Willis v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0174

JESSE WILLIS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD AND DATES OF HEARINGS:	BALLARAT (4 April 2016) and MELBOURNE (9 May 2016)
DATE OF JUDGMENT:	28 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 176
JUDGMENT APPEALED FROM:	R v Willis [2015] VSC 410 (Osborn JA) (date of conviction 23 June 2015)

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CRIMINAL LAW – Appeal – Conviction – Evidence – Admissibility – Record of interview – Subsequent statement by accused – Whether accused cautioned – Whether accused informed of right to silence – Whether accused informed of circumstances of offence before questioning – Giving of caution not recorded – Information required to be given to accused not recorded as required by Crimes Act 1958, s 464G – Crimes Act 1958, ss 464A and 464G.

CRIMINAL LAW – Appeal – Conviction – Evidence – Admissibility – Voir dire – Findings of fact – Nature of appeal – Whether findings of fact by trial judge on voir dire reasonably open – Findings of fact reasonably open – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Trial – Evidence – Admissibility – Whether evidence improperly or illegally obtained – Onus of proof – Onus of proof to establish evidence improperly or illegally obtained on party seeking to exclude evidence as improperly or illegally obtained – Desirability of admitting evidence outweighing undesirability of admitting evidence obtained in way in which evidence was obtained – Evidence Act 2008, ss 138 and 139.

CRIMINAL LAW – Appeal – Trial – Trial counsel – Competence of trial counsel – Cross-examination by trial counsel – Conduct of voir dire by trial counsel – Whether failings of trial counsel occasioned miscarriage of justice – No miscarriage of justice – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
Hearing on 4 April 2016
For the Applicant	Mr J D Williams with Mr P D Smallwood	Victoria Legal Aid
For the Crown	Ms S A Flynn	Mr J Cain, Solicitor for Public Prosecutions
Hearing on 9 May 2016
For the Applicant	Mr A J Palmer with Mr H Moodie	Stary Norton Halphen
For the Crown	Mr D A Trapnell QC with Ms S A Flynn	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
BEACH JA:

On 23 June 2015, the applicant was convicted of the murder of Ricky Ganly (‘Ganly’). On 13 August 2015, he was sentenced to 24 years’ imprisonment with a non-parole period of 20 years.

The applicant now seeks leave to appeal against conviction. Initially, he relied upon a single ground of appeal that was expressed in the following terms:

The learned trial judge erred by not excluding the record of interview conducted on 31 October 2013 and the applicant’s subsequent statement from evidence.
Particulars
The learned trial judge erred by ruling that:
(a) Detective Sergeant Trewavas complied with the requirements of sections 464A(2) and 464A(3) of the Crimes Act 1958.
(b) The desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained in the way in which this evidence was obtained.

The application for leave to appeal was heard by this Court, in Ballarat, on 4 April 2016. The Court reserved its decision.

Subsequently, on 19 April 2016 the Court arranged for the Registry to contact the parties seeking further submissions regarding a matter that had arisen during the course of argument. That prompted a change of legal representation on the part of the applicant, and an application to rely upon an additional ground.

That new ground was expressed in the following terms (ground 2):

The trial of the applicant miscarried in that counsel for the applicant failed to call the applicant to give evidence and failed to adequately cross-examine the informant in circumstances where there could be no forensic advantage associated with counsel’s conduct.

On 9 May 2016, the Court heard argument in support of that additional ground. Although no formal order granting leave to rely upon that second ground was made on that day, it may be taken that the Court has now granted leave to do so.

Subsequently, the applicant filed an additional submission in which he sought to advance further argument in support of ground one. This was to the effect that there had been a contravention of s 464A(2)(a) upon the basis that Detective Sergeant Trewavas of the Homicide Squad, who conducted the record of interview the admissibility of which was challenged below, had not informed the applicant, prior to questioning, of the circumstances of the offence he was suspected of having committed. We shall deal with the application to rely upon that additional argument in due course.

The relevant legislative provisions

Section 464A of the Crimes Act 1958 (‘the Act’) is headed ‘Detention of person in custody’. The section falls within Part III of the Act, entitled ‘Procedure and Punishment’.

Sections 464A(2) and 464A(3) provide as follows:

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

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

Section 464A(3) is linked to s 464G, which also falls within Part III of the Act. Section 464G(1) assumed considerable importance at trial, and also in the argument before this Court, and is in the following terms:

464G Recording of information required to be given to person in custody
(1)If a person is in custody in relation to an indictable offence, an investigating official who is required by sections 464A(3), 464C(1) and 464F(1) to give the person in custody certain information must record (by audio recording or audiovisual recording), if practicable, the giving of that information and the person's responses, if any.

Plainly, ss 464A(2)(a) and 464A(3) were enacted in order to ensure that a suspect in custody for an offence will be informed by an investigating official of his or her legal rights.

Section 464G was enacted, in part at least, in order to ensure that there was an incontrovertible record of the suspect having been informed of his or her right to remain silent, in accordance with s 464A(3), and that any response was recorded.

Circumstances surrounding the offence

In 2013, the applicant was unemployed and addicted to drugs. At some point in the early part of that year, he went to his grandmother’s house in Avoca, not far from Ballarat, and stole several firearms. He subsequently cut back the barrel of the stock of a single shot .22 rifle to produce, in effect, a ‘long pistol’. As the trial judge noted in his sentencing remarks, a weapon so adapted has no obvious use, other than for criminal purposes.

On 28 April 2013, the applicant accompanied a man named Gordon Skadric to a house in North Sunshine. Ganly was present at that house. The applicant went there in order to obtain drugs. He succeeded in obtaining a quantity of either speed or ice.

The applicant and Ganly then each drove to a café in Rockbank, West of Melbourne. They stopped for a time, and then continued on to Avoca. The applicant wanted to obtain more drugs from Ganly who, in turn, hoped to acquire a shotgun from the applicant.

After their arrival in Avoca, the applicant and Ganly both used drugs.

The Crown case was that in the early hours of the morning of Monday, 29 April 2013, the applicant shot Ganly in the back of the head. Ganly was said to have been in his car at the time. The motive for the killing was said to have been a dispute about firearms.

The Crown alleged that the applicant left the scene, and later returned with a friend. The two men drove Ganly’s vehicle, with his body still inside, into a deep water mine at a dredging site known as Avoca Lead Dredge.

It was not until January 2014, some eight months later, that Ganly’s body was discovered.

Prior to the body being found, in the course of investigating Ganly’s disappearance, police traced a series of calls that he had made to the applicant’s mobile telephone on the night of 28 April 2013. Not surprisingly, they wanted to know the purpose of these calls.

The applicant’s First Statement

On 16 September 2013, police questioned the applicant regarding his relationship with Ganly. The applicant elected, on that occasion, to make a formal statement to police (‘First Statement’). He acknowledged, in that statement, that he would be liable to prosecution for perjury in the event that the statement contained any lies.

In the First Statement, the applicant said that on the night of 28 April 2013, he and Ganly had met at a pub in Melbourne. They had both used drugs, and exchanged telephone numbers. He claimed that he had left the pub alone. Although Ganly had tried to call him several times later that evening, he had not answered those calls. He further claimed that he had neither seen nor spoken to Ganly again.

The 31 October 2013 lead up conversation

On the morning of 31 October 2013, Detective Sergeant Trewavas sought unsuccessfully to have the applicant arrested and brought to the Maryborough Police Station. The applicant, having learned that the police wanted to speak to him, attended voluntarily. He was put through the attendance register at about 12:30 pm.

Detective Sergeant Trewavas gave evidence on the voir dire. He said that he took part in an informal conversation with the applicant shortly after the applicant’s arrival at the police station. He could not recall precisely where that conversation took place, but he did recall that they had gone into the carpark behind the station, where the applicant had a cigarette. There was an exchange of pleasantries. The conversation was not recorded.

According to Detective Sergeant Trewavas, he explained to the applicant that although he had come to the police station voluntarily, he was under arrest in connection with the suspected murder and suspicious disappearance of Ganly.

Detective Sergeant Trewavas said that he gave the applicant ‘his caution and rights there’. The applicant had told him that he did not wish to speak to a solicitor. Their discussion lasted about 15 minutes. During the course of their conversation, the applicant told him that he was afraid to answer any questions regarding Ganly. He also made cryptic mention of being scared of ‘some people’, of being scared to be talking to Detective Sergeant Trewavas, and had said ‘something to do with bikies’.

Detective Sergeant Trewavas referred to some brief handwritten notes that he had made of that informal conversation. Those notes were tendered on the voir dire. They made no mention of the applicant having any fear of ‘bikies’.

The applicant said to Detective Sergeant Trewavas that if he told him everything that he knew about Ganly, he would not be going home that night. He also asked Detective Sergeant Trewavas whether he could guarantee that the applicant would be going home. These comments were recorded in the notes.

The 31 October 2013 record of interview

Following the informal conversation, the applicant took part in a formal record of interview conducted by Detective Sergeant Trewavas. That interview was recorded. It commenced at 2:21 pm and concluded at 5:35 pm.

During the course of the interview, the applicant admitted (as he had done in his First Statement) that he had met Ganly in Melbourne on the evening of 28 April 2013.

In the record of interview, contrary to what he had told police in his First Statement, the applicant said that he and Ganly had each driven to Avoca. He said that they had not been able to agree upon the supply of firearms to Ganly. He claimed that Ganly was alive and well when they parted.

The applicant’s Second Statement

After the record of interview, the applicant elected to make a second formal statement (‘Second Statement’). That statement is dated 30 October 2013, but it is common ground that it was made soon after the record of interview had concluded on 31 October 2013.

In the Second Statement, the applicant largely repeated what he had earlier told Detective Sergeant Trewavas during the record of interview. However, he added an important detail not previously mentioned. He claimed that, following their disagreement regarding firearms, Ganly had attacked him with a pair of scissors, injuring his arm.

Subsequent police interviews

As previously indicated, Ganly’s body was discovered some months later, in January 2014.

Thereafter, police interviewed the applicant several more times. In those interviews he admitted having shot Ganly in the back of the head, and having disposed of his body. He claimed, however, that he had shot Ganly in self-defence.

