R v EOK[2022] QDCPR 61

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   The applicant EOK is charged on indictment with two counts of Attempted armed robbery in company, two counts of Wilful damage, and one count of Common assault. Each of the offences are alleged to have been committed on 14 August 2021 at [suburb] in the State of Queensland.
2. [2]
   Among the evidence intended to be relied upon by the prosecution at trial are firstly, statements made by the applicant to police when intercepted, detained, and arrested on 14 August 2021, which were recorded on police body worn camera, and secondly, statements made by the applicant to police during a video recorded interview at the police station later that same date.

Basis of the Application

The initial grounds of the application

3. [3]
   On 30 March 2022 the matter was listed for hearing pursuant to Section 590AA^[1] Criminal Code, to be heard in the Brisbane District Court on 28 June 2022.
4. [4]
   By way of application dated 21 June 2022^[2] the applicant seeks the exclusion of the recorded interview between police and the applicant on 14 August 2021. No application is made as concerns the earlier statements of the applicant captured on body worn camera footage.^[3]
5. [5]
   By way of the “Outline of Argument for the Applicant”, (“the applicant’s written submissions”) dated 25 May 2022, the applicant identified the following basis for the application,^[4] under the heading “Nature of Application”:

2.  The applicant submits that the EROI was tainted by police non-compliance with section 420 of the Police Powers and Responsibilities Act 2000 (Qld);

3.  It is submitted that the court should exercise its discretion to exclude the EROI as the admissions were improperly obtained, were involuntary, and further it would be unfair to the applicant to admit them into evidence against him.

6. [6]
   The applicant’s written submissions indicated reliance on the application on the Crown Statement of Facts and the transcript of the recorded interview conducted at the police station between the applicant and police. 
7. [7]
   The “Outline of Submissions on behalf of the Respondent (Crown)”, (“the respondent’s written submissions”) indicated^[5] the following by way of overview of the position of the respondent on the application:

   1. That it is submitted the admissions made in the interview were voluntarily made;
   2. That it is submitted that the Court should not exercise its discretion to exclude the interview pursuant to the unfairness discretion or the public policy discretion; and
   3. That it is submitted that the application to exclude the interview ought to be dismissed.
8. [8]
   The respondent’s written submissions indicated reliance by the Crown on the following material,^[6] further to that identified by the applicant:

   1. Video recording of the interview between the applicant and police on 14 August 2021, (being the video of the interview the subject of the application);
   2. Body worn camera footage of Senior Constable Matthew Van Vuuren and Constable Aisha Brook Sellers of 14 August 2021, when intercepting and arresting the applicant;^[7] 
   3. Statement of Detective Senior Constable Matthew Samuel Hogan dated 8 September 2021;
   4. Statement of Detective Senior Constable Tyson Brock dated 31 August 2021 and signed 3 September 2021;
   5. Statement of Senior Constable Matthew Van Vuuren of 21 September 2021;
   6. Statement of Constable Aisha Brook Sellers dated 9 September 2021;
   7. One page depicting two Photographs of a knife referred to in the statement of Aisha Brook Sellers;
   8. Transcript of a prior interview between the applicant and police^[8] on 11 May 2020; and
   9. Transcript of proceedings in the matter of The Queen v [the applicant], before his Honour Judge Jackson QC on 4 March 2021.

The revised position of the applicant at the hearing of 28 June 2022

9. [9]
   When the matter came to be heard on 28 June 2022 the applicant indicated that the scope of the application was more limited than as advanced in the applicant’s written submissions, previously provided. Firstly, it was indicated that the submission that the statements made by the applicant were not voluntary was not pursued.^[9] Secondly, it was indicated that the contention that the interview between the applicant and the police ought be excluded on grounds that it would be unfair to the applicant to utilise his statements to police against him was also not pursued.^[10] It was clarified that the only argument that the applicant sought to pursue on the application was that as a result of non-compliance by the police with section 420 of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”), the interview between the applicant and police ought to be excluded in the exercise of the public policy discretion.^[11]
10. [10]
    By way of further material relied upon on the application, the applicant tendered a document^[12] described as a “Memorandum of Understanding between the Commissioner of Police and the Chief Executive Officer of the Aboriginal and Torres Strait Islander Legal Service”.

The calling of witnesses

11. [11]
    The applicant did not initially seek the production of any witnesses to give evidence on the hearing.^[13]  At the commencement of the hearing on 28 June 2022, Counsel for the applicant identified^[14] that the parties had agreed that the matter could be “dealt with on the papers” and that there was “not going to be evidence called”.
12. [12]
    It was raised with Counsel that there were factual conclusions that each party, by their respective submissions, were inviting the court to make about the actions of the police witnesses, absent potentially relevant evidence from those witnesses.^[15]  Following further consideration, the parties advised that by agreement the police officers who conducted the interview with the applicant would be called to give evidence on the application.^[16] The matter was adjourned part-heard to a date to be determined, to facilitate that occurring.
13. [13]
    The matter came to be listed for continuation of the hearing on 12 August 2022.

The further revised position of the applicant

14. [14]
    Prior to the continuation of the hearing, by way of an “Addendum Outline of Argument for the Applicant” (“applicant’s further written submissions”) dated 11 August 2022, and filed with leave at the resumed hearing on 12 August 2022, the applicant sought to place the following matters before the Court:

1. The applicant and his legal representatives held a conference at Woodford Correctional Centre on 11^th August 2022. During this conference the applicant disclosed two pieces of information which are pertinent to the present application:
   1. The application had used methylamphetamine just prior to his arrest; and
   2. The applicant had not slept for several days before his arrest and was tired prior to participating in the EROI.

