R v ZD[2016] QDC 355

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application pursuant to s 590AA of the Criminal Code 1899 (Q) by the defendant to exclude an interview conducted between the defendant and Police at the defendant’s house on 8 May 2014 and, further, an interview conducted on 8 May 2014 at the Ferny Grove Police Station.

2. [2]
   The basis of the applications is that the crown cannot prove they are voluntary or alternatively in the exercise of the court’s discretion they should be excluded.

Background

3. [3]
   The defendant is charged with the following counts:

1. (a)
   1 count of maintaining a sexual relationship with a child;

2. (b)
   10 counts of indecent treatment of a child under 16;

3. (c)
   4 counts of making child exploitation material;

4. (d)
   1 count of carnal knowledge with or of children under 16;

5. (e)
   1 count of using electronic communication to procure a child under 16;

6. (f)
   1 count of attempted indecent treatment of a child under 16;

7. (g)
   1 count of procuring a young person for carnal knowledge; and

8. (h)
   2 counts of possessing child exploitation material.

4. [4]
   The charges range from 30 November 2013 and 9 May 2014. The accused was born on 24 July 1994 and was 19 years of age at the time of the interviews. The complainant child was 12 years old. It is alleged the two of them were in a consensual but unlawful sexual relationship with each other.

Submissions

Defence submissions

5. [5]
   The defence submits that the conversations were involuntary or, alternatively, were unfairly obtained and/or obtained in breach of the Police Powers and Responsibilities  Act 2000 (Q) (“PPRA”) and Regulations.  The defence submits that a reading of the conversation at the house clearly shows that the defendant was a suspect when the Police arrived and therefore he ought to have been cautioned from the outset.  He was effectively called a liar, told by the Police to tell the truth and was sworn at.  It is submitted that the cumulative effect of these remarks undermine the effect of any warning given to the defendant.  It is submitted that he was subjected to what amounts to cross-examination and inappropriate, irrelevant comment.  It is further submitted that the obligations of the defendant’s father whilst acting as a support person were never explained to him.  It is submitted that at the conclusion of the conversation at the applicant’s home he was not warned in accordance with regulation 22 of the Police Powers and Responsibilities Code.  This was a significant matter of noncompliance.

Crown submissions

6. [6]
   The Crown submits that if one reads the entirety of the transcripts there was no threat or promise such that there was an involuntary confession. The language used by the Police officer was not such as to cause affront. On the issue of the discretion, it is submitted that given the serious nature of the charges and the ages of the applicant and child there is a significant public interest in the admission of the statements. It is further submitted that a mere statement to tell the truth does not render a confession inadmissible. This is all that happened here. It is submitted that there was no overbearing by the Police officers. It is submitted that the defendant was not a “suspect” at the start of the field tape and there was no requirement to comply with the PPRA at that stage. It is submitted there was no need for a support person to be given to the applicant in this case. It is submitted there was substantial compliance with regulation 22 of the Police Powers and Responsibilities Code and, even if there was a breach, it was technical in nature.  It is submitted that the matters raised on behalf of the defendant do not warrant the exclusion of any admissions made by him.

Facts

7. [7]
   The depositions were tendered as Exhibit 6 and a schedule of facts as Exhibit 7.

Complainant’s mother

8. [8]
   CR, the mother of the complainant child (MR) in a statement dated 4 June 2014 states that MR was born on 27 May 2001. MR has been a difficult child to manage. From mid-2013 her behaviour had declined.

9. [9]
   Around Christmas 2013 CR saw MR and the defendant asleep next to each other outside. She thought the defendant looked about 16. They then went to MR’s room. The defendant admitted to CR that he knew MR was 12 years old. Thereafter the defendant came to the house a number of times. The defendant and MR would be in her room kissing and cuddling. He bought her a silver ring.

10. [10]
    In late 2014 child safety advised her the relationship was illegal. CR told MR this and MR became upset. At a later point MR said she had ended the relationship with the defendant, but MR would sneak out of the house at night and not say where she was going. In April 2014 CR became aware that the defendant bought some clothes for MR.

