Tasmania v Stebbings - [2015] TASSC 9

[2015] TASSC 9

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Stebbings [2015] TASSC 9

PARTIES:  STATE OF TASMANIA
  v
  STEBBINGS, Aaron John

FILE NO:  176/2013
DELIVERED ON:  29 January 2015
HEARING DATE/S:  2, 4, 5 December 2014
JUDGMENT OF:  Porter J

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Evidence of admissions made during official questioning not admissible in certain proceedings unless there is an audio-visual record – Admissions made about drug possession during search of vehicle commenced for other purposes – Whether official questioning – Whether evidence of admissions admissible.

Evidence Act 2001 (Tas), s 85A.
R v NAA (2009) 76 NSWLR 271, applied.

Aust Dig Criminal Law [2687]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Propriety of police questioning and other conduct by police – Administering caution – Admissions made about drug possession during search of vehicle commenced for other purposes – Need for caution – Effect of failure to caution – Whether evidence should be excluded as improperly obtained.

Evidence Act 2001 (Tas), ss 138, 139.
R v NAA (2009) 76 NSWLR 271, applied.

Aust Dig Criminal Law [2693]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Propriety of police questioning and other conduct by police – Administering caution – Accused interviewed as a witness about death of a person in his car – General caution at commencement of interview – Accused answered questions about the death but refused to answer later questions about possession of drugs found in car – Accused understood that what he said about the death would not be used in relation to drug possession – Whether unfair to use in drug trial evidence of statements made when speaking about the death.

Evidence Act 2001 (Tas), s 90.
Em v The Queen (2007) 232 CLR 67, followed.
Aust Dig Criminal Law [2693]

REPRESENTATION:

Counsel:
             State:  L Mason
             Accused:  P Morgan
Solicitors:
             State:  Acting Director of Public Prosecution

Accused: Wallace Wilkinson & Webster

Judgment Number [2015] TASSC 9
Number of paragraphs: 76

Serial No 9/2015
File No 176/2013

STATE OF TASMANIA v AARON JOHN STEBBINGS

REASONS FOR JUDGMENT PORTER J

29 January 2015

Introduction

The accused has pleaded not guilty to two counts of trafficking in a controlled substance and one count of dealing with the proceeds of crime. It is alleged that on 20 April 2013 he trafficked in methylamphetamine and MDMA, and dealt with $20,000 being the proceeds of crime, knowing that it was proceeds of crime. The charges arise from him allegedly being in possession of the controlled substances and $20,000 in cash on the day in question.
These are proceedings under s 361A of the Criminal Code for determinations in relation to the admissibility or admission of three categories of evidence proposed to be led by the Crown.
As to the background circumstances, it is sufficient to note the following. At about 3.30pm on 20 April 2013, a police officer – 1/C Const Rainbird – noticed Tasmania Ambulance Service personnel attending to a female on the footpath outside a hotel in Main Road, Moonah. He stopped to see what was happening. It was established that the woman was dead. She had been in a vehicle parked nearby. That vehicle belonged to the accused, who was also at the scene, as was another person who had been travelling in the vehicle, Ms Phillips. Const Rainbird called for assistance, and a number of officers went to the scene. The drugs and cash were found in the boot of the car shortly afterwards.
The first two categories of evidence the subject of argument, are parts of the proposed evidence of two uniformed police officers, of statements made by the accused at the vehicle. Although essentially the same issues arise in respect of the evidence of the two officers, I have categorised them separately, as different considerations apply. The two uniformed officer are 1/C Const Rainbird and Const Swinton.
The third category consists of a substantial part of a recorded interview of the accused by police officers at the Hobart Police Station later in the evening of 20 April. The interviewing officers were Det Const Lang and Det Sen Const Cummings. The interview dealt separately with the events leading up to and surrounding the death, and with the issue of the drugs found. It is the first part which is the subject of debate.
I heard evidence from all of the officers concerned, along with an officer attached to Forensic Services, Sen Const Hyland. I have a copy of the whole of the recorded interview, and I heard evidence from the accused.

