R v Norman[2007] QSC 323

SUPREME COURT OF QUEENSLAND

1. LYONS J: The applicant is charged with the murder of Robert John Shelley on 9 September 2006 at Goondiwindi in the State of Queensland. On 4 June 2007 the applicant made an application pursuant to s 590AA of the Criminal Code 1899 that:

(a) the record of interview conducted between police and the applicant on 10 September 2006 not be admitted into evidence; and

(b)the "walkthrough", or re-enactment interview, conducted between the police and the applicant on 11 September 2006 not be admitted into evidence.

The factual background

2. The applicant was in a de facto relationship with the deceased for some years. Both were heavy drinkers and were domestically violent towards each other. On Saturday 9 September 2006, the applicant and the deceased had been drinking together at the Queenslander Hotel in Goondiwindi. The deceased returned home before the applicant. When the applicant returned home from the hotel at around 8.00 pm, she and the deceased became involved in an argument in the lounge room of their home at Calandoon Street, Goondiwindi.
3. The Crown allege that in the course of the argument the applicant struck the deceased with a small vegetable-style knife, once in the neck. This single blow then perforated the carotid artery which led to a very quick death. The forensic pathologist, Dr Olumbe, states that the force required would have been at the lowest mild and at the highest moderate. The applicant tried to render assistance to the deceased, called for help and the ambulance and police arrived very quickly. The deceased, however, died from the injury within a very short space of time. The applicant was arrested at 9.00 pm at the scene for the unlawful killing of the deceased and was subsequently detained at the Goondiwindi police station.
4. At approximately 11.00 pm that evening, police applied for an extension of the eight hour detention period allowed under the Police Powers and Responsibilities Act 2000 from Magistrate Cridland by telephone. That application was subsequently granted and an extension of eight hours was granted. This meant that the original period which would have ended at 5.00 am on Sunday 10 September was extended until 1.00 pm on Sunday 10 September 2006.
5. At approximately 8.40 am on Sunday 10 September 2006, a record of interview was conducted with the applicant and at 11.10 am she was formally charged with the murder of Robert John Shelley. The extension of detention expired at 1.00 pm on Sunday 10 September and no application was made for a further extension. The applicant was again kept in the Goondiwindi watch house overnight and at 12.25 pm on the following day, 11 September; police conducted a "walkthrough" of the residence she had lived in with the deceased. This was accompanied by questioning by the police.
6. At 1.55 pm police left Goondiwindi police station with the applicant to transport her to her court appearance in Warwick. However the matter was mentioned in the Magistrates Court in her absence whilst she was en route to Warwick and the applicant did not actually appear before the magistrate until Tuesday morning 12 September.
7. The two issues to be determined relate to the admissibility of the record of interview on 10 September 2006 and the further interview on 11 September 2006. The applicant contends that they should both be excluded on the basis of the unfairness discretion and the public policy discretion.
8. In relation to the first interview the applicant states that she was interviewed more than eight hours after her arrest and that as the application to extend the period in detention was not lawfully or properly made, the record of interview of 10 September should be excluded. Furthermore, some of the questions should also be excluded on the grounds of unfairness.
9. In relation to the second interview the applicant states that she spent an extensive period in police custody before being taken before a court. It would appear that it took almost two days for her to be taken before a court after she was charged with the offence and she was not brought before a court as soon as practicable. The applicant submits that she was therefore unlawfully in detention. On the basis of this unlawful detention the applicant submits that she was not in lawful custody at the time of the interview and it should also be excluded. In particular she submits that the "walkthrough" was in fact a second record of interview and that the conduct of the "walkthrough" and the method of interviewing were both so irregular that the evidence should be excluded.

