R v Jeffrey Gilham

[2008] NSWSC 88

CITATION:	R v Jeffrey GILHAM [2008] NSWSC 88
HEARING DATE(S):	04-07/02/2008, 11-12/02/2008
JUDGMENT DATE :	18 February 2008
JUDGMENT OF:	Howie J at 1
DECISION:	The application to exclude part of the ERISP and the evidence of the walk through is refused.
CATCHWORDS:	EVIDENCE - Admissions - obtained during unlawful detention - whether should be admitted - CRIMINAL LAW - whether detention after arrest unlawful .
LEGISLATION CITED:	Crimes Act 1900 (now repealed) - s 352 Evidence Act 1995 - ss 85, 90, 135, 137, 138, 138(3), 138(3)(a), 138(3)(b), 138(3)(d), 138(3)(f), 138(3)(g)
CATEGORY:	Procedural and other rulings
CASES CITED:	Williams v The Queen (1986) 161 CLR 278 Foster v The Queen (1993) 67 ALJR 550 R v Horton (1998) 45 NSWLR 426 Em v The Queen [2007] HCA 46; 81 ALJR 1896 Michaels v The Queen [1995] HCA 8; 184 CLR 117 DPP v Carr NSWSC 194; 127 A Crim R 151 DPP v Coe [2003] NSWSC 363
TEXTS CITED:	clause 1 of Article 9 of the International Covenant on Civil and Political Rights
PARTIES:	Regina v Jeffrey Gilham
FILE NUMBER(S):	SC 2006/00002766001
COUNSEL:	M Tedeschi QC with K Shead - Crown P Boulten SC with S Buchen - Accused
SOLICITORS:	S Kavanagh - Crown Murphy's Lawyers Inc - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HOWIE J

MONDAY 18 FEBRUARY 2008

2006/2766001 REGINA v Jeffrey GILHAM

JUDGMENT – on admissibility of evidence

1 HIS HONOUR: This is an application by Notice of Motion filed for the accused that I reject certain evidence that the Crown proposes to lead in the trial of the accused for the murder of his parents. The evidence concerns questioning of the accused by police in the hours shortly after the police learned of the death of the accused’s mother, father and brother on Saturday 28 August 1993. In particular the accused objects to the reception into evidence of that part of the video-recorded questioning (“the ERISP”) that took place after 9.07 on the morning of 28 August and the video-recorded questioning of the accused at his home in what is referred to as “the walk through” that took place at about 4pm that afternoon.

The facts

2 The facts for the purpose of this voir dire hearing are generally uncontentious. Police arrived at the scene of the triple killing at about 4.50am. The accused was sitting on the footpath outside his home that had been set on fire sometime earlier. At some stage he was placed into an ambulance where he was in the company of a neighbour.

3 At about 5am Detective Parsons arrived at the scene. She was on general duty the night before and attended as a result of a broadcast to the vehicle in which she had been travelling. Det Parsons spoke to the accused briefly, trying to ascertain what had happened. During this conversation he informed the officer that his brother told him that he had killed his parents and “lit them”. He also said that he thought he had stabbed his brother and killed him. The detective recorded this conversation as it occurred. She then went into the house.

4 At about 5.35am Detective Ahern arrived. He became the officer in charge of the investigation. Det Parsons told him the import of her conversation with the accused. At some time shortly after 5.30am Det Ahern told certain police to convey the accused to Sutherland Police Station. It was accepted that Det Ahern wanted to question the accused.

5 When he arrived at the police station the accused was placed in the muster room and given a cup of coffee. A police officer was told in effect to keep watch upon him. I accept that at this stage had the accused sought to leave the police station he would have been refused. Further I accept that at this stage Det Ahern suspected that the accused had committed a criminal offence at least in respect of the death of his brother. He had not at that stage determined to charge the accused with any offence but wished to interview him to determine what had happened in the house.

6 Shortly after 8am Det Ahern spoke to the accused in the company of Detective Marks. That short conversation was not electronically recorded. The officer according to his statement asked the accused to tell him what happened. The accused allegedly admitted killing his brother after he had learned that his brother had killed his parents. He was asked if he killed his parents and denied that he did. The accused was asked whether he was agreeable to be interviewed and said that he was. He was then cautioned.