The evidence of 1/C Const Rainbird

The evidence which is the subject of debate is contained in the seventh paragraph of Const Rainbird's coronial affidavit: VD2. In particular, the evidence is of two questions asked by Const Rainbird and answered by the accused in the course of Const Rainbird speaking to the accused for the purposes of a coronial affidavit. The relevant questions were unconnected with that process, but arose because of Const Rainbird's perception of the accused's demeanour after he was asked to open the boot of the car. The accused is alleged to have admitted that what was in the boot was his: "It's just speed, not weapons".
The evidence of Const Hyland and photographs which were tendered establishes the discovery in the boot of a number of bags of varying description containing large quantities of methylamphetamine, MDMA and cash.
The arguments put on behalf of the accused are that the evidence is not admissible because of s 85A of the Evidence Act 2001 (the Act); or alternatively, that I should refuse to admit it by virtue of s 90 or s 138 of the Act. The argument as to s 138 is reliant on s 139, which deals with evidence of statements taken to have been obtained improperly when made in the absence of a caution. It is common ground that Const Rainbird did not at any time caution the accused.

Admissibility under s 85A

Section 85A makes evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning, not admissible unless, primarily, there is available to the Court an audio-visual record of the interview. There are other exceptions provided for in subs (1), the relevant ones to which I will come in due course. "Official questioning" is defined in s 3 as meaning questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.
The operation of the section is further confined by s 85A(3), which provides that the section applies only to an admission in the course of official questioning by a defendant who, at the time of making the admission, was, or ought reasonably to have been, suspected by an investigating official of having committed the offence. I pause to observe that in my view, the reference to "the offence" can only be a reference to that offence which is the subject of the investigation as referred to in the s 3 definition. (In Tasmania v Seabourne [2010] TASSC 35 at [32],Wood J seems to have taken the view that it is the offence "admitted to", which I think, with great respect, to be incorrect.)
The concept of suspicion in this type of legislative context has been held to mean more than contemplation of a mere possibility which is unsupported by any factual basis: see Doklu v The Queen (2010) 208 A Crim R 333 per Macfarlan JA at [24]-[25] with whom Simpson and Hall JJ agreed. See also R v Taouk (2005) 154 A Crim R 69 at [73].
Issues under both subs (1) and (3) of s 85A arise in this case; that is, whether the admission was made during official questioning, and if so, whether at the time the admission was made the accused was, or ought reasonably to have been, suspected of having committed the crime of trafficking or dealing in the proceeds of crime.
It is for the accused to establish that, on the balance of probabilities, the relevant questioning was official questioning within the meaning of the section: Director of Public Prosecutions v Cook (2006) 166 A Crim R 234 per Blow J (as he then was) at [73] and Tennent J at [39]-[40]; Crawford J (as he then was) agreeing by way of observation at [40]. In my view, it follows that the same situation applies to the applicability of the section in terms of subs (3).
Const Rainbird's evidence was that he was part of an inquiry into a sudden death. At that time, he had no idea of the cause of death. He said that there was nothing suspicious and that it it did not cross his mind that a homicide was involved. The first relevant question asked of the accused by Const Rainbird was whether there was anything "in the car that shouldn't be, like knives or sharps etc". In evidence, Const Rainbird was asked at that time whether he was concerned, or whether it had come to his mind, that perhaps there was something illegal in the boot. He replied, "No, not overly".
He went on to say that he was concerned about "sharps" which could harm other officers. The worst he thought was that there was perhaps a personal supply of drugs, but nothing of any consequence in relation to what he was then dealing with. He did not contemplate that it would be a criminal matter; "There was potential for a small possession type matter, a cautionable matter". Const Rainbird said in evidence that he had the means to make an audio visual recording of the questions and answers – he had an iPad with him – but that he did not record the conversation as he was not talking to the accused about a criminal matter.
The concept of "official questioning" in similar legislation was considered by Howie J in R v NAA (2009) 76 NSWLR 271. At [77], his Honour said that without the words "in connection with an investigation", the words "official questioning" would arise whenever a police officer was questioning a person who was, or ought reasonably to have been, suspected of committing an offence whatever be the content or circumstances of the questioning; "that is not what Parliament sought to achieve by the provisions". His Honour said that there may be formal or informal police procedures before or after arrest that do not fall within the ambit of the section because they are not in connection with an investigation.
I accept Const Rainbird's evidence on the issues relevant to these determinations. The accused gave evidence denying that he had made any admissions to Const Rainbird. Whether or not he did is not for me to resolve in these proceedings. The accused gave no other evidence relevant to the issue.
I am not satisfied that it is more probable than not that the admissions were made during official questioning within the meaning of the Act. That is, I am not satisfied that Const Rainbird was engaged in questioning in connection with the investigation of the commission or possible commission of an offence. Even if Const Rainbird's questions amounted to "official questioning", I am not satisfied that Const Rainbird suspected the accused of having committed any offence he was then investigating, or that the accused ought reasonably to have been so suspected. Indeed, I am not satisfied that Const Rainbird suspected the accused of committing any offence, or that the accused ought reasonably to have been so suspected.
I take the view that it is simply not necessary to consider whether the prosecution has proved on the balance of probabilities that there was a reasonable explanation as to why an audio-visual record could not be made, or that he had satisfied me that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

