R v Sorensen[2009] QDC 415

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  Good afternoon.

MR SPINAZE:  Good afternoon, your Honour.  I do apologise for my tardiness.

HIS HONOUR:  On behalf of the Courts, Mr Spinaze, I should say that it just seems to have been some unique feature associated with the locking device to this room, and I apologise that that happened.

MR SPINAZE:  The Crown is not actually concerned, your Honour.

HIS HONOUR:  Thank you.  I'll note that for the record.  I'll just indicate in advance it might take me some time to deliver this decision.  This is an application by Mr Read on behalf of the defendant, Paul Edward Sorensen, to exclude from evidence five electronic records of interview which the prosecution seeks to tender in support of its case at trial.

The relevant records of interview sought to be excluded were each conducted with the defendant by plain clothes constables Gough and Orman at the Upper Mt Gravatt Police Station between 12.27 a.m. and 4.17 a.m. on the 30th of June 2007.  The interviews were between the following times:  12.27 a.m. and 1.07 a.m.; and then after a seven-minute break, between 1.14 a.m. and 1.56 a.m.; after a further eight-minute break, between 2.04 a.m. and 12.19 a.m.; after a 44 minute break, between 3.03 a.m. and 3.05 a.m.; and after a further 55 minute break, between 4 a.m. and 4.17 a.m.

This is subject to the breaks interviews which were conducted over a period of three hours and 50 minutes or close to four hours.

The basis of the application is that the fifth interview be excluded on the basis that it was involuntary with reference to section 10 of the Criminal Law Amendment Act 1894 and that, in the alternative, it be excluded in the exercise of the fairness discretion or on public policy grounds.

Further, it is argued that the first four interviews be excluded in the exercise of each of those discretions.  In other words, the primary issue in relation to the fifth interview is whether the prosecution has shown, on the balance of probabilities, that it was made in the exercise of a free choice to speak or to remain silent.  I refer in support of this proposition to Clelland v The Queen [1982] 151 CLR 1 at 5 and Tofilau v The Queen [2007] 231 CLR 396 at [98].

In relation to each interview, the issue of discretionary exclusion arises under section 130 of the Evidence Act of Queensland with reference to the Police Powers and Responsibilities Act and the Police Responsibilities Code.  It is for the defendant to satisfy me that I should exercise the discretion to exclude the evidence in the exercise of my discretion.

The alternative bases for the exercise of this discretion are that it would be unfair to use the defendant's statements against him because this may jeopardise his right to a fair trial.  This is the fairness discretion.  I refer to R v Swaffield [1998] 192 CLR 159 at page 189 paragraph [53] quoting Van Der Meer v The Queen [1988] 62 ALJR 656 at 662.

The other basis for the exercise of the discretion is that statements, if unlawfully obtained, should be excluded on public policy grounds.  I refer to Bunning v Cross [1978] 52 ALJR 561 and R v Ireland [1970] 126 CLR 321.

It has not been argued by Mr Read on behalf of the defendant that I should consider a further alternative basis for exclusion, namely, the discretion to exclude evidence on the ground that its prejudicial impact is greater than its probative value.

The argument to exclude the evidence of interview five on the basis that it was involuntary is based on the defendant's evidence that he was threatened by Plain Clothes Constable Orman in particular between that interview and the previous interview.

Mr Spinaze, while submitting that I would be satisfied that this did not occur, concedes fairly that if I accept that it did or the prosecution cannot exclude on the balance of probabilities that it did not, then the onus will not have been discharged.  On this basis I would exclude the confession.

The arguments in favour of the exercise of the fairness and public policy discretions to exclude the interviews arise, first, from an accepted failure by the police officers to comply with section 33(2) of the responsibilities code which requires the police who ask a suspect to attend for questioning to say, "Do you understand that you are not under arrest and you do not have to come with me?"

In the circumstances, it is also argued that the caution given at the commencement of the first interview is insufficient.  It is further argued that there was a failure to caution the defendant as required by sections 37(1) and (4) of the responsibilities code in respect of interviews two to four.  With reference to interview five, it is submitted that the partial warning that was given at the commencement of the interview by Plain Clothes Constable Orman was insufficient.  Reference is also made to section 34 of the responsibilities code as to the right of a suspect to communicate with a friend, relative or lawyer due to its absence from interviews two to four and the partial reference only to it in interview five.

The Prosecutor also argues that none of this evidence should be excluded on this basis.  The defendant has been indicted in respect of one charge of extortion, that on the 29th day of June 2000 at Eight Mile Plains in the State of Queensland, he, with intent to extort a sum of money from Mark Michael Miller, orally demanded without reasonable or probable cause, that the said sum of money be paid to him by the said Mark Michael Miller and with threats of injury to be caused to the said Mark Michael Miller if the demand was not complied with.

In summary, the prosecution alleges, in accordance with the statement of the complainant, Mr Miller, as put to the defendant in the second record of interview, at pages 22-23 of the transcript and I quote, "I arrived home and my son was getting ready to go to bed about 9.15.  There was a knock at the front door.  I opened the door, saw a male person, and two further males standing in the vicinity.  I asked, 'Can I help you?'  The tall male said, 'We're here to collect a debt.'"  Mr Miller has then said, "What debt?" and the male said, "I think you know."

Mr Miller said, "Are you from DMC Plastering?" and the other bloke didn't answer, so Mr Miller said, "Are you from the builder?" and the tall man replied something similar to, "We're here to collect the money owed."  "What money?"  "$50.000."

Mr Miller said, "I don't owe Paul money." And the other man said, "I - that's not our worry.  We're here to do our job."  He then opened his right hand and saw a bronze coloured bullet sitting in the palm of his hand, approximately 20 millimetres long.  The man said, "This is intended for you."

The man then said, "We're here to collect $70,000, $50,000 for our client and $20,000 collector's fee."  Mr Miller said he was quite upset at that point and said, "I'd rather pay you the money than Paul."

The other man then said, "That's not how it works."  "Show me your credentials?  Do you have a gun?"  He then said, "Yes." and he's pulled up the front of his jumper and he saw he had a silver pistol tucked into his jeans. 

He felt very threatened and worried for his family's welfare.  They were all inside the house.  He said, "I have a house there.  I've engaged this builder to build and renovate my home.  I've now got the plastering to be fixed, the tiling to be redone, the rendering to be fixed and now I need half a new roof and you're telling me I owe him money."

