R v Loader No. Sccrm-01-235

R v LOADER
[2003] SASC 16
Criminal

MULLIGHAN J The accused was charged with two counts of murder. He pleaded not guilty. Before the jury was empanelled, he indicated that he objected to evidence being placed before the jury of the interview of him by Detective Rowney and Detective Jennings at the Port Adelaide Police Station on 6^th December 2000. The interview was in two parts. I permitted evidence to be given on the voir dire and after hearing submissions I ruled that the evidence of the first part of the interview would be admitted and that I was prepared to give further consideration to the second part of the interview after further evidence had been given at the trial. During the course of the trial, and before the prosecution case had closed, I heard further evidence on the voir dire and further submissions. I saw no reason to alter my earlier ruling. I said that I would give reasons for that ruling after the completion of the trial and I now do so. I have incorporated into these reasons references to the further evidence given on the voir dire.
In brief terms the grounds of the application were that Detective Rowney had not cautioned the accused before the interview commenced, had misled him about the purpose of the interview and had not given him important information. Consequently it would be unfair to admit the interview into evidence and it should be excluded in the exercise of discretion. There was no suggestion that the answers given by the accused were not made voluntarily or that the accused was in custody. He was not arrested until about five weeks after the interview.
Because of the challenge to the evidence of Detective Rowney that he did not regard the accused as a suspect in the disappearance and murder of the two men and the assertion that he should have so regarded him, it is necessary to set out significant matters which came to the attention of the police during their investigation and, in particular, to the attention of Detective Rowney. Detective Jennings was present at the interview as a corroborating officer and he had no information about the disappearance or murder of the two men which is relevant to any issue or the application to exclude the evidence.
The accused was charged with the murder of Alan John Goodwin between 24^th October 2000 and 27^th October at Port Adelaide (the first count) and with the murder of Terry Edwin Comans between the same dates also at Port Adelaide (the second count). Mr Goodwin was a dealer in cannabis and Mr Comans assisted him from time to time. The accused was involved with them in the growing of a cannabis crop at Prospect in rented premises.
It was the prosecution case that at about 6.18 am on 25^th October 2000 the accused telephoned Mr Comans and arranged to meet him. Mr Goodwin lived with his wife at Salisbury. He had an association with Mr Gatenby. The two men had known each other for many years and in recent times were associated together in the sale of substantial amounts of cannabis in Sydney where Mr Gatenby lived. On many occasions Mr Goodwin acquired the cannabis in South Australia and sent it over to Mr Gatenby who arranged for it to be sold and sent large sums of money to Mr Goodwin.
Mr Gatenby purchased a Toyota motor vehicle which he gave to Mr Goodwin for his use. On 25^th October 2000 this motor vehicle was in a crash repair shop at St Marys for minor repairs. Mr Goodwin had been using a hire car which he had to return to premises in the city. The hire car was returned and the accused met Mr Goodwin at the premises of the car hire business at North Terrace and drove Mr Goodwin to the crash repair shop to retrieve the Toyota vehicle. They arrived some time about mid-morning but some further work had to be done on the vehicle. They went away and had lunch and returned in the early afternoon. Mr Goodwin drove away in that vehicle and the accused drove away in his vehicle.
Neither Mr Comans nor Mr Goodwin were seen or heard from again. Their bodies, in an advanced state of decomposition, were found wrapped in materials on the side of a small country road between Mount Barker and Strathalbyn on 6^th December 2000 by a local land owner.
The accused leased an old warehouse known as Steamers at 14 Bower Crescent, Port Adelaide. He had been in possession of those premises since the previous year and had used them for rave parties and to grow cannabis. On 6^th December 2000 police entered. They searched and examined the premises over the next day or so and found blood and other indicators that two persons had been severely assaulted in those premises. It was the prosecution case that Mr Comans and Mr Goodwin met their deaths at those premises on 25^th October 2000. The prosecution proposed to call evidence capable of establishing that Mr Comans and Mr Goodwin were severely injured and very likely killed in that warehouse. As has been mentioned, the police had information that the accused was with each of the men at different times on that day.
On 26^th October 2000 Mr Goodwin’s daughter reported him to the police [VD P5] as a missing person. The matter was at first handled by the police at Salisbury and Elizabeth and eventually by the Major Crime Section in Adelaide. Information about Mr Comans and Mr Goodwin and their disappearance was accumulated by the police.
After the police at Salisbury had been informed that Mr Goodwin was missing an investigation was undertaken by uniformed police officers at Salisbury Police Station who regarded Mr Goodwin as a missing person. The matter was referred to Major Crime on 14^th November 2000. A document setting out a summary of the investigation by the police at Elizabeth and Salisbury used in briefing Major Crime police officers was admitted into evidence on the voir dire. It indicated that the disappearance of Mr Comans and Mr Goodwin could be linked and provided information about the Toyota motor vehicle, the disappearance of the two men, the addresses of Mr Coman’s father and Mrs Goodwin, information that the two men may be dead and that Mr Gatenby had been interviewed. Mr Gatenby had told police that he was a friend of Mr Goodwin, that he lived in Sydney, that upon hearing that Mr Goodwin was missing he had travelled to Adelaide and made enquiries, the persons he spoke to were all lying and he thought they were afraid, he thought Goodwin may have been involved in taking drugs interstate and he would contact the police if he heard anything. This summary also provided information that the Toyota motor vehicle had been found at Wingfield during the evening of 26^th October 2000 and that Ms Goodwin had produced to police a piece of newspaper containing a piece of cigar which had been placed in her letterbox and was found by her at about 8.00 am on 12^th November 2000. A test on the piece of cigar was positive for blood.
A computer printout entitled a Missing Persons Report of the police was also admitted into evidence on the voir dire. This report sets out the enquiries made, and information received prior to the investigation being taken over by Major Crime. It shows that on 2^nd November 2000 information was obtained that the last time Mr Goodwin’s mobile telephone was used was at 7.27 pm on 25^th October 2000 when he telephoned the accused. The police contacted the accused who said that he had been in contact with Mrs Goodwin and that the telephone call was about a game of golf at the Patawalonga Golf Course on the following morning. The accused said that Mr Goodwin did not keep that appointment.
