R v Wrigley (No 2)

[2025] NSWSC 380

Supreme Court

New South Wales

Medium Neutral Citation:

R v Wrigley (No 2) [2025] NSWSC 380

Hearing dates:

31 March; 2, 3, 4 and 7 April 2025

Date of orders:

14 April 2025

Decision date:

28 April 2025

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

Reasons for orders made 14 April 2025:

(1) The police interview and body worn video of police questioning of the accused on 28 February 2023 is excluded from evidence pursuant to s 138(1) of the Evidence Act 1995 (NSW).

(2) The police interview of the accused on 28 March 2023 is excluded from evidence pursuant to s 138(1) of the Evidence Act 1995 (NSW).

Catchwords:

EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence — where the accused participated in two electronically recorded police interviews and body worn videos — whether the accused was a “protected suspect” when questioned by police — whether police believed that there was sufficient evidence that the accused committed the offences in question — statutory construction — whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence — where balancing exercise undertaken — whether advantage taken of vulnerable person

Legislation Cited:

Crimes Act 1900 (NSW), ss, 352, 352(2), 354, 355, 355(2), 355(2)(a), 356B, Pt 10A (repealed)

Crimes Act 1914 (Cth), ss 23B, 23B(2), 23B(2)(c)(i)

Evidence Act 1995 (NSW), ss 138(1), 138(3), 139(1)(a), 139(2), 139(2)(b), 139(5)(a), 139(5)(c)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 109, 110(1), 110(1)(b), 111(1), 112(1), 122, 130, Pt 9

Law Enforcement (Powers and Responsibilities) Act 2014 (NSW)

Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), rr 3, 28(1)(d), 29, 37(1), 38, Div 3 of Pt 3

Cases Cited:

Director of Public Prosecutions (ACT) v Okwechime (No 2) (2024) 385 FLR 1; [2024] ACTSC 34

DPP v Nicholls (2001) 123 A Crim R 66; [2001] NSWSC 523

George v Rockett (1990) 170 CLR 104; [1990] HCA 26

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v FE [2013] NSWSC 1692

R v Hunt (2014) 286 FLR 59; [2014] NTSC 19

R v Ireland (1970) 126 CLR 321; [1970] HCA 21

R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29

R v Pitts (No 1) (2012) 229 A Crim R 387; [2012] NSWSC 1652

R v Taleb (2019) 277 A Crim R 21; [2019] NSWSC 241

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Texts Cited:

Andrew Tink and the Hon Paul Whelan, Review of the Law Enforcement (Powers and Responsibilities) 2002 [Act] Report Part 2 (December 2013)

Category:

Procedural rulings

Parties:

Rex
Clinton Beau Wrigley (Accused)

Representation:

Counsel:
M Swift (Crown)
N Broadbent SC (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2023/101184

JUDGMENT

1. HIS HONOUR: The accused, Clinton Wrigley, is on trial on a count of murder; that on or about 23 January 2023, near Nyngan, he murdered Joel Carter (the deceased). There are three other counts on the indictment, involving the theft and/or disposal of property that had allegedly belonged to the deceased.

2. The allegation in the Crown case is that on the evening of 22 and 23 January (all dates in this judgment are for the year 2023, unless otherwise stated), the accused, who was aged 37 at the time, drove to a remote rural property known as Rosehill where the deceased, aged 59, was residing alone, and killed him by inflicting blunt force head injuries. He stole a Toyota HiLux (the HiLux) and some Milwaukee-brand tools that had belonged to the deceased. He destroyed the HiLux by setting fire to it on a backroad in the early hours of the morning of 23 January and later sold some of the tools.

3. The Crown case, other than evidence of alleged admissions made by the accused to others, is circumstantial in nature. The Crown will seek to establish that the accused was in the vicinity of Rosehill at the relevant time by evidence that includes expert forensic evidence as to the whereabouts of two mobile phones that the accused is alleged to have used in the early hours of 23 January, the content of text messages and times of certain calls made between those phones and others and the evidence of a witness who is subject to a non-publication order, and who I will refer to for that reason as witness A.

4. The accused has served a notice of alibi on the Crown, asserting that from about 11.30pm on 22 January to about 8am on 23 January, he was in his vehicle, a Toyota Tarago van (the Tarago) which was parked in a specified area of bushland just outside the township of Nyngan, other than between about 12.30am and 2.30am, when he walked into the Nyngan township and back again.

5. The accused challenged the admissibility of two electronically recorded interviews of him. The first was on 28 February (the 28 February interview) and the second, an Electronically Recorded Interview of him as a Suspected Person (an ERISP) on 28 March (the 28 March ERISP), occurred immediately following his arrest for the murder of the deceased. The accused also challenged the admissibility of one of two Body Worn Videos (BWVs) of questioning by police with the accused, made immediately before the 28 February interview (the BWV).

6. On 14 April 2025, I ruled that the 28 February interview, the BWV and the 28 March ERISP were inadmissible. These are my reasons for those determinations.

The 28 February interview and the BWV

Relevant statutory and regulatory provisions

7. The accused’s challenge to the admissibility of the 28 February interview and the BWV was on the basis that they should be excluded pursuant to s 138(1) of the Evidence Act 1995 (NSW); namely, that the evidence was improperly obtained and the desirability of admitting it did not outweigh the undesirability of admitting evidence that has been obtained in that way.

8. The accused submitted that his status, as of the 28 February interview, should have activated certain protections provided by Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), which is titled “Investigations and questioning”; in particular, that he came within the definition of a “protected suspect” but was not treated as such, which was the alleged impropriety.

9. Section 109 of LEPRA recites four objects of Pt 9. The first three relate to the limitation of time that a person who is under arrest may be detained for the purposes of an investigation and their rights. The fourth is as follows:

“109   Objects of Part

The objects of this Part are –

…

(d)   to provide for the rights of a suspect who is in the company of a police officer in connection with an investigative procedure but who is not so detained.”

10. Section 111(1) identifies the persons to whom the Part applies to include: “a person … who is a protected suspect in connection with an offence”.

11. The term “protected suspect” is defined in s 110(1) of LEPRA as follows.

“protected suspect means a person who is in the company of a police officer for the purpose of participating in an investigative procedure in connection with an offence if—

(a)   the person has been informed that he or she is entitled to leave at will, and

(b)   the police officer believes that there is sufficient evidence that the person has committed the offence.”

12. If the accused comes within that definition, the custody manager is obliged to inform them of certain rights and take certain steps to protect their rights, which are principally set out at ss 122–130 of LEPRA. As well, s 112(1) provides:

“112 Modification of application of Part to certain persons

(1)   The regulations may make provision for or with respect to the modification of the application of this Part to—

(a)   persons under the age of 18 years, or

(b)   Aboriginal persons or Torres Strait Islanders, or

(c)   persons of non-English speaking background, or

(d)   persons who have a disability (whether physical, intellectual or otherwise).”

13. At the time of the 28 February interview, police were aware that the accused was an Aboriginal person. The regulations impose additional protective responsibilities on the custody manager in respect of Aboriginal persons who come within the definition of a protected suspect.

14. Part 3 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (the LEPRA Regulations) is titled “Investigations and questioning”. Division 3 of Pt 3 is titled “Vulnerable persons”, which is defined in r 28(1)(d) to include “persons who are Aboriginal persons or Torres Strait Islanders”.

15. LEPRA Regulations 29, 37(1) and 38 are in the following terms:

“29   Custody manager to assist vulnerable person

(1) The custody manager for a detained person or protected suspect who is a vulnerable person must, as far as practicable, assist the person in exercising the person’s rights under Part 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person.

(2) In particular, the custody manager must ensure that the caution and summary required by section 122(1) of the Act is given to the person.

Note.

Section 122(1) of the Act provides that a custody manager for a person who is a detained person or protected suspect must, as soon as practicable after the person comes into custody or becomes a protected suspect, 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. It also requires the manager to give the person a summary of the provisions of Part 9 of the Act.

