R v Kerr (Ruling No 1)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0124
S CR 2014 0125

THE QUEEN

DANIELLE KERR
and
DARREN LEWIS

First Accused

Second Accused

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JUDGE:	T. FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	18, 19, 23 and 25 February 2015
DATE OF RULING:	27 February 2015
CASE MAY BE CITED AS:	R v Kerr & anor (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2015] VSC 64

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EVIDENCE – Criminal Trial – Murder – Applications to exclude admissions made during course of VROIs and covertly recorded conversation with police – impropriety - whether desirability of admitting the evidence outweighs undesirability of admitting evidence improperly obtained – whether mere impropriety or illegality can provide basis for exclusion under unfairness discretion – Crimes Act 1958, ss 464, 464A, 464C – Evidence Act 2008, ss 90, 137, 138, 139 – Em v The Queen (2007) 232 CLR 67.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms Taylor QC with Ms Harper	Office of Public Prosecutions
For the First Accused	Mr S. Johns	Theo Magazis & Associates
For the Second Accused	Mr D. Dann	Valos Black & Associates

TABLE OF CONTENTS

1... Introduction................................................................................................................................... 1

2... Factual background..................................................................................................................... 1

(a).... Statements made by the accused....................................................................................... 3
(b).... The Homicide Squad involvement................................................................................... 3
(c).... 2 January............................................................................................................................... 5

3... The issues on this application................................................................................................... 5

4... General Legal Principles............................................................................................................. 6

(a).... Rights and Obligations....................................................................................................... 6
(b).... Section 138 - Impropriety and Illegality........................................................................... 8
(c).... Section 90 - Unfairness...................................................................................................... 12

5... Kerr................................................................................................................................................ 16

(a).... The interview..................................................................................................................... 16
(i)....... At Kerang................................................................................................................ 17
(ii)...... In the Police Car..................................................................................................... 17
(iii)..... At Bendigo Police Station..................................................................................... 17

(b).... Analysis............................................................................................................................... 19
(i)....... Was Ms Kerr deceived into believing that she was a witness
........... when in fact she was a suspect?.......................................................................... 19
(ii)...... Bendigo Police Station.......................................................................................... 23

6... Lewis............................................................................................................................................. 25

(a).... The interview..................................................................................................................... 25
(i)....... Kerang to Bendigo................................................................................................. 26
(ii)...... Bendigo – the VROI.............................................................................................. 28

(b).... Submissions........................................................................................................................ 33
(c).... Analysis............................................................................................................................... 35
(i)....... Was Mr Lewis in Custody?.................................................................................. 35
(ii)...... Was Mr Lewis suspected of an offence?............................................................ 37
(iii)..... Did Detectives Birch and Roche fail to comply with s 464A(2)(a)?................ 41
(iv)..... Did Detectives Birch and Roche fail to comply with s 464A(3)?.................... 42
(v)...... Did Detectives Birch and Roche fail to comply with s 464C?......................... 42
(vi)..... Did the Detectives intend to prevent Mr Lewis from making
........... an informed decision about his rights?.............................................................. 45

(d).... Conclusion.......................................................................................................................... 46
(i)....... Section 138 – Impropriety and Illegality............................................................ 46
(ii)...... Section 90 - unfairness........................................................................................... 49
(iii)..... Section 137.............................................................................................................. 51

7... Conclusion................................................................................................................................... 51

HIS HONOUR:

1. Introduction

Darren Lewis and Danielle Kerr are charged with the murder of William Stevenson on Christmas Day 2013. Both accused were interviewed by Homicide Squad detectives on 2 January 2014. The propriety of these interviews (VROIs) is impugned, and each accused has submitted that I ought exclude parts of the relevant interview from the evidence available to the prosecution at trial. Mr Lewis also submitted I ought exclude evidence of a covertly recorded conversation that occurred during a break in the VROI. I have heard evidence on a voir dire over two days from the four Homicide Squad detectives who conducted the two interviews and the covert conversation. Neither accused person gave evidence.

2. Factual background

I shall set out background facts that appear to be undisputed and which can be proved independently of either video record of interview (VROI).

· For the last 9 months of his life the deceased lived in a rented unit in the north central Victorian town of Kerang. He worked at a chicken farm at Pyramid Hill; some distance south-east of Kerang.

· Ms Kerr resided for a time with the deceased at his Kerang unit. This arrangement ceased in about the middle of 2013. In early December 2013, after a chance meeting, Ms Kerr moved back into the unit.

· Not long after moving back into the deceased’s unit, Ms Kerr met and struck up a relationship with her co-accused Mr Lewis. She introduced Mr Lewis to the deceased. Mr Lewis owned a farm at Wellsford.

· The two accused and the deceased stayed several nights at the Wellsford property, in the lead up to Christmas 2013. They all used methylamphetamine (’ice’).

· The deceased owned a green Mitsubishi magna motor vehicle. He drove to the chicken farm to work on Sunday 22 December. He worked there on both 23 and 24 December. Overnight he stayed at Wellsford.

· At about 5.15am on 25 December 2013, the deceased drove from the Wellsford property to attend work at the chicken farm. Mr Lewis and Ms Kerr were also in the car. The deceased alighted from his car and the two accused left the chicken farm in the Mitsubishi. An arrangement was made that the accused would re-attend the chicken farm to pick up the deceased when he finished work.

· The deceased worked until about 10.00am. He arranged to attend work next on Boxing Day. He was very annoyed that the two accused had not picked him up from work, as was arranged. Another person, Donna Stewart, who lived locally, picked up the deceased and took him to her home in Pyramid Hill. The deceased seemed irate.

· The deceased remained angry after he arrived at Donna Stewart’s property at about 11.30am. At about 12.25pm, the two accused arrived at that address. Mr Lewis and Ms Kerr remained in the car. The deceased got into the back seat of the car. He was screaming abuse at the accused as the car left the property.

· The deceased failed to attend work on 26 and 27 December 2013. He was reported to the police as missing on 27 December.

· The green Mitsubishi magna was found, burnt out, at 5.15pm on 1 January 2015. Its location was Norman Road, Wellsford, approximately three kilometres from Mr Lewis’s farm. There appeared to be bone fragments in the boot of the car.

· On 2 January, Dr Burke, a forensic pathologist, confirmed to police that the bony remains were of human origin.

· On 11 April 2014, further remains of the deceased were located at Goornong in north-central Victoria.

(a) Statements made by the accused

· On 27 December, Ms Kerr told Donna Stewart that on Christmas Day, after they had left Stewart’s property, all three of them had driven back to Mr Lewis’ Wellsford property. The deceased had calmed down and wanted to get some ice and something to eat. He got into his car and left the property and she had not seen him since.

· On 27 December, Ms Kerr told Fiona Simons that she and the deceased had fought on Christmas Day and he had thrown his phone at her. The phone smashed and the deceased drove away. She had no idea where he was.

· On the same day, Ms Kerr told her mother that the deceased was missing.

· On 30 December, both Ms Kerr and Mr Lewis made statements to the Kerang police. Each gave a virtually identical account. They had left Stewart’s house with the deceased and went to Mr Lewis’ Wellsford property. There was an argument between the deceased and Kerr about purchasing drugs. Both said they last saw the deceased as he drove off in his car.

(b) The Homicide Squad involvement

· In the early afternoon of 1 January 2014, Det. Roche of the Homicide Squad received a phone call from Det. Colin Grenfell of Bendigo CIU. Grenfell briefed Roche as to the circumstances surrounding Mr Stevenson’s disappearance. As a result of this briefing, Det. Roche emailed Dets. Iddles, Birch, Trewavas and Grenfell. This email (‘the Roche Email’) became Exhibit 4 on the voir dire and summarises the state of the police investigation as at 3.46pm on 1 January. It concluded that should Mr Stevenson remain a missing person at 7.00am on 2 January then Iddles, Birch, Trewavas, Roche and Moutis would attend at Bendigo CIU at 9.00am.

The information about the burnt out Magna and the possible contents of the boot was conveyed to the Homicide Squad by Det. Grenfell. The scene was secured. Det. Grenfell told Det. Roche that the member who had secured the scene believed the remains were human.

The five homicide detectives, Iddles, Trewavas, Birch, Roche and Moutis attended at the Bendigo CIU at 8.00am on 2 January. They were there briefed by Det. Grenfell. The briefing did not go significantly beyond the information contained in the Roche email, together with the subsequent discovery of the burnt out car and its suspected contents.

By this stage the detectives were in possession of at least the following information:

· Mr Stevenson had been missing for nearly eight days.

· Ms Kerr had previously resided with him in his Kerang unit and had left in acrimonious circumstances. She had been his ‘girlfriend’.

· She had recently returned to the Kerang unit.

· Again, Mr Stevenson had asked her to leave.

· Mr Lewis was a drug trafficker. He had commenced a relationship with Ms Kerr in the last 2 weeks.

· Ms Kerr used methylamphetamine.

· Ms Kerr had withdrawn $800 from Mr Stevenson’s bank account at various ATMs in Bendigo on 24 December 2013.

· Ms Kerr and Mr Lewis were in company with Mr Stevenson when they dropped him at work on 25 December.

· They failed to pick him up later that day, causing Mr Stevenson to become angry.

· Mr Stevenson was still angry when Ms Kerr and Mr Lewis met with him at Donna Stewart’s property.

· Ms Kerr and Mr Lewis then left Ms Stewart’s house with Mr Stevenson and in his car. He remained irate.

· Mr Stevenson had not been seen by any independent person (i.e. other than the accused) since then.

· The badly burnt green Mitsubishi was found about three kilometres from Mr Lewis’s front gate.

· What was believed by a police officer to be human remains were found in the boot of the car.

· Ms Kerr and Mr Lewis had remained in each other’s company since Mr Stevenson disappeared.

· Ms Kerr and Mr Lewis both gave police identical exculpatory accounts in which they asserted that the deceased had driven away from the Wellsford property in the afternoon of 25 December.

(c) 2 January

At about 10.15am, both accused went to Rural Co Real Estate in Kerang. Senior Sergeant Weppner attended and stated, inter alia:

The Missing Person’s Unit are attending Kerang and would like to speak to you regarding (your) statements…can you attend the station now.

The accused said that they would drive to the police station but were told they would be driven there. They were taken there in separate cars. From there they were taken to the Bendigo police station, again in separate cars to be interviewed.
3. The issues on this application

Mr Johns, on behalf of Ms Kerr, contended that the first two-thirds of his client’s VROI ought be excluded.[1] In very short compass, he argued that Ms Kerr was deceived into thinking she was a mere witness when in fact she was a suspect. Thus, so the argument went, s 464A(2) of the Crimes Act 1958 (‘the Crimes Act’) was continually and deliberately breached as a consequence. He sought the exclusion of the evidence, on this basis, under s 138 and s 90 of the Evidence Act 2008 (Vic) (‘the Act’). In his initial written submissions he also relies upon s 85(2) and s 137 of the Act. Those sections were not pressed in his “Final Outline” nor were they in oral submissions.
[1]Questions 1-1061. Questions 1062-1523 are not challenged.