15. [15]
    The applicant’s further written submissions then referred to Section 423 PPRA – Questioning of intoxicated persons, and matters relating to non-compliance with the requirements of that section, as well as “non-compliance with the Anunga Rules”.
16. [16]
    In response to the matters raised in the applicant’s further written submissions, the respondent produced additional documentary evidence relied upon on the application – namely the detention log for the applicant for 14 August 2021 and the QPS person (custody) report for the applicant of the same date.^[17] 
17. [17]
    At the resumed hearing on 12 August 2022, Counsel for the applicant indicated that there were now additional grounds to the application – referring to there being alleged non-compliance with section 423 PPRA. It was confirmed that it was still the case that the voluntariness of the statements of the applicant was not in issue on the application.^[18] The applicant did however, contrary to the submission made at the hearing on the earlier occasion, indicate an intention to agitate that the applicant’s interview may be excluded in the exercise of the discretion on grounds of unfairness. The applicant’s position was then, in effect, (prior to the calling of evidence) that the culmination of the circumstances of the police non-compliance with the provisions of the PPRA, the Operations and Procedures Manual and the Anunga Rules, in the context of the applicant’s circumstances, justified the exercise of judicial discretion to exclude the interview on grounds of unfairness and/or public policy.^[19]
18. [18]
    The assertions attributed to the applicant contained at paragraph 1 of the applicant’s further written submissions were not established by any evidence before the Court prior to the calling of witnesses.^[20] The parties indicated that they had agreed that the applicant could determine whether he would give evidence of those matters on the hearing, at the conclusion of the evidence of the police witnesses.^[21]
19. [19]
    Each of the police officers involved in the interview of the applicant the subject of the application – Officer Matthew Hogan^[22] and Officer Tyson Brooks – were called to give evidence by the respondent and were cross-examined on behalf of the applicant. At the conclusion of their evidence, it was then indicated that the applicant would also give evidence on the application. That occurred, and the applicant was also cross-examined.

The ultimate position of the applicant

20. [20]
    In oral submissions at the conclusion of the applicant’s evidence, the position of the applicant was further refined. It was indicated that the applicant did not pursue a submission that the evidence ought to be excluded on grounds of unfairness to the applicant. Rather, the position of the applicant had returned to focus primarily on the alleged non-compliance by the police with legislative and procedural requirements, which it was said gave rise to a consideration of the exclusion of evidence pursuant to the public policy discretion.^[23] 
21. [21]
    It is with reference to that identified basis for the discretionary exclusion of the subject interview between the applicant and police that I come to consider the evidence that was adduced on the application.

The Evidence

Interaction between police and the applicant prior to the applicant being transported to the watch house

22. [22]
    Following a report to police of alleged offences at a home in [suburb], police commenced making enquiries. A short time later, police located the applicant, and two other individuals Mr I and Ms G - who collectively matched the descriptions of the offenders provided to police - in the vicinity of [suburb]. Interactions between police and the applicant, Mr I and Ms G were recorded on police body worn cameras.
23. [23]
    The camera footage captured by Officer Van Vuuren was played in the course of the hearing of the application.
24. [24]
    Among the police who attended the location where the applicant and his associates were intercepted and detained, were Officers Matthew Hogan and Tyson Brock. They arrived at the location at approximately 4:15pm. Neither officer had previously had any dealings with the applicant.^[24]
25. [25]
    Officer Brock described^[25] the applicant and his associates as being “very compliant, respectful, and courteous…they were interacting with one another…they were talking, and they were socialising. They appeared to comprehend what was happening.”. As concerns the applicant in particular, he appeared cognitive and was communicating articulately.
26. [26]
    During his interaction with police, the applicant made comments to the uniform police present that they, not the plain clothes officers, were “the real coppers”, and that the uniform police “do all the work and they [the plain clothes police] just take all the credit”. One of the police then commented to the applicant “You’ve played the game a bit then, mate” to which the applicant replied “yeah”.
27. [27]
    At 4:35pm Officer Hogan arrested the applicant and his associates, for their suspected involvement in the offending, and provided each of them with their cautions and rights. The cautions provided were as follows:

“You’re now under arrest for robbery…Now it’s important that you listen to this, so please pay attention, let me finish.

You have the right to remain silent. This means you don’t have to say anything, answer any question, or make any statement, unless you wish to do so.  Anything that you do say, statement you make, questions you a-, um answer, will be recorded and can later be used as evidence in court. You understand all that?...Yep, Okay.

You also have the right to telephone or speak to a friend or relative, to inform them where you are, and to arrange to attempt to arrange for them to be present during questioning.

And you have the right to telephone or speak to a lawyer of your choice, again to inform them where you are, and arrange or attempt to arrange for them to be present during questioning. If you’d like to telephone or speak to any of these people, questioning can be delayed for a reasonable time for that purpose.

Does everyone understand that?”

28. [28]
    To the enquiry made of the applicant, as to whether the applicant understood the cautions given, the applicant replied “yep”.
29. [29]
    Officer Hogan also enquired if anyone had any injuries or illnesses. The applicant indicated that he did not.
30. [30]
    When the applicant continued speaking and proceeded to divulge information to police, Officer Brock again sought to clarify that the applicant understood that he did not have to talk to the police.^[26] Officer Hogan also sought to clarify that the applicant was not feeling intimidated, given his location and the number of police around. The applicant replied, “I don’t feel intimidated, no way”.  Officer Hogan then again asked the applicant if he understood his rights and everything was okay, and the applicant again confirmed that he did.
31. [31]
    The body worn camera footage recorded the applicant making some general statements to police which may be understood to be admitting to his involvement in offending at a nearby house. The applicant asserted multiple times that he did the offence all by himself and the others (being Ms G and Mr I) were not involved, and had stayed outside. The applicant also indicated multiple times that he was able to show police where (in the nearby grass) he had thrown the knife that he had used in the offence, when he had seen police arrive. He provided a description of the knife. He told police he was not trying to waste their time but was trying to get it over and done with.
32. [32]
    Police located the knife in nearby grass a short time later.
33. [33]
    The statements of the applicant recorded on the body worn camera footage contain some limited details of the specifics of the offence. The applicant referred to having gone to [location] (being a suburb bordering [suburb]). He referred to having run into the house with a knife. The applicant stated that he had “a beef with some cunts in jail, who they’re, who they’re selling for, so fuck it, you know? Fuckin, um, well, fuckin politics are politics you know.” He admitted to punching “the fella, and the father and his son and then…I pulled the knife out and said I was gonna slice the [indistinct]…”. The applicant denied that any property was taken during the offending.

Interaction between police and the applicant at the watch house (other than the recorded interview)

34. [34]
    The respondent relied upon the contents of a detention log in relation to the applicant. No evidence was adduced from the officer^[27] who asked the questions set out in the record.
35. [35]
    The time of the log was said to be 5:29pm. The questions and answers within the log included (but were not limited to) the following:

Q: Do you have any illness or injury?

- No.

Q: Do you require any medication?

- No.

