Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mann v R [2023] NSWCCA 256 Hearing dates: 21 July 2023 Date of orders: 11 October 2023 Decision date: 11 October 2023 Before: Kirk JA at [1]; N Adams J at [132]; R A Hulme AJ at [133] Decision: (1) Grant leave to appeal (if required) and uphold the appeal. (2) Quash the appellant's convictions on counts 21-24, 26-28, 30, 32, 34 and 36-38 on the indictment and a judgment of acquittal be entered in their place. (3) Quash the appellant's convictions on counts 1-20 on the indictment, which counts are to be subject to a retrial. (4) Quash the aggregate sentence imposed on the appellant in the District Court on 20 August 2021, and remit the matter to that Court for the applicant to be resentenced in due course on counts 3, 9, 13, 15, 19, 21, 25, 27, 31, 33, 37 and 41 of the plea indictment. (5) List the matter in the arraignment list in the District Court on 20 October 2023. Catchwords: CRIME — Appeals — Child sex offences — Sexual intercourse with children under 10 — Offender with cognitive impairment EVIDENCE — Admissions — Criminal proceedings — Whether to admit Police interview of applicant into evidence under s 138 of the Evidence Act 1995 (NSW) — Applicant vulnerable as Indigenous and intellectually impaired — Protections under Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) — Aboriginal Legal Service advice not to be interviewed or go to interview room accepted and this communicated to Police — Police asked support person if applicant would be interviewed and told no — Police nevertheless commenced interview — Substantial impropriety by Police officers — Primary judge erred in concluding difficulty of obtaining inculpatory evidence favoured admission — Admissibility of evidence reconsidered — Evidence inadmissible APPEALS — Appropriate standard of appellate review re s 138 of the Evidence Act 1995 (NSW) — Whether House v The King error required — Whether open to appeal court to decide admissibility for itself — Discretion to acquit or order retrial affected by interests of justice, which linked to admissibility Legislation Cited: Crimes Act 1900 (NSW), s 66A(1) Criminal Appeal Act 1912 (NSW), ss 5(1), 5F(5)(b), 6(1), 8 Criminal Procedure Act 1986 (NSW), ss 130A(1), 281 Evidence Act 1995 (NSW), ss 90, s 97(1)(b), 138 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 109(c), 112(1), 122 Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), cll 27, 28, 29, 30, 31, 34, 35, 36, 37, 38 Cases Cited: Bektasovski v R (2022) 407 ALR 125; [2022] NSWCCA 246 Castagna v R (2019) 278 A Crim R 194; [2019] NSWCCA 114 Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 King v The Queen (1986) 161 CLR 423; [1986] HCA 59 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 R v Gidley [1984] 3 NSWLR 168 R v Nabalarua (unreported, NSWCCA, 19 December 1997) R v Nguyen (2013) 117 SASR 432; [2013] SASCFC 91 R v Riley [2020] NSWCCA 283 R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Texts Cited: Thomas Prince, "Recurring Issues in Civil Appeals – Part 1" (2022) 96 ALJ 203 Category: Principal judgment Parties: Beau Mann (Applicant) Rex (Crown) Representation: Counsel: RJ Wilson SC (Applicant) M Millward (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/056138 2019/0025700 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 23 July 2021 Before: Madgwick ADCJ; Pickering DCJ File Number(s): 2017/00056138 2019/00025700 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant is an Indigenous man with an intellectual impairment. He was thus a vulnerable person for the purposes of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (LEPRA Regulation). He was charged with 38 offences relating to the alleged sexual abuse of two young children. For 18 of the 38 offences with which he was charged the only significant evidence against him was admissions he made in a recorded interview with Police (the ERISP). The applicant challenged the admissibility of the ERISP under s 138 of the Evidence Act 1995 (NSW). The ERISP was held to be admissible following a voir dire conducted prior to the trial. Madgwick ADCJ held that the interview and admissions were improperly obtained for the purposes of s 138 of the Evidence Act 1995 (NSW) but that they should nevertheless be admitted because the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way. At trial a jury found the applicant not guilty of five charges and guilty of the other 13 which depended solely upon the ERISP. He was found guilty of all 20 of the other charges, which were supported by evidence of the two children. He was sentenced to an aggregate sentence of 11 years imprisonment with a non-parole period of 5 years. The applicant appealed his convictions on the ground that the ERISP should not have been admitted into evidence. He also appealed his sentence. On the conviction appeal the following issues arose: (1) what standard of review should be applied on appeal and, relatedly, whether the Court could make its own assessment of admissibility if House v The King error was made out; (2) whether his Honour's findings of fact should be accepted in light of the critique of the Crown; (3) whether legal error was made out in the decision of Madgwick ADCJ; (4) whether the evidence was admissible under s 138. The Court upheld the conviction appeal and it was thus unnecessary to consider the sentence appeal (per Kirk JA, N Adams J and R A Hulme AJ agreeing) As to the approach on appeal 1. Uncertainty arose as to whether the proper standard of appellate review under s 138 of the Evidence Act was the correctness standard or a more restrained approach of the kind articulated in House v The King (1936) 55 CLR 499; [1936] HCA 40. The issue arose most acutely in the third step of the s 138 inquiry, namely the assessment and weighing up of various factors going to the desirability of admitting or not admitting the evidence: at [17]. The issue is complex, borderline and important, and the Court here had no contradictor. It was unnecessary to resolve this issue as House v The King error was established in any event: at [21]-[22]. Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1; R v Riley [2020] NSWCCA 283, considered. 2. Practice on reconsidering the admissibility of evidence under s 138 where error is established has been inconsistent: at [32]. That issue affects whether a retrial or acquittal should be ordered, which in turn involves consideration of the interests of justice. If the Court reached the view the evidence was inadmissible then, even if it were strictly a matter for the court below, it is reasonably likely that the same view would be reached in that court once the error had been corrected. More generally, such a conclusion by an appeal court would itself be a significant factor in considering where the interests of justice lie as regards what orders should be made to resolve the appeal. Here, it was open to the Court to reconsider the issue: at [35]-[37]. R v Nabalarua (unreported, NSWCCA, 19 December 1997); R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540; R v Nguyen (2013) 117 SASR 432; [2013] SASCFC 91; Castagna v R (2019) 278 A Crim R 194; [2019] NSWCCA 114, considered. As to the Crown's challenges to the findings of fact 3. There was no error in the findings of fact of Madgwick ADCJ. The detective in charge had been told by another Police officer that an Aboriginal Legal Service solicitor had indicated that on the solicitor's advice the applicant did not want to be interviewed. The detective then asked the applicant's mother – the applicant's support person under the LEPRA Regulation – if he wished to be interviewed, thus recognising that the applicant's capacity for autonomy and his understanding were limited. The mother said he did not. The detective nevertheless proceeded to lead the applicant into the interview room without explanation and commenced the interview. Although a caution was given, he did not ask either the applicant or his mother if they were content for the applicant to participate. In this way, the detective required the applicant to go to the interview room and be subject to questioning: at [86]-[87]. As to errors in the decision of Madgwick ADCJ 4. The primary judge erred in the balancing exercise in regard to s 138(3)(h). The difficulty in obtaining the ERISP by legal means should have weighed against admissibility, rather than in favour of it, contrary to what the primary judge had held. It is important that any willingness to "cut corners" to obtain such evidence be deterred: at [103]. The error here was of a House v The King kind, which suffices to find that the decision to admit the critical evidence in the ERISP was legally flawed: at [105]-[106]. Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1, applied. Reconsidering the balancing exercise 5. The detective's conduct was improper in the sense of being a significant departure from minimum standards of acceptable Police conduct: at [109]. He acted to nullify the protective effect of cll 31, 34, 36 and 37 of the LEPRA Regulation. The conduct is appropriately characterised as being substantially improper: at [116]. 6. The desirability of admitting the evidence did not outweigh the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained, taking account of the factors listed in s 138(3). The probative value of the evidence was high, it was of great importance to the proceeding, and it involved serious offences, some charges being very serious: at [120]. Those factors did not tip the balance in favour of admitting the evidence, where the impropriety directed to a vulnerable person was deliberate and very serious, and in circumstances where obtaining such evidence without impropriety or illegality was likely to be difficult. The end benefit will not always outweigh the detriment of the means: at [121]-[122]. 7. The applicant's convictions on 13 counts were reliant on the applicant's admissions contained in the ERISP. The conclusion that the ERISP was and is not admissible indicated that the interests of justice militate against ordering a retrial for those counts. The applicant's convictions on the other 20 counts on which he had pleaded not guilty were supported by other evidence, but nevertheless relied on the admissions made in the ERISP, not least because those admissions were relied upon as tendency evidence. The convictions on these counts should be quashed but a retrial ordered. The applicant had pleaded guilty to 12 further charges. The sentence on those charges was an aggregate one, imposed for those charges along with the other convictions which will now be set aside. The sentence on those 12 charges must therefore also be set aside and remitted for resentence: at [128]-[131]. JUDGMENT 1. KIRK JA: The applicant, Beau Mann, stood trial at the District Court at Sydney before Pickering DCJ and a jury in March and April 2021 charged with 38 offences relating to the alleged sexual abuse of two young children, SS and MS. The applicant was convicted on 33 counts. He had earlier pleaded guilty to another 12 offences relating to the same two children. For all of these offences he was sentenced to an aggregate sentence of 11 years with a non-parole period of 5 years, commencing on 16 August 2021. 