7 The ERISP commenced at 8.22am. The accused was again cautioned. He told police that he was born in 1970 so that he was then aged 23. He was a student studying engineering at university. The accused was questioned at length about the events surrounding the death of his parents and brother. In effect he maintained his version that he had killed his brother upon discovering that his brother had killed his parents and set fire to them. In effect he was claiming that he had been provoked into killing his brother by his brother’s actions in killing his parents. During the course of the questioning the police evinced some disbelief, or at least doubt, about the veracity of the accused’s account.

8 At 9.07am the interview was interrupted when the videotape ejected from the recorder. At that stage the accused had answered about 250 questions. The relevance of this interruption to the arguments placed before me will become obvious later in this judgment. The tape was changed and the interview continued. At questions 451 and 452 the accused was asked whether he would be prepared to accompany police to the house and “indicate certain things to us [where] you were standing and ………where certain things actually occurred”. The accused replied, “Yeah, fine, yeah.” The accused was interviewed by another police officer and made no complaint about the manner in which the interviewing police had questioned him. The interview concluded at 9.51am.

9 The accused remained at the police station. He was examined by a doctor and provided a sample of his blood at about 12.30pm. At the end of the medical examination he again indicated a willingness to accompany police to his home after being warned that he was not obliged to do so. The accused and police went to the house but on learning that the deceased bodies were still in situ it was decided, not unreasonably, to postpone the walk through. The accused was returned to the police station.

10 At about 1pm the accused was formally charged with the murder of his brother. At about 2.52pm the accused was again asked whether he was prepared to accompany police to the house and again informed that he was not obliged to do so. The accused said, “I know. I don’t mind”.

11 At 3.59pm the recording of the walk through commenced and the accused agreed to wear a microphone. It took about half and hour. The accused was then returned to the police station. He was placed before an authorised justice the next morning and was refused bail.

The evidence

12 In evidence before me Det Ahern acknowledged that at the time the tape ejected during the interview he turned his mind to the fact that a bail court would have been sitting in Sydney but considered that he was not required to take the accused to the magistrate at that time because he was in the middle of interviewing him and was investigating all three murders. He believed that he was able lawfully to continue to interview an accused before taking him before a court in order to determine what, if any charge, was to be laid before the court. Detective Marks also gave evidence.

13 Evidence was called on behalf of the accused that on Saturday 28 August 1993 bail courts were sitting both in the Central Local Court and at Parramatta. I accept that at 9am there was a bail court to which the accused could have been taken. It is probable that a duty solicitor would have appeared for him and made a bail application. I also accept that had the accused raised with the solicitor the fact that the police were seeking to further interview him, he would have informed the accused of his right to silence and that no inference could be drawn against him if he exercised that right.

14 At some time in the morning, roughly about 9.30am a friend of the Gilham family, Ms Patterson, attended at the police station asking after the welfare of the accused. She spoke to uniformed police at the front desk. She explained that she was not a member of the family but asked if she could see the accused. She was told that she could not as he was helping them with their inquiries. She asked whether he needed a lawyer and they said he did not. There is no evidence that Det Ahern was ever made aware of this event.

A. The recorded interview

15 I am prepared to find on the balance of probabilities that after 9.07am, when the tape ejected from the recorder, the accused was being held in illegal custody: he was being detained merely for questioning and not to take him before a court. The common law relevant at the time was that the police officer was required to take a person in custody before a court without unreasonable delay; that is as soon as it was reasonably practicable to do so: Williams v The Queen (1986) 161 CLR 278 per Mason and Brennan JJ at 295, 300-301, per Wilson and Dawson JJ at 306. Section 352 of the Crimes Act 1900 (now repealed) was read in accordance with the common law and gave a police officer no power to detain a person simply for questioning: Foster v The Queen (1993) 67 ALJR 550.

16 By 9.07am it was reasonably practicable to take the accused before a justice then sitting at Central Local Court. The police had sufficient evidence to charge him with the murder of his brother and had reached the conclusion that they would charge him with that offence. True it was that they were still investigating the deaths of his parents and had not determined whether to charge him with those deaths. But that did not permit them detaining him in order to investigate those deaths rather than to take him before a justice on the charge of murdering his brother. Had they done so, they could have sought to further interview him in relation to the death of his parents.