11. [11]
    On 7 May 2015 CR says that MR got into a taxi but did not return home. She reported her missing to the Ferny Grove Police Station and outlined her concerns about Zac.

12. [12]
    CR also says that MR has told her that she and Zac had sex but the Police had no evidence.

Melissa Poulier

13. [13]
    Ms Poulier in her statement^[1]alleges that she was the child safety case officer for MR between November 2013 and July 2014.  She says that on 20 January she received notification regarding concerns that MR was sleeping with her 19 year old boyfriend.

14. [14]
    On 23 January 2014 she tried to speak to MR who told her to “fuck off”.

15. [15]
    On 24 January 2014 she spoke to CR. She then completed a Police referral.

Officer Keep

16. [16]
    In his statement^[2]Officer Keep says that on 6 February 2014 he received a child safety police referral as to this matter.  He attended the complainant’s address of Keperra and spoke to CR.  MR refused to talk to him.

17. [17]
    He then says that on 8 May 2014 he started a 2pm to 10pm shift. He said he was provided with a briefing that MR had been reported a missing person.

18. [18]
    After being informed that MR had been picked up by taxi on 7 May 2014 he phoned Yellow Cabs and found that the cab had been booked using the defendant’s mobile phone.

19. [19]
    At about 7.10pm they attended the defendant’s residence at 3 Hollis Street The Gap– he says to continue with inquiries into the missing person. He activated his digital recorder as he approached the address.

20. [20]
    It is to be noted that Police had gone to the Hollis Street address earlier that day.

21. [21]
    The field tape is Exhibit 8 and the transcript is Exhibit 3.

22. [22]
    At the start of the field tape, it seems that the defendant was in the shower.

23. [23]
    The officer early on asked the father if he knew that Zac had a girlfriend by the name of [M].^[3]He mentioned that the girl was 12 years old.

24. [24]
    He said Police had information that Zac had booked a taxi for the missing girl and she was dropped off near his location.^[4]

25. [25]
    The officer said to the father that they had information that the relationship was inappropriate.^[5]Zac then became involved in the discussion.

26. [26]
    The officer asked where MR was and Zac said he believed she had gone to her grandmothers.

27. [27]
    The Police asked questions about when he had last seen her and the defendant said he had not seen her for ages.^[6]He then said he had last seen her a month ago.^[7]He then admitted to speaking to her the previous evening at about 8pm.^[8]He then admitted to booking a taxi for her at 10pm and then was confronted with an earlier statement that he had not spoken with her since 8pm.^[9]

28. [28]
    The Police officer then said this:

29. [29]
    The defendant then admitted that MR stayed as his house until 5-6am and then he had to go to work.^[11]

30. [30]
    No warnings had been given to the defendant at this point.

31. [31]
    The officer continued and asked him how old MR was and the defendant said “12”^[12]and what his relationship was like with her.

32. [32]
    The Police officer then asked the defendant to look at his phone. He started looking at the phone and asked questions about that.

33. [33]
    Then a short time later he seems to have spoken to the defendant’s father stating:

“Alright Warren we’ve got a little bit of an issue that we want to sort of look into.”^[13] (T14.50). 

34. [34]
    And further the Police officer said to the father:

“She came in snuck in through the back and was here for a number of hours till five this morning Um your son’s aware that she’s twelve.”^[14]

35. [35]
    The Police officer then explained how they could obtain details from the telephone and that he could apply for a post-search approval.^[15]

36. [36]
    The officer then expressed the view it was highly unusual there was only one message between them.^[16]

37. [37]
    He then gave some rights to the defendant.^[17]He then said that the father could remain as support.  He further said he was investigating offences of indecent treatment of a child under 16, taking a child for an immoral purpose and child stealing.^[18]  

38. [38]
    A search was conducted and questioning continued.