The man said something like, "You've only paid him a 100 and something thousand.  The contract was for 390,000 plus variations, so probably takes it up to about 460,000 and I've paid him 410,000.  The balance is for work that hasn't been finished.  It's probably going to cost another 60,000 to fix all the defects."

The man's then said, "So, what do you think you owe him?"  "I don't owe him anything."  "Well, I can't go back with that answer.  I'm the person who makes the decision as to what we sort out with regards to our final figure."  So, Mr Miller's said, "You’re a bit experienced at this.  Maybe you can give me some feedback."

The man's then said, "We can't go back with nothing."  Mr Miller then said, "What do you suggest?"  The man said, "40,000, 20,000 collector's fee and 20,000 for our client."  Mr Miller said, "Sounds fair."

I have made some amendments to the quotation from Detective Gough as appearing in the transcript of the interview based on what I heard when the tape was played during the proceedings.

Mr Spinaze submits that the importance of this statement is that while these persons are not alleged to say that they were from the defendant builder, they did not disabuse Mr Miller of this belief.

Mr Sorenson's response was that he knew nothing about this.  This is consistent with the approach that he took through each of the first four interviews which, on one view, are self serving and in his own interest.

However, Mr Spinaze contends that their relevance is that they provide evidence of the nature of the relationship between the defendant and Mr Miller and establish his motive for committing the alleged offence by engaging the persons who attended on Mr Miller.

It provides evidence of a falling out with Mr Miller over a building contract as a result of which it was alleged that Mr Miller owed the defendant $50,000 which was subject to a counterclaim and that the defendant had to borrow money off friends to pay subcontractors.

The amount of money owed is the same amount of money alleged to be the subject of the demand to Mr Miller.  The fourth interview could also be evidence of a false denial as the defendant denied knowledge of Troy Tolley, who I take to be one of the persons who was allegedly involved in making the demand.

Mr Spinaze submits that the fifth interview is admissible as evidence that the defendant committed the offence as a procurer.  That interview involves a material change in his earlier position as stated to the police.

In that interview, he admitted that he had heard that Mr Miller was going to take him to the cleaners.  As a result, he sought help and received a phone call from a person called Brad from whom he asked for assistance in recovering $50,000.  He said that Brad indicated that his fee for recovering this money was 6 or $7,000.

He said that he had been pushed to breaking point and he was trying to protect his family.  In his evidence he said that what he meant is that he was seeking to protect his family from Mr Miller.

He also said that he spoke to another contractor whom he told he was getting shafted and needed help.  He said that he thought that this contractor may have known someone who could come and basically intimidate Miller but he said there was never any intention of any violence or extreme violence.

He said it was after this that he was called by Brad and he asked Brad for assistance in recovering the $50,000.  He said Brad told him that it was pretty straightforward and there was no discussion regarding what kind of threats would be made.  To the best of Mr Sorensen's knowledge, it was just going to be, as he put it, a knock on the door and pay money.

He said he spoke to Brad again and said the total amount of money involved in the recovery was going to be $60,000 but he again said he did not ever discuss with Brad the method of retrieving the money and reiterated that his expectation was for him to knock on the door and speak to Mr Miller.

This is highly relevant evidence which, if admitted, could be the basis for an argument by the prosecution establishing a link between the defendant and the persons who are alleged to have demanded money from Mr Miller in circumstances where it could be argued that it was a probable consequence that there would be threats of violence to achieve this, even if that was not agreed as part of the initial plan.

Mr Spinaze also fairly advised me that, apart from the information in these interviews, there was other cogent evidence against the defendant.  He told me that two of the other alleged co-offenders are to give evidence for the prosecution.  These are Bradley Ziebell who is, effectively, the middleman and a person called Winslett whom, I understand, is said to have arranged with two other persons to go to Mr Miller's house.

There are also phone records which are said to link phones of the defendant with the phone of Ziebell on at least 12 occasions.  There is, of course, also Mr Miller's evidence which I have summarised.

The events which are relevant to the determination of the issues which arise for my consideration, in fact, commenced at 10.40 p.m. on the 29th of June 2007 when a search warrant was executed on the defendant's residence where he was at home with his wife, a daughter and his daughter's female friend.  Therefore, Mr Sorensen's contact with the police cover a period of five hours and 37 minutes until the end of the fifth interview.

Plainclothes Constable Gough was the executing officer for the search warrant.  Plainclothes Constable Orman was one of the persons who accompanied him to the house with five other police officers.  The search warrant was executed on the defendant by showing him the original and giving him a copy, as well as the Notice to Occupier as to his rights and obligations.  Plainclothes Constable Gough said that the defendant appeared to peruse the warrant.  The tape records that the defendant asked for his glasses.  Although I believe the final position was that the police did not prevent him from obtaining his glasses, I proceed on the basis that he never, in fact, located them.

Mr Sorensen agrees that he was given a copy of the warrant and it was left in his possession.  He also agrees that he perused it but says that without his glasses it was a blur, other than bolded words about the details of evidence that may be seized under the warrant, namely, a mobile phone, silver pistol and bronze bullet.

However, for reasons I will give, I do not consider him a credible witness on other relevant matters and I do not accept that he was unable to read the other bolded words which were in the search warrant which set out, amongst other things, the offence to which the warrant related.  This was in bold type, just as was the details of evidence that may be seized under the warrant.

Therefore, I consider that he knew that the investigation related to, and I quote, "that on the 28th of June 2007, you, without probable cause and with intent to extort any property from one, Mark Michael Miller, orally demanded property, namely, money, such demand with threats of injury to be caused to Mark Michael Miller if the said demand was not complied with.  It can be seen that there is a reference to extortion.  Whether or not this was framed in accordance with offences that are known to law, it clearly indicates the nature of the allegation.

Mr Sorensen also says that he did not know that the police were investigating him in relation to these allegations.  He did not consider that he was a suspect or the focus of the allegations but rather that he was assisting police.  He said that this caused him confusion in relation to the meanings of the cautions which were administered during the search of the house and at the beginning of the first interview.  The defendant says that he did not appreciate that he was a suspect until he was read Mr Miller's statement during the second interview.

I have come to a view detrimental to the defendant's credibility on this issue, having regard to the field tape which was operating with various degrees of reliability during the interview.  With regard to the transcript which I consider accurate for this purpose, the first statements made by the police were that they were investigating an attempted extortion matter.

Even before this, the defendant said in evidence that he was told about this on the verandah outside his house.  It would seem that this was before the tape and the transcript commenced. 

