused Gillard to go and have a cigarette and think about it. He went off to another part of the Watchhouse with Detective Campbell for that purpose.
The two Adelaide detectives discussed the matter. About ten minutes later the accused Gillard returned and Detective Sherry told him that if he did want to talk to them, the conversation must be recorded. The accused Gillard asked who else had been arrested. Detective Sherry and Detective Roy left the interview room and discussed the matter. Having done so, they agreed to tell the accused Gillard that the accused Preston had been arrested and a gun had been located. They returned to the room and gave that information to him. The accused Gillard then said that he was involved but he thought it was going to be robbery not a murder. Again he was told that if he wanted to talk about it, the conversation had to be recorded on the audio tape. He agreed and the interview was undertaken. This version of events is substantially confirmed by Detective Roy and Detective Campbell.
The accused Gillard gave evidence of a very different version of events. He said that he was allowed to smoke in the interview room from the outset and that he was not taken out of the room for that purpose by Detective Gillard. He said that he understood what was said in the initial brief conversation, including that Detective Sherry said that he did not intend to interview him at that stage and that he knew he did not have to answer questions. According to him, all three police officers remained in the room. The tape was simply turned off. He said that the police were disturbed with him because he was not prepared to say anything. Detective Sherry moved towards him and spat on him. By that he meant that he “lost the plot” and became angry. He then punched him half a dozen times in the lower groin and stomach and said, “Point the finger at Preston and you’ll be fine” which he said on a couple of occasions. Neither of the other police officers said anything. Detective Sherry then said, “Do as we say and you will be fine, Kevin”. “You play the game with us and you will be right”. He also said that if he “fingered” the accused Preston, the charges would be dropped. The accused Gillard said that he was petrified and that he understood he had to tell lies about involvement with the accused Preston. He denied the version of events given by the police officers, although he agreed that there was conversation about whether he had been to Tasmania. He said that he agreed to lie for the police. It is this conduct which is said to have overborne the will of the accused Gillard and also constituted an inducement and is the basis of the allegation of lack of voluntariness.
I rejected the evidence of the accused Gillard about what happened in the interview room after the initial conversation. I accepted the evidence of the police officers. There were no threats. There was no violence, intimidation or inducement. The accused Gillard decided to speak to the police officers. He sought information from them and once it was given he wanted to speak to them and was prepared to have what he said recorded. Prior to that time, he wanted to speak about some matters but only off the tape and Detective Sherry had refused. At all times the police officers behaved properly towards the accused Gillard.
An interview commenced at 10.05 am and concluded at 10.20 am. The accused Gillard was permitted to smoke. Detective Sherry, Detective Roy and Detective Campbell were present. The interview was recorded on audio tape. The accused Gillard was again cautioned and informed of his rights, including that he could have a solicitor present which he declined. He then answered questions about his involvement in the shootings. It is unnecessary for present purposes to set out what he said in any detail. It is sufficient to say that he admitted stealing the van used in the shootings, driving the accused Preston to the workshop, waiting whilst he went inside, driving the van to Christies Beach and setting fire to it. He denied any knowledge of murder and said he thought they were going to commit a robbery. The accused Gillard did make important admissions but maintained denial of any knowledge of, or involvement in, the shootings. He claimed that he did not hear gun shots because he had the radio playing. Detective Roy informed him that there would be a more in-depth interview back in Adelaide the next day.
I found that the accused Gillard participated in this interview in the exercise of a free choice and that what he said was entirely voluntary. There was no inducement or promise by Detective Sherry. He was in lawful custody. It was he who wanted to speak to the police and once he was told that the accused Preston had been arrested and a gun found, he willingly and freely participated in the interview. Up until this stage, neither Detective Sherry nor Detective Roy had any intention of questioning him until they returned to Adelaide. Understandably, they did so when the accused Gillard showed a willingness to speak to them. The police officers did not behave inappropriately in any manner towards the accused Gillard and the circumstances of his detention did not result in any unfairness to him. I think it is likely that he was required to continue to wear the smock whilst in the Brisbane Watchhouse and that he was monitored. However, given his psychiatric background, these measures were taken to ensure his own safety and were entirely appropriate.
Attention was drawn to the decision of Berger J of the Supreme Court of British Colombia in R v Serack, Braun and Braun [1974] 2 WWR 377. The accused was charged with rape and placed in a cell without any clothes and only a blanket to cover himself. Some eight hours later he was taken, wrapped only in a blanket, to an interview room where a statement was obtained from him. Berger J held that although the police did not intend to humiliate or demean the accused, he was not satisfied that the statement was made voluntarily. He said that a man’s trousers are, in such a situation, essential to his dignity and his composure and that the police had a palpable advantage over him which could disarm him of a wholly independent recollection and separate will.
Nakedness may have such an effect in some cases and not in others. Here the accused Gillard was not naked. The smock was sufficient to cover nearly all of his person and was used in his own interests. The evidence of the police officers, which I accept, and the recorded interviews, establish that the accused Gillard was well in control of himself and able to conduct himself appropriately in the interview situation. Neither the smock nor the circumstances at the Brisbane Watchhouse played any part in the decisions of the accused Gillard to change his mind and speak to the police. I accepted that the accused Gillard decided what he should tell the police and why. Consideration of his demeanour from the time he was approached at the Hostel and what he said, reveals a deep concern on his part about his own safety. It is he who indicated that he wanted to speak to the police. He told the story of his involvement which, in his mind, fell short of his involvement in murder.
Whilst I was content to base my conclusions upon acceptance of the evidence of the police officers, consideration of the plausibility of the version given by the accused Gillard leads to the same conclusion. What occurred in the brief initial interview is recorded and may not be disputed. It is plain from what Detective Sherry said that he had no intention to interview the accused Gillard and he did not attempt to do so. The accused Gillard had not, at any time, declined to answer any questions or to co-operate in any way. There was simply no reason or occasion for Detective Sherry to become angry or “lose the plot”. Also, the alleged violence is said to have occurred in a room with a large glass window. Anyone walking by could have seen what was happening in the room. Detective Sherry was not in a familiar environment and could not have known who might have walked by, police officer, visitor or otherwise. There were people nearby. Their voices and laughter may be heard on the tape. On the version of the accused Gillard, he made no attempt to take any evasive action and asserted injury in the nature of swollen and reddened genitals for the first time in cross-examination. He made no complaint to anyone in the Watchhouse. Whilst that may be understandable to some respect, it is not without significance. It appears that he made no allegation of assault until January 1997 when he spoke to his solicitor.