…

37   Legal and other assistance for Aboriginal persons or Torres Strait Islanders

(1)   If a detained person or protected suspect is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person,

the custody manager must—

(a)   immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified—

(i)   that the person is being detained in respect of an offence, and

(ii)   of the place at which the person is being detained, and

(b)   notify such a representative accordingly.

38   Cautions

(1)   If a detained person or protected suspect who is a vulnerable person is given a caution, the custody manager or other person giving the caution must take appropriate steps to ensure that the detained person or protected suspect understands the caution.

(2)   If the detained person or protected suspect is given a caution in the absence of a support person, the caution must be given again in the presence of a support person, if one attends during the person’s detention.

(3)   A reference in this clause to the giving of a caution is a reference to the giving of a caution 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.”

16. The term “protected suspect” is defined in r 3 of the LEPRA Regulations to have the same meaning as it has in LEPRA.

What the interviewing police knew of the accused’s potential involvement in the offences at the time of the 28 February interview

17. The accused resided in Warren with his partner, Natalie Riley. He was a truck driver and farmhand. He had two children, who resided with their maternal grandmother in Dubbo. He had supervised access to them periodically, including in the week beginning Monday 23 January in Dubbo, which was supervised by his aunty.

18. Witness A made a statement to police on 27 January, which is to the following effect. Witness A worked the Rosehill property growing crops and agisting sheep, by arrangement with the deceased and the deceased’s father, Owen Carter, who owned both Rosehill and Neeroc, which was an adjoining property. Witness A and the accused preferred to reside in their vehicles parked at Neeroc when working on Rosehill. The deceased resided at Rosehill by himself.

19. The two properties are about 20 to 25km from Nyngan. To drive from one property to the other using public roads takes about 14 minutes, driving at 50-60kph. There were dirt roads on the properties on which a vehicle could drive from the Rosehill house to where the accused was staying at Neeroc at the same speed in about 10 minutes. To walk that distance, at 5kph, would take about 1 hour and 36 minutes.

20. On Sunday 22 January, at about 9.16pm, witness A and the accused drove into Nyngan from Neeroc for dinner and a shower at the BP service station (the BP). Afterwards, they returned to Neeroc. At about 11.30pm, the accused told witness A that he was going to look for a stolen quad bike. He drove off in the Tarago.

21. The following morning, at about 2.30 to 2.35am, according to witness A, he was woken by a phone call from the accused, who asked him for directions to Warren from a back road, which witness A provided (The Crown case is that witness A was mistaken as to the time of the call; phone records indicate the first call he received on that date from a phone that, in the Crown case, was associated with the accused, was at 3.40am).

22. At about 5.28am, witness A was again woken by a phone call from the accused, who told him that he needed a lift back to Neeroc from the back road to Warren. Witness A then noticed that the Tarago was at Neeroc, parked near witness A’s truck. Witness A left Neeroc at about 5.45am in his vehicle (the Landcruiser) to look for the accused.

23. Investigating police were aware that, at about 5.53am, a driver on the Old Warren Road, between Warren and Nyngan, observed a vehicle off the road to be on fire, with no-one around. It was the HiLux (the HiLux fire site).

24. Witness A searched for the accused unsuccessfully for about 60km along the Warren-Carinda Road, between Warren and Nyngan, thinking that was the road that the accused meant. He returned to Neeroc at about 7.10am. His phone was flat, so he recharged it. When he turned it back on, at about 7.33am, he noticed he had three missed calls from the accused. Shortly afterwards, he spoke to the accused, who told him that he was about 10km down the Old Warren Road, which was a road not known previously to witness A. The accused asked witness A to bring him a drink. Witness A drove to that road, stopping at the BP to buy a drink, and picked up the accused at about 8.10am.

25. The accused was carrying a backpack and a black jemmy bar with a red grip (sometimes called a pry bar by witnesses). He was wearing jeans that had a large stain on the left leg from his knee to the mid-point of his upper thigh, which witness A said he assumed was a diesel stain, although he did not smell diesel.

26. On the drive back towards Nyngan, witness A passed some workers. As he did so, the accused leaned over, beneath the window level. In Nyngan, they passed by a woman on the footpath. As they approached her, the accused lifted some folders on the dashboard with his jemmy bar. They arrived at Neeroc at about 8.34am. The accused left in his Tarago shortly afterwards. Witness A surreptitiously took a photograph of the Tarago at that time.

27. On the same day that witness A made his statement to police, he drove with police to a location on the Old Warren Road where he said that he picked up the accused (the pick-up point) and participated in a brief video explanation on site, which was about 12.2km from where the HiLux was destroyed.

The BWV

28. On 28 February, the accused was approached at his home by two detectives of the NSW Police Homicide Squad, Detective Sergeant Bradley Gardiner (DS Gardiner), who was the officer in charge of the investigation, and Detective Senior Constable Reece Dimmock (DSC Dimmock). DS Gardiner activated his BWV. It recorded the officers introducing themselves to the accused, with DS Gardiner saying:

“Mate, as part of our investigation, we’re just interviewing and getting a statement … from any people that were working over Nyngan way around the time of, um, his passing … and we spoke to some neighbours and that and they mentioned that you might’ve been out there working on one of the properties nearby.”

29. The accused agreed. He was told that they would drive him to Warren Police Station and the BWV was turned off. Shortly after entering the police vehicle, the BWV was turned back on, which was the commencement of the second (contested) BWV. The accused was informed that the video was playing and was given an incomplete caution:

“DS Gardiner:   Just so you know, mate. I’ve just still got this going …

Accused:   Yeah, you’re right.

DS Gardiner:   … this machine, yeah, just until we get [accused coughs] so you don’t have to say anything if you don’t want to, but anything you say will be recorded. Do you understand that?

Accused:   Yeah, nuh.”

30. Missing from the caution was the warning that what was being recorded may be used in evidence. Later, referring to Warren Police Station, DS Gardiner said:

“… you’re not under arrest. But, um, all we’re going to do is go back there … and just get a statement from you about your movements, and that’ll be it.”

31. While en route to the police station and when waiting outside it, the officers questioned the accused as to his whereabouts on 21 to 25 January. The Crown relied on that part of the second BWV, in which the accused said that he travelled from Nyngan to Warren on the night of Sunday 22 January and then on to Dubbo for access to his children on Monday 23 January.

32. While in the police car, DS Gardiner said, referring to the accused working in the Nyngan area:

“DS Gardiner:   And who are you working for over there?

Accused:   [Witness A]

DS Gardiner:   [Witness A] all right … he’s at Bathurst, we got to go and speak to [him], so, um, we’ve spoken to I think a couple of other neighbours from White Gums, or something out … that way.”

The 28 February interview

33. Upon their arrival at Warren Police Station, the accused was informed by an independent police officer, Sergeant Rebecca Byles, that he was not under arrest. He was cautioned and informed that he may seek legal assistance and notify someone that he was at the police station.

34. The accused was formally cautioned and interviewed by DS Gardiner and DSC Dimmock from 1.53pm to 3.05pm. He was questioned at length about his movements and interactions with various individuals over the period in which the deceased was killed. Towards the end of the questioning, he was asked if he had killed the deceased, stolen his vehicle or set it alight, which he denied. At the conclusion of the interview, DS Gardiner said to the accused:

“Q618:   Um, do you agree that you undertook this interview, um, with the knowledge that you were a suspect not under arrest and here voluntarily?

A:   Yep.”

35. The accused’s account in the police station of his movements on 22 and 23 July was essentially that on the Sunday night, after he and witness A had dinner and a shower at the BP in Nyngan, witness A dropped the accused off at his Tarago, which was parked just out of town, and returned to Neeroc. The accused walked into town and, en route, had a sexual liaison with a woman who he had previously met, returned on foot and stayed the rest of the night in his Tarago. The following morning, he drove to Dubbo via part of the Old Warren Road, to see his children.

The parties’ submissions as to the admissibility of the BWV and the 28 February interview

36. The accused submitted that he came within the definition of a “protected suspect” when he was questioned by police on 28 February, which raises the question of fact of whether, at that time, the police officers conducting the interview “believed”, in the context of the definition of a “protected suspect”, “that there [was] sufficient evidence that the person has committed the offence”.