Police spoke to Mr Gatenby on about 1^st November 2000 and established a link between the accused and Mr Goodwin through building activities and golf. At that time no information had been received by the police to suggest that the accused could be involved in their disappearance.
The Major Crime section kept a record of all enquiries of the detectives assigned to the case and the information received, and statements taken, by them. These records are in the form of a running sheet and notes of individual police officers. The information received was collated by Sergeant Baird who was the officer in charge of the administration of the investigation. For all practical purposes Detective Sergeant Eichner was the officer in charge of the investigation.
Police spoke to Mr Gatenby on 12^th November 2000 who told Detective Weber, inter alia, that he was convinced that Mr Goodwin had met with foul play.
Mr Goodwin, Mr Comans and the accused had been involved in the growing of cannabis at premises on Churchill Road, Prospect. Following information received from an anonymous caller, police entered those premises on 16^th November 2000 and found parts of the crop and hydroponic and other equipment necessary to grow the crop. They found the accused at those premises in the process of removing plants and he was arrested. He was cautioned in the usual manner in that he was told that he could refrain from answering any questions and that anything he did say may be used in evidence. He was taken to the Elizabeth Police Station and questioned by Senior Constable Clohesy and Detective Weber. He was again cautioned. He made some admissions of being involved in the crop in a limited way, including that he was looking after it since the disappearance of the two men and that he had assisted in setting up the equipment to grow the crop. The accused was charged with taking part in the cultivation of cannabis for sale and with possessing cannabis. He was released on bail. At this time the police had received information that the vehicle used to take Mr Goodwin to the work repairer on 25^th October 2000 was registered in the name of the accused and his address was supplied.
On 26^th October 2000, on the prosecution case, the accused telephoned an acquaintance, Mr Colangelo, who was a builder working on a site in Gilles Street in the City. He arranged to meet him and upon doing so asked him to dig a hole for him at a property at Port Adelaide because he had some rubbish to bury. Mr Colangelo said that he would undertake that task and one of his workmen would dig the hole on the following Saturday. The accused said that it had to be done straight away. It was alleged that during the ensuing conversation the accused told Mr Colangelo that he had killed two people and had two bodies to bury. Mr Colangelo did not take those statements seriously and considered them to be a joke. The accused took him to his utility which had a fibreglass canopy and showed him where the bodies lay. Mr Colangelo only saw a shoe. He then took the matter seriously and told the accused to leave. On the next day the accused telephoned Mr Colangelo and, in effect told him that he had not seen or heard anything. The police had no knowledge of these matters until some information was given to Sergeant Baird on 5^th December 2000, which I mention later.
At the interview of the accused by Constable Clohesy and Detective Weber, he was informed of his rights, including that he was not obliged to answer any questions. He was reminded of those rights at the outset of the interview and was again cautioned. The significance of this interview, for present purposes, is that he acknowledged that he knew Mr Comans and Mr Goodwin, that he had undertaken construction work at the premises knowing that they were to be used to grow cannabis hydroponically and that he was looking after the plants since they disappeared. He said that Mr Goodwin was a friend and that he was attending to the plants on the off-chance that he would re-appear and that he was not otherwise involved in the cultivation of the cannabis. The accused told the police that he had changed the locks on the doors of the Churchill Road premises because of his concerns that if Mr Comans and Mr Goodwin had gone missing that someone could have their keys and thereby have access to the premises. The accused mentioned that he had a shed at premises on Bower road, Port Adelaide. He did not mention the Steamers building. At the end of the interview, Constable Clohesy told the accused that the police would want to speak to him later about the disappearance of Mr Comans and Mr Clohesy and the accused said that he was happy to help where he could in that investigation.
Detective Weber was stationed at relevant times at the Elizabeth CIB. He became involved in the missing persons enquiry on 12^th November 2000. On the occasion of this interview the accused told the police officers that he was willing to assist them in relation to the missing persons enquiry. After the interview was completed, Detective Weber had a conversation with the accused. He provided information about Mr Comans, Mr Goodwin and Mr Gatenby, including their illegal drug activities. He suggested that there were problems between Mr Goodwin and Mr Gatenby in that Mr Gatenby was short changing Mr Goodwin. I need not set out what the accused said, but it was sufficient to raise or confirm suspicion that Mr Gatenby was involved in the disappearance of the missing men. Towards the end of this conversation, the accused said that he was fearful of what might happen to him and said, “If I go missing look only at Gatenby”. He said he was willing to continue to assist the police. The accused provided information about the missing men and their contacts. Notes of this conversation were given to Detective Eichner of the Major Crime Section on the next day or so. Detective Weber was of the opinion at that stage that the missing men had met with foul play but he thought that the accused was not responsible.
It was acknowledged by Detective Weber that the information which he had received indicated that the accused could have been the last person to see Mr Goodwin alive. He thought that he discussed that matter with the Major Crime Section.
According to Detective Rowney, the primary focus of the investigation after he became involved was to establish whether Mr Comans and Mr Goodwin were alive or dead and to speak to people who knew them and who may know their whereabouts.
Certainly by 2^nd December 2000 the police were interested in the accused in order to assist in locating Mr Comans and Mr Goodwin. He was placed under surveillance. The request for surveillance made on that day indicates that the police had information suggesting that Mr Comans, Mr Goodwin and the accused had a crop of cannabis in the Port Adelaide area and that although he had provided information to the police, it was suspected that he had not been truthful. The object of the surveillance was stated to include ascertaining the whereabouts of Mr Comans and Mr Goodwin and obtaining evidence relating to their disappearance. According to Detective Rowney, the purpose of the surveillance was to find out who the accused knew and if he was seeing Mr Comans or Mr Goodwin.
At about 8.20 pm on 5^th December 2002 the police received information from a retired police officer, Mr Schwartz, who had worked in the traffic division. He told the administration sergeant in the Major Crime team assigned to the investigation that he had received information from a person who wished to remain anonymous. The record made of this information included that the informant had been told by a male person that he had “wasted two people”. The report then proceeds “Suspect asked informant to assist in disposing of bodies. Suspect is:-Business partner of Goodwin and Comans. Was asked day after Goodwin disappeared. Was recently caught in the act with drugs and charged with possession of same. Drove Goodwin to pick up his vehicle.”
