DISTRICT COURT OF QUEENSLAND

1. [1]
   Pursuant to an indictment presented on 10 May 2011, in the District Court at Maroochydore, the applicant is charged with an offence of dangerous operation of a motor vehicle and a second count of unlawfully using that motor vehicle, with damage. Each offence is alleged to have occurred on 20 January 2010, at Peregian Beach and elsewhere in the state of Queensland.

2. [2]
   At the trial of this matter, which is yet to be listed for hearing, the prosecution intend to rely upon the recording of a “field interview” conducted with the applicant by police on the night of 20 January 2010 and shortly after her apprehension, to the extent to which it contains any admissions of fact relevant to the charged offences.

3. [3]
   The applicant applies for exclusion of this evidence. First the applicant objects to the admission of the recording on the basis of a contest as to the voluntariness of any admission which she has made and otherwise seeks an exercise of discretion to exclude the evidence of the conversation, in the circumstances in which it occurred.

The circumstances

4. [4]
   The motor vehicle, which is the subject of each of the charges is described as a silver Ford sedan, registration number 109 MSB and it is alleged that this vehicle had unlawfully come into the possession of the applicant, subsequent to its hire by the lawful owner of the vehicle (Hertz Australia Pty Ltd) on 13 January 2010 pursuant to a rental agreement made with a person named Katrina Cooke (with a Kevin Luke McConville being an additional authorised driver of the vehicle).

5. [5]
   In the depositions there is reference made to information that this vehicle and another vehicle had driven off from a static police interception site, at speed, on the Bruce Highway at Glenview, on the night of 20 January 2010.

6. [6]
   The silver Ford sedan 109 MSB was shortly afterwards observed by Detectives Allen and Enright being driven along Maroochydore Road, at speed. Those detectives describe then observing only a driver to be within the vehicle. The Detectives began to follow the vehicle but lost contact with it in the Bli Bli area.

7. [7]
   The charge of dangerous operation of a vehicle is substantially based upon the subsequent observations of Senior Constable Atkinson, who pursued this vehicle from sometime after 11.19 pm from the Yandina Coolum Road, into Coolum and through to Peregian. He describes the vehicle failing to stop despite his having activated his emergency lighting and travelling at speeds, which significantly exceeded the speed limit in built up areas and travelling onto the incorrect side of the road. He describes being, at least at one point, directly behind the vehicle and able to see straight into it and seeing only a driver in the vehicle. He describes following the vehicle into a dead end street (Barton Street, Peregian) and stopping and alighting from his vehicle in order to apprehend the driver, when the Ford Falcon was suddenly accelerated and rammed head on into the front passenger side of the police vehicle and briefly made a short escape, before travelling into some bushes in a sand dune area across Peregian Esplanade.

8. [8]
   Senior Constable Atkinson further pursued and then stopped his police vehicle directly behind the Ford sedan and he describes seeing the defendant climb out through the passenger side door and run off. He alighted and says that as he passed the Ford sedan, he was able to see that there was no other person in it and he ran up Peregian Esplanade, pursuing the defendant for approximately 200 m, before she ran into thick bushland in a sand dune area. Senior Constable Atkinson chased her through the scrub before eventually apprehending her, where he arrested and handcuffed her and returned her to a police car, which by then had arrived at the scene where the silver Ford sedan had been left.

9. [9]
   Shortly thereafter and pertinently to the application in this matter, Senior Constable Atkinson had a conversation with the applicant while she was seated, handcuffed, in a police vehicle. That conversation was recorded by means of a video camera with audio recording capacity. Although very little in the way of useful images are recorded by video camera, it is apparent that this conversation is occurring in the context of the arrival of additional police officers and the movement of such officers around and in securing the scene, which has been described above and with the attendant situation of the background noise and flashing lights of a police emergency.

10. [10]
    It is necessary to a proper understanding of the issues arising in this application to set out a substantial extract of the recorded conversation, as follows^[1]:

“PO Alright Carly I require you to supply a specimen of breath for a breath test. Have you been drinking at all?

CW No.

PO Nothing to drink at all?

CW No.

(Car starts in background).

PO Alright. I require you to seal your lips around the tube and blow in one continuous breath into this tube until I say stop … keep blowing … keep blowing … keep blowing … stop.

PO Have you had any drugs at all?

CW No.