39. [39]
    Crucially the officer said:^[19]

40. [40]
    The questioning continued. Later the Police officer said:

“Alright I’ll just take it. Alright just got a few things to take I’d like to ask you some more questions back at the station would you be happy to voluntarily accompany back to the station while [indistinct] inquiries? Yeah fantastic.”^[20]

41. [41]
    Adding further:

42. [42]
    Having listened to the tape I consider this amounted to dissuading him from having his father present.

43. [43]
    They returned to the Ferny Grove Police Station. The defendant was placed in a holding room the formal record of interview commenced at 10pm and admissions were made by the defendant.

44. [44]
    Officer Keep also gave oral evidence. He said in evidence that he went to the address at The Gap on 8 May 2014 to locate the missing child. He alleged he received this information at about 2pm and attended the house at 7.10pm. He alleged that in effect he did not have any reasonable suspicion of an offence to start with.^[22]He alleged he gave him his rights when he did because it was at that stage he made a determination an offence had occurred.^[23]A missing person’s report was tendered.^[24]

45. [45]
    In cross examination the witness conceded he had dealings with CR in February 2014. He knew that MR was 12 and the defendant was an adult. He conceded there were alleged criminal offences.^[25]He also conceded that the information in Exhibit 9 was that MR was in a sexual relationship with the defendant.  Mr Fraser pointed out various parts of the field tape which would tend to indicate suspicion and investigation of an offence.  He conceded despite being told that MR was with the grandmother no-one called to check if she was there.  He alleged his earlier questioning was about the missing person.  He did concede on the information he had there was the possibility of an offence.^[26]He denied cross examining the defendant at p 25.  He admitted challenging the defendant at pages 25 to 26.^[27]He accepted the father was there as a support person and conceded the comment made by him was not impartial.^[28]He accepted that this comment coming after the Police comments at page 25 might indicate to someone they should be answering questions.^[29]He also conceded not giving the section 22 warnings at any stage.

Other evidence

46. [46]
    Exhibit 7 is the draft schedule of facts in this matter. Aside from the admissions relied on, there is other evidence against the defendant. There were nude photographs of the complainant found on the defendant’s computer devices. There are text messages between them which show a sexual component to the relationship.

Findings

47. [47]
    The first issue I need to determine is whether warnings were given to the defendant at the appropriate time.

48. [48]
    Section 415 of the Police Powers and Responsibilities Act 2000 (Q) provides:

49. [49]
    It is my conclusion that it is most likely that the defendant was a suspect prior to the commencement of the field tape interview.

50. [50]
    Firstly, it is clear that from February 2014 the officer had evidence that it was strongly suspected the defendant and MR has been in an unlawful sexual relationship. Secondly, the officer had read Exhibit 9 – the missing person’s report which repeated this and was more recent. Thirdly, the information conveyed by the Police officer to the father and the defendant in the interview indicates he had other information namely e.g. the defendant had stayed at MR’s house. Fourthly, the officer had information that a cab organised by the defendant had dropped MR near to the defendant’s house the night before.

51. [51]
    In all of those circumstances the only reasonable conclusion is that the defendant was a suspect.

52. [52]
    I also conclude the defendant was being questioned about an indictable offence. I consider that even if the Police were interested in locating MR that was not the only purpose of the questioning. It is clear they were questioning and obtaining information about the offences. In any event locating the complainant was not a high priority. No one bothered contacting the grandmother to see if the complainant was there after the defendant said she had gone there. The Police knew she was not at The Gap. My conclusion is the greater priority was to speak to the defendant about the offences.

53. [53]
    Also relevant is the lack of urgency as to the matter of the missing person. Officer Keep was informed as to this matter shortly after 2pm and it was not until 7.10pm they went to the defendant’s house. I conclude his main focus was to obtain evidence against the defendant in the form of admissions as MR had refused to speak to the Police. I was not convinced by Officer Keep’s evidence to the contrary. I consider much of the questioning related to the alleged offences rather than to the missing person inquiry.

54. [54]
    In those circumstances I conclude relevant PPRA warnings should have been given at or close to the start of the field interview, yet they were not. I will deal with this breach of the PPRA when I come to the issue of the exercise of the discretion.

