Supreme Court New South Wales Medium Neutral Citation: R v MEYN, John Michael (No 1) [2012] NSWSC 1441 Hearing dates: 19, 20, 21 November 2012 Decision date: 21 November 2012 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Tender of ERISP allowed. Catchwords: CRIMINAL LAW - Evidence - application on voir dire to exclude improperly obtained evidence - domestic homicide - electronically recorded interview with accused - whether improperly obtained - whether police reckless as to accused's physical state at time of interview - intoxication - fatigue - failure of interviewing officers to inspect custody management records noting accused's intoxication - whether evidence obtained in consequence of impropriety. Legislation Cited: Evidence Act 1995 - s 138 Law Enforcement (Powers and Responsibilities) Act 2001 - Part 9 Cases Cited: - Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 - Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612 Category: Procedural and other rulings Parties: Crown (Prosecutor) John Michael Meyn (Accused) Representation: Counsel: T.W. Thorpe (Crown) K.A. Chapple SC (Accused) Solicitors: Director of Public Prosecutions (Crown) George Sten & Co (Accused) File Number(s): 2011/116480 EX TEMPORE Judgment 1Prior to the empanelment of the jury, senior counsel for the accused, Mr Chapple SC, advised the Court of an objection to the tender of a recording of an electronically recorded interview with his client (referred to as the "ERISP", i.e. an electronically recorded interview with a suspected person). 2I heard evidence and submissions concerning that objection on Tuesday 20 November 2012 and this morning, Wednesday 21 November 2012. It is proposed to empanel the jury on Thursday 22 November 2012. 3The accused has already been arraigned on a charge that on 8 April 2011, he did murder Yvette Rathbone. Ms Rathbone is his former de facto and mother of his children. He has pleaded not guilty to that charge, and it is anticipated he will maintain that plea when he is arraigned before a jury. 4The Crown case is that the accused bashed and strangled Ms Rathbone sometime between 9.30am and 12.50pm on 8 April 2011. He was arrested at a "lookout" at Glenbrook National Park with his children at approximately 4.45pm on 8 April 2011. He was transported to Penrith Police Station. He was interviewed by the police in a number of sessions commencing at 7.36pm on 8 April 2011 and concluding at 3.23am on 9 April 2011. The total time he was interviewed by the police was said to be two hours nineteen minutes, and the total time of the breaks between the interview sections was said to be five hours and twenty-nine minutes. Section 138 of the Evidence Act and the proposed basis for rejection 5Mr Chapple SC seeks the rejection of the entirety of the ERISP under s 138 of the Evidence Act 1995. It provides: "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." 6The onus of establishing impropriety under s 138(1) rests upon the party seeking the exclusion, which in this case is the accused. If impropriety is established, the burden of persuasion then falls upon the party seeking the admission of the evidence, which in this case is the Crown (see Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612 at [33] per Basten JA; and Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at [28] per French CJ). 7In discussing the concept of impropriety in Robinson, Basten JA at [28] stated three propositions, the first two of which were: "It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as the 'minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respects; it must be 'quite inconsistent with' or 'clearly inconsistent' with those standards." 8Later, at [36] his Honour stated: "In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct would not be sufficient to demonstrate impropriety." Then his Honour continued at [37]: "Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion." 9In announcing the basis for the challenge of the admission to the ERISP, Mr Chapple SC contended that the ERISP was obtained in consequence of impropriety for the purposes of s 138(1). He submitted that: "[T]he police did not establish at the outset of the recorded interview and/or continued to do so during the course of the interview whether the accused was competent to be interviewed and to continue to be interviewed and that the accused was consenting and continued to consent voluntarily to be interviewed." 10He submitted further that: "[T]he accused was not competent or consenting to be interviewed voluntarily because of intoxication and/or fatigue." 