R v DAL [No 1][2019] QDCPR 10

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with eight counts of rape, one count of making child exploitation material, one count of using a carriage service to access child pornography material, and one count of possessing child exploitation material.  He applies for the exclusion on his trial of two recorded interviews which were conducted by police: a field interview conducted during the execution of a search warrant; and a subsequent formal interview at a police watch house.
2. [2]
   The applicant contends for the exclusion of the interviews on two bases.  First, that they are each rendered inadmissible by s 10 of the Criminal Law Amendment Act 1894.  Secondly, they ought be excluded on grounds of unfairness by exercise of the courts discretion conferred by s 130 of the Evidence Act 1977.
3. [3]
   It will be unnecessary to consider whether the interviews should be excluded on discretionary grounds for unfairness because, on the view that I have formed, s 10 of the Criminal Law Amendment Act 1894 operates so as to render each inadmissible.  My reasons for reaching that view follow.

The warrant and the search

4. [4]
   At about 12:24pm on 15 December 2017, police executed a search warrant at the residence occupied by the applicant, his parents and his three siblings.  At the time at which police commenced their search, only the applicant’s father and older brother were present at the house.  The applicant, his mother and his younger siblings were said to have been either visiting people or at the park.  Those other persons not initially present at the commencement of the search were enticed back to the house in the course of it in circumstances which I shall describe shortly.  
5. [5]
   The warrant was issued by a magistrate upon satisfaction that there were reasonable grounds for suspecting that warrant evidence or property were at the place which was named in the warrant, that being the premises at which the applicant and his family lived.  Section 150(1)(a) of the Police Powers and Responsibilities Act (PPRA) permits a police officer to apply for a warrant to enter and search a place to obtain evidence of the commission of an offence.  Section 150(5)(a) requires the application to be sworn and to state the grounds on which the warrant is sought.  Section 151 permits the issuing of the warrant only if, relevantly, the issuer is satisfied that there are reasonable grounds for suspecting that evidence of the commission of an offence is at the place.  
6. [6]
   Section 156(1)(b)(i) requires a search warrant issued in relation to an offence to state brief particulars of the offence for which it is issued. The warrant stated that it was issued in relation to an offence.  The offence in relation to which it was issued was particularised as:

“Section 228D, Queensland Criminal Code – possess child exploitation material. 

That on the 27^th day of November 2017 at [address omitted] in the state of Queensland one AB^[1] (sic) knowingly possessed child exploitation material namely computer generated images.”

7. [7]
   Details of the warrant evidence or property that may be seized under the search were stated, as required by s 156(1)(c), as:

“Any child exploitation material.  Any electronic device capable of connecting to the internet which includes personal computers, laptops, mobile phones and other devices.  Any storage device including hard drives, other removable media, USB thumb drives, compact and DVD dics that are capable of storing electronically recorded data including images in the form of text.  Any device including a modem or router that allows a data connection to the internet.  Anything that may contain access information or passwords used in connection with any electronic storage device.”

8. [8]
   At the time of commencing to execute the search warrant Senior Constable Smith showed those then present, being the applicant’s father and brother, a copy of the search warrant.  He then said “now you are both detained under the provisions of the Police Powers and Responsibilities Act for the purpose of this search.  This means you’re not free to move around, and cannot leave the premises.”  That statement that they were each detained was consistent with the power conferred upon the officer under the search warrant by s 157(1)(e) to detain anyone at the relevant place for the time reasonably necessary to find out if the person has anything sought under the warrant.  
9. [9]
   After the search proceeded for some time, Senior Constable Smith said:

“Alright.  So my concern is, back on the 27^th somebody at this address has downloaded 14 files.  One depicting female children performing oral sex on an adult male.  One of a ten year old being anally penetrated by an adult male, and an eight and ten year old brother and sister having sex.  Now these are the ages of the two youngest siblings at this address.”

10. [10]
    The police officer had established the ages of the two youngest siblings from speaking with the applicant’s brother shortly before stating that his concern was that someone may be touching them.
11. [11]
    Shortly after making that statement, Senior Constable Smith informed the applicant’s father and brother that the police would be reviewing all of the computers and that their review would identify things which had been deleted as well.  In that context he said:

“So in relation to yourselves, if there is something you wanna talk to us about now that we may find, now’s probably the better time to um speak to us about those items, rather than wait for us to find them, and then obviously trust goes out the window.”