The next matter which tends to establish the lack of plausibility of the version of the accused Preston is that the police did not tell him how to implicate the accused Preston and what he should say about his own involvement. He claimed that the police provided him with some information during the break between the two interviews which, at the most, could not have occupied more than 19 minutes. In the second interview the accused Gillard gave a version of events which, generally speaking, accorded with the circumstances of the shootings and described in some detail the roles played by the accused Preston and by him. I do not propose to mention the detail of what he said, but if he was not involved in the shootings in any way, his capacity to manufacture a story was quite remarkable and particularly a story which corresponded to many known facts. I do not accept that he was able to do so because of what he had absorbed from the media and the little that the police had told him in such a short time.
There is one further matter. It is improbable that a police officer who wanted a fabricated confession and which would stand scrutiny with known facts would permit the accused Gillard free rein in this way. It may be seen from the interview that the accused Gillard was fluent in his answers which were relevant and promptly given. I do not think anyone could have answered the questions in that manner if the story was a fabrication and had recently been taught to him.
There are many examples in the interview in the Brisbane Watchhouse and in the interview in Adelaide of information given which the accused Gillard could not have learned from the media. It is unnecessary to mention them. They illustrate that if his version of events is true, he had to absorb and remember a good deal of information given to him in such a short time in Brisbane and thereafter and then recount it spontaneously and accurately when questioned which, to my mind, was virtually impossible.
It was submitted by the accused Gillard that none of the statements or admissions made by him after he was first interviewed by Detective Campbell at Dutton Park Police Station on the Monday night should be admitted in the exercise of discretion even if made voluntarily because the police had continued to question him after he had indicated that he did not wish to answer any further questions. It is well established that evidence of admissions obtained by police questions after a suspect has indicated that he does not wish to answer questions may be excluded and usually is: R v Ireland (1970) 126 CLR 321 at p333 and the cases referred to therein, Williams v The Queen at p284.
However, that is not what happened in the present case. The accused Gillard was not questioned despite declining to answer questions. If that was his position on the Monday and Tuesday when spoken to by Detective Campbell, it was respected by the police. The questioning on the Thursday and the Friday only occurred after the accused Gillard expressed willingness to answer questions.
I now turn to the events in Adelaide after the accused Gillard was brought back from Brisbane. There was considerable criticism of the police officers for not bringing him before a Magistrate late on the Friday afternoon. In my view, that criticism is entirely misplaced. Detective Sherry was obliged to bring the accused Gillard before the Magistrates Court in Adelaide on the Monday morning pursuant to the order of the Magistrate in Brisbane. He did so. He was not obliged to bring him before a court at any earlier time. He was obliged to ensure that the accused Gillard was cared for appropriately and obviously the Adelaide Watchhouse was a suitable place. Detective Sherry decided to take him to that Watchhouse immediately upon his arrival back in Adelaide. I do not think that was necessary as a matter of law because the State law applicable to arrested persons did not apply. Nevertheless it was done and the accused Gillard was afforded the safety of the Watchhouse and the protection of the sergeant in charge. As I have said, the belief on the part of the police that the relevant provisions of the Summary Offences Act applied was misconceived. They were entitled to interview the accused Gillard provided he consented. They could have done so before taking him to the Watchhouse. They were entitled to take him to the various relevant locations provided he consented and before taking him to the Watchhouse. In my view, the authorisations of the two Magistrates in the circumstances were nullities as the State law did not apply: see Forrest (supra) where similar circumstances existed. However, observance of these provisions of State law inured to the benefit of the accused Gillard because he came under the protection of that system.
It is not suggested by the accused Gillard that there was any further violence or inducement by police other than in the Brisbane Watchhouse. As I have said, I rejected those allegations. He claimed that he participated in the interviews in Adelaide because his will was overborne and also because of the inducements in Brisbane. According to him, their effect was ongoing. I rejected those allegations.
There can be no reason for criticism of the police in their treatment of the accused Gillard in Adelaide. He submitted to questioning freely and voluntarily being well aware of his rights, including his right to remain silent and to have a solicitor present which he declined.
He was removed from the Yatala Prison for questioning in due observance of the law. I found that at all the times of the various interviews in Adelaide, the accused participated freely and voluntarily. There were no circumstances which would agitate, let alone justify, the exercise of discretion to exclude evidence of any of these interviews.
Before parting with this matter, it is appropriate to make two further observations.
The first matter is that in his answers to questions the accused Gillard told the police that he stole the van from a particular location on North Terrace which he pointed out to them. That is, in fact, the exact location from where the vehicle was stolen according to Mr Dinsdale, the owner of the van. That location was not known to the investigating police officers. Their information was that it was stolen from a different location on North Terrace. I was satisfied that the accused Gillard could not have pointed out that location unless he was the thief and therefore involved in the shootings at least in that way. Neither Detective Sherry nor any of the other police officers could have given him that information and it was not published by the media.
The second matter relates to a young man, Mr McMillan, who saw the van at the place where it was burned and the man who probably was responsible for the fire. When questioned in Adelaide, the accused Gillard said that he saw this man whom he described as, “My height, red hair, probably 19 or 20 years of age”.
Mr McMillan was in the habit of dying his hair and it is possible on the day of the shootings his hair could have given the impression of being red. At that time he was aged 20 years. He was a little taller than the accused Gillard. It could not be mere coincidence that the accused Gillard could describe the young man in the carpark in such an accurate way. Detective Sherry and Detective Roy were not aware of this description and could not therefore have provided that information to him. Also, when the accused Gillard was at the carpark on 13th December 1996, he pointed out to the police where he had seen the young man who was Mr McMillan. The police were not aware of that location. It was not published in the media. When Mr McMillan gave evidence, he pointed out the same location. The accused Gillard could only have possessed this information if he was present at the carpark at the relevant time.
It was contended on behalf of the accused Gillard that the evidence of the admissions made on the Thursday and the Friday and, indeed, on the following Tuesday, should be excluded as to admit this evidence would be unfair to the accused given the time he had spent in custody. In my view, there is no merit in this contention. As has been mentioned, the accused Gillard was treated fairly and appropriately at all times and there is no basis in the evidence to conclude that his detention had an effect on him such as to compromise his capacity to take part in police interviews. In my view, the evidence suggests to the contrary.
Finally, it was contended by the accused Gillard that there was another ground to exclude the evidence of the interview on 17th December 1996. It was submitted that Detective Sherry and Detective Roy knew that the accused Gillard was legally represented at that time and that they conducted the interview in the absence of his solicitor: see R v Santos & Carrion (1987) 26 ACrimR 432. The evidence does not support this submission. The accused Gillard did not have a lawyer acting for him at this time. He said that he had applied for legal aid the day before but he had not had anyone assigned to him at this stage. At the commencement of the interview he was informed, once again, that he was entitled to have a friend, relative or solicitor present and he said that he did not want anyone present. He was again informed of his other rights.