PO No. Alright. Where have you driven from tonight? … I should warn you anyway, I’ll warn you that you have the right to remain silent that means that you don’t have to say anything unless you want to. Anything you do say will be recorded and may later be used as evidence. You have the right to have a friend or relative present during questioning and the right to have a lawyer during questioning. Do you understand that?

CW Yep but I’m not saying anything.

PO Yeah, all right. I just do need to know, um, that …

CW You don’t need to know anything.

PO Beg your pardon.

CW You don’t need to know anything, yeah you know my name.

PO What was the reason for your manner of driving. You can tell me that because you really could have killed somebody. You have killed me you could have killed yourself or you could have killed other motorists on the road. You crossed onto the wrong side of the road a number of times. You rammed the police car up here you really could have killed somebody. For what, Carly? … hey … do you think about it or you just weren’t think of that … now you were driving on this occasion were you driving earlier on in the night when another police car chased you? … Carly just look at me mate. … Carly, I am looking at you can you look at me please.

CW Oh fuck off.

PO Yeah well just give me the respect of looking at me. … Just answer me that were you driving earlier on a few hours ago when the police car tried to stop you. Carly was that you as well?

CW Oh go away.

PO Well just answer me.

CW No.

PO Just now you were driving but you weren’t driving earlier on.

CW You are telling the story work it out.

PO Heh.

CW Apparently you know when I was driving when I wasn’t.

PO Beg your pardon? Well you’re the only one in the car? I followed you I could see there was only one person in the car.

CW (Unintelligible).

PO And you’re lucky you’re in one piece.

CW You’re lucky.

PO Why is that?

CW Happened a few times hasn’t it?

PO Beg your pardon.

CW Happened to you a few times hasn’t it?

PO Yeah I am unlucky, heh.

PO Are you with this other grey Falcon that is getting around?

CW I don’t know anything … fuck … about any other cars … I don’t know anything about this car.

PO Well how did you come to be driving it?

CW I found it.

PO You found it. Found it where?

CW … Somewhere.

PO You found it somewhere?

CW The key’s in the ignition and I jumped in it and tried to go home.

PO You jumped in it and tried to go home?

CW And hours later here I am sitting in it.

PO Yeah, well you are looking at fairly substantial dangerous operation of a vehicle.

CW Oh how I am?

PO Beg your pardon. Carly?

CW How am I?

PO What do you mean. What do you mean Carly we just chased you for 20 minutes.

CW Unintelligible.

PO And you failed to stop at the operation lasso out on the highway as well.

CW Oh did I, all right. See you later. Hooroo.

PO Hooroo. So all you want to tell us is that you found the car and you jumped in it to drive home and that is obviously made up.

CW Can you close that door.

PO Heh – do you have a driver’s licence.

CW No.

PO No. Have you ever held a licence?

CW Actually I have a learners.

PO Beg your pardon.

CW A learners.

PO A learners. Do you have any reason for driving unaccompanied? Probably the least of your worries.

CW Was I driving?

PO Yes you were driving, we’ve already …

CW Did you see me? Did you see me?

PO You have already said you were driving.

CW Oh no I didn’t.

PO You were the only one in the car, I have told you that.

CW Okay cause you’re telling me I was the only one in the car.

PO Well I followed you for quite a while.

CW Oh, Okay … (unintelligible).

PO Yeah. Beg your pardon?

CW (Unintelligible)

PO Beg your pardon?

CW Go away.

PO Well we haven’t finished – you haven’t finished answering my questions.

CW I’m not answering any questions.

PO Heh – where were you driving to. Carly. Where were you driving to?

CW You have a really annoying voice eh. Just meeh meeh meeh meeh.

PO I know I am told that all the time.

CW Well fuck off.

PO Eh. Well tell me where you were driving to.

CW … . to well …

PO Did you oh well you are in the back of the police car now that’s all that really matters.

CW You’ve got nothing.

PO Pardon.

CW You’ve got nothing.

PO Yeah we’ve got you.

CW (Unintelligible).

PO Beg your pardon … all right … see just don’t seem to care at all do you?

CW About what?

PO Well ramming me for a start.

CW Ah.

PO You drove straight at me. You drove straight at me twice.

CW Did I?

PO Coolum Yandina Road and here.

CW Wrong car.

PO What is that?

CW Wrong car.