This informant was Mr Colangelo but his identity was not known to the Major Crime Section at that stage. When a statement was taken from Mr Schwartz, much later on 10^th February 2002, he told Detective Keane that he had known Mr Colangelo for about 20 to 25 years. He was aware of two men having gone missing and a motor vehicle of one of them having been found at Wingfield. Mr Colangelo told him that the accused had said that he had killed the two men and wanted to get rid of them. He wanted Mr Colangelo to dig a hole for him. He gave some other information and Mr Schwartz telephoned Major Crime and spoke to Sergeant Baird. In his statement he states that two police officers visited him the next day but did not ask him anything about what Mr Colangelo had told him about digging a hole. They only seemed interested in the location of a warehouse. He further states that after the bodies were found, Mr Colangelo again approached him and said that he had not told him everything. He said that when the accused approached him, he showed Mr Colangelo his utility and he looked in the back and saw a blue sneaker sticking up from under a blanket. He did not wish to give a statement at that time. Detective Rowney, Detective Eichner and other members of the investigation team were not aware of these matters at the time.
On 6^th December 2000 Detective Eichner was given the information supplied by Mr Schwartz, who he knew and regarded as reliable. He made a connection between the person described by the informant as a business partner of Mr Comans and Mr Goodwin and the accused in that he assumed that the person was the accused. He acknowledged that it was a significant piece of information and further enquiries had to be made. He said that he began to suspect that the accused was involved in the disappearance of the two men or in their murder. He instructed Detective Rowney and Detective Seja to see Mr Schwartz to try and ascertain the location of the warehouse at which the police suspected the accused had been growing cannabis with Mr Comans and Mr Goodwin at Port Adelaide. No decision was made at that time as to what action would be taken when the warehouse was located.
Detective Rowney was given the information from Mr Schwartz early the next morning but he said that he did not see the report. At the direction of Detective Eichner, he interviewed Mr Schwartz at about 9.34 am at Dernancourt. Detective Eichner had told him to “sort out where Bower Crescent place is” or words to that effect. He accepted that he would have been told about the information in the report, but he said that he could not remember if he was told that the male person had “wasted two people” and had asked the informant to assist in disposing of the bodies. He said he did not think he was given that information. A little later he said that Detective Eichner may have mentioned the name of the accused but he could not remember.
As the cross-examination progressed, Detective Rowney acknowledged that he was probably given all of the information in the report, but he could not remember. He asked Mr Schwartz to point out a location at Bower Crescent, Port Adelaide. He said that he made that request because the police suspected that there may be another drug crop at Bower Crescent but they were looking for premises at Bower Crescent, Semaphore. There is a Bower Road at Semaphore. According to Detective Rowney, he was not told by Mr Schwartz, or any one else, that the person said to have “wasted two people” was the accused. He was told that the person was involved in a drug crop, the collection of a vehicle and something else which he could not recall. He acknowledged that if he had seen the written report and read all of the information, he would have known that it fitted the accused. Detective Rowney informed Detective Eichner of what he had been told and then went with Detective Seja to Bower Crescent at Port Adelaide to make observations.
He arrived at about 10.40 am. He obtained information from a person in Bower Crescent as to the Steamers warehouse and that it was occupied by the accused. He then kept those premises under observation. He said that the purpose of the surveillance was to find out if the accused was seeing Mr Comans or Mr Goodwin. He was joined by two other police officers at about 12.45 pm. They had a closer look at the building but it was locked.
Whilst observing the premises, Detective Rowney received information from other police officers involved in the investigation. He was told that two bodies had been found at Strathalbyn. Detective Rowney said in evidence that he did not link those bodies with Mr Comans and Mr Goodwin but it did occur to him that they may be the same persons. He had no information as to the identity of the bodies at that stage.

In cross-examination he acknowledged he recorded in his notes that when he was at Bower Crescent he “stood by for central crime scene examination”. He said that examination would have been arranged on that day by Detective Eichner after he had requested that assistance. He said he made that request because the crime scene examiners are the experts.
Also, the police record entitled “Major Crime Journal”, which on occasions during the evidence was referred to as a running sheet, records activities of Detective Rowney on 6^th December 2000 as including an interview with “POI Michael Loader”. He said that “POI” means “person of interest”. When asked what he meant by that expression he said, “A person of interest is a person that you are enquiring about. He was a suspect, a person involved in the investigation”.
Shortly before 4.15 pm, the accused drove into Bower Crescent. Detective Rowney stopped him and asked him to accompany him to the Port Adelaide police station for an interview. He told him it was about Mr Comans and Mr Goodwin. The accused agreed and made his own way to the police station.
Detective Rowney’s evidence was that, at this stage of the investigation, the accused was not regarded as a suspect which I understood to mean that he was not suspected of having been involved in the disappearance of the two men. He said that the police were conducting enquiries in relation to many people, one of whom was Mr Loader. They were trying to establish the knowledge of people of the movements of the two men and if anyone had heard from them.
According to Detective Rowney, the police did have a suspect who was Mr Gatenby. He was the focus of their enquiries in the sense of being a suspect. Mrs Goodwin had informed them that Mr Gatenby had been to her house and undertaken a search for money and had said things to her along the lines that Mr Goodwin may turn up much later, which the police found to be unusual.
Mrs Goodwin had provided other information to the police about Mr Gatenby and other acquaintances of her husband, including the accused. She told the police that Mr Gatenby said that Mr Goodwin had about $150,000 and was holding out on him. He asked her if she was holding out on him. The next day she found a blood stained cigar stub wrapped in newspaper in her letter box which she gave to Detective Rowney on 12^th November 2000. Mrs Goodwin told Detective Rowney that she regarded the cigar stub as some form of warning that something had happened to her husband. It was not clear how much information about Mr Gatenby had found its way to Detective Rowney, but the evidence established that the police conducting the investigation were entitled to regard Mr Gatenby as a suspect and I accepted the evidence of Detective Rowney that he regarded Mr Gatenby in that way.