Mr Dann, who appears for Mr Lewis, contended that the police, through their conduct, deliberately prevented his client from making an informed choice about the exercise of his rights. In particular, Mr Dann argued that during the interview process the police failed to comply with ss 464A(2)(a), 464(3) and 464C of the Crimes Act. Mr Dann sought the exclusion of the interview and covert recording under ss 138 and 90 of the Act. In his written argument, he also relied on s 137 of the Act.

Ms Taylor QC, who appears with Ms Harper to prosecute, accepted that Qs 896-1064 of the Kerr interview ought be excised. This portion of the interview was the only aspect of either accused’s submissions, as originally drafted, that raised the issue of reliability.[2] The Crown contended that any limitations contained within this excised portion are discrete to that portion and do not infect any other part of the interview. Otherwise, the Crown, in broad terms, contended that the police conduct and questioning of both accused was lawful and reasonable in the circumstances. Alternatively, if illegality or impropriety be demonstrated, it is not of such a quality that ought lead to the exclusion of the interviews or any part of them.
[2]Evidence Act 2008, s 85(2)(b). This concession explains the absence of a s 85(2)(b) reliability argument in Mr Johns’ final submissions.

4. General Legal Principles
(a) Rights and Obligations

I set out the relevant provisions of ss 464A and 464C of the Crimes Act.

464A   Detention of person in custody
(1)Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be—
(a)       released unconditionally; or
(b)       released on bail; or
(c)       brought before a bail justice or the Magistrates' Court—

within a reasonable time of being taken into custody.
(2)If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—
(a) inform the person of the circumstances of that offence; and
(b)question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.

(3)Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.

[…]
464C Right to communicate with friend, relative and legal practitioner
(1)Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she—
(a)may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and
(b)may communicate with or attempt to communicate with a legal practitioner (whether the term legal practitioner or lawyer is used)—

and, unless the investigating official believes on reasonable grounds that—
(c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or
(d)the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed—

the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.
(2)Subject to subsection (1), if a person wishes to communicate with a friend, relative or legal practitioner, the investigating official in whose custody the person then is—
(a)must afford the person reasonable facilities as soon as practicable to enable the person to do so; and
(b)must allow the person's legal practitioner or a clerk of the legal practitioner to communicate with the person in custody in circumstances in which as far as practicable the communication will not be overheard.

(b) Section 138 - Impropriety and Illegality

At common law, the Bunning v Cross discretion permitted the exclusion of otherwise admissible evidence that had been improperly or unlawfully obtained.[3] The discretion required the trial Judge to balance competing policy considerations, including ‘the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful [or improper] conduct of those whose task it is to enforce the law.’[4]
[3]Bunning v Cross (1978) 141 CLR 54.
[4]Ibid, 74 (Stephen and Aickin JJ).

Section 138 of the Act derives significantly from the common law discretion:[5]
[5]Robinson v Woolworths Ltd (2005) 64 NSWLR 612, [22].

138   Exclusion of improperly or illegally obtained evidence
(1)     Evidence that was obtained—
(a)       improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law—

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Despite its similarities, s 138 has altered the burden of proof on an application for exclusion on the basis of impropriety or illegality. The party seeking to exclude the evidence has the burden of showing that the evidence was obtained improperly or in contravention of an Australian law; it then falls to the party seeking the admission of the evidence to persuade the court that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.[6] In that sense s 138 contemplates a two-stage process.[7]
[6]Parker v Comptroller-General of Customs [2009] 83 ALJR 494, 500 [28] (French CJ) (‘Parker’).
[7]Employment Advocate v Williamson (2001) 111 FCR 20, [78] (Branson J).

A second and related difference is that while exclusion under the rule in Bunning v Cross was discretionary s 138 is expressed in mandatory terms: upon satisfaction that the evidence was obtained improperly or in contravention of an Australian law the trial judge must exclude the evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.[8]
[8]See, DPP v Hicks (Ruling No 1) [2014] VSC 43, 20 [60].

The Act does not define ‘improperly’, ‘impropriety’ or ‘contravention’. In Parker, French CJ noted that the relevant ordinary meanings of ‘improper’ included ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong’,[9] while ‘contravention’ referred to ‘[t]he action of contravening or going counter to; violation, infringement, transgression.’[10]
[9]Parker (2009) 83 ALJR 494, 501 [29] (French CJ); The Oxford English Dictionary, 2nd ed (1989), Vol VII, p 747.
[10]Parker (2009) 83 ALJR 494, 501 [29] (French CJ); The Oxford English Dictionary, 2nd ed (1989), Vol III, p 847.

In New South Wales, the Court of Criminal Appeal has held that in the absence of a general definition of ‘impropriety’ the common law principles ‘collected in [Ridgeway v The Queen],[11] derived from earlier Australian authority […], should be applied.’[12] It followed, according to the majority view:

that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards.[13]

[11](1995) 184 CLR 19.

[12]Robinson v Woolworths Ltd (2005) 158 A Crim R 546, 554 [22] (Basten JA, Barr J agreeing) (‘Robinson’); See, also DPP v Hicks (Ruling No 1) [2014] VSC 43, 18 [56].

[13]Robinson (2005) 158 A Crim R 546, 554 [23] (Basten JA, Barr J agreeing).

Although the Act does not provide a general definition of ‘impropriety, it does contain a number of deeming provisions. The first, s 138(2), applies only to evidence of an admission:

(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

Section 139 is a further deeming provision, of general application, that relates to the failure to caution certain persons:

139 Cautioning of persons
(1)For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—
(a) the person was under arrest for an offence at the time; and
(b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c)before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

[…]
(5)A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if—
(a)the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
(b)the official would not allow the person to leave if the person wished to do so; or
(c)the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

I have omitted what are in my view the irrelevant aspects of s 139. They include sub-s (2), which is a deeming provision that applies to questioning conducted by investigating officials who are not empowered to arrest the person; sub-s (4), which provides an exception to the deeming provisions where the person is required, by law, to answer questions put by the investigating official; and sub-s (6), which creates a limited, and irrelevant, exception to sub-s (5).

As I have said, if the party seeking the exclusion of the evidence satisfies the Court that the evidence has been obtained improperly or in contravention of an Australian law it then falls to the party seeking its admission to persuade the Court that it should be admitted. The balancing exercise to be undertaken pursuant to s 138(1) is, essentially, the balancing exercise discussed in Bunning v Cross.[14] Sub-section (3), however, adds to that exercise a list of mandatory considerations:
[14]DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355, 5-6 [17].

(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Although they are dealt with independently elsewhere in the Act, the reliability[15] of the evidence and the unfairness[16] of admitting the evidence may also be relevant considerations.[17] Neither unreliability nor unfairness is necessary in order that it be undesirable that the evidence be admitted.[18]
[15]Evidence Act 2008, s 85.
[16]Evidence Act 2008, s 90.
[17]R v Helmhout (2001) 125 A Crim R 257, 259 [11].
[18]Ridgeway (1995) 184 CLR 19, 49-50 (Brennan J) and 83 (McHugh J).

(c) Section 90 - Unfairness

At common law, the Lee discretion permitted the exclusion of evidence of an admission where, ‘having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his [or her] own statement against the accused.’[19]
[19]R v Lee (1950) 82 CLR 133, 154.

A ‘generally similar’[20] discretion is now contained at s 90 of the Act:
[20]Em v The Queen (2007) 232 CLR 67, 104 [109] (Gummow and Hayne JJ).

90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made,

it would be unfair to an accused to use the evidence.

The burden of demonstrating that it would be unfair to admit the admission lies with the accused.[21] Although considerations relevant to the unfairness discretion arise on applications on other grounds, it is possible for accused persons to invoke s 90 of the Evidence Act in the absence of establishing any other ground of exclusion.[22] It has been described as a ‘safety-net’ provision, in the sense that it falls to be exercised after applications are made and refused on other relevant bases.[23]
[21] R v Grant (2001) 127 A Crim R 312, [85].
[22]Em v The Queen (2007) 232 CLR 67, 83 [42] (Gleeson CJ and Heydon J).
[23]Ibid, 104, [109] (Gummow and Hayne JJ); R v JF (2009) 237 FLR 142, 160 [103].

The language of s 90 is general and it is not possible to describe exhaustively the circumstances in which it will be “unfair” to use evidence of an admission at the trial of an accused person.[24]
[24]Em v The Queen (2007) 232 CLR 67, 83 [42] (Gleeson CJ and Heydon J).

The unreliability of the admission is an important consideration but it is not conclusive,[25] or a necessary prerequisite of exclusion.[26] The practical relevance of unreliability to s 90 may also be diminished by s 85 because, under that section, evidence of an admission is not admissible unless the circumstances in which it was made ‘were such as to make it unlikely that the truth of the admission was adversely affected.’[27]
[25]R v Swaffield (1998) 192 CLR 159, 197, [77] (Toohey, Gaudron and Gummow JJ): ‘As the authorities stand, the likelihood of an unreliable confession does not mandate the exercise of the unfairness discretion to exclude that evidence.’
[26]Em v The Queen (2007) 232 CLR 67, 93 [73] (Gleeson CJ and Heydon J); R v Swaffıeld (1998) 192 CLR 159, 197 [78] (Toohey, Gaudron and Gummow JJ).
[27]Em v The Queen (2007) 232 CLR 67, 105 [112] (Gummow and Hayne JJ).

Section 90 may also justify the exclusion of evidence where, because of some impropriety, a confessional statement is made, which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.[28] Examples of this are R v Foster[29] and R v Amad,[30] which were cited with apparent approval in EM v The Queen.[31]
[28]Ibid, 104 [111] (Gummow and Hayne JJ).
[29](1993) 67 ALJR 550, 554-555.
[30][1962] VR 545.
[31](2007) 232 CLR 67, 104 [111] (Gummow and Hayne JJ).

The covert recording of a conversation does not of itself make it unfair to use the evidence, even if the defendant would not have spoken if he or she knew the conversation was being recorded.[32] As Gleeson CJ and Heydon J observed in Em, ‘decisions to record conversations with a particular accused person secretly are made because no recording would be possible if that accused person knew of the recording.’[33]
[32]Em v The Queen (2007) 232 CLR 67.
[33]Ibid, 92 [67].

Beyond impropriety productive of forensic disadvantage, unreliability or similar, I consider there to be a tension in the authorities as to the relevance of impropriety to the s 90 discretion. A broad view asks whether, but for the impropriety, the admissions would have been obtained. In Van Der Meer,[34] for example, Mason CJ held as follows:

‘[T]he police conduct of the interrogation was such as to make it unfair to use the later statements made by [the accused] against them. Had the police observed the principles governing the interrogation of suspects, it might well have transpired that the statements would not have been made or not have been made in the form in which they were made.’[35]

[34](1988) 62 ALJR 656.