Q: Do you require any special dietary requirements?

- Yes, Halal.

Q: Are you addicted to or dependent on alcohol of drugs of any kind?

- Yes, grog and ice.

Q: Are you on a methadone, suboxone or subutex program?

- No.

Q: Have you consumed any alcohol in the past 24 hours?

- Yes, 3 short spirit bottles - .000.

Q: Have you taken any drugs of any kind (prescription or non-prescription) in the last 24 hours?

- No.

Q: Are you currently or have you been treated for a mental health problem?

- Yes, schizophrenia, bipolar – GP said over the last couple of weeks.

Q: Have you been treated for depression?

- Yes, 2 years.

Q: Have you ever attempted suicide or self-harm?

- No.

36. [36]
    The log included a certification at the bottom which read “I certify that I have been asked the questions about my health and the answers recorded are correct”. The electronic signature of the applicant then appeared on the log, as printed. While the applicant gave evidence at the hearing that he had not reviewed his answers when signing the tablet, he accepted that the log reflected the answers he had given on the day.^[28]
37. [37]
    No problems, issues or concerns with the applicant were otherwise logged during the period of his detention.^[29]
38. [38]
    In cross-examination at the hearing, Officer Hogan indicated that he did not recall having looked at the detention log, and did not believe that he had done so prior to commencing the interview with the applicant. He was at the crime scene at the time of the detention log being completed.^[30] Officer Hogan accepted that it would not have been particularly onerous for him to do so.^[31] It was not however something that was always done as a routine matter and, having spoken to the applicant at length at the scene, he did not have concerns for the applicant’s safety or welfare.^[32]
39. [39]
    In cross-examination the applicant confirmed that the .000 recorded on the detention log was to indicate that he had been subject of an alcohol test which returned a 0.00 result for alcohol in his system.^[33]
40. [40]
    Contrary to what the applicant had stated in response to the questions outlined in the detention log, the applicant gave evidence at the hearing that he had used “ice”, being methylamphetamine, on the day of the offence, by it being injected into his arm. He stated that he had not told the police (when answering the questions that appeared in the detention log) that he had consumed drugs because he was embarrassed and was trying to hide it from them.^[34]
41. [41]
    When asked how much methylamphetamine he had used, he said “three points…it’s like 3 grams”, but then agreed with his counsel that it was 0.3grams. He stated that at that time of the offence he had been using that amount every day and sometimes twice a day.^[35] On this occasion he had taken the 0.3g early in the morning but said he “was still in – in effect of it” at the time of being interviewed by the police.^[36]  In cross-examination he stated that he had been using methylamphetamine daily for about two years,^[37] although it was clarified in re-examination that he had only been out of custody for approximately five months prior to the date of 14 August 2021.^[38] He indicated that consumption of the drug would have the effect of making him confident, cocky, and talkative and stop him from sleeping. He accepted his drug use did not stop him from doing anything that he would normally do.^[39]
42. [42]
    Also, contrary to what the applicant had stated in response to the questions outlined in the detention log, the applicant gave evidence at the hearing that he had marks on both of his arms which were the result of acts of self-harm as a child. He also gave evidence that he had “track marks” from injecting methylamphetamine.^[40]
43. [43]
    As concerns his mental health, as referred to in the detention log, the applicant gave evidence at the hearing that he had been taken by his grandmother to Headspace and to the GP with symptoms of bad anger and mood swings. He was “supposed to” have received treatment but had not.^[41]
44. [44]
    When asked by his Counsel when he had last slept, he gave evidence that “it was like a week”.^[42]
45. [45]
    Officer Hogan gave evidence at the hearing to the effect that there was nothing about the applicant’s presentation which indicated to him the applicant was under the effect of drugs or alcohol.^[43]  Officer Brock also gave evidence that in his opinion the applicant had not appeared to be under the influence of alcohol or drugs or other intoxicating substance.^[44] Both officers gave evidence that the applicant had not appeared tired.^[45]
46. [46]
    Having watched and listened to the body worn camera footage and the recorded interview played in court, there was nothing about the applicant’s presentation, to the extent recorded on the footage, that was particularly suggestive of the applicant being intoxicated or sleep deprived, or that in my view supports a conclusion that the attending police, on the basis of the applicant’s presentation, ought to have discerned or even suspected, that the applicant may be intoxicated or sleep deprived.
47. [47]
    Officer Hogan and Officer Brock each accepted that they did not ask the applicant directly about whether he was intoxicated.^[46] Officer Hogan also accepted that it can be standard procedure to ask someone about that at the commencement of an interview, but that because of the time he had spent with the applicant and his observations of him it had seemed redundant.^[47] Officer Hogan stated in cross-examination^[48] that he did not see any track marks on the applicant’s arms, but also did not recall looking at the applicant’s arms. Officer Brock also gave evidence that he did not see any evidence of self-harm to the applicant’s wrist or forearms, or track marks.^[49]  It was accepted by both police that the applicant was not asked when he had last slept, prior to commencing the interview.
48. [48]
    Officer Brock accepted that there is a readily available pro forma that may be used at the commencement of interviews which will address questions such as next of kin, level of education, medication, injuries, and similar matters.^[50]

The interview itself

49. [49]
    At approximately 6:25pm on 14 August 2021 Officer Hogan conducted an interview with the applicant in an interview room at the Richlands Watch house. Officer Brock was present for the interview. The interview concluded at 7:13pm.
50. [50]
    At the commencement of the interview the applicant identified that he understood that he had been arrested earlier that afternoon between 4:30pm and 5:00pm.
51. [51]
    Officer Hogan again reminded the applicant of his rights:

Officer Hogan:  You have the right to remain silent.

Applicant: Mmhmm.

Officer Hogan: Means you don’t have to say anything, answer any of my questions or make any statements unless you wish to do so and anything that you do say will be recorded ah on this equipment over here –

Applicant: Cool.

Officer Hogan: And it can later be used in court as evidence –

Applicant: Yep.

Officer Hogan: Okay mate do you understand what all that means?

Applicant: Yes.

Officer Hogan: You also have the right to telephone or speak to a friend or relative to inform them of where you are and arrange or attempt to arrange for them to be present during questioning.

Applicant: Yep.

Officer Hogan: And you have the right to telephone or speak to a lawyer of your choice –

Applicant: Yes.