The applicant once again said that Ganly had attacked him with scissors and injured his arm. He said that he became frightened when Ganly threatened to arrange for 10 members of a motorcycle gang to be at the applicant’s doorstep the following day. He claimed that he had shot Ganly in order to prevent the ‘bikies’ from attacking him.

Issue at trial

Accordingly, the central issue at trial was whether, as the Crown alleged, the applicant had murdered Ganly or whether, as the defence contended, he had shot Ganly in self-defence.

Objection to the Second Statement and Record of Interview

Counsel who appeared for the applicant at trial did not object to the tender of the First Statement. Of course, that statement was replete with lies. Not surprisingly, the Crown sought to rely upon those lies as incriminating conduct, or what used to be known as ‘consciousness of guilt’.

Counsel for the applicant did, however, object to the Crown tendering the 31 October 2013 record of interview, and the Second Statement. These, too, were said to contain lies which the Crown alleged amounted to evidence of incriminating conduct.

Counsel’s objection was based primarily upon the claim that Detective Sergeant Trewavas had failed, at any stage on 31 October 2013, to inform the applicant of his right to remain silent, and had thereby contravened s 464A(3) of the Act.

There was, however, a second limb to counsel’s objection to this evidence. It turned upon the claim that Detective Sergeant Trewavas had failed to inform the applicant, prior to the commencement of the record of interview, of the circumstances surrounding the offence about which he was being questioned. This was said to constitute a breach of s 464A(2)(a).

It was common ground at the trial that, from the time the applicant arrived at the Maryborough police station he was under arrest, and therefore in custody. Accordingly, ss 464A(2)(a) and 464A(3) were applicable.

The significance of the alleged failure to comply with s 464A(3)

It was correctly submitted, at trial, that if, contrary to Detective Sergeant Trewavas’s evidence, he did not at any stage on 31 October 2013, inform the applicant of his right to remain silent, that would amount to a most serious breach of the applicant’s legal rights.

One would expect, in those circumstances, that the Crown would have no basis for seeking to rely upon either the record of interview or the Second Statement. A failure to caution the applicant in accordance with s 464A(3) would trigger the operation of s 138 of the Evidence Act 2008[1] and, in all probability, lead to exclusion of the evidence in question.
[1]It might also trigger the operation of s 90 of the Evidence Act 2008, and possibly the residual unfairness discretion spoken of by this Court in Haddara v The Queen (2014) 43 VR 53.

Section 138 relevantly provides as follows:

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

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

…
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

It is clear from both the DVD of the record of interview and the transcript made therefrom that Detective Sergeant Trewavas did not, at any stage during the course of that recording, inform the applicant of his right to remain silent. Nor, for that matter, did he record the fact, as he was required by s 464G to do, that he had earlier informed the applicant of his right to silence.

It follows that there was, at the very least, and on the unchallenged evidence of Detective Sergeant Trewavas, a breach of s 464G of the Act.

As will shortly be seen, the DVD confirms that Detective Sergeant Trewavas did inform the applicant, both prior to the commencement of the record of interview, and during the course of the record of interview, of his right to contact a friend or relative and of his right to seek legal advice from a solicitor. The DVD also makes clear that Detective Sergeant Trewavas did, at the very commencement of the record of interview, inform the applicant that whatever he said could be used as evidence in court.

On the voir dire, Detective Sergeant Trewavas insisted that he had given the applicant ‘his full caution and rights’[2] during the lead up conversation. He acknowledged that he had failed to repeat that caution during the interview, or confirm that it had been given previously. He acknowledged, therefore, that he had contravened s 464G. He said that this was an inadvertent error on his part.
[2]Transcript of Proceedings, DPP v Willis (Supreme Court of Victoria, S CR 2014 00092, Osborn J, 9 June 2015) 7 (‘Trial Transcript’).

No objection was taken to the lead up conversation. No doubt, that was because it contained no incriminating lies, and parts of it were not unhelpful to the applicant. For example, the reference to ‘bikies’, which Detective Sergeant Trewavas recalled, could be seen as providing some support for the applicant’s later claim to have acted in self-defence.

The formal record of interview

The transcript of the impugned record of interview relevantly reads as follows:

ALL RIGHT. MY NAME IS SERGEANT STEVE TREWAVAS. I’M A DETECTIVE AT THE HOMICIDE SQUAD IN MELBOURNE AND TODAY WE'RE HERE AT MARYBOROUGH POLICE STATION IN MARYBOROUGH. IT’S THE 31ST OF OCTOBER 2013 AND THE TIME IS NOW IS 2.21 PM AND WE’RE ABOUT TO HAVE A CONVERSATION WITH JESSE WILLIS IN RELATION TO THE DEATH OF RICKY LEE GANLY WHICH OCCURRED ON THE 28TH INTO THE MORNING OF THE 29TH OF APRIL 2013. JESSE’S COME IN TODAY AFTER RECEIVING A PHONE CALL FROM THE LOCAL POLICE AND WE’RE HERE AS A RESULT OF THAT. ULTIMATELY WE’RE HERE HAVING A CONVERSATION.

SERGEANT TREWAVAS
Q 1         Jesse, just so you’re aware the tape deck is going to run, The Homicide Squad — we run our tape decks all the way through. So from when we commence this until you leave today, there will be a recording of what occurs. So this is in fairness to you and us and open and transparent about what happens.
A Mm’hm.
Q 2        So everything we say in the room here or anything we do in the room here is recorded on there. There's three disks there you would have seen me loading up just a minute ago?
A Yep.
Q 3        One’s for the court, one’s for me and one goes home with you today. All right?
A Mm’hm.
Q 4        So ultimately your actions or what you say, recorded, and can be used in evidence in court.
A Mm’hm.
Q 5         You understand?
A Yep.
Q 6        There’s also some important things and I know I’ve done this before when we were outside and explained it to you but you have some rights which are important to you and important you understand what they are and your legal rights are that you can speak to a friend or relative and tell them you’re here at the police station and or — and or you can speak to a solicitor and get some legal advice.
A Mm.
Q 7         Do you understand those two rights?
A Mm.
Q 8        And you’ve we’ve gone through this before but you’ve declined.
A.Yeah[3]

[3]Emphasis added.

It can be seen from questions three and four that the applicant was told, in the clearest of terms, that whatever he said during the course of the interview would not only be recorded, but could be used in court. To that extent, one part of the warning required to be given by s 464A(3) was communicated. What was not said, at least so far as the recorded interview was concerned, was that the applicant had the right to remain silent.

It should also be noted that Detective Sergeant Trewavas referred to having previously, in the lead up conversation, told the applicant that he had the right to contact a friend or relative, and the right to seek legal advice from a solicitor. To that extent, it can be seen that at least some of the applicant’s rights had been explained to him. These rights had also been confirmed during the course of the record of interview itself.

Importantly, however, as indicated there was no mention in the recording of the right to silence having been previously communicated.

We have set out at [31] of these reasons a summary of the applicant’s account of his meeting with Ganly, as he conveyed it in the record of interview. This included his admission that he had accompanied Ganly to Avoca on the night of Ganly’s disappearance.

The applicant was later asked by Detective Sergeant Trewavas why, when he made the First Statement, he had not told the police of that fact. He replied that he had been ‘nervous’ when, in September, he had been asked to speak to the Homicide Squad. He said that he had sought to ‘downplay’ his involvement with Ganly.

It was at that point, almost at the conclusion of the record of interview, that Trewavas told the applicant that he was the ‘number one suspect’ in relation to Ganly’s murder.

The trial judge’s ruling regarding admissibility of both the record of interview and the Second Statement

In a detailed and careful ruling,[4] the trial judge noted that the primary basis upon which it was sought to have both the record of interview and Second Statement excluded was the alleged failure by Detective Sergeant Trewavas, in breach of s 464A(3), to have informed the applicant of his right to silence.
[4]DPP v Willis [2015] VSC 261 (‘Ruling’).

A second basis upon which it was sought to have the record of interview excluded was the alleged failure by Detective Sergeant Trewavas, in breach of s 464A(2)(a), to have informed the applicant of the fact that he was under arrest, suspected of being involved in the murder of Ganly.

As regards the primary submission, it was essential to determine whether Detective Sergeant Trewavas had, as he insisted, cautioned the applicant during the lead up conversation.

The trial judge’s ruling contains the following summary of Detective Sergeant Trewavas’s evidence on the voir dire:

Mr Trewavas says that at the time he commenced the interview, he expected the accused to co-operate, but perhaps did not expect him to confess.
Mr Trewavas initially gave evidence that he believed the accused was not present when he made the preliminary statement at the start of the record of interview. He subsequently accepted that the video shows his recollection was faulty.
Mr Trewavas agreed in cross-examination that he had probably conducted hundreds if not thousands of interviews in his career and that there is a stock standard phrase with which detectives or police commonly commence records of interview:
‘I intend to interview you in relation to …’

He agreed that in this case such a phrase would have been ‘I intend to interview you in relation to the death or disappearance of Ricky Ganly’. Mr Trewavas did not use this phrase which he described as the traditional model in which the accused person is told of his rights by reference to a blue card.
Mr Trewavas adopted a more informal methodology described by the acronym PEACE. The letter P stands for preparation, E stands for engage and explain, A stands for account, C stands for challenge or clarification, and E for evaluation. The model envisages that a suspect will initially be made to feel comfortable and go through a series of preliminary stages before his account is challenged or clarified.
Prior to commencing the interview with this methodology however, the accused had been told what the interview was going to be about and that Mr Trewavas would conduct the interview with him on tape.
Mr Trewavas agreed that he did not in the course of the recorded interview, tell the accused that he had a right to refuse to answer questions. This was not because of a deliberate choice. It was a mistake and omission on his part.
There was a break in the interview a little after 4:15 pm, which lasted until the interview recommenced at 4:34 pm. He did not caution the accused again at this point because the break was a short one.
It was put to Mr Trewavas that given that he had overlooked cautioning the accused about his right to silence, when he conducted the formal record of interview, it was possible he had also overlooked cautioning him in relation to his right to silence as they moved through to the sally port area and had a discussion prior to the interview. Mr Trewavas denied this possibility.[5]

[5]Ruling [27]–[35] (emphasis added).