PO Wrong car no no no right car. Right car. Are you wanted for anything at all right now? Are you on bail for anything right now?

CW No.

PO Sorry.

CW No.

PO You are not on bail for anything. Where do you live?

CW Nambour.

PO Nambour.

CW … I have been away for three years.

PO Have you Carly just look at me. When you went through operation lasso that is the big operation out on the highway right at the time you went through the other Falcon went through as well. Both Falcons went through so you are obviously together.

CW What?

PO The two Falcons, the two grey Ford Falcons. As I understand it they are both Hertz rent a cars. So who was in the other Ford?

CW I don’t know.

PO You don’t know. There is a walkie talkie in the um in the car.

CW Yeah, I know.

PO Does the other car have a walkie talkie?

CW I was listening to it and I thought it was a bit weird.

PO What did you hear on it … heh.

CW (Unintelligible). I didn’t know what was going on.

PO Do you have any remorse for the manner in which you were driving? Do you know like you could have killed somebody? You don’t care? Carly? I just wonder how you tick.

CW What?

PO I just wonder how you tick. You don’t care?

CW I do tick … fuck … I didn’t do anything wrong.

PO You don’t think that driving is wrong not stopping for the police. Carly you don’t think that’s not wrong?

CW Yes of course it is.

PO Right well there you go.

CW I didn’t do it.

PO Heh.

CW … the ones who left …

PO Carly you were the only one in the car.

CW Oh you keep telling yourself that, you might believe it soon.

PO Sorry.

CW Go away fuck off.

PO Right … um.

CW If I was the only one driving, let’s go.

PO What’s that?

CW If I was the only one driving, let’s go.

PO Well we have to tow cars away and we have to tow the police car away.”

Very shortly after that the recording is ceased.

11. [11]
    The passages highlighted in bold type are those that are said by the prosecution to contain admissions against the interest of the applicant. The prosecution have also foreshadowed a tentative inclination to seek positive support for its case in the failure of the applicant, in this conversation, to identify or nominate who she says was the driver. However, it was correctly conceded that this may be an issue for later and would necessarily be dependant on the outcome of this application.

The legal bases of the application

12. [12]
    In this application (as is often the case) there is an overlap of bases upon which the exclusion of the evidence is sought and the way in which those alternative bases may arise and overlap was the subject of explanation in the joint judgment given in R v Swaffield^[2] :

“[71] The seeds of a broader approach to the admissibility of confessional evidence may be found in Duke v The Queen. That appeal was determined after Bunning v Cross but before Foster. In Duke Brennan J said:

‘The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.’

His Honour then proceeded to refer to trickery, misrepresentation, unlawful detention and other factors as justifying rejection of evidence of a confession but emphasised that the fact that an impropriety occurred did not carry the consequence that a voluntary confession must be excluded. He concluded:

‘The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case.’

[72] In his judgment Toohey J said:

‘In the present case a relevant factor to consider in the exercise of the discretion is whether the confession was obtained while the applicant was held in unlawful custody and whether it would thereby be unfair to him to admit the confessional evidence. In suggesting that there could be no unfairness in admitting the confession because it was voluntary, the learned trial judge was in error. A finding of voluntariness does not preclude the exercise of the discretion to exclude evidence by reason of unfairness or public interest.’

[73] Reference has been made already to the judgment of the majority in Foster. Having referred to the focus of the two discretions, their Honours identified various considerations which weighed heavily in favour of the exclusion of the appellant’s confessional statement. These were the police infringement of the appellant’s rights by arresting him for the purpose of questioning, the fact that the unlawful arrest and detention were for the purpose of questioning him in an environment from which he had no opportunity to withdraw, and also the existence of a real question whether admissions made by the appellant were made in the exercise of a free choice to speak or be silent. The last of these considerations sounds more in voluntariness but it was taken into account in the exercise of the discretion to exclude the admissions.

[74] One matter which emerges from the decided cases is that it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues. The overlapping nature of the unfairness discretion and the policy discretion can be discerned in Cleland v The Queen. It was held in that case that where a voluntary confession was procured by improper conduct on the part of law enforcement officers, the trial judge should consider whether the statement should be excluded either on the ground that it would be unfair to the accused to allow it to be admitted or because, on balance, relevant considerations of public policy require that it be excluded. That overlapping is also to be discerned in the rationale for the rejection of involuntary statements. It is said that they are inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable. That rationale trenches on considerations of fairness to the accused. And if admissibility did not depend on voluntariness, policy considerations would justify the exclusion of confessional statements procured by violence and other abuses of power.