12. [12]
    The applicant’s brother then made disclosures about having accessed and downloaded adult pornography from time to time. The police officer said that that was not an offence, but that he appreciated his honesty. 
13. [13]
    Earlier, the applicant’s brother had made statements to the police officers which implicated the applicant in having accessed child pornography.  
14. [14]
    After being taken to the applicant’s room, Senior Constable Smith said “we’re gonna have to figure out about how we’re gonna get your brother here”.  He then said:

“So if, if we were to call your mum, but not tell her what it’s about, would she bring everyone back?”

15. [15]
    The applicant’s brother indicated that she would.  
16. [16]
    Immediately following that, the applicant’s father said that his wife had found the applicant in bed on an occasion with the younger siblings and that she got fed up with the applicant that he had to get out of the house.  The applicant’s father said that that was quite a while ago when the applicant was still at school.  
17. [17]
    Constable Ward, the other police officer present, said “we might need to talk to them”.  And Senior Constable Smith said “we’re gonna have to 93A”.  That quite apparently is a reference to needing  to take statements from the younger children which would be admissible pursuant to s 93A of the Evidence Act 1977.  
18. [18]
    Shortly after, Constable Ward said “We might need to have a chat with them” but indicated that this was not necessarily immediately, but that they might need them to come to the police station to have a talk with them.  
19. [19]
    Shortly after that, Senior Constable Smith said “now obviously this is with your consent, and obviously I don’t want you to outline to your wife why, but I’d like for you to call your wife and just say to her, “Honey, you need to come home now bring the kids”.  But obviously don’t outline we’re here.  Because if DAL’s been the one to be downloading these things there may be stuff on his phone and we don’t want him to delete that.”  The applicant’s father indicated that he was content to cooperate with the police in that regard.  
20. [20]
    The applicant’s father then made a call to his wife in which he said that something had come up and that she had better come home.  She asked him to tell her what had happened and he said that he couldn’t say anything, although he mentioned that there had been a disaster in the house.  After that telephone call there was conversation between the applicant’s father and brother and the police officers in which Senior Constable Smith observed that he understood that these were “very confronting situations” and then said “but it’s better we find out before someone gets hurt sometimes”.  The applicant’s father said that was “exactly right cause you know we got a little girl”.  
21. [21]
    Constable Ward then said, “ Yeah and granted that these are criminal offences, and if there is something occurring, we wanna be able to help as much as, you know, during a child [indistinct], in criminally as well so … there are things in place to help people.” 
22. [22]
    Upon arriving back at the premises the applicant’s mother asked “what’s happening” and Senior Constable Smith informed her that he was “more than happy to explain it all”.  Senior Constable Smith then went onto introduce himself and identify himself by reference to his registration number and showed him his identification.  He stated “I have a search warrant issued under the provisions of the Police Powers and Responsibilities Act to search these premises in relation to child pornography.  Ok.  Um, so that’s the purpose of us being here at the moment.”  The other police officers present then identified themselves.  
23. [23]
    Senior Constable Smith then informed both the applicant and his mother that they were detained under the provisions of the Police Powers and Responsibilities Act “for the purpose of the search”.  He then went on to say:

“Now this part’s important, and I’m gonna need you guys to listen to this.  I must inform you that you have the right to remain silent.  This means you do not have to say anything, answer any question, or make any statement unless you wish to do so.  However, if you do say something, or make any statement, it may later be used as evidence.  Do you understand?”

24. [24]
    The applicant and his mother were then asked if they understood.  Senior Constable Smith sought to have their understanding demonstrated by asking “so if I asked you what you had for breakfast do you have to tell me?”  To which the applicant’s mother replied “yes” and the applicant replied “yeah”.  Senior Constable Smith then said “no” and asked again “if I ask you if you broke into a house, do you have to tell me? No?”, to which the applicant responded “no”.
25. [25]
    A little further into the search Senior Constable Smith accompanied the applicant upstairs.  When away from the rest of the family Senior Constable Smith said:

“I’ll get you to stay there for two seconds.  Now, now that we’re away from the rest of your family, is there anything you wish to declare?”