2. The conduct was serious. SS was aged between 5 and 7 years old at the time of the offences in question and MS was aged between 3 and 7 years old. The applicant was found to have offended against the children together in the course of "games" that he encouraged or demanded they play. He was also found to have offended against each of the children individually. The charged conduct escalated over the period in question, from encouraging the two children to remove their pants and underwear and lay on one another, through to counts of penile anal intercourse. 3. The applicant is an Indigenous man who has an intellectual impairment. He was aged between 18-22 at the time of offending, and was aged 22 when he was arrested and interviewed. For 18 of the 38 offences with which he was charged the only significant evidence against him was admissions he made in a recorded interview with Police conducted on 22 February 2017 (the ERISP). The jury found him not guilty of five of those charges and guilty of the other 13. He was found guilty of all 20 of the other charges, which were supported by evidence of the two children. 4. The Police interview commenced at 4:48am, the applicant having been arrested sometime shortly after 10:50pm the night before. The ERISP was held to be admissible by Madgwick ADCJ following a voir dire conducted prior to the trial. His Honour held that the interview and admissions were improperly obtained for the purposes of s 138 of the Evidence Act 1995 (NSW) but that they should nevertheless be admitted because the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way. He also rejected an argument that the ERISP should be rejected pursuant to s 90 of the Evidence Act, holding that it would not be unfair to the applicant to use the evidence having regard to the circumstances in which the admissions were made. The pre-trial ruling made by Madgwick ADCJ was binding upon the trial judge, as no argument was put to Pickering DCJ that it was in the interests of justice that the ruling be departed from: Criminal Procedure Act 1986 (NSW), s 130A(1). 5. The applicant now seeks leave to appeal his conviction on one ground only: that the ERISP should not have been admitted into evidence. He seeks to appeal his sentence on two further grounds. 6. The application for leave to appeal should be granted (if required) and the appeal upheld. Madgwick ADCJ was correct to find that the evidence was improperly obtained. His Honour erred, in a House v The King sense, in evaluating whether the evidence should nevertheless be admitted. For reasons explained below, it is appropriate that this Court make its own evaluation of whether the ERISP should have been excluded. It should have been. The impropriety involved here was substantial. It involved pressuring a vulnerable person into taking part in a Police interview when the applicant had received legal advice not to do so, and his support person – his mother – had communicated to the investigating officer that he would not be doing so. The fact that many of the offences charged could only be made out based upon these admissions did not justify admission of evidence obtained in such a way. The end did not justify the means. 7. It is not necessary to consider the alternative argument based upon s 90. Nor is it necessary to consider the appeal on sentence. 8. In what follows I will: summarise the relevant legal responsibilities that applied to the Police officers when dealing with the applicant; set out the findings and conclusions of Madgwick ADCJ; address challenges made by the Crown to the findings made by Madgwick ADCJ; and then consider whether or not the evidence was admissible. Before doing so, however, it is necessary to examine the way appellate courts are to address a challenge made to a decision under s 138 of the Evidence Act in an appeal following conviction. Section 138 and appellate review The provision 1. Section 138 provides as follows: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained— (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning— (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account— (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 1. When objection is taken under this section to the admissibility of evidence, the following steps are involved in resolving the issue: 1. The judicial officer must find the relevant facts (if not agreed) with respect to how the evidence was obtained. 2. It is then necessary to reach a conclusion as to whether the evidence was obtained improperly or in contravention of an Australian law, or in consequence of such. Whether evidence was obtained as a result of a contravention of an Australian law involves a legal conclusion. Whether evidence was obtained as a result of impropriety involves a question of characterisation. If it was obtained by Police, then that issue is determined by reference to "minimum standards of acceptable police conduct": Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 at [14], quoting Ridgeway v The Queen (1995) 184 CLR 19 at 37; [1995] HCA 66. Section 138(2) and s 139 may also be relevant to finding impropriety. 3. If the judicial officer concludes that the evidence was obtained improperly or in contravention of an Australian law then the evidence is not admissible unless the judicial officer concludes that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Once impropriety or illegality is established, the onus of proof and persuasion is on the party seeking that the evidence be admitted: note Kadir at [47]; R v Riley [2020] NSWCCA 283 at [36]. The conclusion involves the evaluative weighing up of those factors listed in s 138(3) which are relevant in the particular case. That list is not exhaustive; the judicial officer may also take into account any other relevant matters. The factors listed in s 138(3) may themselves involve issues of evaluation, such as consideration of the probative value of the evidence (par (a)), its importance in the proceeding (par (b)) and the gravity of the impropriety or contravention (par (c)). The standard of review on the appeal 1. The applicant's single ground of appeal with respect to his conviction is expressed as follows: The judge who considered the admissibility of the appellant's electronically recorded interview (ERISP) erred in permitting the interview to be admitted into evidence. 1. On its face this ground appears to fall within the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), that is, it is said that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law. It has been held that "[t]he wrongful admission of evidence constitutes an error of law": R v Gidley [1984] 3 NSWLR 168 at 170 per Mahoney JA; see also Simic v The Queen (1980) 144 CLR 319 at 327; [1980] HCA 25. The Crown understood this to be a second limb case. However, in oral submissions senior counsel for the applicant suggested that it should also be understood as raising the third limb of s 6(1), that is, that there was a miscarriage of justice. The difference can be important not only because it may affect whether leave to appeal is required under s 5(1) of the Criminal Appeal Act, but because it may affect whether this Court considers the issue by reference to the evidence given on the voir dire, or rather looks more broadly to the evidence given in the trial proper: note the discussion in Bektasovski v R (2022) 407 ALR 125; [2022] NSWCCA 246 at [53]-[67]. In any event, the applicant here did not seek to rely in any material way on any evidence given in the trial, and it is appropriate to focus on the evidence given on the voir dire before Madgwick ADCJ. 2. Both the applicant and the Crown submitted that the appropriate standard of appellate review with respect to a decision under s 138 of the Evidence Act was the correctness standard, as discussed in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, as opposed to taking a more restrained approach of the kind articulated in House v The King (1936) 55 CLR 499; [1936] HCA 40. 3. Some care is required in considering how the standard of review would be applied to each of the three steps outlined above at [10]. As to the first – fact-finding – House v The King review extends to cases where the judicial officer has mistaken the facts (see at 505), so there is no apparent difference between the two standards in the current context. As to the second – characterising the way in which the evidence was obtained – insofar as the issue depends upon finding a contravention of Australian law, that is a legal issue. Such an issue permits of one correct answer, and an incorrect answer would involve acting upon a wrong principle. Thus, again, there is no apparent difference between the two standards. There is more room for reasonable differences of opinion in relation to whether or not evidence was obtained improperly. In any event, the issue arises most acutely for the third step, involving the assessment and weighing up of various factors going to the desirability of admitting or not admitting the evidence. 4. The issue of the appropriate standard of review with respect to decisions under s 138 was raised in extensive submissions, but not determined by the High Court, in Kadir (see at [9]). The point was then considered by this Court in an interlocutory appeal under s 5F of the Criminal Appeal Act in Riley. After a review of the authorities, Bathurst CJ stated that were it necessary to reach a concluded view, "recent authority, in particular SZVFW and Bauer, suggest the conclusion that appellate review of a decision to admit or reject evidence under s 138 is not subject to judicial restraint of the nature of that referred to in House v The King" (at [112] referring to Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, and The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61]). However, his Honour noted that "the preponderance of authority, both in this State and Victoria, is to the effect that the approach to appellate review of decisions under s 138 is analogous to that set out in House v The King" (at [114], see also [67]). He said that he "would have had some hesitation in stating these cases were wrongly decided" (at [114]). The Crown noted in its supplementary submissions here that in fact in many of the prior decisions referred to by the Chief Justice the standard of appellate review was not the subject of argument but was either assumed by the Court or agreed between the parties. 5. In Riley it was not necessary for the Court to reach a concluded view because House v The King error was made out in any event. Button and Wilson JJ each agreed that it was not necessary to resolve the issue: at [134] and [140] respectively. Button J implicitly suggested that the language of "desirability" and "undesirability", and the fact that s 138(3) sets out a number of factors but without limiting other matters being taken into account, may militate against a conclusion that the section can be characterised as admitting of only one right answer (at [135]). The Court in that case went on to consider afresh whether the evidence should be excluded under s 138. 