[75] In McDermott, Dixon J spoke of voluntariness in terms of the ‘free choice to speak’ and expressed doubts ‘whether … in this country, a sufficiently wide operation has been given to the basel principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will’. And in Cleland Murphy J said:

‘It may be a question of classification whether a confession induced by false representations or other trickery is voluntary.’

His Honour referred to older decisions which treated trickery as negating voluntariness.

[76] The wider the operation given to the principle that, to be admissible, a confession must be voluntary, the less scope there is, in practice, for the exercise of the unfairness discretion. Particularly is that so in relation to improprieties calculated to cause the making of an untrue admission. It may be expected that improprieties calculated to have that effect will often impact on the exercise of a free choice to speak if that notion is given its full effect. However, it will not necessarily be so in every case.

[77] In R v Lee the likelihood of a impropriety resulting in the making of an untrue admission was treated as ‘relevant, though not necessarily decisive’. As the authorities stand, the likelihood of an unreliable confession does not mandate the exercise of the unfairness discretion to exclude that evidence. Nevertheless, it is hard to understand why, in such circumstances, the discretion would not be exercised in that way, particularly when regard is had to the consideration that the risk of an untrue admission is the rationale for the inadmissibility of a non-voluntary confessional statement.

Unreliability is an important aspect of the unfairness discretion but it is not exclusive. As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence. Thus, in McDermott, where the accused did not admit his guilt, but admitted making admissions of guilt to others, it was hypothesised by Williams J that it might have been unfair to admit his statement if the persons to whom the admissions were made were not called as witnesses. In R v Amad, Smith J rejected admissions which were voluntary and which the accused accepted were true because the manner in which he was questioned led to apparent inconsistencies which might be used to impair his credit as a witness. And the significance of forensic disadvantage is to be seen in Foster where the inability of the accused to have his version of events corroborated was taken into account.

[79] It was said by Gibbs CJ, Wilson and Dawson JJ in Cleland that it will only be in an exceptional case that a voluntary confession which it would not be unfair to the accused to admit could be rejected on the ground of public interest. That is too narrow an approach, particularly in the light of Ridgeway.”

13. [13]
    Earlier in that judgment, their Honours had made the following observations:

“[50] … Four bases for the rejection of a statement by an accused person are to be discerned in decisions of this court. The first lies in the fundamental requirement of the common law that a confessional statement must be voluntary, that is, ‘made in the exercise of free choice to speak or be silent’. The will of the statement-maker must not have been overborne. The relevant principle was stated by Dixon J in McDermott v The King in these terms:

‘If [the] statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made.’

…..

[51] The second, third and fourth bases for the rejection of a statement made by an accused person proceed on the footing that the statement was made voluntarily. Each involves the exercise of a judicial discretion.

[52] The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice.

Unfairness

[53] The term ‘unfairness’ necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear:

‘[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him … Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardized if her statement is obtained in circumstances which affect the reliability of the statement.’

[54] Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.

…..

[59] In Bunning v Cross … Stephen and Aickin JJ, with whom Barwick CJ agreed, spoke in terms of: ‘broader questions of high public policy’. They did so in explanation of Ireland where evidence had been obtained in breach of a statutory provision relating to the photographing of a suspect. Bunning v Cross was seen in Ridgeway v The Queen as supporting the exclusion of evidence of an offence, or an element of an offence, procured by unlawful or improper conduct on the part of law enforcement officers.

[60] In Foster v The Queen, which was decided two years before Ridgeway, Mason CJ, Deane, Dawson, Toohey and Gauldron JJ said that although in many cases the two discretions will overlap, their focus is different:

‘In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on ‘large matters of public policy’.’

Their Honours added that in cases where both discretions are relied upon, ‘it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair to the accused’.

[61] In Ridgeway Mason CJ, Deane and Dawson JJ referred to the discretion to exclude evidence of an elite and illegally procured offence as arguably not distinct and independent of the discretion to exclude illegally procured evidence, but as ‘complimentary aspects of a single discretion which encompasses them both’.