37. The Crown relied on the evidence on the voir dire of DS Gardiner, which was to the effect that, at that time, he regarded the accused only as a “person of interest” and not as a suspect or a “protected suspect” (as defined). DS Gardiner explained that his understanding of the term “suspect” was that it denoted a person that the police were about to arrest and charge with the offence in question. The only reason that police would not immediately arrest and charge a suspect would be if, for example, their arrest would entail security measures to be put in place first. Although the term “protected suspect” denotes a person in respect of whom the officer had a somewhat less degree of suspicion since under the first limb of s 110(1)(a) of LEPRA they are free to leave, the accused at that time was only a person of interest and not a suspect at all. He did not believe there was “sufficient evidence” that the accused had committed any of the offences he was investigating.

Consideration

The meaning of a “protected suspect” in s 110 of LEPRA; its legislative history

38. I am unaware of any authority as to the meaning of the second limb of the definition of a “protected suspect” in s 110(1) of LEPRA. That term and the legislative protections that apply to such persons were introduced into LEPRA by the Law Enforcement (Powers and Responsibilities) Act 2014 (NSW) No 31, which commenced on 1 September 2016.

39. In the second reading speech introducing the Bill, the then Attorney General, the Honourable Brad Hazzard MP, did not elaborate on the definition of a “protected suspect” or its operation, other than to note that it followed a recommendation made in a review of LEPRA which had been conducted by Andrew Tink (a former shadow Attorney General) and the Honourable Paul Whelan (a former Minister for Police) (the LEPRA Review). In their report, [1] they stated that their review was prompted by observations made by Adams J in DPP v Nicholls (2001) 123 A Crim R 66; [2001] NSWSC 523.

    1. Andrew Tink and the Hon Paul Whelan, Review of the Law Enforcement (Powers and Responsibilities) 2002 [Act] Report Part 2 (December 2013).

40. In that case, Adams J heard an application by the New South Wales Director of Public Prosecutions to overturn a decision of a Magistrate made pursuant to s 138 of the Evidence Act to exclude evidence of identification of the defendant by the victim of an assault, from a photograph of the defendant that had been taken by police during their investigation, while he attended a police station. The relevant police officer gave evidence that, before the photograph was taken, the defendant was “placed in custody ... in a sort of a dock area”. The Magistrate found that the taking of the photograph constituted an “invasion of the rights of the defendant” by reckless behaviour of police in not informing him that he was free to go. He was unlawfully detained because the only purpose for taking him “into custody” was to conduct an investigation and not so that he should be taken before an authorised Justice to be dealt with according to law.

41. It was accepted that, although the officer used the word “custody”, he meant it only in the sense that the defendant was dealt with in accordance with Pt 10A of the Crimes Act 1900 (NSW) (now in Pt 9 of LEPRA), rather than as an involuntary detainee. At the time, Pt 10A of the Crimes Act was titled “Arrest of offenders”. It included s 352(2), concerning a basis for arrest:

“352   Person in act of committing or having committed offence

(1)   …

(2)   Any constable may without warrant apprehend,

(a)   any person whom the constable, with reasonable cause, suspects of having committed any such offence,

(b)   …

and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.”

42. Part 10A of the Crimes Act provided for lawful detention after arrest for the purposes of investigation in certain cases and subject to certain safeguards. It included the following provisions:

“354   Objects of Part

The objects of this Part are:

(a)   to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person's involvement in the commission of an offence, and

(b)   to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a justice, Magistrate or court without delay or within a specified period, and

(c)   to provide for the rights of a person so detained.

355   Definitions

(1)   …

(2)   A reference in this Part to a person who is under arrest or a person who is arrested includes a reference to a person who is in the company of a police officer for the purpose of participating in an investigative procedure, if:

(a)   the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, or

(b)   the police officer would arrest the person if the person attempted to leave, or

(c)   the police officer has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so.”

43. His Honour referred to issues in the construction of Pt 10A, noting in relation to s 355(2):

“11 … Thus, paragraph 355(2)(a) has the effect that, ‘a person who is in the company of a police officer for the purpose of participating in an investigative procedure’ that person is ‘under arrest’ for the purpose of Part 10A, even where nothing more is done and there is no actual restraint or even an intention to restrain, merely if the officer ‘believes that there is sufficient evidence to establish that the person has committed the offence’ that is to be investigated. (I pass over the great difficulty in understanding the actual nature or extent of the belief contemplated, especially in light of the apparently lesser degree of certainty required for arrest without warrant under s 352(2)(a).)

12   It is self evident that, where a suspect is in the company of an officer, who has the relevant belief (whatever this means), for the purpose of investigation no issues of lawfulness, let alone any issue concerning arrest, arise from these facts alone.”

44. His Honour concluded by stating:

“34 The problems of interpretation of Part 10A of the Crimes Act 1900 to which I have adverted (and there are others to which it was not necessary to refer) suggest that there should be a review of the Part in order to ensure both that police officers, who have the difficult task of applying it, and citizens who come to be dealt with under it should know with clarity what obligations it imposes and what rights it provides. The liberty of the subject and the requirements of investigation of crime are too important for there to be any confusion.”

45. The LEPRA Review quoted paragraph [34] from DPP v Nicholls and made the following proposal:

“We have therefore recommended that NSW adopts an approach similar to that set out in s23B of the Commonwealth Crimes Act 1914. In line with that approach section 110(2) should be amended to clarify that it applies to:

I. A detained person: This is a person who is in the company of a police officer for the purpose of participating in an investigative procedure, and they are under lawful arrest which has not ceased.

2. A protected suspect: This is a person who is in the company of a police officer for the purpose of participating in an investigative procedure, and

i. the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, and

ii. the person has been informed that he or she is entitled to leave at will unless they are told they have been placed under arrest.

When a person is detained, Division 3 of Part 9 outlines rights relating to the person in custody which must be complied with. These include:

• The right to communication with a friend, relative, guardian or lawyer

• Provision of an interpreter

• Right to medical attention

• Right to reasonable refreshments and facilities

Consistent with the Commonwealth Crimes Act, we are of the view that the above safeguards contained in Division 3 of Part 9 should apply to a person when they become a protected suspect (i.e. when the suspicion is formed that the person has committed an offence). This is appropriate as the same safeguards should apply to those who are participating in an investigative procedure as those under formal arrest.”

46. The LEPRA Review proposed the following definition of the term “protected suspect”:

“A protected suspect: is a person who is in the company of a police officer for the purpose of participating in an investigative procedure; and:

• the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, and

• the person has been informed that he or she is entitled to leave at will unless they are told they have been placed under arrest”

…

Division 3 of Part 9 would apply to a person when they become a protected suspect i.e. when the suspicion is formed that the person has committed an offence.”

Authority as to the meaning of statutory provisions in similar terms to the second limb of the definition of a “protected suspect”

47. There are two aspects of the definition of the second limb of a “protected suspect” in s 110(1) of LEPRA which require consideration. The first is the meaning of “belief” in that context, and the second is the subjective nature of the term “belief”; that is, whether it permits of an assessment of the objective reasonableness of the belief or the credibility of the evidence of the officer’s belief.

48. As to the meaning of “belief”, I note that in DPP v Nicholls, in the passages extracted at [43] and [44] above, Adams J expressed concern at the lack of clarity of the meaning of “belief” in s 355(2)(a) in Pt 10A of the Crimes Act, which is in a similar context to s 110(1) of LEPRA. The LEPRA Review did not address those concerns, in either the context of s 355(2)(a) or in the proposed definition of “protected suspect”, other than in that last observation extracted in [46] above, which equated it with a “suspicion” that the person had committed an offence.

49. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, whilst having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]. The fact that the person is also entitled to leave at will, consequent to the first limb of s 110(1), informs to some extent the nature and degree of “belief”. Clearly, it is not necessary for the officer’s belief to be based on admissible evidence to a criminal standard, otherwise, in most circumstances, the person would not be free to “leave at will”.

