R v Andrews[2011] QSC 168

SUPREME COURT OF QUEENSLAND

1. Shaun Ross Andrews is charged with one count of murder and one count of attempted murder. The offences allegedly occurred on 3 December 2008. The deceased was Joelean Watson, the applicant’s former de facto partner. The complainant in count 2 is Makayla Andrew, who is the daughter of the deceased and the applicant. She was 2 years old at the time of the alleged offences.

2. The deceased died as a result of multiple stab wounds.

3. This is an application brought pursuant to s 590AA of the Criminal Code. The prosecution wish to lead evidence of confessional statements said to have been made by Mr Andrews at various times to police officers and to his mother and sister. Mr Andrews objects to their admission into evidence.

4. The relevant statements were allegedly made in several conversations that took place at various times.               The conversations can be categorised as follows –

1. the initial confession – made to a Constable Melanie Dove at the counter of the police station on 3 December 2008;

2. the police confessions - to Constable Morris and other police at the station on 4 and 5 December 2008;

3. the prison confessions – recorded during non-contact visits by relatives on 12 and 21 December 2008.

The Statement to Constable Dove

5. Shortly after 7.30pm on 3 December 2008, the applicant attended the Gladstone Police Station with Makayla. The applicant spoke with Constable Dove who made the following record of the conversation about 30 minutes after it occurred –

“Q:Hi, can I help you?

A:I’ve done something, I need to talk to someone.  Can we go somewhere to talk?

Q:Tell me what you have done?

A:I’ve done something big, so you might as well handcuff me now (and at that point starts to cry)

Q:You need to tell me what you have done, so I know what to do and I can help you.

A:See this little girl here.  I killed her mother.”

6. Video film evidence suggests that the accused was present at the front desk for about one minute. Under cross examination at committal Constable Dove said that the accused was “hesitant to give me any information”^[1], that she had to repeat herself “at least twice” with her encouragement “How can I help you, why are you here”.^[2] Constable Dove accepted that when the accused told her he had done something she had a suspicion he was referring to a criminal offence although she said that she “had no idea what he was about to tell me”.^[3]

7. The grounds for objection are that the statements to Constable Dove were not voluntarily made as, at the time they were made, Mr Andrews was operating under an inducement. Section 10 of the Criminal Law Amendment Act 1894 is said to require their rejection.

8. Section 10 Criminal Law Amendment Act 1894 provides:

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

9. If there has been a threat or promise prior to any confession then the onus is on the Crown to show that the confession has not been induced by the threat or promise and whilst the question is decided on the balance of probabilities the onus is a heavy one.

10. The applicant’s submission is that while there was no conscious overbearing on the part of Constable Dove, there was persistent importunity in circumstances where the applicant was distressed and hesitant. Those circumstances had not been removed at the time the confessional statement was made. Further the submission was that the words “You need to tell me what you have done, so I know what to do and I can help you” consisted of a promise within the meaning of s 10, hence deeming what followed as having been induced thereby and so inadmissible unless the contrary be shown.

11. I was referred to the observations of the Court in R v Plotzki [1972] Qd R 379 that “when the words of a person in authority may be considered as holding out an inducement or are such as could reasonably be considered to do so, the Court will not attempt by fine analysis or the resolution of nice questions of construction, to minimise the effect of such words”. However the problem here is the converse of that in Plotzki. The defence submissions, with respect, attempt to overstate the effect of the words used by the constable.

12. There are two difficulties with the applicant’s submissions. First, I cannot accept that an offer to “help” someone who voluntarily comes to the counter of a police station is in any sense a “promise” within the meaning of the legislation. The word as used in the legislation carries the connotation of “hope of advantage” as Gleeson CJ said in Tofilau v The Queen (2007) 231 CLR 396.^[4]

“A confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused either by fear of prejudice or hope of advantage, exercised or held out by a person in authority.  That particular well established form of involuntariness was described by Dixon J as ‘the classical ground for the rejection of confessions and [that which] looms largest in a consideration of a subject’.”

13. I cannot see that there is any ‘hope of advantage’ from a polite enquiry, albeit repeated, as to whether an officer can offer any assistance.

14. Secondly, I cannot accept that even if the words could be so construed that what was then said by the accused was materially induced thereby. All the surrounding circumstances seem to me to be against that proposition. The voluntary coming to the station, the bringing of the daughter to the station, the apparent intention to confess and the willingness to repeat the statement, or one like it, later (as will be seen) all suggest that the constable’s words were all but irrelevant to the accused.