The Discretion to Exclude Evidence where Prejudicial Effect Exceeds Probative Value

[62] In Cross on Evidence the following statement appears under the heading ‘Discretion to Exclude Relevant Evidence in Criminal Proceedings’:

‘Evidence may be excluded where its prejudicial effect exceeds its probative value. This is commonly applied in relation to similar fact evidence, but can apply more generally.’

…..

[64] ….. However, the fairness at issue in cases involving the exercise of a discretion to exclude unduly prejudicial evidence is the fairness of the trial, in the sense of a trial that does not involve a perceptible risk of a miscarriage of justice.

[65] Since ‘the unfairness discretion is a recognised basis for excluding confessional statements and is dealt with in the authorities as a discreet discretion the issue whether there is some additional basis for excluding such statements in terms of probative value versus prejudicial effect does not call for further exploration in the present context. Where confessional statements have been excluded in exercise of the unfairness discretion, it has not been after a wane of probative value against prejudicial effect has been carried out.’” (Citations omitted)^[3]

14. [14]
    Subsequently in the judgment, the “positive and negative [considerations] to which regard should be had by a trial judge in determining whether the … discretion exists and is invoked”, were summarised as follows:-

“Those considerations were identified in judgments in this court in cases in which the Bunning v Cross discretion was established and explained. The relative weight to be given to them will vary according to the circumstances of the particular case. Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of a crime will vary according to the degree of criminality involved. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence – the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement – will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances. Ordinarily, however any unfairness to the particular accused will be of no more than peripheral importance.” (Citations omitted)^[4]

15. [15]
    The applicant contends that the exercise of this discretion is enlivened and engaged by the considerations that:

1. (a)
   Constable Atkinson did not comply with the requirements of the Police Responsibilities Code 2000 (“PRC”) in respect of his questioning of her. In particular the following deficiencies are identified:

1. (i)
   There was lack of compliance with s 34 of the PRC which provides as follows:

34 Right to communicate with friend, relative or lawyer

1. (1)
   If a police officer must advise a relevant person of his or her right to contact a friend, relative or lawyer, the advice the police officer gives must substantially comply with the following—

‘You have the right to telephone or speak to a friend or relative to inform that person where you are and to ask him or her to be present during questioning.

You also have the right to telephone or speak to a lawyer of your choice to inform the lawyer where you are and to arrange or attempt to arrange for the lawyer to be present during questioning.

If you want to telephone or speak to any of these people, questioning will be delayed for a reasonable time for that purpose.

Is there anyone you wish to telephone or speak to?’.

2. (2)
   If the police officer reasonably suspects the relevant person does not understand the advice, the police officer may ask the relevant person to explain the meaning of the advice in the person’s own words.

3. (3)
   If necessary, the police officer must further explain the advice.

4. (4)
   If the relevant person wants to speak to a lawyer, the police officer must, without unreasonable delay, make available to the person—

1. (a)
   if there is a regional lawyer list available and the person has not asked to speak to a particular lawyer—the regional lawyer list; or

2. (b)
   a telephone directory for the region.

5. (5)
   A police officer must not do or say anything with the intention of—

1. (a)
   dissuading the relevant person from obtaining legal advice; or

2. (b)
   persuading a relevant person to arrange for a particular lawyer to be present.^[5]

In particular, the applicant contends that s 34(1) of the PRC was contravened in that after informing the applicant of her right to speak to a friend, relative or lawyer, the police officer did not ask whether or not she wished to avail herself of that right and/or offer to delay questioning in order for that to occur. The contention is that there has been a failure to substantially comply with the requirement such as to effectively negate the advice that was given;^[6] and,

2. (ii)
   Failure to comply with s 35 of the PRC which provides:

35 Right to remain silent not affected

1. (1)
   This section applies if a person, the person’s lawyer, or someone whose presence is required during questioning of a person indicates to the police officer questioning or intending to question the person—

1. (a)
   if questioning has not started—the person does not want to answer questions; or

2. (b)
   if questioning has started—the person does not want to answer any further questions.

2. (2)
   The police officer must clarify the person’s intention to exercise his or her right to silence by asking the person—

1. (a)
   whether the person does not want to answer any questions generally or only questions about the offence for which the person is being questioned; and

2. (b)
   if any further question was asked relating to the offence or another offence, whether the person would not answer the question.

3. (3)
   If the person confirms that he or she does not want to answer any questions, the police officer must not question or continue to question the person.