11As I will explain, in his final submissions, Mr Chapple SC's submissions were principally focussed on the final part of the ERISP that was conducted from 2.21am to 3.23am on 9 April 2011. The accused's arrest until 8.56pm 12On the voir dire the Crown tendered the video recording of the interview. I was invited by both counsel to view it and they were content for me to do so in chambers. The Crown also led evidence from the two interviewing police, Detective Sergeant Bradley Element and Senior Constable Chang, the relevant custody manager responsible for the accused, Sergeant Davis, and two officers who attended the scene of the accused's arrest, Detective Senior Constable Lothian and Detective Sergeant John William Fokes. I note that Senior Constable Chang also attended at that scene. The accused also gave evidence on the voir dire. 13In light of the test posed by s 138 and the manner in which the allegation of impropriety was framed, it is important to note the evidence as to the accused's physical and mental state as it was known or ought to have been known by the interviewing officers. 14Around 4.45-4.50pm on 8 April 2011, Detective Senior Constable Lothian arrested the accused at the lookout in Glenbrook National Park. He spoke with him and handcuffed him at the scene. In his evidence in chief, Detective Senior Constable Lothian was asked about any opinion he had formed about whether the accused had been drinking. He stated that he believed the accused was "mildly intoxicated". He added that what made him form that view was that the accused was "quiet, a bit withdrawn, distant". He added that the accused asked him questions and that they had a "fairly normal conversation". 15In cross examination, Detective Senior Constable Lothian was asked whether there was any necessity for him to convey his opinion about the state of the accused's intoxication to the officers responsible for his custody at Penrith Police Station. His answer was that the accused was "mildly intoxicated" and that "if he was intoxicated to the point where his health was in question or something like that I would have communicated that". 16There was also evidence that at the lookout the accused was in possession of some beer. There were a few empty bottles at the scene but Detective Senior Constable Lothian also noticed a number of bottles were missing from six-packs that were found there. This was confirmed by photographs taken by Detective Sergeant Fokes at the scene. 17At around 6.02pm, a constable from Penrith Police Station recorded entries in a document entitled "Custody Management Record". Under the heading "Brief Assessment" and against the question whether the person complained of, or whether he observed any sign of, intoxication are the words "moderately effected [sic]". In answer to the question "[i]s the person's behaviour suggestive of being under the influence of drugs or alcohol", there is recorded the comment "alcohol 8 beers first about 10.30am". 18Sergeant Davis was the custody manager at the Penrith Police Station. Around this time, i.e. 6pm, he read to the accused a pro forma statement setting out his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA Act"). He asked the accused if he understood what was read to him. He recorded the accused as having said "yes". He also asked the accused whether there was anyone he would like the police to contact. He recorded the accused as having said "no". He asked the accused if he had any questions in relation to his rights and the accused said "no". The accused signed the form acknowledging his receipt of the pro forma statement. 19Sergeant Davis was an officer of 22 years experience. He was asked whether he was able to form a view as to whether at this point the accused was intoxicated. He stated that he "formed the opinion he was moderately affected by alcohol". Sergeant Davis explained this as meaning that: "He still had all his functions, he was able to stand unassisted, not leaning against the custody counter. When I asked him questions he appeared to be able to process that information and his answers were considered. His speech wasn't affected. He made a statement at the time that he had been drinking beer during the day in answer to the questions asked as a standard part of dealing with him." 20In cross examination, Sergeant Davis stated that the factors that suggested the moderate affectation by alcohol were first that he could smell alcohol and, second, the answers that had been given by the accused concerning his alcohol consumption as recorded in the custody record. 21At around 7.20pm there was a conversation between Detective Sergeant Element and the accused at which Senior Constable Chang was present. Detective Sergeant Element had noticed that the accused appeared to be upset and to have been crying. He described his eyes as red and watery and his voice as seeming slightly shaky. Detective Sergeant Element recalled the conversation that ensued as follows: I said: "John, my name is Detective Sergeant Brad Element and this is Detective Stuart Chang. We are going to speak to you further about your relationship with Yvette and the circumstances surrounding her death today." He said, "Yep. Where are my kids?" I said, "I believe they are at the police station." He said, "Ok." I said, "I understand you have had a couple of beers before the police located you. Do you feel intoxicated now?" He said, "No, I just feel like shit." 22Detective Sergeant Element noted that "[a]s he said this tears began to well in his eyes". Detective Sergeant Element said that he added: "I can't understand what you are going through now. We do intend to speak to you formally about this and that will be recorded on CDs. I will make those arrangements shortly." Also at this time the accused was offered a meal but declined it. 23In his evidence on the voir dire Detective Sergeant Element stated that at this point his opinion was that the accused was "not suffering from intoxication or if at all to a very small degree". At that time Detective Sergeant Element had fourteen years of experience in the Police Force. Senior Constable Chang's observation was "that there wasn't any signs of intoxication". Senior Constable Chang was also an experienced police officer. 