15. The applicant referred to the obligations imposed on police officers by Chapter 15 Part 3 of the Police Powers & Responsibilities Act 2000 (Qld).  They are not relevant here. The relevant obligations that the Act imposes only arise where an officer is dealing with a person “for the purpose of being questioned about his… involvement in the commission of an indictable offence”: s 415. At the relevant time Constable Dove was unaware of the potential offence with which she was dealing.

16. Nor is there any question of unfairness requiring a consideration of the reliability of the evidence and the propriety of the police investigation: cf. R v Batchelor [2003] QCA 246.

The Police Confessions

17. Immediately after the statements were made to Constable Dove that I have set out above she arranged for a formal interview to take place with more senior officers. These were recorded. They form the second category of confessional statements. In the meantime a knife was discovered in the applicant’s trouser pocket. I was informed that the prosecution case is that the knife had on it the DNA of the deceased.

18. In the course of the conversations that followed the applicant gave a detailed account of having stabbed the deceased a number of times after they had had an argument at his home. The applicant told police that he had provided Constable Dove with the weapon. The applicant also told police that the he had planned “to get rid of” himself and his daughter and to that end had rigged a pipe from the exhaust to the car and that the car was still under his house. He told the police that he could not go through with that deed.

19. The police later found the car rigged as the applicant had said and where he had said it would be. They also found the deceased at the applicant’s home with multiple stab wounds.

20. There were two interviews in the course of the evening – one commencing at about 7.45pm and one at 1.40am – and a further interview at 7.40 the next morning.

21. It was submitted that the statements made to the police follow from the initial involuntary confession (made to Constable Dove) – they are said to be “derivative confessions”. In those circumstances it was submitted “the Court should consider whether the circumstances which made the first confession involuntary; either because they still existed, in fact, at the time of the derivative confession or because the involuntary making of the first confession had the effect on the mind of the accused that he/she did not truly have a free choice to speak or be silent” (Dr K Mellifont, “Fruit of the Poisonous Tree: Evidence derived from illegally or improperly obtained evidence” (2010) at p118.)

22. As I am against the initial premise it is not necessary to consider this ground further.

23. A second objection is that the police failed to comply with the obligations imposed on them by the provisions of the Police Powers and Responsibilities Act 2000 (“the Act”), the statements were therefore illegally obtained and in the exercise of a discretion under the Bunning v Cross^[5] principles it would not be in the interests of justice to admit the statements.  The applicant pointed to s 130 Evidence Act 1977 which provides –

“Nothing in the Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”

24. The applicant’s complaint is that the provisions of s 418 of the Act were not complied with. That section provides:

“418 Right to communicate with friend, relative or lawyer

(1) Before a police officer starts to question a relevant person for an indictable offence, the police officer must inform the person he or she may—

(a) telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; and

(b) telephone or speak to a lawyer of the person’s choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.

(2) The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person mentioned in subsection (1).

(3) If the person arranges for someone to be present, the police officer must delay the questioning for a reasonable time to allow the other person to arrive.

(4) What is a reasonable time to delay questioning to allow a friend, relative or lawyer to arrive at the place of questioning will depend on the particular circumstances, including, for example—

(a) how far the person has to travel to the place; and

(b) when the person indicated he or she would arrive at the place.

(5) What is a reasonable time to delay questioning to allow the relevant person to speak to a friend, relative or lawyer will depend on the particular circumstances, including, for example, the number and complexity of the matters under investigation.

(6) Unless special circumstances exist, a delay of more than 2 hours may be unreasonable.”

25. At the outset a Constable McClusky issued cautions to the applicant in accordance with the Act. The applicant indicated that he understood the right to remain silent and indicated that he did not wish to speak with a friend, relative or lawyer. Detectives Morris and Columbus then commenced interviewing the applicant. Detective Morris issued the cautions again. The applicant again indicated that he understood the warnings and said “No, I’ll speak to youse anyway” and “I came up here on my own accord.”^[6] However the following exchange occurred:

“Q:Is there anyone you wish to contact?

A:I got no family

Q:Okay, but is there any support person that you’d like to have here with you?

A:I got no one

Q:Okay um, is it a choice that you don’t want to have anyone or just if there was someone you would call them or?

A:I got no one and I don’t want them to be up here

Q:No worries.  Are you happy to be here by yourself at the moment?

