R v Scott Gerring and Brian Allen Kelly Scc [1988] ACTSC 9 (24 February 1988)

SUPREME COURT OF THE ACT

THE QUEEN v. SCOTT GERRING and BRIAN ALLEN KELLY
S.C.C. No. 19 of 1987
S.C.C. No. 20 of 1987
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Criminal Law - Admissibility of confessions - failure to place accused in the custody of the officer in charge of the nearest police station - whether detention became illegal

Criminal Law - Admissibility of confessions - voluntariness - exercise of discretion to admit confessional material illegally obtained

Police Ordinance 1927, ss.14, 15, 16, 17, 18, 19, 20, 21(1), 21(2), 22, 24(1)

Evidence Ordinance 1971, s.68

Crimes Act 1914 (Cth), s.8A

Magistrates Court Ordinance 1930, s.50

Duff v. The Queen [1979] FCA 83; 28 ALR 663

Wendo v. R. [1963] HCA 19; (1963) 109 CLR 559

R. v. Lee [1950] HCA 25; (1950) 82 CLR 133

Webster v. McIntosh [1980] FCA 128; (1980-1981) 32 ALR 603

Donaldson v. Broomby (1982) 40 ALR 525

Austin v. Dowling (1870) LR 5 CP 534

R. v. Pearcey (1985) 63 ACTR 12

The Queen v. Derrick Gabriel (unreported, 26 November 1986)

Williams v. The Queen [1987] HCA 36; (1986) 66 ALR 385

The Queen v. Ireland [1970] HCA 21; (1970) 126 CLR 321

Bunning v. Cross (1978) 141 CLR 55

Cleland v. The Queen [1903] HCA 1; (1982) 1 CLR 1

HEARING

CANBERRA
24:2:1988

DECISION

On 17 February 1988 the accused Brian Alan Kelly and Scott Gerring were arraigned on an indictment charging them jointly with an offence of conspiring to commit an offence against a law of the Commonwealth, namely s. 101 of the Crimes Act 1900 in its application to the Australian Capital Territory in that they conspired to commit an armed robbery on the person occupying the position of night porter at the Macquarie Hostel.

2. In the course of the hearing, counsel for the accused Gerring objected to the admissibility of a record of interview between the accused Gerring and investigating police, a handwritten statement made by the accused Gerring and his oral admissions identifying gloves, balaclava and a knife at the Macquarie Hostel prior to the accused being charged with the offence of conspiracy at about 12.00 noon on 10 January 1986.

3. Shortly stated, the grounds of objection to the admissibility of that material were that the accused's detention was illegal at the time when the confessional material was obtained because he had not been delivered into the custody of the member of the police force in charge of the nearest police station pursuant to s. 24(1) of the Police Ordinance 1927, his admissions to police were not voluntary, and, in any event, in the exercise of my discretion, the confessional material should be excluded on the grounds that it had been unfairly obtained. I ruled that all the confessional material was admissible and declined to exclude it. I intimated that I would deliver reasons for that decision later.

4. The facts giving rise to the confessional material were that members of the Australian Federal Police, having been forewarned that an armed robbery was to take place at the Macquarie Hostel on the night of 9/10 January 1986, had taken up positions on the ground floor of those premises. The accused Kelly and Gerring entered the premises by a side door and went into the toilet on the ground floor. They emerged from the toilet and were immediately arrested at gunpoint by several police officers at about 1.30 am. Both accused were then placed on the floor and handcuffed and they were then searched. They were conveyed by police vehicle to the City Police Station. In the basement of the police station the handcuffs were removed from Gerring and he was taken to the CIB area within the police station.

5. Objection was taken to the admissibility of any conversations between the accused Gerring and the police officers from that time on. I granted leave to conduct an examination on the voir dire and the evidence was as follows.

6. The accused was held in a room in the CIB in the care of Detective Arthur while Detective Sergeant Prothero had some conversation with other detectives. The following conversation then took place between Detective Sergeant Prothero and the accused in the presence of Detective Arthur:

"Q. I am Detective Prothero and this is Constable

Arthur. Do you know why you are here?

A. Yes. You thought we were going to rob the place.
We were only there for a leak.

Q. I have been told different. We'd like to sort
this matter out so what I intend to do is a record
of interview. By that I mean I intend to ask you
questions and those questions, together with the
answers you may choose to make, will be recorded
on a typewriter by Detective Arthur as the
interview takes place. Do you understand?