4. (4)
   However, if the person later indicates he or she is prepared to answer questions, a police officer must, before questioning or continuing to question the person, ask the person—

1. (a)
   why he or she has decided to answer questions; and

2. (b)
   if a police officer or someone else in authority has told the person to answer questions.

In this regard it is contended that the applicant’s recorded response to the warning or caution was to indicate that she did not want to answer any questions or at least any further questions, but nevertheless the questioning of her continued without any attempt to clarify matters, as required in this section of the PRC.

2. (b)
   It is contended that each of these failings amounts to a contravention of the Police Powers & Responsibilities Act 2000 (“PPRA”) and therefore amounts to illegal or improper conduct on the part of the police officer, because:

1. (i)
   Section 418 of the PPRA required the advice substantially complying with that set out in s 34(1) of the PRC, because the applicant was obviously being questioned ‘for an indictable offence’ and was a relevant person within the meaning of s 415 of the PPRA in that she was ‘in the company of a police officer for the purpose of being questioned as a suspect about … her involvement in the commission of an indictable offence’; and,

2. (ii)
   The provisions of s 35 of the PRC were engaged by the applicant’s response to the warning or caution administered to her in terms substantially complying with s 37 of the PRC and which was required in those same circumstances, because of the provisions of s 431 of the PPRA.

3. (c)
   The persistence of the police officer in asking questions of the applicant, in the circumstances was more than a mere oversight of a minor nature and amounted to a flagrant disregard of his obligations under this legislation. In this regard it must be noted that no evidence was given by the police officer or any other witness, on the hearing of this application. However the transcript of the committal proceedings was admitted as an exhibit, and in support of this contention I was referred to the responses of Constable Atkinson when questioned about his conduct of this interview, in those proceedings. Of note I was referred to the following:

“Well I suggest to you that on at least six occasions, very early in the course of that discussion, she made it very clear to you that she didn’t want to answer any questions? - - she - she - she was unhelpful. But there’s nothing improper with me asking her questions, and she’s been given the warnings that I am required to give her. If she answers those questions there’s nothing improper with the way I spoke to her. I wasn’t overbearing at any time. She answered those questions voluntarily and she gave those answers voluntarily.

…

It was quite clear, wasn’t it? - - It’s quite clear that she knows she didn’t have to say anything.

Yes. And that she wasn’t going to say anything? That was quite clear? - - I can’t get inside her head. If she continues to answer the series of questions I asked her. And I wouldn’t have persisted if it went on, and on, and on, but the mere fact that the defendant says - tells me to ‘fuck-off’ doesn’t mean that I’m automatically required to stop answering the questions [sic] I’ve warned them appropriately, and - - - -

but, you see? - - - she, with due respect, is stupid enough to say that she was the driver of the vehicle. Then that’s her.

…

So you ignored the fact that she told you that she didn’t want to say anything. You ignored the fact that she said that you didn’t know anything. You ignored the fact that she told you to go away. You ignored the fact that when you told her to answer you she said, ‘no’? - - I think you’ve got to listen to the - and you’ve got to - and not just take statements out of context. I think quite clearly she knows her rights. She’s been given her right, and I think quite clearly she’s just being obstructive and being completely unhelpful.

And I don’t think there’s anything improper with me to continue to ask her questions after I’ve warned her appropriately that she doesn’t have to answer any questions. And quite clearly she knows she doesn’t have to have any questions. But if she is - again, I say it, if she’s stupid enough to admit that she was the driver of that vehicle, then that’s her - her saying that. I didn’t make her say that.

…

In terms of what might be proper, are you aware of the provisions of the Police Powers & Responsibilities Regulations about questioning of witnesses? - - I’m very aware, yes.

And you’re aware from that of the obligations that exist upon a police officer to provide warnings? - - Yes, which is what I do.

…

Do you understand that a person in fact has a right to remain silent? - - Absolutely.

And specifically are you aware with – as to what the Police Powers & Responsibilities Regulation, Schedule 10, s 35 says about the right to remain silent? - - You’d have to refresh my memory.