A:Unless I can get a solicitor here, but it’s, I’m not gonna lie, I’ll tell youse [indistinct]

Q:Alright.  Well that’s a choice for you mate, I’m, it’s up to you, if you’re yeah as you said you’ve come up here to tell us something, mate did you want to tell us what, what you want to tell us?  It’s up to you.

A:I killed my girlfriend” (emphasis added)^[7]

26. I should mention that the only objection argued at this stage related to the grounds I have mentioned – there was plainly other inadmissible material in the interview which presumably will be edited in due course.

27. The evidence of the detectives at committal was that the applicant was in an upset state, crying and distressed at this time.

28. It is common ground that there was no impediment to arranging for a solicitor’s attendance relatively quickly.

29. The applicant’s response to the questioning ought to have brought home to the officers that he was not happy to be there on his own and that he wanted a solicitor to be present. The officers’ obligation upon that indication was to immediately suspend questioning and give the applicant the chance to arrange for a solicitor to be present: s 418(2) of the Act. That the applicant wanted a lawyer seems evident given not only the answer I have set out but a response later in the evening when he asked how he could get his hands on a lawyer.^[8] Despite that no arrangements were made that evening for a lawyer to attend.

30. The effect of the continued questioning was to elicit confessions that were unlawfully obtained. Illegally obtained evidence is not, by reason of that alone, rendered inadmissible. McMurdo P in R v Batchelor [2003] QCA 246 put the test in this way, in discussing evidence obtained in breach of the Act:

“The Act does not provide consequences for non-compliance with these sections [ss 249 and 254] but one purpose of the Act is ‘to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under [the] Act’ [s 4(e)]. Comfortingly, it is Parliament's intention that police officers should comply with the Act [s 5(1)]; contravention by police officers may result in disciplinary charges or more serious consequences [s 5(2)]. Non-compliance with those sections means the evidence was unlawfully obtained. The tape-recorded confessions should only have been admitted if their admission was justified after a consideration of the competing issues of, on the one hand, the need for the citizen to be protected from illegal actions from the authorities and, on the other, the interest of the State to secure evidence relevant to the commission of serious crime (Bunning v Cross), for convictions based on evidence obtained by unlawful acts may be obtained at too high a price: R v Ireland.”^[9]

31. I turn then to that balancing exercise.

32. First, I observe that the courts are “cautious” in admitting into evidence a confession where its reliability is in doubt: R v Swaffield (1998) 192 CLR 159 at 161 per Brennan CJ.  There is no reason here to be concerned about reliability – the evidence at the scene, the knife in the applicant’s pocket, and the DNA upon it confirmed all that the applicant had told the police.

33. Secondly, the breach of the law here was not, I think, flagrant nor did the detective’s conduct demonstrate a persistent defiance of the law. The detective said only one more thing – namely that it was up to the applicant if he wanted to say anything – before there was a repeat of the earlier confession. The later response suggesting a wish to have a solicitor present that I have mentioned is not particularly relevant in this context as it followed rather than preceded a detailed confession.

34. Thirdly, the applicant seemed to have a good appreciation of his rights from the positive responses that he gave to Detective Morris. It is not irrelevant that Constable McCluskey explained his rights to the applicant at the outset of the interview that commenced at or about 7.45,^[10] only minutes before Detective Morris again did so, and the applicant disavowed any wish to speak to anyone. That being so, it is not apparent that the applicant would have behaved any differently had a solicitor been arranged.  His desire to confess seemed to be strong. 

35. Allied with that point is the fact that there are no circumstances suggesting that, but for the conduct of the police officers, the statements would not have been made or not in the form that they were made. The applicant was not intoxicated. He was distressed but he plainly understood the questioning that took place. He could not but have appreciated that the case against him, independently of any confession, was strong.

36. Fourthly the investigation was into a homicide - the most serious offence in the Criminal Code. As McMurdo P pointed out in Batchelor the State has an interest in securing evidence relevant to such serious crimes.  The evidence is obviously strongly probative of the prosecution case.

37. All these factors favour the admission of the evidence.

38. The principal ground of unfairness argued was that the applicant was in a fragile mental state, evidenced by the distress spoken of by the officers and by the fact that the applicant was placed on a suicide watch when admitted to the watch house. This it was submitted goes to the reliability of the statements made by the applicant particularly in relation to his statements about his mental state at the relevant time.