A. Yeah.

Q. At the conclusion of the interview you will be
given the opportunity of reading through the
record of interview and signing it if you wish.

A. Yeah.

Q. You will also be given a complete copy of the
record of interview for your own use. Do you
understand that?

A. Yeah."

7. Detective Sergeant Prothero then left the office to get a typewriter and equipment. He returned and a record of interview was commenced at 2.58 am on 10 January 1986. It was a long record of interview and was not concluded until 7.44 am. In the course of the record of interview the accused was provided with a cigarette and a cup of coffee. The interview was suspended for 5 minutes at 4.50 am so that the accused could visit the toilet. There was another suspension at 5.14 am until 5.40 am in which time the accused drew a sketch of the particular area of the Macquarie Hostel. The sketch was also in evidence. There was another break in the interview between 6.10 am and 6.30 am during which time the accused was taken to the toilet again. There was another break from 6.35 am until 7.16 am during which the accused read the record of interview thus far. Further conversation was recorded and there was another break between 7.25 am and 7.36 am.

8. In the course of the record of interview the following question and answer are recorded:

"Q.27 I want you to understand, if you require a break
or coffee or refreshment, I would like you to
bring it to my attention.

A. Yeah, I understand. If I want something I will
ask for it."

9. After the record of interview had been completed, the following conversation took place:

Prothero: Scott, is there anything you want to tell me that

you haven't already? I think there is more to it
than what you've said."

Gerring: Can I think about it?

Prothero: Sure, whatever you want.

Gerring: No, I know you know there's more because there is.

Prothero: Do you want to tell me about it?

Gerring: Yeah.

Prothero: Hold it, I'll get a notebook.

Detective Sergeant Prothero then left the room to obtain a
notebook.

Prothero: Do you agree that a short time ago you told me

that you wished to tell me something further?

Gerring: Yes.

Prothero: Before you say anything I must again remind you

that you are not obliged to say anything unless
you choose to do so as anything you do say will be
noted by me and may later be given in evidence.
Do you understand that?

Gerring: Yes.

Prothero: What do you want to tell me?

Gerring: I don't want to say it, I want a handwritten

statement.

Prothero: I must again remind you that you are not obliged

to make a handwritten statement unless you choose
to do so as any handwritten statement you do make
may later be given in evidence. Do you clearly
understand that?

Gerring: Yes."

10. The accused then made the written statement referred to earlier. Having done so, he was introduced to Inspector McTavish, the officer in charge of the CIB, and in the presence of Inspector McTavish the accused answered the questions which had been typed on to the written statement. Inspector McTavish asked the accused whether he had any complaints about the manner in which the detectives had conducted the interview with him. He said "No, they have been very good to me really". He was further asked whether he had any complaints about the manner in which he had been treated by these detectives. He said "No".

11. Sergeant Prothero asked the accused whether he was prepared to take them to the Macquarie Hostel and indicate where the gloves, balaclava and knife were located. The accused said "Yes, shall we go now?" Sergeant Prothero replied, "Yes, shortly". He was also asked by Inspector McTavish whether he was prepared to take Detectives Prothero and Arthur and show them where certain property was, to which he replied "Yes, but I would really like the Judge to be the only person to see this statement I made", indicating the handwritten statement which he had made.

12. Undoubtedly the record of interview had taken a long time and the accused had had a sleepless night. I find that he had been drinking earlier in the night but was not exhibiting indications that he was affected by intoxicating liquor. I find that the accused was under arrest from the time when he was apprehended at gunpoint at the Macquarie Hostel, handcuffed and taken to the police station.

13. The accused and the two investigating police officers left the police station at about 9.20 am and went to the Macquarie Hostel. In the vicinity of the Hostel he pointed out to the police the balaclava, which was in the bushes towards the rear of the Hostel, and a glove in a hedge. A knife was also indicated by the accused to the police. The positions of those items was photographed and the photographs put in evidence. The accused and the two police arrived back at the police station at about 10.05 am. At about 11.30 am the accused was informed that he was under arrest and was charged with the offence of conspiracy to commit the offence of armed robbery at about 12.00 noon. He was taken before the Magistrate at about 2.00 pm.