26. [26]
    The applicant asked him “declare as in”; to which Senior Constable Smith responded “as in relation to stuff we’re searching for, as in child pornography.  Is there anything you wish to tell me now?  Whilst we’re away from them”.
27. [27]
    The applicant then told Senior Constable Smith of an occasion of having accessed child pornography “years ago” in about 2012.  After a discussion about those matters, Senior Constable Smith said:

“The reason we’re here, is because on the 27^th of November somebody at this address has downloaded child pornography.  Now do you use anything torrent programs?”

28. [28]
    There was then a discussion about the use of torrent software following which Senior Constable Smith said:

“So on the 27^th of November this year somebody has downloaded child pornography from this address.  Now I know you’re saying you did stuff years ago is there anything else you wanna tell me?”

29. [29]
    The applicant then told Senior Constable Smith, after further questioning, that he may have downloaded child pornography in the last month.  He was then asked further questions about downloading and storage.  He was also asked about what search terms he used and the applicant provided information in that regard.  Senior Constable Smith then said:

“Cause the items that were downloaded recently, the age premise that they focussed on, was eight to twelve year old involving adults penetrating children of that age.  Ok.  Now I understand you’ve got two younger siblings.”

30. [30]
    The applicant responded by saying that he paid no attention to them, meaning his younger siblings,  after which the following exchange took place:

31. [31]
    Following that, the applicant went on to make several disclosures upon which the rape charges against him are based.  The admissions were made in response to various questions asked of the applicant by Senior Constable Smith.  The applicant having made the admissions Senior Constable Smith said “okay, let’s go down there.  Obviously, I’m not gonna say anything to your parents about this stuff at the moment.  Okay.  But you are willing to come with us after this”;  to which the applicant responded that he was.  Senior Constable Smith then said “I’m not trying to trick you, or mislead you”; to which the applicant responded “no, that’s alright.  I know”.
32. [32]
    At the conclusion of the search, Senior Constable Smith said in the presence of the applicant’s mother “look, we’re not here to judge people, and all that stuff, we’re just – – here to, yeah, find out what’s happening, see if we’re able to help anyone – – and um start that process from there.  Okay”.
33. [33]
    Before the search is terminated Senior Constable Smith accompanied the applicant to the police car and said:

“Um, look, I, like I said, I’m not gonna trick you there.  We’re gonna go to, we’re gonna go to Ipswich Station.  Ah, and we’re gonna – – do the rest of what we gotta do, okay.  Now – – ah we are gonna have to have a chat to your little sister, okay.  Um, but I’m just letting you know – – – as you’re aware mate, this is, this is serious.  Okay”.

To which the applicant responded “yeah”.

The Police Station Interview 

34. [34]
    Later on the same day, commencing at about 3.20 pm, the applicant was interviewed at the Ipswich Police Station by Senior Constable Smith and acting Sergeant Nobbs.  At the commencement of that interview the applicant was informed by Senior Constable Smith that he was investigating  possession of child exploitation material and rape offences.  The applicant confirmed that he understood what Senior Constable Smith was talking about.  Senior Constable Smith asked the applicant “now do you understand that at the moment you are under arrest and you’re not free to leave?”.  The applicant said “yes”.  It is not clear when the applicant’s arrest took place.  The basis upon which he attended the police station was that he did so voluntarily.  There is no recording of the applicant’s arrest.  Senior Constable Smith then said:

“Okay.  Now I know explained this earlier on today, but I need to go through this part again, okay, for the purpose of this recording.  Before I ask you any questions I must tell you that you have the right to remain silent.  This means you do not have to say anything, or answer any question or make any statement unless you wish to do so.  However if you do say something or make any statement it may later be used as evidence.  Do you understand?”

35. [35]
    The applicant responded “I understand”.  Senior Constable Smith asked the applicant “can you explain that to me in your own words?”.  The applicant was unable to do so.  Senior Constable Smith went on to explain the right to remain silent meant that if he were to ask the applicant a question he did not have to answer it.  Senior Constable Smith again sought the applicant’s understanding of that warning by again asking him whether he was obliged to tell the Senior Constable what he had for breakfast if asked or whether he broke into a house if asked, the applicant answering “no” on each occasion.