50. It is necessary to construe the provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [23]. The definition of “protected suspect” has a qualification to the police officer’s belief that the person committed the offence, namely, that the police officer believes that there is sufficient evidence that the person has committed the offence. All other references to the notion of “belief” in LEPRA are either unqualified or tempered by the phrase “on reasonable grounds”.

51. Section 99 of LEPRA provides that an officer may arrest a person without a warrant if the police officer “suspects on reasonable grounds” that the person is committing or has committed an offence, and the exigences of the situation warrant such an action, which are identified as one or more of nine circumstances. The questioning of a person following arrest automatically carries protections to the detained person, and the same protection for vulnerable detained persons as for vulnerable protected suspects. It would be illogical, in the scheme of the Act, for a “protected suspect” to require a higher degree of satisfaction that the person had committed an offence than a person who is arrested for that offence; that is, on suspicion, based on reasonable grounds, that the person committed the offence.

52. In George v Rockett (1990) 170 CLR 104 at 115; [1990] HCA 26, the High Court considered the meaning of suspicion and belief in the context of a legislative provision entitling a justice to issue a search warrant if “it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting … or reasonable grounds for believing” certain matters. The Court found they are different states of mind and explained their meaning, at 115-116:

“Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ ’ The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, ‘was unable to pay [its] debts as they became due’ as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said:

‘A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.’

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.” (citations omitted)

53. It is apparent from the last paragraph in this passage that if this understanding of “belief” is applied to that term in the second limb of the definition, it would denote a state of mind that falls short of the officer being convinced that the person in fact committed the offence.

54. I find that what is required by the second limb of the definition of “protected suspect” in s 110(1) of LEPRA is that, based on the available evidence at the time, the police officer is inclined to the view that the person had committed the offence. There may be many reasons as to why an officer would hold that view but not arrest the person; that is, that in accordance with the first limb, the person was entitled to leave at will. One reason is that the evidence, as it was at that time, did not exclude an exculpatory explanation for the evidence that tends to implicate the accused in the offence.

55. As to the subjective nature of the belief, I note that there has been some consideration of the circumstances in which a court may, and may not, override evidence of an officer’s belief, in respect of similar legislative provisions.

56. As noted in the LEPRA Review, there is a similar provision in the Crimes Act 1914 (Cth), which relevantly provides as follows:

“23B   Definitions

(1)   In this Part:

…

protected suspect has the meaning given by subsection (2).

…

(2)   A person is a protected suspect if:

(a)   the person is in the company of an investigating official for the purpose of being questioned about a Commonwealth offence; and

(b)   the person has not been arrested for the offence; and

(c)   one or more of the following applies in relation to the person:

(i)    he official believes that there is sufficient evidence to establish that the person has committed the offence;

…” (emphasis added)

57. The italicised words in subs 23B(2)(a)(i) quoted above are additional to the counterpart provision in s 110(1)(b) of LEPRA. In Director of Public Prosecutions (ACT) v Okwechime (No 2) (2024) 385 FLR 1; [2024] ACTSC 34, Mossop J found that the officers had not turned their minds to the issue before interviewing the person, and therefore s 23B(2)(c)(i) simply did not apply. His Honour added, at [88]:

“I accept that there may be cases in which a court will find that an officer did hold such a belief, notwithstanding that the officer denies it. One example is R v Hunt (2014) 286 FLR 59 at [130]. I do not accept the submission that it is permissible for the court to find that the officer constructively held such a belief. Rather, the question is one of actual belief. It is, however, possible for a court to reject an officer’s denial of holding such a belief if the circumstances warrant it.”

58. In R v Hunt, Hiley J of the Supreme Court of the Northern Territory rejected the evidence of a police officer that he did not believe, in the terms of s 23B(2)(c)(i) of the Crimes Act (Cth), that there was sufficient evidence to establish that the person had committed the offence. His Honour found that the officer did, in fact, hold that belief.

59. Subsections 139(2)(b) and (5)(a) of the Evidence Act have similar provisions, also with the addition of “to establish”:

“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.

(2) 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 questioning was conducted by an investigating official who did not have the power to arrest the person, and

(b)   the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and

(c)   the investigating official did not, before the statement was made or the act was done, 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.”

60. The combination of s 139(1)(a) and subs (5)(a) was considered in R v FE [2013] NSWSC 1692, in which Adamson J, as her Honour then was, considered the admissibility of two police interviews made by the accused on two charges, for murder and affray. In order to appreciate her Honour’s reasoning in arriving at her determinations, it is necessary to recount the background in some detail.

61. The deceased in that case was fatally stabbed on 8 July 2012 when a group of four young men attacked him and his two companions. It was alleged that the accused, who was aged 15 at the time, was one of a group of three girls who had argued with the accused’s group. According to a bystander, when the group of four young men arrived, the accused pointed to the deceased and said, “This guy, this guy”. The person who stabbed the deceased, Christopher Brilliantes, made a full confession to police on 11 July 2012. He did not implicate the accused. He pleaded guilty to the murder.

60. On 12 July 2012, the media reported that police wished to interview the three girls who were seen at the scene of the stabbing. The first interview followed the accused and the other two girls attending a police station that same evening in response to the media reports. The second interview, an ERISP, was conducted after her arrest, three weeks later. The Crown sought to tender the interviews submitting that its relevance was that it contained admissions and lies.

61. When the accused and the other two girls attended the relevant police station on 12 July 2012, they were spoken to by the officer in charge of the investigation, Detective Sergeant Fenwick (Detective Fenwick). Their attendance was unexpected. Detective Fenwick passed the accused to Detective Senior Constable Marino (Detective Marino) and Senior Constable Lawler, who had little knowledge of the investigation. The accused was told by police not to leave. Police arranged for her mother to attend, as a support person. She was interviewed without being cautioned and answered all questions asked of her. On the voir dire, she said she did so because “I thought we had to cause the cops asked us questions and I thought we’re supposed to answer them”. Detective Marino said she was treated as a witness rather than as a suspect.

62. Detective Fenwick gave evidence that when the accused and the other two girls attended the police station on 12 July 2012, “they were treated as witnesses because they were not, at that time, suspected of any criminal activity”. Her Honour found as follows:

“84   Although I accept that the main focus of the attention of the investigation was the male protagonists, I do not accept that the accused was not, as at 12 July 2012, a suspect. Both independent eyewitnesses implicated the three girls, two of whom had been identified by Brilliantes by their first names in still photographs blown up from CCTV footage. The CCTV footage available to police at the time showed that the girl who had not been named, the accused, intervened by pointing out the deceased to the principal offender shortly before he stabbed the deceased. She was therefore implicated, not only in the affray, but also, potentially, in the murder, at least if it could be proved that she knew that Brilliantes had a knife at the time she pointed out the deceased to him.

…

90   In my view, the evidence to prove the Crown case against the accused was largely in the hands of the police prior to the time of her presentation at the station on the evening of 12 July 2012. I do not accept that its significance to her criminal culpability was lost on police. Indeed, the media release made it clear that the girls were wanted in the context where they can only have been wanted as suspects. The CCTV footage tended to show that the accused (being the only one of the three not identified by name by Brilliantes) was more culpable that the other two. By simple process of elimination the police must have known, when she presented, that she was the one most likely to be charged in connection with the murder. In my view, she was, in substance, a suspect, at least in relation to affray, if not murder, and the police were obliged to treat her as such.”

65. As to s 139(5)(a) of the Evidence Act, her Honour said:

“97   Detective Fenwick was an experienced police officer. He was aware of the legal principles that apply to joint criminal enterprises. Although he did not see the broadcasts, he was told about the media release. He knew that Brilliantes had identified two out of the three girls, who had the same first names as the girls who presented with the accused on 12 July 2012. That he specifically asked Detective Marino to find out whether the accused knew that Brilliantes had a knife is a powerful indication that Detective Fenwick had in mind that she was already implicated in the affray and would, if she had such knowledge, be implicated in the murder. Notwithstanding his evidence to the contrary, I am satisfied that Detective Fenwick believed that there was sufficient evidence that the accused had at least committed the offence of affray about which she was to be questioned.