This statement is made twice on page 2 of the transcript by Detective Geary.  And at the top of page 3 by plain clothes Constable Gough, who became the principal investigating officer, although he was not aware of it at that time.

I also am satisfied that he was aware that the investigation was into allegations against him, because Gough said to him at the middle of page 5 of the transcript, "As part of this investigation I've got a couple of rights and warnings to give you.  Okay, this goes for all of you, but obviously for you, Paul."  I should say that at that time, Mr Sorensen and the other occupants of the house had all congregated in the lounge room area. 

Clearly the reference to rights and warnings going to all of you, was a reference to all of those people.  But Mr Sorensen is specifically singled out.  A full warning was then given, as required under section 37(1) of the Responsibilities Code.  I also consider that this was followed with a substantial compliance with section 34 of the Responsibilities Code in relation to explaining the right to communicate with a friend, relative or lawyer.  It has not been argued otherwise.

Gough then said, "Those warnings will be explained to you again in due course as we see need to.  Okay.  All right.  Do you want to just take the girls, the ladies, and girls and I will have a quick yarn with Paul, unless he wants everybody to be here.  Mr Sorensen, would you like us to outline this to you with the rest of your family and friends here?  Or would you like girls to go?"  The defendant, Paul Sorensen, replied, "No, the girls not involved." 

In my view, he clearly knew at this stage that the interview in relation to the extortion or attempted extortion, which had been referred to in the communications with him, and in the search warrant, was directed at him.

To emphasis this, Gough then continued at the top of page 6, "Mr Sorensen, this is in relation to an extortion complaint that we have had.  Okay?"  The defendant replied, "Yes."  Gough then went on to say, "Made to us by a Mark Miller.  We obviously need to ask you some questions in relation to that.  Do you understand?"  The defendant replied, "Yes." 

In these circumstances, he was obviously the person who they wished to ask questioned about this allegation.  Gough also went on to say, "What we would like to do, obviously, is to ask you those questions at one of the local police stations - probably Capalaba.  It is the closest, I dare say, but seeing we're not from Capalaba, it depends if we can get in there or not.  You understand that?"  The defendant replied, "Would you like to do that now?"  And Gough replied, "We will be doing that this evening, okay?"  The defendant responded, "Yep."

Therefore, he was also obviously aware that he was the person that they wanted to go with them to a police station to speak about these matters late in the evening. 

The defendant's evidence was that he knew that the police wanted to talk to him about an unlawful demand of money being made by Mr Miller.  There is not a question asked of him in terms that would suggest that he was merely being asked to assist in the investigation.  However, there was another requirement under section 33(2) of the Responsibilities Code, which has not been complied with at all, let along substantially complied with, which as I have previously said, is in these terms, "Do you understand that you are not under arrest and you do not have to come with me?"

As a result, the defendant said in his evidence-in-chief on voir dire at page 4 to 6 commencing at line 20: Question, "And were you ever told by Gough or Orman you didn't have to go with them?"  Answer, "No, I was not."  Question, "Are you in a position to say what your reaction would have been if you were told that, or?"  Answer, "I would not have gone."  Question, "Why is that?", answer, "Well, I would have taken the matter a lot more seriously and I would have rung a solicitor."

On the same page commencing after line 40 he responded to a question from me: Question, "At the stage you'd said you'd leave with the police did you believe you had any choice in the matter?", answer, "No, I didn't have any choice."  This gives rise to the issue of what effect this failure has on the admissibility of all subsequent interviews.  Although Mr Sorensen agrees on the tape that he was happy to accompany the police to the Capalaba Police Station and he gave evidence that he was prepared to cooperate with them, this must be seen in light of the whole tenor of the communications which emerge from the tapes. 

I add that having listened closely to the field tape although there is some issue about whether Gough said as set out at page 11 of the transcript, "Are you happy to accompany us to Capalaba?", I am satisfied that that, in fact, is what was said.  However, I consider that the tenor of the communications which surrounded that response by Mr Sorensen that he was happy to accompany them is consistent with his being left with a belief that he had no choice but to accompany the police to the station together with a box of documents which were not the subject of a search warrant.  I refer to the following passages of the transcript of the field tape: firstly, at page 6, as I have already said, Gough said to him, "We obviously intend to ask you some questions in relation to that; do you understand?  What we would like to do, obviously, is to ask you those questions at one of the local police stations, probably Capalaba, it is the closest, I dare say, but seeing we're not from Capalaba it depends if we can get in there or not."  And he also said in response to Sorensen's question, "Would you like to do that now?"  "We will be doing that this evening.  Okay."

The defendant said that he asked the question: "Would you like to do that now?", because he wanted to confirm whether that was going to be done that night or the next day.  On page 7 of the transcript the following exchange occurred: Gough, "Obviously, that sort of forms the basis as far as I understand of where this has come from.  Okay.  But we need to talk to you in depth about that.  Um, what paperwork do you have here in the house in relation to the contract and your terms with your solicitors and those sorts of things with Mr Miller?  You said it is now in the hands of solicitors.  You obviously have some paperwork for that?"  Sorensen, "Yeah."  Gough, "Where would that be?"  Sorensen, "Office."  Gough, "Can you come and show us that, please?" 

I consider that those words were used in a context where he was likely to conclude that he had no choice but to go with them and show them the paperwork.  On page 9 Gough said to him in relation to the paperwork, that I understand was in the defendant's office, "They are in your diary do you have anything else?  Obviously what we're trying to get at here is that we take everything away with us now that is going to, sort of, support your side of things, rather than you tell us: Oh, no that's back in the office; or: That's back at home; so, do you have any other file or any other paperwork?"  In my view the tenor of that statement to the defendant does not give him any choice in the matter. 

Subsequently on page 10 Gough said, "Well, what we might do is you just put those things back in the box and we will bring the whole box with us." 

Again, I do not consider that that gave the defendant any alternative but to put the things back in the box and bring them with him to the police station.

Consistently with the reference to the box of documents that I have referred to, the defendant said in evidence that the police asked to look for documents.  He cooperated as best he could with them and he just showed them whatever they wanted.He was uncertain of his standing as to whether he had to cooperate with them and he showed them the box of documents and they took possession of it.

In these circumstances, in the absence of the police complying with the requirement to tell him that he was not under arrest and in particular, that he did not come with them, I consider that he accompanied them to the police station, as he said, without believing that he had any choice in the matter.  This finding will be relevant to the exercise of the discretions which arise in this case. 