17 I do not accept that Det Ahern had any other motive in failing to take the accused before a justice other than to continue the interview in which the accused was voluntarily involved in order to complete his investigation of the death of the parents. Although the officer may have hoped that the accused would confess to the killing of his parents as well as his brother, I do not accept that he continued the interview for the purpose of obtaining a confession by withholding the accused from appearing before a justice. Nor did he continue the interview in order to deprive the accused of legal advice. He did not continue the detention of the accused in order to exert pressure upon him in the hope of obtaining a confession to the killing of his parents.

18 The accused did not give evidence before me. There is no evidence of his state of mind at the time preceding, or during, the interview other than that to be obtained from his recorded conversations with police. He appears to be prepared to be interviewed in order to give his account of the events in the house and, in particular, to exculpate himself from the killing of his parents. There is no evidence that he wished to speak with a lawyer or any other person before being interviewed. He appears to be a mature and intelligent adult quite capable of answering police questions even where they express doubts about his veracity. The interview was video-recorded and there is nothing in it that indicates to the contrary of what I have just stated. The fact that he was quite prepared at all times to remain in police custody to participate in the walk through interview and to cooperate with other police investigations that day is consistent with this attitude.

The balancing of interests

19 The fact that part of the ERISP was obtained while the police were unlawfully detaining the accused engages s 138 of the Evidence Act (“the Act”). Under that section the court has a discretion to admit the evidence notwithstanding that it was unlawfully obtained. The discretion is in the form of a judgment involving the balancing of competing considerations to determine whether “the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained in the way in which the evidence was obtained”. The section sets out a number of matters that the court is to take into account in forming that judgment. Clearly it is for the Crown to satisfy me that I should admit the part of the interview to which objection has been taken.

20 It should be understood that the court takes seriously the deprivation of the liberty of an individual however well intentioned the actions of the police might have been or however reasonable they might have appeared to be at the time. The importance of bringing an end to investigative procedures within a police station as soon as practicable so that the court might take control of the arrested person and the proceedings against him has been stressed in decided cases and is obvious for various reasons, not the least being to permit the person to seek his liberty from a judicial officer.

21 No doubt the longer the illegal imprisonment, the more serious is the denial of the accused’s rights. The effect of the unlawful custody upon the person is also an important consideration under this and other sections of the Act. As I have indicated, there is nothing to suggest that the period of custody before 9.07am had any deleterious effect upon the accused whatsoever. Nothing in the period of the interview after 9.07am and before 9.51am led to any change in the accused’s attitude to police or his willingness to co-operate in order to give his account of the circumstances surrounding the killings.

22 The section requires the court to consider the way in which the evidence was obtained. Clearly the more egregious the illegality or the impropriety accompanying the obtaining of the evidence, the more likely it is that the balance will fall in favour of the exclusion of the evidence. In my opinion the period of the unlawful custody between 9.07am when the interview is interrupted and the conclusion of the interview about 50 minutes later was of the most technical nature. It is most improbable in the extreme that had the police abandoned the interview when it was interrupted and taken steps to have the accused charged and considered by a bail sergeant and then transported him to Central Local Court that he would have been before the magistrate before 9.51am. I accept that by acting illegally the police obtained the opportunity to continue interviewing the accused but their conduct had no adverse affect upon the contents of the interview including any admissions that were made thereafter. The illegality of the detention has to be viewed against the treatment of the accused during the detention, his willingness to be interviewed by the police, and his willingness to remain in police custody in order to accompany them to the home for the walk through interview.

23 The police acted illegally by further detaining the accused after the interview was concluded but that has no bearing upon the question whether the balance of the interview should be admitted. The further detention was understandable because the accused had indicated his preparedness to take part in the walk through interview at the house. In the very unusual circumstances of this case it is quite understandable that the police would have wished to have the accused explain his version at the site of the killings. Although one could be excused for being sceptical about an explanation offered by police for their illegal activity that they were trying to be fair to the accused, I am prepared to accept that the police were offering the accused an opportunity to explain his account at the scene even though they were unconvinced of the truthfulness of his account and were hoping that he might admit to killing his parents.