When he appeared in the Magistrates Court on the previous day, the duty solicitor appeared for him. It was a brief hearing. It was then that he applied for legal aid. The duty solicitor assisted him to make the application. The accused Gillard said that he was informed that a lawyer would be assigned to him. The assignment was made some weeks later.
I found that the statements made by the accused Gillard to the police were made voluntarily and without any inducement. None of his circumstances since he was spoken to by Detective Lacey at the Hostel either separately or in cumulative effect created any reason to agitate the public policy on the general unfairness discretion to exclude any of this evidence.

SEPARATE TRIALS

Both accused applied for a separate trial. When these applications came to be heard, the accused Preston did not proceed with his application, having reached an understanding with the prosecutor that certain evidence would not be led in the case against him. The accused Gillard proceeded with his application. After Mr Tilmouth had completed his argument, Miss Powell supported the application, the accused Preston having decided to proceed with his application after all.
It is appropriate to first consider the principles upon which an application of this nature is to be considered. They are stated by the Court of Criminal Appeal in R v Harbach (1973) 6 SASR 427 at 432:
“But three things are clear. The first is that when the accused are charged with committing the crime jointly prima facie there should be a joint trial: R v Pullman [1954] SASR 116 at 121; R v Kerekes (1953) 70 WN(NSW) 102, per Owen J at 104. The appellant and Munroe were jointly charged and the Crown case was one of a joint enterprise, at least to rob Meyer and perhaps, if necessary, to kill him. The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against the other, will be before the jury (R v Pullman (supra); Youth v The King [1945] WN 27); and the third is that it may be ordered notwithstanding that one of the accused or each of the accused is trying to cast the blame for the crime on the other (R v Grondkowski [1946] KB 369), though both of these are highly relevant considerations to the exercise of the discretion (Grondkowski at 121).
There may appear to be an anomaly here. It may appear strange that material which would be sedulously kept from a jury, if an accused person were being tried alone, should be allowed to go before them when there is another person in the dock on the same charge. The point is made, with his customary incisiveness, by Dr Glanville Williams, The Proof of Guilt (1955), pp186-187. The answer appears to be twofold: first, that it is the duty of the judge to make it plain to the jury what evidence is inadmissible against any of the accused and to warn them that they must not use such evidence against that accused and that the law assumes that the jury is capable of understanding and willing to heed such admonitions; second, that in such cases, and particularly when each of the accused is seeking to cast the blame on to the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to case it (R v Gibbins and Proctor (1918) 13 CrAppR 134 at 137; Grondkowski; Kerekes (supra)). The second consideration is presumably thought sufficiently cogent for the law to leave it to the judge’s direction and warning about the use of evidence or material, such as an unsworn statement, admissible against one accused but not against the other, to act as a sufficient safeguard against injustice.”

See also R v Collie, Kranz and Lovegrove (1991) 56 SASR 302 per King CJ at pp307ff. In Collie, King CJ approved of this passage of the judgment in Harbach and went on to say at p308:

“The reasons why there should ordinarily be a joint trial of accused persons charged with committing the crime jointly are expressed in the judgment of the Full Court of the Supreme Court (Vic) in R v Demirok [1976] VR 244 at 254:
‘The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.’”

He went on to refer to his own observations in R v Glover (1987) 46 SASR 310 at p312:

“I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together.”

These observations were expressly approved by Toohey J in Webb & Hay v R (1994) 181 CLR 41 at p89.

So, it is with those observations in mind that the present applications had to be considered.
Attention was drawn to the observations of Gibbs CJ, Aickin, Wilson and Brennan JJ in their joint judgment in R v Darby (1982) 148 CLR 668 at 678:
“In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v The Queen (1979) 44 CCC (2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. In cases where there is no, material distinction in the evidence admissible against both alleged conspirators, the trial judge’s advice to the jury that they will either convict or acquit both accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case (cf Lord Simon of Glaisdale in Shannon [1975] AC, at p768).”

For the same reasons expressed by King CJ in Collie, Kranz and Lovegrove at pp309-310, I do not think that passage affects the principles to be applied. Darby was a conspiracy case and as King CJ said such cases sometimes require separate trials where the evidence against one accused is significantly different from the evidence against another.

On behalf of the accused Gillard, it was contended that the Crown case against him is substantially the alleged admissions to the Police in Brisbane and in Adelaide. There are some peripheral matters capable of being proved by circumstantial evidence but without those admissions the Crown would have difficulty in proving a case against him. It was submitted that the overwhelmingly major part of the evidence which would be led at a joint trial is admissible only against the accused Preston. There is a real risk of a miscarriage of justice because the jury might use the evidence in the case against the accused Preston and the strength of the Crown case derived from that evidence to establish or support the reliability of the admissions made by the accused Gillard. The cumulative effect of the various pieces of evidence in the case against the accused Preston would be impermissibly used by the jury when considering the case against the accused Gillard, regardless of the directions given to the jury.
In my view, those contentions fail to appreciate that the vast body of evidence to be led is admissible against both accused. It is quite wrong to say that evidence which implicates one accused is not evidence in the case against the other. It depends very much upon the purpose for which the evidence is led. This type of evidence must not be confused with evidence which is admissible only against one accused.
The evidence admissible against both accused includes the evidence of the fact and circumstances of the murders and the attempted murder, including relevant information about the victims, how the killings were undertaken, when they occurred, how many persons were involved and the gun, vehicle and disguise which were employed. The fact and nature of the relationship of the accused both before and after the killings is relevant in the cases against both of them. There are a number of individual facts and circumstances which, if proved, could enable the jury to draw the inference in that two men participated in the shootings and that they were the accused.
In his written application for an order for separate trials, the accused Gillard particularised four topics of evidence admissible against the accused Preston and not admissible against him which, upon being led, would result in his not being able to receive a fair trial. The first is evidence of association between the accused Preston and the Hells Angels motor cycle group and, in particular, a Mr Tognolini who was a member of the Hells Angels at relevant times. In my view, that evidence is clearly admissible against the accused Gillard and is relevant in the case against him. It could prove a motive for the killings. It could explain why the accused Gillard said to the police what it is alleged he said about bikies and why he was in fear should the jury accept that evidence.
The second piece of evidence is the finding of the Luger gun and ignition switch at the property of the father of the accused Preston at Moonta. That evidence is clearly admissible against the accused Gillard. It is capable of linking the accused Preston to the murder weapon and the accused Gillard to the ignition switch. It is circumstantial evidence which, along with other evidence, could link the accused Gillard to the murders. It is evidence which, together with the admissions made by the accused Gillard to the Police at the Holden Hill Police Station on 17th December 1996, could link him to the murders, particularly as the murder weapon and the ignition switch were found together.
The third and fourth pieces of evidence are alleged admissions made by the accused Preston to others in the absence of the accused Gillard after the murders and are clearly not evidence against the accused Gillard. Clear directions to the jury to that effect were required. However, the mere fact that this evidence is admissible against only the accused Preston does not justify a separate trial in the circumstances. This is not the type of case where a separate trial should be ordered for that reason. I have had regard to the observations of Deane J in Webb and Hay v R (supra) at pp79-80:
“I would, however, wish to stress that it is important that general comments by appellate judges about the desirability of placing the whole picture before the jury should not be misconstrued as an implicit endorsement of the notion that a consideration favouring a joint trial is that it will enable evidence which is inadmissible against a particular accused to be placed before the jury charged with the determination of the guilt or innocence of that accused. Such comments should be understood as referring only to evidence, such as the sworn evidence of one accused, which is admissible against both accused and which might otherwise be unavailable to be led by the Crown. So far as evidence which is not admissible against both accused, such as a confessional or unsworn statement by one of them, is concerned, the fact that it will be placed before the jury charged with determining the guilt or innocence of the other accused should always be seen as a factor militating in favour of separate trials.”

Of course, due consideration must be given to those observations but as Deane J said, the admission of confessional statements made by one accused in the case against him which are not admissible against the other accused is a factor in favour of separate trials. It must be considered along with all of the other factors, pro and con, and in the present case it did not justify a separate trial.