At the beginning of the first interview, commencing at 12.27 a.m., I consider that the police complied with section 37(1) of the Responsibilities' Code, by giving the relevant caution.

Section 431(1) of the Police Powers and Responsibilities Act states, "A police officer must, before a relevant person is questioned, caution the person in a way required under the Responsibilities' Code."  The circumstances in which this section does not apply do not exist in the present case. 

The caution given was in the words of section 37(1).  Mr Reid submits that to cure the defect or the failure to comply with section 33 of the Responsibilities Code, it was necessary to make it clear to the defendant that he was a suspect and he should have been advised that he was not obliged to accompany them to the police station, even at that stage.

As I have concluded, I am satisfied that the defendant knew that he was a suspect and therefore the police were not obliged to say this expressly.  In fact, the terms of the wording of the warning which includes the purpose of the warning, that if you do say something or make a statement, it may later be used in evidence, would make it clear to him that he was being questioned as a suspect.

It is disingenuous to suggest otherwise.  Accordingly, I do not accept his explanation that there was some confusion in his mind about the right to silence and assisting the police because he believed that he was helping them as a witness.

I do not consider that, at this stage, the police were obliged to tell him that he had not been obliged to accompany them to the police station.  However, the fact that they had not previously done so, remains relevant to the determination of the question as to whether, as a result, the interviews that followed should be excluded in the exercise of my discretion.

For completeness, I mention that section 34 of the Responsibilities' Code about his right to communicate with a relative, friend or lawyer, was also complied with.

I consider that interviews 1 to 4 were all parts of the same interview.  Despite Mr Spinaze's submissions, I consider that interview 5 was a separate interview.  I've come to this conclusion in relation to interviews 1 to 4 because there is only a seven minute gap between interview 1 and interview 2 and an 8 minute gap between interview 2 and interview 3.

In each of those gaps, there was no discussion and the purpose of the gaps was simply to change the tapes.  In particular, there was no discussion about the subject matter of the investigation.

Although the transcribers have adopted the word "suspension" I do not regard the interview as being suspended at those stages.  The only reference made by the police officers in interviews 1 and 2 was to changing the tapes.

This is to be contrasted to interview 3 where Gough says, "This interview is suspended."  In these circumstances, I do not consider there was any requirement for a fresh warning at the commencement of interview 2 or interview 3.

However, an issue arises in relation to interview 4 which took place after a 44 minute gap, after, as I have said, it was expressly stated that the interview was suspended, as to whether such a caution is required in a full or an abridged form, or a variation of warning, as Ormond described it.  This is because of section 37(4) of the Responsibilities' Code which provides, "If questioning is suspended or delayed, the police officer must ensure the relevant person is aware he or she still has the right to remain silent and if necessary, again caution the person when questioning resumes."  This is an issue to which I will return.

However, I consider that interview five is a separate and distinct interview.  This is clear from the fourth record of interview itself where it appears from page 41 that the following conversation occurred, commencing at about line 17:

"Gough:  All right.  You've indicated you don't actually wish to take part in this interview any further.  Is that correct?  You didn't have anything further you wish to add?  Sorenson:  I've had enough.  I've got nothing further to add.  Gough:  All right.  In that case, do you have anything you wish to ask?  Orman:  No.  Gough:  It's, um, now been 3 o'clock in the morning.  Orman:  3.05.  Gough:  I don't see the need at this stage to continue going around and asking the same questions that we had done in the previous tapes, so I am going to terminate the interview, okay?  The time is now 3.05 a.m."

Again, I have quoted that section of the transcript on the basis of what I have heard as well as what appears in the transcript itself.  In these circumstances, it was not the recommencement of an interview as stated by Gough at the commencement of interview five.  It is particularly relevant that detective Gough referred to the termination of the interview at the end of the fourth interview.  I do not consider it relevant that the transcriber has seen fit to use the word "suspended" in typing the transcript.

This is also confirmed by the actions of the police after interview four and the evidence of plain clothes Constable Orman.  Gough said that after the fourth interview was complete, he probably put the strips into the tapes to prevent them being recorded over and there were no new tapes which had been inserted in the deck ready to go before interview five.  New tapes had to be obtained and inserted.

In fact, Gough said he had to confirm with the defendant that he wished to speak to them again so that he could be sure that it was necessary to get further tapes and set up the recording system.  The absence of a tape in the tape deck at the commencement of the interview distinguished the fifth interview from the previous interviews.  As I have said, tapes were changed between interviews two and three with only short intervals between those interviews, and one tape was used for interviews three and four.

Orman consistently said that Gough had finished with the interview at the end of interview four, he said that Gough marked the tapes and left the room.  This was despite the fact that the final tape which had been used for interviews three and four still had 17 minutes left to run.  Also, at the end of this interview, Gough had at least told the defendant that he would be charged.  In fact, plain clothes Senior Constable Orman goes further and says consistently with what Gough said at the committal when matters were fresh in his mind that the defendant was told at this stage that he was under arrest, and that he was going to be charged.

According to Orman, Gough said that they would not be going around in circles; that they would stop the interview, and the defendant was under arrest and going to be charged.  The reference to going around in circles and stopping the interview is consistent with the language used at page 41 of the transcript, which is the end of interview four.  I find that despite the equivocation of Gough about whether the defendant was arrested that he was both arrested at this stage and told that he would be charged - although he was not told what he was being arrested for, and it was never entered into the custody index.

I reject the defendant's evidence that he was not arrested and charged at this stage.  The reasons for this will become apparent when I address other aspects of the evidence.

After this either or both Orman and Gough started to look for a holding cell preparatory to Mr Sorensen being transported to the Brisbane Watchhouse in about 30 minutes.  This was discussed in circumstances where it is reasonable to conclude that the defendant was in a position to hear what was being said.  Plain clothes Constable Orman unequivocally said that the final interview was a separate interview.  He said that at this stage as far as he was concerned the interview was finished and, in fact, Gough came back to the room and said, "Let's go."  And Orman then said that the defendant wanted to say, "What had happened" and therefore a separate interview was commenced.  This is also confirmed by the fact that as plain clothes Constable Orman said out of fairness he decided to give the defendant what he described as a variation of the warning at this stage. 

I do not consider that he was doing this under section 37(4) of the Responsibility Code because his evidence was to the contrary.  He said in re-examination that he was not even aware of that section and he gave him the variation because he wanted to be fair to him and to make sure that if he was going to make admissions in any offences they were going to be used against him and he had a right not to answer questions.