6. In reaching his provisional conclusion on the applicable standard of review, Bathurst CJ gave weight to the fact that the decision of whether or not to admit the evidence under s 138 is binary, and to the fact that in Bauer the High Court held at [61] that determining whether tendency evidence has "significant probative value" for the purposes of s 97(1)(b) of the Evidence Act is a question admitting of only one correct answer (see Riley at [101] and [111]-[112]). 7. As to the latter point, whether something has "significant probative value" is a characterisation of factual matters in the context of a case, and does not involve weighing up multiple, incommensurable factors in the manner required by the third step of s 138. There is no simple, direct analogy between the two provisions. If there had been, the High Court would likely not have avoided resolving the issue in Kadir. 8. As to the former point, there is no doubt that a decision involving a binary choice is more likely to be subject to the correctness standard of review, as opposed to a choice which involves settling on some point in a spectrum of possible outcomes. Nevertheless, there are many binary choices to which a House v The King type standard is applied on appellate review, for example, decisions to grant adjournments. Thomas Prince usefully discussed the issue in his article "Recurring Issues in Civil Appeals – Part 1" (2022) 96 ALJ 203 at 215 (citation omitted): Decisions posing a binary choice which are nevertheless discretionary usually involve a combination of the following factors: (1) the decision involves an assessment of a large number of relevant matters; (2) the relevant matters are incommensurable in the sense that there is no clear standard or principle by which the matters are to be weighed or assessed; (3) the decision concerns procedure rather than substantive rights; (4) if the decision involves the exercise of statutory power, the form of the statutory language used suggests that the primary judge has a choice as to the correct outcome (eg power to make decision as judge "thinks fit"); and (5) the decision is closely connected or analogous to another decision which is clearly discretionary. 1. At least the first three of these factors apply as regards the third step required by s 138(3). Arguably the fourth and fifth are also applicable. 2. These issues were not explored in detail before us because both sides submitted that the correctness standard of review applied, and there was no contradictor. The issue is complex, borderline and important. I am reluctant to determine it in this matter unless it is necessary to do so. 3. Here, for the reasons explained below, I consider that a House v The King type error by Madgwick ADCJ is established in any event. Subject to considering one issue, that means it is again not necessary to resolve the issue of the appellate standard of review with respect to decisions under s 138. The potential qualification relates to whether or not this Court can and should consider for itself the admissibility of the evidence having determined that the court below erred in deciding that the evidence was admissible. That issue has ramifications for the orders that should be made by the Court. 4. The applicant seeks that verdicts of acquittal be entered for the 13 convictions which depended solely on the admissions made in the ERISP. Arguably this Court should only make such orders if it concluded that not only was there error in admitting the ERISP, but that the appropriate order under s 138 was that the ERISP be excluded. If the Court is to apply the correctness standard of review then it would be obliged to consider the issue in any event, including making the evaluative judgment required by the section. 5. On the other hand, if a House v The King type standard applied and such an error was found, that would be enough to overturn the conclusion of the judge below that the evidence was admissible. But it does not necessarily mean that this Court should determine for itself whether the evidence should be admitted. Arguably the exercise of any discretion would be a matter for the trial court, and this Court would only reach and express a conclusion that the evidence should have been excluded if no other conclusion was reasonably open. On that view, if this Court concluded that the decision to admit the evidence was made in error, but that the ultimate decision was discretionary, and further concluded that it would be reasonably open to a trial court judge to decide that the evidence was admissible, then the appropriate orders would be to overturn the convictions, order a retrial and remit the matter. 6. The parties were given an opportunity to make further written submissions on this issue of re-exercising the judgment required by s 138. Each side provided helpful submissions. 7. The applicant noted that the great majority of decisions in intermediate appellate courts about s 138 were in interlocutory appeals by the Crown. For such appeals, if this Court vacates the ruling then it is authorised to "give or make some other … ruling instead of the … ruling appealed against": Criminal Appeal Act, s 5F(5)(b). That section empowers (but does not require) this Court to make a replacement decision on the interlocutory appeal. Thus in Riley the Court, having found House v The King error, went on to "consider afresh whether the evidence should be excluded under s 138" (at [125]); see also Kadir at [45]. But there is no direct equivalent provision as regards an appeal from a conviction. 8. The applicant noted that in R v Nabalarua (unreported, NSWCCA, 19 December 1997) this Court upheld an appeal on the basis that the trial judge erred in law in ruling that admissions were admissible under s 138. McInerney J, speaking for the Court, said that: I am of the view that as it is a question of fact to determine the degree of illegality of the police conduct, and the other matters referred to in s.138(3) of the Evidence Act, this should not result in a quashing of the conviction. 1. As the applicant pointed out, his Honour must have meant that this should not result in entering acquittals, as the Court did in fact quash the convictions and order a new trial. By implication, the Court was applying a House v The King standard and, having found error, returned the matter to the trial court for the issue of admissibility to be redetermined. 2. In R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 an issue arose in an appeal conviction as to the admissibility of evidence under s 138. The trial judge was found to have erred in relevant respects, but the Court held that it was not for it to re-make the judgment called for by the section. Smart AJ said that "[t]he discretion is not one which this Court can exercise as part of its appellate jurisdiction" but it was "a new trial point" (at [124]; cf, perhaps, at [138]). Acquittals were nevertheless thought appropriate as a matter of justice in all the circumstances. Spigelman CJ summarised the position at [2]: The defects [Smart AJ] identifies in the criminal investigation procedure would only lead to the appellant's acquittal if a trial judge exercises the discretion under s 138 of the Evidence Act 1995 (NSW) to exclude the evidence found at the appellant's home. This Court cannot and does not purport to undertake the balancing exercise for which s 138 of the Evidence Act calls. However, given the number and nature of the defects in the investigative procedure, the trial and appeal to which the appellant was subjected and the suspended sentence, this is not a case in which the court should order a new trial. 1. These two decisions are thus consistent with the view that if a House v The King type standard is applicable in a conviction appeal then, generally, the appropriate course is to order a retrial. 2. The South Australian Court of Criminal Appeal took a different approach in R v Nguyen (2013) 117 SASR 432; [2013] SASCFC 91 with respect to the common law discretion to exclude illegally obtained evidence. It said at [36] that "[h]aving overturned the judge's determination that the conduct was lawful, that discretion falls to be considered afresh by this Court". No explanation was offered for taking this approach. It appears doing so may have reflected the position taken by the parties, as the Court noted at [44] that the Crown accepted that if the relevant evidence was excluded by the Court (thus accepting it was open to the Court to determine that issue) then acquittals should be entered on the relevant charges. That is what the Court ordered. 3. It can be seen that practice is inconsistent and the issue raised here has been little discussed. 4. In this matter both parties urged the Court to determine the issue of admissibility itself and grant relief accordingly, even if the Court applied a House v The King standard of review. The Crown said as follows: [I]n the present case, the substantial delay in the proceedings to date (being delay not attributable to the parties), the fact that the Court has before it all relevant material and the fact that the question of admissibility has been fully argued are such that the interests of justice unequivocally favour this Court's determination of the question of admissibility afresh rather than leaving the issue to be determined in any retrial. 1. As noted, in Rondo the Court ordered acquittals taking account of all of the circumstances of the case. That reflects the fact that the power to order a retrial in s 8 of the Criminal Appeal Act is discretionary, where otherwise the appropriate order once an appeal is quashed is to enter an acquittal as required by s 6(2) of that Act: note The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 at [76]-[83], [148], [175]-[179]. 2. Decisions such as Castagna v R (2019) 278 A Crim R 194; [2019] NSWCCA 114 at [190]-[204] discuss various factors that may be relevant to whether to exercise the discretion to order a retrial. A significant consideration is whether there is evidence to support the charge. Four members of the High Court said in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104] that "[u]nless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge". In King v The Queen (1986) 161 CLR 423 at 433; [1986] HCA 59, Dawson J said on behalf of the majority that the discretion to order a new trial "should not be exercised when the evidence in the Court below was not sufficiently cogent to justify a conviction, or to allow the Crown to supplement a case which had proved to be defective". 3. Thus the discretion to order a retrial following a finding that the trial miscarried raises issues of the overall interests of justice along with the prospect of a conviction in light of the evidence. In this context it is open to the Court to consider, at the very least, whether the admissions contained in the ERISP are likely to be admissible. If this Court concluded that in its view the admissions on which the relevant convictions depended should not be ruled admissible under s 138 then that would weigh against ordering a retrial. If this Court reached the view the evidence was inadmissible then, even if it were strictly a matter for the court below, it is reasonably likely that the same view would be reached in that court once the error had been corrected. More generally, such a conclusion by an appeal court would itself be a significant factor in considering where the interests of justice lie as regards what orders should be made to resolve the appeal. 