Officer Hogan:  - again to inform them of where you are and to arrange or attempt to arrange for them to be present during questioning.

Applicant: Alright.

Officer Hogan: And if you’d like to telephone or speak to any of these people, questioning can be delayed for a reasonable time for that purpose. Mate do you understood [sic] what all that meant?

Applicant: Yep.

52. [52]
    The applicant was then asked if there was anyone that he would like to telephone or speak to before continuing. He indicated that he wanted to speak to his grandmother to inform her of where he was. He confirmed that he was not wanting her to be present, only to let her know that he was safe.
53. [53]
    Before suspending the recording to facilitate that occurring, the following further question and answer took place.

Officer Hogan: Ah, just so we can kill two birds with one stone, if need be –

Applicant: Yep

Officer Hogan: - Mate you identify as Aboriginal?

Applicant: Yeah.

Officer Hogan: Yeah. Is there anyone from the Aboriginal community that you’d like to speak to, to have with you, or get some advice?

Applicant:  Nah.

Officer Hogan: No, okay, before we turn the recording on, just as we came in and as I was explaining the process to you, you mentioned something about Murri Watch?

Applicant: Yep.

Officer Hogan: Do you have a, an uncle or –

Applicant: Oh my, my auntie –

Officer Hogan:  - In, involved –

Applicant: - works in there, yeah.

Officer Hogan:  - involved at Murri Watch and sometimes they can, you mentioned, they –

Applicant: - Yeah they can they can –

Officer Hogan: - give people advice  -

Applicant: - Yeah advice –

Officer Hogan:  - or comfort or –

Applicant: Yeah, comfort just to help you –

Officer Hogan: Mate ah so you indicated wouldn’t mind doing that but then –

Applicant: Yep.

Officer Hogan: Changed your mind. Mate are you, you happy at the moment -

Applicant: Yep.

Officer Hogan: knowing you – you don’t want us to –

Applicant: -Nah

Officer Hogan:  If –

Applicant: Nope.

Officer Hogan: If you change your mind let me know alright –

Applicant: Yeah, yeah right –

Officer Brock: Please do

Applicant: I’ll tell youse yep.

54. [54]
    The interview was then suspended to allow the applicant to contact his grandmother, as requested by the applicant.
55. [55]
    When the recording was recommenced, it was outlined that the attempts to speak directly with the applicant’s grandmother had been unsuccessful, but a message had been left. Officer Hogan enquired whether the applicant wanted to delay the interview further or if he was happy to “box on for now”. The applicant replied “Nah, I’m right to box on for now. Just get it over and done with.”
56. [56]
    The applicant then gave an account to police of what occurred, implicating himself in the offending the subject of the indictment. The initial body of admissions traversed the following matters:

• How he travelled to the offence location;
• That he entered the house;
• That he produced a knife;
• That he abused the father and son in the house;
• That the occupants of the house were injured; and
• That he smashed items within the house.

57. [57]
    Officer Hogan then sought to again clarify that the applicant understood he did not need to answer any questions he was asked, before indicating that he wished to obtain further details of what occurred.^[51]
58. [58]
    The applicant continued to answer questions and disclose information, including relating to the following matters:

• That prior to the offence he had met up with Mr I (his cousin);
• The [street address of the offence location];
• That he had been to the offence location before; and
• That he went there because he was told to do so by friends.

59. [59]
    At that point, another police officer entered the interview room to advise that the applicant’s grandmother was on her way to the police station. Upon hearing this, the applicant queried why his grandmother was coming, and reiterated that he had only asked for her to be contacted and advised that he was okay, and he did not want her attending. The applicant referred to his grandmother having a sore back and not being permitted to drive far.^[52]
60. [60]
    The interview then continued. The applicant provided the following detailed information to police:

• As to what he intended to do when he arrived at the house, he said it was to “get” the person named Z, whom the applicant had been told was working for someone that the applicant did not like and had a long history of fighting with. The applicant stated that if he did not do it, something was going to happen to him and his girlfriend (Ms G). The applicant stated that the plan was that he was to walk in and start stabbing Z,^[53] adding “but who wants to go into a house and just stab someone and get nothing for it, you know what I mean?”. He indicated that was why he decided that he may as well rob the occupants of the house at the same time. The plan was to get some drugs.
• Ms G entered the house first and went to the bathroom. That was part of the plan to gain entry to the house, as Ms G knew the occupants. Originally Mr I remained outside the house as a lookout.
• When the applicant first entered the house he could not see Z, so he went to Z’s son’s room. The applicant told police that since he could not see Z he thought he “might as well just go in and bash the fuck out of his son and take his son and shit”. The son was playing video games. The applicant asked Z’s son if he was selling for a particular person, (whom he named). The son indicated he was. The applicant then “started just laying into him”, beating him in the face and in the back. While he was doing this the applicant demanded that he “give me all your shit now” – being “all his stuff, all the drugs he had”. The son responded that he did not have anything.
• At one stage the applicant tried unsuccessfully to take a PlayStation console, but it was connected to the television by cords.
• The son’s girlfriend then “came in the way” and jumped in front of her boyfriend, and the applicant accidentally punched her, when he was trying to hit her boyfriend.
• Z then came into the room. The applicant ripped Z by the hair, pulled him back and hit him a couple of times. He whacked him in the mouth. Both the applicant and Mr I bashed Z. The applicant said, “I’ll kill all you cunts right now”.
• Mr I had the knife at some stage and the applicant had the knife at some stage, in the house.
• The applicant at one point had the knife up against Z’s chest, and said to Z “I’ll slice you right now”. Mr I told him not to stab Z - that “it was not worth it”.  Mr I was also holding the applicant’s hand back. 
• Ms G came in and smashed a table and threw everything off the table.
• The applicant, Ms G and Mr I then left the house and ran through the bushes. The applicant took possession of the knife again.
• The applicant and his associates did not leave the house with any drugs or other property of the occupants. The applicant commented that if there were drugs stolen, he “would’ve been off my face by now, wouldn’t I”.
• The trio had tried unsuccessfully to get a taxi, before they were located by the police. 