The trial judge next summarised the issues that had been raised regarding the admissibility of the record of interview:

It is first submitted on behalf of the accused that the court should not be satisfied on the evidence that the accused was cautioned with respect to his right to silence before commencement of the formal record of interview. The following aspects of the evidence are emphasised.
·No contemporaneous note was made of the giving of an initial caution.
·Mr Trewavas now has an incomplete recollection of the full terms of the conversations he had with the accused man, where precisely they occurred and what was said.
·Mr Trewavas was incorrect in his initial recollection, as to whether the accused was present when the preamble to the record of interview was recorded. This casts doubt on the accuracy of his recollection as to other matters.
·The assertion that a caution was given is not corroborated by any other independent witness.

Secondly, it is submitted that even if the court were satisfied that some caution was given prior to the formal record of interview, it should not be satisfied that it included cautions which advised the accused of his right to silence. It is emphasised that, although a partial caution was given when the interview commenced, this was not recognised as inadequate [sic]. Further, express reference is made in the opening series of questions to ‘two rights’ which two rights do not include the right to silence. The separate right to silence is not identified or acknowledged as such.
Thirdly, it is submitted that if a caution was given prior to the formal record of interview, it was not recorded in accordance with the requirements of s 464G.
Fourthly, it is submitted that not only is the formal record of interview deficient by reason of the failure to adequately caution the accused in respect of his right to silence, but it does not satisfy the requirements of s 464A(2) at its outset by informing the accused of the circumstances of the offence that he was suspected of having committed, before the questioning commenced.[6]

[6]Ruling [36]–[39].

The trial judge dealt first with the secondary submission regarding s 464A(2)(a). His Honour specifically accepted Detective Sergeant Trewavas’s evidence that he had informed the applicant that he was under arrest in respect of the suspicious disappearance and suspected murder of Ganly.

Accordingly, the trial judge found, as a fact, that s 464A(2)(a) had not been contravened. He based that conclusion upon the following matters:

·Mr Trewavas’ notebook confirms his oral evidence that on attendance at Maryborough Police Station, two local detectives were instructed to arrest the accused.
·The notebook also confirms his oral evidence that in the event the applicant came in voluntarily to the police station after no initial arrest was effected.
·It is inherently probable that Mr Trewavas was, as he says, then concerned to make clear, that the accused was or was not under arrest.
·Mr Trewavas’ account of the conversation is a circumstantial one, despite some uncertainty as to the precise location at which the relevant statements were made to the accused. In particular, his description of taking the accused from the front of the police station out the back, so that the accused could smoke and of speaking to him in the course of this process was a circumstantial one detailing the route taken.
·Whilst it is true that no note was made of the whole of the conversation, the evidence that the starting point was a discussion about the arrest of the accused and its basis is inherently probable given the sequence of events.
·The responses noted in the police officer’s notebook:
‘If I tell you what I know I won’t be going home’

and
‘Can you guarantee I will go home tonight?’

each tend to corroborate that the accused was told that he was a suspect in respect of the suspicious disappearance and suspected murder of Mr Ganly. It is plain that the subject of the suspicious disappearance of Mr Ganly was raised if these statements were made. It is also plain that the accused understood his own role in respect of that disappearance was in issue.
·The preliminary statement made at the start of the record of interview that ‘we’re about to have a conversation with Jesse Willis in relation to the death of Ricky Lee Ganly which occurred on 28 into the morning of 29 of April 2013’ is consistent with prior discussion identifying the subject matter of the proposed interview, although it goes no higher than this save that it specifies the relevant dates.
·I accept the evidence of Mr Trewavas that the accused was advised and knew what he was going to be interviewed about. In my view, the general tenor and course of the record of interview, including in particular the initial 100 questions, tend to confirm that this was so and that the accused was not taken by surprise by the subject matter of the questioning.
·No evidence was called from the accused to dispute that he was told that he was arrested before the record of interview, or that he was told more specifically that he was under arrest in relation to the suspicious disappearance of and murder of Ricky Ganly. Although the Crown bears the relevant onus of proof, the evidence as a whole, falls to be evaluated in this context.[7]

[7]Ruling [41] (emphasis added).

His Honour then said:

I accept th[at] views might differ as to the weight of some of these considerations but taken together they persuade me that the evidence of Mr Trewavas that the accused was told the basis of his arrest should be accepted.[8]

[8]Ruling [42].

Essentially, that finding put an end to the applicant’s claim that, in breach of s 464A(2)(a), he had not been told the circumstances of the offence in respect of which he was being questioned.

The trial judge then turned to the primary basis upon which it was sought to have both the record of interview and Second Statement excluded; namely, the alleged failure to inform the applicant of his right to silence.

After careful consideration, his Honour concluded that Detective Sergeant Trewavas should be believed. He said that he reached that conclusion having regard to a series of factors, which he summarised as follows:

(a)Questions 6 and 8 in the record of interview directly corroborate the oral evidence that there was a process of cautioning, prior to the record of interview.
(b)It was a logical concomitant of advising the accused that he was under arrest that he also be fully cautioned.
(c)Mr Trewavas freely admits that he made a mistake in failing to give a full caution at the outset of the record of interview by advising the accused only that what he did or said would be recorded and could be used in evidence in the court, but not advising him of his right to silence. On the other hand, he denies that rather than give a full caution after advising the accused that he was under arrest.
(d)The statements of the accused noted in the police officer’s notebook confirm that there was a conversation between them about whether the accused would or would not answer questions concerning the disappearance of Mr Ganly.
(e)The record of interview progresses through to Question 435 when the accused is told in terms that he is the number one suspect in relation to the murder of Mr Ganly and is challenged in a series of questions to say more about the disappearance of Mr Ganly. Questions and answers 442 and 443 are as follows:
Q442 You’ve — if you did know what happened to him, would you tell me?
AYeah.
Q443 Really? Why would you tell?
AI don’t know. I might just go ‘no comment’. You’re making me nervous. You’ve taken a very serious tone of voice all of a sudden. I’ve - yeah.

(f)The fact that the accused volunteers his capacity to make a ‘no comment’ answer again tends to confirm that he had been advised of his right to silence and knew how to exercise it.
(g)No evidence was called from the accused disputing that he was cautioned prior to the record of interview or asserting that he did not understand his right to silence. Again, although the onus is upon the Crown with respect to this issue, the evidence which is available, falls to be considered in this context.
(h)The fact that the giving of the caution was not noted by Mr Trewavas in his notebook is not surprising given the very limited notes made overall concerning the conversation prior to the record of interview. Likewise, the fact that it was not recorded is explained by the informal location in which the conversation deposed to took place.[9]

[9]Ruling [43]. We have altered the quote to include paragraph numbers (a) to (h) for ease of reference.

The trial judge then went on to say:

I accept once again that views might differ as to the relevant weight of these considerations but taken together they support the acceptance of the evidence of Mr Trewavas that the accused was cautioned as to his right to silence.[10]

[10]Ruling [44].

Having found that Detective Sergeant Trewavas had, as he claimed, informed the applicant in the course of the lead up conversation, of his right to remain silent, the argument that there had been a breach of s 464A(3) fell away.

His Honour then turned to the question whether the record of interview should be excluded, under s 138 of the Evidence Act 2008, having regard to the undisputed fact that there had been a breach by Detective Sergeant Trewavas of s 464G.

The trial judge referred to R v Kerr (Ruling No 1)[11] where T Forrest J analysed s 138 in the following terms:

At common law, the Bunning v Cross discretion permitted the exclusion of otherwise admissible evidence that had been improperly or unlawfully obtained. The discretion required the trial Judge to balance competing policy considerations, including ‘the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful [or improper] conduct of those whose task it is to enforce the law.’
Section 138 of the Act derives significantly from the common law discretion…[12]

[11][2015] VSC 64.

[12]Ibid [11]–[21] (citations omitted).

Having cited these passages, the trial judge said:

The evidence now in issue was obtained in contravention of s 464G and thus should not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. There is an obvious public interest underlying s 464G which is to ensure compliance with the substantive provisions referred to in it, including s 464A(3).
This said, I am satisfied [that] the failure to comply with s 464G did not materially affect the course of the subsequent interview. That failure has made the fact-finding exercise with respect to s 464A(3) much more difficult than it should have been, but it cannot sensibly be thought to have itself influenced the course of answers given in the record of interview.
The consequences of the failure to comply with s 464G can be further conveniently analysed by reference to the mandatory considerations set out in s 138(3).
(a)The probative value of the evidence is difficult to evaluate. The record of interview does not contain direct admissions of responsibility for the death of Mr Ganly or with respect to the circumstances in which he died. When it is coupled with other aspects of the accused’s post-offence conduct, however, it is capable of being viewed as materially probative of the Crown case.
(b)The evidence does materially amplify the Crown case as to post-offence conduct.
(c)The offence is very serious and there is a strong public interest in presenting the jury with all relevant evidence in respect of it.
(d)The contravention is essentially a procedural one.
(e)I am satisfied the contravention was neither deliberate nor reckless.
(f)The contravention was not contrary to or inconsistent with the right recognised by the International Covenant on Civil and Political Rights.
(g)No other proceeding has been or is likely to be taken in relation to the contravention.
(h)There was no apparent difficulty in obtaining the evidence without the relevant contravention of the law.

Given my conclusions as to the giving of a full caution prior to the record of interview, there is no reason to regard the contravention of s 464G, as giving rise to underlying unfairness to the accused, or to infer that it rendered the evidence now in issue any less reliable.
In the circumstances, I would conclude that the desirability of admitting the evidence substantially outweighs the undesirability of admitting it.[13]

[13]Ruling [54]–[58].

It is clear from all this that, having found as a fact that neither ss 464A(2)(a) nor 464A(3) had been contravened, the only possible basis for exclusion of the record of interview was the contravention of s 464G. After giving s 138 careful consideration, the trial judge concluded that this contravention did not warrant exclusion of the evidence.

Submissions – Ground 1

As noted at the outset of these reasons, the applicant originally sought to argue only one ground of appeal. That ground complains of his Honour’s finding that Detective Sergeant Trewavas had complied with the requirements of ss 464A(2)(a) and 464A(3). The ground, as expressed, does not complain of his Honour’s decision not to exclude the record of interview and subsequent statement based upon the undisputed breach of s 464G.