39. It is true, as the applicant contends, that the reliability of the statements against interest is of considerable significance when judging their admissibility. In R v Williamson [2010] QCA 277, Chesterman JA said:

“In cases concerning confessions or admissions, the chief focus is on the fairness of using the admissions against their maker.  See Tofilau v The Queen (2007) 231 CLR 396 at 432 per Gummow and Hayne JJ.  In R v Swaffield (1998) 192 CLR 159, Toohey, Gaudron and Gummow JJ observed that unreliability was a ‘touchstone’ of unfairness.  Where voluntariness is not in issue, the admissibility of confessional evidence is to be decided by reference to the reliability of the evidence and the rights of the accused.  Their Honours noted (197):

‘Unreliability is an important aspect of the unfairness discretion but it is not exclusive.  As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused.  Those rights include procedural rights.  There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.’”

40. The bulk of the statements that were made concerned the events that had occurred. However, various statements touched on the applicant’s mental state. The applicant told the officers that his “brain snapped”,^[11] that he and the deceased had separated the day before and that she had come around to their home and “I guess just seeing her with another guy today and I just, we got talking, got in an argument and just snapped and then the next thing I’m spewing my guts up”,^[12] when asked when he formed an intention to do what he had done he replied “I didn’t form, it just , it just happened, it just snapped… I didn’t plan it or anything like that…”^[13] He told the officers that he had previously seen a psychiatrist, had depression, had attempted suicide on three previous occasions^[14] and thought of self harming every day.^[15] He claimed to have had treatment for depression since he was aged 16 years (the applicant being aged 25 years at the time of the interview).  A reference to suffering from depression was repeated later in the interview^[16] and that he was seeing a psychiatrist.  The applicant said late in the first interview “wasn’t meant to be that way, I was just gonna do it to myself, not to anyone else”.^[17] A little later the applicant said “Should have got help when I could”^[18] although it is not entirely clear from the transcript whether he is then referring to help for himself or help for his daughter.

41. There is no apparent reason why these statements should be seen as not reliable. To some extent they are exculpatory in that the applicant denied forming an intent, had not planned the deed, meant to hurt only himself and just snapped. It was not submitted that the references to his prior medical history were inaccurate. Distress, and understandable distress, of its own cannot, in my view, justify a finding that the statements are inherently unreliable.

42. While the Court will be astute to ensure that police officers comply with the law the various factors here in my view strongly favour the admission of the evidence in this earlier interview despite the breach of the law.

43. For reasons that are unclear the police recommenced the questioning at 1.40 am. This is of concern for a number of reasons. First, it was extremely late and it is apparent that the applicant had not had any significant rest to that time. Secondly, at the conclusion of the earlier interview the applicant had said that he felt ill. He repeated that complaint at the start of the second interview and as well said he felt light headed.^[19]  Thirdly, the earlier questioning had established that the applicant complained of suffering from a depressive condition, requiring counselling and of being suicidal. On his account he had put steps in place to attempt suicide not long before coming to the police station. He said he had not been taking medication for the depressive condition recently.  All these matters would lead any reasonable person to be concerned as to the mental state of the applicant and whether he was in a fit state to be questioned. Section 422 of the Act specifically requires the interrogating officer to consider whether the applicant was a person with “impaired capacity”.  The applicant’s complaints regarding his fragile mental state are far more cogent in relation to this interview than the earlier one.

44. Fourth, there was no urgency. No one was in any danger. If the police harboured concerns, as well they might have, that the deceased may have been still alive at 7.40 pm, they had no such concerns at 1.40 am.^[20] 

45. Finally, the applicant had by this time twice asked for a lawyer, albeit not with any apparent strong interest, and none had been arranged.

46. All these factors are against the admission of any statements against interest contained in the later interview.

47. There are factors going the other way – the seriousness of the crime being investigated, the importance of bringing criminals to justice, and the fact that the police officers did again go through the applicant’s rights pointing out to him that he was under no obligation to talk to the officers.^[21] The applicant responded positively on two occasions that he understood that he had the right to remain silent.^[22] He was again advised that he could have a friend or lawyer present – the transcript does not record his answer but the officer continued as if the applicant had responded that he had no objection.^[23]

48. The significance of this compliant attitude is somewhat lessened given the various factors that I have mentioned that raise a doubt as to the capacity that the applicant had to protect his procedural rights.