14. I find on the evidence that there was a Magistrate available at about 9.30 am on that day and the accused could have been taken before that Magistrate at that time to be formally charged before the Magistrate. When asked why he was not taken before the Magistrate at that time, Detective Sergeant Prothero said that it was because the accused had stated that he was prepared to go to Macquarie Hostel to indicate the items subsequently found there. He said that the police had taken the accused before the Magistrate at the first available time.

15. The admissibility of confessions and admissions in the A.C.T. is codified in s.68 of the Evidence Ordinance 1971 (Duff v. The Queen [1979] FCA 83; 28 ALR 663 at 685). Before a confession may be admitted in evidence in a criminal trial, it must be proved by the Crown on the balance of probabilities that it was voluntary (Wendo v. R. [1963] HCA 19; (1963) 109 CLR 559). This means substantially that it has been made in the exercise of the person's free choice. Where a confession is nevertheless voluntary, the judge has, in a criminal proceeding, a discretion to reject the confession made by the person charged if, having regard to the circumstances in which, or the means by which, the confession or admission was obtained, the judge is satisfied that it would be unfair to the person charged to admit the confession or admission in evidence. The onus of showing reason for the discretionary rejection of a confession is upon the accused person (R. v. Lee [1950] HCA 25; (1950) 82 CLR 133 at 153 applied in Duff v. The Queen, supra, at p 691).

16. In relation to the first submission that the accused was not delivered forthwith into the custody of the member of the police force in charge of the nearest police station contrary to s.24(1) of the Police Ordinance 1927, I said in the course of hearing submissions on behalf of the accused that it appeared to me to be at least arguable whether s.24(1) had any operation in the Australian Capital Territory at the relevant time since the decisions of the Federal Court in Webster v. McIntosh [1980] FCA 128; (1980-1981) 32 ALR 603; 49 FLR 317, and Donaldson v. Broomby (1982) 40 ALR 525.

17. Those authorities laid down that s.18(e) of the Police Ordinance 1927, which provided to members of the police force a general power of arrest without warrant, no longer had any operation and that the only general power of arrest without warrant possessed by a member of the police force in the Australian Capital Territory in respect of a suspected past breach of a law of the Territory, was that contained in s.8A of the Crimes Act 1914 (Cth). Prior to its amendment by Act No. 76 of 1986, which came into effect on 24 June 1986, s.8A read:

"8A. Any constable may, without warrant, arrest

any person, if the constable has reasonable ground to believe -

(a) that the person has committed an offence against a
law of the Commonwealth or of a Territory; and

(b) that proceedings against the person by summons
would not be effective."

By the amendment, s.8A(a) now reads:

"(a)that the person has committed an offence against a
law of the Commonwealth or of a Territory other
than the Australian Capital Territory; and"

18. It was common ground that the police powers of arrest without warrant in the circumstances of this case are as provided by s.8A prior to the amendment as laid down by the Federal Court in Webster v. McIntosh, supra, and Donaldson v. Broomby, supra.

19. Section 18 of the Police Ordinance 1927 is contained in a set of provisions empowering police officers to do certain things. Section 14 relates to the power to grant general search warrants. Section 15 deals with the power to obtain search warrants in respect of a house used for the purposes of prostitution etc. Section 16 provides a power to search vehicles and certain suspected persons. Section 17 empowers members of the police force to enter premises where certain games are carried on. Section 18 empowers any member of the police force to apprehend, without warrant, different classes of persons set out in the section, including "(e) any person whom he has reasonable cause to suspect of having committed, or being about to commit, any offence;".

20. Section 19 empowers a member of the police force to take into custody without warrant persons for whom a warrant has been issued by a magistrate and persons charged with committing any felonious assault. Section 20 empowers any member of the police force to take into custody without warrant any person who within the view of the member commits any offence against the Police Ordinance or the Police Offences Ordinance 1930 if the person's name and address is not known to the member and cannot be ascertained by him.

21. Section 21 empowers any member of the police force with or without a warrant to apprehend any common prostitute etc. and any vagabond etc. who within the view of the member commits an offence against the Police Ordinance or the Police Offences Ordinance 1930. By sub-s.21(2) the member is required to forthwith take and convey such an offender before a magistrate to be dealt with. Section 22 empowers a member of the police force to take into custody without a warrant any person found committing any offence punishable by summary conviction.