The next matter is the obligation on the Crown to disprove any defence or explanation of each accused which could be consistent with innocence.
As has been seen, the accused Gillard at the voir dire hearing denied statements attributed to him by police officers in off-tape conversations and asserted that what he said in on-tape conversations was either untrue or unreliable. At the trial, the Crown would be obliged to lead all relevant evidence which would bear upon those matters. This evidence would include evidence admissible against the accused Preston which touched matters in the case against him provided it was also admissible against the accused Gillard.
I mention some examples. In the on-tape interviews the accused Gillard said that the accused Preston was the gunman. The accused Preston may raise an alibi. He may say that he was at his place of employment at the time. That matter would become relevant in the case against the accused Gillard. If the accused Preston was at work and was not the gunman, that matter would be relevant to the truthfulness and reliability of what the accused Gillard told the police. The converse is also true. All of the evidence which is capable of proving that the accused Preston was the gunman is also relevant to the case against the accused Gillard for much the same reasons. If it is admissible, it would be admitted against him.
Of course any evidence admissible only against Preston could not be used in the case against the accused Gillard and the jury would be directed accordingly. However, most of the evidence was admissible against both accused and the contention to the contrary is plainly wrong.
Having considered the matters carefully, I reached the view that most witnesses would have to be called twice if there were separate trials.
Miss Powell QC, for the accused Preston, adopted the factual contentions addressed on behalf of the accused Gillard and submitted further grounds for separate trials.
She contended that the evidence of the admissions made by the accused Gillard to the police, involving the accused Preston, as they do, are highly prejudicial to him not only as to their content but also as to the manner in which the evidence was to be given, namely through video and audio tapes.
The cases already referred to establish that the prima facie rule in favour of a joint trial is not displaced merely because there are out-of-court statements made by one accused which are inadmissible against the other accused and implicate that accused in the crime and are prejudicial to him. Of course, each case must be considered in light of its own circumstances. There will be cases which justify the exercise of discretion in favour of separate trials, but the prima facie rule is not easily displaced: R v Holden (1990) 52 ACrimR 32 at p44. R v Conlon (1982) 30 SASR 176 was a case where separate trials were ordered. The two accused were charged with “baby bashing”. They lived together and cared for the baby which sustained serious injuries. The female accused made statements to the police implicating the male accused. He said little to the police. The jury could well have concluded that one of the accused must have inflicted the injuries. There was little direct evidence against the male accused. There was very little evidence to support a joint enterprise. It was a possibility that at the end of the Crown case the female accused might have to be discharged because of a lack of evidence against her which would have left before the jury her out-of-court statements which were inadmissible against the male accused. It was for that reason that Cox J exercised the discretion in favour of separate trials having affirmed the principles mentioned in Harbach and Demirok. However, Cox J made the following observation at p185:
“I emphasize that this is not a decision resting merely upon the weight of the prejudicial evidence that would be introduced were the joint trial to proceed. What weighs with me critically is the nature of the Crown case and, in particular, its relative weakness so far as a joint enterprise is concerned and so far, also, as an individual case against Mrs Conlon, who will be the avenue for the prejudicial evidence, is concerned. Given the state of the case against her, as disclosed by the depositions, it is not too much to say that, if the two accused were to be tried jointly, Mrs Conlon’s objective role would for practical purposes be almost confined to acting as a stalking horse in the Crown’s case against her husband.”

The position in the instant case is very different. There is a vast body of both direct and circumstantial evidence against the accused Preston which is capable of proving the charges against him.

What then of the assertions by the accused Gillard in the out-of-court admissions that he was in fear of his life and that he was in fear of the accused Preston? In Brisbane the accused Gillard did not attribute his fear to the accused Preston but to “bikies”. In Adelaide he said that he was under the impression that he was going to get killed and when asked who he thought would do that, he said the accused Preston, friends of Mr Knowles or someone in gaol. Is this a matter which should result in a separate trial? I did not think so. These statement were made in the context of the period after the murders. There is no suggestion that he was asserting that the accused Preston was otherwise of violent disposition or propensity. I did not think that they gave rise to any prejudice extending beyond the statements made by him implicating the accused Preston in the murders. He claimed that his fear stemmed from their joint involvement in the murders. In the context of all of the evidence, I did not think this matter would loom so large that appropriate directions to the jury would not suffice.
Attention was also drawn to R v Jones & Waghorn (1991) 55 ACrimR 159. In that case the Court took the view that there had been a miscarriage of justice by the refusal of separate trials. The accused were charged with murder. Waghorn made various statements to the police denying any involvement in the crime. Jones made statements not only implicating Waghorn and providing a motive but also statements that he was terrified of Waghorn, that he believed he had a disposition to violence and murder and that he was a professional criminal. The Court concluded that these were grave allegations of the worst possible bad character and leading this evidence at a joint trial would add substantially and unnecessarily to the prejudicial matter with which Waghorn had to contend. Also, the Court regarded it as a matter of importance that Jones did not give evidence and those statements gave the appearance of bolstering the evidence of a Crown witness. In all the circumstances there should have been separate trials. It was the last mentioned matter which led to that conclusion, not merely statements by Jones incriminating Waghorn which were not admissible against him. The Court concluded that the jury could not be expected to keep that evidence out of its mind even if given appropriate warnings.

There was no such propensity or bad character evidence in the present case. There was to be no bolstering of a Crown witness in this way. Jones & Waghorn is instructive as to the exercise of discretion in the circumstances there present but it does not lay down any new or different principle. Each case must be considered on its own facts and circumstances. Conlon and Jones & Waghorn are but examples of circumstances justifying separate trials. They do not suggest that statements out of court by one accused adverse to the other must lead to separate trials.
At all events, as has been seen, the accused Gillard in his statement to the police was not making allegations about the accused Preston of the nature which led the Court in Jones & Waghorn to reach conclusions that there should have been separate trials. Certainly he implicated the accused Preston in the shootings and he expressed fear but not of Preston necessarily or at all. He did not make statements about the character of Preston.
The remaining matter argued on behalf of the accused Preston is that he would be unduly prejudiced because admissions made by the accused Gillard implicating him were recorded electronically by video recording. This argument is based upon observations of Dowd J in R v Piller & Ors (1995) 86 ACrimR 249. He said at p257 that videos tend to be remembered more by juries than what they hear orally and at p258:
“My concern about the current proceedings is that the very strong impact of ERISP [electronic record of interview] interviews distort the effect of directions given to the jury by the trial judge, whose directions are only given orally and lessened, in their effect, because of that fact. The ERISP interviews have such high impact that directions, such as the admissibility of certain evidence against particular accused, are of limited impact.”
I reject this argument. With respect to Dowd J, I must say that my experience causes me to doubt the premise upon which his observation is based. It was suggested in argument that juries are largely conditioned by watching television and consequently are likely to be more influenced by evidence given through that medium than otherwise.
I am unaware of any sound basis for such a contention. If I was to rely upon my own experience, I would suggest the contrary depending upon the type of evidence being given. In some instances it would not matter. In most it could be said that the three dimensional effect of a speaker in the presence of the jury could be expected to be more compelling than the familiar two dimensional effect of television. However, much depends upon the speaker and the subject matter. I only mention those matters because I do not accept the premise upon which the submission is made.
It is not without significance that the law requires electronic recording of police interviews when reasonably practicable: see s74D the Summary Offences Act. This technique is now commonplace in the criminal courts and it has not been suggested that it causes any prejudice to an accused because the evidence of an interview is given in this manner rather than the former method of a witness telling the jury what was said.
I rejected the argument.
For those reasons I concluded that there was no sufficient reason to order separate trials.