24The ERISP commenced at 7.36pm. After taking his initial details, Detective Sergeant Element asked questions of the accused as to whether any threat or promise had been held out to him. The accused stated that he was unsure what was going on. At one point he states that he has not obtained any legal advice. Detective Sergeant Element then asked the accused whether he wished to obtain legal advice. The accused stated, "Maybe I should, yeah." Detective Sergeant Element then stated that the interview is being suspended, that he will be returned to the charge room and that the custody manager, Sergeant Davis, will assist him in making contact with a legal representative. The interview was then suspended. 25The custody record contains an entry that at around 7.50pm the accused requested to contact a solicitor and was given the use of a telephone and telephone book. The entry records that he declined the use of either and that he stated, "Who will I call, do you have a solicitor?" and then said, "I'll do the interview, won't make any difference anyway". 26In his evidence, the accused said that Sergeant Davies had given him one contact which he had rung but he only obtained an answering machine. He said that he thought to himself that it was late and that was why no one was answering. He said that he thought to himself, "I was just over the day so I basically said, 'I'll do your interview'". 27The ERISP resumed at 7.54pm. It recorded the accused's agreement to continue without him contacting a solicitor. The accused was reminded of his right not to say anything and how his answers could be used in evidence against him. The accused stated that he understood that. From that point until 8.56pm the accused was questioned about various matters concerning his relationship with the deceased and the events surrounding her death. 28In their statements Detective Sergeant Element and Senior Constable Chang say that there was a conversation with the accused shortly after the interview was suspended. They stated Detective Sergeant Element told him: "We are going to apply for a warrant which will authorise us to keep you in custody longer than four hours. You can talk to the Magistrate about that if you like." 29They stated the accused said "no". Detective Sergeant Element then said, "Take this opportunity to have a break. Do you want to have that dinner now?" And the accused said "no". 30It is appropriate at this point to note my observations about the accused's presentation during the ERISP from 7.36pm to 8.56pm. Generally, the accused was passive and quiet. His speech was low in volume but not slurred. He was attentive and his answers were responsive. At particular points he was emotional and placed his head in his hands. However, the topic of the questioning was the death of his ex-girlfriend and mother of his children and the suggestion that he was somehow involved. His emotional responses were, in that sense, appropriate and were not suggestive of him being in some way incompetent, fatigued or intoxicated. Instead, they were entirely consistent with what would be expected to be the emotional impact of those events upon him. 31At this point I note the accused's evidence as to his physical state at this time. The accused's evidence was that he did not eat anything on 7 April 2011. He said that from 7.45pm on 7 April 2011 until when he went to sleep at around 3am on 8 April 2011, he drank between "11 and 13 beers". He said he woke up at 6.30am on 8 April 2011, commenced consuming alcohol from 8am and continued to do so until 10am. He said he drank a further "five to seven" beers. He said he ate a chicken roll around 9.30am but did not eat anything else that day. He said sometime between midday and 1pm he purchased alcohol at a hotel in Lapstone. He said from that time until the time he was arrested at the lookout in the National Park, he consumed another "six to seven" beers. 32This account was strongly challenged in cross examination by the Crown Prosecutor. It was suggested that the accused had exaggerated his level of alcohol consumption. The Crown Prosecutor pointed to a number of aspects of his conduct between 11am and 1.30pm which were said to be inconsistent with his being well affected by alcohol. It was also suggested his account was inconsistent with what he stated in his ERISP. 