Although he failed to in fact warn him in terms that the answers were going to be used against him except to the extent that this was implicit in telling him that he still had the same rights that he had before. 

I do not consider that sections 403 and 404 of the Police Powers and Responsibilities Act apply by analogy to support Mr Spinaze's proposition that interview 5 was part of the continuous interview which started with interview 1 so that, as he argued, the variation of warning was enough in those circumstances. 

Both of those sections are based on a police officer detaining a person for a reasonable period of time for the purposes of an investigation.  This is not what either officer did in the present case.  At no time did they detain the defendant for this purpose.  I consider that I should determine whether this was a continuous interview or a new interview on the basis of what actually happened and what the police conducting the interview thought. 

In my view Orman was proceeding on the basis that this was a fresh interview, and as such a warning was required under section 37(1) of the Responsibilities Code and not a variation of a warning as he chose to give; and although Gough said that it was his understanding that it was a continuation of one interview from start to finish I consider that it is plain clothes Constable Orman's view which is consistent with the facts and it was he who saw the need to give at least an abridged form of warning. 

Before I address the failure to give such a warning in relation to the exercise of my discretion as to whether to exclude that evidence I turn to the question which I must address first which relates to the voluntariness of the fifth record of interview.

It is not necessary to set out the factual basis for this argument in detail because as I have stated Mr Spinaze concedes that if I cannot exclude on the balance of probabilities Mr Sorensen's version as to the conduct of the police and particularly the conduct of Orman on the balance of probabilities the Crown will not have discharged the onus on this issue and on this basis I would exclude the confession.However, I will say something about these allegations which are also directed at Gough. 

The defendant said that after the fourth interview both officers left the room.  Gough returned and said he was looking at multiple charges, firearms, extortion and there is more to come.  Essentially Gough is alleged to have popped in and out of the interview room making comments which add to the pressure which is alleged to have been applied by Orman who, on the defendant's version, remained in the room with him and is alleged to have been the main perpetrator of the conduct relied upon. 

Another of Gough's interventions allegedly involved him saying, "It is clear to us that you do not know these guys however you are not out of the woods yet you will need to help yourself before we help you.  We want to know how you organised this or what you've done that could have triggered this."  The principal threat is then made to him allegedly by Orman with reference to his wife and family. 

It is alleged that he said that as soon as he asked for a solicitor the process is going to take a long time and while he waited Orman would pick up his wife, computers and telephones and Orman would personally drag his wife in to see what she knew. 

Orman is also alleged to have said that he would make life difficult for his family and would turn his house upside down.

He is also alleged to have said, and I quote, "I used to be an electrician.  I know how it all works.  You got your subbies to go around there and do your dirty work for you."  When the defendant denied this, Orman is alleged to have said, quote, "What we want to know is how you organised this, when you met them and what you told them."  The defendant again says he responded negatively.

He alleges that at this stage Gough entered the room and said that he was about to do up a charge sheet, followed by Orman somewhat contradictingly saying that a good lawyer could get him off.  By now, the defendant said, he was stunned at what he found to be chilling comments by Orman and that he was concerned for his family.  At this time he said the recollection of three previous threats came back to him, all of which were indirectly connected with Mr Miller.

He said that  he had threats made to him by contractors, with no assistance from the police and threats directed at him by a solicitor on behalf of Mr Miller and now he was having threats made by a police officer towards his family.  He said that he was quite anxious and uncertain how to get out of this situation and had two recurring visions which came back to him as a result, both of which involved trauma to, if not the death of his wife and other family members.

He said that he became distracted, was in a fairly distressed state and was struggling.

He said when they said that they were going to conduct another interview he took this as an escalation of their threats and then proceeded to start the interview.  He said that by this time his attitude was to "just go with the police, appease them and get the hell out of there and get home to his family."

I reject his evidence in relation to this and prefer the police evidence as to what occurred.  In rejecting this evidence, I have taken into account my earlier rejection of his account that he did not know that he was a suspect until the second interview.

While I am entitled to reject some of his evidence and accept other parts of it, my rejection of his earlier account is central to his version of what occurred immediately before interview five.

I also found him to be an unsatisfactory witness who had to be reminded by me on a number of occasions during cross-examination to answer the question that he was asked.  I found him too ready to avoid answering these questions in order to assert his own position.  I considered this to be a calculated device to avoid answering difficult questions.

I found his account about the visions to be implausible, in particular because he conceded in cross-examination that these were the only vivid visions that he had had.  I also found his efforts to explain the answers that he gave to the three questions at the conclusion of the fifth interview unconvincing.  These appear at page 46 of the transcript.  The first of this sequential series of questions was:  "Do you agree that we didn't offer you any threat, promise or inducement to take part in any of these interviews?"  He sought to explain this answer which was:  "That's correct," by claiming that he misheard the question which he thought was simply: "Did we offer a threat?"

He then said that his answer in the same terms to the next question, which was, "Did we offer you any threat, promise or inducement to take part in this last interview," was calculated.  It was in attempting to explain the inconsistency of this response to the answer to the first question that he suggested that he had misheard the first question.

He then said that he changed his position by backing off in the best interests of his family in answering the next question, which was, "Did we offer you any threat, promise or inducement to take part in this last interview where you've explained what happened?" and he replied, "No.  I offered it."

I consider that this was another disingenuous attempt to explain the otherwise inexplicable and the true reason for his answers was, as put by Mr Spinaze, that he was distracted.  I consider that this is clear from looking at him on the tape of the interview as he answered these questions. 

In my view, his evidence was a calculated attempt to discredit police by sticking to a story that he had tried to memorise and to stick to it by avoiding direct answers to many of the questions.

On the other hand, I found the police evidence to be credible in as much as it contained concessions often on the basis of a poor recollection of what had happened about two and a-half years previously, and inconsistencies in the recollection, including inconsistencies between the two officers themselves.

This is not a case where these inconsistencies reflect adversely on their credibility.  In my view, it arises from the fact that they were tired and had been unexpectedly thrown in as the interviewers of the defendant.

As Plainclothes Constable Gough said, they fell into it.  They were working a 4.00 p.m. to 12 midnight shift.  By the time of the fifth interview, they had been working for 12 hours.  They had been expecting only to be involved in the execution of the search warrant.  It was then necessary for them to familiarise themselves with the investigation in order to interview the defendant.  It is unfortunate that perhaps due to lack of resources that they were put in this position.  However, it was this tiredness that is likely to have caused them to fail to enter the information required in the custody index, for example.