The relevant parts of s.24 read:

"24. (1) Any person apprehended without a warrant
shall forthwith be delivered into the custody of the
member of the Police Force who is in charge of the
nearest police station, in order that the person may be
secured until he can be brought before a magistrate to
be dealt with according to law, or, if the person has
been apprehended for any offence against this
Ordinance, or any offence punishable upon summary
conviction, or if in any other case the member of the
Police Force deems it prudent to take bail, until he
has given bail for his appearance before a magistrate.

(2) When any person apprehended under this
Ordinance, or charged with any offence punishable upon
summary conviction, is brought without the warrant of a
magistrate into the custody of any member of the Police
Force in charge of any police station, the member may,
if he deems it prudent, take bail by recognizance, with
or without sureties, as the member thinks fit, from the
person, the condition of the recognizance being that the
person shall appear for examination before a magistrate
at the place specified therein, at the hour of ten
o'clock in the forenoon on a day to be specified not
more than fourteen days after the recognizance is
taken, unless that day falls on a Sunday or Christmas
Day or Good Friday, or any public holiday, and in that
case at the like hour on the day next following which
is not one of those days."
(3) . . .
(4) . . .
(5) . . .
(6) . . .
(7) . . ."

22. In my opinion the provisions of the Police Ordinance 1927 set out above should be construed as providing a code of criminal process for persons apprehended by members of the police force pursuant to the powers conferred by the Police Ordinance 1927. At the time of the enactment of the Police Ordinance 1927, the power of arrest without warrant given to a member of the police force was conferred by s.18 and the succeeding provisions in ss.19, 20, 21 and 22 in relation to various classes of persons (particularly those committing street-type offences) and persons whom the police officer had reasonable cause to suspect of having committed or being about to commit any offence (s.18); persons in respect of whom warrants had issued (s.19); persons committing offences against the Police Ordinance and the Police Offences Ordinance (s.20); and common prostitutes etc. (s.21); and persons committing offences punishable upon summary conviction (s.22).

23. In my opinion s.24(1) applies to persons of those various classifications apprehended without a warrant pursuant to the preceding provisions of the Ordinance. Section 24(1) provides for the delivery of such persons into the custody of the member of the police force who is in charge of the nearest police station for the time for which those persons may be secured, i.e. until they can be brought before a magistrate to be dealt with according to law or, in certain circumstances, until they have been given bail for their appearance before a magistrate. Section 24(1) does not empower the member of the police force in charge of the nearest police station to grant bail. That power is conferred by s.24(2) and is specifically confined to persons apprehended under the Police Ordinance 1927. As it was settled law at the relevant time that a member of the police force had no power of arrest under s.18(e) of the Police Ordinance and that the only general power of arrest without warrant in respect of a suspected past breach of a law of the Territory was that contained in s.8A of the Crimes Act 1914 (Cth), it follows in my view that s.24(1) had no application in relation to either of the two accused.

24. Counsel for the accused Gerring relied upon certain dicta in Webster v. McIntosh, supra, as authority for the proposition that s.24(1) of the Police Ordinance 1927 nevertheless applied in respect of a person apprehended without warrant pursuant to s.8A of the Crimes Act 1914 (Cth). He referred to the judgment of Brennan J. at ALR pp.607-608. The Court was there dealing with an appeal to the Federal Court from an award of damages in this court for wrongful arrest, wrongful imprisonment and malicious prosecution. The learned trial judge had awarded damages upon the footing that the appellants were responsible for the respondent's imprisonment from the time of his arrest until he was released on bail some three hours later. It appeared that an hour or so after the arrest the respondent had been delivered into the custody of the Sergeant in charge of the Watchhouse who, after photographing and fingerprinting the appellant and keeping him in custody, finally released him on bail. The submission on behalf of the appellants was that once the prisoner had been delivered into the custody of the member of the police force in charge of the police station, the effect of the arrest was spent and his custody thereafter attributed to the authority vested by s.24(1) of the Police Ordinance in the police officer in charge of the station.

25. Brennan J., with whom Deane and Kelly JJ. agreed, rejected that submission on the basis that the state of false imprisonment lasted so long as the respondent remained in the custody of a ministerial officer of the law whose duty it was to detain him until he could be brought before a judicial officer (citing Austin v. Dowling (1870) LR 5 CP 534 per Willes J. at 539). Brennan J. rejected the appellant's argument. He did not rule upon the continued operation of s.24(1) in the light of s.18(e) ceasing to have any operation.