24 It is significant in the present case that at the time of the interview the procedure to be adopted by police in detaining and interrogating suspects was set out in the Police Commissioner’s Instructions. These had no force of law and the fact that a police officer acted in accordance with the Instructions would not mean that there was no illegality attaching to the conduct. But they are relevant when one comes to consider the state of mind of the police officer.

25 The relevant part of the Instruction was as follows:

Questioning after arrest

You do not have a general power to detain a citizen merely to question that person.

Bring an arrested person before a justice without unreasonable delay.

In determining what is an unreasonable delay allowance maybe had to the making of a decision to prefer a charge or not. In making this decision it may only be fair to question the arrested person and conduct inquiries to confirm or dispel the suspicion on which the arrest was based.

When a person does not wish to be questioned, do not persist.

When asking questions, it is proper to anticipate defences which may be raised. Accordingly, be conscious to obtain evidence which may negative them eg., evidence to rebut an alibi or evidence of similar acts.

Questioning and inquiries, provided they are directed to, confirming or dispelling the suspicion on which the arrest was based, may therefore be occasioned by a number of factors, including:

· geographical considerations

· time of day when the rest takes place

· the making of a statement by the arrested person in relation to the offence for which the person was arrested or other offences and the taking of a record of interview

· the necessity to provide the arrested person with medical treatment

· the necessity to interview the alleged victim and/or available witnesses

· the necessity to interview alleged co-offenders

· the proper assessment of material relevant to conducting an interview

· the necessity to seek legal advice on framing the correct charge

· the necessity in special cases to await the arrival of experienced investigators or other persons with the necessary scientific, technical, investigative, etc., skills to conduct the interview, particularly a complex or serious offences are involved

· the necessity to await the arrival of an interpreter, legal practitioner, or in the case of child offenders, a parent, friend, etc., whose presence is necessary

· awaiting the results of medical or other necessary examinations

· in some special cases, the necessity to convey the arrested person to some location for the purpose of obtaining evidence relevant to the suspected offence

· the necessity to conduct an identification parade (with the consent of the person arrested)

· the necessity to conduct procedures authorised under S.353A of the Crimes Act.

26 It will be obvious that these Instructions are inconsistent with the approach of the majority of the judges in Williams and are inconsistent with a requirement that there be no delay in taking a suspect before a magistrate in order to carry out an investigation of the offence for which the person was arrested or any other offence notwithstanding that such investigations might be reasonable. The Instructions might find support in the judgment of Gibbs CJ but his Honour was in the minority. However on the basis of the Instructions the conduct of Det Ahern in continuing the interview after it was interrupted at 9.07am was fully justified.

27 It cannot be gainsaid that the proceedings before me are of the utmost seriousness, being the prosecution of the accused for two counts of murder. This is one of the matters to be taken into account in determining whether to admit the second part of the interview: see s 138(3)(c) of the Act.

28 The evidence is important because the Crown’s case is that the accused did not tell the police the truth in the interview about the events surrounding the killing of his parents: see s 138(3)(b) of the Act. The Crown case is a circumstantial one in which it seeks to prove that the accused’s account given in the record of interview as a whole is not true. If the jury were satisfied beyond reasonable doubt that the version given by the accused is false, rather than simply inaccurate, then it must follow that the accused killed his mother and father because, on the Crown case, there is no other reasonable explanation open. As I understand the situation, the Crown intends to lead evidence that would point to the same person killing all three persons. But that evidence is not so powerful that it might itself satisfy the jury beyond reasonable doubt of the accused’s guilt.

29 To a significant extent the importance of the evidence and its probative value are connected in this case: see s 138(3)(a) of the Act. The defence argues that most of what is contained in the second part of the interview is referred to in the first part. That might be so, but it is obvious that the Crown case or its arguments are strengthened by additional material in the second part of the interview in which the accused elaborates on what is contained in the first part of the interview. The force of the Crown’s argument, that what the accused said to the police is either inherently unbelievable or can be proved by other evidence to be false, would be substantially lessened in my view by the rejection of the second part of the interview.