[35](Emphasis added)

Justice Brennan described unfairness in similar terms in Duke v The Queen:[36]
[36](1989) 180 CLR 508.

Although it is right to say that fairness to the accused in the reception of evidence is the object of the unfairness discretion and the Bunning v. Cross discretion is directed to insisting that those who enforce the law should themselves respect it is, in my respectful opinion, too confined a view to regard the unfairness discretion as applicable only to those cases where unreliability in the confession might have been produced by impropriety or unlawfulness on the part of the investigating police.

[…]

The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted.

[…]

Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent.[37]

[37]Ibid, 513 (Brennan J) (emphasis added).

His Honour, then Chief Justice, reaffirmed this statement of principle in R v Swaffield.[38] Each of these cases predated the Uniform Evidence Legislation.
[38](1998) 192 CLR 159, 175 (Brennan J).

Em v The Queen is the most significant High Court consideration of s 90 since its enactment. In that case, an accused was tried and convicted on charges of murder, assault with intent to rob and discharging a firearm with disregard for the safety of a person. During their investigation, the police obtained warrants permitting them to wear covert recording devices. Wearing the devices, they met the accused and went with him to a park and questioned him there, reminding him that any answers he gave were voluntary but refraining from warning him that his answers might be recorded and given in evidence. In the course of the conversation, the accused made incriminating admissions which were recorded.

At various points in the conversation, the police assured the accused that they were not tricking him. Then, at page 25 of the transcript of that conversation, one of the attending detectives stated,

Maybe you might feel better if you tell us. It’s not as though we’re going to slap the handcuffs on you and take you away otherwise we’d be at the police station if we were gunna do that, wouldn’t we?

Significant admissions followed. The trial judge admitted the part of the conversation that preceded the page 25 statement, but excluded the balance of the conversation in his discretion. On appeal, the accused contended that the entirety of the recording of the conversation in the park should have been excluded under s 90. A majority of four held that the admission into evidence of the secret recording had not been unfair to the accused.[39]
[39]Em v The Queen (2007) 232 CLR 67 (Gleeson CJ, Gummow, Hayne and Heydon JJ, Kirby J dissenting).

Significantly, Gummow and Hayne JJ held, dismissing the appeal, that:

The very nature of the inquiries required under s 138 denies that the application of s 90 can be approached from a premise that attaches weight to an assertion that what was done by police was “improper”. In particular, the discretion to exclude the evidence of what the appellant told police is not to be engaged by simply asserting that a full caution was required, or expected, or should have been administered to the appellant. If that assertion is well founded (and it was not demonstrated, in argument, why it was) it fell to be considered under s 138. It was not relevant to the exercise of a discretion under s 90.[40]

[40]Em v The Queen (2007) 232 CLR 67, 106 [119] (Gummow and Hayne JJ).

That view is plainly inconsistent with the earlier views in Van Der Meer, Duke and Swaffield. Because Gleeson CJ and Heydon J found there had been no impropriety, it was not necessary for their Honours to consider the correctness of either view. They explained:

The appellant submitted that as a result of ss 84, 85 and 138, violence and the like, unreliability and unlawful or improper obtaining are not the touchstones of “unfairness” under s 90, for otherwise s 90 would not have independent work to do. But the appellant also submitted that the factors identified in ss 84, 85 and 138 were not irrelevant under s 90 – a submission which need not be dealt with, since the appellant did not submit that what the detectives did bore any resemblance to the conduct described in ss 84, 85 and 138.[41]

[41]Em v The Queen (2007) 232 CLR 67, 88 [53] (Gleeson CJ and Heydon J).

Counsel for Ms Kerr placed reliance on the passage I have extracted from Duke. There was, however, no reference to the conflicting authorities or an attempt to explain or distinguish them. Counsel for Mr Lewis did not take me to any authorities on the question of unfairness. The submission was simply that as a result of the impugned police conduct it would be unfair to admit the evidence.

5. Kerr
(a) The interview

The Kerr interview was conducted by Det. Senior Constable Moutis and Det. Sergeant Trewavas. It is convenient to consider it as occupying three distinct parts:

· Part 1 Questions 1 – 895: Questioning largely conducted by Det. Moutis. Ms Kerr adheres to the exculpatory account she gave to police in her statement of 30 December 2013.

· Part 2 – Questions 896-1061: Det. Trewavas commenced what he described in evidence as the challenge phase of the interview. This is to be excised by agreement.

· Part 3 – Questions 1062-1523: In this part of the interview Ms Kerr gives a different account to her earlier statement and to that given in Qs1-896. She admits that she was present but not a participant to the murder of Mr Stevenson, which was carried out by Mr Lewis. Mr Johns is prepared to overlook what he asserts are the shortcomings to the VROI insofar as this part of the interview is concerned. Alternatively, he argues, any shortcomings had been rectified by the third phase of the Kerr interview.

It is necessary to examine the evidentiary foundation for Mr Johns’ argument.

(i) At Kerang

At Kerang, Det. Birch met with Ms Kerr and Mr Lewis at Kerang Police Station. He was operating a hidden recording device. It is clear enough that Mr Birch, having accurately introduced himself to the tape as being from the Homicide Squad, then described himself to both accused as being from the Missing Person’s Unit. After some introductory remarks, he explained that he was involved in a search for the truth and it was critical that people assist the police in that regard. He indicated to both accused that he had their initial witness statements but a lot more detail was needed. He said that they would need to be interviewed by way of “DVD conversation” that would need to be conducted in Bendigo. Upon enquiry by Mr Lewis as to whether he could drive down to Bendigo (presumably with Ms Kerr), this request was politely refused by Det. Birch. He said, ‘We’ll be as quick as we can, I’m not trying to shirk the issue, but we’re hoping to be back in Melbourne perhaps by the end of today, so that sooner we get started, the sooner we finish.’ Presumably, in the absence of the accused, Det. Birch remarked to an unknown police officer, ‘…they don’t know at this stage I’m recording. They don’t know that, they’re helping us out. So I just want to make it easy-peasy. Yeah…’

The balance of this part of the recorded conversation concerns the Birch/Roche/Lewis car trip and is irrelevant to Ms Kerr’s arguments.

(ii) In the Police Car

In the police car Det. Trewavas drove Ms Kerr to Bendigo from Kerang. Det. Moutis sat in the rear with her. Shortly after leaving Kerang Det. Trewavas stated that he arrested Ms Kerr and cautioned her. The accused disputes the fact of both the arrest and the caution.

(iii) At Bendigo Police Station

The interview commenced at 1:27pm on 2 January. I shall set out the preliminary questions and answers in full.

DETECTIVE SENIOR CONSTABLE MOUTIS
Q1:     Danielle, according to the time, do you agree that it’s 1.27?
A:       It’s 1.27
Q2:     Can you just state for the record what your full name and address is?
A.Danielle Antoinette Kerr, currently residing at unit 2, 95 Boundary Street, Kerang.
Q3:O.K. I intend to interview you in relation to the disappearance and suspected death of Bill - - -

DETECTIVE SERGEANT TREWAVAS
Yes.
DETECTIVE SENIOR CONSTABLE MOUTIS
Q4: - - - Stevenson
A. Yep.
DETECTIVE SERGEANT TREWAVAS
Yep.
DETECTIVE SENIOR CONSTABLE MOUTIS
Q5:Before continuing, I must inform you that you are not obliged to say or do anything - - -

A. Yes.
Q6:- - - but anything you say or do may be recorded and given in evidence.

A.       Yep.
Q7:     Do you understand that?
A.       Yes, I understand that.
Q8:     O.K. Tell me in your own words what that means.
A.That means that if I know anything then I need to tell youse that, and I’m here to help youse as – as best I can.

Q9: Lovely. I’ll also give you your rights - - -
A. Yep.
Q10:- - - ‘cause it’s – you have the right to communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You have the right to communicate with or attempt to communicate with a legal practitioner.

A.       Yep.
Q11:    Do you understand that?
A.       Yes.
Q12:If you are not a citizen or permanent resident of Australia you have the right to communicate with or attempt to communicate with the consular office of the country of which you are a citizen. Do you understand these rights?

A. Yep.
Q13:Do you wish to exercise any of these rights before the interview proceeds?

A. Nuh.

I have viewed the DVD of the interview.
(b) Analysis
(i)Was Ms Kerr deceived into believing that she was a witness when in fact she was a suspect?

The answer to this question lies at the heart of Mr Johns’ submissions. If his client was so deceived he contends this to be impropriety pursuant to s 138 of the Act and to have created a situation of unfairness as contemplated by s 90. A critical factual dispute that bears upon this question is whether or not Ms Kerr was arrested during the trip from Kerang to Bendigo. If she was, it is very difficult to maintain that she was deceived into believing she was a witness, during the VROI. If she was not, then her argument is more sustainable.

I have set out the terms of the Birch conversation with both accused at para [39] of these reasons. In my view, it is clear that Det. Birch adopted very much a ‘tread softly’ approach to both accused at that stage. Neither was arrested. They were not told that they or either of them was suspected of murder. Neither was told that the burnt out Magna had been found close to the Wellsford property, nor that what may prove to be human remains were found in the boot. Both were told that their exculpatory witness statements were lacking in detail and that they would need to be interviewed on DVD. I have no doubt that at the conclusion of this conversation at Kerang, both Ms Kerr and Mr Lewis were entitled to conclude that as far as the investigators were concerned, they remained witnesses. I also have no doubt that Det Birch intended this to be so: ‘… they don’t know at this stage I’m recording. They don’t know that, they’re helping us out. So I just want to make it easy-peasy. Yeah …’ In my view, the only sensible interpretation of this aside by Det. Birch is that he wished to proceed very gently with both accused at that stage, and did not wish either to consider themselves as any more than witnesses. Indeed, Det. Birch maintained throughout his evidence that at this stage, Lewis was a witness in his mind. I will return, later in these reasons, to the truth of that assertion.

The direct evidence of Det. Trewavas was that he arrested Ms Kerr in the police car during the trip from Kerang to Bendigo:

Who arrested her?---I did.
When did you arrest her?---Very shortly after we left, um, Detective Moutis was speaking to her in the back seat – not about the matters, but just in general and I just informed her she was under arrest and “in fairness to you just understand your rights”.
Why did you arrest her?---Um, I felt the information that I had was sufficient to arrest and she was going to be interviewed in relation to the death of Mr Stevenson.
After you arrested Ms Kerr and provided her with her caution and rights in the car, was there any discussion about the investigation at all on the way back to Bendigo?---Not at all.[42]

[42]Transcript 179-180; see also, T 195ff.