The issues under ss 90 and 138

Section 90 gives to the Court a discretion to refuse to admit evidence of an admission sought to be adduced by the prosecution if, having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence. Section 138 relevantly provides that evidence that was obtained improperly is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in a way in which the evidence was obtained. Section 138(3) sets out a number of matters which may be taken into account in the exercise under subs (1).
Section 139 provides that for the purposes of s 138(1)(a), evidence of a statement made by a person during questioning is taken to have been obtained improperly if the person was under arrest for an offence at the time, the questioning was conducted by an investigating official who was empowered to arrest the person, and before starting the questioning the official did not caution the person. Section 139(5) prescribes three sets of circumstances in which a person will be taken to have been under arrest for the purposes of s 139(1). They are:
(a)the official believes that there is sufficient evidence to establish that the person 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 will not be allowed to leave if he or she wished to do so.
It is well established that an accused who seeks the exclusion of prosecution evidence carries the onus of establishing unfairness under s 90, and impropriety under s 138. Once impropriety under s 138 is shown, it is for the prosecution to satisfy the court that the evidence should be admitted.
There is an unresolved question as to whether s 90 can be utilised where the suggested unfairness of the use of the evidence arises from illegality or impropriety covered by s 138. In Em v The Queen (2007) 232 CLR 67, Gummow and Hayne JJ at [119] said, in the context of an allegation of a failure to caution, that police impropriety fell to be considered under s 138, and was not relevant to the exercise of the discretion under s 90. Gleeson CJ and Hayne J at [54] declined to decide the point, saying at [56] that the language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning.
Whether or not the primary focus of s 90 is on incorrect assumptions made by accused persons, there is no doubt that it is one focus of the section. In Em, Kirby J, (dissenting as to the result), said at [90] that impropriety in the form of a failure to provide a caution is relevant to the issue of fairness under s 90.
In that state of affairs, I will approach the issue on the basis that in general terms, any impropriety relevant to the exercise under s 138 would also be relevant to the question of whether it would be unfair to admit evidence of an admission because of the circumstances in which it was obtained: see R v FE [2013] NSWSC 1692, and generally, Odgers, Uniform Evidence Law, 11^th ed at 454 [1.3.5770]
A further unresolved question in relation to s 90 is the role of the probative value of the evidence, as distinct from any reliability issue. In R v Em [2003] NSWCCA 374 Howie J, with whom Ipp JA and Hulme J agreed, said at [110] that probative value had no significance. Earlier, in R v Phan [2001] NSWCCA 29 (reported in 53 NSWLR 480 but not as to this point) Wood CJ at CL at [58] suggested that it did; McLellan J and Smart AJ agreed. As the counsel for the Crown in this case did not suggest that probative value was relevant to the s 90 discretion, I will ignore it.
As, to ss 138 and 139, counsel for the accused relied only on the absence of a caution in the circumstances set out in s 139(1), arguing that the accused was "under arrest" by virtue of the operation of subs (5).
As to s 139(1), there is no argument that Const Rainbird was not empowered because of his office to arrest the accused, and as I have noted, no dispute that the accused was not cautioned. The factual questions are therefore whether the questions which were asked amounted to "questioning" within the meaning of the section, and whether the accused was under arrest for an offence at the time. The accused bears the onus of proof.
For the section to have any operation the questioning must be conducted by an investigating official. That adds meaning to the scope of the provision. In R v NAA (above), Howie J at [98] said that "questioning" in s 139 did not mean "a conversation during which questions are asked". His Honour said that the section was aimed at formal or informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information, whether or not at the time of the interrogation the suspect was formally under arrest.
At [99], his Honour went on to say that the section was aimed at the protection of a suspect and should not be unduly confined by technicalities or restricted so that it did not achieve the purpose for which it was enacted, but neither should it be construed to mean to apply to a situation to which the words used in the section are not appropriate.
I am not satisfied that the questions asked by Constable Rainbird amounted to questioning within the meaning of the section. Although the possibility of the presence of a minor amount of drugs seemed to have crossed the officer's mind, his questioning was directed to the issue of officer safety. If I am wrong about that, I add that I am not satisfied that the accused was under arrest at the time. He had not in fact been arrested, and I am not satisfied that he was under arrest within the meaning given to that concept by s 139(5).
First, there is no evidence that Const Rainbird believed that there was sufficient evidence to establish that the accused had committed an offence that was to be the subject of questioning. Second, there is no evidence, and nothing from which it can be reasonably inferred, that, at the time of the questions, Const Rainbird would not allow the accused to leave if he had wished to do so. There is no evidence as to what Const Rainbird said to the accused before he started to get information from him for the coronial affidavit, or at any time before the admissions.
That also deals with the third aspect of s 139(5). There is no evidence or any proper basis for the inference that Const Rainbird had given the accused reasonable grounds for believing that he would not be allowed to leave if he wished to do so.
It follows that I am not satisfied that there was any impropriety in the way in which the evidence was obtained; s 138 therefore does not apply. Accordingly, it is unnecessary to consider whether the evidence should nonetheless be admitted, but I can indicate that I would admit it as a result of the weighing exercise called for by s 138(1). That the accused admitted to ownership of "the speed" which was in the boot is, in the circumstances of the case, of high probative value and of importance in relation to the proof of serious offences. Having regard to the situation in which Const Rainbird found himself, and the way in which events unfolded, I do not consider the impropriety to be serious in nature, and it would have to be regarded as unintentional or at worst, reckless.
For the reasons which I gave in relation to the applicability of s 139, and hence impropriety under s 138, I am not satisfied that the circumstances are such that it would be unfair to the accused to use the evidence. There is no other basis on which its use is said to be unfair. It follows from what I have said that the evidence will be admitted, and in the discretionary exercise I decline to exclude it.