33I accept that the accused consumed a substantial amount of alcohol between the evening of 7 April 2011 and the afternoon of 8 April 2011, although I am not persuaded that it was as much as he stated. Moreover, as at the start of the ERISP I am not satisfied that he was displaying any obvious signs of alcohol intoxication. In fact, to the contrary, to any reasonable observer during that part of the ERISP, the accused appeared to understand what was occurring and appeared to be in a position to make an informed decision to agree to be interviewed. This is exemplified by the passage in which he stated he did not understand what was going on and that he wanted to seek legal advice, which then led to the suspension of the interview. 34I note that the accused was asked in chief why he wanted to continue, even though he could not contact a solicitor. He stated: "A. The main reason why I entered into this interview was because I thought it would help me later on trying to be cooperative as much as I could and supply what I could remember at that stage. ... Q. You are not suggesting a police officer said - A. No. Q - this will help you or anything like that? A. No." 35This evidence is completely consistent with the accused having made his own assessment about whether he would continue with the interview and his assessment being a rational one. 36In the end result, at the time of his arrest, Detective Senior Constable Lothian formed the view that the accused was mildly intoxicated. Sergeant Davis formed the same view at 6pm. As at 7.20pm, Detective Sergeant Element had specifically discussed with the accused his ability to participate in the interview and he had confirmed that he could. I accept Detective Sergeant Element's evidence and that of Senior Constable Chang that nothing in the accused's presentation during this period of the interview from 7.36pm to 8.56pm suggested to the contrary. Their evidence is strongly supported by viewing the ERISP. It reveals the accused unsure of what was going on at first and then, having had matters explained to him, taking the opportunity to consider whether he wanted to seek legal advice. He then decided he wanted to continue in the absence of legal advice and responded appropriately to the questions posed. 8.56pm to 12.43am 37At some point prior to the break at 8.56pm, Sergeant Davis entered the interview room and advised those present, "20 minutes on investigation time". This conveyed to the investigating officers that if they wished to continue questioning the accused they would need to obtain a warrant under Part 9 of the LEPRA Act. After the accused was returned to the holding cell, they sought to obtain that warrant. There were various logistical difficulties in doing so. It was not obtained until 12.10am. The warrant authorised the accused's detention for four hours, although Detective Sergeant Element and Senior Constable Chang were of the belief that time did not run if the accused was resting. 38The custody records contain four entries between 8.56pm and 11.50pm recording observations of the accused in his cell. He is recorded as sleeping at 9.54pm and 10.34pm. At 10.58pm he is recorded as "woke and rolled over". At 11.50pm, he is recorded as "woken and went back to sleep". 39In their statements, both Detective Sergeant Element and Senior Constable Chang said that at about 12.31am they went to the custody area and saw the accused asleep in the dock area. Senior Constable Chang said the accused was woken but not by whom. The accused's evidence about this event was as follows: "Q. In the holding cell, did you sleep? A. No, I probably lay down for the whole time from what I can recall, but I didn't sleep the whole - from start when I was put in there to when I was called again. I may have had a slight nod off for a few minutes, I can't say exactly. Q. When you say you lay down, there is facility to lie on, like a bed? A. It is not a cushioned bed, but it is like a slab or something, a bench. Q. Did you say you were laying down most of the time or all of the time? A. Pretty much all the time, just about all the time, yeah. Q. Now what happened, in your memory, to cause you to go from the holding cell to the interview again? Could you just cast your mind back to that. This is the second break we are speaking about here at page 30. Do you remember anyone coming for you? A. This whole interview thing was pretty blurry, but I do recall the door opening and I think it was Mr Element saying that he would like to ask - continue with the interview, to get my consent. I am not sure exactly what he said. Q. Did you say anything to that? A. No, I just thought that - yeah I thought he was, you know, basically telling me, I thought I was obliged to do it. Q. Can you remember being told in the interview the opposite, that you didn't have to say anything? A. During the interview? Q. Yes? A. Yes, I do recall him saying throughout the interview, yeah. Q. You kept being interviewed? A. Yes, I did. Q. Why did you do that? A. I had already entered into the interview so I thought I would continue through it." (emphasis added) 40This evidence suggests that the accused did obtain some sleep during the break between 8.56pm and being roused again at 12.30am, although the amount is difficult to gauge. The observations in the custody record suggest that he obtained more sleep than he