98   I am not, however, satisfied that Detective Marino believed that there was sufficient evidence that the accused had committed an offence about which she was to be questioned. He did not know that she was one of the three girls who was wanted. I accept that he did not have evidence before him to suggest that the accused was implicated in the offences of affray or murder, although, for the reasons set out above, there was such evidence and it was known to Detective Fenwick.

99 Accordingly, I am satisfied of s 139(5)(a) because I am satisfied that Detective Fenwick had formed the relevant belief.

100 Even had I not been satisfied that Detective Fenwick had the relevant belief, I consider that, had he considered the evidence then available to the police against the accused, he ought to have formed the relevant belief that the evidence was sufficient to establish that the accused had committed at least the offence of affray. This alternative finding does not fulfil the requirements of s 139(5)(a). Nonetheless if he had not formed the belief, but ought to have formed the belief, I would have nonetheless considered that the evidence was improperly obtained within the meaning of s 138(1) and would have excluded it for the same reasons as are set out below.”

66. Having found that both subs 139(5)(a) was satisfied by Detective Fenwick’s belief and that and 139(5)(c) was also satisfied, her Honour moved to consider whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence that was obtained in these circumstances. Her Honour found that it did not, and the evidence was inadmissible.

67. Accordingly, in the context of s 139(5)(a) of the Evidence Act, her Honour’s determination involved a finding that Detective Fenwick held that belief in spite of his evidence to the contrary, so establishing an impropriety that engaged s 138(1) of the Evidence Act. At [100], her Honour determined that a constructive or objective finding of “belief” was not permissible in the terms of s 139(5)(a), although it would have allowed a different avenue to a finding of impropriety.

68. In my view, the reasoning of Adamson J’s implicit construction and application of s 139(5)(a) of the Evidence Act is applicable to the second limb of the definition of “protected suspect” in s 110(1) of LEPRA; it is open to the Court to reject an officer’s evidence that they did not hold the requisite belief and determine on the evidence that, in fact, they did. An alternative basis of impropriety for the purposes of s 138(1) may be established if the Court accepts that the officer did not hold that belief but that they ought to have done so, in all the circumstances.

Consideration

69. The accused’s challenge to the BWV and the 28 February interview hinged upon whether the accused, at that time, was a protected suspect. If he was, then that evidence was improperly obtained, thus activating consideration of whether the desirability of admitting the evidence outweighs the undesirability of doing so. The onus rested on the accused to establish the first proposition and on the Crown to establish the second.

Detective Gardiner’s evidence

70. DS Gardiner’s explanation of why the accused was not a protected suspect was, in essence, because the evidence that tended to suggest that he committed the murder and/or the theft and destruction of the HiLux had potentially exculpatory explanations. Indeed, DS Gardiner stated that he did not regard the accused as a suspect at all, merely a person of interest in the investigation. DS Gardiner defined the term “suspect” thus:

“For my belief, a suspect is when you have sufficient evidence and that no matter what the accused may say or do that you will proceed with charging that person with the crime … You could form the basis that they are a suspect immediately before you arrest them but you have it in your mind that you are going to bring about arresting them and taking away their liberty.”

71. DS Gardiner said his understanding was that the threshold of a person being a “suspect” was higher than if they are a “protected suspect”, for the purposes of LEPRA:

“So I mean that the evidence would be higher and in terms of the protection required for the accused would be higher because you’re actually taking their liberty, so they’re not free to leave the police station as defined in the Act; that you are taking their liberty, the threshold of the evidence is higher, and the investigation that we are conducting would even be higher still.”

72. When asked what he understood by the words “sufficient evidence” in the second limb of the definition, he said:

“Well I believe that you had sufficient evidence in relation to that they committed the offence, or to near - to that threshold.

Q. Does that mean sufficient evidence to arrest him?

A. I believe that is higher, to arrest him.”

73. The reason DS Gardiner gave as to why he did not regard the accused as a “suspect” as that term is ordinarily used, at that time, and as to why the accused did not come within the definition of a “protected suspect”, was that there were possible exculpatory explanations consistent with the evidence that tended to incriminate him.

74. It is abundantly apparent that, having regard to the evidence that DS Gardiner was aware of as at 28 February that tended to incriminate the accused, he was at least a suspect, as that term is ordinarily understood and defined in George v Rockett, at 115, approving Hussien v Chong Fook Kam: “a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’”.

75. DS Gardiner had witness A’s account, as provided to police on 27 January, which is summarised above at paras [17]–[22] and [24]-[27]. He was also aware by then of evidence that corroborated aspects of witness A’s account, as follows:

1. Phone call records corroborated witness A’s account of phone calls with mobiles associated with the accused on the morning of 23 January. On 28 and 31 January, DS Gardiner obtained telephone intercept warrants in respect of two phones that he believed the accused had used on the morning of 23 January. DS Gardiner was aware, from those phone records and the downloaded contents of witness A’s phone that there were multiple calls between witness A’s mobile and those used by the accused in the early hours of 23 January that coincided with witness A’s account of his movements.

2. Witness A’s account of driving through Nyngan on the morning of 23 January to find and pick up the accused, first on the incorrect road and later on the Old Warren Road and then returning to Neeroc through Nyngan, was consistent with CCTV that captured his vehicle travelling through Nyngan at the times and in the locations and directions that he alleged, including stopping at the BP and leaving holding a drink.

3. On 13 February, police carried out a targeted stop of the accused in his Tarago and seized it. The vehicle’s number plates were for another vehicle. They found a jemmy bar inside that matched the description of the one that witness A said the accused was carrying when he picked him up.

76. There was other evidence known by DS Gardiner by 28 February that logically contributed to the suspicion that the accused had killed the deceased and stolen his property, including evidence of lies told by the accused’s partner, Natalie Riley, that tended to protect the accused.

1. DS Gardiner and DSC Dimmock spoke to Ms Riley on 21 and 23 February. She told them that the accused was in Dubbo on the weekend of 21 and 22 January. She denied that she had ever been to Neeroc, or that she was in Nyngan in the days prior to 23 January, or that she had ever met witness A.

2. DS Gardiner was aware that all of these assertions were contradicted by witness A’s account and by CCTV images in Nyngan at the relevant times. In his statement dated 27 January, witness A stated that he and the accused drove into Nyngan on the evening of Saturday 21 January and at the BP, the accused introduced him to Ms Riley. The three had a meal at the BP and went to a laundromat. They travelled back to Neeroc in witness A’s Landcruiser. Ms Riley spent the night at Neeroc with the accused in his Tarago. The accused took Ms Riley back to Nyngan the following afternoon (Sunday) at around 2.30pm to 3pm. He was gone for about 45 minutes.

3. By 21 February, DS Gardiner had viewed CCTV of Ms Riley, the accused and witness A at the Nyngan laundromat at 7.32pm on 21 January and the accused and Ms Riley at 3.52pm on 22 January arriving at the BP in the Landcruiser. At 4.22pm, the accused is seen to drive in the direction of Neeroc in the Landcruiser and Ms Riley being driven in the direction of Warren by Kristey Riley. The CCTV and witness A’s statement thus contradicted Ms Riley’s denial of being in Nyngan and having met witness A, and her assertion that the accused was in Dubbo that weekend. An obvious motive for Ms Riley to lie about those matters, and in view of the texts which suggest that she also was attempting to locate and pick up the accused on the morning of the murder, was to protect the accused.

77. DS Gardiner was also aware that, on the morning of 23 January, there were eight phone calls and 15 failed calls between the accused’s and Ms Riley’s phones between 4.19am and 7.26am. In addition, Ms Riley’s phone sent texts to the accused’s phone at 7.21am (“What road?”) and at 7.26am (“Txt me where”), which accorded with witness A’s account that the accused was trying to get a lift from a location which was not easy to determine.