55. [55]
    It is my clear impression of the field tape that the Police officer placed undue pressure upon the 19 year old defendant and made inappropriate statements to him at pp 11-12 and pp 25-26 of the field tape. I consider these statements, when coupled by the statement of the father (which was not corrected), significantly undermined the effect of the warnings that were given to him both in the field tape and in the record of interview.

56. [56]
    I consider the defendant was, in all the circumstances, in a vulnerable position when dealing with these statements.

Voluntariness

57. [57]
    It is a fundamental rule of the common law that confessions made by a defendant are not admissible unless they have been made voluntarily.^[30]

58. [58]
    Also, this rule has statutory force in Queensland under s 10 of the Criminal Law Amendment Act 1894 (Qld) which provides:

“10  Confessions

No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

59. [59]
    The onus is on the prosecution to prove, on the balance of probabilities, that the mandatory requirement of voluntariness has been satisfied. A confession will be voluntary if it was made in the exercise of the free choice to speak or to be silent.^[31]Admissions cannot be voluntary if they are the result of “duress, intimidation, persistent importunity or sustained or undue insistence or pressure”.^[32]

60. [60]
    In Van Der Meer v R^[33]Mason CJ said:

“I do not doubt that in some situations the police, though believing a suspect to be guilty of the crime, wish to ascertain whether he has an answer to the suggested case against him, before making a definitive decision to charge him.  But, recognition of the right to silence and considerations of fairness to the suspect demand that, in these situations, the police should issue a caution and that they should not whittle down the effect of the caution by pressuring or cajoling the suspect into speaking once he has clearly indicated his wish to remain silent.  Whether the suspect wishes to take advantage of the opportunity given to him is a matter for him to decide.  And it is vital that the law should ensure that his freedom of choice is respected.  It follows that the police will be acting improperly if they attempt to use the occasion as an excuse for attempting to break down a prior voluntary account given by the suspect of his relationship with the critical events in relation to the crime.  The injunction, expressed in the Judges' Rules and elsewhere, that a person arrested or in custody must not be cross-examined, means no more than that.  As Williams J. observed in McDermott (at p 517):

‘But the mere asking by the police of a question which would only be asked in cross-examination at the trial does not, in my opinion, amount to cross-examination...  A cross-examination for this purpose would be an examination intended to break down the answers of the accused to questions put by the police to which they had received unfavourable replies.’”

61. [61]
    Bowen CJ in Collins v R (1980) 31 ALR 257 at 258 further discussed the voluntariness requirement:

“Before a confession may be admitted in evidence in a criminal trial, it must be proved by the Crown on the balance of probabilities, that it was voluntary (Wendo v R (1963) 109 CLR 559).  This means substantially that it has been made in the exercise of the person's free choice.  If he speaks because he is overborne, his confessional statement cannot be received in evidence.  If his 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.  An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (McDermott v R (1948) 76 CLR 501 at 511; R v Lee (1950) 82 CLR 133).”

62. [62]
    It is true that mere statements to tell the truth do not necessarily amount to an improper inducement. However, one must consider all of the circumstances. Also, as noted in R v Plotzki^[34]:

“When the words of a person in authority may be considered as holding out an inducement or are such as could reasonably be considered to do so, the Court will not attempt, by fine analysis or the resolution of nice questions of construction, to minimise the effect of such words.”

63. [63]
    As to the statement by the father – this was not challenged or corrected by the Police officer. A statement by a relative in such circumstances may be considered to be by a person in authority.^[35]

64. [64]
    Indeed Atkinson J in R v Tie Tie^[36]examined a situation where a young defendant confessed to the crime of murder.  It was a case where he was from the Samoan community.  In that case the Police told the defendant’s mother that they needed to speak to the defendant about the death.  The defendant’s mother told him to tell the truth repeatedly in front of the Police.  This was regarded as an inducement by her Honour.  With respect I agree.

65. [65]
    When I consider the totality of the conduct of the Police officer at the time of the field tape coupled with the comment of the father which was not corrected I consider that it cannot be disproved that the defendant was induced to make the statements to the Police both in the field recording and in the record of interview. The officer in my view made it clear he wanted the defendant to answer his questions.