30 I am of the opinion that it is impossible to consider the probative value of any particular piece of evidence contained in the second part of the interview in isolation or by simply having regard to what was said in the first part of the interview. As I have indicated, the Crown will be asking the jury to consider the accused’s account as a whole, even though it may place more weight on one particular part of the account than another. It will be asking the jury to find that there is no other reasonable possibility open other than the account is generally false and, therefore, it must follow that he killed his parents as well as his brother.

31 I accept that some part of the second interview may have insufficient relevance and should be rejected, but under s 137 or s 135 of the Act rather than under s 138. I have already indicated that questions 411 to 449 are rejected on the basis that their relevance is outweighed by the prejudice that would flow from the manner in which police, who were apparently under a misapprehension of what the accused was saying, questioned the accused. There may be other specific questions and answers that ought not to be in evidence for reasons other than that portion of the interview in which they occur was obtained while the accused was in illegal detention.

32 I have already referred generally to the gravity of the impropriety; see s 138(3)(d). It is always a serious infringement of a person’s liberty to fail to take the person before a court but rather to hold the person in police custody in breach of the law. But not all illegal detentions should be considered to have the same seriousness notwithstanding the condemnation that attaches to the unlawful infringement of the liberty of any citizen. As I have already indicated the period of the illegal detention here was for a relatively short period of time, about 50 minutes. I accept that the accused probably thought that he was being detained, but it was not against his will and there is no evidence that the illegal detention had any relevance to the contents of the interview. Other than being detained there is not the slightest evidence to suggest that the accused was in any way mistreated in the period of his detention while the interview was completed.

33 The fact that the illegal period of detention follows a period of about four hours while the accused was being held at the police station does not seem to me to greatly change the situation. There is no evidence that the accused wished to leave the police station or even believed that he was being detained at the police station during that period. I have no doubt that he went with the police willingly from the scene and was prepared to wait for the opportunity to give his account of the events to police.

34 Det Ahern made a conscious decision not to take the accused before a justice when the interview was interrupted at 9.07am. But I have no doubt that he believed that he was permitted to continue the interview at that time. It was open to him to hold that view in light of the width of the police Instructions. There is no evidence that he knew those Instructions did not accurately reflect the law. It was reasonable for him to complete the interview in light of the Commissioner’s Instructions and having regard to the fact that he was still determining whether to charge the accused with the murder of his parents. It is important to note that the circumstances surrounding the three deaths were intertwined arising as they did from a single event yet it did not follow, that because the accused might have committed one of the killings, he did or did not commit the other two. Although the detective intentionally took a course that breached the law in deciding not to take the accused before a court, he did not deliberately act illegally because he was unaware that he was breaching the law. Rather he believed that he was not acting illegally. He was neither negligent nor reckless in respect of the accused’s rights and his breach of them: see s 138(3)(f) of the Act.

35 Generally speaking the detention of the accused after 9.07am was in breach of clause 1 of Article 9 of the International Covenant on Civil and Political Rights. It states:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

The accused was deprived of his liberty in breach of the procedure established by law.

36 However clause 3 relevantly states:

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release…………..

37 The word “promptly” has to be considered against the particular circumstances of the case and the availability of a court to receive the arrested person. Even if the delay of an hour breached the clause, it was not in my opinion a serious breach of the Covenant.

38 There is no likelihood of any proceedings being taken in relation to the illegality: s 138(3)(g) of the Act. Det Ahern is no longer an active police officer. In any event the illegality was not such that it would be likely to attract a court’s attention to either vindicate the accused’s rights or denunciate the police conduct. But it seems to me of less importance in the present case for this Court to send a message to other police officers that such conduct will not be tolerated and might result in the rejection of evidence. At the time of these events there was frustration experienced by police officers that the common law was unreasonably interfering with investigations of serious crime. That should no longer be the case because the procedures for arrest and interrogation have since been regulated and police have a limited period of detention for investigation and questioning.

39 Finally I take into account that the evidence might have been obtained without any illegality by taking the accused before a magistrate and then seeking to have him further questioned. There is however an air of unreality in such a procedure in light of the fact that the police were in the course of lawfully interviewing the accused when the illegality arose.