36. [36]
    Senior Constable Smith went on to say “no, that’s right.  So it doesn’t matter what I ask, you’ve got the right to not answer it.  Okay.  I can’t force you to talk to me.  But if you do talk, it is being recorded right now, and it may later be used in court.  Do you understand that?”;  to which the applicant responded “I understand”.
37. [37]
    Senior Constable Smith then informed the applicant of his right to speak to a friend, relative or lawyer.  The applicant declined that opportunity.
38. [38]
    A little further into the interview Senior Constable Smith raised the execution of the search warrant at the applicant’s home address earlier that day.  He asked the applicant “and during that search warrant I gave you your rights about caut – , ah silence and all that?”; to which the applicant responded “yes”.  Senior Constable Smith referred to having seized a number of devices belonging to the applicant and to having had a conversation with the applicant in his bedroom.  Senior Constable Smith then went on and said “.  Now during that conversation, and correct me if I’m wrong, okay, during that conversation you outlined to me that the laptop, which was located under your bed – – you had used to download child pornography?”; to which the applicant responded “yes”.
39. [39]
    Senior Constable Smith then went on to say “Also during that conversation you stated to me that ah since your sister Lucy was six years old, you had stuck your penis in her anus, up to seven times since she was six years old.  Is that correct?”; to which the applicant answered “yes”.  The applicant then went on throughout the course of the interview to make admissions concerning sexual offending against his sister.
40. [40]
    Later it was necessary to interrupt the interview to allow the recording discs to be changed. Upon its recommencement, Senior Constable Smith repeated the cautions, reminding the applicant that they had been given earlier. He again asked the applicant to explain his understanding of the warnings in his own terms. The applicant was again unable to do so. He said he could not remember. 

The applicant’s evidence

41. [41]
    The applicant gave evidence on the hearing of the application.  At the time he was 18 years of age.  He said that he was home-schooled through distance education from grades one to ten and that he had problems with maths and literacy.  In relation to problems with English he said it was “just mostly when it got to the larger words than the meanings and the understanding – understandings of what each word meant and I could only – I could only go a certain length in – in the types of words”.  He said that he had difficulty understanding bigger words.
42. [42]
    He said that up until the time of the execution of the warrant at his home he had always lived at home with his parents and had only ever spent one night away from home.  He had never had any dealings with police prior to that occasion and had never spoken to police for any reason.
43. [43]
    When asked how he felt when he turned up at his house and saw the police there, he said “I was just confused, I think”.
44. [44]
    When asked how he felt by the time he was asked questions by police in his room about touching his siblings, he said “extremely uncomfortable, nervous – and I wasn’t sure if I would – if I was able to say things without my parents being present or – yeah.  I was just confused about everything”.
45. [45]
    When asked what he was thinking when he was asked those questions about whether he had touched his siblings, he said “I’m not sure what I was – well, what I was thinking of.  Just something’s going on – it felt like I was under a lot of pressure.  I just wasn’t sure what to say”.
46. [46]
    He said that he did not feel like he had a choice to answer the questions or not.  He said he felt that way because “I – just the way he was sitting there and staring at me while he was asking the questions.  It made me feel really – very uncomfortable.  I felt like I had to talk to him”.  When asked if he thought that he had a choice whether to talk or not, he said “no”.
47. [47]
    The applicant was asked how he felt when the police officer said that he was not there to judge and that he was there to get the applicant and his siblings some assistance “if stuff had happened” and that he had went on to say that he liked to think people would be honest with him.  The applicant answered, “yeah, I felt like I did have to talk to him about – like, I – he was making me feel very uncomfortable, like I didn’t have a choice.  I wanted to have maybe someone else there with me, talking to him.  But he was only allowing me to talk to him and I was just very uncomfortable with it”.
48. [48]
    When asked to explain that discomfort he said, “something like when somebody takes all the control away from you and you’re just left feeling alone and – feeling alone and abandoned in that kind of way”.
49. [49]
    He said that he did not know what the outcome might be if he spoke to the police officer about those things.  He said that when the officer said that he was there to get some assistance and to get people back on track, he thought that what might happen as a result of him saying that was that, “well, I thought when he said that that he would maybe have some lessons about the subject or, you know, teaching me some things and that’s all I would have to do.  That’s the only outcome I thought was going to happen”.  He said that he did not realise that the things that he was saying to the police officer would result in him being charged with criminal offences.
50. [50]
    In respect of his voluntarily accompanying the police officer to the station he said that he did not feel that he had a choice to go with them on that occasion.  He said, “again, I just thought he – he was going to take me there to have a – have a talk about things or something”, and that he had no idea of what the consequences of such talk would be.  He said that when told by the police officer at the house that the matters were serious, he did not understand what the police officer meant by that.  He said that he did not know at all what it was going to result in.