26. Counsel for the accused Gerring also relied upon R. v. Pearcey (1985) 63 ACTR 12. In that matter Kelly J. had to rule upon the admissibility of certain confessional material. In ruling that the evidence was admissible Kelly J. held, applying s.24(1) of the Police Ordinance, that the accused's detention became an illegal arrest when he was not brought "forthwith" before the officer in charge of the police station. In addition, the illegality did not fall into that very exceptional category which would require that the confessional material be rejected on the ground of the public interest; nor did it result of itself in unfairness to the accused.

27. It does not appear from his Honour's reasons for judgment that he was asked to address the question whether s.24(1) had any operation in the light of the decisions of the Federal Court in relation to the power of arrest conferred by s.18(e) in Webster v. McIntosh, supra, and Donaldson v. Broomby, supra. Counsel for the accused, who had also appeared for the accused in R. v. Pearcey confirmed that his Honour was not asked to rule upon the continued operation of s.24(1), it being assumed that it was still in force.

28. In The Queen v. Derrick Gabriel (unreported decision, 26 November 1986), Miles CJ was required to rule upon the admissibility of confessional material based upon a submission that an accused was unlawfully detained because of a failure to comply with s.24(1) of the Police Ordinance 1927. His Honour found as a fact that there had been no failure to comply with s.24. In neither case was this court asked to consider the continued operation of s.24(1) of the Police Ordinance 1927 and those cases are therefore of no persuasive assistance to the accused.

29. I turn to consider whether there was at the relevant time any provision of the law requiring a person apprehended pursuant to s.8A of the Crimes Act 1914 to be delivered into the custody of the member of the police force in charge of the nearest police station in order that his custody may be either continued or that he be released on bail. I know of no statutory provision in the Australian Capital Territory which was in force on 10 January 1986 to that effect.

30. However, s.50 of the Magistrates Court Ordinance 1930 is relevant. It reads:

"50. (1) A person taken into custody for an
offence without a warrant shall be brought before a
Magistrate as soon as practicable after he is taken
into custody.

(2) If it is not practicable to bring him before
a Magistrate within twenty-four hours after he is so
taken into custody, a Clerk or a police officer who is
in charge of a police station may and shall inquire
into the case, and except where the offence appears to
the Clerk or police officer to be of a serious nature,
shall discharge the defendant upon his entering into a
recognizance with or without sureties, for a reasonable
amount to appear before the Court at the day, time, and
place named in the recognizance."

31. If I am correct in my conclusion that s.24(1) of the Police Ordinance has no operation in respect of a person apprehended pursuant to s.8A of the Crimes Act 1914 (Cth) prior to its amendment, and s.24(2) is confined to persons who have been apprehended under the Police Ordinance 1927, s.50 of the Magistrates Court Ordinance 1930 was at the relevant time the only statutory provision empowering an officer in charge of a police station to discharge the arrested person upon his entering into a recognizance to appear before the Magistrate at a day, time and place named in the recognizance.

32. Accordingly the submission based upon the failure to comply with s.24(1) of the Police Ordinance 1927 to the effect that the confessions in the record of interview, handwritten statement and oral admissions identifying gloves, balaclava and knife at the Macquarie Hostel is misconceived.

33. The question whether there has been a failure in this case to comply with a requirement of the law that the accused, being a person apprehended without a warrant, be forthwith delivered into the custody of the member of the police force who is in charge of the nearest police station, must be looked at in the overall context of the requirement of the common law that a person arrested without a warrant must be brought before a justice as soon as practicable, so that his custody may be either continued or determined by his release on bail. In Williams v. The Queen [1987] HCA 36; (1986) 66 ALR 385, Gibbs CJ said at p 389:

"A police officer who has arrested a person reasonably
suspected of having committed a crime must be allowed
time to make such inquiries as are reasonably necessary
either to confirm or dispel the suspicion upon which
the arrest was based. It will not be improper to
question the arrested person (Hough v Ah Sam (1912) 16
CLR 452) and it may be only fair to do so, although it
will be improper to persist in questioning such a
person after he has indicated that he does not wish to
answer any more questions: R v Ireland [1970] HCA 21; (1970) 126 CLR
321 at 333. The investigation necessary to be made
before an arrested person can be brought before a
justice may include searching his house, taking him to
persons who may support or disprove an alibi and
conducting an identification parade (see Dallison v
Caffery (1965) 1 QB 348 at 367)."