The evidence of Const Swinton

The proposed evidence is set out in par 3 of Const Swinton's coronial affidavit: VD3. The order of events is not completely clear, but the evidence suggests that the relevant conversation with Const Swinton happened before Const Rainbird asked his questions about what was in the car. According to Const Rainbird, the accused moved to the car as he seemed to be concerned about police activity. Const Rainbird said that Const Swinton asked the accused to open the boot. He did that and returned the short distance to where Const Rainbird was, after a conversation with Const Swinton.

Const Hyland said that he went to the accused who was with a uniformed officer (presumably Const Rainbird), and asked if the deceased had any bags in the car. The accused went to the car, opened the boot and indicated two bags. Const Hyland took them out and closed the boot. He thinks the accused then went back to the uniformed officer. (The accused's version of this is different, but nothing turns on it.)
Constable Swinton said that he was there when Const Hyland asked the accused to open the boot. After the two bags were taken out and the boot closed, Const Swinton asked the accused to again open the boot. It was then that the subject conversation took place. This seems to be the conversation referred to by Const Rainbird before the accused came back to him.
In any event, Const Swinton's evidence is that he asked the accused to re-open the boot and to leave it open as it would need to be searched. A short discussion ensued about the need for a search. Const Swinton asked the accused if there was anything in the boot that could hurt searching officers, like knives or needles. The following exchange occurred:
"A No.
QIs there anything in there that you don't want us to find.
AYes.
QWhere.
[The accused pointed to the side pocket of a red backpack.]
QWhose backpack is that.
AMine.
QWhat is in the bag.
ASpeed.
QHow much.
ALots."
The arguments as to this evidence are the same as those put in respect of the evidence of Const Rainbird.
In evidence, Const Swinton said that his view at all times was that he was involved in the investigation of a coronial matter as opposed to the commission of an offence in respect of the death. He said he asked the question about whether there was anything in the boot the accused did not want them to find, because if it was something to do with the death then he would get the forensic officers to deal with it. He said that when he was asking questions, he did not believe that the accused had committed any form of offence; he was just searching because the vehicle was associated with the death. When he realised that the accused had said something that would incriminate him, he "passed him off to Const Rainbird" and told CIB detectives of the discussion.
In cross-examination, Const Swinton said that when he asked the question about anything in the boot that the accused did not want police to find, he did not necessarily think of something illegal, but something that might be connected to the death. He said that he thought there may have been something in there to explain the death, and that perhaps the accused did not want the police to see it, and that it may have been incriminating for the deceased: "It was an unusual situation".
He did not agree with the proposition that it crossed his mind that there might have been something in the car to implicate the accused in the death. When the accused replied to that particular question in the affirmative, Const Swinton said that it did "not really" cross his mind that he was referring to something that might have been incriminating of him. He did not consider it appropriate at that time to caution the accused. He did not think it was appropriate to make an audio-visual recording as he did not believe at that time that the accused had committed an offence. (He agreed that he had a phone with him which was capable of audio-visual recording.)
The officer was then taken to the point at which the accused had said that there was "speed" in the bag. Const Swinton agreed that he did not caution the accused before asking the next question, nor did he consider making an audio-visual recording of it. He said he thought it was possible that it was a matter appropriate for a cautionary notice. He agreed that he considered the possibility that the answer to the question "How much" might be a long the lines of what the answer was, and said that the conversation progressed very quickly.
Again, I record the fact that the accused denied that the events unfolded in the way suggested, and denied making the statements to Const Swinton. Those issues are not for me to determine.