Ground one, as both formulated and argued before this Court, is quite specific. Particular (a) of that ground can only succeed if one or other of two findings of fact made by the trial judge is overturned. This Court would have to conclude that his Honour erred in finding that the applicant was sufficiently informed of the relevant circumstances before the record of interview commenced. Alternatively, it would have to conclude that his finding of fact that Detective Sergeant Trewavas had informed the applicant of his right to remain silent was erroneous and should be overturned.

Although particular (b) of ground one (which reflects the language of s 138 of the Evidence Act 2008) can perhaps be read more broadly than this, the applicant did not contend before this Court, in his written case or in his original oral argument, that the breach of s 464G, taken in isolation, warranted exclusion under s 138. Further, on the second day of the hearing before us counsel for the applicant acknowledged the difficulty of submitting that a breach of s 464G (in circumstances where s 464A was fully complied with) could justify the exclusion of the record of interview and second statement pursuant to s 138.[14]
[14]Transcript of Appeal, Willis v The Queen (Court of Appeal, Supreme Court of Victoria, S APCR 2015 0174, Weinberg, Priest and Beach JJA, 9 May 2016), 11.

That was hardly surprising. The trial judge’s analysis of the operation of s 138, and his reasons for concluding that the breach of s 464G did not of itself warrant such exclusion, is, with respect, difficult to fault. Given his Honour’s finding that Detective Sergeant Trewavas had cautioned the applicant in the lead up conversation, it was clearly open to him to conclude that the breach of s 464G did not warrant exclusion of the evidence under s 138.

This is in no way intended to minimise the importance of compliance with s 464G. That section serves an important purpose. It affords a safeguard to those accused of serious offending by ensuring that there is a record of their having been told of their rights, and of their response to having been so informed.

Nonetheless, a breach of that nature, in circumstances where it is found positively that the breach was merely inadvertent, does not, of itself, in relation to an offence as serious as murder, warrant the exclusion of evidence under s 138.

Noting again that the applicant’s argument before this Court focussed largely upon his Honour’s finding that Detective Sergeant Trewavas had informed the applicant of his right to silence, the applicant sought to sustain that attack by the following submissions:

·it was inconceivable that Detective Sergeant Trewavas who, on his own account, must have conducted numerous records of interview in the past, and had even been responsible for training other police in interrogation techniques, had ‘forgotten’ to inform the applicant, on tape, of his right to silence. It was also inconceivable that he would have failed to remind the applicant, on tape, that he had previously informed him of that right. The greater likelihood was that the reason why there had been a failure to comply with s 464G was because no caution had in fact been given;
·Detective Sergeant Trewavas had introduced the formal questioning in the record of interview by suggesting that he and the applicant were merely having a ‘conversation’. That suggestion bespoke a lack of formality, which would not have been enhanced by the giving of the caution in compliance with s 464A(3);
·while it was true that the applicant was told that he could speak to a friend or relative, and inform them of his whereabouts, and that he had also been told that he could speak to a solicitor in order to get legal advice, this statement of his rights was incomplete, and far from adequate. It was important for the applicant to have been made aware, at the very outset of the questioning, that he was being interviewed regarding his possible involvement in Ganly’s murder. It was even more important that he be told, in the clearest of terms, that he had the right to remain silent;
·Detective Sergeant Trewavas’s evidence that he gave the applicant a ‘full caution’ during the lead up conversation should not have been accepted. Detective Sergeant Trewavas relied entirely upon his memory in giving that evidence. His contemporaneous notes did not record the giving of the caution and, unusually so it was said, no other police officer was present at the time;
·Detective Sergeant Trewavas’s memory was clearly unreliable. He could not remember where the lead up conversation had taken place, whether in an interview room or a cell. He could not remember if he had spoken with other police about the applicant’s arrest. He could not remember when other police were briefed. He had no specific memory of the conversation that led to the making of his note. He could not remember why he had repeated that note.[15] He could not remember when the applicant was given a meal and, save for the reference to ‘bikies’ and the applicant being ‘scared’ of what people might do to him, he had no recollection of anything said outside of the interview room; and
·Detective Sergeant Trewavas had a faulty recollection insofar as it was his belief that the applicant was not present at the commencement of the record of interview. Yet the video recording clearly showed that he was.

[15]In the note, Detective Sergeant Trewavas recorded: ‘Can you guarantee me I will go home tonight’.

It should be noted that neither in the written case, nor during the course of oral submissions before this Court, did counsel for the applicant challenge the trial judge’s assessment of Detective Sergeant Trewavas as a truthful witness. Indeed, having regard to the way in which the cross-examination had been conducted, it would have been quite wrong for counsel to have done so. The trial judge had seen Detective Sergeant Trewavas give evidence on the voir dire, and had the opportunity of observing him closely under cross-examination. That was a matter of considerable significance.

The real thrust of the applicant’s submission was that even assuming Detective Sergeant Trewavas to have been a truthful witness, his evidence regarding the giving of the caution should have been rejected. Although Detective Sergeant Trewavas may genuinely have believed that in the course of the lead up conversation he had informed the applicant of his right to remain silent, he must have been mistaken about that matter.

The Crown responded to that submission by noting that, throughout his evidence, Detective Sergeant Trewavas had made reasonable concessions as to the weaknesses of his memory regarding certain issues, but had been unmoved on whether he had administered the caution. Any problems associated with his memory regarding peripheral matters, such as precisely where the lead up conversation had taken place, should not be taken as casting doubt upon his memory as regards a fundamental matter such as the giving of the caution.

The Crown submitted that the trial judge had given careful consideration to Detective Sergeant Trewavas’s evidence as a whole. His Honour had carefully and methodically analysed each and every submission made on the applicant’s behalf as to why Detective Sergeant Trewavas’s evidence should not be accepted. The trial judge’s finding that his evidence was not merely truthful, but also reliable, was a finding that was reasonably open.

The Crown further submitted that the trial judge’s finding that the caution had been given was supported by the various factors that his Honour identified as lending credence to Detective Sergeant Trewavas’s evidence.

The trial judge’s findings of fact and the nature of the appeal to this Court

The submission that the trial judge erred in finding that the caution was given involves a challenge to a finding of fact. A challenge of that kind, in the context of a finding made on a voir dire, gives rise to a preliminary question regarding the nature the appeal from such a finding.

All appeals are, of course, creatures of statute. There is now a well-recognised taxonomy of appeals.[16] For present purposes, it is sufficient to note that the great majority of civil appeals to this Court are by way of what is termed ‘rehearing’.[17] Criminal appeals, on the other hand, have usually been regarded as being appeals in the strict sense.[18]
[16]See, generally, Margaret J Beazley, Paul L Vout and Sally Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (Butterworths, 2014), 3–16. See also Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297 (Glass JA), where his Honour listed six distinct categories of appeal. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, Mason J, as his Honour then was, identified four categories of appeal and, importantly, distinguished between an appeal stricto sensu and an appeal by way of rehearing on the evidence before the lower court (occasionally supplemented by such further evidence as the appellate court might admit under a statutory power to do so).
[17]Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192, 208–9 (Windeyer J); Fox v Percy (2003) 214 CLR 118; and CSR Ltd v DellaMaddalena (2006) 224 ALR 1, 7 [16] (Kirby J) (‘CSR Ltd’).
[18]Justice Phillip Priest, ‘Appeals in Criminal Cases’ in Ian Freckelton, Criminal Law Investigation and Procedure (Thomson Reuters, 2012) [3.3.20]. See also Western Australia v Rayney [2013] 46 WAR 1, 56 [349]. Appeals to the High Court, whether civil or criminal, are always treated as appeals in the strict sense. See Mickelberg v The Queen (1989) 167 CLR 259; Eastman v The Queen (2000) 203 CLR 1; and Fox v Percy (2003) 214 CLR 118.

In CSR Ltd v Della Maddalena,[19] Kirby J explained how a civil appeal, by way of rehearing, should be conducted:

The relevant ‘requirements’ are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact–finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge’s reasons and engaging in the tasks of ‘weighing conflicting evidence and drawing … inferences and conclusions’.
The ‘limitations’ introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole.[20]

[19](2006) 224 ALR 1.

[20]Ibid 7 [16]–[17] (citations omitted).

In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[21] Callinan J spoke of the correction, in civil appeals, of factual errors made by the trial judge:

Appellate courts today remain cautious, sometimes unduly so, about reversing findings of fact at first instance, or occasionally, in upholding appeals at all. As late as 1922, for example, Higgins J in Ross v The King, a criminal appeal, was still resistant to the application, according to its tenor of s 593 of the Crimes Act 1915 (Vic) which allowed accuseds [sic] to appeal against convictions in Victoria for the first time. There may be several reasons for this but not all of them are equally convincing or provide a sufficient justification for the excessive caution which manifests itself from time to time in appellate jurisdictions, particularly in cases of appeals from judges sitting without juries. This is so notwithstanding that the outcome of most cases depends upon the resolution of disputed matters of fact rather than of law. Certainly a trial judge does enjoy advantages over an appellate court in resolving the former but the advantages should not be exaggerated. The stressing of the importance of demeanour by appellate courts is a case in point. Whilst I would not suggest that demeanour will not be critical in some cases, recent studies and experiments strongly suggest that too much store may on occasions be placed upon it. So too the importance of the so–called atmosphere of the trial can be over–emphasised as a reason for appellate restraint. Quite properly appellate courts start out in any appeal holding due respect for the competence and experience of the trial judge, but these should not be allowed to stand in the way of the correction of an error of fact when it can be identified, and when the correction involves more than the mere substitution of the appellate court’s view on a matter of fact on which more than one view may be open.[22]

[21](2000) 203 CLR 194 (‘Coal and Allied Operations’).

[22]Ibid 239–40 [115](citations omitted).

Importantly, therefore, in civil appeals, the appellate court will generally defer to the trial judge’s assessment of the credibility of witnesses. However, that court may decide that a finding cannot stand where the trial judge failed to use or palpably misused his or her advantage, or has acted on evidence inconsistent with facts incontrovertibly established or glaringly improbable.[23]
[23]Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; and Fox v Percy (2003) 214 CLR 118. See also Robinson Helicopter Inc v McDermott [2016] HCA 22, [43].