Mason and Brennan JJ. said at p.401:

"There is nothing to prevent a police officer from
asking a suspect questions designed to elicit
information about the commission of an offence and the
suspect's involvement in it, whether or not the suspect
is in custody. But if the suspect has been arrested
and the inquiries are not complete at the time when it
is practicable to bring him before a justice, then it
is the completion of the inquiries and not the bringing
of the arrested person before a justice which must be
delayed - as King CJ pointed out in R. v. Miller. The
making of inquiries is not a ground for extending the
period of custody and denying the subject an
opportunity of securing his release either absolutely
or on bail by a justice's order."

Wilson and Dawson JJ. said at p.405:

"A person who is arrested may be detained only for
the purpose of bringing him before a justice (or
nowadays before some other person with power to deal
with him) to be dealt with according to law. For
arrest is the beginning of imprisonment and, whilst it
is recognized that imprisonment before trial may be
necessary in the administration of justice, it must be
justified in accordance with the law. There must be a
charge and if the person charged can establish his
entitlement to bail and can furnish it, the law
requires that he be released subject to any conditions
which might be imposed upon him. The function of the
justice in granting or withholding bail is an ancient
one: 1, 2 Philip and Mary c 13; Holdsworth's History of
English Law, 5th ed (1931), vol I, p.296. The point at
which an arrested person is brought before a justice
upon a charge is the point at which the machinery of
the law leading to trial is put into operation. It is
the point from which the judicial process commences and
purely ministerial functions cease.

This being the purpose of arrest, any delay in
bringing a person under arrest before a justice, even
if it is to effectuate some other purpose such as the
questioning of that person in order to dispel or
confirm the suspicion which was the basis of the
arrest, is to defeat, however temporarily, the true
purpose. Where no delay is involved, there can, of
course, be no objection to the occasion of the arrest
and subsequent detention being used for the purpose of
further investigation of the offence in question or,
for that matter, any other offences, provided the
investigation is properly carried out and any necessary
caution is given: see Hough v. Ah Sam [1912] HCA 78; (1912) 15 CLR
452. But to conduct an investigation which does not
cut across the purpose for which a person is held under
arrest is one thing; to disregard that purpose in order
to carry out an investigation is another thing, however
much the further investigation may be otherwise
necessary or desirable. A person is not to be
imprisoned otherwise than upon the authority of a
justice or a court except to the extent reasonably
necessary to bring him before a justice to be dealt
with according to law. That, as we conceive it, is one
of the foundations of the common law."

34. It is clearly the law that the accused Gerring should have been taken before a magistrate without delay. That is the common law rule and the requirement that he be taken before the magistrate does not derive solely from s.50 of the Magistrates Court Ordinance. On the evidence in this case the earliest that the accused could have been taken before a magistrate was 9.30 am on 10 January 1986. But subject to voluntariness and any facts giving rise to the exercise of a discretion, the record of interview and handwritten statement made by the accused were completed well before 9.30 am.

35. The admissibility of oral admissions identifying the gloves, balaclava and knife at the Macquarie Hostel is challenged on the basis that instead of taking the accused before the magistrate at 9.30 am, the investigating police took him to the Macquarie Hostel at 9.20 am, not returning until 10.05 am. As stated earlier, that took place because the accused told the investigating police that he was willing to take them to the Macquarie Hostel and indicate where those items were.

36. It remains arguable whether it was still practicable to take the accused before the magistrate at 9.20 am in the light of the expressed willingness to go to the Macquarie Hostel and identify the items. It was obviously not practicable to be in two places at once. I think, however, that although the delay in taking the accused before the magistrate was a little more than half an hour, technically there was a failure to comply with the common law and the admissions in relation to the gloves, balaclava and knife were illegally obtained.

37. I am quite satisfied, however, that all the confessional material was voluntarily made and should not have been excluded in the exercise of my discretion (The Queen v. Ireland [1970] HCA 21; (1970) 126 CLR 321; Bunning v. Cross (1978) 141 CLR 55 and Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1.

38. The illegality was slight and the voluntariness so apparent that it would not have been right to exclude that material.