4. Here, as addressed below, I conclude that Madgwick ADCJ erred in his ruling on admissibility under s 138 in a House v The King manner, and I consider that the ERISP should not be admitted under the section. In the circumstances of this case, and as addressed further below, that is sufficient to conclude that the Court should not exercise its discretion to order a retrial. In that context, it is not necessary in this case to resolve the issue of the appellate standard of review on appeals involving s 138. 5. One further point should be noted. The issue of the appellate standard of the review is distinct from the issue of making due allowance for the natural advantages of the trier of fact in reaching conclusions of fact. Regardless of the appellate standard of review, when considering any challenge to the facts found by the court below it is necessary to recognise that the appeal court will not have had the advantage of seeing and hearing the witnesses: note, analogously, Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25]-[31]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]; Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [14]-[17]. The relevant responsibilities of Police officers 1. The impropriety found by Madgwick ADCJ has to be understood in the context of the legislative regime as it stood on 22-23 February 2017, when the relevant events relating to the arrest and questioning of the applicant occurred. 2. Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) addresses the powers and responsibilities of the Police when detaining persons under arrest. The objects of the Part include "to provide for the rights of a person so detained": s 109(c). The regulations "may make provision for or with respect to the modification of the application of [the] Part" to certain vulnerable persons, including Aboriginal persons and persons with a disability: s 112(1). 3. Division 3 of Pt 9 is headed "Safeguards relating to persons under arrest and protected suspects". Amongst other safeguards in that division, s 122 provides that the custody manager at a police station must, as soon as practicable, caution the person (orally and in writing) that he or she does not have to say or do anything, but anything the person does say or do may be used in evidence. The custody manager is required to give the person a summary of the provisions of the Part in the form prescribed in the regulations and request the person to sign an acknowledgment that the information has been given. 4. The applicable regulations at the time were found in the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (LEPRA Regulation). The application of Pt 9 of the Act to "vulnerable persons" is modified by Div 3 of Pt 3 of that regulation: cl 28(2). It was and is common ground that the accused was a vulnerable person, as defined in cl 28, both because he is an Aboriginal person and had "impaired intellectual functioning" (a term defined in cl 27(1)). 5. The custody manager is required to assist, as far as practicable, a vulnerable person to exercise their rights under Pt 9 of the Act: cl 29. If the person is a child or a person with impaired intellectual or physical functioning, the custody manager must as soon as practicable attempt to ascertain the identity of the person responsible for the welfare of the detained person and contact that person: cl 36. 6. Where the detained person is an Aboriginal person or Torres Strait Islander then, unless the custody manager is aware that the person has arranged for a legal practitioner to be present, the custody manager must immediately inform the person that a representative of the Aboriginal Legal Service (ALS) will be notified of the person's detention in respect to an offence and of where they are being detained, and the manager must then notify such a representative accordingly: cl 37. The obvious purpose of this clause is to enable Aboriginal people and Torres Strait Islanders to have access to legal advice from the ALS following their detention. 7. If a detained vulnerable person is given a caution, the custody manager or other person giving the caution must "take appropriate steps to ensure that the detained person … understands the caution": cl 38(1). If the detained person is given a caution in the absence of a support person, the caution must be given again in the presence of a support person, if one attends: cl 38(2). 8. A vulnerable person is entitled to have a support person (as defined in cl 30) present during any investigative procedure in which they are to participate: cl 31(1). Before any such procedure starts the custody manager must inform the person of their entitlement to the presence of a support person: cl 31(3). The procedure must in general be deferred for a reasonable period (which need not be more than two hours) to allow the support person to be present, unless that right has been waived: cl 31(5)-(6). 9. Clause 34 deals with the role of support persons during the interview, albeit doing so indirectly by setting out what the custody manager must tell the support person. That includes that the support person "is not restricted to acting merely as an observer during an interview of the detained person", and they may "assist and support the detained person" and "observe whether or not the interview has been conducted properly and fairly". They are to be given "an opportunity to read and sign any written interview record". A support person may be excluded from an investigative procedure if they unreasonably interfere with the procedure, in which case the detained person is entitled to have another support person present: cl 35. 10. Section 281 of the Criminal Procedure Act imposes a restriction on the admissibility of admissions made by an accused person, in the course of official questioning, who was or could reasonably have been suspected by investigating officials of having committed a relevant indictable offence. Evidence of the admission is not admissible without an audio or video recording of the interview, unless there is a reasonable excuse as to why such a recording could not be made. The decision of Madgwick ADCJ His Honour's findings of fact 1. The voir dire occurred over three days on 13-15 November 2018, with his Honour delivering judgment on 23 November 2018. Evidence was given by the following Police officers, whose role is explained below: Sergeant Kirk, Senior Constable McSweeney and Detective Senior Constable Gibson. The applicant himself gave evidence, as did his mother, Ms Mann, and a solicitor from the ALS, Ms Gidlow. Relevant findings of Madgwick ADCJ were as follows. 2. The applicant's intellectual deficits were in the areas of reading, writing and comprehension. He also suffers from attention-deficit/hyperactivity disorder (ADHD) and at least earlier in his life was thought to have an "oppositional defiant disorder". He had been in special classes for slow learners at school since the age of about seven. 3. The applicant had been a visitor to, then boarder in, the home of the S family, which was headed by the grandmother of the two children, JS. When the applicant was boarding the family lived at a rural property in the mid North Coast region of the State. The applicant boarded under an arrangement between JS and Ms Mann, the applicant's mother. The applicant would help around the house and on the property. He received a disability support pension which was banked. He was not allowed to spend his own money as he wished. The only conventionally paid job he had had was working part-time as a kitchen hand some years before his arrest. He had had some difficulties with that job even though it required little intellectual acumen. He had never been in trouble with the Police before apart from being spoken to about the necessity of wearing a helmet while riding a bike. 4. On 22 February 2017 MS made some disclosures of the charged conduct to his grandmother or mother. JS rang the Police and indicated the general nature of the complaint against the accused and indicated that she would bring the applicant to the Police. 5. JS did not inform the applicant that she was taking him to the Police station, but rather told him that they were going to a Coles supermarket in a nearby town. She stopped in the Coles carpark in that town and rang the Police again, indicating that she would not take the applicant further. The applicant was unaware of all this because he was asleep in the back of the car, having been doing fencing work that day. 6. Two Police cars arrived at around 10.50pm. One was a caged truck. Sergeant Kirk woke the applicant, with some difficulty, and gave him what Madgwick ADCJ referred to as a "limited caution" which did not include that anything he said could be given in evidence. No effort was made to tape-record or videotape the conversation. Sergeant Kirk told the applicant that he had spoken to JS about what MS had told her. Sergeant Kirk asked the applicant "Do you know what that would be?" The applicant said "Yes". Sergeant Kirk said "Well what have you done?" The applicant said "I touch and done stuff with him, I should of not done". Kirk said "Did you touch M on the dick?" The applicant said "Yes". Kirk said "Did you stick your dick in M's bum and fuck him?" The applicant said "Yes". Sergeant Kirk then told the applicant he was under arrest for having sex with MS and would be taken to the Taree Police Station. The applicant got out of JS's vehicle and was searched and handcuffed. 7. The Police then travelled back to Taree Police Station. Sergeant Kirk attempted to contact the specialist squad for child sex assault. That squad declined to be involved. At about 2.30am Sergeant Kirk arranged for Detective Gibson from Forster Police Station to come to undertake further investigation. Sergeant Kirk told Detective Gibson what the applicant had said in the carpark. 8. Senior Constable McSweeney was the custody manager. She gave evidence that the applicant appeared to have intellectual impairment, and he had told her that he was Aboriginal and had learning difficulties. She telephoned his mother to request her to act as his support person. She made preliminary contact with the ALS. The applicant indicated that he wanted his mother with him when he spoke to the ALS in case he did not understand matters. 9. The applicant's mother lived about 2.5-3 hours drive away. On the phone she said she was very tired. Senior Constable McSweeney offered to call her on her mobile phone during the car journey, which she did. 10. Whilst waiting for the arrival of Ms Mann, Detective Gibson spoke to the applicant and confirmed with him what he had told Sergeant Kirk. The applicant added that he had been "silly" to do what he had done. 11. Ms Mann arrived at the station around 3:45am. Senior Constable McSweeney told her of her rights as a support person, orally and in writing. Senior Constable McSweeney had the applicant's mother sign an acknowledgement. She also then told the applicant of his rights under Pt 9 of LEPRA, including providing a full caution. He indicated that he understood and signed the standard acknowledgement. 