One of the most glaring inconsistencies is as to whether and when the defendant was arrested.  Gough gave a number of different accounts about this, although I accept that his evidence at the committal that he arrested him after interview 4 was accurate because his recollection would have been better at that time.  It is also consistent with Orman's evidence in this hearing.

I consider that Orman was frank when he gave evidence about what happened when he was alone in the room with the defendant between interviews 4 and 5.  The principal example of this was when he said in his evidence-in-chief that he had conversations with the defendant that included "that my previous occupation was an electrician and I used to subcontract and work for other people and I said I've been in similar situations when people have not paid me in the past and I had to wait for extensive periods of time to get money that was owed and I said basically that there was other ways of collecting money.  There was the right way and the wrong way."

This has some similarity to the defendant's evidence that Plainclothes Constable Orman said to him, "I used to be an electrician.  I know how it all works.  You got your subbies to go round there and do your dirty work for you."

I consider that the defendant has taken some statements made by Orman and elaborated on them to his own advantage.  However, as I have said, the fact that Orman would volunteer this is a demonstration of his frankness because he must have appreciated that to disclose this does not necessarily assist the prosecution case because it is evidence of an unrecorded conversation which relates to the subject matter of the investigation, namely, the means of recovering the money owed to the defendant as a builder.

This is a situation where Mr Orman also said he built up a rapport with the defendant.  As I said to Mr Spinaze during his final address, these voluntary statements raise for my consideration the issue of whether Orman was developing this rapport to place subtle pressure on the defendant to change his account of events which, to that stage, had been a denial.  This is a factor which is at least relevant to the exercise of my discretion.

I accept that Plainclothes Constable Orman did say this but it is not of such a nature as to render the confession involuntary as opposed to raising discretionary considerations. 

Another example is the concession of each officer about their lack of knowledge of the responsibilities code in relation to matters which are fundamental to the fair exercise of their investigative responsibilities.  I have already referred to Orman's evidence, that he was not aware of section 37(4) of the Code.  Plainclothes Constable Gough gave the same answer.

In all the circumstances, I prefer the police officers' evidence and reject the defendant's evidence as to what happened between the fourth and fifth interviews and, as such, I am satisfied that the prosecution has discharged the burden of satisfying me on the balance of probabilities that the fifth interview was voluntary.

However, as I have said, this is not an end to the matter because I still have to consider whether to exclude the interview in the exercise of my discretion.  It is for the defendant, as I have said, to satisfy me that I should exercise my discretion to exclude the evidence.

In The Queen v. Pollard [1992] 176 CLR 177 at 196, Justices Brennan, Dawson and Gaudron said with reference to a confession or admission, "Even if it was voluntary, the trial Judge has a discretion to exclude it if it would be unfair to the accused to admit it.  In addition, the trial Judge has a separate discretion to exclude on the grounds of public policy evidence which has been improperly or illegally obtained." Although, as Justice Deane recognised in that case at 201, while the two discretions overlapped, they are distinct and independent."

Their Honours, Brennan, Dawson and Gaudron JJ also said at 196-197:  "In a case where it is established that a confession or admission by an accused was made voluntarily but the evidence warrants further consideration of whether it ought to be admitted, it will often be a convenient course for the trial Judge to ask first whether it would be unfair to the accused to use the confession or admission against him before considering if the evidence warrants it, whether it should be excluded on the ground that it was illegally or improperly obtained.  If the first question is answered in the affirmative it will be unnecessary to proceed to the second question."

I, therefore, proceed to address the question whether it would be unfair to the defendant to use the fifth interview against him because in accordance with the decisions of Swaffield and Van der Meer it may jeopardise his right to a fair trial.

Although the fact that section 33 of the Responsibilities Code was not complied with at the time the issue of the defendant accompanying the police from the house to the police station arose, is relevant to this issue, the circumstances which occurred during the 55 minute break between interviews 4 and 5 mean that the issue in relation to interview 5 can be addressed discreetly and in advance of considering the issue of the exercise of the discretion in relation to the first four interviews.The starting point in relation to this interview is that I have determined that the fifth interview was a separate and distinct interview to the first four.  Therefore, I consider that this is not an interview which has been suspended or delayed and, therefore, section 37(4) of the Responsibilities Code does not apply.

In these circumstances, section 431(1) of the Police Powers and Responsibilities Act applied and, therefore, the defendant was required to be warned in a way that substantially complied with section 37(1) of the Responsibilities Code before he was questioned.  This has not been done, therefore, a fundamental requirement of the Code has not been complied with.

There are three breaches of the Code which affect this interview.  These are the original failure to comply with section 33(2), the failure to comply with section 37(1) and the failure to comply with section 34.

Mr Spinaze points to a number of matters in support of his argument that these failures do not have the result that the defendant's right to a fair trial may be jeopardised.  In particular, he can point to the fact that a warning was given to the defendant at the commencement of the first record of interview which complied substantially with section 37(1) and section 34.  In a sense this reinforced the warning which had been given at the time of the execution of the search warrant.

He can also rely on the defendant's evidence under cross-examination that he was comfortable talking to the police at the station prior to the alleged inducements and threats, which I found did not occur.  After the warning he freely answered the questions that they asked.  He knew that he had the right to remain silent.  I have rejected his explanation that he was confused about this right because he believed that he was only assisting the police, rather than being a suspect.  After the warning, not only did he freely answer the questions asked but understood that he had the right to have a lawyer present.  He made a choice freely not to do so.

In relation to interviews 1 to 4, he was responsive and freely answered questions.  The police were not telling him what to say.  He freely told them that he did not have the knowledge that they thought he had.  He was answering them in such a way that was not against his interests and there was no duress, intimidation, insistence or pressure upon him to answer.

In relation to interview 5 itself, he was not consciously lying to the police, although I find his statement to be an ambiguous one in the circumstances.  He answered the questions to the best of his ability.  He provided a significant amount of detail, despite the police not providing him with answers, and that included detail such as the reference to Brad.

However, these answers must be considered in light of the fact that there was a significant change in what he was telling the police in the first four interviews.  In those interviews, as Mr Spinaze put it, despite the fact the Crown can argue that they were relevant to motive in particular, he did not answer in a way that was against his interest.  However, in interview 5 he went much further, such the prosecution can argue that it is admissible to demonstrate that he committed the alleged offence as a procurer.