Listening Devices Warrants

The accused Preston sought the exclusion of the evidence of the conversations overheard by police officers by reason of listening devices placed in his home at 27 Salter Crescent, Christies Beach.
On 4th September 1996 a warrant was obtained by Detective Sergeant Reichman of the South Australian Police from a Judge of this Court for the installation, maintenance, use and recovery of two listening devices. Pursuant to the warrant, one was installed by police on 18th and 19th September 1996 at those premises.
On 25th September 1996 Detective Sergeant Reichman obtained another warrant from the same Judge for the installation, maintenance, use and recovery of another listening device at the same premises. There had been some problems with the use of the first listening device which prompted the second application for the second warrant. The nature of those problems is irrelevant for present purposes. Another listening device was installed in the same premises on 26th September 1996.
Both warrants were renewed by the same Judge on 18th October 1996 for a period of 90 days and the listening devices were recovered on 14th November 1996 and the warrants were cancelled by the Commissioner of Police on 19th November 1996 pursuant to power vested in him to do so pursuant to s6(9) of the Listening Devices Act 1972.
Conversations involving the accused Preston were overheard through the listening devices and recorded up until at least 3rd November 1996. They were capable of implicating the accused Preston in the murders and the attempted murder. What was said by the accused Preston in the course of some of those conversations was relevant to facts in issue. There are some conversations in which the accused Gillard participated and what he said on those occasions is relevant in proof of the case against him. This evidence was an important part of the Crown case but was not the only evidence against the accused Preston of conversations which implicate him in the shootings. The Crown wished to lead evidence of these conversations by playing tape recordings to the jury.
The warrants were issued pursuant to s6 of the act. That Act prohibits the use of listening devices to overhear, record, monitor or listen to any private conversation without the consent of the parties to that conversation and provides that such conduct is an offence with a penalty of a fine of $5,000 or imprisonment for two years or both: s4. However, that prohibition does not apply in relation to the use of a listening device pursuant to a warrant issued by a Judge of this Court: s6(1). An application for a warrant may be made by a member of the police force for the purposes of the investigation of a matter by the police or by other specified persons: s6(2). Section 6(3) provides that the application must be in writing, setting out the grounds on which the application is based and specify the period for which it is requested that the warrant be in force and give reasons for the application. The application may request that the warrant authorise entry onto specified premises. Detective Sergeant Reichman was entitled to make the application and he observed the requirements of s6(3).
The power to issue the warrant is set out in s6(6):
“6(6).. A judge may issue a warrant under this section if satisfied -
(a).... in the case of a telephone application, that because of urgent circumstances it was necessary to make the application by telephone;
(b) that the issue of the warrant is justified having regard to -
(i).... the extent to which the privacy of any person would be likely to be interfered with by use of a listening device pursuant to the warrant;
(ii)the gravity of the criminal conduct being investigated;
(iii).. the extent to which information that would be likely to be obtained by use of a listening device under the warrant would be likely to assist the investigation;
(iv)the extent to which that information would be likely to be obtained by methods of investigation not involving the use of a listening device; and
(v).... the extent to which those methods would be likely to assist the investigation or to prejudice the investigation, through delay or any other reason; and
(c)... in the case of a warrant authorising entry onto premises, that it would be impracticable or inappropriate to use a listening devices pursuant to the warrant without entry onto the premises.
Section 6(7) provides that the warrant may specify conditions relating to the use of a listening device. If it authorises entry into premises, it may restrict entry to within specific hours during a day. It may provide that entry may be made without provision, first being sought or demand first being made and, if it does so, may specify the measures by which entry may be gained, it must specify the period for which it is to remain in force (not being greater than 90 days) and it may be renewed.
The Act does not specify the form in which a warrant is to be issued and is silent as to what is to be disclosed on the face of the warrant. Rules of this Court were made and are known as the Listening Devices Rules 1992. The Rules provide for the method of making an application for, and the renewal of, a warrant with which Sergeant Reichman complied, and also for the form of the warrant.
The warrants issued by the Judge on 4th September 1996 were in the following terms:
“To: Robert John Reichman a member of the South Australia Police.
WHEREAS application has been made to me by Robert John REICHMAN, a member of the South Australia Police for a warrant authorising the use of listening devices.
AND WHEREAS I [the name of the Judge], a Judge of the Supreme Court of South Australia, am satisifed that the issue of the warrant is justified upon the conditions hereinafter appearing.
NOW THEREFORE I, pursuant to Section 6 of the Listening Devices Act, 1972, HEREBY AUTHORISE YOU and any police officer acting upon your authorisation:-
1...... To use two listening devices to overhear, record, monitor, or listen to any private conversation, which may take place in or on premises situated at Flat 5, 14 Washington Street, HILTON, in the State of South Australia.
2.To enter upon the premises referred to in paragraph 1 hereof, either alone or in company with other members of the South Australia Police for the purpose of installing, maintaining, using or recovering the listening devices without permission first being sought or demand first being made at any time, and entry to the said premises may be effected by means thought appropriate in the circumstances.
AND subject to any renewal thereof, this warrant shall be in force for a period of 45 days from the date hereof.
DATED the 4th day of September 1996.

[the signature of the Judge]
A Judge of the Supreme Court of South Australia.”

The warrant issued on 25th September 1996 was in the same terms except that it was stated to be in force for a period of 24 days. The warrants were in the form prescribed in the Rules

It is the contention of the accused Preston that both warrants are invalid by reason of inadequacy in the recital. They fail to disclose their validity on their face. As has been seen, the Judge merely recited that he was “satisfied that the issue of the warrant is justified upon the conditions hereinafter appearing”. No grounds for that state of satisfaction are stated. None of the matters set out in s6(6)(b) and (c) are mentioned. I have excluded the matter set out in s6(6)(a) because the applications were not made by telephone. Consequently it is argued that there is nothing to indicate that the Judge had reached the required state of satisfaction as set out in s6(6)(b) and (c) and it could be taken that the Judge had not reached that state of satisfaction. If invalid, then the obtaining of the evidence by the listening devices was unlawful and it should not be admitted in the exercise of discretion.
I rejected these arguments. The Act is silent as to the requirements to be disclosed on the face of the warrants. The warrants were issued by a superior court and failure to mention in the warrants the jurisdictional basis for issuing them does not render them invalid: Ousley v R (1997) 148 ALR 510. In that case the High Court was concerned with the validity of warrants issued by the Supreme Court of Victoria for the installation and use of listening devices pursuant to the Listening Devices Act 1969 (Vic) in connection with the investigation of offences of drug trafficking under legislation in that State. Section 4A(1) of the Listening Devices Act (Vic) provides:
“On complaint made by a member of the police force that he or she suspects or believes:
(a).... that an offence has been, is about to be or is likely to be committed; and
(b)that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary:
the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device.”