indicated in these answers. Sometimes people's ability to estimate how long they have been asleep for can be unreliable. These answers also suggest that, in fact, Detective Sergeant Element, or perhaps Senior Constable Chang, asked the accused for his consent to be interviewed again before he was returned to the interview room. 41The ERISP resumes again at 12.31am. Detective Sergeant Element is recorded as reciting that the accused had a "bit of a snooze", and the accused had been shown "a document", which I infer was a reference to the detention warrant. The accused is again cautioned and indicates that he understands by nodding his head. I note at this point the accused has his head in his hands. The accused then mentions he is "cold" and utters the word "sleep". Detective Sergeant Element does not appear to respond to the word "sleep". It appears he did not hear that word uttered. Efforts were then undertaken to obtain a blanket for the accused. 42The questioning proceeds for about ten minutes or so before the accused is asked whether he can recall speaking to the custody manager when he arrived at the station. In response to that question, he says he was "probably a bit drunk" and then says "I feel drunk". He is asked if he knows how many beers he had and he says "no". 43The questioning then continues as follows: "Q376. All right. Do you feel competent to be able to continue the interview? A. Not really. Q377. Not really, all right. Well, in that case we'll, we'll stop the interview again there and make some arrangements for you to have a - have some time out to have a bit of a sleep. Then we might come back and speak to you again later on. Ok. The time's 12.42. All right. I'm going to suspend the interview now, John, just, on the basis that you said you're not really feeling up to the interview at this stage. Ok. And I understand you, you were having a bit of a sleep when we woke you up to come back in here. So, mate, we'll put you back in the charge room, let you have a bit more of a break and we'll come back and see you a bit later on. Ok." The interview was then suspended. 44Both Detective Sergeant Element and Senior Constable Chang stated that they did not believe the accused's answer to the extent he stated that at this point in time he was drunk. I accept that evidence as recounting a genuine belief based on proper and reasonable grounds. That is so because the accused did not appear to be drunk at any time earlier when he was interviewed, and he had not consumed alcohol since. Nevertheless, it is obvious from the ERISP that the accused was in this portion of the interview fatigued, and it seems most likely that he was hung over. He appeared tired, and he had his head in his hands. I should add that the tone of Detective Sergeant Element's voice when he suspended the interview was not reluctant or begrudging. 45I will return to the question of whether the police should have left the accused to sleep in his cell for the balance of the night. At this point I note that, prior to the resumption of the interview, the accused appeared to indicate a willingness to continue and certainly his response to the cautions indicated a willingness as well. 46Contrary to the premise of the submission in support of the rejection of the ERISP, the interviewing police did monitor his state and when the accused indicated he was drunk they suspended the interview. As I stated, the accused was displaying signs of fatigue at this point. Had this section of the interview continued much longer with him in that state then it might have warranted rejection, but it did not. It was obvious the police wanted to pursue their investigations as quickly as possible, but they did apply limits to themselves in doing so. 12.43am to 3.22am 47There is no specific entry in the custody record containing any observation of the accused between 12.43am and when the interview resumed again at 2.21am. Sergeant Davis stated that he observed the accused in his holding cell and he appeared to be asleep. The accused stated: "A. ... [m]y whole recollection of being in the holding cell I was just laying down, I think, on my back. At the time I had a blanket, I had it covered over my head. ... Q. Did you sleep at all? A. Might have, might have dozed off once or twice I can't remember, but I don't recall sleeping throughout the whole duration of any of the breaks." 48At some point prior to 2.21am, Detective Sergeant Element decided that the accused would be woken and an attempt would be made to recommence the interview. Senior Constable Chang said that he woke him from his sleep. He said that he said something to the effect, "Are you right to come back into the interview room now?" but does not believe that he told the accused that he did not have to come back. The accused denied this conversation. Senior Constable Chang's recollection of that conversation did not strike me as particularly strong, and it was not referred to in that part of the ERISP that followed. I am not prepared to find that a conversation in those terms occurred. 