In these circumstances, what happened between the first four interviews and the final interview must be examined in light of the fact that, as I have accepted, in the absence of compliance with section 33(2) of the Responsibility Code, he accompanied the police from his house to the police station without believing that he had any choice in the matter.

This conclusion is not inconsistent with my rejection of his evidence on other matters because it is based on the admitted absence of compliance with this requirement and is made having regard to the whole tenor of the police statements to him at the house to which I have made reference.  This is to the same effect whether he believed he was assisting them in their inquiries or was a suspect.

Although the subsequent warning in substantial compliance with section 37(1) and section 34 of the Responsibilities Code may be regarded as overcoming this deficiency, the effect of what happened after the conclusion of the fourth interview may have undermined the effect of doing this by the time the fifth interview commenced.

At the conclusion of the fourth interview, it is undisputed that the defendant said:  "I've got nothing further to add, I've had enough."

I've also accepted that he was told that he was under arrest and would be charged, having regard to the combined evidence of Gough and Orman that I have referred to on this point.

The effect of this state of affairs on the defendant is graphically described by Orman, who said that after he was told that he was under arrest and would be charged, his whole body language changed.  During the first interview, he was sitting up straight and confident.  As soon as he was advised that he was under arrest, he slumped in his chair, put his head in his hands and appeared to be a shattered man.  I note that the defendant was showing emotion in the sense of sounding upset at the commencement of the fifth interview when that had not been previously apparent.

There was then a significant delay of 55 minutes during which, as I interpret Orman's evidence, he and Gough openly discussed at the door of the interview room that they were doing the paperwork, such as QP9s, and the defendant would be taken to the watch-house.  As Orman said:  "I don't think we were hiding the conversations."

During that time, Orman spoke to him and built up a rapport with him.  I am satisfied that this was Orman's intention. The conversations included Orman's reference to having been an electrician who had been in a similar situation of having to wait for extensive periods to be paid money and that there was a right way and there was a wrong way to in effect go about getting that money.  According to Orman, it was this which led the defendant to say that he had made a mistake, he had not been totally honest and asking if he could tell the truth.  It was this that led to the fifth interview.

This conversation, although frankly admitted by Orman, was not recorded in any way.  The fifth interview then commenced with the variation of the warning, as Orman described it, but not the forewarning in breach of section 37(1) and section 34 of the Responsibilities Code.

In my view, there are a number of issues of significant concern that arise from this.  In a situation where Plain Clothes Constable Orman knew that he, that is to say the defendant, was shattered and changed markedly in demeanour from the earlier interviews, he deliberately sought to build a rapport and relied on his changed emotional state to at least put subtle pressure on him to change his account by reference to there being a right way and a wrong way to do the very thing which is the gravamen of the allegation which they were investigating against him.

In my view, this was an inappropriate conversation to have and to not be recorded, either at the time or at least by adoption at the commencement of the fifth interview.  In my view, not only did the fact that the fifth interview was a separate interview, but also the fact that this conversation occurred when the defendant was in an emotional state after it being made clear that he was arrested and was to be charged, required a full warning to be given and not an abridged one in variation of the full warning, which excluded the reason that it was given, namely, that anything that he said may later be used in evidence against him.  This would have alerted him to the fact that it could be used against him in relation to the charge on which he had been arrested.

In addition, although reference was made to his still having the right to telephone or speak to a solicitor, friend or relative, it was not added as required by section 34(1) that the purpose of this was to inform that person or lawyer where he was and to ask, arrange or attempt to arrange for that person or lawyer to be present during questioning.  Therefore, in my view, neither section 34(1) nor 37(1) of the Responsibilities Code were substantially complied with.

In fact, section 37(1) was not even complied with to the extent that Plain Clothes Constable Orman himself considered to be necessary when, as he said in re-examination, he gave that abridged warning because he wanted to be fair to the defendant and to make sure if he was going to make admissions in any of the offences, that they were going to be used against him in circumstances where the defendant was left in the obvious emotional situation that he was in after the termination of an interview, something which is obvious at the commencement of interview five, and where he is tired and distracted.

I have the serious reservation that at the time he decided to speak to the police in that interview, he did not recall that if he spoke, what he said could be used in evidence against him or if he contacted a relative, friend or lawyer, the questioning would be delayed for a reasonable time and he would have the opportunity to get legal advice.  In circumstances like this, I consider that it is inappropriate for the police to rely upon the defendant to say that he did not want them to go through the same rights again because he understood them when the obligation was clearly upon them to go through those rights in full.

I accept the tiredness on behalf of the two police officers who fell into this investigation unexpectedly may have contributed to the way in which they approached this. However, this is a double-edged sword because the defendant was also tired and emotional by this stage.  As Mr Spinaze put it to him, he was distracted when he was asked questions at the end of the fifth interview about whether any threat, promise or inducement had been made to him to take part in the interviews.  This is particularly so when he had been in contact with police in relation to this investigation for more than five hours before this interview commenced and the first interview had commenced about two and a half hours beforehand.

Although I have rejected his explanation about his response to these answers which appear on page 46 of the transcript of the interviews, it does not follow that there was no other explanation.  That answer, in my view, is that he was distracted, as Mr Spinaze put it.  This is also how Plain Clothes Constable Gough put it when he told Mr Spinaze in re-examination that he believed that the defendant was a little bit distracted or he sort of answered fairly automatically, which is why he reiterated the question to make sure that he understood.

The fact is that the defendant did answer one question inconsistently with the other questions in this series, which is consistent with an automatic, distracted and tired response.  In these circumstances, I again have serious concern that his response to the warning variation at a time when he was tired and emotional was also a fairly automatic response, and that his answers, although he somewhat ambiguously said that he was not consciously lying to the police, were also automatic responses which might not have been made at all if the police investigation had been properly conducted without subtle pressure from Orman and a lack of substantial compliance with section 37(1) and 34(1) of the Responsibilities Code.

Having regard to the fact that I consider that he had initially attended at the police station in the absence of a belief that he had a free choice to do so, I consider that this so undermined the effect of the previous full warning at the beginning of record of interview one about two and a half hours before the fifth interview as to have the result that it would be unfair to use the defendant's statements against him because they may jeopardise his right to a fair trial. Accordingly, I exclude interview five that commenced at 4 p.m. in the exercise of the fairness discretion.