Section 85A

There is nothing to distinguish the situation as it relates to this evidence compared to that of Const Rainbird. I make the same observations and findings. However, I exclude from this the evidence of the last question and answer. Before Const Swinton asked the accused how much "speed" there was, he obviously had an admission of possession of "speed". No doubt Const Swinton understood to what the accused was referring. The issue is then whether, at that point, the questioning ceased to be information gathering and became official questioning; that is, questioning in connection with the investigation of the commission or possible commission of an offence, and if so, whether at the time the admission to having "lots" of speed, the accused was or was reasonably to have been expected of having committed the offence.
I am not satisfied that the particular question was part of, or of itself constituted, official questioning. I am not satisfied that the questioning was in connection with the investigation of the commission or possible commission of the offence. That is to say, I am not satisfied that Const Swinton was then investigating the commission or possible commission of an offence. It seems to me that he was merely gathering information as to the nature and extent of what he was dealing with. If I am wrong about that, I am satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence. The exceptional circumstances are the way in which the conversation unfolded and, as Const Swinton put it, the fact that the conversation progressed very quickly.
This is not to say that police officers are not under an obligation to proceed carefully and to weigh and assess answers given by a person being questioned in order to determine how to proceed, but I think this conversation falls into a different category. Plainly, the section is designed to protect the suspected person or persons being investigated from falsely attributed admissions in proceedings for a serious offence. However, the operation of the section is expressly limited to "official questioning" and exceptions are provided for: Director of Public Prosecutions v Cook (above) per Blow J at [75]; R v NAA (above) at [78].

Sections 90 and 138

Again, leaving out the last question and answer, I make the same observations and the same findings as I have in respect of the evidence of Const Rainbird.
Separate consideration needs to be given to the situation which existed after the accused told Const Swinton that the backpack belonged to him and that it contained "speed". The factual question is whether, at that point, the accused could be considered to have been under arrest by virtue of s 139(5)(b) or (c). Although for some reason, Const Swinton was not asked in cross-examination any questions about either issue, I feel comfortable in inferring that it is more likely than not, that he would not at that point have allowed the accused to leave the scene if he had wished to do so. I think it likely that the admission to possession of "lots of speed" in the circumstances would have seen him detained if he had attempted to go.
The accused gave evidence about a number of things from which he formed the view that he would not be free to leave if he wished to do so. They include being told in an aggressive manner to leave the boot open, that it was "a crime scene", and not being left alone at any time. Given my finding, under subs (5)(b), it is not necessary to determine the issue, but I am inclined to the view that, at the particular time, the accused had not been given reasonable grounds for the relevant belief.
The effect of my finding is that the admission of "lots" of speed is taken to have been obtained improperly. However, for the reasons which I gave in relation to the evidence of Const Rainbird, and for the reasons which I gave concerning the existence of exceptional circumstances under s 85A(1)(d), I consider the desirability of admitting the evidence outweighs the undesirability of admitting it. That leaves s 90. Although, in strict terms, the evidence has been obtained improperly, I am not satisfied that in all of the circumstances, it would be unfair to add to the evidence which will be admitted, the additional statement, that the accused had "lots" of speed. Much of what I have said about the circumstances applies to this issue.