Almost invariably, in any criminal appeal, an attack upon a finding of fact will be a challenge to the verdict of the jury, claiming that it is unsafe or unsatisfactory.[24] A challenge of that kind must overcome a number of considerable hurdles. Properly analysed, it involves an appeal at least closely analogous to an appeal in the strict sense. If the verdict of the jury can be said to have been reasonably open (even if the members of the appellate court might not, themselves, have arrived at that same verdict), the appeal will almost invariably be dismissed. A conviction will only be set aside on this ground if, in the opinion of the appellate court, the jury, acting reasonably, must have entertained a reasonable doubt.[25]
[24]M v The Queen (1994) 181 CLR 487.
[25]Libke v The Queen (2007) 238 CLR 559, 596 [113] (Hayne J).

Appellate courts follow a similarly cautious approach in those jurisdictions where a trial on indictment can be conducted before a judge alone.[26] Any challenge to a finding of fact that is integral to the judge’s verdict will only be set aside if that finding of fact was not reasonably open.
[26]See, generally, Western Australia v Rayney [2013] 1 WAR 1. See also R v S (PL) [1991] 1 SCR 909, 931 where the position in Canada is discussed, and the same conclusion reached.

Self-evidently, a challenge to a finding of fact made by a sentencing judge in the course of sentencing an offender will involve an appeal in the strict sense.[27] An appellate court will not substitute for any such finding its own view of what the facts disclose unless it concludes that the finding made below was not reasonably open.
[27]Carroll v The Queen [2011] VSCA 150, [16]–[18]. See also Stark v The Queen (2013) 45 VR 1, 15-16 (Maxwell P). There, in the context of s 377 of the Criminal Procedure Act 2009, the ‘reasonably open’ test was applied to appeals against findings of fact made by a trial judge on a question of admissibility of evidence.

Although there is comparatively little authority directly in point,[28] the better view seems to be that this Court ought not conclude that a trial judge who has conducted a voir dire has made a factual error of a vitiating kind unless satisfied that the finding below was not reasonably open.
[28]The matter is discussed in Kerry David Stephens, Voir Dire Law – Determining the admissibility of Disputed Evidence (Criminal Law Publications, 1997), 490–6.

In Attorney General (NSW) v Jackson,[29] Griffith CJ, when considering the admissibility of a deposition made by a witness who had since died, stated that it was up to the trial judge to determine the questions of fact, and that an appeal court would not interfere with such a finding unless the evidence showed the decision to be manifestly not warranted.
[29](1906) 3 CLR 730.

In R v Kyriakou,[30] the New South Wales Court of Criminal Appeal was required to determine whether the trial judge had erred in admitting evidence of an alleged confession which the accused claimed had been involuntary. Yeldham J observed:

This court does not sit in judgment from factual findings made by trial judges on the voir dire. If there is no evidence to support a finding, or if a judge has applied wrong principles, or if the evidence is all one way, then this court, in order to prevent injustice, will intervene…[31]

[30](1987) 29 A Crim R 50.

[31]Ibid 57.

In Heiss v The Queen,[32] the Northern Territory Court of Criminal Appeal accepted that this passage correctly stated the law.
[32](1992) 111 FLR 362. See also R v Buchanan [1966] VR 9, where Winneke CJ accepted a concession from counsel along similar lines.

In Canada, in R v Ewert,[33] the British Columbia Court of Appeal said that an appeal court would only interfere with a finding of fact made on a voir dire if the particular finding was unreasonable or unsupported by the evidence. To the same effect was the decision of the Supreme Court of Canada in R v L (D O),[34] where it was said that appellate courts must show due deference to findings of fact made by trial judges after voir dire hearings.[35]
[33](1991) 68 CCC (3d) 207.
[34][1993] 4 SCR 419.
[35]Ibid 467.

In R v Bailey,[36] the English Court of Appeal went further and said that there could be no challenge to a finding of fact made by a trial judge upon a voir dire.[37] To the same effect, in R v Park[38] the Court of Appeal took the view that the finding of fact by a trial judge on the voir dire was unassailable.[39] That seems to overstate the position, but does reflect the deference ordinarily accorded to the views of a trial judge who has seen and heard the evidence in question.
[36](1993) 97 Cr App R 365.
[37]Ibid 367.
[38](1994) 99 Cr App R 270.
[39]Ibid 274.

This general approach accords with the ordinary position taken in criminal appeals with regard to jury verdicts.

We note, incidentally, that this view also accords with the approach favoured by Callinan J in Coal and Allied Operations,[40] set out at [90] of these reasons for judgment, as to the limited circumstances in which an appellate court should overturn a finding of fact made by a trial judge. That is so even where the appeal is by way of rehearing.[41]
[40](2000) 203 CLR 194.
[41]Coal and Allied Operations (2000) 203 CLR 194. But see Fox v Percy (2003) 214 CLR 118, 125–129 [23]–[31] (Gleeson CJ, Gummow and Kirby JJ).

Who bore the onus of proof regarding the giving of the caution?

When this matter was first argued before this Court, on 4 April 2016, counsel for the applicant proceeded upon the basis that the trial judge had erred in finding that Detective Sergeant Trewavas had cautioned the applicant as he claimed. He assumed, for the purpose of that argument, that the onus of proof regarding that issue had rested throughout upon the Crown. Indeed, the case had proceeded at trial on that basis.

The difficulty is that s 138 of the Evidence Act 2008 makes it clear that under that section the onus is on the party seeking exclusion of the evidence under challenge first to establish that it was improperly or illegally obtained. Of course, once that onus has been discharged, it is for the Crown, seeking admission of the evidence, to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting it, having regard to the way it was obtained.

One might reasonably have thought, given the language of s 138, that where the only basis for exclusion actually relied upon was a suggested breach of either ss 464A(2)(a) or 464(A)(3), the onus would have rested upon the applicant to establish the existence of that breach. It would follow, therefore, that before s 138 could be invoked, the applicant would have to satisfy the trial judge, on the voir dire, that Detective Sergeant Trewavas had failed to comply with one other of those two provisions.

That was not the way in which this matter proceeded. It seems to have assumed by both parties, and indeed by the trial judge, that the Crown had the onus of establishing that there had been no breach of ss 464A(2)(a) or 464A(3).[42] In other words, the Crown had to satisfy the trial judge, on the voir dire, that Trewavas had sufficiently informed the applicant of the fact that he was under arrest and the reason therefore, and that he had the right to remain silent.
[42]It may be that the trial prosecutor accepted the burden of attempting to show that the caution had been given so as to show that the failure to comply with s 464G was of little moment, and would not justify the exclusion of the record of interview and second statement.

The explanation for this misconception seems to have been a conflation between the breaches that were alleged (ss 464A(2) and 464A(3)) and the acknowledged but quite separate breach of s 464G. It appears to have been assumed that because there was, relevantly, an impropriety or illegality associated with the failure to comply with s 464G thereby triggering s 138, the applicant needed to do nothing more in relation to the matters raised in ground one, each of which was said to have warranted exclusion of the evidence.

Not only was this the basis upon which the trial was conducted, it remained the position of the parties during the course of oral argument before this Court when this application was first heard.

Indeed, even after the hearing before this Court, when the parties were invited to file further submissions regarding the question of who bore the onus of proof regarding compliance with ss 464A(2)(a) and 464A(3), both sides adhered to the position they had previously adopted. Each side simply asserted that once it was clear that there had been a breach of s 464G, nothing more needed to be done with regard to proof of a breach of ss 464A(2)(a) or 464A(3). Section 138 simply came into play. Accordingly, it was for the Crown to persuade the trial judge to admit the evidence pursuant to that section.

Subsequently, on 9 May 2016, the morning of the second day of hearing before this Court, the Crown resiled from its original position. It then argued that it had been for the applicant all along to prove the facts giving rise to the breaches alleged in ground one, those involving ss 464A(2)(a) and 464A(3).

As we have indicated, the position belatedly adopted by the Crown seems to us to be correct. There are a number of reasons why we have reached that conclusion.

Section 138 makes it clear that one of the factors that may be weighed in the balance in determining whether to exclude the evidence under challenge is the gravity of the impropriety or contravention.[43] Another factor that can be taken into account is whether the impropriety or contravention was deliberate or reckless.[44]
[43]Evidence Act 2008 s 138(3)(d).
[44]Ibid s 138(3)(e).

Self-evidently, it is necessary when considering whether to exclude evidence as having been improperly or illegally obtained to have regard to the nature and gravity of the impropriety or illegality. It may fairly be said that a failure of an (experienced) interrogating police officer to inform a suspect of his or her right to silence is not just a matter of the utmost seriousness, but borders on the inexcusable. Such a breach will almost invariably be found, at the very least, to have been reckless. The same cannot so readily be said of a breach of s 464G.

The trial judge concluded that Detective Sergeant Trewavas’s contravention of s 464G, was neither deliberate nor reckless, but, rather nothing more than an oversight. As such, that contravention did not, as a matter of public policy, warrant exclusion of the record of interview. If his Honour had found that Detective Sergeant Trewavas had not cautioned the applicant, it would have been surprising had he not concluded that the impropriety or illegality thereby occasioned justified the exclusion of that evidence.

Section 138, by its very terms, recognises that not all impropriety or illegality is of the same gravity. For example, a breach of s 464A(3) in a case involving an interview concerning a murder would surely be regarded as significantly more culpable than an inadvertent failure to include on tape a confirmation of a caution that had been given just moments earlier.

That being so, both the text of the relevant provisions, and considerations of sound principle, suggest that the onus must rest upon the applicant to establish that he was neither told why he was in custody, nor cautioned.

Of course, the trial judge found, positively, that Detective Sergeant Trewavas had satisfied both ss 464A(2)(a) and 464A(3). That finding went beyond what was necessary for the purpose of determining whether to exercise the power conferred by s 138. It would have been quite sufficient for his Honour to have concluded simply that the applicant had not discharged the onus that rested upon him to establish the relevant contravention.[45]
[45]However, that would then have left for consideration the proper exercise of the s 138 discretion in relation to the s 464G breach.

The matter takes on some importance when one bears in mind that the applicant was not called to give evidence on the voir dire. That meant that it was all the more difficult for him to have discharged the onus that, unbeknown to anyone at trial, rested upon him.