Detective Rowney said that he did not caution the accused at the commencement of the interview because he did not regard him as a suspect, but as a witness. He did not place much weight upon the information which had come through Mr Schwartz. He said that the police received many telephone calls about people committing murder and he does not place any value upon it until it is “qualified and quantified”. After speaking to Mr Schwartz, he did not know the identity of the person who gave the information. Although it is likely that it was Mr Colangelo, the police were not aware of his identity at that time.
I did not regard this evidence of Detective Rowney as inconsistent with his evidence as to what he meant by “a person of interest”. I accepted that he did not regard the accused as a suspect involved in the disappearance of the two missing men.
The interview was recorded on video tape and commenced at 4.42 pm. After having the accused confirm Detective Rowney’s notes of the earlier conversation at Bower Crescent, Detective Rowney told him that he was speaking to him regarding Mr Comans and Mr Goodwin being missing. He said that if they were missing, they had been missing for some time and could possibly be dead by their own hands or at the hand of someone else. The accused said that he understood. Detective Rowney said that he wanted to talk about “a whole heap of issues” as to where the accused met Mr Goodwin and Mr Comans and what involvement he had had with them. The following then occurred:
“QAlright. What can you tell me about how you’ve come to meet John Goodwin.
ARegarding their disappearance, any questions that you have to ask me, regarding that, I’m quite happy to talk about it.
QUm.
AUm, I think I’d rather have legal advice before I answer that question.
QSo what you’re saying to me is, you’re quite happy to talk about the disappearance, but you don’t want -
AWhich is what I believe that you are asking -
QOkay.
AThat’s what you.
QYou don’t want to talk to me about you’re relationship with them.
ANo, not at this point in time.
QOkay, that’s fine. Do you want to talk to me about you’re relationship with Terry Comans.
ANo.”
It may be seen from this brief exchange that the accused was well aware that he was not obliged to answer questions. He decided what questions he would answer and made his position clear to Detective Rowney. I have mentioned that he was informed of his rights when questioned on 16^th November 2000. He had gone to the police station voluntarily and he was not under arrest.
During the interview, the accused provided information to the police, the nature and detail of which was not relevant to the issue as to whether the interview should be admitted into evidence. At no time did the accused make any admission as to involvement in the disappearance or murder of Mr Comans or Mr Goodwin but, on the prosecution case, many answers were untruthful and were told to deflect the police from suspecting that the accused was involved. Also, some of the answers were capable of establishing that the accused saw Mr Goodwin on the day he disappeared and of proving various facts and circumstances which, when considered with other facts, could justify an inference that the accused was involved in the murders.
After the interview had progressed for what I estimated to have been in excess of 40 minutes, Detective Rowney asked the accused if he knew the area of Strathalbyn and when was the last time he had been there. The accused said that the last time he had been in that area was about four months earlier after he and his wife had seen friends at Moana. A little later the following occurred:
“Q What um, do you think has happened to John Goodwin.
AJudging by your questions about Strathalbyn and my hearing on the radio that two bodies had been found at Strathalbyn, I would guess that what we’ve suspected all along is probably true.
QSorry, can you just run that past me again, you, you’ve lost me, are you saying you’ve heard information on a, on a radio.
AYes I have, information on the radio today on the way down.
QWhat was that information.
AThe information was that um, that er Police were investigating two um bodies that were found at Strathalbyn from a public tip off.
QWhen did you hear that.
AProbably four o’clock news I guess.”
A minute or so later there was a break in the interview at 5.30 pm. Detective Rowney said that the accused wanted to have a drink and he spoke to Detective Eichner. He was told that two bodies had been found near Strathalbyn but he was not told their identity. The bodies were found at about 11.10 am on 6^th December 2000. Police were called and arrived at about midday. Dr Gilbert, a forensic pathologist, went to the place where they had been found at about 4.00 pm. They had not been disturbed before his arrival. They were wrapped in plastic with only shoes and socks protruding. They were placed in a van at about 5.00 pm and taken to the Forensic Science Centre. An autopsy was performed on each body, the first of them commencing at 7.00 pm. Whilst police suspected that the bodies were those of Mr Comans and Mr Goodwin, that fact was not known until well after Detective Rowney had finished interviewing the accused on 6^th December 2000.
Police officers from the Physical Evidence Section went to Bower Crescent at about 4.00 pm for the purpose of examining the Steamers building for signs of physical evidence that may be relevant to the disappearance of Mr Comans and Mr Goodwin. They were instructed that the two men may have been murdered in the warehouse. They gained entry at about 5.10 pm. Detective Seja used his general search warrant. They walked through the building on each floor. There was no artificial lighting until power restored at about 6.35 pm. They found areas of apparent blood stains and completed their examination of the building on that day at about 9.45 pm.
Detective Rowney said that during the break in the interview, he asked Detective Eichner for directions. He was told that the crime scene examiners had been to Strathalbyn and were returning. Detective Eichner said that it was his intention that they then examine Steamers. He was told that the two bodies remained wrapped and had not been identified. Detective Eichner intended that the Steamers building be examined to see what was inside it. According to Detective Rowney, the information about the bodies at Strathalbyn did not provide any answers regarding the disappearance of the two men. He said that all he knew was that there were two bodies at Strathalbyn. He said that he thought there was probably a cannabis crop inside Steamers because Mr Gatenby had told Mrs Goodwin that he was looking for $150,000. He earlier learned from the woman at Bower Crescent that there had been a cannabis crop at 2 Bower Crescent.
The interview resumed at 5.59 pm. The accused was not cautioned and acknowledged that he was present voluntarily. He was asked when he was last at Steamers and said that he had been there during the previous week. He said that he had been at the building 15 to 20 times since Mr Comans and Mr Goodwin disappeared. He was asked where he had been in the building and said he would have been to most places within the building and that he would know if anything had changed or was missing. He said that Mr Goodwin would have been to the building between 30 to 60 times and that Mr Comans had been to the building about one dozen times. He refused to say what Mr Goodwin and Mr Comans did when at the building. He said that both men had been to each floor of the building. He said that the last time Mr Comans and Mr Goodwin went to the building was the day before Mr Goodwin’s disappearance.