49. There are admissions or statements that are potentially useful to the prosecution in that later interview going to the applicant’s state of mind. At one point the applicant says that he is “responsible” but the transcript does not make the context clear.^[24] He says too that what he had done was “not good” and that he was not trying to “justify” what he had done.^[25] He appears to explain that the argument held that day leading up to the stabbing was based on the relationship breaking up over the previous six months or so.^[26] The applicant is asked how he feels and apparently responds that he was “angry” when he saw the deceased with a man sometime earlier at a shop.^[27] He is asked his mood when she arrived at his home but no answer is yet transcribed.  He is asked about events that followed and mention is made of words used by the deceased in the course, apparently, of an argument, suggestive of a clear recall. The interview seems to end shortly after 2.13 am.

50. I have serious concerns about the reliability of statements made by the accused going to his state of mind at and before the stabbing of the deceased (which took place some eight or nine hours before, at about 5 pm, on the applicant’s account) when made in the circumstances that I have described.

51. As well, the twice repeated interest in obtaining a lawyer pushes the failure to make arrangements closer to the level of a flagrant and persistent disregard of the law than the earlier breach.

52. On balance I am persuaded that I should exercise my discretion to exclude the statements made in the later interview.

53. The interrogation was resumed at 7.43 am – later the same morning - and concluded at 8.49 am. Again the applicant was reminded of his rights as the Act requires and again he responded positively demonstrating that he understood those rights. Again statements were made by the applicant as to the events that had transpired and going to his state of mind.

54. There are several features of this interview that distinguish it from the immediately preceding one. First the applicant has had the opportunity for some rest. There is evidence that he had not slept particularly well (indeed he had had only a few hours at most in which to sleep) but his position is better than at 1.40 am. Secondly, he says that he is feeling better. Thirdly, he is given the opportunity to request a lawyer and apparently declines – he has had a reasonable opportunity to reflect on his position and decide what attitude he will take by this stage. In fact he is reminded of his rights on two occasions in the course of the interview. All these factors favour reception of the evidence as do those mentioned earlier concerning the State’s interest in gathering evidence concerning serious crime.

55. However there is a further factor here that I think is relevant. It goes to the applicant’s submissions concerning derivative confessions. A factor potentially influencing the applicant at 7.43 am is the admissions already made in the course of the 1.40 am interview. Indeed the morning interview was partially conducted as if it was a continuation of the conversation from that earlier time. There is the chance that the later statements against interest would not have been obtained – or not in the same form – if correct procedures had been followed the night before.

56. In my view the competing factors are very finely balanced. The onus is on the applicant to demonstrate that the discretion should be exercised so that the evidence ought to be excluded. While the last point I have mentioned is a serious one by the morning the applicant had had time to reflect. His responses appear, to the extent they are recorded, coherent. They are also generally consistent.

57. On balance I am not persuaded that the interests of justice require the exclusion of the evidence in this last interview.

The Prison Confessions

58. Further statements against interests were made during conversations between the applicant and visitors to the prison on 12 December 2008 and 21 December 2008 during what are termed non contact visits. The visitors were his mother and sister. The conversations were recorded by a Corrective Services Officer by means of an audio recording device and the tapes passed on to the police.

59. Objection is taken that both the recordings and the publishing of the audio tapes to police officers were unlawful, and that being so a discretion arises to exclude the evidence which ought to be exercised in the applicant’s favour on the Bunning v Cross^[28] principles.^[29]

60. Prima facie the submission that the evidence was unlawfully obtained seems right. Section 43 of the Invasion of Privacy Act 1971 provides in part:

“43 Prohibition on use of listening devices

(1) A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.”

61. Section 44(1) of that Act provides relevantly: “A person is guilty of an offence against this Act if the person communicates or publishes to any other person a private conversation, or a report of, or of the substance, meaning or purport of, a private conversation, that has come to his or her knowledge as a result, direct or indirect, of the use of a listening device used in contravention of section 43…”

62. There are various qualifications to these prohibitions but none are relevant here.

63. A statement of Corrective Services Officer, Daniel Frewen-Lord, refers to the procedures used to monitor non-contact visits at the Capricornia Correctional Centre. Audio recordings are made. The recordings are monitored by Corrective Services Officers and if there is information relating to a criminal offence, tapes are forwarded to police. Mr Frewen-Lord states that this process is in accordance with s 52 Corrective Services Act.