The evening of 9 September 2006

10. At the hearing of the application on 12 June 2007, a recording of an earlier unrelated interview was played as were the police audio tapes from the station, the Record of Interview and the "walkthrough" video. Detective Peachy gave evidence in relation to the oral application for an extension of the detention period that he made late on the evening of 9 September 2006. The detective indicated that the application had originally been typed by his superior, Detective Hildred and that he completed the application and then made the oral application by phone to the magistrate who was in Brisbane. In particular, he read out to the magistrate the form that he had completed. The detective agreed that he had not spoken to the accused but had indicated on the form that she had been advised as he had been told by Hildred that she had been told they had to get the period extended. The detective indicated that he did not advise her that she had the right to appear at the hearing before the magistrate and he did not give her a copy of the application. The detective indicated that he did not recall if anyone else gave her a copy of the application.
11. At the initial hearing the detective did not have access to a copy of the application but at the resumed hearing the detective was able to refer to the application for extension which was signed by him on 11 September but made orally on 9 September. The detective indicated that the document contained three statements that were correct at the time he signed the document but that those statements would not have been correct when he contacted the magistrate. In particular, the form stated that that the applicant had asked to telephone a relative friend or lawyer, that she had spoken to that person and that the application was agreed to. Those statements would not have been correct at the time he phoned the magistrate. The detective indicated that he updated the form so that at the time he signed it the information was correct but that the form had a different content when he read it to the magistrate. The detective stated that it is clear that the form was updated because he had included on the form the period of 1.31 hours which was the period during which she had been interviewed on the morning of 10 September. At the time the detective phoned the magistrate, the applicant had not been interviewed at all.
12. The detective advised that the application was granted by Magistrate Cridland as was a further application which was also made by telephone for a forensic procedure order. The detective indicated that he did not speak to the applicant until after he had spoken to the magistrate but when he spoke to her he advised her of her right to remain silent, her right to contact a solicitor or friend and that the tape that was activated when he returned to the police station at 11.40 pm on the evening of 9 September confirms this. The detective indicated that he was not aware of the full procedure or the applicant's rights in relation to the extension period. He indicated that he was guided by both his superior and the magistrate to whom he had directed the application. The detective indicated that he believed that he had complied with the procedures set out in the operating procedures manual.
13. The detective also indicated that he confirmed with the applicant that she was an Aboriginal. He also indicated that he advised the applicant that they had obtained an extension of the detention order and that the magistrate had given consent for the forensic procedure. The detective indicated that the applicant asked him to get in touch with Tony Turnbull, from Aboriginal Legal Aid but that this was after the phone call to the magistrate.
14. Detective Peachy advised that he had warned the applicant and told her of her rights because they were about to carry out some forensic procedures and that whilst the warnings were given, they did not make any attempt to interview the applicant on the evening due to her level of intoxication. Dr Massel subsequently attended and took swabs and clothing from the applicant.
15. Detective Hildred and Constable Baldock also gave evidence in relation to applicant's detention. In particular both confirmed that the applicant was intoxicated on the evening of the murder. Detective Hildred in particular indicated that when he got her out of the vehicle at the police station the applicant's eyes were bloodshot, she was unsteady on her feet, she had wet herself and had a lot of blood on her clothes. When he told her that he was arresting her for the unlawful killing of the deceased "she didn't respond she just stared". Furthermore, when he asked her if she wanted anyone called she did not reply and there was no conversation. The detective indicated that he also at this point told her that they would be applying for a lengthy period of extension but that this was not on the tape. He cannot explain the reason why it is not. He believes that either the tape malfunctioned or it was taped over when Detective Peachy subsequently arrived at the station.
16. The detective also indicated that he did not ask the applicant whether she wished to be heard on the application for the extension and furthermore he was not aware that she could be heard on the application. Detective Hildred indicated that the police do not have in their custody a copy of the application as he believed it was subsequently faxed to the magistrate.
17. Magistrate Cridland gave evidence at the resumed hearing and indicated that he had been contacted by phone while he was in Brisbane at a music performance. He advised he had taken some notes of the conversation he had with Detective Peachy and this indicated the name of the deceased, the person who had been arrested, the fact she was intoxicated. The magistrate also indicated that there was a discussion of Tony Turnbull from Aboriginal Legal Aid having been contacted so he was aware the applicant was Aboriginal and he believed as a result of the phone conversation that there was no objection to the period of detention being extended. The magistrate indicated that on applications for extension he often speaks to the person in custody but on this occasion given the level of intoxication he did not consider that was appropriate.
18. The magistrate indicated that he had several phone calls about the case over the course of the weekend and there is a record of him signing a forensic procedure order on the Sunday afternoon but he does not recall a second phone call on the evening of 9 September.