12. There was some limited opportunity for the applicant and his mother to speak in reasonable privacy. Their evidence differed as to for how long they spoke, and whether Ms Mann knew of the oral admission that the applicant had made to Sergeant Kirk. 13. Shortly thereafter, the ALS was called again. A solicitor, Ms Gidlow, advised the applicant that he should say nothing, should not be interviewed and should not go to an interview room. The applicant and/or his mother – probably both of them – instructed Ms Gidlow that he accepted her advice. Significantly, Ms Gidlow informed Senior Constable McSweeney of her advice to the applicant, that he had accepted the advice, and thus did not wish to be interviewed or go into an interview room. 14. Senior Constable McSweeney gave evidence that she told Detective Gibson what the ALS had advised, and that the accused did not wish to be interviewed. Detective Gibson denied this. Judge Madgwick found Senior Constable McSweeney's evidence "clearly preferable" on this point. 15. There was no dispute that Detective Gibson asked Ms Mann – and not the applicant – whether the applicant wanted to be interviewed. This indicated that Detective Gibson perceived that the applicant's capacity for autonomy and his understanding were limited. There was every indication that the applicant was inexperienced and evidently not "street smart". The Police would quickly have established that he had no record of arrests. He appeared to Senior Constable McSweeney to have limited understanding and it is highly likely that she told Detective Gibson of that and/or that he made the same observation. Why else, his Honour asked, would he have asked the mother rather than a 22 year old man whether that man wished to participate in a record of interview? 16. There was a dispute about where the conversation between Detective Gibson and Ms Mann occurred and what she said to him. Ms Mann gave evidence that Gibson suggested that he and she go for a breath of fresh air, and he took her to a large garage within the Police complex, where they spoke. She said he said that it would be in the applicant's interests to have an interview because the applicant had already told him of some sexual activity with MS. Ms Mann said she told him the applicant did not want to be interviewed. 17. Detective Gibson's evidence was that they did not go outside of the operational areas of the Police station and, further, that she told him that the applicant did want to be interviewed. 18. Madgwick ADCJ preferred the evidence of Ms Mann over that of Detective Gibson in both respects, for reasons he explained (which are addressed further below). He believed that Ms Mann would have spoken up in the way she indicated and would have perfectly sufficiently indicated that the accused did not wish to be interviewed, although she probably did not do it as repetitively and forcefully as she remembered. 19. The judge found that Detective Gibson effectively required the accused to undergo the interview, contrary to what he knew had been and continued to be the applicant's desire. His Honour spoke of Detective Gibson overbearing the applicant's wish in this regard. He did not express clear findings as to the precise way in which this occurred nor how the applicant ended up in the interview room after the conversation between Detective Gibson and Ms Mann. 20. Based on the video of the interview, which he watched, Madgwick ADCJ described Ms Mann's disposition as "ashamed and depleted". She said very little during the interview. His Honour said that whether by accident or design Ms Mann was placed in the room in a way that would indicate that she was not on an equal footing with the other people in the room. He found it was likely that Detective Gibson said something to her about the limitations on her scope for interference in the investigation, although he made no definitive finding on what was said in that regard. 21. Madgwick ADCJ found that at the beginning of the interview Detective Gibson properly cautioned the applicant and adequately made sure that he understood the caution. His Honour concluded that the applicant did understand that, as a matter of his entitlements, he could choose not to be interviewed, but to his limited understanding he had no practical choice about the matter – he thought he would be in more trouble if he did not tell the truth than if he did. His Honour found that the applicant felt he should do the interview for a combination of reasons: his conscience told him that it was the right thing to do; he mistakenly thought he would be in less trouble if he told the full truth; he mistakenly thought that having made an admission to Sergeant Kirk it would do him no harm to tell the full story; he wished to "get it all out in the open, get it over and done with" and "get it off his chest"; he realised what he had done to MS was wrong but appeared not to understand the full gravity of it; and he seemed to think that telling lies to the Police might be a more serious thing than what he had done. His Honour's resolution of the issues 1. Madgwick ADCJ first determined the s 138 issue then determined the s 90 objection. In addressing the former he referred only to impropriety by Detective Gibson, but in addressing s 90 he referred also to what he regarded as improprieties by Sergeant Kirk and Senior Constable McSweeney. 2. With respect to Detective Gibson, his Honour characterised the impropriety as follows: Detective Gibson did effectively require the accused to undergo the interview, contrary to what Det Gibson knew had been and continued to be his desire, as relayed by his mother, not to be interviewed. This was quite improper, deliberate and indicative of an attitude of mind that would effectively put at nought the protections established by the LEPRA regulations. … In my view, in this case there was a matter of serious impropriety and contravention of the legislation and of the accused's right to silence which, among other things the legislation, is in aid of, and the impropriety was deliberate. … [T]he impropriety and the relevant damage was done by Detective Gibson taking charge, de facto requiring the applicant to go to the interview room and commencing to question the accused. 1. His Honour said that it was not necessarily improper for a Police officer to ask if a suspect wishes to confirm the instructions given to the ALS which had been conveyed to the custody manager (ie that they did not wish to be interviewed). He qualified that this would depend on the circumstances, including the experience the suspect had with Police officers and criminal procedure. 2. Madgwick ADCJ then conducted the balancing exercise required by s 138, concluding that the evidence should be admitted: Thus in my opinion the undesirability of admitting the evidence is quite high. However, s 138 requires a balancing act and in the balance must be considered the following matters. Much of the record of interview is true and highly reliable. Secondly, it is of great importance to the Crown case. As matters presently stand, it is the only evidence capable of convicting the accused of several classes of the alleged offences, including a number of instances of sexual assault with a child under ten years of age, an offence which carries life imprisonment. Finally, it is no fault of the Crown that that is so. It is notoriously difficult for investigating officials to get the full story from a young child in cases of suspected sexual assault of them, even when specially trained people are trying to do it. To the extent that the accused acknowledges the statements are true, I think the desirability of his admissions being admitted is very high and outweighs the undesirability of the evidence being admitted. I do not come to this view easily. 1. As regards the fairness objection under s 90, his Honour indicated that regard is to be had to the circumstances in which the admissions were made, and that could include the improprieties in obtaining the admissions. He described those improprieties, and their consequences, as follows: Here the improprieties – at the scene of arrest, minor improprieties and not calculated to elicit a confession, and at the police station, being of moderate importance, though unintended, in Officer McSweeney's failure diligently to ensure that the accused truly did understand the caution, and really serious concerning Detective Gibson's overbearing the accused wish not to be interviewed, were ultimately cured of unfairness or any contribution to it by the caution given by Detective Gibson in the interview. In my opinion, the accused understood his legal right not to say anything. 1. The reference to Senior Constable McSweeney failing "diligently to ensure that the accused truly did understand the caution" implicitly involves a finding of non-compliance with cl 38 of the LEPRA Regulation. 2. Madgwick ADCJ nonetheless decided not to exclude the evidence under s 90: The accused, in my opinion, did understand his legal rights after receiving legal advice and being cautioned on two occasions by different police officers and with his mother present whom he might have consulted. In the context of the limited extent to which lack of full and complete, let alone shrewd, comprehension can [avoid] or mitigate criminal liability, it does not seem unfair to me that the highly reliable admissions made here should be allowed into evidence. If any degree of unfairness remained, despite the additional caution once the interview was underway, it was not sufficient in my view, having regard to the reliability of the admissions, to amount to such unfairness as to warrant a discretionary judgment to refuse to allow the admissions into evidence. Challenges to the findings going to impropriety 1. Both sides made some criticisms of his Honour's findings as to impropriety. It is sufficient here to focus on the Crown's challenge regarding the conduct of Detective Gibson. It is unnecessary to address the Crown's challenge to the judge's findings as to the conduct of Senior Constable McSweeney, noting that his Honour did not rely on that conduct in reaching his conclusion with respect to s 138. 2. The Crown disputed the finding that Detective Gibson "effectively required" the applicant to undergo the interview. To begin with, it is important to distinguish between Madgwick ADCJ's findings of fact as to what occurred (the first step of the analysis) and the potential characterisation of the found conduct of Detective Gibson as improper (the second step). Here, I will address just the Crown's challenge to the fact finding. I reach my own view as to the appropriate characterisation of his behaviour below. 