49The recorded interview resumes again at 2.21am. Shortly after it commences Detective Sergeant Element stated: "Q384. Ok. All right, do you agree that a couple of hours ago we were in this room and you indicated that you, you needed to have a break and we suspended the interview again and took you out, and I think you've had a bit of a sleep since then? A. When, it's been a couple of hours, has it? Q385. Yeah, nearly two hours." 50These answers suggest to me that the accused had had some sleep since the suspension of the interview at 12.43am and that is why he had lost track of time. This is confirmed by my observations of his physical state during this part of the ERISP, which I will outline shortly. 51After these questions, the accused is then cautioned and nods to confirm his understanding of what is conveyed by the caution. The questioning then continues until the interview is complete at around 3.22am. Just prior to its completion, Sergeant Davis returns. Sergeant Davis asks a series of questions about the conduct of the interview. In question 619 he asked: "Have you made this recording of your own free will?", and the accused responded, "Yes". Q621 records Sergeant Davis asking, "Do you have any complaints to make about the manner in which you were interviewed here?" The accused answered, "No." 52In his evidence, the accused stated that during this portion of the interview he was "so tired" and he "basically wanted the interview to stop". He was asked as follows: "Q. Was there any reason why you didn't raise this with Mr Davis? A. Yes, because it seemed like if I answered no to any of these questions, Mr Element would come back in and I would have to start all over again. Like I said, I was - I just wanted to be left alone, yeah. Q. What made you think it would start all over again? A. Well, I was just confused about what was going on. I know I voluntarily did enter into the interview. It was kind of a bit over me head. I'm not sure how long it was going to go for, it was just getting a bit too much for me." 53The submissions of counsel about the accused's presentation during this part of the ERISP differed sharply. Mr Chapple SC submitted that the accused was obviously fatigued, and it should have been apparent to the interviewing officers that a further inquiry was required of him as to whether he was still in the state he claimed to have been in at 12.40am. 54The Crown Prosecutor contended the accused was alert and responsive. He submitted that what is most telling was the accused's ability to recount details during this portion of the ERISP which were reliable, in that they were established by other evidence or that they were otherwise quite detailed. An example of the former was said to be the accused's recall of how the deceased was dressed when he left her at the scene of her death, and an example of the latter was said to be his ability to recount an earlier incident in which the deceased damaged his car and he provided the address of a witness. 55I have reviewed this portion of the ERISP a number of times. Generally, I accept the Crown's characterisation of the accused's demeanour during this portion of the ERISP. In my view, he presents in a very similar fashion to that part which occurred between 7.36pm and 8.56pm on the previous evening. He is passive but responsive. He appears to follow the questioning. His answers are quiet in volume but appropriate. He maintains a recall of most of the details. On a few occasions he is emotional but that is completely explicable by reference to the subject matter. At one point he inquires about his children. To a reasonable observer he appears to have improved from his presentation at around 12.40am. That would appear to have been the effect of additional sleep and the passage of time. In short, his demeanour and behaviour during this part of the ERISP did not suggest any lack of competence or proper consent to the interview on his part. Consideration 56In light of the above, it is appropriate to return to the suggested impropriety on the part of the interviewing officers, bearing in mind the statements of Basten JA in Robinson referred to above (at [7] to [8]). 57In submissions Mr Chapple SC pointed to the accused's underlying physical state throughout the evening of 8 April 2011 and into the early hours of 9 April 2011. He contended the accused had, prior to then, consumed a significant amount of alcohol, had barely eaten for two days, was fatigued and had been through an emotionally traumatic set of circumstances involving the death of Ms Rathbone and his taking of the children to a lookout. 58I have already made findings on those matters. To confirm, I accept that the accused had consumed a significant amount of alcohol but not the amount he claimed and not so much that he presented any obvious signs of intoxication from around 7.30pm on 8 April 2011. I accept the accused was fatigued and probably emotionally drained but not to such a significant degree that it affected his competency for that part of the ERISP that went from 7.36pm to 8.56pm on 8 April 2011 and, with the benefit of additional rest, went from 2.21am to 3.32am on 9 April 2011. 