The interview on 10 September 2006

19. Detective Peachy indicated that when he commenced duty at approximately 7.00 am the next morning Constable Baldock indicated to him that the applicant wished to speak to him. The detective stated that they had attempted to contact Tony Turnbull but were unable to reach him but he was able to contact Brisbane Aboriginal Legal Aid and was directed to speak to Dan Haberman in Warwick who indicated that he would get to Goondiwindi around lunchtime. The detective indicated that he advised the applicant of this but she said that she did not want to wait until then and asked if her son, Terry Politis, could be present. She indicated she wanted to be interviewed. The detective stated he contacted Politis, asked him to be a support person and gave him a brochure setting out this role.
20. He allowed the applicant and her son to speak for about ten or fifteen minutes and at 8.37 an1 he and Detective Hildred conducted a record of interview with the applicant. Her son was present as a support person. The detective gave evidence that he considered that he asked questions clearly and objectively during the interview and that he did not ask leading questions or cross-examine the applicant. The detective confirmed that during the interview the applicant gave a demonstration of how she believed she used the knife and that later on in the interview he had described it back to her in terms of a backwards and forwards motion. The applicant was then formally charged at 11.10 am.

The "walkthrough" on Monday, 11 September 2006

21. Detective Peachy indicated that they had originally planned to do a walkthrough on the Sunday afternoon but that as the forensic team had not finished their investigations this could not occur. Detective Peachy stated he had contacted the Clerk of the Magistrates Court on either Sunday afternoon or Monday morning and was advised that they would have to get the applicant over to Warwick before 4.00 pm in Warwick on the Monday afternoon. The detective indicated that he believed their duty was to get the applicant brought before the magistrate as soon as was practicable. Due to staffing issues and the delay with the walkthrough the transfer was delayed until the afternoon of Monday 11 September 2006. The detective indicated that he knew the magistrate would be sitting in Warwick from 9.00 am Monday.
22. The walkthrough commenced at approximately 12.15 pm and finished at approximately 12.55 pm. The detective indicated that the applicant's other son Mark Norman was the support person during this "walkthrough" however he had not been advised of his duties as a support person because he believed that the previous support person Terry, would be in attendance. The detective stated that no detention warrant extension was sought after the original extension expired at 1.00 pm on Sunday 10 September because once the applicant was charged he did not have to extend the detention period. The detective also indicated that he believed he could question the applicant further after her arrest. The detective confirmed that further questions were asked in the "walkthrough" because by then they had interviewed other witnesses and they were asking the applicant to clarify information that they had obtained from others. This information related particularly to her handbag, money and issues about whether she "rolled" the deceased.
23. The detective indicated that he was fully aware that he was not allowed to cross­ examine or badger the applicant during any interviews. The detective also indicated that they did ask further questions in relation to the knife and that in particular he used the word "hit" and Detective Hildred used the word "strike".
24. Magistrate Cridland gave evidence that he was sitting in Warwick from 9.00 am Monday doing a criminal call-over and was expecting to see the applicant that morning. The bench charge sheet in relation to the applicant shows that on the afternoon of Monday 12 September the applicant's case was mentioned before him. The records show that Mr Haberman the solicitor appeared as did the police prosecutor but that the applicant was still "en-route from Goondiwindi" and accordingly the applicant was remanded in custody to appear before him the next day. The magistrate indicated that it was likely that the applicant had not arrived before Mr Haberman had to leave. The magistrate indicated he had continued to sit until late Monday afternoon but that it was not until Tuesday morning that the applicant appeared before him.