The section goes on to specify some seven matters which must be set out in the warrant: see s4A(4). It is not necessary for present purposes to mention all of these matters but they include the offence in respect of which the warrant is granted, the name of any person whose private conversation may be recorded and the premises at which the listening device is to be installed. Section 4A(8) provides that regulations may provide that the powers of the Supreme Court to issue a warrant may be exercised by the County Court or a Magistrates’ Court. This Act does not identify any particular form of warrant but a form is to be found in the Criminal Appeals and Procedure Rules 1988 (Vic). The warrants did recite that the Supreme Court was satisfied that there were reasonable grounds for the suspicion or belief of the police officer seeking the warrant that an offence had been committed or was about to be committed: s4A(1)(a). However, the warrants did not recite that the Court was satisfied that the use of a listening device was necessary for the purpose of an investigation into an offence: s4A(1)(b). It was contended that each warrant was invalid on its face for this reason. It was also contended that by not reciting any of the seven matters which I have mentioned, it must be taken that the court was not in fact satisfied as to those matters and accordingly lacked authority to issue either warrant. The warrants were in the form prescribed by the rules. There is no other statutory provision as to what must be contained in a warrant issued under that Act.

Toohey, McHugh and Gummow JJ in separate judgments, rejected these contentions and held that the warrants were not invalid on the ground that they recited the satisfaction of the issuing Judge in terms of s4A(1)(a) but not s4A(1)(b). Other provisions of the Act, secs 4A(3) and (4) set out all of the matters which must be disclosed on the face of the warrant and they are practical matters. Toohey J, following the decision of the Full Court of the Federal Court in Karina Fisheries Pty Ltd v Mitson (1990) 96 ALR 629, said that as there is no statutory requirement to disclose jurisdiction on the face of the warrant and the omission of one precondition cannot, of itself, invalidate the warrants: see p517 and pp518-519. McHugh J expressed the same view at p539 where he said that where the legislation specifies what the warrant must contain, nothing more can be required and he also followed Karina Fisheries. Gummow J, at p553, was of the same opinion. He expressly approved a passage in the judgment of the Victorian Court of Appeal when the matter was on appeal to that Court: (1996) 87 ACrimR 326 at 334:
“In our opinion neither of these recitals is required by the statute and to hold that, if they are not recorded on the face of the warrant, the warrant is bad would be to add impermissibly to the legislative statement of what is to be specified in the warrant. That is not to say that it may not be desirable to record the judge’s satisfaction with the paras (1) and (b) matters on the face of the warrant but we consider that to require such a statement to be made would be to add to the list of matters specified by the legislature as the matters that must appear in the warrant when the statutory list was intended to be an exhaustive list of the mandatory requirements.”

If the failure to mention one matter does not affect validity, the failure to mention any matters has the same consequence as is acknowledged by the Victorian Court of Appeal and by Gummow J.

Gaudron J concurred in the result of the appeal as proposed by Toohey, McHugh and Gummow JJ but for different reasons. Her Honour held that the warrants were invalid on the ground that the matters set out in both s4(1)(a) and (b) should be included in the warrant. She was influenced by the fact that inferior courts could also issue warrants but did make an observation which supports the view taken by the other judges which have been mentioned. She said, at p524:
“If the Act provided for warrants to be issued by and only by the Supreme Court, it may be that it would properly be construed as evincing an intention that a warrant need not state the matters upon which its validity depends. Such a construction might properly follow from the Act’s silence in a context in which power to issue warrants was conferred on a superior court. However, different considerations apply where, as here, power is also conferred on counts lower in the judicial hierarchy.”
In my view, the warrants were valid and the argument failed. Attention was drawn to the judgment of Jacobs J in Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361 at p371 in support of the contention to the contrary. There a search warrant had been issued by an Inspector of Police pursuant to s52 of the Controlled Substances Act 1984. It is provided in s52(5) that the warrant shall not issue unless the issuing authority is satisfied on information given on oath that there are reasonable grounds for suspecting that an offence against the Act has been, is being or is about to be, committed and that a warrant is reasonably required in the circumstances. The Act was silent as to the form of the warrant and the recital in the warrant was that the Inspector was “satisfied on information upon oath received by me this day that there are reasonable grounds for suspecting that there is equipment used in connection with a prohibited substance and that a warrant is reasonably required in the circumstances”. Jacobs J held that the warrant was bad on its face because it recited a state of satisfaction which, if it had any meaning at all was not the state of satisfaction required by the statute and this was so regardless of what was the true state of satisfaction. The same view was taken on appeal. This case must be distinguished on the basis that it was disclosed that the state of satisfaction expressed in the warrant was not that required by the statute. As Cox J, with whom O’Loughlin J agreed, said at p392:
“It is one thing for a warrant to be silent about the basis for its issue, leaving the reader to assume, perhaps, that all was done with due regularity. (But cf Reg v Tillett; Ex parte Newton (1969) 14 FLR 101). It is a very different thing to state, even unnecessarily, the jurisdictional grounds and then to get them wrong.”
And at p393:
“It is really a question of what conclusion, if any, one is disposed to draw from an inappropriately expressed recital. (Cf Reg v Tillett; Ex parte Newton (supra).”
Such is not the case here. There was no such statement at all let alone an incorrect statement. There is no reason to suppose that the Judge who issued the warrants in the present case did so upon wrong jurisdictional grounds.
I should mention a further argument of Miss Powell.
As has been seen, there are three jurisdictional requirements in s6(6) of the Act. The first relates to applications by telephone and is inapplicable to the present matter. The two which are applicable are those set out in s6(6)(b) and (c). A recital that the Judge is satisfied that the issue of the warrant is justified addresses on the matters set out in s6(6)(b) and not (c). Where there is no legislative statement of what is required to be stated in the warrants, the correct approach, where the warrant authorises entry into premises, is that the matters in s6(6)(b) and (c) must be recited.
I did not accept this argument. In my view, it is too narrow an interpretation to restrict the meaning of the words in the recital: “am satisfied that the issue of the warrant is justified ...” to the matters in s6(6)(b). It must be accepted that they are the commencing words of that subsection but clearly the warrants in their terms could not be issued unless the Judge was also satisfied that it would be impracticable or inappropriate to use the listening devices within the home of the accused Preston which necessarily involved entry onto those premises. In the circumstances, the true construction of the recital in the warrants is that the issue of the warrants in their terms and scope was justified which necessarily meant being satisfied about all of the matters set out in s6(6), including s6(6)(c).

Mr Millsteed contended that the true construction of s6(6) does not require satisfaction about the matters in both s6(6)(b) and (c) but I think it does. The subsection expresses these matters conjunctively and I saw no reason to construe the provision differently.
However, it is not a matter of consequence in view of the decision in Ousley and its application here.
There is another matter. Reliance may also be placed upon the presumption of regularity as a majority of the members of the Court in Ousley were of the view that the presumption did apply where a warrant was issued by a superior court even though the act was administrative and not judicial: see Toohey J at p518, Gaudron J at p524 in the passage already cited, and McHugh J at pp537-8. Gummow J took the view that because the act of the Court was essentially administrative in nature, the presumption of regularity did not assist. He went on to say at p555:
“The more appropriate principle is that the validity of an administrative act or decision and the legality of steps taken pursuant to it are presumed valid until the act or decision is set aside in appropriate proceedings (Hoffman-La Roche v Trade Secretary [1975] AC 295 at 365. See Campbell, “Inferior and Superior Courts and Courts of Record” (1997) 6 Journal of Judicial Administration 249 at 258; Aronson and dyer, Judicial Review of Administrative Action (1996) p653). Where ‘acts are of an official nature ... everything is presumed to be rightly and duly performed until the contrary is shown.”