Of course, there was little downside to calling the applicant on the voir dire.[46] Yet the fact remains that he did not give evidence to controvert that given by Detective Sergeant Trewavas. In these circumstances, it was not surprising that the trial judge concluded that Detective Sergeant Trewavas’s evidence should be accepted.
[46]See Wong Kam-Ming v The Queen [1980] AC 247 (‘Wong Kam-Ming’), where the Privy Council (by majority) held that an accused who gave evidence on the voir dire should not be asked questions directed at establishing the truth of a statement sought to be tendered at trial by the Crown.

The same can be said of the trial judge’s finding that the applicant was told, sufficiently clearly to meet the requirements of s 464A(2)(a), why he was in custody and being questioned.

In our view, there can be no doubt that, when the record of interview commenced, the applicant was well aware of the fact that he was under arrest and therefore in custody. He also well knew that he was being questioned by a member of the Homicide Squad about Ganly’s disappearance.

We consider that, on the law as it stands, there was no need for Detective Sergeant Trewavas to have gone into any greater detail than he did regarding the subject matter of the interview. It must be remembered that the applicant had been interviewed only a month or so earlier regarding Ganly’s disappearance.

The applicant was told at the commencement of the record of interview that Detective Sergeant Trewavas was based at the Homicide Squad in Melbourne, and that he wished to speak to the applicant about the suspected death of Ganly. He was also told that Ganly’s death was suspected of having occurred late in the evening of 28 April 2013 or early the following morning. While he was not told at that stage of the interview, in terms, that he was suspected of Ganly’s murder, it would have been tolerably clear to him, having been arrested, that he was not being questioned as a mere witness. It follows that he was told enough at the outset to meet the requirements of s 464A(2)(a).

In accordance with R v Lancaster,[47] the requirement that the applicant be informed of the ‘circumstances’ regarding the offence which he was suspected of having committed, was satisfied.
[47][1998] 4 VR 550 (‘Lancaster’).

In Lancaster, Tadgell JA said:

[I]t would, I think, in the case of an investigation of a homicide, generally be sufficient compliance with the terms of s 464A(2)(a) to inform the person being questioned that the questioning relates to the death of a certain person at a certain time and place. Very often an investigating officer will not know what the nomination of the crime should be and an investigation of a homicide might, of course, be of what turns out to be a case of murder or something less than murder.[48]

[48]Ibid 555 (emphasis added).

In the same case, Batt JA said:

By way of examples of what ordinarily would satisfy para (a), I would suggest a statement by an investigating official that he wanted to question the person ‘about the death of X’ … with it being unnecessary to specify murder or manslaughter…[49]

[49]Ibid 557.

Based on Lancaster, Detective Sergeant Trewavas’s statement to the applicant as to the reason for the interview was sufficient in all the circumstances. Accordingly, there was no breach of s 464A(2)(a). It followed that there was nothing arising out of that provision that could have triggered the operation of s 138 of the Evidence Act 2008.

Conclusion re: ground one

The trial judge found that Detective Sergeant Trewavas was a truthful and reliable witness. There is no challenge to that finding insofar as it relates to his having given truthful evidence.

Of course, that is not the end of the matter. There was a challenge mounted on the voir dire as to Detective Sergeant Trewavas’s reliability. As indicated, it was put to him in cross-examination that his memory may have been faulty, and that he might well have omitted to inform the applicant, at any stage on 31 October 2013, that he had the right to remain silent.

It should be noted that counsel’s cross-examination of Detective Sergeant Trewavas did not explore what might be thought to be a pivotal question. When he insisted that he had cautioned the applicant, was he purporting to have an actual memory of having done so? Or was he merely asserting that, in accordance with his invariable practice in questioning suspects, he must have done so?

In arriving at his finding that the caution had been administered, the trial judge took into account not merely his assessment of Detective Sergeant Trewavas as a witness, but also a number of other matters that he regarded as supporting his evidence.

Insofar as the trial judge’s finding was based upon his assessment of Detective Sergeant Trewavas as both truthful and reliable, this Court would not lightly overturn that finding.

However, as earlier indicated, the trial judge also took into account a number of extraneous factors which, in his view, supported Detective Sergeant Trewavas’s account.

As has been seen, his Honour referred to questions 6 and 8 in the record of interview,[50] which he regarded as having ‘directly corroborate[d]’ Detective Sergeant Trewavas’s evidence that he had cautioned the applicant during the lead up conversation.
[50]See paragraph (a) at [68] of these reasons.

Questions 6 and 8 make it clear that Detective Sergeant Trewavas had informed the applicant, during the lead up conversation, of certain legal rights, and emphasised their importance. He identified these as being the right to speak to a friend or relative and inform that person of his whereabouts, and the right to speak to a solicitor in order to obtain legal advice. There was no mention, however, of Detective Sergeant Trewavas having previously informed the applicant of his right to remain silent.

In these circumstances, we consider that it is something of an overstatement to describe questions 6 and 8 as ‘directly corroborat[ive]’, of Detective Sergeant Trewavas’s evidence. Nonetheless, we consider that it was reasonably open to the trial judge to regard the content of these questions as providing some, limited, support, for Detective Sergeant Trewavas’s claim that he had previously informed the applicant of his right to remain silent.

We accept that reasonable minds might differ as to what weight should be accorded to questions 6 and 8. However, it cannot be said that they were incapable of carrying any weight, still less that they pointed positively towards a rejection of Detective Sergeant Trewavas’s evidence.

The next matter towards which the trial judge referred in support of that evidence was that it was a ‘logical concomitant of advising the accused that he was under arrest that he also be fully cautioned’.[51] By that statement, the trial judge seems to us to have meant nothing more than a police officer with Detective Sergeant Trewavas’s extensive experience, and particular expertise in the field of interrogating suspects, would be likely when cautioning a suspect as to his right to contact a relative or friend, or a solicitor, to have administered the full caution at that stage. In a sense, the need to do so would be almost ingrained into Detective Sergeant Trewavas’s thought processes. The caution would come automatically.
[51]See paragraph (b) at [68] of these reasons.

If Detective Sergeant Trewavas deliberately refrained from informing the applicant of his right to silence as part of some cunning plan to cause him to confess, he could hardly then have been treated, as he undoubtedly was by counsel in cross-examination, as a truthful witness whose memory might simply have failed him

Moreover, there would seem to be no particular reason why Detective Sergeant Trewavas would deliberately have not informed the applicant of his right to silence. He would in all likelihood know, as was in fact the case, that the applicant had had previous dealings with police. He would therefore have assumed that the applicant would have been well aware, from those previous dealings, of his right to silence.

Finally, in relation to this point, there would have been little purpose in Detective Sergeant Trewavas telling the applicant that he could contact a solicitor (with the reasonable likelihood that the solicitor would advise him to say nothing) but not give the applicant the full caution. In our view it was reasonably open to the trial judge to treat this factor as providing some, limited, support for Detective Sergeant Trewavas’s evidence.

The third matter upon which his Honour relied in coming to his conclusion regarding the giving of the caution was Detective Sergeant Trewavas’s willingness to concede his failure to comply with s 464G.[52]
[52]See paragraph (c) at [68] of these reasons.

Detective Sergeant Trewavas told the applicant that anything he said would be recorded and could be used as evidence. It was reasonably open for the trial judge to have concluded that the fact that he had done so provided some, once again limited, support for Detective Sergeant Trewavas’s account.

The fourth matter said to provide support for that account concerned the notes that he recorded in his notebook.[53] Those notes, which indicated that the applicant was concerned that if he told Detective Sergeant Trewavas what he knew he would not be going home that night tended to confirm that the discussion had involved Ganly’s disappearance. That fact, coupled with the applicant’s unwillingness at that stage to tell Detective Sergeant Trewavas what he knew, could be regarded as some support for the caution having been given at that stage.
[53]See paragraph (d) at [68] of these reasons.

Of course, it may fairly be said that there are other possible explanations for what was contained in the notes, and accordingly that the support for Detective Sergeant Trewavas’s evidence from these notes was limited.

The fifth and sixth matters identified by the trial judge as supporting Detective Sergeant Trewavas’s account may be considered together.[54] His Honour’s reasoning emerges from the applicant’s answers to questions 442 and 443 in the record of interview.
[54]See paragraphs (e) and (f) at [68] of these reasons.

The applicant knew perfectly well, from those answers, that he could decline to answer questions, and simply respond ‘no comment’. One possible view of those answers is that the applicant had indeed been informed, as Detective Sergeant Trewavas insisted, of his right to silence during the course of the lead up conversation.

Of course, another interpretation is open. It is possible that the applicant was aware of his right to remain silent because had previously had dealings with police. However, the fact that there may be an alternative explanation for the answers in question does not detract from the fact that they might also provide some support for Detective Sergeant Trewavas’s account.

Once again, in our view, his Honour’s use of the answers given as support for Detective Sergeant Trewavas’s evidence does not disclose appealable error.

The seventh matter upon which his Honour relied was significant.[55] It was the applicant’s failure to give evidence on the voir dire, challenging Detective Sergeant Trewavas’s account of having informed him of his right to silence.
[55]See paragraph (g) at [68] of these reasons.

As we have said, both sides, as well as the trial judge, assumed throughout the trial that the onus rested upon the Crown to establish affirmatively that the caution had been given. For the reasons previously discussed, that assumption was misconceived. Nonetheless, his Honour’s approach to that factual issue, erroneous though it may have been as a matter of law, could not have operated to the applicant’s detriment.

The trial judge found that the caution had been given. On a correct analysis, he did not need to go that far. It would have been quite sufficient for him to have found that the applicant had not discharged the onus that rested upon him of establishing that the caution had not been given. The error as to who bore the onus of proof could only have operated to the applicant’s benefit and was, in that sense, and for the purposes of this ground of appeal, inconsequential.

Of course, there are several possibilities as to what the applicant might have said had he given evidence on the voir dire. He might, for example, have said that he had no recollection as to whether the caution had, in fact, been given. Evidence in those terms could not have assisted him. Alternatively, he might have claimed that he had a clear recollection of the conversation, and was quite certain that no caution had been given.

Another reason as to why the applicant might not have been called to give evidence would have been if he knew full well that he had been informed of his right to silence.