The 10 September Record of Interview

25. The applicant does not contend that the statements she made to the police in the two interviews were involuntary or that she was particularly disadvantaged because she was an Aboriginal person.
26. The applicant submits however that the application for extension of the period was invalid because she was not advised of her right to be present at the application for the extension or given a copy of the application. In particular the applicant submits that neither the Police Powers and Responsibilities Act 2000 (the Act) nor the Operating Procedure Manual (OPM) have been complied with.
27. Section 405 of the Act provides:

"405 Application for extension of detention period

1. A police officer may apply for an order extending the detention period before the period ends.
2. The application must be made to--

   (a)  a magistrate; or

   (b)  a justice of the peace (magistrates court); or

(c)  if there is no magistrate or justice of the peace (magistrates court) available - another justice of the  peace other than a justice of the peace (commissioner for declarations).

3. However, if the total questioning period since the detention began will, if extended, be more than 12 hours, the application must be made to a magistrate.
4. When making the application, the police officer must give to the magistrate or justice the information about any time out the police officer reasonably anticipates will be necessary.
5. The person or the person's lawyer may make submissions to the magistrate or justice about the application, but not submissions that unduly delay the consideration of the application.
6. If the application is made before the detention period ends, the detention of the person does not end, unless the magistrate or justice refuses to extend the detention period."

28. Regulation 44 provides:

"44 Detention period extension application

1. An application by a police officer for the extension of a detention period must be made in a way that allows the relevant person or the person's lawyer to make submissions about the application.

Example for subsection (1) --
If the application is faxed to a magistrate, the relevant person may speak to the magistrate by telephone.

2. Before the application is made, the police officer must--

(a) tell the relevant person or the person's lawyer of the application; and

(b)give the person a copy of the application; and

(c)ask the person or the person's lawyer if he or she—

1. agrees to the application or wants to oppose it; and
2. wants to make submissions or say anything to the justice or magistrate hearing the application.

(3)The application must state the following--

1. the applicant's name, rank, registered number and station;
2. the following information about the person to whom the application relates—

(i)the person's name, age and address;

(ii)whether the person is in custody under the Corrective Services Act 2000 or the Juvenile Justice Act 1992 for an  offence that has not been decided or under a sentence for a term of imprisonment or, for a child, a detention order;

(iii)whether the person is an Aborigine, a Torres Strait Islander, a child, or a person with impaired capacity;             

(iv)if the person is a child-whether a parent of the child has been advised of the child's detention;             

3. whether, since the questioning or detention started, the person has asked  to telephone or speak to a relative, friend or lawyer and has since spoken to a relative, friend, lawyer or support person;
4. whether, since the questioning or detention started, the person has asked  to telephone or speak to a relative, friend or lawyer and has since spoken to a relative, friend, lawyer or support person;
5. when the detention period started, how long the person has been questioned, and what delays to questioning have happened;
6. the offence to which the questioning or investigation relates and information and evidence about the nature and seriousness of the offence;
7. information or evidence supporting a reasonable suspicion the relevant person has committed the offence mentioned in the application;
8. what investigations have taken place;
9. why further detention of the person is necessary;
10. the time sought for time out, the purpose of the time out, and the period of time sought for questioning.

(4)The applicant must tell the justice or magistrate whether or not the relevant person or the person's lawyer wants to make submissions or say anything to the justice or magistrate."

29. The applicant also submits that appropriate instruction was not given to the support person in contravention of s 427 of the Act and reg 44A. Section 427 provides:

 "427 Application of div 5

1. This division applies if a police officer reasonably considers

(a)a support person present during questioning of a relevant person is unable to properly perform the role of a support person; and

(b)in the particular circumstances, it would be in the interests of the relevant   person to exclude the person and arrange for another support person to be present during questioning.