However, I consider that the warning at the commencement of interview one was sufficient to result in it not being unfair to use the first four interviews against him on the basis of the fairness discretion.  I do not consider that his right to a fair trial might be jeopardised as a result of a failure to comply with section 33(2) of the Responsibilities Code, having regard to his own evidence about how he approached these interviews.

I also consider that while he should at least have been asked questions to ensure that he was still aware that he had the right to remain silent at the commencement of interview 4, given the shortness of that interview, being only two minutes, and given that it merely confirmed a conversation off the record in which he denied knowing Troy Tolley, that this failure was not such as to give rise to the exclusion of that interview in the exercise of the fairness discretion.

However, the question arises as to whether the public policy discretion applies to exclude the evidence which has been obtained in breach of the Police Responsibilities Code in the sense that the defendant, as I have said, in my view accompanied the police to the police station in circumstances where he said that if he was warned in accordance with section 33(2), he would not have gone and would have rung a solicitor, such that I have concluded he accompanied the police from the house to the police station without believing that he had any choice in the matter.

In Bunning v. Cross [1978] 52 ALJR 561 at 570-571, the High Court of Australia said in relation to the factors to be considered in the exercise of this discretion, "The first material fact in the present case, once the unlawfulness is noted, is that there is no suggestion that the unlawfulness was other than the result of a mistaken belief on the part of police officers entitled them to do what they did.  Although such errors are not to be encouraged by the Courts, they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to reinforce it.  The second matter to be noted is the nature of the illegality does not in this case affect the cogency of the evidence so obtained.  Cogency should generally be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentionally reckless. Whereas here the illegality arises from mistake and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had.  It bears on one of the competing policy considerations, the desirability of bringing wrongdoers to conviction.  If other equally cogent evidence, untainted by illegality is available to the prosecution at the trial, the case for the admission of the evidence illegally obtained will be weaker.

A third consideration may in some cases arise, namely, the ease with which the law might have been complied with in procuring the evidence in question.

A fourth and important factor is the nature of the offence charged.  Some examination of the comparative seriousness of the offence and the unlawful conduct of the law enforcement's authority is an element of the process required by Ireland's case.

Finally, it is no doubt a consideration that an examination of the legislation suggests that there was a quite deliberate intent on the part of the legislature to narrowly restrict the police in their power.  The last factor is, of course, one favouring the rejection of the evidence. 

There is no doubt that extortion is a serious offence.

On the other hand, I cannot conclude at this stage of the investigation that Gough and Orman merely overlooked the requirements of section 33(2).  Unlike section 37(4) of the Responsibilities Code, they did not give evidence that they were unaware of it.  The fact is they are experienced police officers.  Both were at the time plain clothes constables. Gough is now a detective.  Although the extent of Gough's experience was not investigated, he would at least be as experienced as Orman who had six years' experience at the time, including three months in plain clothes, investigating drug and assault offences and being involved in records of interview.

Also they were at the defendant's house from 10.40 p.m. and they left according to the tape and transcript shortly after 11.05 p.m, this was still within the limits of their 4 p.m. to 12 midnight shift, and at that time they were acting in accordance with what they understood to be their role in the investigation of being responsible for the search.

It is distinguishable from the situation at the commencement of interview 4 when they were clearly tired after falling into interviewing the defendant.  In my view their failure to comply with section 33(2) was in keeping with the tenor of their statements to him at the house which I have concluded were to the effect that he had no choice as to whether to accompany them to the police station.

In these circumstances I consider there was a reckless disregard of the law which they can be expected to know.  A police officer should not have to consult the police responsibilities code to know that a person subject to an investigation does not have to accompany a police officer to the police station unless specific powers are exercised under the Police Powers and Responsibilities Act, and that such a person should be told this in order to reinforce this right.

As I have said, there is no suggestion that the police were not aware of it and as I have said these officers were of sufficient experience to know this.

I accept that the nature of the illegality does not affect the cogency of the evidence obtained in the sense that although this would be relied upon by the prosecution in support of its case, the defendant did not make statements that he believed were against his interest.

As I have said, the nature of the offence is serious. However, I consider the reckless failure to comply with section 33(2) has to be considered in conjunction with the ease with which this requirement could have been complied with and the deliberate intent of the Police Powers and Responsibilities Act to restrict police power and also the existence of equally cogent evidence untainted by illegality.

As stated in Bunning v. Cross, where there is a quite deliberate intent on the part of the Legislature to narrowly restrict the police in the exercise of their power this is a factor favouring rejection of the evidence.

The purpose of the Police Powers and Responsibilities Act asset out in section 5 is (a) to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law; and (e) to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act. Section 7 states:

"(1) it is Parliament's intention that police officers should comply with this act in exercising powers and performing responsibilities under it;

(2) for ensuring compliance with Parliament's intention, a police officer who contravenes this Act may be dealt with as provided by law."

This is why section 33(2) states it must be substantially complied with.  In my view this demonstrates a deliberate intent on behalf of the Queensland Parliament to narrowly restrict the police in the exercise of their powers.

As Mr Spinaze has outlined, even if the interviews are excluded there is equally cogent untainted evidence; that is to say, evidence untainted by illegality.  In these circumstances I consider that the factors in favour of exclusion outweigh the factors in favour of admission.  I consider that all of the interviews are affected by this and accordingly exercise my discretion to exclude each of the interviews from one to five on this basis.

Having regard to the legislative intent it is regrettable that the reasons for this voir dire included two experienced officers being unaware of their statutory obligations under section 37(4) of the Police Responsibilities Code on one handand failing to comply with the statutory obligation under section 33(2) on the other.  These provisions are simple and straightforward and should not give rise to any misunderstanding.

As Judge Dearden said in The Queen v. Read (2005) QDC 403, there must be a clear message that full compliance with statutory obligations underpins successful policing in the 21st century.  Police officers must be fully aware and compliant with the most basic of legislative obligations which are designed to protect the rights of persons against whom they exercise powers.  A failure to do so is likely to lead to the exclusion of evidence or at least the exertion of unnecessary time, effort, cost and delay in determining the admissibility of evidence so obtained.  This would be overcome, if it is not already done, by the simple expedient of all police officers being issued with a laminated card or cards which contain the wording of the relevant cautions, at least those in sections 33, 34, 36 and 37 of the Police Responsibilities Code, that they could carry with their police notebook.

For those reasons I exclude each of the interviews in the exercise of my discretion.