61. [61]
    Toward the end of the interview police asked the applicant “where did you sleep last night?” The applicant replied, “with her at hers”, referring to Ms G. He indicated that the knife was from Ms G’s place.  In his evidence at the hearing the applicant suggested that by this answer he had meant he slept with his girlfriend but had not meant that he was in fact sleeping.^[54]
62. [62]
    Relevantly, the answers of the applicant during the interview, if accepted, established that when speaking to police earlier, as captured on the body worn camera footage, the applicant had been falsely seeking to distance Ms G and Mr I from having any involvement in the offending.

Other evidence relating to the police interaction with the applicant

63. [63]
    Officer Hogan had been a police officer for approximately 18 years at the relevant time.^[55] He believed he had received specialised training relating to offenders of aboriginal background. He had also “spent considerable time in aboriginal communities” – working in Doomadgee for an extended period, Burketown for a period, and shorter periods in Aurukun, Lockhart River, Pormpuraaw, and Kowanyama.^[56]
64. [64]
    Officer Hogan gave evidence that the applicant had appeared to him at the time of his apprehension to be of Aboriginal descent.^[57]
65. [65]
    He indicated his awareness of section 420 PPRA and also the Anunga Rules as concerns requirements to consider when interviewing a person whom an officer may believe or suspect to be Aboriginal.^[58]
66. [66]
    Officer Hogan’s evidence was to the effect that he had determined that section 420(3) of the PPRA applied such that compliance with section 420(2) was not required.^[59] Officer Hogan stated that he believed that because section 420(3) PPRA applied, he was not required to call a lawyer on the applicant’s behalf, but was able to allow the applicant to exercise his rights or waive them as he saw fit.^[60] He accepted in cross-examination that he had not expressly informed the applicant of the existence of the Aboriginal and Torres Strait Islander Legal Service (ATSILS), and he did not believe that he had made contact with ATSILS.^[61]
67. [67]
    Officer Hogan gave evidence that his interactions with and observations of the applicant prior to conducting the interview with the applicant were, in his opinion, sufficient to form an opinion about the applicant “and his ability to understand”.^[62] He concluded that the applicant “was in a position not at a disadvantage in the community”^[63] and if anything was at an advantage relative to people his age.^[64]
68. [68]
    Officer Hogan was asked in cross-examination what he understood the term “disadvantage” to mean, to which he responded ‘[i]t’s a fairly broad term. I’d say in this instance it comes back to an ability to understand one’s rights, understand the process that’s being undertaken, the consequences or what might flow from it, the – the disadvantage that can flow to language barriers, can flow to just being intimidated or the sense of being overwhelmed with the situation you’re in”. He accepted a proposition that the disadvantage in question was as concerns indigenous persons when compared to the rest of the population.^[65]
69. [69]
    Matters referred to by Officer Hogan included:

• That he observed the applicant to be “reasonably articulate” and that he “clearly spoke English”. He did not observe any other language barriers;^[66]
• That he was of the view that the applicant “fully understood what was going on around him”.^[67] During discussions with the applicant he did not note any particular disadvantage or concern with the applicant’s cognitive ability to understand his rights or make decisions as to how he wished to proceed.^[68] There was nothing which made him think that there was any restriction on the applicant fully understanding his rights and making his own decisions.^[69] The applicant appeared to understand his rights and the criminal justice system, and indicated his understanding when asked if he understood;^[70]
• The applicant’s “misplaced attempts at chivalry” when initially apprehended, to deliberately provide “an alternative version” and assume full responsibility for the offending,^[71] (contrary to other information);
• That the applicant referred to “going back to jail”, implying previous involvement with the Aboriginal and Torres Strait Islander legal service, and with electronic records of interview, watch-houses and the justice system.^[72] In cross-examination he indicated that he could not recall what searches he had conducted on the police systems but he was aware that the applicant was recorded, and recorded with a significant criminal history.^[73] He denied that he was suggesting that someone having been through the system before wiped the legislative protections the person otherwise had, but rather was indicating that coupled with other factors he had referred to, it indicated to him that the applicant understood his rights.^[74]

70. [70]
    In cross-examination, Officer Hogan indicated that the applicant had informed him that he was from Woodridge.^[75] He accepted that he had not made any enquiries about the applicant’s level of education.^[76] Nor had he made any enquiries about the applicant’s mental health,^[77] but he had not seen anything that gave him any concerns as to the applicant’s wellbeing on the day.^[78]  (His attention was not expressly drawn to his having asked of the applicant whether he had any illnesses, as recorded on the body worn camera footage.) He also accepted that he had not checked and did not know if ATSILS had in fact been contacted for the applicant on any previous occasion.^[79]
71. [71]
    As concerns the Anunga Rules, in cross-examination Officer Hogan stated that he had read them and was familiar with their requirements but could not recite them word for word.^[80] He gave evidence that he had done everything he could to make the applicant comfortable and feel at ease, including calling his grandmother and offering to contact Murri Watch, being things that the applicant had mentioned.^[81]
72. [72]
    Officer Hogan indicated in cross-examination that he was confident that he would have seen the Memorandum of Understanding between the Commissioner of Police and the Chief Executive Officer of the Aboriginal and Torres Strait Islander Legal Service” (Exhibit 1), but he could not say exactly when. He did not recall being referred to the document or having his attention specifically drawn to the document previously.^[82]
73. [73]
    Officer Brock indicated that he had been a police officer for over 12 years,^[83] and had experience working for 2 years in remote aboriginal and Torres strait islander communities.^[84] He identified that section 420 PPRA had application until it was identified or reasonably suspected that the person was not disadvantaged.^[85]  In response to questions asked in cross-examination, Officer Brock indicated that he believed that he would have at some stage, although he could not identify when, told the applicant about the existence of ATSILS, on the basis that he will “always explain about ATSILS”.^[86] However his evidence also seemed to indicate that he was unclear if it was ATSILS that had expressly been referred to, or only a lawyer more generally.^[87]
74. [74]
    Officer Brock’s evidence was to the effect that he did not consider the applicant was disadvantaged compared to the rest of the population.^[88] The observations made of the applicant by Officer Brock included the manner of communication and in particular that the applicant’s verbal responses were always calculated.^[89]
75. [75]
    While Officer Brock also referred to indications that the applicant had previous involvement with the criminal justice system, he did not accept that he was suggesting that an individual having previous exposure to the criminal justice system in and of itself meant that an individual’s rights faded away.^[90] Officer Brock accepted that further questions could have been asked of the applicant in the course of the interview to ensure his understanding, but stated that if he had have been of the opinion that there was any chance that the applicant was disadvantaged he would have said something and suggested that need occur.^[91]
76. [76]
    The applicant did not give evidence that he had not understood his legal rights in speaking to the police on the day of the interview. Nor did he give evidence of his decision to speak to police having been influenced by any particular matter, including those that form the basis of this application. The applicant accepted in cross-examination at the hearing that he had previously been interviewed by police and made admissions. He was referred to another occasion when he had been asked to explain his understanding of his right to remain silent. He did not specifically recall the conversation but accepted his right to silence was something that he understood.^[92] He gave evidence that he was brough up in Marsden in the Logan area and attended high school to grade 10, doing “all the normal subjects, basically”,^[93] although he stated he had receiving failing grades.^[94]