2. This division is in addition to, and does not limit, division 4."

The "walkthrough" on 11 September 2006

30. The applicant submits that she was required to be taken before a court as soon as reasonably practicable pursuant to s 393(1) of the Act. The applicant states however that because she was held for a further 46 hours after she was charged, this detention was unlawful and there was no further power to question her. In particular the applicant states that as there was no extension of her detention after 1.00 pm on 10 September then she was no longer in lawful custody after that time and there was no power to detain her let alone question her. The applicant also submits that neither Detective Peachy nor Detective Hildred followed any specific guidelines referred to in any of the Operating Procedures Manual in relation to the further interview they conducted over 24 hours after the applicant had been charged.
31. The applicant states that whilst the detectives referred to the second occasion on 11 September as a "walkthrough", they were for all practical purposes conducting a further record of interview. In particular, she was cautioned and she had a support person present. However rather than simply responding to her account which was apparently the purpose of the walkthrough, many questions were asked which were not simply responsive to what she had previously said. In particular new issues were raised in relation to her handbag, what other witnesses had told the police and what the pathologist's findings were.
32. The applicant also submits that she was also subjected to extensive questioning about matters she had already been repeatedly questioned on and that this amounted to interrogation. In particular, the applicant submits her responses that "she could not remember" were brushed aside and were followed up with subtle low pressure questioning.

The discretionary exclusion of admissions

33. The onus of satisfying a judge that evidence should be subjected to discretionary exclusion is on the accused with the standard being the balance of probabilities.^[1] The two grounds that the applicant is relying on are the unfairness discretion and the public policy discretion. The purpose of the unfairness discretion is to:^[2]

"... safeguard a person from the unfairness of using his confession in evidence against him at his trial. The relevant unfairness of using his confession is not so much in "the use made by the police of their position in relation to the accused" ... but in the admission into evidence against an accused of a confession obtained by improper or illegal means".

This is the classic statement of the unfairness discretion as set out in R v Swaffield; Pavic v The Queen.^[3]

34. The public policy discretion was set out in Bunning v Cross^[4] where the court held that the considerations affecting the reception of evidence obtained in contravention of the requirements of law depended in particular as to whether the unlawful conduct had resulted from a mistake or whether it had resulted from deliberate disregard of the law.
35. As Brennan J said in Duke v The Queen:^[5]

"The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case."