Detective Rowney asked questions as to whether either of the missing men had ever bled or spat in the building. He declined to answer questions about what the two men had done in the building. He was asked where he was “on the night” that Mr Comans and Mr Goodwin went missing and said that he was at home with his wife. He told Detective Rowney that the last time he had been to the building prior to the disappearance of the two men was the morning of 25^th October 2000 when he was with Mr Comans. He denied that he took him to Steamers on that day. He then declined to answer questions about Mr Comans being at the building on that day. He said he last saw Mr Comans at about 7.00 am at Steamers and that he picked up Mr Goodwin at about 9.00 am at North Terrace.
The accused told Detective Rowney that after Mr Goodwin did not keep an appointment to play golf on the morning of 26^th October 2000, he went to Steamers and did not find anything unusual at the building. He declined to answer if he thought it was unusual that Mr Comans was not there and then said that he was just looking for Mr Goodwin at that stage. I need not repeat much of what was said in the rest of the interview but I mention some matters. He said he did not know whether the police would find Mr Comans’ television set or clothing at Steamers. When asked what the police would be likely to find on the various floors, he said “pigeon droppings” and then said what object and equipment was on each floor. He admitted that there was an old cannabis crop site in the building on the second floor. He then answered questions asked by Detective Jennings about other persons who had been at the building. He refused to say whether a cannabis crop was at the building when the two men went missing. He said that Mr Goodwin had a key. He told Detective Rowney that the last time he saw Mr Comans he was inside the building.
Detective Rowney told the accused that he intended to seize his motor vehicle for forensic examination, to search his house and to speak to his wife. The accused asked if Detective Rowney had the right to seize the vehicle and search his house and Detective Rowney told him that the police had general search warrants, that they had the right to seize the vehicle as evidence of a felony or misdemeanour and the right to conduct enquiries at his house and to search his house. The following conversation occurred:
“Q Do you understand that.
A Yes, absolutely, so are you treating me as a suspect at this stage.
QWe are searching your premises because of your association with Mr Comans. Do you understand that.
AYes.
QAnd obviously we are looking for certain evidence that I’ll be quite honest, I don’t fully know what we’re looking for. I haven’t been privy to that. Alright.”
In answer to a question from Detective Rowney, the accused said that he had been treated fairly.
Detective Rowney said that he was not told that police had entered the Steamers building and had found blood stains until after the interview with the accused was completed. He said that he asked questions about whether either of the missing men had deposited body fluids in the building because it was part of the normal course of questioning. He said he knew that the accused was a builder. He did not know what had been done in the building. Power tools could have been used and the missing men could have cut themselves. He said it was some information which could assist in finding out whether they had ever been to the building and also any such deposits could be used to establish their DNA profiles.
Detective Rowney said in evidence that his reason for seizing the vehicle was to see what, if anything, it contained such as receipts for the purchase of tickets. He said it was the usual course to take. He said that he suspected that Mr Comans and Mr Goodwin had been murdered and that Mr Gatenby was responsible. He proposed to search the accused’s house to see if there was anything there to indicate the whereabouts of the two men. He said he did not have in mind anything specific to look for. He explained what he had said to the accused about searching the house as meaning that he would be looking for documents relating to Mr Comans and Mr Goodwin to see if there was any direction as to where they went. He said that he was not fully aware of what had happened during the day from the work of other police officers. During the interview and the break, he was not given any information as to what had happened at Strathalbyn or what had been found at Steamers. He was not given any information as to the identity of the two bodies.
According to Detective Rowney, when he spoke to Mr Schwartz, he simply wanted to get the address of Steamers at Bower Crescent. He did not receive any details as to what Mr Schwartz had been told. He had the written record to which I earlier referred. There is support for that evidence in the statement of Mr Schwartz. Detective Rowney said that as someone had contacted his senior sergeant he would let him make the enquiries. His understanding was that someone had told Mr Schwartz that someone had told him that the accused was involved in a drug crop and disposed of the bodies. He did not take a statement from Mr Schwartz because it was not his job to do so. He said that at no time during the interview did he question the accused about the information given to Mr Schwartz because he had no idea as to the quality of the information. The purpose of the interview was to ascertain the accused’s knowledge of Mr Comans and Mr Goodwin, if he knew where they had gone and if there was any association between them and Steamers. He had not prepared questions for the interview as is his usual practice when he intends to interview someone, presumably a suspect.
The accused was not arrested after the interview. Detective Rowney said that he did not think that the accused had committed an offence. He was arrested about five weeks later. The situation had changed in that the bodies found at Strathalbyn had been identified as Mr Comans and Mr Goodwin. Mr Gatenby had been spoken to again and what he said had been verified. Mr Colangelo had been questioned and his information had been assessed and the focus shifted to the accused. At the time of the impugned interview, Detective Rowney had not seen a record of the interview of the accused on 16^th November for his having been arrested at the Churchill Road premises and had limited information as to what the accused had told the police on that occasion.
I mention other evidence of events prior to the interview. The running sheet, a Major Crime Journal, shows that on 4^th December Detective Rowney attended at the Technical Services Section and had a meeting regarding assistance in the investigation into the disappearance of Mr Comans and Mr Goodwin. Detective Rowney said that officers at the Technical Services Section had fingerprinted various pots, lights and other paraphernalia, presumably taken from the Churchill Road premises. On that day Detective Rowney took a statement from Mr Goodwin’s daughter who told him that Mr Comans told her that he was moving to a secret location to engage in some drug dealing which she thought was in the Port Adelaide area. The running sheet also indicates that on 5^th December 2000 Detective Rowney met with Detective Weber at Elizabeth. Detective Rowney said he could not recall this meeting but he did remember going to the Elizabeth Police Station at some stage and collecting statements and sundry documents.
A statement of Detective Seja and various records prepared by police officers, and incorporated into a running sheet, were admitted into evidence. They show that he went to the Port Adelaide Police Station with Detective Rowney but returned to Bower Crescent before the interview commenced. Upon his return, he spoke to police officers from the Physical Evidence Section and the Fingerprints Section. At 5.20 pm Detective Eichner and other police officers arrived and were briefed by Detective Seja. At 6.40 pm he returned to the Port Adelaide Police Station and then seized the accused’s motor vehicle. At 7.00 pm Detective Rowney and Detective Seja conversed with Senior Constable Ellison of the Physical Evidence Section and at 7.05 pm entered the Steamers building. They left the building at 7.17 pm and went to the accused’s house at Prospect.