In cross-examination, Det. Trewavas stated that in his mind Ms Kerr was a suspect. He had expected that she had already been arrested by the time that he met her and his arrest of her was simply re-affirming something that he believed had already occurred.

Det. Moutis said that she believed that Ms Kerr had been arrested at Kerang because of a note in her notebook ‘in custody’. She could not recall what caused her to have that belief and she could not recall Det. Trewavas arresting Ms Kerr in the police car.

Mr Johns submits that I ought be satisfied that Det. Trewavas is either mistaken or lying and that no arrest or caution occurred in the police car. He submits the following combination of circumstances ought lead to that conclusion:

·Det. Trewavas made no note of the arrest, despite it being his normal practice to do so.
·Det. Moutis made no note of the arrest.
·There is no reference to this arrest in either the Trewavas or Moutis statements.
·The arrest is not confirmed in the VROI.
·The notes of Sergeant Joyce[43] are some evidence that no arrest occurred.
·The exchange between Moutis/Trewavas and Kerr as recorded by Det. Birch is inconsistent with a subsequent arrest occurring.

To this list may be added various concessions made by Det. Trewavas from around Q900 of the VROI to the effect that he had been a little deceitful, that he was really from the Homicide Squad, that the deceased’s burnt out car had been found with human remains in the boot, that things had changed and that this was now a murder investigation.

[43]Exhibit A.

The combination of circumstances that I have identified in para [49] is not in my view sufficient to demonstrate the falsity of Det. Trewavas’s direct evidence of arrest and caution. I shall endeavour to set out my reasons:

(a)Dets. Trewavas and Moutis appear to have been present for only a relatively short period of Det. Birch’s ‘tread softly’ introductory remarks at Kerang Police Station. I agree with Ms Taylor that I ought not approach Mr Lewis and Ms Kerr as ‘boxed set’, and if Det. Birch genuinely did regard Mr Lewis as a witness at this stage this does not bind Dets. Trewavas and Moutis to the same belief concerning Ms Kerr.
(b)It is true that the fact of the arrest went undocumented either in Det. Trewavas’ notes (he accepted this was unusual), his statement, Det. Moutis’ notes, her statement or Det. Iddles’ notes. These are factors which may operate to cast doubt on whether in fact an arrest occurred, as may the fact that the arrest was not confirmed in the VROI.
(c)The notes of Sergeant Joyce contain no reference to the Kerr interview being an “Arrest I/V” and yet two other interviews recorded on that page of his notes do have such a notation. Sergeant Joyce seems to have been the person charged with assessing the welfare of those in custody. He was not called to explain his notes, nor was any other explanation proffered. In these circumstances, it is hard to ascribe much, if any weight to them without impermissible speculation.
(d)Similarly, it is hard to ascribe much if any weight to the two documents tendered by the prosecution entitled ‘Attendance Details to Create Brief Head’. The Lewis document contains the phrase ‘Non Arrest Interview’ whilst the Kerr document notes ‘Arrest Interview’. On the face of them these documents confirm the police arrest position for each accused. That being said, these documents are printouts of information kept on the Attendance Register database. It is unclear when the entries were created or by whom. They were extracted from the database by Det. Moutis on the evening after she had been cross-examined. Without considerably more evidence as to their provenance I do not propose to act upon them.
(e)Up until Q767, the interview had largely been conducted by Det. Moutis, with Det. Trewavas sitting passively in the traditional corroborator’s role. The Moutis questioning was benign and focused on detail. From Q768 onwards, Det. Trewavas commenced questioning Ms Kerr. The questions became more pointed. The questions and answers from Q896-1061 have been excised from the interview by agreement. During this period, Det. Trewavas moved to what he described as the ‘challenge phase’ of the interview. He advised Ms Kerr that Bill’s burnt out car had been found with human remains in the boot. He frankly conceded that perhaps he had been ‘a little bit deceitful sitting here listening to what’s going on’.[44] This was no longer a missing persons inquiry, Bill had been murdered. The nature of the investigation had changed and that he was actually from the Homicide Squad not the Missing Persons Unit. These concessions by Det. Trewavas could be seen as some evidence that he did not arrest Ms Kerr in the police car as a policeman ‘treading softly’ with the Missing Persons Unit façade is unlikely to arrest someone from whom ‘more detail’ is required. There is some force in this argument.

[44]Transcript of the Kerr Video Record of Interview, Q 900 (‘Kerr VROI’).

The power of Mr Johns’ arguments in my view comes largely from the failure of any police to document Ms Kerr’s arrest and caution and also from Det. Trewavas’ concessions and statement at about Q 900 of the VROI. These factors are not without merit, and when considered in combination do cause me some uncertainty as to whether in fact the arrest/caution occurred. Nevertheless, I consider Det. Trewavas to have been a sound witness who was prepared to make sensible concessions when required. On balance, I am satisfied by his direct evidence that the arrest/caution did occur. Put more correctly (having regard to the onus borne by the accused in this application) I am not satisfied that the evidence demonstrates that the accused was not arrested or cautioned in this way.

(ii) Bendigo Police Station

I have set out the VROI preliminary questions and answers at paragraph [43]. Ms Kerr was told that she was being interviewed in relation to the disappearance and suspected death of Bill Stevenson. She was cautioned and advised of her rights to contact a legal practitioner and others. When one superimposes this preliminary part of the interview over the fact that (as I have found) Ms Kerr had already been arrested and cautioned by Det. Trewavas in the police car then, in my view, it must have been clear to her that she was suspected of some form of criminal involvement in the disappearance of Mr Stevenson. By that time she had been cautioned at least twice, offered her statutory rights and advised that the police were investigating the disappearance and suspected death of Mr Stevenson.

Mr Johns raised, albeit faintly, the apparent misunderstanding by Kerr of the caution in the interview. When asked what she understood by it, she replied, ‘That means that if I know anything then I need to tell youse that, and I’m here to help youse as best I can.’ Det. Moutis replied, ‘Lovely, I’ll also give you your rights.’ Mr Johns accepted that, by itself, this passage may not amount to much (given the applicant was cautioned on numerous occasions in the interview) but argued that it was a factor that went into the mix to be assessed with my other factual findings. It is obvious that the accused misstated the effect of the caution. I have viewed the DVD of the interview. I am satisfied that the accused was alert and attentive during the caution. I am also satisfied that she is not unintelligent. The caution was expressed in simple, clear language. I am satisfied Ms Kerr understood her right to silence and her right to contact a solicitor and others. I am also satisfied that she voluntarily elected not to exercise those rights and wished to provide the police with the same exculpatory account that she had given in the 30 December statement.

I am also of the view that there was no discernable breach of s 464A(2)(a) and (b) of the Crimes Act. I have set out its terms in a para [10]. An investigating official is obliged to ‘inform the person of the circumstances of that offence’ before questioning that person. It is unnecessary for investigators to inform an accused of the precise details of the offences, or nominate a particular offence.[45] What is required is that the accused be apprised of ‘the central factual feature or features expressed in general and abbreviated terms, of the offence for which the person is in custody.’[46]
[45]R v Lancaster [1998] 4 VR 550, 557 (Batt JA).
[46]Ibid.

In my view the words ‘in relation to the disappearance and suspected death of Bill Stevenson’ are sufficient to comply with s 464A(2)(a). These words are almost identical to the example offered by Tadgell JA in Lancaster: ‘for example it would, I think, in the case of an investigation of a homicide, generally be sufficient compliance with the terms of s 464A(2)(a) to inform the person being questioned that the questioning relates to the death of a certain person at a certain time and place.’ Ms Kerr was informed that police were investigating the disappearance and suspected death of William Stevenson. The police may not have offered a time or place of death; at this stage they did not know it but Ms Kerr certainly did – as she confirmed in the unimpugned part of the interview, where she gave police those details whilst asserting effectively that she was an accessory after the fact to a murder committed by Mr Lewis.

It follows from what I have said that I am not satisfied that there has been any unlawful conduct or material impropriety on the part of the investigating officers. Ms Kerr was treated as was a witness by Det. Birch at Kerang but from the time of her arrest onwards she was treated by police as a suspect.[47] I consider that her interview was conducted in accordance with her status as a suspect and that there was compliance with s 464A(2). I do not regard s 138 of the Act as engaged, nor can I distil any s 90 unfairness to Ms Kerr in the sense that I have discussed it at [24]ff. Insofar as s 137 is concerned, I regards Qs 1 – 895 of the VROI as having a high probative value. The false exculpatory account is relied upon by the prosecution as incriminating conduct, although this same account was given to the police in statement form on 30 December. The prosecution also rely on Qs 1 – 895 as bearing on the credibility of Ms Kerr, particularly as it impacts upon Ms Kerr’s later exculpatory account (Qs 1062 – 1523). I do not consider there is any material danger of unfair prejudice to Ms Kerr arising from the admission of this evidence. It follows that I do not accede to the application to exclude Qs 1 – 895 of the VROI.
[47]I discuss the notion of a ‘suspect’ within the meaning of s 464 of the Crimes Act 1958 at para [95] of these reasons.

6. Lewis
(a) The interview

The Lewis interview was conducted by Det. Senior Constable Roche and Det. Sergeant Birch. Det. Birch was the lead investigator.

(i) Kerang to Bendigo

Det. Birch met with Kerr and Lewis at Kerang Police Station. I have described this encounter at [40].

Dets. Birch and Roche drove Lewis to the Bendigo Police Station. In transit, Det. Birch engaged Lewis in conversation, which at times took the form of preliminaries to a police interview. Det. Birch took Mr Lewis’ name and other details; he reiterated to Mr Lewis that he and Det. Roche were from the ‘Missing Persons Unit.’