40 I accept that minds might legitimately differ in exercising the judgment required by the section. However, I am firmly of the view that the balance in the present case is overwhelmingly in favour of allowing the whole of the recorded interview notwithstanding the illegality of the further detention of the accused after 9.07am to complete the interview.

Section 85 and unreliability

41 It was argued that I should reject the second half of the interview on the basis that I would not be satisfied that the circumstances in which the admissions were made were such that it was unlikely that the truth of the admissions were adversely affected.

42 This is a somewhat curious argument. Admissions in this case are statements made by the accused that the Crown are intending to use to prove his guilt of the killing of his parents by persuading the jury that they are not true: see R v Horton (1998) 45 NSWLR 426. Of course the accused steadfastly denied being responsible for the death of his parents and stated repeatedly that his brother killed them. The accused will be arguing that what he told the police was in fact true. Yet I am being asked to reject his exculpatory statements on the basis that I would not be satisfied that it was unlikely that the truth of the statements was adversely affected.

43 As I understand the argument, it is submitted that the manner in which the police questioned the accused during the second part of the interview undermined the reliability of what he was saying so that unwittingly he might have given an answer or answers which he did not intend and which were not strictly true. It was submitted the Crown then might rely upon these inconsistencies in a way that would result in an unfair trial for the accused.

44 As I have indicated, there is no evidence from the accused before me on this voir dire. It is not apparent to me that the argument is made out simply on the face of the interview. In any event the Crown eschewed that any significant part of its case consisted of inconsistencies in answers, rather it was relying upon statements which it would convince the jury were inherently impossible or which could be proved by other evidence to be untrue.

45 I am not persuaded that s 85 has been engaged.

46 Finally it was submitted that I should reject the evidence under s 90 of the Act. This is a section that permits a court to reject evidence of an admission if, having regard to the circumstances in which it was made, it would be unfair to use the evidence against the accused. It is the unfairness in the use of the evidence rather than unfairness in the obtaining of the evidence that is the focus of the section: Em v The Queen [2007] HCA 46; 81 ALJR 1896 per Gummow and Hayne JJ at [107].

47 In Em Gleeson CJ and Heydon J, in a joint judgment, pointed out at [56] that the section was “likely to be highly fact-specific”. The accused bears the onus of establishing the basis for rejecting the evidence and it is significant that he has given no evidence before me as to his state of mind at the time of the interview or how any of the conduct of the police impacted upon him such that it might be unfair to use the evidence against him. Of course the court in a particular case can draw certain inferences notwithstanding the absence of evidence from the accused, but this is not such a case. From what I can see in the record of interview the accused was prepared, if not anxious, to give his account which exculpated him from the killing of his parents.

48 The reliability of the evidence is a relevant factor; see EM at [73] and [111]. There is nothing that indicates that any conduct of the police or the circumstances in which the interview was taken affected the reliability of answers given by the accused.

49 Gummow and Hayne JJ indicated that the section would be engaged when none of the other sections of the Act operated to exclude the evidence. At [109] their Honours wrote:

“When it is "unfair" to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. "Unfairness", whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities)”

They later described it as “a safety net which catches a residuary category of cases not expressly dealt with elsewhere in the Act, where use of the evidence at trial would be unfair………”; at [114].

50 I am quite unable to see how the failure of the police to take the accused before a justice at 9.07am results in unfairness to the accused at his trial by the introduction of the balance of the recorded interview that was interrupted at that time by the tape being ejected from the recorder. I think with respect that Mr Boulton SC who appears for the accused conceded as much.

The evidence of the walk through

51 As I have already noted the police took the accused to the house shortly after the completion of the ERISP in order to record a conversation with him while they walked through the premises. I am satisfied that the accused went with them voluntarily in order to explain the circumstances surrounding the killings. It was in my opinion reasonable for the police to take this course and, apart from this issue of his illegal detention, it would have been completely justified. Because the bodies were still present in the house the police returned to the station.

52 At 1.00pm the accused was charged with the murder of his brother. At that time there was no justice available before whom the accused could be taken. The bail officer at the police station refused bail. There was no evidence that the police waited to charge the accused until a time when the bail court had ceased sitting.