On any view, it was reasonably open to the trial judge, when considering whether or not the caution had been given, to accord some weight to the applicant’s failure to give evidence on the voir dire.

[95]Section 139(1) of the Evidence Act 2008 provides:

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.

[96]R v Kerr and Lewis [2015] VSC 64 (‘Kerr’).

[97]Ibid [13] (footnotes omitted).

Notwithstanding, however, the deficiencies in the application as presented by counsel — and no matter which party bore the relevant onus of proof (or disproof) — in my view the essential conclusion of the trial judge with respect to the caution was not supported by the reasoning adopted. In his ruling,[98] the trial judge identified four issues:[99]

It is first submitted on behalf of the accused that the Court should not be satisfied on the evidence that the accused was cautioned with respect to his right to silence before the commencement of the formal record of interview. …
Secondly, it is submitted that, even if the Court were satisfied that some caution was given prior to the formal record of interview, it should not be satisfied that it included a caution which advised the accused of his right to silence. It is emphasised that, although a partial caution was given when the interview commenced, this was not recognised as inadequate. Further, express reference is made in the opening series of questions to ‘two rights’, which two rights do not include the right to silence. The separate right to silence is not identified or acknowledged as such.
Thirdly, it is submitted that, if a caution was given prior to the formal record of interview, it was not recorded in accordance with the requirements of s 464G.
Fourthly, it is submitted that not only is the formal record of interview deficient by reason of the failure to adequately caution the accused in respect of his right to silence, but it does not satisfy the requirements of s 464A(2) at its outset by informing the accused of the circumstances of the offence that he was suspected of having committed before the questioning commenced.

[98]Ruling.

[99]Ibid [36]–[39].

The critical findings with respect to whether a caution was given are as follows:[100]
[100]Ibid [43]. For ease of reference, I have substituted numbers for bullet points.

I further accept the evidence of Mr Trewavas that, when he advised the accused that he was under arrest in respect of the suspicious disappearance of and suspected murder of Ricky Ganly, Mr Trewavas went on to caution the accused in respect of his right to silence in terms reflecting the requirements of s 464A(3), namely that he did not have to say or do anything but that anything he did say or do might be given in evidence, having regard to the following [eight] matters.
(1)Questions 6 and 8 in the record of interview directly corroborate the oral evidence that there was a process of cautioning prior to the record of interview.
(2)It was a logical concomitant of advising the accused that he was under arrest that he also be fully cautioned.
(3)Mr Trewavas freely admits that he made a mistake in failing to give a full caution at the outset of the record of interview by advising the accused only that what he did or said would be recorded and could be used in evidence in court but not advising him of his right to silence. On the other hand, he denies that he did other than give a full caution after advising the accused that he was under arrest.
(4)The statements of the accused noted in the police officer’s notebook confirm that there was a conversation between them about whether the accused would or would not answer questions concerning the disappearance of Ganly.
(5)The record of interview progresses through to question 435 when the accused is told in terms that he is the number one suspect in relation to the murder of Ganly and is challenged in a series of questions to say more about the disappearance of Ganly. …
(6)The fact that the accused volunteers his capacity to make a ‘no comment’ answer again tends to confirm that he had been advised of his right to silence and knew how to exercise it.
(7)No evidence was called from the accused disputing that he was cautioned prior to the record of interview or asserting that he did not understand his right to silence. Although the onus is upon the Crown with respect to this issue the evidence which is available falls to be considered in this context.
(8)The fact that the giving of the caution was not noted by Mr Trewavas in his notebook is not surprising given the very limited notes made overall concerning the conversation prior to the record of interview. Likewise, the fact that it was not recorded is explained by the informal location in which the conversation deposed to took place.

With respect, I am unable to see that the first, second, fourth, fifth, sixth and eighth of the matters relied upon support the finding that Detective Trewavas cautioned the applicant ‘in respect of his right to silence in terms reflecting the requirements of s 464A(3)’. Indeed, to my way of thinking, overall they point directly in the opposite direction. Furthermore, even absent adequate cross-examination, Detective Trewavas’ evidence concerning the administration of the caution strains credulity.

Weinberg and Beach JJA very helpfully have discussed the considerations which apply to a trial judge’s findings of fact and the nature of an appeal to this Court.[101] I am content to adopt their Honours’ exposition of principle. As their Honours recognise,[102] although there is little authority directly in point, the better view seems to be that this Court ought not conclude that a trial judge who has conducted a voir dire has made a factual error of a vitiating kind unless satisfied that the finding below was not reasonably open. In my view, the essential findings made by the trial judge were not reasonably open.
[101]Above, [87]–[102].
[102]Above, [95].

The trial judge found that Detective Trewavas was both a truthful and reliable witness (and, so it seems, the applicant’s counsel mounted no challenge to the truth of his evidence). It is important, however, to recognise that in making his assessment of the credit of Detective Trewavas as a witness, and in arriving at the essential finding that the caution had been given, the trial judge took into account the various extraneous matters set out above that he regarded as supporting his evidence. Rather than supporting Detective Trewavas’ evidence, however, as I have said, in my view, most point directly — and inexorably — in the opposite direction.

In their joint reasons, the other members of the Court have set out the record of interview up to the answer to question 8.[103] I need not duplicate that exercise, save to observe that Detective Trewavas stated that when he and the applicant ‘were outside’ he had explained some ‘important’ rights to the applicant. He told the applicant that it was ‘important’ that he ‘understand what they are’. Detective Trewavas then identified only two rights as having been discussed outside prior to the interview commencing: ‘your legal rights are that you can speak to a friend or relative and tell them you’re here at the police station and or — and or you can speak to a solicitor and get some legal advice’. And he said to the applicant, ‘we’ve gone through this before but you’ve declined’.
[103]Above, [51].

The trial judge regarded questions 6 and 8 as having ‘directly’ corroborated Detective Sergeant Trewavas’s evidence that he had cautioned the applicant during the lead-up conversation. Although the other members of the Court consider that it is something of an overstatement to describe questions 6 and 8 as ‘directly corroborat[ive]’, of Detective Sergeant Trewavas’ evidence, nonetheless their Honours consider that it was reasonably open to the trial judge to regard the content of these questions as providing limited support for Detective Sergeant Trewavas’s claim that he had previously cautioned the applicant as to his right to remain silent. And while their Honours accept that reasonable minds might differ as to what weight should be accorded to questions 6 and 8, they have concluded that it cannot be said that they were incapable of carrying any weight, still less that they pointed positively towards a rejection of Detective Sergeant Trewavas’s evidence. With respect, I cannot agree.

In my view one can (and should) read a great deal into the fact that Detective Trewavas referred specifically to the fact that he had told the applicant of his ‘important’ rights to communicate with a friend or relative, and to communicate with a legal practitioner,[104] but made no mention of having informed the applicant of the (perhaps) more important right that he had not to have to say or do anything but that anything that he did say or do may be given in evidence.[105] As a matter of pure logic, one might have expected that had Detective Trewavas cautioned the applicant, as well as informing the applicant of the two identified rights ‘outside’, he would have reminded the applicant of that fact. His failure to do so is consistent with a desire to avoid a protest from the applicant — on tape — that he had not been told that he had the right to remain silent.
[104]Crimes Act 1958, s 464C.
[105]Crimes Act 1958, s 464A(3). See also Evidence Act 2008, s 139.

Furthermore, familiarity with police methods and training over many years leads one to question the failure to record such an important matter as the giving of the caution either in notes or on tape. In my view, it might have been expected that an experienced Homicide Squad detective — even one employing a ‘lax conversation type technique’ — would have been astute to make a contemporaneous record of the giving of the caution, even if by way of the kind of shorthand notation one frequently sees in police notes (such as ‘Caution/Rights’).[106] Indeed, in my opinion, the failure either to tape-record the giving of the supposed caution, or to tape-record a confirmation that the caution was given off tape, strongly points to there having been no caution.
[106]In his evidence in this Court, the applicant’s trial counsel —who accepted that he was ‘an experienced criminal lawyer’ — agreed that he had ‘seen many, many sets of police notes’, and it is ‘very common’ to ‘see a form of shorthand used in notes, such as caution/rights or something of that nature’.

Detective Trewavas is no stranger to proper interviewing techniques. At the time of giving his evidence, Detective Trewavas was attached to the Detective Training School. He gave the following evidence in cross-examination:

Normally when you start an interview, there is a stock standard phrase which detectives or police utter, isn’t there? It starts with, ‘I intend to interview you in relation to’, whatever it is that the interview is going to be about?---Yes.
In this case, it would have been, ‘I intend to interview you in relation to the death or disappearance of Ricky Ganly’, or words to that effect, wouldn’t it?---That’s the stock standard, yes.
That’s the stock standard phrase, it’s the sort of phrase you would utter in every single interview that you’d conduct?---No.
Why not?---There’s a new process of interviewing, um, which doesn’t include using blue cards and the regulated stock standard that you're speaking of.
What’s the new process of interviewing?---Um, it’s the PEACE model which comes from the UK, the Canadians, and probably all my interviews for the past three to five years are similar to what you’re listening to.
When you're walking to the sallyport area or through that area when you say the caution was given, there was no one else present, as I understand your evidence; is that right?---Yes.
What was this new model that you were mentioning a moment ago, the PEACE model?---Yep.
How do you spell that?---Ah, it’s an acronym; P-E-A-C-E.
What is involved in that model?---Right. Um, I’ve received training from the UK, ah, the trainers. I’m an instructor in it and I've been teaching this model at the crime department for the past four or five years. I teach it at the police academy which was where I was promoted to in relation to this. Um, I was teaching it yesterday.
Well you have some knowledge of it then?---Yes.
And some authority in relation to it. How does that model differ from the traditional model in which an accused person would be told right at the start of an interview, what it is they’re going to be interviewed about?---Um it’s a technique where we, where we try and make an atmosphere or a, an atmosphere that’s most conducive to a person or a suspect speaking to us in relation to a matter. So to be confront [sic.] with ah, perhaps talking about engaging and explaining were they suspect prior to and then pulling out a blue card and saying, right we’ll start the interview now and then using ah, exact words that are used in every interview is not advocated anymore.
So the essence of the model is, you want to make a suspect fell as comfortable as possible, so they’re more likely to co-operate?---Yes.
That would start with right from your dealings with the suspect, right from the get go?---Yes.
Not just when you’re in the interview room?---Yes.
Hence going out to have a cigarette with the suspect, or allowing the suspect to have a cigarette while under arrest?---Yes.
There not being any other member of police present while that took place?---Ah no, that’s probably not correct. It would be – you’re correct that the interview would be done one on one, in order to establish [rapport] between the interviewer and the interviewee, but going out to the sallyport or any of that stuff is just – they’re [sic.] only two of us if you like, two from homicide and I was dealing with the interview.
As part of this model, where you’re trying to have Mr Willis feel more comfortable in other words and have him co-operate or create circumstances in which he’s more likely to be co-operative, did you have a conversation with him before the interview started about what it was going to be about?---Sorry, can you just rephrase that, you lost me.
Yes. As part of this model of trying to have Mr Willis feel more comfortable and with a view to creating circumstances more conducive to him being co-operative, did you have a conversation with him about what was going to take place in the interview, prior to the interview commencing?---What was going to take place in the interview?
Yes, what it was going to be about?---Ah yes he knew what it was being about – going to be about, yes.
When you say he knew what it was going to be about, did you say words to him along the lines of – or is this the way the technique works, look we just want to have a conversation?---Oh yeah. Ah, I can’t recall using the word conversation to him, in any way. He was told that he was going to be interviewed. That we’d go into a room shortly. Ah and I’d conduct the interview with him. I mean he knew he was going to be, going to be interviewed on tape, yes.