Another record shows that at 10.45 am senior police officers, including Detective Eichner, decided to enter the Steamers’ warehouse, presumably when it was located. This record also indicates that Detective Eichner met Detective Seja and Detective Rowney at 11.15 am. This record also suggests that at 1.40 pm police contacted Mr Coman’s wife and Mrs Goodwin’s daughter and advised that it appeared that the bodies of the two men had been found. This note suggests that the officer-in-charge of the investigation had made a sufficient connection between the bodies which had been found and the missing men to contact relatives.
I now mention other aspects of the evidence of Detective Eichner. He was informed at about 12.30 pm on 6^th December 2000 that two bodies had been found at Strathalbyn. He went to the location of the bodies. He arrived at 2.52 pm and left at 4.35 pm. He did not know if they were the bodies of Mr Comans and Mr Goodwin because they were wrapped. During the post mortem on the bodies a tattoo was observed. He spoke to relatives of Mr Goodwin about the tattoo and in consequence of what he was told he thought it was highly likely that the bodies were those of Mr Comans and Mr Goodwin. He then went to the Port Adelaide Police Station and spoke to Detective Rowney during the break in the interview and then went to Bower Crescent arriving at 5.45 pm. He was then told that blood stains had been found on the staircase at the Steamers building. Although he returned to the Port Adelaide Police Station, he did not again speak to Detective Rowney. He did not speak to Detective Rowney again before the interview was completed. Detective Rowney had not received information from any other police officer during the course of the interview and so he was not made aware what had been found at the Steamers building until after the interview was completed. Detective Eichner did not return to the police station until after the interview had resumed and he did not give any information to Detective Rowney.

Detective Eichner said that he had not instructed Detective Rowney to interview the accused. He confirmed that he did make the telephone calls to relatives of the missing men earlier in the day that two bodies had been found in case they heard about it. He told them it was possible the bodies of Mr Comans and Mr Goodwin had been found.
It had been decided that if the warehouse at Port Adelaide was located, it would be placed under surveillance, entered, searched and examined.
Detective Eichner said that he went to the Port Adelaide Police Station because he knew that the accused was being interviewed by Detective Rowney. He wanted to see if everything was alright and if Detective Rowney needed any assistance. He said that he probably called into the police station because it was near Bower Crescent and it was on his way. He was cross-examined about his state of mind concerning the accused at this stage and he said that the accused could have somehow been involved in the disappearance of Mr Comans and Mr Goodwin. He said he did not recall conveying how he regarded the accused when he spoke to Detective Rowney. He said that when he returned to the police station after receiving the information as to what had been found at the Steamers building, his state of mind was that the accused could definitely assist the police with information about the disappearance of the two men and could give more information than he had provided. He said he had “some suspicions about his involvement” which were that there was other information which he could provide and that he may know something about the activities of what went on in the warehouse because he was associated with the two men.
Detective Eichner also said that if the stage had been reached that the accused was suspected of having murdered the two men and was to be questioned, Detective Rowney may have been the investigator to conduct the interview. He said that if the accused came to Bower Crescent whilst the police had the Steamers building under observation, and he had been present, he would have asked an investigator to speak to him and to interview him. According to him, there was no plan to get the accused out of the way of the proposed inspection of the building. Detective Rowney was the senior investigator and it was for him to make the decision in the circumstances of the situation at the time. He accepted that given the information from Mr Schwartz, if an investigator was questioning the accused, once he was aware of blood being found in the Steamers building, it was appropriate police practice to caution him.
Detective Eichner confirmed the evidence of Detective Rowney that as at 6^th December 2000, Mr Gatenby was regarded as a suspect and, he said, other persons were also being investigated.
I mention one further piece of evidence. During the course of the trial Constable Ellison of the Physical Examination Section of the South Australia Police gave evidence of her examination of the Steamers building. She arrived at Bower Crescent at about 4.00 pm and waited until she could enter the building. She was one of the principal examiners. She said that upon arrival she parked outside the front of the building and Detective Seja asked her to move the vehicle and park it in Aberdeen Street, which runs off Bower Crescent, and she did so.
Detective Seja was ill at the time of the trial. I received a written medical report which indicated that he could not give evidence. I was asked by the accused to accept the evidence of Constable Ellison and find that she had been asked to move to around the corner. I was asked to infer that Detective Seja had made the request because the accused could come along at any time and Detective Seja did not want him to know that the police had the Steamers building under surveillance or that they might enter it. The further inference which should be drawn is that the police did suspect the accused as being involved in the disappearance and possible murder of the two men.
Detective Rowney said that he was not aware of this direction by Detective Seja or the reason for it. I return to this submission shortly.
The purpose of a caution and when it must be given was discussed by King CJ in R v Dolan (1992) 58 SASR 501. He said at 504-505:
“The cautioning of a suspect that he is not obliged to answer questions, is the offspring of the rule rendering inadmissible in evidence confessions which have not been made voluntarily. It is also related to the discretion which a trial judge has to exclude evidence, including confessional evidence, if the admission of that evidence would be unfair to the accused. The caution tends to negative any suggestion of involuntariness or unfairness. The omission of the caution in circumstances in which it ought to be given, is not decisive as to the voluntariness of the confession nor of the fairness of admitting evidence of it. The judge must decide those issues by taking all relevant circumstances into account including the omission to administer the caution.”
The Chief Justice went on to discuss the position where the suspect is under arrest and then said at 505:
“There have been many developments in police interrogation practice in recent years, not least of which is the use of the formal interview in an interview room on police premises, the questions and answers being recorded either on a typewriter or, more recently, by means of audio or videotape. This interrogation frequently takes place before arrest. I do not think that the view which finds expression in the older cases that the need for the caution only arises when the police officer has made up his mind to arrest, adequately satisfies the requirements of fairness in the light of contemporary practices. It is noteworthy that the version of the English Judges’ Rules adopted in 1964, provides that:
‘As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.’ (Archbold’s Criminal Pleading and Practice (39^th ed), par 1389).