OK. What it says is this. ‘This section applies if a person indicates to the police officer questioning or intending to question the person, (a) if questions has not started, then the person does not want to answer questions, or if questioning has started the person does not want to answer any further questions.’ So s 35 of Schedule 10 of those Regulations applies in the circumstance relevantly to where if questioning has not started, which I suggest was the case here, you gave the warning at the outset, and the person does not want to answer questions that an indication is given to you; that section applies. Does that refresh your memory as to what your obligations are? - - Well you didn’t read me the whole section. But, again, I’ll come back to the fact that there is nothing improper with the way I spoke to her. The mere fact that the defendant initially says, ‘fuck-off’, or, ‘you know I’m not going to tell you anything.’ But for me to ask more questions is not improper.

Mmm? - - I mean ultimately I was going to go – go nowhere further and I’d cease the questioning. It’s obvious she wasn’t going to co-operate but there’s nothing improper with the way I spoke to her, and there’s nothing inconsistent with the Police Powers & Responsibilities Act the manner in which I did speak to her.”

16. [16]
    The applicant also seeks to invoke an exercise of the discretion to exclude evidence, where the prejudicial effect of that evidence outweighs the probative value of it. However, the considerations to which reference was made in this regard, related to a suggested degree of equivocation and/or unreliability of the alleged admissions and, in my view, these were matters for jury assessment, should the evidence otherwise be admitted.

17. [17]
    In short, the respondent takes issue with the applicant’s contentions essentially on the basis that:

1. (a)
   looked at as whole, the applicant’s responses are indicative of a robust reaction to the questions of the police officer and therefore provides a clear demonstration that she was not intimidated or overborne by him. In this respect, particular reference was made to the statement of principle by Gibbs CJ and Wilson J in MacPherson v R ^[7]:

“A confession will not be voluntary if it has been obtained from the accused by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or as a result or duress, intimidation, persistent importunity or sustained or undue insistence or pressure – anything that has overborne the accused”.

It can be noted that this statement is made in the context of a wider summary of principle which encapsulates the fact that it is for the prosecution, who seek to introduce an admission, to establish that it was obtained voluntarily, on the balance of probability and includes the assertion that:

“The rule of the common law, which in New South Wales is in part embodied in, and in one respect extended by s 401 of the Crime Act 1900 (NSW) as amended and is not derogated from by that section, is that a confessional statement made out of court by an accused person is not admissible in evidence unless it was made voluntarily, that is, in the exercise of a free choice to speak or be silent.”; and

2. (b)
   The robustness of the applicant’s responses to the police officer are also relevant to and undermine any suggestion that it would be unfair to allow use of this evidence at trial and, in respect of the effect of the persistence of the questioning by the police officer, reference is made to the following statement by Hunt CJ at CL in R v Clarke^[8] :

“It should be kept in mind a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given: questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use in answers in evidence.”

18. [18]
    However and as correctly contended by the applicant, those observations of Hunt CJ at CL were made referably to a distinctly different factual situation, in that:

1. (a)
   although the appellant, there, had contended that it was improper for a police officer to continue to question a person, once that person had purported to exercise his or her right to silence, what she had done was to indicate to police that she did not wish to say anything about only one of the matters charged against her; and

2. (b)
   that case was not, as this one must be, decided in the context of the PPRA and related provisions.

19. [19]
    More particularly in regard to the PPRA requirements, the respondent contended for a view that there had been substantial compliance and that, to the extent that any failing and consequential impropriety or illegality might be found, such would be properly regarded as more inadvertent than anything else and accordingly not deserving of the censure of exclusion of this evidence from the prosecution case.

Conclusions

20. [20]
    From the extract of the recorded conversation^[9], it can be seen that notwithstanding the response of the applicant to the warning given to her in terms: “I’m not saying anything”, the questioner has persisted in asking her further questions, which as to manner and content were not calculated to clarify the applicant’s intention to exercise her right to silence. As to manner and content, those questions:

1. (a)
   included the assertion of some right, in the circumstances, for answers to questions or obligation upon the applicant to explain the reason for, what was put to her, as to her manner of driving; and

2. (b)
   continued, despite some effective repetition of the initial expression by the applicant that she did not intend to answer questions, so as to be provocative of response by the applicant.

21. [21]
    That conduct, in this instance, has occurred in contravention of the requirements of the PRC and therefore contrary to the requirements of the PPRA^[10], in that:

1. (a)
   The advice as to the right to communicate with a friend, relative or lawyer accompanying the warning that was given, was truncated and failed to substantially comply with s 34 of the PRC and was effectively negated by the conduct that immediately followed in the nature of persistent pressing for answers; and

2. (b)
   there has been a failure to clarify the applicant’s stated intention that she did not want to answer or further answer questions or to otherwise desist from further questioning, as required by s 35 of the PRC.