Legal Framework

Police Powers and Responsibilities Act 2000 (Qld)

77. [77]
    The provisions of the PPRA of relevance on the application include the following:

7  Compliance with Act by police officers

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

    …

10  Act does not affect court’s common law discretion to exclude evidence or stay criminal proceedings

This Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion or stay the proceeding in the interests of justice.

415  When does this part apply to a person

1. This part 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.

     …

420  Questioning of Aboriginal peoples and Torres Strait Islander peoples

1. This section applies if—

1. a police officer wants to question a relevant person; and

2. the police officer reasonably suspects the person is an adult Aboriginal person or Torres Strait Islander person.

(2)  Unless the police officer is aware that the person has arranged for a lawyer to be present during questioning, the police officer must—

1. inform the person that a representative of a legal aid organisation will be notified that the person is in custody for the offence; and

2. as soon as reasonably practicable, notify or attempt to notify a representative of the organisation.

(3)  Subsection (2) does not apply if, having regard to the person’s level of education and understanding, a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally.

4. The police officer must not question the person unless—

1. before questioning starts, the police officer has, if practicable, allowed the person to speak to the support person, if practicable, in circumstances in which the conversation will not be overheard; and

2. a support person is present while the person is being questioned.

5. Subsection (4) does not apply if the person has, by a written or electronically recorded waiver, expressly and voluntarily waived his or her right to have a support person present.

6. If the police officer considers the support person is unreasonably interfering with the questioning, the police officer may exclude the person from being present during questioning.

423  Questioning of intoxicated persons

1. This section applies if a police officer wants to question or to continue to question a relevant person who is apparently under the influence of liquor or a drug.

2. The police officer must delay the questioning until the police officer is reasonably satisfied the influence of the liquor or drug no longer affects the person’s ability to understand his or her rights and to decide whether or not to answer questions.

Anunga Rules

78. [78]
    The applicant also places reliance on aspects of the Anunga Rules^[95] as being guidelines designed to ensure Aboriginal and Torres Strait Islander suspects are fairly treated.^[96] The guidelines are not absolute rules, the departure from which will necessarily lead to statements made being excluded, but where police officers depart from the rules without reason, that will be relevant to a consideration of whether it would be unfair to admit the evidence.^[97]
79. [79]
    The rules are now incorporated within the Digital Electronic Recording of Interviews and Evidence Manual (“DERIE manual”).^[98] As the manual itself identifies the Police Powers and Responsibilities Act 2000 (Qld) and the Police Responsibilities Code also now expressly traverse some of the same considerations.

Consideration

The applicant not having slept

80. [80]
    The applicant identifies that the Anunga Rules provide that questioning of an indigenous person should not occur when the person is tired.
81. [81]
    The applicant’s further written submissions referred to the applicant having disclosed to his legal representatives that he had not slept for several days before his arrest. The applicant gave evidence at the hearing of not having slept for a week. When asked by police during the interview “where did you sleep last night?” the applicant had replied to the effect that he had slept with Ms G at her home. There is some difficulty reconciling the applicant’s explanation in his evidence at the hearing that he had meant that he had slept with Ms G, not that he was asleep, with the statements made to police, viewed in their proper context. The applicant’s statements about when he had last slept, and any inconsistencies within his accounts, was not a focus of cross-examination.
82. [82]
    The applicant gave evidence that he had not slept until the following morning after the interview, but then had slept for nearly a whole day. That was the extent of the evidence as to the applicant being (by inference) tired or any impact it may have had upon him and his participation in the interview.
83. [83]
    What is of primary relevance, further to the narrowed scope of the application, is to what extent it was or should have been evident to the police that the applicant was tired or sleep deprived.  I accept the evidence of the police officers that the applicant did not appear to them to be tired. Nor does the evidence disclose matters that support a conclusion that it ought to have been apparent, objectively, to the police that the applicant may be tired. The timing of the interview, in the early evening, is also of note. While it may be observed that the police could have enquired of the applicant as a matter of course, prior to interviewing him, when he had last slept, nothing is apparent in the applicant’s presentation as depicted on the contemporaneous recordings, or otherwise on the evidence, which should have given rise to a specific concern on the part of the police that the applicant was in any way sleep deprived or tired.
84. [84]
    I am not satisfied that it has been demonstrated on this basis that the evidence was unlawfully or improperly obtained, giving rise to the need to consider the exclusion of the interview pursuant to the exercise of the public policy discretion.