That rule has been reproduced in substance in Code C issued under the authority of s 66 of the Police And Criminal Evidence Act 1984 (Eng); Archbold (1992), Vol 1, par 15-258.
It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.”
I was a member of that coram and I agreed with those observations.
The position at the time of the investigation stage, as opposed to the stage of interviewing a definite suspect, was discussed by King CJ in The Queen v Szach (1980) 23 SASR 504. He said at 582:
“In conducting that investigation the police were entitled to put questions to any person, whether suspected or not, from whom useful information might be obtained (Rule No 1 of the Judges’ Rules). The duty of the police as to the manner of conducting such an inquiry is referred to by Street J (as he then was) in Reg v Jeffries (1947) 47 SR(NSW) 284 at 313-314 in a passage quoted with approval by the High Court in The King v Lee (1950) 82 CLR 133 at 155:
‘The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to admissibility of such evidence.’
In making their inquiries the police were entitled and, indeed, would be expected, to employ all legitimate investigatory skills. These include the skills relevant to conducting inquiries by means of putting questions in a way likely to elicit the truth. Very often a skilful inquiry will involve the non-disclosure of information known to the police. The police are not obliged to disseminate information in their possession. Frequently the prospects of the success of their inquiries would be enhanced by non-disclosure and damaged by disclosure. The truth may emerge when a suspect under questioning imparts information, already known to but not disclosed by the police, which could only be known to the suspect if he were the culprit.
Such legitimate investigatory tactics are not to be confused with falsehood or dishonest trickery. Honesty is to be demanded of the police and other law enforcement agencies at all times. Falsehood, express or implied, and dishonest trickery must always bring the condemnation of the courts however worthy the ends sought to be achieved by such methods.”
He also discussed the position when the stage of the investigation changes. He said at 583:
“A stage may come, moreover, in the course of police inquiries when some degree of disclosure is requisite. If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his rights to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position. Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated. These considerations led White J to exclude confessions in Reg v Fieldhouse (1977) 17 SASR 92 and Reg v Hart (1977) 17 SASR 100. I think that fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution.”
In Van Der Meer v R (1988) 82 ALR 10 Mason CJ discussed when a caution should be given. He said at 18:
“In reaching the conclusion that there was no impropriety in the interrogation of the applicants the trial judge overlooked the well-established constraints that apply to the interrogation of suspects. The common law balances (a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and (b) the need to ensure that a suspect is fairly treated and his right to silence protected. This balance is achieved by permitting the police to conduct a general inquiry into an unsolved crime until the stage is reached when the accusatory stage begins. It is notoriously difficult to define the point at which that stage begins because there is an infinite variety of fact situations. The Judges’ Rules endeavoured to meet this problem by imposing restrictions on police interrogation by reference to the occurrence of three events in the course of an investigation. They were: (1) when a police officer made up his mind to charge the suspect with a crime (Rule 2); (2) when a suspect was taken into custody (Rule 3); and (3) when a suspect was formally charged (Rule 8). The occurrence of any one of these events may be taken as marking the beginning of the accusatory stage when the giving of a caution is required: see Teh, ‘An examination of the Judges’ Rules in Australia’, (1972) 46 Australian Law Journal 489 at 493. And in one other situation at least the obligation to give a caution will arise earlier. For example, when the police have sufficient evidence in their possession to justify a charge, even if they have not decided to charge the suspect: see Devlin, op cit, p 29.”
It is appropriate at this stage to mention any views about each of the witnesses. I found all of the witnesses to be reliable and honest. I had no doubt that they were all doing their best to recall accurately the events which were the subject of their evidence. At times Detective Rowney did not move to his final position on some matters until cross-examination had progressed, but I did not regard that matter as affecting his credibility. I gained the impression that upon him reflecting about matters put to him, he was prepared to explain his position more carefully. I accepted the evidence of Detective Eichner and Detective Weber. There was no reason not to accept the evidence of Constable Ellison about the direction given to her by Detective Seja.
I concluded that by the time of the commencement of the interview, the police, including Detective Eichner and Detective Rowney, were becoming more interested in the accused. He had been placed under surveillance to see if he would lead them to the missing men. I accepted that Detective Eichner and Detective Rowney made a connection between the information provided by Mr Schwartz and the accused and that someone was saying that the accused could be involved. However, the identity of that person was not known to them and the reliability of the information was not known.
I also accepted that when Detective Eichner became aware of the finding of the two bodies, he accepted that they may be the bodies of the missing men and Detective Rowney made the same connection. The police had decided to enter and examine the Steamers building once it was located to see if there was evidence which could assist in ascertaining the whereabouts of the missing men or what had happened to them. I also accepted that if the accused was to be questioned, Detective Rowney would be the investigator to undertake that task. However, there had not been any decision to question the accused until Detective Rowney decided to do so. He made that decision on the spur of the moment. He had not planned an interview and had not made any preparations for it. He used the video recording facilities at the Port Adelaide Police Station in order to comply with s 74D of the Summary Offences Act 1953. At this stage Detective Rowney did not know what the accused would say to him and so he took the sensible precaution of complying with the section so that if anything was said which could be used in evidence it would be admissible. By the time of the commencement of the interview, the police, including Detective Rowney, were aware of a connection between the missing men and the accused and of the Steamers building which could have been used by them for growing cannabis.
I accepted the evidence of Detective Rowney that he did not know anything about Detective Seja asking Constable Ellison to move away from the entrance to the Steamers building. I was not prepared to draw the inference that this direction from Detective Seja demonstrated that he and the other police regarded the accused as a suspect in the disappearance of the two men or their possible murder. There was no evidence as to why Detective Seja made the request. I thought there could be a number of reasons why he may have done so consistent with the accused not being suspected of involvement in the disappearance of the two men at that stage. I did not speculate about those reasons in the absence of evidence but I thought that the police should not be criticised for not wanting the accused to know of an intention to inspect the building at that stage.
I found that Detective Rowney did not regard the accused as a suspect in the murder or disappearance of the two men at that stage.