Gummow J also referred to the judgment of Mason CJ and Toohey J in Murphy v R (1989) 167 CLR 94 where they stated that the admissibility of evidence obtained through the use of a listening device, depended upon the existence of a warrant rather than the sufficiency of the ground for granting it. It was considered whether the presumption of regularity could be displaced by a collateral attack on the warrant. His Honour referred to Love v Attorney-General (NSW) (1990) 169 CLR 307 where it was held that the issue of warrants under similar legislation involves the exercise of power which is essentially administrative in nature (p555) and went on to say at p556:

“However, once it is recognised that an administrative act is presumed to be regular until set aside, the statement of principle from Murphy outlined earlier still stands, notwithstanding the subsequent recharacterisation of the nature of the grant of a warrant in Love. In the present case, while the trial judge was required to determine whether the warrants were regularly ‘granted under s4A’ of the Act, the warrants were otherwise to be taken as effective until set aside in proceedings for judicial review.”

Kirby J expressed the view, at p571, that because the issuing of the warrant was an act administrative in character, “the status for other purposes of the person performing it does not have the same significance, historically or legally, to attract immunity from a challenge to the validity of the warrant.

Whatever approach is taken, I was satisfied that the warrants are valid and no occasion arises for the exclusion of the evidence obtained in consequence of their issue.
It is unnecessary to consider the argument that the warrants may not be regarded as valid because they were issued in the form provided by the Listening Devices Rules and Form A. It was argued that the Rules are themselves invalid because the Court only has power to make rules regulating proceedings, practice or procedure: Cleland v Boynes (1978) 19 SASR 464 and Commonwealth Bank v Forshaw (1990) 55 SASR 247. It is contended that the prescription of a form to be used when issuing warrants under the Act does not fall within the scope of “practice and procedure”: Ousley per Toohey J at p518 and McHugh J at p543. In that case the rule making power in s25(1)(f)(i) of the Supreme Court Act 1986 (Vic) was not regarded as sufficient to support rules relating to administrative acts unrelated to legal rights but the rule making power in s50 of the Interpretation of Legislation Act 1984 (Vic) is sufficient because it encompasses administrative as well as judicial function.
As I say, I did not think it is necessary to decide this point as, in my view, the warrants were valid without having to rely upon the prescribed form.
Having concluded that the warrants were valid, there was no basis for exclusion of the evidence obtained through the listening devices.
However, if I was wrong in that conclusion and the warrants were invalid, I would have exercised my discretion to admit the evidence obtained through the listening devices. If the warrants were invalid, the evidence would have been obtained illegally in at least two respects. First, in contradiction of s4 of the Act and secondly in consequence of illegal entry in the home of the accused Preston. It must be acknowledged that illegal activity of that kind is a serious breach of the law and a substantial invasion of privacy. It is to be expected that should police officers disregard the provisions of the Act, it is very likely that evidence thereby obtained illegally would be excluded.
However, such is not the case here. Sergeant Reichman observed the provisions of the Act to the letter. He made application to a Judge of the Court in the manner and form provided by the Rules made by the Judges. The grounds of his application were contained in his affidavit. The Judge heard the application and issued the warrant substantially in the form laid down in the Rules. Sergeant Reichman acted entirely properly in every respect.
He installed the listening devices pursuant to the terms of the warrants. He had no reason to suppose that the warrants issued by a Judge of this Court in accordance with its own established procedures were in any way suspect and considered that he was behaving entirely lawfully, properly and within the law. Also, assuming illegality, it did not affect the cogency of the evidence. There was no suggestion that Sergeant Reichman attempted to circumvent the law in any way or that he was lax or indifferent to correct procedures.
The charges against the accused are of the most serious kind and the evidence obtained was an important part of the Crown case, particularly against the accused Preston. Paying due regard to the policy of the Act preventing the use of listening devices unless authorised, the case for exercising the discretion in favour of admitting the evidence is, in my view, overwhelming. Application of the considerations in Bunning v Cross (1978) 141 CLR 54 in this balancing exercise lead to this conclusion. This view was taken in Ousley by Toohey J at p519, Gaudron J at p572 and Kirby J at p573.
Ms Powell sought to make a point from the evidence disclosed in the witness declaration of Sergeant Reichman which reveals that although the warrant issued on 4th September 1996 authorised the case of two listening devices, only one was installed pursuant to that warrant. It was installed in the vicinity of the loungeroom. The second warrant was obtained to permit the use of another listening device in the kitchen. That warrant also authorised the use of two listening devices but only one was installed. It is submitted that if only one listening device was installed on 18th and 19th September 1996, the second warrant to instal the device on 26th September 1996 was unnecessary, excessive and abusive, and consequently the evidence obtained should be excluded for that reason.
I rejected that submission. I was informed without objection that the first warrant mentioned two listening devices because it was intended to instal equipment so as to give a stereo effect, but that was not done. The first warrant was valid and the police acted within the authority given by the warrant. I expect that the second warrant was obtained out of an abundance of caution when another device in another part of the house was required.
There was no reason to exclude the evidence on public policy or fairness grounds.
I now mention another matter going to discretion which was mentioned briefly before the commencement of the trial and at greater length during the course of the trial when evidence as to police activity in relation to the placement of listening devices was to be given. The accused Preston was, of course, not present when that was done and was unaware of what the police did but he pointed to evidence which, he submitted, suggested that police carried out illegal activity in order to secure his absence from his home in order to complete the installation of a listening device. I mention that evidence.
On 18th September 1996 the first listening device was installed in the home of the accused Preston. At about 8.00 am police officers involved in that activity, and in surveillance of the accused Preston, met at a nearby oval for a briefing. Detective Sergeant Sharp was in charge of covert surveillance of the accused Preston by police officers. They were instructed to keep the accused Preston and his defacto wife, Ms Pitts, under surveillance, which occurred.
Sergeant Reichman was informed that both Ms Pitts and the accused Preston had left the home at about 9.00 am by motor vehicle. They drove to a carpark near the Noarlunga Railway Station and the Colonnades Shopping Centre at Beach Road, Christies Beach, which was a short distance away from the home. The accused Preston went to work at the TAFE College near the shopping centre and Ms Pitts returned to the home in the vehicle. At about 9.50 am, Ms Pitts again left the home in the motor vehicle and returned to the carpark where she left the motor vehicle and went to the railway station and caught a train into the city at 10.04 am. Sergeant Reichman was informed of these matters. He entered the home with two technical officers at a time between 10.35 am and 10.45 am. He was in radio communication with the surveillance police officers and with Sergeant Sharp by mobile telephone.
At 11.35 pm he received information that the accused Preston had left the TAFE College and was walking towards the motor vehicle in the carpark. He immediately informed the technicians. About five minutes later, Sergeant Sharp informed him that the accused Preston would not be leaving the car park immediately as his vehicle had a flat tyre. Nevertheless Sergeant Reichman and the two technicians left the home a little after 11.40 am. The listening device had not been satisfactorily installed.