The applicant’s use of methylamphetamine on the day: Section 423 PPRA

85. [85]
    The applicant’s evidence that he had injected 0.3grams of methylamphetamine earlier on the day of the offence is in direct contradiction of the statements made by the applicant when he was at the watch-house as set out in the detention log. The applicant’s explanation for why he did not disclose his methylamphetamine use on the day to police – being that he was embarrassed and trying to hide it from police - is difficult to rationalise with his having during the same process, as set out in the same detention log, expressly told police he was addicted to or dependent on “ice”. It is also difficult to reconcile with his statements to police during the interview to the effect that if he had stolen drugs in the course of the attempted robbery, he would have been “off my face by now”. 
86. [86]
    The cross-examination of the complainant did not focus on challenging the applicant in relation to his conflicting statements as to whether he had consumed methylamphetamine, but rather sought to focus on the quantity claimed to have been consumed being a usual amount for the applicant to consume as part of his claimed habitual use, and clarifying the effect that such consumption may have had on the applicant, generally. In oral submissions the respondent highlighted that even if the truth were that the applicant had at some stage earlier in the day consumed methylamphetamine, it would be that he had consciously determined to give a false account to the officer on that specific issue^[99]- that is he was again demonstrating a capacity to be selective in how he responded to questions asked of him.
87. [87]
    It was not ultimately submitted on behalf of the applicant that, if it were the case that the applicant had consumed 0.3g of methylamphetamine earlier that day, that the ongoing effect of that consumption, such as it may have been, in fact impaired the applicant ability to understand his rights or decide whether or not to answer questions put to him, giving rise potentially to issues of voluntariness, or unfairness to the applicant, based on unreliability or otherwise. That is perhaps consistent with and reflected in the manner of questioning of the applicant.
88. [88]
    Again, what is of primary relevance, in light of the narrowed scope of the application, is to what extent it was, or ought to have been apparent, objectively, that the applicant was under the influence of a liquor or a drug. While it could be said that it may have been prudent for police to ask the applicant if he was under the influence of alcohol or drugs, before commencing to interview him, it is of note that the applicant had at that time already been asked by another police officer whether he had taken any drugs in the past 24 hours and had denied having done so. He had acknowledged that he had consumed some alcohol, but returned a nil BAC level upon being tested.
89. [89]
    I accept the evidence of the interviewing police that the applicant did not present as having indicia of being under the influence of drugs of liquor. 
90. [90]
    To the extent that the applicant, as per his evidence may have had “track marks” on his arms, which may have been able to be seen by the police, their evidence was that they had not noticed them. Having also had the opportunity to watch and listen to the body worn camera footage and the recorded interview, played in court during the hearing, there was nothing about the applicant’s presentation to the extent recorded on that footage, that was in my view particularly suggestive of the applicant being intoxicated, or that in my view supported a conclusion that Officers Hogan and Brock ought to have discerned, or even suspected, that the applicant may be under the influence of drugs or alcohol. I do not conclude that there was anything about the applicant’s presentation, otherwise disclosed on the evidence, which leads to the conclusion that it ought to have apparent to the police, objectively, that the applicant may be a person who was at the time under the influence of drugs or liquor, such that questioning was required to be delayed.
91. [91]
    Accordingly, I do not find that there was any contravention of section 423 PPRA.

Section 420 PPRA

92. [92]
    The applicant contends that the police did not comply with the requirements of section 420(2) PPRA^[100]. There is no submission made that there was non-compliance with sections 420(4) relating to the presence of support persons. 
93. [93]
    Both of the police officers involved in the interview of the applicant gave evidence at the hearing that they were aware of the existence of, and the intention or effect of, section 420 PPRA. Both officers had identified the applicant to be an aboriginal person.  Each of the police gave evidence to the effect that they had been of the view that the applicant was not at a disadvantage in comparison with members of the Australian community generally.
94. [94]
    The requirements of section 420(3) are displaced from application where, pursuant to section 420(3), “having regard to the person’s level of education and understanding, a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally”.
95. [95]
    I accept the evidence of Officers Hogan and Brock of their assessment of the applicant as being an opinion genuinely held by each of them, for the reasons they each attested to. I also accept the evidence of Officer Hogan, in reliance on section 420(3) that he had been of the understanding that he was not required to call a lawyer on the applicant’s behalf and was able to allow him to exercise his rights or waive them as the applicant saw fit.  If section 420(3) did apply, that would be correct.
96. [96]
    There remains a need however to consider the specific wording of section 420(3) in determining whether the requirements of section 420(2) were in fact displaced.
97. [97]
    The term “reasonably suspects” is defined^[101] to mean “suspect on grounds that are reasonable in the circumstances”.  There must exist some factual basis to reasonably ground the suspicion, but it is unnecessary that there exist proof of the fact reasonably suspected.^[102] The focus is the circumstances as they appear to be at the relevant time, rather than the circumstances as they actually are at that time.^[103]
98. [98]
    Section 420(3) also refers to the police officer “having regard to the person’s level of education and understanding”. I find that there was a basis on which the police could make their assessment of the applicant’s level of understanding in forming a reasonable suspicion that the applicant was a person who was not at a disadvantage in comparison with members of the Australian community generally. As the applicant identifies however, the police did not have any information about the applicant’s level of education. The reference to a person’s level of “education” must be understood to mean something separate and distinct from the person’s knowledge or understanding. While it may be that the circumstances as known did not cause the police to have any concern as to the applicant’s level of education, because of the level of understanding and communication proficiency the police assessed the applicant to demonstrate, it remains that no positive enquiry was made^[104], and there was an absence of information about the applicant’s level of education for the police to “have regard to”.
99. [99]
    Accordingly, the suspicion of the questioning police was not of the nature required by section 420(3), in order to negate the need for section 420(2) to be complied with. I accept that there was not full compliance with the requirements of section 420(2). 

Exercise of discretion

100. [100]
     Given the conclusion I have reached as concerns the applicant’s contentions about the conduct of the police in this case, it is only the exclusion of the interview pursuant to the public policy discretion, arising from the non-compliance with Section 420 PPRA that need be further considered.
101. [101]
     In Bunning v Cross (1977/78) 141 CLR 54^[105]  Stephen J and Aikin J, referred to the observations of Barwick CJ in R v Ireland (1970) 126 CLR 321 at 335, and affirmed the legal position in Australia in relation to unlawfully obtained evidence, in the following terms:

“Whenever such unlawfulness or unfairness appears, the Judge had a discretion to reject the evidence. He 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, 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.”

….

“What Ireland involves is no simple question of ensuring fairness to an accused, but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.”

102. [102]
     In Ridgeway v The Queen (1995) 184 CLR 19^[106] Mason CJ, Deane and Dawson JJ stated as follows:

"At least since Bunning v Cross, it has been 'the settled law in this country' that a trial judge has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police. That discretion is distinct from the discretion to exclude evidence of a confessional statement on the grounds that its reception would be unfair to the accused. The discretion extends to the exclusion of both 'real' (or non-confessional) evidence and confessional evidence. As Barwick CJ pointed out in R v Ireland, in a judgment with which the other four members of the Court agreed, the rationale of the discretion is that convictions obtained by means of unlawful conduct 'may be obtained at too high a price'. In its exercise, a trial judge must engage in a balancing process to resolve 'the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law'. The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of 'high public policy' relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty."