I cannot accept that it was reasonably open to conclude that Detective Trewavas’ failure to make a record of having given the caution resides in the benign explanation that he simply overlooked the need to make a record of having done so. So far as that conclusion is concerned, I find nothing particularly compelling — indeed, nothing at all compelling — in Detective Trewavas’ apparent willingness to concede that he had failed to record the giving of the caution. He could hardly do anything else. The taped interview (and to a lesser extent his written notes) eloquently and unmistakably demonstrated his failing.

Another telling aspect, in my view, is the apparent failure of Detective Trewavas to utter the caution purportedly given in the presence of any other officer. It might have been expected that, even approaching the interview in a ‘lax’ way, Detective Trewavas would have ensured that the caution was given in the presence of another officer so as to provide corroboration for the fact that such an important preliminary was attended to. There was, after all, no shortage of officers capable of fulfilling a corroborating role.

Further, no support for the caution having been given can be garnered, in my view, from the notion that the caution would have been a natural concomitant of informing the applicant that he was under arrest. As I have endeavoured to point out, not only would the need to caution be — as the majority have said — ‘almost ingrained into Detective Sergeant Trewavas’s thought processes’, but so too would be the need to make an adequate record, whether tape-recorded or written.

The other members of the Court have also remarked that ‘there would seem to be no particular reason why Detective Sergeant Trewavas would deliberately have not informed the applicant of his right to silence’. With respect, one may readily assign reasons without resort to much ingenuity. The whole manner of conducting the interview was designed to disguise the fact that it was a formal interview designed to gather evidence implicating the applicant in the commission of the murder of Mr Ganly. To give a formal caution was to run the risk of alerting the applicant as to the seriousness of his situation. Thus, the prologue employed in the record of interview is to be deplored.[107] It was misleading and wrong for Detective Trewavas to tell the applicant that ‘we’re about to have a conversation with Jesse Willis in relation to the death of Ricky Lee Ganly’, and that ‘ultimately we’re here having a conversation’.[108] What was about to occur was not a ‘conversation’.[109] It was supposed to be a process by which the police informed the applicant ‘of the circumstances’ of Mr Ganly’s murder,[110] followed by questioning ‘in which the person [the applicant] participates in order to determine the involvement (if any) of the person in that offence’.[111]
[107]See above, [51].
[108]It was also misleading to tell the applicant that the Homicide Squad detectives were at Maryborough police station as a ‘result’ of ‘receiving a phone call from the local police and we’re here as a result of that’. In fact, it was the Homicide Squad detectives who had directed local police to go and arrest the applicant.
[109]As long ago as 1913, Cullen CJ said in R v Currie (1913) 29 WN (NSW) 201, 201:
There is no doubt that the course of proceedings in this country has not been quite consistent with the pronouncements by English judges, but I am perfectly clear about this, that where it is not a mere conversation which, although the man may be under suspicion, is directed towards the ascertainment of facts, and giving him an opportunity of helping the police to clear himself, or possibly find out the guilty person, but where the police have information on which they were justified in arresting, and have decided to arrest, it is very wrong, without a caution, to put questions to a suspected person, and then give them in evidence against him at the trial.
[110]Crimes Act 1958, s 464A(2)(a).
[111]Crimes Act 1958, s 464A(2)(b).

The trial judge thought that the fact that the giving of the caution was not noted by Detective Trewavas in his notebook ‘is not surprising given the very limited notes made overall concerning the conversation prior to the record of interview’. His Honour likewise thought that ‘the fact that it was not recorded is explained by the informal location in which the conversation deposed to took place’. With great respect, the logic of those statements escapes me. As the notes themselves demonstrate, notwithstanding the ‘informal location’ Detective Trewavas took time to record various things, including the apparently verbatim statement and question — “If I tell u what I know I won’t be going home”, and “Can u guarantee I will go home tonight?” — and later followed up by noting (among other things) the fact that the applicant’s DNA and fingerprints were taken; that a search warrant was organised and executed; the commencement time of the interview; and that Aboriginal Legal Aid was contacted. Yet despite these reasonably detailed shorthand notes, nowhere does Detective Trewavas record — even in the most cursory fashion — that the applicant had been cautioned of his right to silence. Having made a note of so many other aspects of relevant events, it is, with respect, nothing short of incredible that Detective Trewavas made no note — even of the briefest kind — of having given the caution.

Nor do I find, as the trial judge did, the fact that the applicant ‘volunteers his capacity to make a “no comment” answer’ as tending ‘to confirm that he had been advised of his right to silence and knew how to exercise it’, in circumstances where the applicant previously has been arrested. His previous arrests render it very likely that the applicant previously had been cautioned. Thus, the applicant’s volunteering of his right to make no comment does not support the judge’s finding that the caution was administered. Moreover, even if the applicant did know of his right to make no comment, that does not necessarily impinge upon the inadmissibility of the record of interview in the absence of a caution. In that regard, although I note that in Azar,[112] having cited Stapleton,[113] Gleeson CJ said that there are ‘numerous statements in the law reports to the effect that a confessional statement to a police officer is not inadmissible merely because no caution has been administered’, and it ‘is hardly likely that those statements were intended to apply only in the case of an accused person who knows of his right to silence even without a caution’,[114] those observations must now, of course, be read in the light of s 139(1) of the Evidence Act 2008. The statutory regime requires a caution to be given, no matter the familiarity that a given suspect might have with the process. A major aspect of the caution’s importance is that it brings home to a suspect that he or she is about to be questioned to determine his or her involvement in an offence, and gives the suspect pause to consider whether to exercise the right to silence.
[112]R v Azar (1991) 56 A Crim R 414 (‘Azar’).
[113]Stapleton v The Queen (1952) 86 CLR 358, 375 (Dixon CJ, Webb and Kitto JJ).
[114]Azar, 420.

None of the six matters discussed above that the trial judge relied upon as supporting the finding that the caution was given could properly do so. That is sufficient to vitiate his Honour’s findings. In my view, the trial judge’s finding that the applicant ‘was cautioned with respect to his right to silence before the commencement of the formal record of interview’ simply was not open. That is enough to dispose of this application. Accordingly, as I have said, I would grant leave to appeal and allow the appeal. I would order a retrial.

Given the attention given to s 464A(2)(a) of the Crimes Act 1958 in supplementary submissions, however, I desire to make the following further brief observations.

At the risk of repeating myself, in my view there are real dangers in the police employing the new interviewing model, which, as I have mentioned, Detective Trewavas described as a ‘lax conversation type technique’. Detective Trewavas told the applicant they were going to have a ‘conversation’; whereas, in truth, the applicant was being questioned as a suspect ‘in order to determine the involvement (if any)’ of the applicant in the offence about which he was being questioned. The dangers of infringing basic rights by resort to such techniques needs to be emphasised.

In examining s 464A(2)(a), and its application to the present case, I am, I think, constrained to follow Lancaster.[115] Notwithstanding that this is so, there is one aspect of the decision in that case that I do not hasten to embrace, and which, with respect, I regard as dubious. It is found in the following passage:[116]

The expression ‘the circumstances of that offence’, in my view, means the central factual feature or features, expressed in general and abbreviated terms, of the offence for which the person is in custody. What is required is sufficient information to enable the person both to understand what he is to be asked about or the investigations he is to participate in, and also to make an informed decision concerning the rights which the subdivision confers on him or preserves for him, such as the right of silence and the right to communicate with a friend, relative or lawyer. The amount and content of the information required will vary from case to case, but the expression does not require a statement of all the facts of the offending or all those then known to the official. Much less does it require a statement of the elements of the offence or its name, either of which might mean little to many persons taken into custody.

[115]R v Lancaster (1998) 4 VR 550.

[116]Ibid 557 (Batt JA).

But in any event — and accepting the above statement to be correct — I do not accept that, ‘we’re about to have a conversation with Jesse Willis in relation to the death of Ricky Lee Ganly which occurred on the 28^thgoing into the morning of the 29^th of April 2013’, is in conformity with the requirements of s 464A(2) as explained in Lancaster.

Could it properly have been found, however, that the caution was administered — a matter on which I differ from the majority — then any breach of s 464A(2)(a) in this case would not of itself have led to the exclusion of the record of interview and Second Statement.

As I have observed, in their original form, the suite of provisions with which we have been concerned arose out of a report by the Coldrey Committee concerning police powers. Compulsory tape-recording was designed to ensure that the interrogation of suspects was conducted fairly by police, and to ensure that criminal courts did not have resolve the kind of issue that the trial judge had to deal with in this case. This case has reminded me of George Santayana’s well-known aphorism: ‘Those who cannot remember the past are condemned to repeat it’.[117]
[117]George Santayana, The Life of Reason, Vol 1; Ch XII, ‘Flux and Constancy in Human Nature’.

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[2016] VSCA 176

28 July 2016