Eventually, Detective Birch explained:

DETECTIVE SERGEANT BIRCH: […] So as I said, some of our investigations identify that the person reported missing has been the subject of a homicide. Yep. In some circumstances it was accidental, in some circumstances it was self-defence, in some circumstances it was manslaughter and in some circumstances it was murder. Yep. We keep a very open mind at the Missing Persons Unit. Now we don’t know what’s happened to Bill - - -

It was in that spirit of open-mindedness, Detective Birch stated, that he would be providing Mr Lewis with a caution. The transcript of the covert recording then records the following exchange:

DETECTIVE SERGEANT BIRCH:    Yeah. However, in fairness to you if you are involved, for instance, if he – if he does meet foul play and you know about it or have some involvement in it, yeah, everybody has rights, yeah. Witnesses have rights as well. They don’t have to talk to us if they don’t want to.
MR LEWIS:Yep.
DETECTIVE SERGEANT BIRCH:    Yeah. They can speak to a – a lawyer if they want to. They can tell a friend or relative. Have you heard this before?
MR LEWIS:No.
DETECTIVE SERGEANT BIRCH:    Never in your life you’ve heard that from police?
MR LEWIS:What’s that?
DETECTIVE SERGEANT BIRCH:    That – - -
MR LEWIS:What you’re telling me now?
DETECTIVE SERGEANT BIRCH:    Yeah, yeah.
MR LEWIS:Um - - -
DETECTIVE SERGEANT BIRCH:    Sure, you don’t – not that you have to.
MR LEWIS:No, I’m trying to think, yeah.
DETECTIVE SERGEANT BIRCH:    That’s all right. So what I want to say to you is, is that you don’t have to talk to us if you don’t want to, but our investigation relies absolutely on people such as yourself - - -
MR LEWIS:Yeah.
DETECTIVE SERGEANT BIRCH:    - - - by giving us the information that they have.
MR LEWIS:Yep.
DETECTIVE SERGEANT BIRCH:    Yeah. And as I said before in the police station, honesty is everything.
MR LEWIS:Well, I’ve got nothing to hide.
DETECTIVE SERGEANT BIRCH:    Yeah. No, no, I’m not saying you do. I’m not saying you do.
MR LEWIS:Yeah.
DETECTIVE SERGEANT BIRCH:    But you have to choose whether you want to talk to us or not. Yeah.
MR LEWIS:All right.
DETECTIVE SERGEANT BIRCH:    Or do anything or not. Yeah.
MR LEWIS:All right.
DETECTIVE SERGEANT BIRCH:    And we appreciate everything that you do do - - -
MR LEWIS:Yeah.
DETECTIVE SERGEANT BIRCH:    - - -to help us out. Yeah. Because this investigation would – would be fairly hard to – to conduct without people like you telling us certain facts and information. Yeah. ‘Cause we weren’t there, we don’t know.
MR LEWIS:No.
DETECTIVE SERGEANT BIRCH:    But you also – if you want to you can - you can speak to the – to a lawyer if you want to or a friend or relative. Yeah.
MR LEWIS:All right.
DETECTIVE SERGEANT BIRCH:    That’s entirely up to you if you want to do that. So that’s – that’s our – our practice in these circumstances, to let people know that – that everybody has rights. Yep. Now, we don’t know what’s happened to Bill. Do you know what’s happened to him?

Det. Birch then proceeded to informally interview Mr Lewis in relation to the disappearance of the deceased. The account he gave was essentially consistent with the statement he had given on 30 December 2013: Mr Lewis and Ms Kerr had left Donna Stewart's house with the deceased and driven to Lewis’ Wellsford property; there was an argument between the deceased and Kerr about purchasing drugs; Mr Lewis last saw the deceased as he (the deceased) drove off in his car.

(ii) Bendigo – the VROI

The Lewis VROI commenced at around 12:45pm on 2 January at the Bendigo CIU. There was some preliminary discussion before Det. Birch reminded Mr Lewis of the caution and rights he was given during the drive to Bendigo. He reminded Mr Lewis that he did not need to speak to Police.[48] He was told he may contact a friend or relative.[49] Finally, at Q 106, Det. Birch asked Mr Lewis whether he was ‘happy to continue’ or whether he wanted ‘to speak to anybody or do anything’.[50] Mr Lewis answered that he did not.[51]
[48]Transcript of the Lewis Video Record of Interview, Qs 78, 80 and 82 (‘Lewis VROI’).
[49]Ibid, Q 84.
[50]Ibid, Q 106.
[51]Ibid.

Mr Lewis then gave an account of the days leading up to the deceased’s disappearance. This account was essentially consistent with Mr Lewis’ earlier statements. On the morning of Christmas Eve the deceased and Ms Kerr drove to Mr Lewis’ farm in the deceased’s Magna. That night all three individuals drank and smoked ice. They did this around a campfire and through the night. At about 8:00am, Mr Lewis and Ms Kerr drove the deceased to work at the Hazledene Chicken farm. They dropped the deceased off and drove to Kerang to collect clothes from Ms Kerr’s home.

When it came time to collect the deceased from Hazledene’s about two hours later Mr Lewis and Ms Kerr got lost. By the time they arrived the deceased had gone. They drove to Donna Stewart’s house in Pyramid Hill. The deceased was there and was very angry. He had smashed his phone and hit the window of the car with his fist, although he calmed noticeably on their way to Wellsford.

When they arrived at the farm the deceased was very agitated. He wanted to smoke some more ice and argued with Ms Kerr about this.[52] He wanted Mr Lewis to help him buy some ice. Mr Lewis refused. The deceased was at the farm for about two to four hours before he got in his car, unhappy, and drove off.
[52]Ibid, Q 348.

Then, at Q 372ff, the transcript of the VROI records the following exchange:

Q372: It’s also very - - -
A:I just get this feeling, you know, right, that I should have spoken to a solicitor, ‘cause I feel like you’re trying to put words into me mouth.

Q373: No, no. Not at all, not at all.
A.Nuh?
Q374:Not at all.
[…]

Q387: I was gunna ask then - - -
A.Can I go for a smoke?
Q388:What – what caused him - - -
A.Can I go for a smoke?
Q389:Well, can – can I ask you just a couple more questions? Then we’ll go for smoke (sic). Yeah.
A.Yeah, cool.

The interview continued. Between Q 389 and Q 442 Mr Lewis provided additional detail to the account he had just given. At Q 477, at 1:40pm, the interview was suspended and Det. Birch and Mr Lewis went outside for a cigarette.

The interview resumed at around 2:19pm. Mr Lewis was questioned about his movements since the deceased’s disappearance. He had spent this time in the company of Ms Kerr. Mr Lewis said he had first learned that the deceased was missing on 2 January, when he was conveyed by police to Kerang.

After interviewing Mr Lewis about the roads along which he had travelled to and from Bendigo since Christmas Day Det. Birch stated,

Q736:All right. In the break - - -
A.Yep.
Q737:And I left my phone out there, but my boss has text me, my boss has found Bill’s car.
A.And?

[…]
Q740:About three K’s from the front of your – your front gate. The car is burnt out, damaged by fire, which causes us concern, significant concern.
A.Well, it wasn’t on that part from there along there. It wasn’t on there ‘cause if I’d seen it I would have known it. I would have seen it straightaway.
Q741:Do you know anything about the car being in Norman Road and damaged by fire?

A. Nuh.

Twenty questions later Det. Birch told Mr Lewis that ‘there was another very significant element to the car as well.’ He told Mr Lewis that a forensic pathologist had visited the car and confirmed the presence of human remains in the boot. He told Mr Lewis,

Q768:Probably Bill. We would think probably Bill but we certainly don’t know, but it’s a human being and the – and the body parts in the car a person cannot survive without. So the person to whom those body parts belong is deceased. So at this point of the investigation our greatest concerns seem to have been realised in relation to Bill. It’s highly possible that something happened.

A. I feel really sick.

The interview continued, although its complexion had become, by this stage, more confrontational. The Detectives challenged Mr Lewis’ answers to their questions, or asked him to account for inconsistencies in his answers. At 2:59pm the VROI was suspended and Mr Lewis accompanied the detectives outside for another cigarette. During that break Det. Birch informed Mr Lewis that he ‘would certainly be suspected of having involvement, certainly.’[53]
[53]Transcript of the Covert Recording, 150.

The exchange between the three men is recorded on the covert recording device operated by Det. Birch. Det Birch pressed Mr Lewis for more information. He told Mr Lewis that he kept an open mind: ‘Accidental, self-defence, manslaughter, murder, yeah, there could be a lot of things.’ Now was his ‘opportunity’ to be forthright. Then,

DETECTIVE SERGEANT BIRCH: Yeah. But we’re not forcing you to do anything, we’re just reaching out to you. Yeah?
MR LEWIS:So, what, have I gotta call a solicitor and that, do I?
DETECTIVE SERGEANT BIRCH: You don’t have to do anything. You don’t have to do anything.
MR LEWIS:Yeah. No, I’m feeling fucking sick. Sorry.

Det. Birch informed Mr Lewis he would ‘have to stay with us for a little while.’ He asked Mr Lewis directly if he had been involved in the deceased’s death or disappearance. Mr Lewis denied any involvement. Mr Lewis was then provided with a summary of some of the material facts that at that time were said to found the detectives’ suspicion of his involvement. Det. Birch told Mr Lewis that ‘at this stage it’s all sort of, like, coming to your front gate - - -‘ Mr Lewis’ response was this:

MR LEWIS:Yeah, well, that’s what I said, like, do I need to ring a solicitor or - - -
DETECTIVE SERGEANT BIRCH:    The – the – the – well, we don’t make any decisions for you, yeah, you’re an adult. If you have no involvement in his disappearance or death - - -
MR LEWIS:No I don’t, I haven’t – I’ve got no involvement with his – with his death.
DETECTIVE SERGEANT BIRCH:    Now whether you contact a solicitor or not - - -
MR LEWIS:Yeah.
DETECTIVE SERGEANT BIRCH:    - - - a lawyer or not is entirely up to you. We’re not gunna sway you one way or the other. Yeah. As I said before, we try and – we try – we succeed in acting in accordance with the law and total fairness to people, because if we don’t how do we know - - -

When the VROI interview resumed, at around 3:20pm, Det Birch reiterated that the investigation had ‘gone into a different category that is a – a – we suspect a crime has been committed, a homicide has been committed.’[54] Then, just under half an hour later, Mr Lewis was told ‘we suspect that you have, or Danielle has, involvement in his death.’ For that reason, Birch explained, the police had the lawful power to detain Mr Lewis for a reasonable time.[55]
[54]Lewis VROI, 100.
[55]Ibid, 110.

The interview was suspended at 3:57pm, and recommenced at 8:17pm when Mr Lewis was provided with a meal and refreshments. The interview is again suspended at 9:01pm.

When the interview recommenced at 9:07pm, the detectives resumed their questioning. They put various propositions to Mr Lewis, which he denied. For a third time Mr Lewis asked ‘whether he should speak to a lawyer?’ The response was:

Q1122: The decision is up to you. As I said to you - - -
A.Yep.
Q1123:- - - before, we don’t wanna sway you one way or the other ‘cause you’re the adult who makes that decision. We’re just here to try and establish the circumstances of what happened to Bill.

The interview was suspended a short time later so Mr Lewis could be sick. Almost immediately after the interview resumed, Mr Lewis said:

A.Sorry. I’m – I think I better get a solicitor.
Q1190:Is – the choice is entirely yours.
A.Well, I don’t know how you – well, I already told you that and - - -
Q1191:Is it important – I can hardly hear you, sorry, Darren.
A.Sorry.
Q1192:I don’t mean to be rude. Is it important in this circumstance who told us what or how we came by – by this? Isn’t the greatest importance the truth of these things? If we focus on the truth of them and explain, as – as I’ve asked you, explain why these things happened and how they happened, isn’t that more important rather than where these things came from? ‘Cause the issue will be the truth of it not where it comes from. The issue will be what’s gathered in the continuing investigation and what’s already been gathered.
A.No. I can’t – no comment. I’m gunna say no comment until I see a solicitor.
Q1193:Yeah, mate. Most certainly. That’s your right, that’s your right. Yeah. I don’t mean to make you upset.