51. [51]
    The applicant gave evidence about the interview at the police station.  He said it took about 30 minutes to get from his home to the police station where, upon arrival, he was placed in a holding cell.  He was not told anything by the police officer at that stage, he was not told when they would be back to speak with him.  He said that he felt at that time “mostly just confused and maybe – I maybe felt slightly sick”, the latter because of his nerves.  His next contact with any police officer was when they took him up to be fingerprinted.  He was not informed as to why he was being taken to be fingerprinted.  He was then taken straight to the interview room.  He said that although he did not say that he wanted to call his parents, he did want them there but that he did not tell the police that.  His reason for not telling the police that he wanted his parents there was, “because I – I still thought, after we did the interview that I would go straight back home and I would be able to see them”.
52. [52]
    When asked if he felt like he had a choice whether to speak to the police in the interview or not, he said, “no”.  He said that he was still feeling uncomfortable when they were talking to him, “as in, I felt like I was under a lot of pressure and under a lot of stress”.  He said that at that stage he did not understand that he would be charged with criminal offences as a result of talking to the police.  Nor did he understand that he could be charged with criminal offences as a result of talking to them.
53. [53]
    When reminded that he had answered “no” when asked at the conclusion of the interview whether he ever felt bullied to take part in it, he said that he had answered in the negative, “because – because I thought when they said being bullied as such as in, like, that they would – that they would be, like, standing over me in a – in – in kind of a way”.
54. [54]
    When asked how he felt when police asked at the conclusion of the interview, “did it ever feel like me or the detective here were forcing you to do the interview in any way?”, he said “I know he wasn’t forcing me to do it, but it – it felt like he was forcing me to do it, just the way of – just the way of – the way he was looking and saying the words”.
55. [55]
    In cross-examination the applicant confirmed that upon his arrival at his house police explained to him that they were searching the house and that they were investigating possession of child pornography.  He agreed that the police did not tell him that they would only be able to get help for him if he answered their questions.  He agreed that they did not tell him what type of help they could get for him or his siblings.  He agreed that he did not ask the police what type of help they could get him or his siblings and that he did not ask them when they could get him any help.  He agreed that he understood when at the house during the search he did not have to speak with police, he said that he was happy to go with them back to the police station.
56. [56]
    He agreed that police had not promised to give him anything to speak to them.  He agreed that they had not promised to get him any mental health assistance or any other help.  He agreed that police had not promised to get any help for his siblings, nor for him to speak to them.
57. [57]
    He was reminded that he said “no” when asked by the officer “so what that means is if I ask you a question, do you have to answer it?”.  He was then asked, “so did you understand by saying that that you didn’t have to answer their questions?”; to which he answered “no”.  He went on to confirm, twice, that he did not understand that he did not have to answer questions of the police.
58. [58]
    My overall impression of the applicant in his giving evidence was that he was naïve and unsophisticated.

Exclusion of the confessional evidence

60. [59]
    Section 10 of the Criminal Law Amendment Act 1894 provides:

“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.”