78. On 1 February, intercepted phone calls captured the accused negotiating the sale of Milwaukee power tools and a jemmy (pry) bar. DS Gardiner was aware, from photographs downloaded from the deceased’s phone, that he possessed similar tools, although it was not until after 28 February that there was evidence matching some of the photograph’s contents with those that the accused was selling. DS Gardiner said:

“A.   Having listened to the telephone intercepts of the accused we became aware that he was selling tools to a person by the name of Rodney Sunderland. We were also aware during that monitoring of those services that one of those tools was a pry bar and that was some - an item that I suspected potentially was a weapon used in the offence.

Q.   Why did you suspect that?

A.   Based on my conversations with the forensic pathologist and the width of the impressions that were left in the victim’s skull, that item appeared to be consistent in measurement.”

79. DS Gardiner explained that his conversation with the pathologist was “within a week of the murder”. DS Gardiner believed that the dimensions of the jemmy bar that was seized from the Tarago were consistent with it being the murder weapon.

80. When DS Gardiner left Ms Riley on 23 February, he asked her to “get Clinton to call me when he gets home. We need to see him as this is a very serious matter”. Those words are indicative of the accused being more than “a person of interest” to police.

81. An investigator’s note dated 31 January by Detective Senior Constable Hayton, that was reviewed by DSC Dimmock, referred to witness A’s account of the accused having the stain on his jeans when picked up on the morning of 23 January. It continued: “Investigators suspect this stain to be blood of the deceased” and that arrangements were made for a forensic examination of witness A’s vehicle. It is difficult to reconcile that entry with the evidence of DS Gardiner that he did not believe, let alone suspect, that the accused had murdered the deceased.

82. As noted at [34] above, at the end of the interview, DS Gardiner put to the accused that he undertook this interview voluntarily, knowing that he was a suspect. DS Gardiner’s explanation for using that term was as follows.

“A. In relation to that aspect that I incorrectly mentioned the word ‘suspect’ and I was doing that off - with no notes in front of me of the closing of that interview. I looked over - which is seen in the video - where I can then confirm what form, being the person voluntarily in a police custody form, and tried to correct that by saying ‘here voluntarily’ … [The accused] was a person of interest that I was interviewing that day.”

83. I found this explanation to be unconvincing. I am satisfied that DS Gardiner was expressing what he believed to be so when he described the accused’s status as that of a suspect.

84. I turn to DS Gardiner’s explanation as to why he was of the view that the evidence at that time was insufficient for him to form a “belief” that the accused was guilty of murder or the theft or destruction of the HiLux, that is, because there were potentially exculpatory explanations that were consistent with the incriminatory evidence. DS Gardiner’s reasoning was based on an incorrect understanding of the meaning of the second limb of the definition of “protected suspect”. As is made clear in the last paragraph of the extracted quote from George v Rockett at [52] above, “belief” is not dependent upon evidence that establishes proof; the evidence may be insufficient for that conclusion. Such was the state of evidence against the accused as of 28 February. It was circumstantial in nature and could not exclude a reasonable possibility that the accused had not committed any of those offences. For example, he may have been in the company of those who were responsible for the offences but had not been part of a joint criminal enterprise with them. The stain on his jeans may have had an innocent explanation. But those possibilities did not detract from the force of the evidence that established the accused as a suspect, indeed as the primary suspect as the meaning of those words is ordinarily understood, for the murder of the deceased and the theft and destruction of the HiLux. I had no doubt that DS Gardiner and DSC Dimmock regarded him as such on 28 February 2023 and, according to the proper construction of the second limb, considered that the evidence was sufficient for them to believe that he had committed those offences.

85. On that basis, I was satisfied that there was an impropriety for the purposes of s 138(1) of the Evidence Act which engaged the balancing of the desirability of admitting the evidence of the BWV and 28 February interview against the manner in which the evidence was obtained, taking into account relevant matters identified at s 138(3) of the Evidence Act. In any event, had I not been satisfied that DS Gardiner held that belief, I was satisfied that he ought to have done so on the evidence known to him at that time, which would have been an impropriety warranting the same exercise.

86. I note that in that exercise, the onus is on the Crown. As to the desirability of admitting the evidence, I took into account the seriousness of the charge of murder, which has a maximum penalty of life imprisonment and, if a determinate sentence is handed down, in the circumstances of this case, a standard non-parole period of 20 years’ imprisonment. Although the evidence obtained by the police did not include admissions of guilt, the accused’s explanation as to his whereabouts in the early hours of 23 January, in the Crown case, is evidence of lies.

87. As to the undesirability of admitting the evidence, I note that it is not disputed that had the accused been treated as a protected suspect, he would have had the additional protections that apply to Aboriginal persons pursuant to the LEPRA Regulations, so that he would have been assisted to obtain legal advice from the Aboriginal Legal Service (the ALS) via its telephone legal advice service for protected suspects and detained persons, known as the ALS Custody Notification Hotline (the ALS Hotline).

88. I take into account that the accused was informed by police that the reason they were visiting him at his home was, effectively, a routine exercise in checking the whereabouts of persons in the vicinity of the murder at the time that he could deal with by way of a statement if he wished. Police referred to witness A in a way that, intended or not, strongly suggested that they had not yet spoken to him. DS Gardiner and DSC Dimmock were entitled to not disclose to the accused what information they had that implicated the accused, but the issue here is whether the accused was able to appreciate from what he was told that he was a suspect and would benefit from legal advice. He was not afforded a proper caution before he was first questioned, as captured on the BWV, as to his whereabouts on 22 and 23 January: s 139(2) of the Evidence Act. The interview was extensive, conducted over a period of an hour and twelve minutes.

83. Although excluding the evidence of the BWV and the 28 February interview deprived the Crown of, potentially, evidence of lies denoting a consciousness of guilt, it did not deny them the forensic advantage of the accused nominating his whereabouts at a place that the Crown, on its case, could disprove, since the accused has adhered to that location at the relevant times by way of his notice of alibi.

84. Accordingly, I was not satisfied that the desirability of admitting the evidence of the BWV and the 28 February interview outweighed the undesirability of doing so and that evidence was rejected.

85. Before leaving this part of the judgment, I note the difficulties I have highlighted that are inherent in the terms of the second limb of the definition of “protected suspect” in s 110(1) of LEPRA. The concerns expressed by Adams J in DPP v Nicholls in relation to similar terminology in the preceding legislative provisions governing police procedures with suspects, remain apposite and unaddressed. In the interests of ensuring that police officers, suspects and their legal advisors have a clear understanding of police responsibilities towards suspects, I respectfully suggest that the terms of the second limb be reviewed to achieve greater clarity of its meaning.

The ERISP dated 28 March 2023

92. Following the accused’s arrest at 3.30pm on 28 March for the murder of the deceased, he was taken to Warren Police Station. DS Gardiner and DSC Dimmock intended to re-interview the accused. The accused received telephone legal advice from Rima Martens, who was a rostered solicitor on the ALS Hotline. Records indicate that the phone call occurred from 5.55pm until 6.08pm. In an affidavit read on the voir dire, Ms Martens stated that the accused instructed her that he did not wish to be interviewed by police or make a statement. Ms Martens spoke to the Custody Manager, Sergeant Joshua Berryman (Sgt Berryman) and DS Gardiner, informing them of her instructions. DS Gardiner agreed that Ms Martens told him of the accused’s instructions. Sgt Berryman gave evidence that he did not recall the conversation but did not dispute that it occurred.

93. Ms Martens followed up by forwarding an email to both officers at 6.13pm the same evening, confirming what she had told them. The email was as follows.

“Dear Officer,

As requested in our telephone conversation, please accept this formal confirmation on behalf of Clinton Wrigley, DOB 21 / 04 / 85 that they:

I. Do not want to do an interview with police.

2. Do not want to go into the interview room.

3. Do not want to go on tape recording.

4. Do not want to make or sign any statements, including any statements or conversations recorded in a police notebook.

5. Do not consent to any forensic procedure.

I confirm that I have also verbally advised your Custody Manager of these instructions and asked it to be noted in the Custody Management Record.