The detectives discussed with Mr Lewis his options for securing legal representation. At that stage Mr Lewis asked if he could have a cigarette and if he could speak to Det. Birch alone, without Det. Roche. Det. Birch answered that he could, although they would have to leave the interview room to smoke.

Det. Birch reactivated the covert audio recording and escorted Mr Lewis outside. When they were alone, Mr Lewis vomited and dry retched for a time. Det. Birch then asked Mr Lewis what he wanted to speak to him about. Mr Lewis asked whether, ‘off the record’, the information put to him in the last phases of the interview had been obtained from Ms Kerr. Det Birch replied that it had, and proceeded to question Mr Lewis. During this covertly recorded questioning Mr Lewis confessed to involvement in the murder of the deceased.

(b) Submissions

As I have said, Mr Dann sought the exclusion of the interview and the covert recording under ss 138, 90 and 137 on the respective bases that the evidence was obtained improperly or in contravention of an Australia law, that it would be unfair to Mr Lewis to admit the evidence and that the probative value of that evidence is outweighed by the risk of unfair prejudice to Mr Lewis.

Mr Dann contended that the police, through their conduct, deliberately prevented his client from making an informed choice about the exercise of his rights. In particular, Mr Dann argued:

(a)The detectives treated Mr Lewis as a witness when, in fact, they knew he was in custody being interviewed as a suspect. This impropriety or unfairness was compounded by the detectives’ failure to comply with s 464A(2)(a) of the Act.
(b)Dets. Roche and Birch failed to comply with s 464(3) when they failed to inform Mr Lewis that his answers would be recorded and could be used in evidence against him.
(c)Dets. Roche and Birch failed to comply with s 464C when they:
(i)did not to ask whether Mr Lewis wished to exercise his right to speak to a lawyer;
(ii) ‘deflected’ Mr Lewis’ attempts to exercise that right; and

(iii)did not defer all questioning when Mr Lewis ultimately stated that he wished to speak to a lawyer.
(d)Detectives Roche and Birch deliberately led Mr Lewis led to believe that he was not being covertly recorded or, alternatively, knew that Mr Lewis believed he was not being covertly recorded and chose not to correct that belief.

The Crown response was, essentially, that the requirements of ss 464A(2)(a), 464A(3) and 464C did not apply at the commencement of the interview because Mr Lewis was neither a suspect nor in custody at that time. It was not until at least Q 740 that Mr Lewis became a suspect and the relevant obligations on the investigating officials were enlivened.

Further, and in the alternative, the Crown argued that Mr Lewis was in fact given a caution (s 464(3)) and made aware of his rights to contact legal representation (464C) prior to the commencement of the interview. Any failure to ask Mr Lewis whether he wished to exercise those rights did not, it is said, detract from his understanding of his entitlement to insist upon them; there was no ‘deflection’ of the accused in his attempt to exercise those rights; the police officers did defer questioning when Mr Lewis indicated he wished to seek legal advice and it was Mr Lewis who then volunteered the covertly recorded admissions.

As to the covert recording, the Crown argued that the detectives did not create or confirm in Mr Lewis any belief that he was not being recorded and that it was not improper to so record him.

In the event that I find impropriety or illegality on the part of the detectives the Crown submitted I ought exercise my discretion to admit that evidence (s 138) and that it would not be unfair to the accused to admit that evidence (s 90).

(c) Analysis

I have set out the terms of ss 464A(2)(a), 464A(3) and 464C of the Crimes Act at [10]. The application of those sections turns on whether Mr Lewis was (a) suspected of having committed an offence; and (b) in custody for that offence. It is convenient to deal with these questions in reverse order.

(i) Was Mr Lewis in Custody?

For the purposes of subdivision 30A a person will be in custody in the following circumstances:

464 Definitions

(1) For the purposes of this Subdivision a person is in custody if he or she is—
(a) under lawful arrest by warrant; or
(b)under lawful arrest under section 458 or 459 or a provision of any other Act; or

(c)       in the company of an investigating official and is—
(i)        being questioned; or
(ii)       to be questioned; or

(iii) otherwise being investigated—

to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.

No party suggests sub-ss (1)(a) and (b) apply. Mr Lewis was, however, in the company of two investigating officials[56] and was plainly to be questioned; by the end of the ‘caution’ at [61], above, he was being questioned.
[56]That term is defined in s 464(1) of the Crimes Act to mean, inter alia, ‘a member of the police force…’

The relevant power of arrest is provided at s 459:

459 Powers of police officer or protective services officer to apprehend offenders

(1) In addition to exercising any of the powers conferred by section 458 or by or under any other Act a police officer, or a protective services officer on duty at a designated place, may at any time without warrant apprehend any person—

(a)he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard and determined summarily); or

[…]

Whether there is sufficient information in the possession of the police to justify an arrest is determined according to an objective standard. That is, it is not necessary to say whether the police officer actually believed on reasonable grounds that the offender had committed an offence; it is sufficient that the ‘sum of knowledge in the possession of such person at a particular time, viewed objectively, meets the necessary criterion.’[57] As Ashley J observed in McCormack v Silberman:

[t]o so conclude is consistent with legislation designed to prevent the abuses that may be associated with interviews conducted without actual arrest over protracted periods. It is also entirely consistent with paragraphs 8.5 and 8.10 of the 186 Report of the Consultative committee on Police Powers of Investigation (the 1986 Report) which in due course led on to the enactment of s 464 in its present form.[58]

[57]McCormack v Silberman (Unreported, Supreme Court of Victoria, Ashley J, 17 December 1993) 5.

[58]Ibid.

At [5], I set out the information I consider must have been in the possession of the police on the morning of 2 January. I am satisfied that that information constituted reasonable grounds for the belief that Mr Lewis had been involved in the unlawful killing of the deceased. It follows that I consider Mr Lewis to have been in police custody pursuant to s 464(1)(c)(ii) of the Crimes Act from the moment he was accompanied by Dets. Birch and Roche to the Bendigo CIU.

(ii) Was Mr Lewis suspected of an offence?

A suspicion is not a belief that a person has committed an offence.[59] In Heaney, the Court of Appeal unanimously held that a suspicion, for the purposes of s 464H of the Act, is ‘a state of mind arrived at upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created.’[60] The Court extracted the following passage from Hampel J’s ruling in R v Redenbach, which explains the rationale for that low threshold,

I don’t think that for the purpose of categorising a person as a suspect one has to go further than to take the view that there are circumstances which tend to arouse suspicion of complicity. It doesn’t have to be supported by objective direct evidence. The Act seeks to protect people who are suspected of committing certain offences from interrogation contrary to the provisions of the section [464H]. The whole purpose of this legislation is to ensure that if the person moves from the position of being a suspect to a position of being an accused, the Court has before it information in the form which renders voir dires unnecessary in most cases.[61]

In my view those observations apply equally to the relevant provisions in this case.

[59]R v Heaney (1992) 61 A Crim R 258 (Phillips CJ, Crockett and O’Bryan JJ) (‘Heaney’); George v Rockett (1990) 170 CLR 104.

[60]Heaney (1992) 61 A Crim R 258 (Phillips CJ, Crockett and O’Bryan JJ)

[61]R v Redenbach (Unreported, Supreme Court of Victoria, Hampel J, 27 March 1990) 411; cited with apparent approval in Heaney (1992) 61 A Crim R 258, 257-258(Phillips CJ, Crockett and O’Bryan JJ).

It follows that in the paragraphs to follow the question I shall consider is whether Det. Roche and Birch apprehended that Mr Lewis might possibly have unlawfully killed the deceased.[62] Although Dets. Birch and Roche both gave direct evidence that they did not suspect Mr Lewis of involvement in the deceased’s death, I reject this evidence for the reasons below.
[62]See, for example, R v Laracy (2007) 180 A Crim R 19 34, [88].

First, and as I have said, I consider both detectives must have been in the possession of the information set out at [5] prior to their arrival at Kerang Police Station. Again, as I have said, that information included the facts that the deceased, Ms Kerr and Mr Lewis were ice/drug users and/or known drug traffickers; that there had been acrimony between the deceased on the one hand and the accused on the other; that Ms Kerr and Mr Lewis were the last persons to see the deceased alive; that the deceased had not been seen thereafter for 8 days; that the deceased’s car had been found three kilometres from the front gate to Mr Lewis’ farm, burnt out and with what were thought, by an attending police officer, to be human remains in the boot. It is inconceivable, in my view, that a person in possession of that information would not have apprehended that Mr Lewis might possibly have unlawfully killed the deceased.

Confronted by this argument, Dets. Birch and Roche sought to explain their lack of suspicion in the following way. First, Det. Birch said that the fact that the car had been located so close to Mr Lewis’ home was actually exculpatory: it pointed away, rather than toward, Mr Lewis as a suspect because no self-respecting criminal would discard evidence of a homicide so close to their own property.[63] I regard this rationalisation as arrant nonsense.
[63]T 21/25-31.

Second, Det. Birch said that it was not until it was relayed to him[64] that Dr Burke had confirmed that the remains were human (and that it was not possible to survive without those bones) that there would have been grave concerns for the deceased’s welfare. He said he was unswayed by the opinion of a ‘uniform[ed] police officer with zero experience’ that the bones were ‘vertebra’; ‘it could be anything in the boot’; ‘there can be a lot of innocent explanations for what appears to be a bad situation;’[65] kangaroo bones were one possibility.[66] Det. Roche agreed with this assessment: ‘it could have been a kangaroo, it could have been a dog, it could have been anything.’[67]
[64]Between 1:40PM and 2:19PM.
[65]T 92/14-17.
[66]T 67/12-19.
[67]T 160/18-21.

Of course the bones might not have turned out to be human, however, I do not accept that two experienced detectives, confronted with the information I have described, would have been so timorous in their preliminary conclusions. There is other evidence that suggests they were not timorous at all. Det. Birch, for example, explained to Mr Lewis during his VROI that the fact that the car had been found ‘burnt out, damaged by fire’ caused the police ‘concern, significant concern.’[68] That assessment was independent of any significance attached to Dr Burke’s confirmation that the bones were human, although a short time later the detective relayed that information, too, to Mr Lewis. Det. Roche, for his part, appeared to accept the significance of this evidence in cross-examination, which included the following question and answer:

Was your state of mind they may have been involved but I'm not 100 per cent sure if they were involved?---Well, they may have been, yes. They may have been. We didn't know. They were certainly the last people that we knew at that stage that saw the missing person alive. They were the last two people that we know at that stage that saw - that saw the missing person alive.[69]

[68]Lewis VROI, Q 740.

[69]See also Q72ff of the Lewis record of interview.