60. [60]
    In applying s 10, the following principles may be distilled from the authorities.
61. [61]
    A “threat or promise” as referred to in the provision “may include words operating as an inducement to a suspect to make a confession”.^[2] The promise or threat might be implied and need not be express.^[3] In construing whether a particular expression may be construed as an inducement:

“It is important to remember the admonition in R v Bodsworth^[4] to avoid putting ingenious instructions on colourless words so as to detect the hint of improper inducement, as was one time the case, but rather to construe the words only according to their natural, obvious and common sense meaning”.^[5]

62. [62]
    When the words of a person in authority may be considered as holding out an inducement, or are such as could reasonably be construed 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”.^[6] A statement to an accused person that “it would be better for him to tell the truth, or that a statement made would be for his benefit, are inducements having the effect of rendering a subsequent confession involuntary”.^[7] An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority.^[8]
63. [63]
    Before turning to apply these principles to the evidence in this case, something should be said about the nature, content and timing of the warnings given to the applicant at his home in the course of the execution of the search warrant.
64. [64]
    The only warning given to the applicant was at the time at which he arrived back at the house.  The warning was given in the context of the police informing him (and his mother who arrived at the same time) that they were conducting a search of the premises under the authority of a warrant in relation to child pornography.  At no time was the applicant given any warning in respect of an investigation of contact child sexual offences.
65. [65]
    However, it is apparent that by the time the applicant returned to the house, Senior Constable Smith did consider that he was investigating child sex offences having potentially been committed by the applicant.  That is apparent from the discussion between the officers, following the revelation by the applicant’s father that his wife had found the applicant in bed with his two younger siblings, that they would have to take statements from the siblings which would be admissible under s 93A of the Evidence Act, and their informing the applicant’s father that they may have to take those children to the police station to speak with them for that purpose.  It is also apparent from Constable Ward having said, in the presence of Senior Constable Smith, that if there was something occurring these were criminal offences.
66. [66]
    It is further apparent from the way in which Senior Constable Smith’s questioning of the applicant, when alone with him in his bedroom, moved from the downloading of child pornography, per se, to the content of the downloaded material focussing on eight to 12 year olds being penetrated by adults and, in that context, direct questioning of the applicant as to whether he had ever indecently touched his siblings.  That questioning was consistent with Senior Constable Smith’s concern, as earlier expressed to the applicant’s father and brother, that whoever was downloading the items of child pornography “may be touching the two young ones here”.
67. [67]
    In response to the applicant’s submission that he should have been given a further warning prior to that questioning, the Crown submitted that:

“Section 415 of the Police Powers and Responsibilities Act 2000 states that this part (Part 3 – Safeguards ensuring Rights of Fairness to Persons Questioned for Indictable Offences) applies to a person (relevant person) if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence. (emphasis added).

The applicant was given his warnings and cautions at the commencement of the search warrant interview.  Police are not required, by law, to re-administer those warnings and cautions in respect of each indictable offence.  It was made clear to the applicant, as previously outlined, that he did not have to answer any question of police, regardless of what the question was.  It is submitted that there was no unfairness to the applicant by police not repeating those warnings and cautions including the right to silence.”

68. [68]
    There are a number of difficulties with that submission.

69. [69]
    First, s 415(1), of itself, prescribes no duties or obligations; it merely prescribes the circumstances in which duties or obligations otherwise set out in Part 3 of the PPRA apply.
70. [70]
    Secondly, s 415(2)(b) provides that Part 3 does not apply to a person only if the police officer is exercising power conferred under any act to detain the person for a search.  Senior Constable Smith was exercising such a power under s 157 of the PPRA.
71. [71]
    Thirdly, the expression “search warrant interview” is inapt to describe the interview conducted at the house.  It is inapt because it suggests that Senior Constable Smith was conducting a form of interview permitted by the PPRA.  He was not.  Section 157 of the PPRA prescribes no general power to questions persons detained for the purpose of a search.  The search powers are confined by the scope of the warrant.  The warrant in this instance was confined to searching for evidence or property related to an offence of possession of child exploitation material.  The submission suggests that having entered premises under the authority of the warrant for the purpose prescribed in, and permitted by, it, the officer is at large to question a person detained about any offence.  It suggests the officer is exercising powers as though under a general warrant.  That is wrong.
72. [72]
    In Ousley v R^[9], McHugh J remarked:

“The common law courts, anxious to protect the liberty and privacy of the citizen, have always insisted that those who would invade the liberty or privacy of the citizen must unambiguously show that they have authority to do so.  In pursuance of that goal, the common law courts adopted two policies.  First, they limited the cases where warrants could be issued under the common law.  Second, they developed a rigorous set of principles, applicable to both statutory and common law warrants alike, for ensuring that a warrant had been properly issued and that those charged with executing it were acting within their powers.”