3. The voir dire involved examination and cross-examination of a number of witnesses, giving conflicting evidence, over three days. In a number of respects Madgwick ADCJ indicated he preferred the evidence of other witnesses over that of Detective Gibson. At the least this involved a conclusion that Detective Gibson's evidence was not reliable in significant respects. His Honour gave reasons for his conclusions. Those reasons were not ones mainly dependent on comparison with objective, documentary evidence or the like. He was making findings as to whose evidence was believable. In so doing his Honour was taking advantage of having seen and heard all the witnesses. This Court should thus be disinclined to overturn his conclusions on the relevant issues of fact absent a compelling basis for doing so: note, analogously, Fox v Percy at [25]-[31]; Lee v Lee at [55]; Dansie at [14]-[17]. In any event, the Crown's arguments on this point are distinctly unpersuasive. 4. The Crown submits that the finding that Detective Gibson effectively required the applicant to undergo the interview is inconsistent with his Honour's statement that the impropriety was "de facto requiring the accused to go to the interview room and commencing to question the accused", and his later observation that the impropriety was "ultimately cured of unfairness or any contribution to it by the caution given by Detective Gibson in the interview". The latter statement was directed to the fairness analysis undertaken for the purposes of s 90, and is not inconsistent with the impugned finding. 5. As to the former statement, the suggested difference seems to relate to being required to be interviewed and being required to go to the interview room. His Honour is somewhat ambiguous on this issue. As indicated above, his Honour made no express findings as to the precise manner in which Detective Gibson effectively required the applicant to undergo the interview, nor how the applicant ended up in the interview room after the conversation between Detective Gibson and Ms Mann. 6. In order to understand his Honour's findings, and review them, it is appropriate to have regard to the evidence. As noted above, in substance he accepted the evidence of Ms Mann. Her evidence on what occurred in her conversation with Detective Gibson included the following. After she had communicated the decision that the applicant would not be interviewed, Detective Gibson said "Let's go in and just see what Beau's got to say". She said "I'd prefer that he didn't speak to you". They then went back in inside and the detective said to the applicant "If you'd like to come through and we can continue with the interview if you're happy to do that". The applicant said "Whatever". Ms Mann said "Don't say anything". Ms Mann's evidence was that Detective Gibson and another detective then walked in front of them towards the interview room, followed by the applicant. As they were walking towards the interview room the applicant said "Mum I'm scared". In the interview room she sat in a chair placed by the detective. She gave evidence that she did not saying anything in the interview room about the applicant not wanting to be interviewed "because I didn't know I could say anything". 7. In the ERISP itself, as Madgwick ADCJ noted, Detective Gibson cautioned the applicant at the beginning of the interview and took steps to make sure that he understood it. In connection with giving the caution, the following exchange occurred: Q19: So, you don't have to answer any of our questions if you don't want to, OK? A: Righto. Q20: And do you agree when I spoke to you out in the charge, I told you that we're gunna ask you more questions about that incident - - A: Yep. Q21: - - those incidents - - A: Yep. Q22: - - and would be recorded on the three discs, you saw me put the three discs in there? A: Yep. Q23: OK. Now since you came in here Beau, have, have the police threatened you in any way? A: No. Q24: Um, have we made any promises to you? A: Nothing. Q25: No. OK. And have we, um, in any way, um, given, held, um, uh, how do I word it, offered you an advantage to come and do this interview? Have we told you that, um, you need to do this interview, um, for any, any particular reason? A: Um, no. 1. Notable in this exchange is that although Detective Gibson indicates that the applicant did not have to answer any questions, he did not ask if he was content to be interviewed at all. Question 25 was in fact a double question, leaving the answer ambiguous. Even if the answer was clear, asking whether the applicant had been told he needed to do the interview is not the same thing as being asked whether he consented to be interviewed. Nor was Ms Mann asked that question, even though Detective Gibson's evidence was that she was the one who had agreed to the applicant being interviewed. 2. In a subsequent exchange in the ERISP Detective Gibson noted that the applicant had spoken to someone from ALS over the phone, and confirmed this with Ms Mann, but did not say or ask anything about what that person had said. There was no reference to the ALS having advised both that the applicant would not be interviewed and did not wish to go into the interview room. 3. In the context of this evidence, and in the context of his related findings, Madgwick ADCJ's finding that Detective Gibson effectively required the applicant to undergo the interview can be understood as follows. Detective Gibson had been told by Senior Constable McSweeney that the ALS solicitor had told her that on the solicitor's advice the applicant did not want to be interviewed. Detective Gibson at no stage asked the applicant himself whether he wished to be interviewed, but instead asked the applicant's mother, thus recognising that the applicant's "capacity for autonomy and his understanding were limited". Ms Mann told him that the applicant did not want to be interviewed. Despite what he had been told by Senior Constable McSweeney, and despite being told that the applicant would not be interviewed by the person he implicitly recognised as having decision-making responsibility, he proceeded to lead the applicant into the interview room without explanation. He then commenced the interview. During the interview he did not ask either Ms Mann or the applicant if they were content for the applicant to participate. 4. It is perhaps more apposite to describe this course of events as "de facto requiring the accused to go to the interview room and commencing to question the accused" (one of his Honour's formulations) rather than the shorter formulation of "did effectively require the accused to undergo the interview". But the difference is not significant. 5. The Crown then submitted that the judge's findings pay insufficient regard to the applicant's evidence on the voir dire that he wanted to be interviewed. The Crown referred to extracts of his evidence, including in particular from the following passage: Q. Do you remember whether at that time you felt like you had a choice to do the interview or not? A. No, at the time I just thought I had to do it no matter what. Q. Do you remember why you thought that? A. To get it out of my system, get it off my chest at what had happened. Q. Do you remember whether you were told by anyone else that you had to do the interview or that was just what you thought? A. That's what I thought. Q. Can you just try and explain a bit more in your own words why you thought you had to do the interview? A. Because that was the right thing to do, to tell the truth. Q. At that time did you think you had the right not to do the interview? A. No, not at the time, no. Q. Do you remember being told at any time before doing the interview other than by the lawyer that you didn't have to do an interview? A. Not that I can recall. … Q. Why were you scared of doing the interview? A. Because I was just pretty much scared, yeah. HIS HONOUR Q. Did you have any idea what might happen to you? A. I thought I would have got locked up that night if I didn't say anything. NEILD Q. You thought you would get locked up if you didn't say anything? A. Yes. Q. Why did you think that? A. Because I thought if I didn't say anything I thought I would be in trouble. So I just wanted to tell the truth. 1. There is something in this exchange (and in related questioning) for either side: for example "I just thought I had to do it no matter what", versus it "was the right thing to do, to tell the truth". It manifests a significant degree of confusion and naivety as to whether he had to be interviewed and what he stood to lose or gain by the decision. The reasons why the applicant took part in the interview were listed by Madgwick ADCJ, as referred to at [69] above. The applicant presented as a classically vulnerable person. In this context, the Crown's submission that his Honour erred in paying insufficient regard to a desire of the applicant to participate in the interview is without merit. That desire was ambiguous at best. And even to the extent it existed it does not undermine the conclusion that Detective Gibson required the applicant to go to the interview room and to be questioned. 2. It should be noted, incidentally, that Madgwick ADCJ indicated that the applicant gave truthful evidence on the voir dire. He observed, for example, that the applicant "was very frank in his evidence in court and spoke freely against his own interests on a number of matters". 3. The Crown then submitted that the applicant did not give evidence that he had accepted the advice of the ALS solicitor, Ms Gidlow, and that on the contrary the evidence of his desire to tell the truth and avoid further punishment suggested that he had not accepted that advice. Yet that submission is contrary to the testimony of Senior Constable McSweeney, Ms Gidlow, and Ms Mann. Senior Constable McSweeney's custody record included a contemporaneous note regarding her conversation with Ms Gidlow, which reads: Suzie Gidlow returned phone call made, spoke to the person in the presence of his mother. ALS wish to confirm on their advice, the POI doesn't want to be interviewed by police, doesn't consent to forensic procedure, though if order is made, he will comply with order. 1. This is consistent with Ms Gidlow's corresponding record, made during her conversation with the applicant and his mother. Reviewing the document in an affidavit, Ms Gidlow recounted: I confirmed with the defendant that he accepted my advice. This is indicated by the tick I have placed in the "YES" box next to "Did the client accept your advice in relation to: talking to police?" I further received instructions to confirm this with police which is indicated by the ticks placed in the boxes next to "Instructions to confirm with police: No interview" and "Doesn't want to be taken into interview room". At the bottom of the form, underneath the heading "CONFIRMATION WITH POLICE AND DETAILS IN CUSTODY MANAGEMENT RECORD", I have ticked the boxes next to "Interview: Client does not wish to do interview with police" and "nor be moved to interview room". This means that I spoke with Senior Constable McSweeney and confirmed the defendant's instructions that he did not want to participate in an interview with police, nor be moved into the interview room. 1. There was thus ample evidence supporting Madgwick ADCJ's findings that Ms Gidlow advised the applicant that he should not be interviewed and should not go to an interview room, that it was likely that both the applicant and Ms Mann indicated they accepted that advice, and this was then communicated to Senior Constable McSweeney. 