I am fortified in my conclusions by aspects of the evidence given by Det. Trewavas and Det. Moutis, who were tasked with interviewing Ms Kerr. In submissions, the Crown urged caution in treating the relative positions of Lewis and Kerr as identical; they were not, it submitted, a ‘boxed set’. Although I have accepted, (at [51](a)), that there is some force to this submission, it does not conclude the issue. First, despite the Crown’s protestation, Det. Trewavas' perception following the briefing was that ‘there was no distinction between […] Ms Kerr and Mr Lewis’ and that ‘they were both in the same category.'[70] Second, and assuming that there was some relevant difference between the investigation as it pertained to Ms Kerr and Mr Lewis, there is evidence that Det. Trewavas and Det. Moutis believed Mr Lewis to be a suspect.
[70]Transcript 216/30-31 and 217/1.

In cross-examination by Mr Dann, Det. Trewavas accepted that he had formed the view, at the conclusion of the briefing, that Mr Lewis was a suspect.[71] He accepted that it was his expectation, following that briefing, that both Ms Kerr and Mr Lewis would be arrested.[72] He explained that he had instructed uniformed police to arrest Ms Kerr and Mr Lewis if they refused to return to the Bendigo Police Station.[73] Det. Trewavas was also aware that a warrant to search Mr Lewis’ property had been obtained at around 10:41am on 2 January, which stated the investigated offence as ‘murder.’[74]
[71]Transcript 216/2.
[72]Transcript 216/5-7.
[73]Transcript 216/12-15.
[74]Transcript 216/22-25; I am unable to find that Det. Birch or Roche knew of the existence of this warrant.

Det. Moutis also appeared to accept during cross-examination that Mr Lewis, like Ms Kerr, had been identified as a suspect at the briefing. [75] She then qualified that answer, insisting the two individuals had been identified as 'persons of interest.'[76] She explained that it had only been after the briefing, upon receipt of ‘further facts’, that she had formed the view that Ms Kerr was a suspect.[77] When asked what those further facts were, she said:

'I formed the opinion that she was a suspect for me, because it was - and him - both Kerr and Lewis were the last people to see him alive, and they drove away with him from Pyramid Hill. Further to that, his burnt out Mitsubishi was located, I believe, three ks proximity from where Mr Lewis resided and what appeared to be human remains in the car.'[78]

[75]Transcript 119/20-23.

[76]Transcript 119/31 – 120/1-2.

[77]Transcript 120/6-8.

[78]Transcript 120/9-18.

Without exception, that information was information contained in the Roche Email, which Det. Moutis had read prior to the briefing[79] and which was, she had claimed in examination- in-chief, reiterated during the briefing.[80] I regard the distinction, in her mind, between a ‘person of interest’ and a suspect as artificial. I also observe that the grounds for her ‘eventual’ suspicion relate with equal force to Ms Kerr and Mr Lewis; if anything, I consider them to bear more directly upon Mr Lewis.[81]
[79]Transcript 98/17-20
[80]Transcript 99/6-11.
[81]The car was found three kilometres from Mr Lewis’ property, not Ms Kerr’s.

As I have said, it is for those reasons that I conclude that Det. Birch and Roche suspected Mr Lewis of involvement in the unlawful killing of the deceased. It follows that I now turn to consider the question of compliance with ss 464A(2)(a), 464(3) and 464C.

(iii) Did Detectives Birch and Roche fail to comply with s 464A(2)(a)?

Because Mr Lewis was suspected of involvement in the unlawful killing of the deceased and, pursuant to s 464(1)(c)(iii), in custody for that reason, the detectives were obliged to inform Mr Lewis of the circumstances of that suspected offending if they wished to question him in order to determine his involvement, if any, in that offending.[82]
[82]Crimes Act 1958 (Vic), s 464A(2)(a); Lancaster (1998) 4 VR 550, 555 (Tadgell JA): ‘para (a) must be followed as a prerequisite to the exercise of the right to question which is conferred by subs. (2)(b).’

To so inform a suspect an investigating official must inform them of ‘the circumstances which are believed to give rise to the suspicion of the offence’. He or she must provide sufficient information to enable the suspect to understand what he is to be asked about, and also to make an informed decision concerning his rights such as the right to silence (s 464A(3)) and the right to communicate with a friend, relative or lawyer (s 464C).[83] As I explained at [54], it is not necessary to nominate an offence by reference to its legal classification; indeed, ‘very often an investigating officer will not know what the nomination of the crime should be and an investigation of a homicide might, of course, be of what turns out to be a case of murder or of something less than murder.’[84]
[83]Lancaster (1998) 4 VR 550, 555-556 (Tadgell JA).
[84]Lancaster (1998) 4 VR 550, 555 (Tadgell JA).

It will be apparent from my reasons that an essential fact or circumstance giving rise to the suspicion against Mr Lewis was the presence of the deceased’s car, burnt out and with what appeared to be human remains in the boot, only three kilometres from Mr Lewis’ farm. That information was not provided to Mr Lewis until Q 740 and it follows, in my view, that the detectives failed to comply with s 464A(2)(a) until that time.

(iv) Did Detectives Birch and Roche fail to comply with s 464A(3)?

Det. Birch provided a form of caution and rights during the car trip from Kerang to Bendigo. I have set out the relevant passages from the covert recording at [61]ff. Mr Lewis’ submission is that that caution was deficient for failing to inform him ‘that anything the person does say or do may be given in evidence.’ I accept that submission.

Det. Birch said to Mr Lewis: ‘[s]o what I want to say to you is, is that you don’t have to talk to us if you don’t want to, but our investigation relies absolutely on people such as yourself.’ He never added the additional clause, which is required for compliance with s 464A(3).

(v) Did Detectives Birch and Roche fail to comply with s 464C?

By s 464C, an investigating official must, before the commencement of the questioning of a person in custody, not only inform that person of certain rights to communicate, or attempt to communicate, with a friend, a relative or a legal practitioner, but also (subject to presently irrelevant exceptions) ‘defer the questioning and investigation for a time that is reasonable ... to enable the person to make, or attempt to make, the communication.’

a) Failure to ask if Mr Lewis wished to exercise his rights.

Mr Lewis submits the police failed to comply with this section when, after providing him his rights during the car trip from Kerang to Bendigo, the police did not ask him if wished to exercise any of those rights.

Mr Dann, for Mr Lewis, took me to the Victorian Court of Appeal decision in DPP v MD,[85] and relied upon it as authority for the proposition that s 464C(1) requires the police to ask a suspect whether they wish to exercise their rights.
[85](2010) 205 A Crim R 349 (‘MD’).

In MD, the respondent was given the information required by s 464C(1) and was asked whether he understood it. Although he said that he did, he was not asked whether he wished to exercise the rights to which his attention had been drawn.[86]
[86]Ibid, 352, [17].

The trial Judge held that in failing to do so the police had acted improperly or in contravention of s 464C(1). Her Honour relied upon the following passage of the Court of Criminal Appeal of this Court in Pollard v The Queen:[87]

In conveying the information required under s 464C(1), the investigating official is bound to make it plain that the entitlement described is a present entitlement. It would make nonsense of the legislation if the person in custody were not made aware that he could if he wished attempt the communication immediately.[88]

[87](1991) 56 A Crim R 171.

[88]Ibid, 178 (Young CJ, Fullagar and JD Phillips JJ).

In the circumstances of MD, which included, significantly, the fact that the respondent had lacked fluency in English,[89] her Honour found that ‘the police ought to have taken, but failed to take, especial care to ensure that the respondent understood that he could exercise then and there his right to communicate.’ This extended to asking the respondent, in plain terms, whether he wished to exercise his rights. After setting out her Honour’s findings, the Court of Criminal Appeal held that it followed ‘that the police had failed to do that which s 464C says must be done. In our respectful opinion, her Honour was correct in coming to these conclusions.’[90]
[89]Another, significant, circumstance was the fact that the respondent was ‘a refugee from the Sudan. When escaping the civil war in his homeland, he had suffered at the hands of the Kenyan police because he had no means of paying the bribe that was demanded as the price of his continued passage.’
[90]MD (2010) 205 A Crim R 349, 353 [21].

In my view that case does not stand for any general proposition that police are required to ask a suspect whether they wish to exercise their rights. Police are required by s 464C(1) to bring home to the suspect that their rights to contact a friend, relative or legal representative are ‘present entitlements’ which may be exercised ‘immediately.’ The easiest way of communicating this fact to a suspect will, ordinarily, be by asking them whether they wish to exercise their rights; it is not, however, the only way and only in some cases will the failure to do so constitute a contravention of s 464C(1).

I find that Mr Lewis understood at the conclusion of the conversation extracted at [61] that his rights were present entitlements which he could have exercised immediately. He is a native English speaker and appeared on the VROI as of average intelligence. The right to contact a friend, relative or legal representative was correctly and plainly stated and then repeated. Det. Birch also informed Mr Lewis that he had ‘to choose whether you want to talk to us or not […] or do anything or not.’

b) Deflecting Mr Lewis’ attempts to exercise his rights.

I find that the police did not deflect Mr Lewis in his attempts to exercise his rights. I am not satisfied that when Mr Lewis asked whether he should contact a lawyer that he was expressing a desire to contact a lawyer. I have already found that Mr Lewis understood his rights, and his entitlement to exercise them immediately. I also find that that understanding continued throughout the interview. In my view, and in light of this, it is more probable by his questions Mr Lewis was sounding the police out; he was, effectively, asking whether he was under suspicion in an attempt to decide whether, and at what stage, it would be in his interests to contact a lawyer.

c) Failure to defer questioning once he asked for solicitor.

Finally, Mr Lewis submits that the detectives failed to comply with s 464C(1) when they did not defer all questioning once Mr Lewis had explicitly communicated his wish to seek legal representation.

As Murphy J observed in R v Shaw, the obligation to defer all questioning arises as soon as the wish to communicate with a friend, relative or legal practitioner is communicated to the police:

I do not accept that it is only when the words of the s 464A warning or the words of the s 464C information are given that the said duty arises on the party of the investigating official. It is, in my opinion, when the wishes to communicate are made known to the investigating official.[91]

[91]R v Shaw (1991) 57 A Crim R 425, 438.

The Crown submitted that although Mr Lewis had asked for legal representation it was he who asked to speak to Det. Birch; he who had volunteered the impugned admissions; and he who had, in effect, waived, withdrawn or qualified his desire not to speak to the police until he obtained legal advice. I do not accept this factually, and I consider the submission to be wrong in principle. Section 464C(1) required Det. Birch to defer all questioning once Mr Lewis expressed his desire to speak to a legal practitioner. In my view, when Mr Lewis said he wanted to speak to Det. Birch it was incumbent upon Det. Birch to explain that Mr Lewis had communicated his desire to speak to a legal representative and that he, Det. Birch, was obliged to defer all questioning until he had the opportunity to do so. The detective was not entitled to rely upon an implied waiver of those rights.