Sergeant Reichman and the technicians returned on the next day and completed the installation. There was another briefing that morning at about 9.30 am to 9.35 am. Surveillance personnel were instructed by Sergeant Reichman that it may be necessary to speak to Ms Pitts or the accused Preston to allow sufficient time to complete the installation. The flat tyre was mentioned as a possible topic to discuss with the accused Preston should such an approach be necessary. At this time the accused Preston was again at the TAFE College and Ms Pitts was on the way to the City. They were both under surveillance. The vehicle was again in the same car park.
The technicians and Sergeant Reichman again entered the house at about 9.55 am. After about 10 minutes, he was informed that the accused Preston had again left the TAFE College and was walking back to the vehicle. He again instructed the technicians to leave and then instructed two police officers, Detective Adams and Detective Martin, to approach the accused Preston in conversation if he went to the vehicle.
Those police officers did approach the accused Preston and spoke to him about the flat tyre. At that stage the task of installing the listening device had not been completed. Detective Adams and Detective Martin took the accused Preston to the Christies Beach Police Station and there had a conversation with him. In that way, they delayed him and the installation of the listening device was completed. Although a further listening device was installed in the house on 26th September 1996 in another room to permit more effective electronic surveillance, it may be accepted that the installation of the first listening device was necessary to enable the impugned conversation to be overheard.
The existence of the flat tyre was of benefit to Sergeant Reichman and his technicians. On 18th September 1996 it caused a delay which enabled them to get out of the house without the risk of being discovered by the accused Preston. On the next day, it afforded to the police an excuse to speak to the accused Preston and to delay him in case he was intending to return to the house.
The suggestion is that a police officer, or police officers, damaged the tyre of the vehicle to cause it to go flat in order to prevent the accused Preston from going home and discovering Sergeant Reichman and the two technicians in his house. Such conduct, in damaging the tyre, would plainly be illegal as it would constitute a criminal offence.
Sergeant Sharp carried out surveillance of the accused Preston on 18th September 1996. After Ms Pitts had returned to the car park, he took up a position to watch the motor vehicle at about 10.00 am and continued to do so. He saw the accused Preston approach the motor vehicle at about 11.35 am. From his action, Sergeant Sharp could see that the accused Preston had seen that a rear tyre of his vehicle was flat and he changed the wheel. He then went to his house.
Detective Sharp gave evidence on a voir dire hearing as to whether the evidence obtained through the listening devices should be excluded in the exercise of discretion. He said he did not see anyone approach the vehicle or interfere with it whilst he had it under surveillance. He gave no instructions to any police officer to interfere with the motor vehicle. However, he did see people in the vicinity but he did not see anyone go to the vehicle.
On the next day Sergeant Sharp again saw the motor vehicle in the car park. The accused Preston left the TAFE College at 9.56 am and went to the motor vehicle. He was about to open it when he was approached by Sergeant Adams and Detective Martin who spoke to him and then took him to the police station.
I saw no reason not to accept the evidence of both Sergeant Reichman and Sergeant Sharp. I accepted both of them as witnesses of truth. Neither of them gave any instructions for the interference with the motor vehicle. As far as Sergeant Reichman was concerned, the flat tyre was a fortuitous event which was of benefit to him. I accept that Sergeant Sharp did not see anyone interfere with the motor vehicle or give instructions that it should be done.
Detective Martin also gave evidence. He was part of the surveillance team on 19th September 1996. He kept the motor vehicle under observation in the car park. When he spoke to the accused Preston at the car park, he understood his purpose was to delay him because of what was occurring at the house. He and Sergeant Adams spoke to him about the flat tyre on the previous day. Detective Martin told the accused Preston that they were investigating offences which had occurred on motor vehicles in that area on the previous day and that his vehicle fitted the description that had been described to them as having been the subject of interference. The accused Preston said that a tyre on his vehicle had been flat the previous day and he had assumed he had a puncture.
The accused Preston also gave evidence. He said that when he took the tyre to be repaired on the Saturday, he saw evidence of such a puncture on the outside exposed wall of the tyre and it had the appearance of having been caused by a knife. According to the accused Preston, one of these police officers told him, at the car park, that the tyre had been stabbed. Detective Martin denied that allegation.
I did not accept the evidence of the accused Preston. I preferred the evidence of Detective Martin and I found that nothing was said by him or Sergeant Adams about the tyre having been stabbed.
At the police station, the police officers took a statement from the accused Preston and purported to check the motor vehicle for finger prints. Finger printing was a ruse and part of the delaying tactics. In all, the accused Preston was delayed by those delaying tactics for about half an hour.
According to Detective Martin, illegal interference with motor vehicles in the car park was common place and the deflation of tyres was not uncommon. He agreed that his involvement with the accused Preston on 19th September was in fact a ruse and not a genuine police investigation.
Ms Pitts also gave evidence. According to her, the accused Preston told her about the flat tyre on 18th September but did not say that it had been stabbed. She saw a split in the tyre that night when she tried to put air in it. She said the tyre had previously been in good condition.
The evidence did not justify a finding even on the balance of probability that the police were in any way responsible for the deflation of the tyre on 18th September 1996.
If the tyre was deflated by a puncture by knife of the wall of the tyre, the evidence does not disclose when that occurred. I accept that Sergeant Sharp did not see it occur. It could have occurred when he was not looking or before he took close surveillance of the vehicle in the car park. There was no evidence as to how long it would take for the tyre to deflate if punctured as described by the accused Preston and Ms Pitts if their evidence is true. I did not regard either of them as reliable and truthful witnesses and I am not prepared to accept their evidence that such damage to the tyre was present without other supporting evidence. No such evidence was called, including from staff at the tyre retailer where the tyre was seen. So, there is a paucity of reliable evidence that a knife was used.
Also, it is appropriate to look at the position of the police. If they wanted to delay the accused Preston by deflating the tyre, they could simply have undone the valve. The tyre could be expected to deflate quickly and there would be no evidence of damage. No evidence of interference would exist.
It is possible that someone else interfered with the vehicle without being seen by the police. That matter has not been proved but the possibility does exist given the evidence of Detective Martin who was a local police officer.
Whilst suspicion clearly falls upon the police, it was not proved that they were responsible and consequently it is not established that they were guilty of any illegal or unlawful conduct.
On the next day they delayed the accused Preston deliberately by a ruse to suit their own ends and for a period of about half an hour. This conduct was neither illegal nor unlawful. It did not affect, in any way, the probative value of the evidence which was obtained through the listening devices. It did not cause the accused to provide the evidence but only assisted in the means of overhearing the conversations. There was no deception for an improper purpose. I do not think the police should be criticised for utilising this tactic to secure legitimate ends.
I ruled that the evidence of the incidents on 18th and 19th September 1996 did not afford any reason to exclude the evidence in the exercise of discretion.

[1998] SASC 6984

27 November 1998