2. The same is true of Madgwick ADCJ's finding that Senior Constable McSweeney conveyed this information to Detective Gibson. While Senior Constable McSweeney could not recollect the precise wording she used, she said in such a situation she would usually have said words to the effect of "ALS has been spoken to, don't want to be interviewed, they're all yours". The fact that the applicant did not give positive evidence of having accepted Ms Gidlow's advice is of little moment given the weight of evidence supporting the conclusion. 3. The Crown effectively sought that this Court overturn Madgwick ADCJ's general acceptance of Ms Mann's account of her conversation with Detective Gibson in favour of his version that she had consented to the interview taking place. Not only does that argument meet the difficulties referred to at [79] above relating to such findings, it does not grapple with the cogent reasons his Honour gave for preferring Ms Mann's account in its essentials (though not all its details – see above at [66]). He noted that she did appear to be a partial witness and prone to unconscious exaggeration of matters in her son's interest. However, he also considered it highly likely that she would have accepted the ALS advice. That conclusion was readily available. 4. Further, the conflict between the evidence of these two witnesses must be seen in the broader context of Detective Gibson denying that the conversation took place outside the operational areas of the Police station. His Honour gave reasons for disbelieving him and believing her on this issue which included the following: Gibson was at odds with McSweeney on whether the information from ALS had been passed on to him by her; the applicant, whose evidence was very frank, gave evidence that he saw his mother and Gibson leave the internal areas; and Gibson had an interest in securing a conviction and had probably concluded from the applicant's frankness with Sergeant Kirk and him that the applicant was likely to answer questions if interviewed. These reasons are persuasive. That the judge accepted Ms Mann's evidence as more credible and reliable as to where the conversation took place, based on this reasoning, reinforces his acceptance of the core content of the conversation. 5. The Crown's challenge to findings made by Madgwick ADCJ is not made out. The balancing exercise undertaken by Madgwick ADCJ 1. The applicant contends that Madgwick ADCJ erred, amongst other things, by failing to take into account two mandatory considerations in the balancing exercise: whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention (s 138(3)(g)) and the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law (s 138(3)(h)). 2. The High Court explained the significance of s 138(3)(g) in relation to Police misconduct in Kadir at [16] (citations omitted): The ALRC identified the deterrence of police misconduct as a consideration informing the public interest in not admitting evidence that has been improperly or illegally obtained. It proposed that the availability of alternatives to the exclusion of evidence, such as civil actions, criminal prosecutions and internal and external disciplinary procedures, should be an important factor in the exercise of the discretion. Where an officer is likely to be dealt with in another forum for his or her misconduct, the need to exclude evidence as a deterrent is reduced. ... Here, the trial judge appears, correctly, to have treated the fact that no proceedings are likely to be taken against any person in relation to the contravention of the SDA as a neutral factor. 1. The applicant argued that the onus was on the Crown to establish whether any other proceeding was likely to be taken in relation to the improprieties, it had not done so, and that meant "the full need for deterrence is there", which the judge did not take into account. The argument is unconvincing. If the Crown had established that some other action would have been taken against the improprieties then, as the High Court indicated, the need for deterrence is reduced. But there is nothing in the judgment to suggest that this factor was relevant here or acted to reduce the need for deterrence. It is simply not mentioned, no doubt because it was not raised by either side. Madgwick ADCJ did not err by not referring to a factor not raised and which, if made out, would have reduced the force of the considerations in favour of excluding the ERISP. Here, as in Kadir, par (g) was a neutral factor. 2. The argument as to s 138(3)(h) has more force. Madgwick ADCJ identified three considerations weighing in favour of admissibility (see the quotation above at [73]): that much of the interview is true and highly reliable; that the ERISP was of great importance to the Crown case; and that it "is notoriously difficult for investigating officials to get the full story from a young child in cases of suspected sexual assault of them, even when specially trained people are trying to do it". As regards the third consideration, although his Honour does not refer in terms to the difficulty of obtaining the evidence – ie the admissions in the ERISP – by using the language of difficulty of obtaining evidence in such cases his Honour invokes either s 138(3)(h) itself or a closely analogous factor (recalling that the list of factors in s 138(3) is not exhaustive). The High Court in Kadir at [37] similarly referred not only to the difficulty of obtaining the particular surveillance footage being considered there but also to the difficulty of lawfully obtaining evidence of the illegal activity in question. 3. Judge Madgwick's judgment was delivered on 23 November 2018. The High Court's judgment in Kadir was handed down just over a year later, in February 2020. The High Court said the following at [20] (citations omitted, emphasis added): The significance of factor (h) to the balancing of the competing public interests under s 138(1) will vary depending upon the circumstances. In a case in which action is taken in circumstances of urgency in order to preserve evidence from loss or destruction, it is possible that factor (h) would weigh in favour of admission, notwithstanding that the action involved deliberate impropriety or illegality. Putting such a case to one side, where the impropriety or illegality involved in obtaining the evidence is deliberate or reckless (factor (e)), proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh against admission. By contrast, where the impropriety or illegality was neither deliberate nor reckless, the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration. The assumption on which the parties and the Courts below proceeded, that proof that it would have been difficult to lawfully obtain the surveillance evidence was a factor which weighed in favour of admitting evidence obtained in deliberate defiance of the law, inverts the policy of the exclusion for which s 138 provides. 1. The current case is not one where there were circumstances of urgency. And it is evident that Madgwick ADCJ considered the impropriety of Detective Gibson to have been deliberate. Thus in this case, contrary to his Honour's conclusion, the difficulty of obtaining the evidence legally was one which weighed against admission. And the same is true insofar as the issue is considered at a somewhat higher level relating to the difficulty of obtaining inculpatory evidence generally in cases of this kind. Such a general difficulty may give an incentive for a deliberate "cutting of corners" by those gathering evidence (as referred to in the Australian Law Reform Commission report quoted in Kadir at [19]). It is important that any willingness by Police to give into that temptation be deterred. 2. The Crown submitted that his Honour's statement "was not merely a general observation" but rather "was an observation directed to the particular circumstances of the present matter where, as his Honour had earlier observed, MS had described just two of the 44 offences with which the applicant has been charged". That characterisation is unpersuasive. The consideration identified by his Honour is a general one, as indicated by his reference to the notorious difficulty of obtaining a full account from a young child in cases of the identified kind. Even if the reason was understood to relate to the particular facts of this case, it nevertheless involves viewing a par (h) type factor as one militating in favour of admission of the ERISP, where the contrary view should have been taken. 3. In light of the subsequent decision in Kadir, his Honour erred in treating the difficulty of obtaining evidence as a factor militating in favour of admission rather than as a factor going the other way. As the factor was one of three relied upon, and as his Honour indicated that he had not come to his conclusion easily, there is no doubt that it played a material role in his balancing assessment. The error here was of a House v The King kind, just as it was in Kadir, as his Honour acted upon a wrong principle. 4. This conclusion suffices to find that the decision to admit the critical evidence in the ERISP was legally flawed. It is not necessary to address the applicant's other arguments in support of that conclusion. Reconsidering the balancing exercise 1. For the reasons explained above at [33]-[36], I will now go on to consider the admissibility of the ERISP under s 138 of the Evidence Act. 2. It is sufficient to focus on the conduct of Detective Gibson. First, as to the relevant facts, they are as found by Madgwick ADCJ, as further elucidated at [86]-[87] above. 3. The second step is consider whether or not his conduct in obtaining the evidence should, in context, be characterised as improper in the relevant sense. That is an issue of characterisation, not merely fact. I consider that Detective Gibson's conduct was improper in the sense of being a significant departure from minimum standards of acceptable Police conduct as follows. 4. The conduct of Detective Gibson acted to nullify the protective effect of cll 31, 34, 36 and 37 of the LEPRA Regulation. The applicant was a vulnerable person in the sense employed in the LEPRA regulation both as an Aboriginal person and because he has an intellectual impairment. Detective Gibson was aware of those matters, having been told by Senior Constable McSweeney. Clause 37 of the LEPRA Regulation is directed towards facilitating Indigenous individuals having access to legal advice following their detention, and that was availed of here. Yet Detective Gibson ignored the fact, which had been communicated to him, that the applicant and his mother had accepted the advice of the ALS and had expressed that they did not want to be interviewed. 