103. [103]
     Considerations of relevance to the undertaking of that balancing exercise will vary depending upon the circumstances of the case.^[107] Accepting the exercise of the discretion ought not be approached with reference to any finite or arbitrary list of criteria, and that no one factor will itself be determinative, relevant considerations will often include the nature of the unlawfulness, the nature of the infringed legal requirements and the ease with which they could have been complied, the cogency of the evidence and whether the unlawfulness impacts that cogency, and the nature of the offences charged.
104. [104]
     This is not in my view a case where the police have been shown to have acted in flagrant disregard of the law. Officer Hogan, and as may also be relevant, Officer Brock gave evidence that they were aware of the requirements of section 420(2) applying unless they reasonable suspected the applicant was a person not at a disadvantage in comparison with members of the Australian community generally. Their evidence, which I accept, was consistent with their being conscious of whether the applicant, a 19-year-old aboriginal man, was a person whom they reasonable suspected was not at a disadvantage in comparison with members of the community. They had formed a view as to the level of understanding of the applicant, determined with reference to a number of circumstances. There were, I find, adequate grounds for that reasonable suspicion to be formed. The issue which arises is that one of the matters which the police did not expressly enquire about, and therefore have regard to, was the applicant’s level of education.
105. [105]
     While it was accepted that further questions of the applicant relating to his level of education could have been asked with little difficulty, it appears that did not occur in the present case in the context of the assessment that the police had otherwise made, having regard to other matters, of the applicant’s degree of understanding and lack of disadvantage. While there was then an oversight on the part of the questioning police, it was not a course adopted in an attempt to circumvent the prescribed legislative safeguards. The police were mindful of the intended purpose of the provision, and believed they were acting appropriately, but it remains that they were not fully compliant with the legislative requirements.
106. [106]
     It is not clear on the evidence that had the police asked further questions about the applicant’s level of education, that the responses that it may be anticipated would have been given by the applicant would have altered the assessment of the police as to the applicant’s level of understanding, such that they would not have retained the reasonable suspicion that the applicant was not at a disadvantage in comparison with members of the Australian community generally. However – even proceeding on the basis that the consequence of the police conduct here was that the applicant having indicated that he did not wish to delay questioning for a legal representative to be contacted, that the police had not then nonetheless made contact with a legal aid representative on behalf of the applicant, and informed the applicant of that having occurred - the police conduct did not have any apparent bearing on the cogency of the statements made by the applicant in the course of the interview.
107. [107]
     From viewing and listening to the body worn camera footage and the formal interview with the applicant, there is nothing that raised concern with the reliability of the applicant’s statements. He was selective at times in how he represented what occurred and the degree of detail he provided; for example in his initial attempts to minimise the involvement of his associates in the offending, the circumstances of which were later clarified. An amount of the detail provided by the applicant was given by way of detailed narrative, in relation to which the police then asked further clarifying questions. No issues with the manner of questioning or interaction between the police and the applicant are raised. The applicant expressly confirmed prior to the interview that he was not intimidated, including by the presence and proximity of a number of police. No apparent issue of gratuitous concurrence is evidenced. Further, the applicant does not submit that there are matters that would otherwise have led the court to exclude the statements of the applicant on grounds of unfairness, due to their unreliability. For completeness I confirm that my view would remain unchanged, even having regard to the evidence of the applicant at the hearing relating to his having not slept, and/or of his having consumed methylamphetamine earlier that morning.
108. [108]
     The applicant did not give evidence on the hearing of the application to suggest that he did not understand his rights, and in particular that he did not understand that he did not have to answer the questions asked of him. Throughout his dealings with police, the applicant indicated a positive desire to speak to police about the offending, and not delay matters. The applicant did not give evidence of his decision to speak to police having been influenced by any particular matter giving rise to this application. The applicant referred to prior dealings with police and indicated some knowledge about police processes, as well as an understanding of and a level of comfort with, what was occurring. He appeared to be capable of exercising choice and acting on that choice in a way consistent with what he perceived to be his needs and best interests, including in speaking to, and responding to the questioning of, police. The applicant declined to have a legal representative attend. He opted to have his grandmother contacted to be informed of his whereabouts, but expressly indicated he did not wish to have her attend, including when another police officer then mistakenly requested that she attend as a support person. The applicant had at one point prior to the interview himself raised with police that he may wish to contact the agency Murri Watch, of which he was aware and had some family association, but then changed his mind and decided not to do so before proceeding with the interview.
109. [109]
     The offences with which the applicant is charged include serious offences of Attempted armed robbery in company to which the applicant is liable to a potential maximum penalty of 14 years imprisonment. There are serious aspects to the circumstances of the offending as alleged – including that the offending incurred in a residential home and in company with other offenders, the applicant used a knife, and the applicant used actual violence and threatened further violence. The conduct is certainly not at the lower end of the spectrum of offending, or more specifically of the nature of attempted armed robbery, that may come before the courts.
110. [110]
     The statements of the applicant to police in the formal interview constitute admissions to his involvement in the offending, the intention behind his involvement, and what occurred during the offending. It is plainly highly relevant evidence. As outlined above, on this application the applicant has not sought the exclusion of the statements made by the applicant to police prior to being transported to the watch house which are captured on police body-worn camera footage. I do not consider the extent of those earlier statements, if admitted, to materially reduce the significant probative value of the account given by the applicant in the course of the formal interview.^[108] The account given by the applicant in the formal interview was much more detailed and also sought to clarify and/or correct some of the more general representations that the applicant had made to police earlier, in particular in relation to his being the only person involved in the offending.
111. [111]
     While the court should of course be mindful of giving curial approval to conduct of police that falls short of prescribed legal requirements, in the circumstances of this case, the factors in favour of admission greatly outweigh the limited prospect of the dismissal of this application being seen as giving curial approval or encouragement to unlawful conduct by police.
112. [112]
     In the circumstances of this case, I have determined on balance that the exercise of the discretion ought to be exercised in favour of admitting the evidence.
113. [113]
     Further, even if I were to proceed on the basis that the police ought to have made positive enquiries going toward establishing whether the applicant was tired, and were to then also consider that additional aspect of the interview having been improperly obtained, (in conjunction with the non-compliance with section 420 PPRA), in determining whether the interview ought to be excluded in the exercise of discretion, for the reasons identified I would not have come to any different conclusion.  I would not conclude that the evidence ought to be excluded.

Order

114. [114]
     The application for the exclusion of the police interview of the applicant of 14 August 2021 is refused.