22. [22]
    Of course, any admission or confession which is obtained by a person in authority overbearing the will of a suspect as to making a choice as to whether to speak or not, whether that is done by physical oppression or specific threat or inducement^[11], will not be regarded as voluntary. However, it is also important to note the emphasis in the passages set out above, upon the concept of voluntariness being tested on a wider basis and having regard to whether the “statements is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure”^[12].

23. [23]
    I am not satisfied that the prosecution have demonstrated that this conversation, and particularly those parts of it upon which they seek to rely, as admissions, has not been the result of such conduct. In particular, I am not satisfied that the applicant’s critical statements were not the result of “persistent importunity or sustained or undue insistence” such as to amount to an absence of a free choice as to whether or not to speak.

24. [24]
    I would therefore find on this basis that this evidence is inadmissible. However and even had I not come to this conclusion, I would have exercised my discretion to exclude this evidence.

25. [25]
    In the first instance these same considerations justify a conclusion that it would be unfair to allow the prosecution to lead these admissions against the applicant. This is particularly because of the tendency of the persistent questioning of the applicant, after she had indicated her desire not to say anything, to produce answers that might not have been given had the questioning not proceeded in an inappropriate way.

26. [26]
    In these circumstances, I would also exercise my discretion to exclude this evidence on public policy grounds.

27. [27]
    Whilst the offence of dangerous operation of a vehicle alleged against the applicant, is a relatively serious one and this evidence potentially of some assistance to the prosecution of this offence^[13], that evidence has been obtained in contravention of the law. Whilst it is difficult to characterise that contravention as wholly inadvertent or wholly deliberate or reckless, these are merely descriptions of ends of a spectrum and here the concerning features arising from the evidence of Senior Constable Atkinson at committal are that:

1. (a)
   he vigorously maintained his views that he did understand what was required under the PPRA and that he had done nothing improper;

2. (b)
   he appeared to express a view that a suspect who exercises a right, which is required to be the subject of an express warning, is being obstructive and unhelpful to the police investigation; and

3. (c)
   he further expressed a view that, provided the formally required warning is given, it is permissible to take advantage of lack of sophistication or resolve by pressing for and obtaining answers and even to ask questions loaded with accusations and couched in terms demanding of a response.

28. [28]
    It is clear that an investigating police officer is not automatically required to stop asking questions, once there is an indication that a suspect does not wish to or intend to give answers but the extent to which it may be permissible to continue is regulated by s 35 of the PRC and what occurred here went beyond those bounds.

29. [29]
    The failure to substantially comply with s 34 of the PRC involved leaving out that part of the required advice that would have been inconsistent with a desire to press the applicant for answers on the basis that she might be “stupid enough” to make some admission. As I have already noted, the consequence was to effectively negate the advice that was given.

30. [30]
    The PRC is enacted as Schedule 10 of the Police Powers and Responsibilities Regulation 2000. That regulation is made pursuant to the powers granted by s 809 of the PPRA and as have been noted above^[14], the obligations set out in ss 34 and 35 of the PRC are specifically adopted as requirements under ss 418 and 431 (respectively) of the PPRA.

31. [31]
    It can be noted that the stated purposes of the PPRA include^[15]:

“(a) to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;

…

(c) to provide consistency in the nature and extent of the powers and responsibilities of police officers;

(d) to standardise the way the powers and responsibilities of police officers are to be exercised;

(e) to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act

…”

Section 7(1) of the PPRA states:

“It is Parliament's intention that police officers should comply with this Act in exercising powers and performing responsibilities under it.”

And it can also be noted that the powers of this court to exercise discretion to exclude evidence in the interests of justice are also expressly recognised and preserved.^[16]

32. [32]
    Accordingly and weighing the competing considerations, this evidence would also be excluded on this basis, because of the need to recognise and enforce the extent to which there was departure from the legislative requirements and because of the lack of understanding of those requirements and failings which was somewhat aggressively expressed and maintained in this matter.

Order

33. [33]
    The ruling of the court is that the evidence of the interview conducted with the applicant by Senior Constable Atkinson, on 20 January 2010, is not admissible in the trial to be conducted in respect of the indictment before the court.