36. In this particular case I am satisfied that on the evening of 9 September 2006 there was sufficient evidence that the applicant was intoxicated. I accept the evidence of all three police officers at the hearing that they were satisfied that this had occurred. In particular, there is uncontroversial evidence that the applicant had been drinking at the Queenslander Hotel for many hours and the evidence of the "walkthrough" shows she had poured herself more wine on her return home. There is also evidence that when Detective Hildred tried to speak to the applicant on the evening she was non-responsive and was not engaging in any conversation. The audio tape recorded around 11.40 pm on 9 September is also consistent with the applicant having a level of intoxication.
37. I am satisfied that when the magistrate was contacted the applicant was not advised of her right to be present at the application for the extension and neither was she given the opportunity to have a solicitor present. Whilst an attempt may have been made to contact Aboriginal Legal Aid given Tony Turnbull's name was mentioned to the magistrate, it is clear that he had not in fact been spoken to and he did not consent to the extension. The detective had been previously involved with the applicant on another matter and Tony Turnbull had been involved on that occasion. I accept that the applicant did not specifically mention Tony Turnbull's name to the detective until after the magistrate was contacted.
38. It is also quite clear that it was by then after 11 o'clock at night; there was no magistrate in Goondiwindi and that the magistrate had to be contacted by phone, where he was at an event where he could not receive a fax; the applicant was not given a copy of the application and neither was she advised of her rights in relation to the application. There is no evidence that the applicant was advised of the need to obtain the extension until after the magistrate was in fact contacted.
39. I am not satisfied that the magistrate was deliberately misled given he was not faxed a copy of the application dated and signed on 11 September until Monday 11 September. I accept that the boxes were ticked at that time by the detective such that they showed the position as at the date it was signed. It was not the correct way to complete the form but I accept that was how it was in fact done.
40. I am not satisfied therefore that the form showing the ticked information was filled out in that way prior to the oral application to the magistrate. The evidence shows that the detective made the oral application based on the form and that he indicated to the magistrate the nature of the offence, the background circumstances, the fact Tony Turnbull was involved, that the applicant was intoxicated and that there was no one was objecting to the extension. I am not satisfied that the evidence shows that Detective Peachey actually told the magistrate in positive terms that he had contacted Tony Turnbull and that he did not object to the extension.
41. I am satisfied however that the application for the extension period was not properly made in accordance with the Act and that s 44 of the Responsibilities Code (Schedule 10 of the Police Powers and Responsibilities Regulation 2000) was not complied with.
42. However, whilst I am satisfied that whilst there were irregularities in relation to the extension, I am not satisfied that this resulted in unfairness to the applicant. In particular, even though irregularly obtained the extension ensured that the applicant was not interviewed whilst she was affected by alcohol; it allowed her to get some rest; and in particular it was aimed at ensuring that the solicitor was present at the time she was interviewed. It would appear from the evidence that the original intention on the part of the police was to interview her on Sunday when her solicitor Mr Haberman arrived from Warwick around lunchtime.
43. I accept the evidence of Detective Peachy that he did not wish to interview the applicant due to her intoxication and the fact that a solicitor was not present. I also accept his evidence that he gave the applicant warnings and advised her of her rights because a forensic procedure was about to occur. His conduct in that regard was entirely appropriate. I do not consider that because she was able to understand a caution that this meant she was capable of being interviewed.
44. I do not consider that there were sufficient irregularities in the obtaining of the extension such that they amounted to essential unfairness.
45. In relation to whether the public policy discretion should be exercised in relation to the interview of 10 September, I am satisfied that in essence the impropriety occurred through a lack of understanding by the two officers in relation to the rights of the applicant. Having considered the conduct of the police officers on the evening, I am satisfied that in other respects the officers were considerate of her rights on that evening.
46. The interview that was conducted on the morning of 10 September was clearly conducted at the request of the applicant and she had her son present. The applicant also understood the questions asked of her and in fact made statements to the police that were in her interest. I do not consider that the police were overbearing and I am also satisfied that having been previously interviewed by police in relation to another matter the applicant was well aware of her rights. Accordingly, in relation to the first interview whilst there has been some conduct which indicates that the evidence has been unlawfully or improperly obtained, it was not deliberate unlawful conduct and appears to have arisen from a misunderstanding of the obligations imposed on the police officers rather than as a result of any deliberate attempt to avoid the obligations which the investigating officers had. It was not a case of deliberate cutting of corners to make the police officers' task easier.
47. I am satisfied that the decision of R v Barnett^[6] is analogous. In that case the order for the extension of the detention period was not properly made and was a nullity however Dutney J did not exclude the evidence obtained on the basis that there was no attempt to obtain an unfair or improper advantage of Mr Barnett. In the present case I am similarly satisfied that the conduct of the police was not unreasonable as the applicant had not been in custody being questioned for a long period of time. In fact the applicant had not been questioned in any significant way prior to the application for the extension being sought and had only been in custody for about two hours.
48. Accordingly, I would allow the record of interview obtained on IO September 2006 into evidence.
49. However I do consider that the use of the words "hit", "strike" or "struck" is a distortion of the action motioned by the applicant in the record of interview. Given that the record of interview is of such poor quality, the motion cannot be clearly seen and the words used by the officers assume particular importance and must therefore be accurate. The words "hit", "strike" or "struck" at pages 23, 25, 26, 55, 56 and 62 should therefore be excluded from the record of interview.