53 At sometime in the afternoon, possibly about 3pm, Ms Patterson returned to the police station. She again spoke to uniform police at the front desk and received the same response; that she could not see the accused. She gave evidence that she then asked to see the officer in charge and eventually Det Ahern spoke to her. She explained who she was and asked if she could see the accused. She was told she could not. She asked if the accused needed a lawyer and she was told, “No”. Ms Patterson had made a statement giving her account of the events in 1993 only two weeks before the voir dire hearing. She said that she could not remember the conversation with Det Ahern but she had the feeling that its effect was that the accused could not have a lawyer.

54 Det Ahern gave evidence that he could not recall meeting Ms Patterson.

55 I am prepared to accept that Ms Patterson did speak to Det Ahern and that some conversation occurred about a lawyer that was to the effect that it was unnecessary for the accused to have one. I am also prepared to accept that, if such a conversation occurred, it was improper for the detective to convey the impression that a suspect, who was in police custody and was to be further interrogated for three murders, did not need to consult a lawyer. I can only assume that the impropriety was at least reckless. Of course the accused had not asked for a lawyer but he was not asked whether he wanted to seek legal advice. The fact that he was not asked whether he wished to consult a lawyer was not improper conduct by the police in 1993 but that failure is relevant to a consideration of the police conduct in relation to the inquiry made by Ms Patterson.

Illegality of the walk through

56 A question arose before me as to whether at the time of the walk through the accused was in illegal detention. Counsel for the accused quite properly brought to my attention the decision of the High Court in Michaels v The Queen [1995] HCA 8; 184 CLR 117. The case concerned the status of a person in custody of police at the time he escaped from that custody. The question was whether his custody was lawful: if it was not he had not committed an offence in escaping. The appellant argued that he was not in lawful custody because there had been undue delay in taking him before a justice or because he was being detained for questioning.

57 However the Court held that an unlawful detention could become lawful if circumstances changed. In the case being considered by the High Court, even if the detention had been unlawful at the time of his detention and questioning, it became lawful when the police determined to take him before a magistrate without further delay. It was as if the person had been let free and then immediately rearrested. The second arrest would have been lawful as was the subsequent detention in order only to take him before a justice. Therefore the offence of escape lawful custody had been made out.

58 In the present case at the time of the walk through the accused had been charged with the murder of his brother. He was being detained in order that he could be taken before a justice the next morning when a bail court was sitting. There was no impropriety or illegality only in the fact that the police intended to further question the accused while waiting to take him before a magistrate. It was never suggested to Det Ahern that after charging the accused he was being detained other than to take him before a justice as soon as one was available.

59 The custody of the accused was lawful at least from 1.30pm. Therefore there was nothing illegal in questioning the accused at the walk through. However s 138 is concerned with evidence that was illegally obtained or was obtained “in consequence of an impropriety or of a contravention of an Australian law”. The scope of the section in this regard has been considered in two somewhat conflicting decisions of judges of this Court. In DPP v Carr [2002] NSWSC 194; 127 A Crim R 151 Smart AJ held that a magistrate was right to dismiss charges, including that of assaulting a police officer, in circumstances where the assault resulted from an improper use of the power of arrest. His Honour held that the evidence of the assault was obtained as a consequence of an impropriety being that the police should not have arrested the person.

60 In DPP v Coe [2003] NSWSC 363 Adams J rejected an argument that a magistrate could refuse to admit evidence of an offence of assault on a police officer under s 138 on the basis that the police officer had acted unlawfully in arresting a third person. In effect Adams J held that the evidence of the assault was not “obtained” in consequence of an impropriety or illegal act within the meaning of the section. He was of the view that something more than a causal link or “trigger” between the illegal act and the obtaining of the evidence was needed. Adams J felt constrained to disagree with the view taken of the section by Smart AJ.

61 If it were necessary to do so, I would favour the view of the section taken by Adams J but the issue was not fully argued before me. However, I am prepared to find for present purposes that the evidence of the walk through was obtained as a consequence of the earlier illegality in not taking the accused before a justice at some stage prior to 12pm when a justice was available. But the fact that the accused was in lawful custody at the time of the walk through is a matter to be considered when having regard to the nature of the illegality as a consequence of which the evidence was obtained.