If there is any problem or change to these instructions, then please contact the ALS Custody Notification Hotline as any change must be confirmed after further legal advice.

Thank you for your assistance.

Kind Regards,

Rima Martens

ABORIGINAL LEGAL SERVICE”

94. Sgt Berryman did not comply with Ms Martens’ request to enter the accused’s instructions into the Custody Management Record. At 6.16pm, he cautioned the accused. The accused informed Sgt Berryman that he also wished to speak to a particular solicitor who worked at the Walgett office of the ALS, George Costantine. At 6.45pm, Sgt Berryman tried unsuccessfully to phone Mr Costantine; the call went through to voice mail. At the same time, DS Gardiner spoke to the accused. According to a statement by DS Gardiner dated 23 August 2023, the following occurred:

“About 6:45pm on 28 March 2023, I approached Clinton WRIGLEY in the custody area having ascertained he had been informed of his rights whilst in custody and had spoken to Aboriginal Legal Aid.

I said, ‘Detective Senior Constable Dimmock and I are investigating the murder of Joel Carter and we wish to ask you questions in relation to this matter. Do you understand that?’

The Accused said, ‘Yep.’

I said, ‘What we purpose to do is conduct an electronically recorded interview. Do you understand that?’

The Accused said, ‘Yep.’

I said, ‘It is my understanding that you have had the opportunity to speak to Aboriginal Legal Aid and obtained legal advice?’

The Accused said, ‘Yeah.’

I said, ‘Do you agree to [sic] you wish to be interviewed in relation to this matter?’

The Accused said, ‘Yep.’”

95. In evidence on the voir dire, DS Gardiner agreed that Ms Martens had requested his email address, which he gave to her and shortly afterwards he received Ms Martens’ email. When asked why he did not oblige her request that any changed of mind by the accused to his instructions be confirmed by a solicitor on the ALS Hotline, he replied that after he read the first part of the email he was distracted and did not read the rest of it. I found this explanation unconvincing.

96. Sgt Berryman was also asked why he did not comply with that aspect of Ms Martens’ email. He said he did not check his emails until shortly after midnight.

97. During the interview, which commenced at 7.08pm, the accused referred to his legal advice.

1. At Q191, the accused answered:

“I don’t know if I should be answerin’ these questions. My solicitor said not to say anything. But, I don’t know”.

2. At Q198, the accused answered:

“I’ll just pull youse up there now. That might just, I don’t think I’ll answer any more until I do get a call to my solicitor, ‘cause this don’t seem right. But I’ll listen to what you’ve got to say”.

3. At Q245, the accused answered:

“I don’t, oh, my God, I’ll wait, I’ll wait for me solicitor, eh? Yeah, no”.

4. From Q261:

“…   I’d like to have the solicitor now I’d say, because this is getting’ ridiculous.

Q262   I’m happy to pause this …

A   No you …

Q263   … interview …

A   You can keep goin’, but I ain’t answering no more until I’ve actually got on, yeah.

Q264   OK.

A   Yeah.

Q265   I’ll, I’ll ask you several questions and you can choose to answer those at …

A   No worries.”

5. Finally, from Q487, this exchange occurred:

“A   No. Well that’s all right. I don’t think I’ll answer any more until I get to see me solicitor. But not - - -

Q488   All right.

A   Yeah.

Q489   I will, do you agree, no. Did you murder Joel Carter?

A   No, I didn’t.

Q490   Did you steal Joel Carter’s ute?

A   I didn’t steal nothing, mate.

Q491   Did you burn Joel Carter’s ute on Old Warren Road outside, between Warren and Nyngan?

A   No.

Q492   Did you take any property out of the ute and leave at Warren, at your house?

A   No.

Q493   Did any of the property, including the rattle gun, Milwaukee grease gun, that was sold to Timothy Kennedy, originate from Joel Carter’s?

A   No, mate. Like, yeah.

Q494   Is there any reason why you would make any admissions about your involvement in the murder of Joel Carter?

A   Is there any reason why I would? Well I’ve been blamed for it, I got noth, I can fuck about a little bit. I didn't know it was goin’ to come to this.

Q495   Mate, you haven’t been blamed, you’ve made an admission in relation to it.

A   Oh, like, no one said anything about blame. I said, I can fuck around. I said, I didn’t know [it was going to come] to this.

Q496   Right. So are you telling - - -

A   No one’s saying youse are blaming me, I said, I’ve heard - - -

Q497   Yeah.

A   - - - yarns.

Q498   The conversation that was captured by the police, what can you tell me about that?

A   No idea. I haven’t heard it.

Q499   I can suspend the recording and play you that recording if you would like.

A   You can suspend it, why - - -

Q500   … No, I’ll, I’ll pause this, and I’ll get you that recording and you can make comment and listen to it if you like.

A   Yeah, if you want.

Q501   Yeah. All right.

A   Can I have me solicitor listen to that? Or not?

Q502   Yes. It’s as I said, it’s, as I said, I’ve asked you these questions - - -

A   Yeah.

Q503   - - - do you agree that these questions that you’ve answered have been made of your own free will?

A   You’re - - -

Q504   At this point.

A   You’re asking me now? Yeah.

Q505   Sorry. I’m, I’m not goin’ go stop it, I’m just going to ask you some questions

A   Yeah.

Q506   - - - before I stop it.

A   Righto.

Q507   Do you agree that the answers you’ve provided in this interview have been made of your own free, free will?

A   Yeah.

Q508   Has any threat, promise or offer of advantage been held out to you to take part in this interview?

A   From you guys?

Q509   Sorry?

A   From you guys?

Q510   Yeah.

A   No.

Q511   Um, what I will do, the time now is 8.16pm. I will suspend the recording of this interview. We can make arrangements for this recording to be played to you. Did you want to contact another lawyer prior to listening to that conversation?

A   (NO AUDIBLE REPLY)

Q512   It’s a choice for you.

A   I only know one solicitor, mate.

Q513   Sorry?

A   I only know the one.

Q514   We can make arrangements for the recording to be played to you.

A   Mmm.

Q515   Did you wish to contact, or, ah, suspend the interview until you speak to that, or did you want to listen to the conversation, and then you can choose to answer the questions or not?

A   I’d rather have a solicitor, I reckon.

Q516   That, that, that’s quite within your right.

A   Yeah.

Q517   So my thoughts are that I will adopt this interview. So I’ll get a Custody Manager to come in here and adopt it, should your advice be that you don't wish to participate further in the interview.

A   Mmm.

Q518   What I’ll do is, I’ll stop this interview - - -

A   I’m not real smart, mate.

Q519   No, no---

A   So - - -

Q520   -·- - I apologise. I'll stop this interview, OK. I will get the Custody Manager - - -

A   Yeah.

Q521   - - - to conclude this interview. He'll ask you questions about the conduct of the interview like we did on the last occasion. OK. So I’ll stop the interview - - -

A   Oh, right.

Q522   - - - we will make contact with your lawyer.

A   Yeah.

Q523   And then if he advises you to come back in [and] listen to the recording, or he wishes to come and listen to the recording - - -

A   Yeah.”

98. After question 523, which was shortly after 8.16pm, DS Gardiner commenced questioning the accused about another matter, concerning a rifle that was seized by police from the accused’s home after his arrest. At the end of that line of questioning, Sgt Berryman asked him the standard questions that follow an ERISP, which included this exchange:

“Q588   Have you taken part in this recorded interview of your own free will?

A   Pretty much.

Q589   What do you mean by that?

A   Well I had to do some sort of interview, didn’t I?”

99. Sgt Berryman concluded by stating, “All right. The time is now 8.25 and we’ll finish the interview”. An entry in the Custody Management Record notes that at 8.35pm, that is, ten minutes after the interview was finished, Sgt Berryman successfully phoned Mr Costantine. In an email sent to DS Gardiner that night at 9.09pm, Mr Costantine advised that the accused did not wish to be interviewed. He also stated that he had “verbally advised your Custody Manager of these instructions and asked it to be noted in the Custody Management Record”. The entry in the Custody Management Record in relation to Mr Costantine only noted: “Spoken to and obtained legal advice”. The email went on to state: “If there is any problem or change to these instructions please contact me directly”.