He did not know if the information from Mr Schwartz would turn out to be reliable. He did not know that Mr Comans and Mr Goodwin were dead. He did not know that any crime had been committed, even though he had suspicions about those matters.
What stage had the investigation reached when Detective Rowney commenced the interview? I accepted his evidence that he did not regard the accused as a suspect. Furthermore, I do not think the stage had been reached where the police were satisfied that a crime involving the disappearance of Mr Comans and Mr Goodwin had been committed, although they suspected that the bodies of the two men had been found. The investigation had not “hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself”: Szach at 583. The investigation stage was continuing. I have set out in some detail what was said at the interview so that the question of fairness may be considered. It was made plain to the accused the purpose of the interview. The possibility that the missing men had been murdered was mentioned by Detective Rowney at the outset. I accepted that his stated purpose of the interview was correct.
As has been seen, it was known that the accused may have seen Mr Comans and Mr Goodwin on the day they disappeared. It was likely that he had an involvement with them in the production of cannabis. However, I accepted that there were sound reasons to regard Mr Gatenby as the suspect at the stage of 6^th December 2000. I accepted that further investigations were required to establish the reliability and accuracy of the information which had been given to Mr Schwartz. It was appropriate that trained crime scene examiners examine the accused’s vehicle and the Steamers building to avoid contamination. The stage had been reached when that vehicle and the building should be inspected. It was also appropriate that the accused’s house should be searched. It was reasonable to undertake these activities to see if any evidence was forthcoming to determine the whereabouts of the missing men.
The finding of two bodies at Strathalbyn was an important development but it was not known that they were the bodies of the missing men until well after the interview. I did not regard Detective Eichner’s contact with relatives of the two men during the afternoon as indicating any more than that the bodies could be those of the missing men. Detective Rowney said he did not link those bodies with the two men but, even if he did, it was not necessary for him to inform the accused at the outset of the interview because it was not then known that they were the bodies of the two missing men. I reached this conclusion even though Detective Rowney asked the accused questions about whether he had been to the Strathalbyn area which suggests that he had considered the possibility of a link. Even if that is so, there was no unfairness to the accused because he was aware, before the interview, that two bodies had been found in the Strathalbyn area. He told Detective Rowney that he heard about the finding of the bodies on the radio.

I also considered whether, in all the circumstances, Detective Rowney should have regarded the accused as the suspect in the disappearance of the two men and in their possible murder. I concluded that no such finding should be made. The correct categorisation of the accused was as “a person of interest” not as a suspect in the relevant sense. I did not accept that Detective Eichner suspected the accused of any offence arising out of the disappearance of the two men, although the information obtained from Mr Schwartz and the finding of the two bodies was pointing in that direction. Further investigation was necessary before the state of mind requiring a caution occurred.
Should I have made a finding that Detective Eichner did have the required state of mind, although Detective Rowney did not, the police could not organise themselves so that it allocated the task of interviewing the accused to a person who did not have reasonable grounds for suspecting the accused so as to avoid the need to give a caution.
The rules are designed to protect an accused person from unfairness and the rights of the accused cannot be compromised by the manner in which the police organise their tasks.
An aspect of this argument was discussed by Wells J, the trial Judge, in Szach: see 546-548 and 553-554. It was not necessary for him to resolve it but it is clear from his observations that there cannot be a concept of constructive or imputed knowledge on the part of all police officers involved in the same investigation. Whether there is unfairness to a person the subject of an investigation because he is questioned by a police officer who does not regard him as a suspect but other police officers do so regard him, must be determined upon the factual circumstances of the particular case. In the present case, events moved quickly after the disclosure to Sergeant Baird by Mr Schwartz on 5^th December 2000 and the ascertainment of the address of the premises at Bower Crescent, Port Adelaide early the next morning. The finding of the two bodies sharpened the focus of the investigation but it had already been decided to keep the accused under surveillance, not as a suspect of murder, but to see if he led them in some way to the missing men. As I have said it was not necessary to further consider this submission in view of my conclusions as to the state of mind of Detective Eichner on 6^th December 2002 before the interview commenced and before it was concluded.
I rejected the submission that Detective Rowney misled the accused by informing him that the interview was part of a missing person enquiry and by not telling him that Mr Comans and Mr Goodwin were dead and their bodies had been found. As has been mentioned, it was not known that the bodies found at Strathalbyn were the bodies of the two men, even though the police, including Detective Rowney, regarded that as a possibility. Obviously Detective Rowney acknowledged the possibility because he asked questions about whether the accused had been to Strathalbyn but he did not have any basis to tell the accused that the bodies of the two men had been found. At all events, he did tell the accused at the outset of the interview that the two men could be dead. The accused could not have been misled by his not having been informed that two bodies had been found because he was aware of that matter before the interview commenced. Detective Rowney conducted the interview fairly and appropriately given that the matter had not proceeded beyond the stage of the police investigating the disappearance of the two men.
I considered whether there was any impropriety on the part of Detective Rowney because of the timing of the interview. It is difficult to resist the conclusion that Detective Rowney requested the accused to go to the police station when he appeared in Bower Crescent to get him out of the way because of the presence of the crime scene examiners and the intention to enter the Steamers building. However, the only significance of that matter is, as I say, a matter of timing. There was no impropriety alleged about the forced entry into the building or the search by the police. I did not regard that matter as significant.
I also mention two other matters. The accused was aware of his right to remain silent and that he did not have to answer questions and he exercised it on many occasions during the interview. Secondly, he did not give evidence upon the voir dire and there is no evidence that he was in any way adversely affected by the manner in which the interview was conducted. Thirdly, there is some force in the submission by Mr Pearce, the prosecutor, that the accused used the interview to ascertain what information was known to the police.
For these reasons I concluded that it would not be unfair to the accused to admit the evidence and there was no reason to exercise the discretion to exclude it. There were some parts of the interview which I said I would exclude if so requested by the accused. Those parts are questions and answers about topics which the accused said earlier he would not answer. I left it to Mr Kourakis to indicate what parts, if any, he wanted excluded on that basis.

[2003] SASC 16

30 January 2003