66. [66]
    Whilst warnings were given to him again in the record of interview, I do not consider they were such as to dispel the statements made by the Police officer to which I have referred.

67. [67]
    Indeed, at T10.8 the Police officer said:

“As I have previously indicated I’m investigating offences against MR ah what I’d like you to do is tell me everything you know about MR and why I might want to be talking to you about her so starting at the very beginning tell me everything you can.”

68. [68]
    Alternatively, I find that improper pressure was placed upon the defendant, such that thestatements made therein and in the subsequent interview were rendered involuntary and, thus exclude the statements on that basis that crown cannot establish they were voluntary.  

Discretionary exclusion

69. [69]
    In any event even if I was wrong about the voluntariness issue, I would exclude the interviews on the basis that they were unfairly obtained and/or in breach of public policy.

70. [70]
    I firstly note that it is the legislature’s clear intention that there be compliance with the PPRA.

71. [71]
    Section 5 provides:

72. [72]
    There were a number of breaches of the PPRA and Regulations and the Police Operational Manual in this case.

Failure to give warnings at the appropriate time  

73. [73]
    I have already referred to Section 415 of PPRA:

74. [74]
    Turning then to the Police Powers and Responsibilities Regulations 2012, Schedule 9 – Responsibilities Code, s 23 provides:

75. [75]
    The Police Operational Manual also notes that the Police are to comply with the PPRA.^[37]

76. [76]
    I consider these warnings ought to have been given to the defendant at the start of the field interview. There has been a breach of these sections.

Failure to comply with Regulation 22 

77. [77]
    Now turning to the interview conducted at the Police station, regulation 22 of the Police Powers and Responsibilities Regulation 2012, Schedule 9 – Responsibilities Code provides as follows:

78. [78]
    This information was not given to the defendant either before the interview or during the interview. I consider it is important information. A citizen is not obliged to go with the Police to be questioned. A citizen is entitled to refuse to go. Once these warnings are given, if a person does not wish to go they may be arrested. In this case that would have happened. Once an arrest takes place a person may well wish to get legal advice and may well not undergo an interview. In this case the defendant may have been given the impression he was assisting the Police with their inquiries. What he ended up doing was making admissions to serious charges.

79. [79]
    Again, the Police Operational Manual requires that the act be complied with.

80. [80]
    I find there was another breach of the PPRA.

Support person

81. [81]
    The defence submitted that once the defendant’s father the support person provisions were engaged.

82. [82]
    The term “support person” is defined in schedule 6 to the PPRA. The term relates to Aboriginal and Torres Strait Islander persons, children and persons with impaired capacity. The term is not used in ss 418 and 419. A distinction is made between support persons in ss 427-430 as compared to friends and relatives and lawyers in ss 424-426.  Regulation 34 refers to ss 427-430.  I do not consider Regulation 34 applies.

83. [83]
    However the father was present as a relative. The officer should have delayed questioning to allow the defendant to speak to his father (ss 418(2) and 419(2)) and allow advice to be given. The first did not occur and indeed the questioning continued.

Other provisions of the Police Operational Manual

84. [84]
    Part 3.4 of the Digital Electronic Recording Manual provides that questions should be asked clearly, objectively and not in the form of cross examination or leading questions. It is not appropriate for an officer to ask suspects leading questions or cross examine them.

85. [85]
    In my view the officer here did cross examine the defendant immediately prior to the father’s statement. This should not have occurred and indeed materially induced the father’s statement. Turning then to the formal interview, it was conducted only a short time after the field tape.

86. [86]
    I consider the cross examination in fact undermined the warnings given by the police.

Relevant law as to discretionary exclusion

87. [87]
    I next turn to the exercise of the fairness discretion.^[38]In this regard the courts have a discretionary power to exclude even voluntary admissions which have been obtained by Police using improper, unfair or unlawful methods.