62 The accused was illegally detained for a period of at most three hours. I do not know the nature of his detention during that time. About an hour of it was taken up in the balance of the interview and further time was expended in going with the police to the house in the aborted attempt to have the walk through. There is no suggestion that he was handcuffed when he left the police station when he first went to the house. He was not under any physical restrain during the videoed walk through at about 4pm. Where he was held in the meantime and under what conditions, I am unaware. Again there is no evidence that the accused knew he was illegally detained or that he was in any way unwilling to remain in police custody while they investigated his account. There is no suggestion that his detention in any way affected his behaviour or his mental state at any time before, or during, the walk through.

63 I have already indicated my view that the accused was anxious to have his version of events made known to the police because it exculpated him of the killing of his parents. I have no doubt that he was more than happy to attend the house with the police even after he had been charged with the murder of his brother. He was well aware that he did not have to participate in the walk through or any further questioning by police after the conclusion of the ERISP.

64 The discretionary considerations in determining whether to admit the evidence of the walk through based upon it being obtained as a consequence of his prior unlawful detention are very much the same as apply when considering the balance of the ERISP so far as the nature of the proceedings, the probative value of the evidence and its importance in the prosecution case are concerned. It is very much a continuation of the earlier interview because the police gave the accused the opportunity of explaining at the site what he had told them in the ERISP. Its probative value is very much interwoven with the ERISP and the circumstantial nature of the Crown case.

65 I accept that Det Ahern believed that he was entitled to conduct the walk through. The Police Commissioner’s Instructions on re-interviewing a person after charge were as follows:

After a person has been charged, that person shall be questioned in respect of such charge only in exceptional circumstances (after cautioning) when;

· such questions are necessary for the purpose of preventing or minimising harm or loss to some other person or the public

· they are for the purpose of recovering property or in respect of new or fresh matters.

66 Although the Instructions did not cover the situation that confronted Det Ahern, it is quite understandable that he would ask the accused after charging him whether he was still prepared to participate in the walk through that had to be deferred because the bodies had been still in situ at the time the walk through had initially been attempted, which was at a time before the accused was charged. Although the further questioning was not in accordance with the Instructions it does not in my view in the circumstances of this matter make it improper. As I have already indicated, it was not illegal. I take into account that at the time of the walk through the accused had effectively been in the custody of police for about 11 hours, but there is nothing to indicate that the period of his custody in any way affected the accused or the reliability of his account.

67 I have myself watched the recording of the walk through. The police acted fairly in the questioning of the accused. The accused appears fully at ease during the walk through and is making every attempt to explain his version to the police by indicating where things were located and what happened at certain places. The balance under s 138(3) is in my mind overwhelmingly in favour of admitting the evidence.

68 Of more concern is the conduct of Det Ahern in informing Ms Patterson that the accused did not need a solicitor. That was improper in circumstances where the accused had been charged with the murder of his brother and the police intended to interview him at the walk through about that matter and the killing of his parents. Det Ahern agreed that, had this conversation taken place, it would have been improper.

69 However the accused had never sought the assistance of a solicitor or asked to contact any person outside the police station at any time during the period of his custody. There is no evidence that he believed that he could not do so or was prevented by the police from seeking to do so. He appears to be an intelligent and mature young man who was not in any way affected by his detention or the questioning by police. As I have remarked a number of times, he appears keen to fully explain his account of the killings and on at least three occasions indicated his willingness to accompany police for the walk through notwithstanding being advised that he was not required to do so.

70 I do not know what would have happened had the police officer not given the answer to Ms Patterson that he did. It is a matter of pure conjecture. But I doubt that the evidence of the walk through was obtained as a consequence of the impropriety in the detective telling Ms Patterson that the accused did not need a solicitor.

71 However, if I accept that s 138 is engaged, the impropriety does not seem to me to be of such a nature, given all of the circumstances of this particular matter, that it outweighs the other considerations in favour of admitting the evidence when forming the judgment under s 138(3). There is no suggestion that the admission of the walk through would be unfair within the scope of s 90 of the Act. There is no other reason that I can see or that has been suggested to me for excluding the evidence.

Orders

72 The application to exclude part of the ERISP and the evidence of the walk through is refused.

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