73. [73]
    Later,^[10] his Honour referred to the judgment of Parke B in Lindsay v Leigh^[11] where it was said:

“Every instrument which is to affect a man’s liberty or property out of the course of the common law ought, on the face of it, to shew the authority sufficiently”.

74. [74]
    This warrant conferred no authority upon police to enter premises and once there commence an investigation about offences beyond the scope of the warrant.
75. [75]
    The failure of Senior Constable Smith to recognise and observe the limits of the powers he was exercising under the authority of the search warrant, and his apparent conflating of those powers with some general power of questioning, led to processes which should have been observed in respect of that further questioning not being followed.  
76. [76]
    Part 5 of Schedule 9 to the Police Powers and Responsibilities Regulation 2012 prescribes powers and responsibilities relating to police investigations and questioning for indictable offences.  Section 22 prescribes, relevantly,:

“22 Asking persons to attend for questioning

1. (1)
   This section applies if a police officer wants to question a person as a suspect, other than a person mentioned in section 398 of the Act .
2. (2)
   If the police officer approaches the person when not at a police station or police establishment, the police officer must caution the person in a way substantially complying with the following— 

‘I am (name and rank) of (name of police station or police establishment).

I wish to question you about (briefly describe offence).  Are you prepared to come with me to (place of questioning)?  Do you understand that you are not under arrest and you do not have to come with me?’.

4. (4)
   Before the police officer starts to question the person, the police officer must caution the person in a way substantially complying with the following— ‘Do you understand you are not under arrest?  Do you understand you are free to leave at any time unless you are arrested?’.
5. (5)
   If the police officer reasonably suspects the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in the person’s own words.
6. (6)
   If necessary, the police officer must further explain the caution.”

77. [77]
    The applicant was not at a police station; he was at his house.  Clearly Senior Constable Smith, by the time he spoke with the applicant in his bedroom, wanted to question him as a suspect in committing an offence on indecent treatment of a child.  However, seemingly because he was otherwise in the house in execution of the warrant, he did not caution the applicant in the manner required.  Most importantly, he did not inform the applicant that he wished to question him about any offence; not even the possession of child exploitation material, and certainly not contact sexual offending against a child.
78. [78]
    However, the manner in which the questioning came about in the context of the executing of a search warrant and without an appropriate warning could easily have suggested to the applicant, and which the Crown submissions themselves suggest, that the police officer had some general right to question the applicant about any offence, and that such questioning was authorised by the warrant.
79. [79]
    The significance of the failure to warn the applicant separately about his right to remain silent before being asked questions about offending beyond the possession of child exploitation material, is not in the failure to give the warning, per se, but that the confessional statements which followed were given in the context of the search and in the absence of a warning about other offences.  This forms part of the circumstances in which the confession was made.
80. [80]
    As the applicant identifies in his submissions, the issue of voluntariness involves a subjective assessment as explained by Brennan J (as His Honour then was) in Collins v R^[12] that:

“The conduct of police before and during an interrogation fashions the circumstances which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary.  The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made.  Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.”

81. [81]
    It was in the context already described that the confessional statements were made following what I consider to have been statements of inducement made by Senior Constable Smith.  
82. [82]
    The first statement of inducement was that he was not there to judge the applicant, just to find out what had happened, and to try to get everyone back on the right track mentally, to get them assistance including the applicant and his siblings “if stuff happened to them”.  That statement held out the promise of a benefit in the nature of assistance being provided to the applicant and/or his siblings to get them back on track mentally.  The applicant’s evidence that the officer:

“Would maybe have some lessons about the subject or, you know, teach me some things and that’s all I would have to do.   That’s the only outcome I thought was going to happen,”

is consistent with it being an inducement, and that it was understood by the applicant to be such.  It is not to the point that no particular form of assistance, nor any particular time at which it may be given, was promised. 

83. [83]
    The second statement in the nature of an inducement was Senior Constable Smith’s statement that 

“So if there’s something you wanna say, now’s the time, rather than it coming out later on”.