88. [88]
    In R v Ireland^[39]Barwick CJ said:

“Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence.  He [or she] must consider its exercise.  In the exercise of it, the competing public requirements must be considered and weighed against each other.  On the one hand there is the public need to bring to conviction those who commit criminal offences.  On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.  Hence the judicial discretion.”

89. [89]
    There is a considerable overlap between the fairness and public policy discretions.

90. [90]
    The relationship between the two discretions is discussed by Deane J in Cleland v R^[40]where his Honour said:

“Apart from the particular discretion to exclude evidence of a voluntary confessional statement, a trial judge has a more general discretion to exclude evidence of relevant facts or things ascertained or procured by unlawful or improper conduct on the part of those whose task it is to enforce the law (see Reg. v. Ireland [1970] HCA 21; (1970) 126 CLR 321, at pp 334-335 ; Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54, at pp 64-65, 72, 74-75). The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law. The question whether evidence should be allowed of relevant facts or things so ascertained or procured is, once again, a question to be determined by the trial judge on the voir dire. Once it appears that the evidence is relevant and otherwise admissible, the onus of persuading the trial judge that it should, as a matter of discretion, be rejected, lies on the accused….

It follows that where it appears that a voluntary confessional statement has been procured by unlawful or improper conduct on the part of law enforcement officers, there arise two independent, but related, questions as to whether evidence in the making of the statement should be excluded in the exercise of judicial discretion.  That does not mean that there will be a need for two independent inquiries on the voir dire.  The material relevant to the exercise of both discretions will ordinarily be the same.  The unlawful or improper conduct of the law enforcement officers will ordinarily be relevant on the question of unfairness to the accused and unfairness to the accused will ordinarily be relevant on the question of the requirements of public policy.  The task of the trial judge, in such a case, will involve determining whether, on the material before him, the evidence of the voluntary confessional statement should be excluded for the reason that it would be unfair to the accused to allow it to be led or for the reason that, on balance, relevant considerations of public policy require that it should be excluded.  In discharging that task, it is permissible to take account of the existence of any room for legitimate doubt as to whether the alleged confessional statement was made or was voluntary.”

91. [91]
    In Duke v R^[41]Brennan J said:

“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.  Trickery, misrepresentation, omission to enquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification – to name but some improprieties – may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent.”

92. [92]
    In Swaffield v R^[42] the plurality stated:

“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… In Foster v The Queen, which was decided two years before Ridgeway, Mason CJ, Deane, Dawson, Toohey and Gaudron 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’.”

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.””

93. [93]
    The High Court in Pollard v R^[43]noted the importance of police complying with legislation such as the PPRA.

94. [94]
    Oftentimes reference is made to the decision in Bunning v Cross^[44]where in considering such discretions the plurality said that the courts should have regard to the following considerations:

1. (a)
   Whether the unlawful conduct was as a result of mistaken belief or deliberate.

2. (b)
   The nature of the illegality and whether cogency of the evidence is affected by it.

3. (c)
   The ease with which the law could have been complied with.

4. (d)
   The nature of the offence charged.

5. (e)
   The intention of the legislature.

Conclusion

95. [95]
    I do not consider the breaches to be trivial or minor. The Police officer could easily have complied with these requirements. I do accept the charges are serious but, on the other hand, the courts ought not permit deliberate breaches of the PPRA.

96. [96]
    It is not appropriate for Police officers to cross-examine suspects or to make inappropriate comments to them.

97. [97]
    In my view, the defendant was a suspect early on and warnings were not given to him at the appropriate time and, in fact to the contrary, he was exhorted to answer questions and not speak “bullshit”.

98. [98]
    In my view, if warnings had been given to him at an early time, there was no cross examination, and the s 22 statement given, the admissions may not have been made.

99. [99]
    The police should comply with the legislation.

100. [100]
     Taking into account the age of the defendant, the breaches of the PPRA, the intention of the Parliament and the circumstances of the interviews, I exercise the Court’s discretion (on the basis of the fairness discretion and/or public policy discretion) to exclude the field tape and the record of interview.

Order

101. [101]
     My order is therefore that the interviews be excluded from evidence.