The "walkthrough" on 12 September 2006

50. In relation to the second interview or "walkthrough" it is clear that the police were under an obligation pursuant to s 393(1) of the Act to bring the applicant before a court as soon as reasonably practicable after charging. On the facts it would appear that they did not attempt to do so until 2.00 pm on Monday afternoon when they left Goondiwindi en route to Warwick. It would also appear that the applicant did not in fact appear in court until after 9.00 am on Tuesday 12 September. It is conceded by the Crown that the applicant would have been taken before a court as soon as reasonably practicable if she had been taken to the Magistrates Court at Warwick on 11 September at 9.00 am.
51. I accept that on the evidence the applicant may herself have felt the need to participate in the "walkthrough" given the fact she indicated that the whole thing didn't seem real to her. I accept that the applicant was well aware of her legal rights and had one of her sons present as a support person. I accept that the applicant had also spoken to her lawyer on the day before she participated in the second interview but that the second interview was originally planned for Sunday rather than Monday.
52. One of the reasons why the applicant was not conveyed promptly to Warwick was no doubt due to staffing issues as both detectives indicated in their evidence. The overwhelming reason why the applicant was not conveyed to Warwick promptly however was the desire of the police to conduct the second interview. The inescapable conclusion is that the applicant was detained in Goondiwindi so that the forensic officers could finish their work and so that the applicant could then participate in a second interview at her residence prior to being removed to Warwick.
53. I am satisfied that on Monday morning a decision was made to keep the applicant in Goondiwindi for further questioning rather than to convey her promptly to Warwick to appear before the magistrate.
54. Section 417 of the Act provides that nothing prevents a person who is being questioned as a suspect in relation to an indictable offence from making a statement or answering questions relating to the matter for which they have been charged. In particular the section provides that the police officer may question the person to clarify any ambiguity as to what was previously said by the person or to put new evidence of the offence to the person and invite the person to make a statement.
55. However, preserving the liberty of the subject is a cornerstone of the common law. In Williams v R^[7] it was held:

"The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. The issue in this case is the extent of the power of the police to detain in their custody for questioning a person who has been lawfully arrested."

56. Section 552 of the Criminal Code also specifically provides that:

    "It is the duty of a person who has arrested another upon a charge of an offence to take the person forthwith before a justice to be dealt with according to law."

57. In Williams^[8] it was held that there was nothing improper in police asking a suspect questions whether or not he is in custody but that if the suspect has been arrested and the inquiries are not completed before it is practicable to bring the suspect before a justice, then it is the inquiries which must be delayed and not the bringing of the person before the justice.
58. In the circumstances of the current case it is clear that the applicant did not appear before the magistrate in Warwick until almost 48 hours had elapsed from the time she had been charged. The applicant was required to be brought before the magistrate promptly on Monday. The magistrate had in fact been expecting the applicant to appear with her solicitor on the morning of 11 September but due to the delay in getting the applicant to Warwick it would appear that she did not arrive in Warwick until 4.10 pm Monday afternoon.
59. I would concur with the comments of Dutney J in R v Previte^[9] that there is a public interest in requiring the police to always act properly with their dealings with the courts.
60. As Dearden DCJ outlined in the decision of R v Read^[10] there were really two bases upon which he could exclude the statement of the defendant, firstly on the basis that the reception of the statement would be unfair to the defendant and secondly on the basis that statements unlawfully obtained should be excluded on public policy grounds. As the High Court stated in Foster v R:^[11]

"The focus of the two discretions is, however, different. In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on 'large matters of public policy' and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case.

61. In the current case it is on the second basis that the second interview is sought to be excluded. In Bunning v Cross^[12] the High Court considered the competing public requirements namely on the one hand the need to bring to conviction those who commit criminal offences and on the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Stephen J and Aickin J in a joint judgment stated:^[13]

"Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

62. In all the circumstances therefore I consider that there are strong public policy considerations in excluding the second interview. This is because there are strong public policy considerations in requiring investigating police to comply with their legislative obligations. In particular in the decision of Lawrie v Muir^[14] Lord Cooper said:

"From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict-(a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high­ handed interference, and the common sanction is an action for damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods."

63. The protections afforded to citizens by both the Code and the Act are to be vigilantly maintained and I agree with the submission of Counsel for the applicant that the provisions in the Act represent the current considered balance between the rights of the state and the rights of the individual. A delay of almost 48 hours before the applicant was brought before a court is to be condemned. If such a delay is excused in the circumstances of this case it may provide an inducement for police to proceed by irregular methods.
64. I would therefore exclude the interview on 11 September 2006 in the exercise of the discretion on the grounds of public policy.
65. Furthermore if the entire interview had not been excluded on public policy grounds, I would have excluded large portions of the interview on the grounds of unfairness given the continued questioning by police when the applicant clearly stated she did not remember what had occurred. In particular the subtle pressuring by police to enter into continued supposition about the use of the knife borders on gratuitous concurrence as referred to by Atkinson J in R v D. ^[15]