5. Clause 36 of the LEPRA Regulation requires that the person responsible for the welfare of a detained person with impaired functioning be notified, and that occurred. Clause 31 entitles a vulnerable person to have a support person present during an investigative procedure. Ms Mann attended the Police station in that context. Detective Gibson sought to persuade her to let the applicant be interviewed, thus recognising that in practice she was the responsible decision-maker on the issue. She said no. 6. Despite his knowledge of what had been communicated to ALS, and despite what he had been told by the applicant's mother, he took the applicant into an interview room and commenced an interview without explanation, and without asking either Ms Mann or the applicant if they wished to do the interview. No doubt Detective Gibson considered – correctly – that given the applicant's earlier admissions, the applicant would likely respond to questioning in frank terms. The motivation of an investigator to try to get the applicant talking on the record is understandable. It does not justify undermining the legal protections of vulnerable people. 7. It would have been reasonable for Detective Gibson to confirm with Ms Mann that the applicant was not to be interviewed. But having done so, and been told no, it was quite improper to commence the interview anyway, without explanation or further checking, in order to get the applicant talking. In so doing Detective Gibson undermined the operation of cll 31, 36 and 37 of the LEPRA Regulations. 8. The seriousness of the impropriety is aggravated by the fact that this conduct occurred shortly before 4:48am (when the interview commenced) in circumstances where the applicant had been arrested at 10:50pm the night before, without any warning; where he was tired after manual labouring that day; and where Ms Mann had herself only arrived at the station after a long drive. 9. There was further impropriety in the way the interview was conducted. Detective Gibson did not properly facilitate Ms Mann's role as support person during the interview. She was given information as to her role. However, cl 34(1) of the LEPRA Regulations provides that a support person may assist and support the suspected person, observe whether the interview is being conducted properly and fairly, and identify communication problems. These protections were undermined as she was effectively sidelined in the interview process, in particular by being "placed in the room in a way that would indicate she was not on an equal footing with the other people in the room" (to quote Madgwick ADCJ). 10. Taken as a whole, the conduct of Detective Gibson involved impropriety in the sense employed in s 138. Indeed, here the conduct is appropriately characterised as being substantially improper. 11. The applicant argued that there was further impropriety in what Detective Gibson said to Ms Mann, which was argued to be misleading. Ms Mann gave evidence that when seeking to persuade her the detective said "Beau had already told things to him and he just insisted like he said that it would be best if he continued with the interview". Detective Gibson would undoubtedly have been aware that the admissions already made by the applicant at that point to Sergeant Kirk and himself may well have been inadmissible due to the lack of a proper caution and the fact that they were not electronically recorded. The alleged statement to Ms Mann implied to the contrary, that is, that the Police already had evidence they could use against him such that it was best he explained himself. If the comment was made then it would have been misleading, and an impropriety, both in implying that the Police already had usable evidence against the applicant and in suggesting that it was in the applicant's interests to undertake an interview. 12. However, Detective Gibson denied making such a comment, and Madgwick ADCJ made no finding on the issue – it seems his Honour was not asked to. In that context, and where it is not necessary to reach a conclusion on this point in light of the other findings, I do not rely on the point. 13. The third step of the process is to consider whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained, taking account of the factors listed in s 138(3). The burden of persuasion falls on the Crown. 14. As regards par (a), the probative value of the evidence was high – the ERISP included admissions of the charged conduct. As regards (b), the evidence was of great importance in the proceeding. Counts 21-38 depended upon that evidence being admitted, and the admissions were also invoked as tendency evidence by the Crown in relation to the other counts. As regards par (c), all of the charges were serious, and some were very serious. Notably, five of the 13 charges which depended upon the admissions were of sexual intercourse with a child under 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW), for which the maximum penalty is life imprisonment. All of these matters are significant and militate in favour of the ERISP being admitted. 15. That being said, the weight of these points should not be overstated. The factors in pars (a)-(c) relate to the importance and utility of the evidence. The requirement to consider such matters does mean that the Court needs to consider the benefit of the end of using the evidence, to be weighed against the improper or unlawful means used to obtain it. Sometimes that benefit will be sufficient to render it more desirable that the evidence be admitted even given the means employed. But it does not mean that evidence obtained by such means will always be admissible if it is the only evidence available to prove very serious charges. A balancing process is still required. In criminal proceedings where the prosecution seeks to adduce evidence illegally or improperly obtained by law enforcement agencies, courts are required "to balance the desirable goal of convicting wrongdoers against the undesirable effect of giving curial approval, or even encouragement, to the unlawful conduct of those whose task it is to enforce the law": Kadir at [12], see also [13]. The end benefit will not always outweigh the detriment of the means. 16. Turning then to par (d) and par (e), the conduct was deliberate. And, as indicated above, it is appropriately regarded as involving impropriety to a substantial degree. In fairness it should be noted that Detective Gibson, too, was operating in the early hours of the morning. That may offer some limited mitigation for the conduct. But neither that factor, nor the temptation to try to get the applicant talking, justifies the conduct. 17. As to par (f), the applicant did not seek to place any particular reliance on rights contained within the International Covenant on Civil and Political Rights. 18. Just as for Madgwick ADCJ (see above at [100]), there is nothing before the Court to suggest that any other proceeding will be taken against Detective Gibson, thus par (g) is a neutral factor in this case – that is to say, there is no other suggested proceeding which would reduce the need for deterrence. 19. As to par (h), this factor militates against the evidence being treated as admissible for the reasons discussed above at [103]-[104]. 20. In sum, there are significant factors militating in favour of admitting the ERISP. But where the impropriety directed to a vulnerable person was deliberate and very serious, and in circumstances where obtaining such evidence without impropriety or illegality was likely to be difficult, I consider it clear that the desirability of admitting the evidence does not outweigh undesirability of admitting it in light of the manner in which it was obtained. My view, thus, is that the evidence is inadmissible pursuant to s 138 of the Evidence Act. 21. That conclusion illustrates, incidentally, that if I had applied the correctness standard of review I would have overturned the decision of Madgwick ADCJ regardless of any error as to the significance of s 138(3)(h), as I have reached a different view as to the appropriate application of the section to the evidence. Conclusion and orders 1. It was not in dispute that the applicant's convictions on 13 counts (numbered 21-24, 26-28, 30, 32, 34 and 36-38) were reliant on the applicant's admissions contained in the ERISP. As explained above at [36], in the circumstances of this case the conclusion that the ERISP was and is not admissible indicates that the interests of justice militate against ordering a retrial for those counts. The Crown accepted that if this Court concluded that the ERISP should not have been admitted then acquittals should be entered for those counts. That should occur. 2. It was also not in dispute that the applicant's convictions on the other 20 counts on which he had pleaded not guilty were supported by other evidence, but nevertheless relied on the admissions made in the ERISP, not least because those admissions were relied upon as tendency evidence. Thus the Crown accepted that the convictions on these counts should be quashed but a retrial ordered. The applicant did not dispute that a retrial should be ordered on those counts. That should occur. 3. The applicant had pleaded guilty to 12 further charges, described as counts 3, 9, 13, 15, 19, 21, 25, 27, 31, 33, 37 and 41 of the "plea indictment". The sentence on those charges was an aggregate one, imposed for those charges along with the other convictions which will now be set aside. The sentence on those 12 charges must therefore also be set aside and remitted for resentence. 4. The orders of the Court should be as follows: 1. Grant leave to appeal (if required) and uphold the appeal. 2. Quash the appellant's convictions on counts 21-24, 26-28, 30, 32, 34 and 36-38 on the indictment and a judgment of acquittal be entered in their place. 3. Quash the appellant's convictions on counts 1-20 on the indictment, which counts are to be subject to a retrial. 4. Quash the aggregate sentence imposed on the appellant in the District Court on 20 August 2021, and remit the matter to that Court for the applicant to be resentenced in due course on counts 3, 9, 13, 15, 19, 21, 25, 27, 31, 33, 37 and 41 of the plea indictment. 5. List the matter in the arraignment list in the District Court on 20 October 2023. 1. N ADAMS J: I have had the significant advantage of reading the judgment of Kirk JA in draft. I agree with the orders proposed by his Honour for the reasons provided. As his Honour has noted at [21], the question of the appropriate standard of appellate review with respect to a decision under s 138 of the Evidence Act is "complex, borderline and important". For example, there are significant textual differences between s 97(1)(b) and s 138(1) and (3) of the Evidence Act which, on one view, might limit the assistance to be had on this question from The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61]. In the circumstances I agree with his Honour that this was not the case to determine the issue as it was unnecessary to do so in order to dispose of the appeal. 2. R A HULME AJ: I agree with Kirk JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2023