Submissions by the accused

100. The accused submitted, pursuant to s 138(1) of the Evidence Act, that the ERISP was evidence that was obtained in contravention of an Australian Law or, alternatively, improperly. The unlawfulness was the alleged failure of Sgt Berryman, as the Custody Manager, to comply with Reg 29 (extracted at [15] above) to assist the accused as a vulnerable person to exercise his rights under Part 9 of LEPRA, in particular, by ensuring that the accused’s apparent change of heart on being interviewed complied with the advice of Ms Martens.

101. In view of Ms Martens’ advice, it was submitted that DS Gardiner should not have invited the accused to partake in an interview concerning the murder of the deceased. The accused’s protestations during the interview, and his response to the Custody Manager’s question as to whether he had taken part of his own free will, demonstrated that his will had been overborne.

Submissions by the Crown

102. The Crown submitted that police had not engaged in any impropriety in the 28 March ERISP. Sgt Berryman, as the Custody Manager, was not required by LEPRA or the LEPRA Regulations to enter the accused’s instructions to not be interviewed. Sgt Berryman attempted to contact the accused’s preferred lawyer. Alternatively, the Crown submitted that if any improprieties did arise from Sgt Berryman’s conduct, they were “minor and administrative” and did not affect the accused’s decision to be interviewed.

103. The Crown noted that there was a lapse of about 32 minutes between the phone call involving Ms Martens and the accused’s acquiescence to being interviewed, which was sufficient time for him to change his mind. The Crown submitted that, in any event, persistence in police questioning after a suspect has indicated they do not wish to answer questions does not, in itself, rule further answers inadmissible: R v Ireland (1970) 126 CLR 321; [1970] HCA 21 at 331-332. See also R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 at [54], [55]. The Crown referred to two first instance cases involving greater persistence than in this case, where the interview was excluded: R v Taleb (2019) 277 A Crim R 21; [2019] NSWSC 241 and R v Pitts (No 1) (2012) 229 A Crim R 387; [2012] NSWSC 1652.

104. The Crown submitted that the accused’s expressions of concern during the interview were immediately followed by him voluntarily choosing to continue to answer questions.

105. The Crown also submitted that although the Custody Manager has an obligation pursuant to Reg 29 to assist a vulnerable person to make a telephone call to a legal practitioner, it does not extend to providing a suspect who is a vulnerable person a further opportunity to receive further legal advice if they change their mind and decide to be interviewed.

Consideration

106. The accused, as an Aboriginal person, had statutory recognition, pursuant to Pt 9 of LEPRA, as a “vulnerable person” for the purposes of certain police procedures, including being interviewed following arrest. That vulnerability is addressed by regulatory protective measures, including the possible assistance of a support person during questioning and, in the circumstances of this case, legal assistance from the ALS Hotline.

107. Ms Martens’ request that the accused receive further legal advice to confirm a change of instructions, when the initial advice is via a telephone hotline for vulnerable persons, was not novel; see, for example, Mr Costantine’s email to DS Gardiner later the same night, as noted above at [99]; and FE at [54], which involved a hotline solicitor’s advice to a young person concerning a police interview on a charge of murder emailing the interrogating officer with a similar request.

108. The appropriateness of such a request concerning a vulnerable client about to be interviewed in respect of a serious charge such as murder is obvious. If their solicitor had accompanied them to the interview, it is inconceivable that police would refuse their request to confer with their client privately to confirm their client understood the consequences of changing their mind and agreeing to answer questions. In principle there is no difference between those situations. It is not apparent on what basis police practice should differ when the solicitor is available on a telephone rather than there in person, and has made the same request for a further private consultation, should that situation arise.

109. DS Gardiner told the accused that he proposed to interview him while Sgt Berryman was trying to phone Mr Costantine. Some of the accused’s comments suggest he was under a misapprehension that police were still attempting to contact Mr Costantine as the interview progressed, which was not corrected. When the accused finally dug his heels in, at Q487, DS Gardiner moved immediately to key questions of whether he had committed each of the offences and wrapped up that part of the interview. No further attempt was made to contact Mr Costantine until ten minutes after the interview was completed.

110. As noted, DS Gardiner’s denial of reading the latter part of Ms Martens’ email and thus being unaware of her request in the event of a change of instructions was not credible. Even if true, it displayed a lack of care to inform himself of the full extent of the accused’s solicitor’s communication to him. In all the circumstances, in particular, the accused’s vulnerability as an Aboriginal person, I found that the behaviour of the interviewing police immediately before and during the questioning was improper, for the purposes of s 138(1) of the Evidence Act.

111. The next question was whether the desirability of admitting the evidence outweighed the undesirability of its admission in view of the impropriety with which the evidence was obtained, taking into account relevant factors identified in s 138(3) of the Evidence Act.

112. As to the probative value to the Crown of the ERISP, I note the following. The accused was questioned about his employment by witness A and then agreed to the following propositions: that he met Ms Riley in Nyngan on 21 January; that she stayed the night with him in Neeroc; that he dropped her off in Nyngan the following day; that the deceased visited Neeroc on the evening of 22 January and spoke with witness A (although the accused denied that he was part of that conversation); that the deceased appeared to be drunk; that the accused travelled into Nyngan with witness A later that evening; and that they returned to Neeroc.

113. The accused said that after he arrived back in Neeroc, he drove back to Nyngan in the Tarago and, consistent with the version of events that he gave police on 28 February, he stayed the night in his Tarago parked in bushland just outside town and walked into town and back again, in the early hours of 23 January, during which time he had a sexual liaison with a woman who he had previously met. He was asked about the Optus phone and denied knowledge of it.

114. The accused was questioned about the phone calls that witness A alleged were made between them on the morning of 23 January. He was also questioned about the text messages from Ms Riley and the phone contact between them. The accused essentially denied recalling the calls and texts. He was told that police had a photograph of the Tarago on the Neeroc property, which contradicted his account that he was at Nyngan and did not return to Neeroc on 23 January. He was asked about a conversation between him and witness A, captured the day before by a listening device, which contained admissions. He was questioned about, and denied, stealing and selling the deceased’s tools, although he admitted that he may have bought some.

115. The ERISP had limited probative value in terms of admissions, essentially being that he had possessed some tools that match the type and brand of the deceased’s tools. It had probative value in terms of lies. Its probative value was enhanced by the inadmissibility of the 28 February interview, since it became the only account of these matters by way of police questioning.

116. Its importance in the proceedings is limited by the availability of other evidence to similar effect, including the alibi notice, the CCTV evidence captured in Nyngan, a photo of the Tarago taken by witness A at Neeroc on the morning of 23 January, the mobile telephone evidence, the evidence of the recorded admission of killing the deceased that was made to witness A on 27 March and alleged unrecorded admissions of killing the deceased that he made to others.

117. In my view, the impropriety was grave. In view of the accused’s vulnerability and the seriousness of the charge of murder, Ms Martens’ request that a change in the accused’s instructions warranted an opportunity for him to have further legal advice was reasonable in the circumstances and was ignored. The accused’s repeated expressions of concern that he was participating in the interview contrary to his solicitor’s advice and ultimately that he wished to have further legal advice was not acted upon until the questioning was completed.

106. In balancing the competing considerations of the desirability and undesirability of admitting the evidence, I was not persuaded that the former outweighed the latter. Accordingly, I determined that the ERISP was inadmissible.

Orders

119. On 14 April 2025 I made orders as follows:

1. The police interview and body worn video of police questioning of the accused on 28 February 2023 is excluded from evidence pursuant to s 138(1) of the Evidence Act 1995 (NSW).

2. The police interview of the accused on 28 March 2023 is excluded from evidence pursuant to s 138(1) of the Evidence Act 1995 (NSW).

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Endnote

Decision last updated: 03 June 2025