64. Section 52 of the Corrective Services Act 2006 does not provide the necessary authority to breach the provisions of the Invasion of Privacy Act. It provides for the recording and monitoring of “prisoner communication” in the following terms:

“(1) The chief executive may record or monitor a prisoner communication.

…..

(3) The parties to each prisoner communication, other than a communication mentioned in subsection (2), must be told the communication may be recorded and monitored.

….

(5) If a prisoner communication recorded or monitored under this section reveals information about the commission of an offence, the chief executive must give the information to the relevant law enforcement agency.

(6) In this section—

prisoner communication means a phone call, an electronic communication or a video link communication made to or from a prisoner.”

65. As Ms Sharpe, counsel for the applicant, submitted the communications between the applicant and his visitors were not a “prisoner communication” as defined. The parties to the conversation did not use a telephone, a video link or any electronic means to communicate.

66. Another potential source of authority for breaching the prohibitions contained in the Invasion of Privacy Act is s 158 of the Corrective Services Act 2006 which provides:

“158 Monitoring personal visit

The chief executive may—

(a) make and keep an audiovisual or visual recording of a personal visit; and

(b) monitor a personal visit.”

67. The difficulty for the prosecution here is that recordings were not audiovisual or visual. As a matter of the ordinary meaning of the words it cannot be said that the phrase “audiovisual or visual recording” encompasses an audio recording. Parliament cannot be supposed to have overlooked so obvious a difference. Presumably Parliament was concerned to ensure that there was a visual recording of matters if they were to be used against a prisoner, or his or her visitors, in matters pertaining to prison administration.

68. Nor does s 158(b) assist – the use of the word “monitor” does not carry a sense of permitting an audio recording to be made particularly in the context of the preceding paragraph which specifically dealt with recordings that were permitted.

69. No other potential source of any authority to contravene the requirements of the Invasion of Privacy Act was cited.  Hence the law prohibited the recording and publishing of the conversations.

70. As Atkinson J observed in R v Crooks [2001] Qd R 541 where a voluntary confession is made the Court retains a discretion to exclude the evidence on “the grounds of unfairness, public policy, or because the probative value is small and the undue prejudice likely to be suffered is substantial.”^[30] Here it is the public policy ground that is principally invoked.

71. In Ridgeway v The Queen (1995) 184 CLR 19 (at 30-31; 38), Mason CJ, Deane and Dawson JJ said:

“The 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…

“The discretion extends to the exclusion of both … non-confessional evidence and confessional evidence… [I]n 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…

“The weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved…

"The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence – the public interest in maintaining the integrity of the Courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement – will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.

When assessing the effect of illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances. Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.”^[31]

72. Again the degree of criminality could not be higher – the alleged murder of another. Society has a legitimate interest in bringing criminals to justice.

73. Secondly, it is not a case where the authorities were acting in deliberate defiance of the law. While I have received no direct evidence on the subject it seems probable that the Chief Executive of Prisons, who authorises the officers to monitor these visits,^[32] is operating under a mistaken impression of the meaning and effect of the relevant provisions.  Mr Frewin Lord claimed on behalf of the officers concerned a right to record these conversations but clearly he is mistaken.  It seems the recording was made only inadvertently in breach of the law.  There is no evidence that the illegality of the conduct was even known to the police involved let alone encouraged by senior officers.

74. Thirdly, Parliament is obviously not minded to protect the prisoner’s privacy rights – the invasion permitted by the legislation is greater than would occur with an audio recording.

75. Fourthly, there is no suggestion that the absence of any visual recording impacts on the reliability of the recordings or otherwise results in any unfairness to the accused.

76. Fifthly, there is no reason to think that the statements made to the visitors were not reliable. If anything quite to the contrary. No circumstance was pointed to that raised any degree of concern.

77. These factors all favour reception of the evidence.

78. The principal argument advanced for their exclusion was that the applicant was influenced by having made his previous admissions – the “cat was out of the bag” so to speak – and those previous admissions were improperly obtained. Once again the premise of impropriety is not made out save in only one relatively modest respect. As well, I am far from convinced that the applicant was influenced by such considerations when talking to his near relatives.

79. I am not persuaded that the interests of justice require the exclusion of the evidence. I decline the application.

Orders

80. The orders will be:

1. The evidence of the conversations that took place in the course of the interview commencing at or about 1.40 am and concluding at or about 2.13 am on 4 December 2008 between the applicant and police officers is inadmissible and is not to be led in evidence in the prosecution case.

2. The application is otherwise dismissed.