(vi)Did the Detectives intend to prevent Mr Lewis from making an informed decision about his rights?

I am satisfied that upon his arrival at Kerang Police Station Det. Birch deliberately treated Mr Lewis as a witness when, in fact, he knew he was a suspect. I am satisfied that the reason for this was that Det. Birch considered it would make his investigation more difficult if Mr Lewis was informed that he was a suspect.

First, I have already found (at [45]) that both Ms Kerr and Mr Lewis were entitled to conclude, at Kerang, that as far as the investigators were concerned, they remained witnesses. I also expressed my view that Det Birch intended this to be so: ‘… they don’t know at this stage I’m recording. They don’t know that, they’re helping us out. So I just want to make it easy-peasy. Yeah …’

In his evidence, Det. Birch sought to explain away the whispered aside as an attempt to avoid the need for assiduous note-taking during his conversations with Mr Lewis.[92] In discussion I indicated I rejected this: I repeat that in my view the only reasonable interpretation of that aside – having listened to the recording of it – is that Det. Birch knew that both accused did not know that they were being covertly recorded and that he feared that had they known, they might not have ‘helped out.’
[92]

At this stage Det. Birch did not wish either accused to consider themselves to be any more than witnesses. I consider he would have been alive to the possibility that had they perceived themselves to be suspects they would have insisted upon their rights as suspects, in particular their rights to silence; this is the approach that I consider Det. Birch to have been distinguishing from the ‘easy-peasy’ approach.

Second, I have already found (at [93]ff) that Det. Birch must have suspected Mr Lewis of involvement in the unlawful killing of the deceased upon arriving at Kerang. The product of these findings is, of course, that he intended to mislead Mr Lewis. This plan embraces, and explains, the detective’s failure to give the s 464A(2)(a) caution. In this way Det. Birch intended to prevent Mr Lewis from making an informed decision about the exercise of his rights.

It also follows from this that I also reject Det. Birch’s denial that he attempted to hide the covert recording device from Mr Lewis. It is patently inconsistent with his whispered attempt to impress upon an unidentified police officer that it was important to do just that.

(d) Conclusion
(i) Section 138 – Impropriety and Illegality

I have identified the following irregularities in the conduct of the police investigation as it related to Mr Lewis:

(a)Det. Birch deliberately treated Mr Lewis as a witness when he was, in fact, a suspect. Mr Lewis was only informed that he was a suspect at 2:59pm (see above at [72]);
(b)The detectives failed to comply with s 464A(2)(a) of the Act until Q 740 of the VROI. In respect of Det. Birch, I consider this failure to have been deliberate and related to irregularity (a); in respect of Det. Roche, I am unable to say whether this failure was deliberate;
(c)The detectives failed to comply with s 464A(3) of the Act. The form of caution was deficient and that deficiency was not remedied during the subsequent interview. I am unable to say whether this failure was deliberate;
(d)The detectives failed to comply with s 464C of the Act. Det. Birch failed to defer all questioning once Mr Lewis had communicated his wish to obtain legal advice. Det. Birch was not entitled to rely on an implied waiver, withdrawal or qualification of that right.

I am satisfied that each of the above irregularities constitutes an impropriety for the purposes of s 138(1) of the Act. First, I am satisfied that each of the irregularities is quite inconsistent with ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement.’ Second, irregularities (b)-(d) almost certainly involve contraventions of an Australian law.[93] Third, s 139(1) deems irregularity (c) to be an impropriety.
[93]Cf Parker (2009) 83 ALJR 494, 501 [29] (French CJ).

It follows that I must exclude any evidence obtained in consequence of these improprieties, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which this evidence was obtained.

It is very difficult to disaggregate each of these improprieties and assess the extent to which discrete admissions made by Mr Lewis were obtained in consequence of those improprieties. I propose, in the paragraphs that follow, to somewhat artificially treat the impugned evidence as the consequence of the sum total of the improprieties.[94] I consider this to be appropriate for three reasons. First, I am satisfied that but for at least one of the improprieties the impugned admissions may not have been obtained, or obtained in the form in which they were obtained. Second, I consider that this approach is favourable to Mr Lewis because it allows me to balance the aggregate gravity of the improper course of conduct[95] against the other, relevant, considerations. Third, Mr Lewis has never sought to distinguish, as Ms Kerr did, between aspects of the interviews. His submission has always been that ‘the evidence contained in the covert recordings and Record of Interview has been illegally, improperly and unfairly obtained’ and as such ought be excluded.
[94]Although I consider that there is another sense in which it would be artificial not to aggregate the improprieties in this way.
[95]Which, because it was a course of conduct, I consider to be greater than the average of the gravity of the discrete improprieties.

I turn to the s 138(3) mandatory considerations:

(a)I consider the probative value of the evidence to be very high. During the covert recording Mr Lewis makes admissions, which, if accepted as such, tend to prove his involvement in the murder of the deceased;
(b)I consider the evidence to be highly significant to the Crown case;
(c)The relevant offence is murder. It is the most serious offence in the criminal calendar;
(d)Proceeding through the improprieties identified at [127] seriatim on a scale of low, medium and high I consider, a) that the gravity of Det. Birch’s decision to mislead Mr Lewis is quite high, although temporally limited by Q 740; b) I consider the failures to comply with s 464A(2)(a) to be medium in Det. Roche’s case, and quite high in Det. Birch’s case; c) I consider the failure to comply with s 464(3) to be low-medium in gravity. Had I been satisfied that non-compliance had been deliberate, I would have rated the gravity of this impropriety as medium; and d) I consider the failure to comply with 464C, in the manner in which I have described, to be low-medium. I consider the aggregate gravity of the improprieties, as a course of conduct, to be high.
(e)I have found that Det. Birch deliberately misled Mr Lewis. His contravention of s 464A(2)(a) was also deliberate. The balance of the improprieties were, in my view, inadvertent; and
(f)The improprieties were not in contravention of a right protected under the ICCPR;
(g)I consider that another proceeding is unlikely to be taken in relation to the impropriety or contravention;
(h)I am unable to say whether there would be great difficulty in obtaining the evidence without impropriety.

Balancing these competing considerations as best I can, I conclude that the desirability of admitting the evidence marginally outweighs the undesirability of admitting evidence that has been obtained in the way in which this evidence has. Had the evidence been less probative, less significant to the proceeding, or in relation to a less serious offence, I may well have been obliged to exclude the evidence.

It should be clearly understood that in declining to exclude[96] this evidence under s 138 I am neither explicitly nor implicitly giving curial approval to the illegality and impropriety that I have identified. To the contrary.
[96]Or, properly speaking, acceding to the Crown application to admit.

(ii) Section 90 - unfairness

This case raises squarely the issue to which I adverted at [29]-[37]. Mr Lewis did not point to any unfairness independent of or consequent upon the improprieties that I have found. The argument is, simply, that due to this improper treatment it would be unfair to admit the evidence.

Applying the broad tests preferred by Mason CJ and Brennan J in Van Der Meer and Duke, I am satisfied that had the investigation been properly conducted the impugned admissions may not have been obtained, or obtained in the form in which they were obtained. Had Mr Lewis been treated as a suspect (and notified of the circumstances that gave rise to the detectives’ suspicion) I consider there to be a real chance that he would have chosen to exercise some or all of his rights at the Kerang Police Station, or soon thereafter. This follows, in a sense, from my finding at [117]. The question, then, is whether the Van Der Meer and Duke approaches are correct or whether, as Gummow and Hayne JJ suggest in Em v The Queen, mere impropriety will never be a basis for exclusion under s 90.

My view is that this narrow view of s 90 is correct. First, dealing with mere impropriety under s 90 is anachronistic. Once the common law recognised Bunning v Cross and Lee as related but discrete bases upon which a trial judge could exclude evidence, there was no longer a need to deal with questions of discrete impropriety under the latter.[97]
[97]R v Clelland (1982) 43 ALR 619, 646 (Dawson J).

Second, and as an extension of the first point, although the ALRC intended there to be some overlap between s 90 and provisions such as ss 84, 85, 137 and 138, the broad view would render s 138 redundant in the case of an admission that is obtained in consequence of impropriety. Section 138(2)[98] is a textual indication that s 138 was intended to apply to admissions. In my view, parliament’s evident intention was that where evidence obtained in consequence of impropriety or illegality was to be excluded for, in plain terms, policy reasons, that exclusion should only occur after each of the mandatory and potentially countervailing considerations is taken into account. The broad view would subvert that purpose.
[98]Which is set out at [19], above.

Third, the focus of the unfairness discretion is on the unfairness of using the evidence against an accused at trial, and ‘not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as "fair" or "unfair".’[99] The narrow view is, in my opinion, more consistent with this.
[99]R v Ryan [2013] NSWCCA 316; Em v The Queen (Gummow and Hayne JJ) and 121-122 (Kirby J); R v Jarrett [2012] NSWCCA 81, 5 [15] (Blanch J, Basten JA and Hall J agreeing).

Fourth, I consider the weight of authority to be with the narrow view. There is some support for that view in individual or minority judgments of the High Court in cases preceding Em v The Queen.[100] A number of decisions of New South Wales Court of Criminal Appeal cite relevant passages of Em v The Queen with approval,[101] although I accept none of these have undertaken a detailed analysis of the issue. At least one decision of the trial division of this Court accepts the narrow view as correct.[102]
[100]See, for example, Tofilau v The Queen (2007) 231 CLR 396, 423, [68] (Gummow and Hayne JJ); R v Swaffield (1998) 192 CLR 159, 197-198, [77]-[78] (Toohey, Gaudron and Gummow JJ); R v Clelland (1982) 43 ALR. 619, 646 (Dawson J).
[101]See, particularly, R v Cooney [2013] NSWCCA 312, 5-6 [8] (Leeming JA with Latham and Johnson JJ agreeing); see, also, R v Ryan [2013] NSWCCA 316; R v Jarrett [2012] NSWCCA 81, 5 [15] (Blanch J, Basten JA and Hall J agreeing).
[102]R v Meade (Ruling No 1) [2013] VSC 250, [115].

Fifth and finally, nothing in the above should be taken to rule out some indirect s 90 relevance for impropriety. As I have observed, impropriety productive of forensic disadvantage or, arguably, unreliability may constitute unfairness for the purposes of s 90. There must, however, be some unfairness independent of or consequent upon the impropriety if it is to sustain an objection under the unfairness discretion.

It follows that I do not accede to Mr Lewis’ application under s 90.

(iii) Section 137

For the reasons which I have identified, I consider the probative value of the impugned admissions to be very high. Although I consider those admissions to be damaging to Mr Lewis’ case, in the sense that they are probative of guilt, I do not consider any unfair prejudice, in the sense contemplated by s 137, to attach to that evidence

7. Conclusion

It follows from the above that I will admit both accused’s impugned VROIs and the impugned covert recording.

[2015] VSC 64

27 February 2015