The formal recorded interview

The interview was conducted in two stages. The part of the interview sought to be excluded is represented at pages 137-199 of the Crown papers. Primarily, the part deals with events surrounding the death. It covers the accused's movements from the day before the deceased was found when the accused, the deceased and Ms Phillips travelled in the accused's car from Launceston to Hobart.
Det Const Lang first asked the accused about events surrounding the death. During that quite lengthy process, Det Sen Const Cummings (a drug squad officer) also asked questions, particularly about where the group had stayed the night. After they reached the point of where the accused had spoken to police who had arrived at the hotel, Det Sen Const Cummings said that he was aware of a conversation between the accused and Const Rainbird in which the the accused told of drugs in the car. The accused said he did not remember the conversation.
Det Sen Const Cummings then attempted to interview the accused about the drugs and "other assorted items" that were found in the back of the car. I say "attempted" because in the main the accused said "No comment", or said that he had nothing to say. Towards the end of this, the accused did however, agree that he had the keys to the car at the time police gained access to it, that no one else had the keys at any time, and that they had been in his possession the whole time.
Essentially, the Crown relies on statements made by the accused about the ownership and use of, and access to, the car. This is in order to assist in the proof of his possession of the drugs and cash. It is proposed to edit the relevant part to excise any completely irrelevant or prejudicial material, although the way in which the editing is to occur had not been addressed at the time of this hearing. The accused did not object to proceeding in that way, and it is possible to determine the admissibility question on that general basis.
The accused does not dispute that the material is relevant but asked that it be excluded in the exercise of the discretions under ss 90 and 138. The basis of the objection is that the evidence was obtained improperly within the meaning of s 138, and that accordingly the circumstances in which the evidence was obtained make it unfair, within the meaning of s 90, to use the evidence. A suggested impropriety is that although properly warned at the commencement of the interview, immediately before the warning Det Const Lang said to the accused:
"Aaron, as you know we've spent a little bit of time together this afternoon and as a result of that we're now at Hobart Police Station. How we came to be here was in relation to a sudden death that occurred out at Moonah this afternoon. The time was approximately 4pm and the person involved was a Melissa Leila Patisse [sic Battese]. So the reason for the interview is to ask you some questions and get your version of events surrounding that death, as I believe you can assist me with my investigation."
The accused was asked if he understood what it was that they were there to talk about, and he said he did. The caution was in the usual form and contained the words: "You are not obliged to say or do anything unless you wish to do so. Anything you say or do is being recorded on this machine and may be used in evidence". The accused said that he understood.
The accused submits that the impropriety is in failing to tell the accused that anything he said in response to questions about the death could potentially be used in any proceedings for drug offences.
In evidence, Det Const Lang said that it had been agreed that the interview was to be split into two parts, with her to conduct one part and Det Sen Const Cummings the other. She said that the two interviews surrounded the same event, but that there were two different areas of interest; she was going to talk about what had happened leading up to the death of Ms Battese. Counsel for the accused put to Det Const Lang that she was not asking any questions about the drugs in the boot of the car, to which she responded, "The plan was to keep it separate, yes". Det Const Lang agreed that she explained to the accused that she was going to speak to the accused about the death, but to the next question, "And not about any prohibited substances", she replied. "I didn't lay that out in the beginning of the interview, no".
In his evidence, the accused spoke of being taken to the Hobart Police Station in a police vehicle with three police officers. It seems that Detectives Lang and Cummings were two of them. He was asked whether he was aware that it was the officers' intention to interview him. He said, "only with regarding to Melissa's circumstances". He said that he was "100% happy to assist them with respect to that". He said he thought the interview about the circumstances of the death was just to help the coroner.
The following exchange then occurred:
"Q Did you have any understanding when you participated in that interview that that portion of the interview may be used in a trial against you relating to prohibited substances found in the boot of your car.
A No, not at any time.
Q Okay, if you had of been warned of that possibility, would you have done the interview.
A No, I would not have."
In cross-examination, he agreed he was trying to be "100% co-operative" with police in their inquiries into the death. It emerged that, according to him, there had been some discussion in the police car about the drugs. He said that the officer sitting next to him (who seems to have been Det Cummings) wanted to talk more about Melissa's circumstances, and then started "commenting on about the things that they found in the boot". He said he replied that he could help with Melissa but that he had "nothing to say about the other stuff". He was asked whether that was the first time he had heard anything about what was found in the boot of the car. He agreed that something had been mentioned earlier outside the hotel in Moonah. When asked what it was he said:
"I can't remember, they mentioned because they'd found stuff and they wanted to take the car, they'd put the car on the tow truck because they'd found the drugs and that in the boot and they wanted to then to take me in there to interview both over Melissa and the drugs" [sic].
He went on to explain that this discussion happened as he was being put into the police car to be taken to police headquarters.
As to the interview, the accused said that he did not recall it being suggested to him that he had a right to remain silent. He said that he could not remember that at certain points he did exercise his right to remain silent, but agreed that, as at that day, he was aware that he had a right to say "No comment" when he did not wish to answer any further questions. He then agreed that he had exercised the right on things that were not related to the death.
In that part of the interview conducted by Det Lang, the accused was asked about whether the deceased consumed or injected drugs. He said he did not see anything. When asked whether there was anything inside the vehicle that she could have taken at any point, he said, "No comment". In answer to questions by Det Cummings the accused answered, "No comment" on seven further occasions when being questioned about the house at which they had stayed overnight, and whether it was the clubhouse of a motor cycle gang.
It was not suggested to Det Const Lang, and there is no basis on which to conclude, that in outlining what it was she wanted to speak to the accused about, she deliberately omitted reference to the drugs in the car in an attempt to deceive him. It was not suggested to her, and there is no basis for finding, that her intention in seeking information from him about the death was to also seek admissions in relation to the drugs. It was not put, and there is no basis for finding, that Det Const Lang contemplated that what the accused said about the death might be used in criminal proceedings arising from his possession of drugs.
I am not satisfied that there was any impropriety on the part of either police officer. Although Det Lang, at the start of the interview, mentioned only the death, on the accused's own evidence, he was aware that he was to be spoken to about drugs being found. A reasonable person in his position might expect questions to be asked about the deceased's use of or access to drugs. There is nothing to suggest that the accused was aware of the essential police plan to segment the interview into the two issues. There was a complete caution given at the start of the interview. There is simply no evidence to suggest that the police were practising any deception, or otherwise acted improperly.
The focus is on the use of the evidence of admissions, and whether it would be unfair to use the evidence, having regard to the circumstances in which the admission was made. Those circumstances are the fact that the accused was not aware that his answers in relation to the death might be used in criminal proceedings in respect of the drugs. To use the words of the argument put in Em v The Queen (above), the vice is said to lie in exploiting the accused's lack of understanding that what he said about the death could be used in evidence.
The purpose of the discretion under s 90 is the protection of the rights and privileges of the accused. It is concerned with the right of the accused to a fair trial, and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated: R v Em (above) per Howie J at [104] (Ipp JA and Hulme J agreeing). However, there is no doubt that incorrect assumptions which bear on the entitlement to remain silent fall within the ambit of s 90. Incorrect assumptions by an accused, even if not induced by police conduct, may be a basis for a finding of unfairness: Em v The Queen (above) at [51], [56]. It is unfairness arising from the use of the admissions that is central to the discretion under the section.
In this case, I have doubts about the accused's credibility, but am prepared to proceed on the basis of his professed lack of understanding. The question is whether the Crown has obtained an unfair forensic advantage to the extent that the evidence should be excluded. After due consideration, I am not satisfied that it would be unfair to the accused to admit the evidence of what he said in the questioning about the death about his ownership, control, use of, and access to the car.
I have already noted that he was told beforehand that he would be spoken to about both matters, and that there is no evidence that he was told of the segmentation. He was made aware that in the questioning about the death he had the right to remain silent. He was told that he did not have to do or say anything. He said that he understood that, and exercised the right on more than one occasion. He said that he understood that anything he said could be used in evidence.
I take into account that when specifically asked about the drugs, he was content to answer questions about the possession of the car keys. That the accused seems to have discriminated in his own mind between evidence in respect of the death and proceedings against him does not make the use of the evidence unfair. I am not satisfied that the circumstances in which the evidence of admissions was obtained warrant its exclusion.

Although s 137 of the Act was not relied upon, counsel for the Crown alluded to a risk of unfair prejudice because of the subject matter of the first part of the interview. It is proposed that I be the trial judge, and I will ensure that the jury is directed that there is no suggestion that the accused was in any way responsible for, or associated with the death, nor were the drugs in his possession. I will direct the jury that no adverse inferences should be drawn, and I will specifically warn against allowing prejudiced minds to develop. Additionally, I may need to address the editing of the interview.

Outcome

All of the evidence which is the subject of challenge will be admitted.