59Mr Chapple SC identified the relevant impropriety as being the conduct of the interviewing officers in being reckless as to the accused's true physical state throughout the course of the interview and especially from 2.21am. He pointed to the failure of Detective Sergeant Element, prior to the first stage of the interview, to inquire of the custody records and custody officers. This would have revealed his level of alcohol consumption of around "seven to eight beers". I do not regard Detective Sergeant Element's omission to take that step as any relevant failure, much less a reckless one. He had spoken to the accused about his ability to participate at 7.20pm. Detective Sergeant Element had made his own observations as to the accused's physical state. Those observations were completely consistent with the accused's presentation during that part of the ERISP which occurred from 7.31 to 8.56pm, especially the accused's request to obtain legal advice. 60In relation to the period after 2.21am, Mr Chapple SC submitted that Detective Sergeant Element's failure to enquire of the accused as to his physical state was improper, bearing in mind what the accused stated at around 12.40am, namely, that he was drunk. 61Again, I do not regard Detective Sergeant Element's omission to take that step as a relevant failure, much less a reckless one. As at 2.21am Detective Sergeant Element was aware the accused had not consumed alcohol for some hours and had been offered food but refused it. Detective Sergeant Element had a reasonable belief that the accused had the opportunity to sleep and had taken advantage of that opportunity. He cautioned the accused for at least a third time at the commencement of this part of the ERISP. The accused's presentation during this part of the ERISP indicated something of a revival since the session that had commenced at 12.31am. Detective Sergeant Element was aware that on two previous occasions the accused had indicated some impediment to his proceeding, namely, the need to obtain legal advice and the claim that he was drunk. On both occasions the interview was suspended without difficulty. Provided that the accused's presentation did not suggest he could not speak up for himself about such an impediment, Detective Sergeant Element was entitled to proceed on the basis that there was no such impediment. It follows from my earlier findings that there was nothing in his presentation that suggested that. 62The remaining aspect of Mr Chapple SC's contention concerns the decision by Detective Sergeant Element to recommence the interview firstly at 12.31am and then again at 2.21am. He correctly submitted that the decision to wake or rouse the accused was made by Detective Sergeant Element around those times. He submits that there was no difficulty with Detective Sergeant Element waiting until the morning or when the accused had woken up, given the understanding that he had that the time provided by the detention warrant would be suspended while the accused was sleeping. 63When he was asked about this, Detective Sergeant Element stated as follows: "Q. There was no earthly reason, I suggest, why you couldn't have left him in a cell and resumed speaking with him during the daylight hours, for example? A.Other than the fact, as I mentioned before trying to minimise the time people are in police custody rather than having him sleeping all night and then waiting at some stage during the morning for the police to return to interview him." 64This answer amounts to no more than a statement that the exigencies of the investigation warranted completing the interview as soon as possible. While this is not much of a justification for waking or rousing the accused, it also does not by itself warrant a characterisation that what occurred was improper. 65The approach stated by Basten JA in Robinson is not satisfied by merely pointing out, with the benefit of hindsight, that some steps that were not taken would have been more fair to the accused than the course that was adopted. In this case, the other aspects of the police conduct that night do not justify a conclusion that overall there was any impropriety. The accused was repeatedly cautioned, and bona fide assessments of his physical and mental competence to undertake the interview were made. The accused was given and took the opportunity to sleep. Whenever a doubt was raised by him as to his ability or willingness to continue with the interview, the interview was suspended. The questioning did not proceed in the face of any manifest deficiency in the accused affecting his ability to participate. 66In deciding that the accused was to be woken, Detective Sergeant Element was not determining to pursue the interview at all costs. Instead, he was only determining to pursue it if the accused was competent and able to do so. Those decisions, considered in that context, would not meet the test of impropriety for the purpose of s 138(1). 67Accordingly, I do not accept that the threshold of s 138(1) has been established. It follows that I reject the challenge to the tender of the ERISP. ***************** 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: 19 December 2012