84. [84]
    Although he did not use the expression “better” the clear inference is that it would be better for the applicant to speak then rather than later on, particularly as this was said in the context of Senior Constable Smith having said that he was going to have to have a chat with the applicant’s little brother and sister and ask them if anything had ever happened.  That, in my view, is the obvious and common sense meaning of the words used.  It is not an ingenious construction.  The effect of those words used is not to be minimized.  
85. [85]
    The clear inference is that the statement was intended to convey, and did convey, that it would better for the complainant to speak now is even more easily drawn when it is considered that when speaking to the complainant’s father and brother earlier Senior Constable Smith had said:

“If there’s something you want to talk to us about now that we might find, now’s probably the better time to speak to us about those items rather than wait for us to find them, and then obviously trust goes out the window”.

86. [86]
    Although that statement was not made in the presence of the applicant, both statements were intended by Senior Constable Smith to convey, and they did convey, the same meaning: that it was better to speak now than later.
87. [87]
    The confessions which followed those statements are, by operation of s 10 of the Criminal Law Amendment Act 1894 deemed to have been induced by them unless the Crown, on the balance of probabilities,^[13] demonstrates the contrary.  In my opinion, the Crown has failed to demonstrate this, both in respect of the confessions made by the applicant at his house and later at the police station.
88. [88]
    The confessions made at home followed immediately upon the statements of inducement having been made, and, as I have already observed, in the absence of any warning that anything which he did say may be used as evidence against him in proceedings for contact sexual offences against children.  I accept the applicant’s evidence, particularly in light of his apparent, naivety and lack of sophistication, that he did not understand that anything he said about those matters, either would, or could, result in him being charged with criminal offences.
89. [89]
    Furthermore, I have not been satisfied that those statements ceased acting as an inducement upon him at the time he made further confessions to police in the later interview at the police station.  Notwithstanding that further warnings were given to him in which offences of both possession of child exploitation material and rape were identified, I accept that he felt that he did not have a choice as to whether to talk to them and that he thought that he would simply go straight back home after the interview.  I accept his evidence under cross-examination that he did not understand that he did not have to answer the questions of police notwithstanding that he had said “No” when asked by them if he had to answer them.  That response, and his true understanding of the situation, must be judged in all the circumstances.  Tellingly in that regard is his complete inability to explain in his own words his understanding of the warnings when asked by Senior Constable Smith to do so both at the time they were initially given at the commencement of the interview and also subsequently after the interview was recommenced following an interruption to change the discs.
90. [90]
    Whilst the applicant agreed in cross-examination that police had not promised to given him anything to speak to them, and particularly any mental health assistance or other help for himself or his siblings, that concession does not establish that no inducement was given or that any confessions made in the course of the interview at the police station were not induced by it.  The former issue is a question of fact to be determined upon a construction of the words used by police in all the circumstances, including those personal to the applicant, in which the confession was given.  The latter requires consideration of whether the prosecution has established that he did not continue to be overborne at the time at which the further confessions were made.  Relevant to the latter consideration is not only his concession in cross-examination that he was not given promises and that he understood that he did not have to answer the police questions at the time, but also his evidence in re-examination that when making those concessions he did not know if he was agreeing to matters put to him because he felt like he should.  He also said in re-examination that he thought at the time of the watch house interview that “getting help would come at a later date in time”.  That explanation suggests strongly that the prospect of help being provided, at some point, remained an operative consideration in his mind when speaking to police in circumstances in which he had made further inculpatory statements.
91. [91]
    Of course, part of the circumstances relevant to a consideration of whether he remained overborne when interviewed by the police at the police station is the fact of the earlier confessions already having been made at the house.  Those statements were induced from him and the interview at the police station followed on from those statement having earlier been made.  That is evident from the questioning at the police station commencing by reference back to what the applicant had told the police during the course of the search.

Conclusion

92. [92]
    The confessional statements made by the applicant all followed an inducement or inducements given by Senior Constable Smith when speaking with the applicant in the bedroom of his home when conducting the search of those premises.  All those confessional statements, including those made at the premises and those subsequently made in the recorded interview at the police station, were induced by Senior Constable Smith’s statements.  As a consequence, all of those confessional statements of the applicant are inadmissible upon his trial.