IN THE SUPREME COURT OF VICTORIA	Unrestricted	
AT MELBOURNE
CRIMINAL DIVISION

S CR 2018 0263

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATALIE DALTON 		

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JUDGE:	Beale J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	1–4, 9 April 2019	
DATE OF RULING:	9 April 2019 	
CASE MAY BE CITED AS:	DPP v Dalton (Ruling No 1) 	
MEDIUM NEUTRAL CITATION:	[2019] VSC 226	

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CRIMINAL LAW – Evidence – Accused charged with murder – Whether record of interview and crime scene re-enactments in which accused participated should be excluded – Whether accused unfit for interview – Whether accused illegally detained by police during relevant recordings – Recordings excluded – Crimes Act 1958, s 464A – Evidence Act 2008, ss 90 and 138.
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions 	Mr N Hutton and 
Mr L Cameron	Office of Public Prosecutions	
			
For Dalton 	Mr J Willee 	Tait Lawyers 	

HIS HONOUR:
Background
1	Natalie Dalton is charged with murder. The prosecution alleges that, pursuant to ss 323(1)(b) and 324(1) of the Crimes Act 1958, she was a party to the murder of Jade Goodwin by her co-accused Brendan McDowall on 15 October 2017 at Hastings. 
2	In brief terms, the prosecution case is that after Dalton told McDowall (her recent ex-boyfriend) that: she had been raped by Goodwin; that she was concerned for the safety of her friend Olivia McOrmond with whom Goodwin was staying; and that McOrmond wanted Goodwin out of her unit, McDowall went with his friend Shane Heiberg to McOrmond’s unit in Hastings and murdered Goodwin. A few days later McDowall and Dalton dumped Goodwin’s body at a site in Tyabb. 
3	I note that McOrmond is also standing trial, essentially for being an accessory after the fact to murder. Heiberg has already pleaded guilty to manslaughter but is yet to be sentenced.
4	This pre-trial ruling concerns the admissibility of Dalton’s record of interview and two video recorded re-enactments, one conducted at the unit in Hastings where Goodwin was killed and one at the site in Tyabb where his body was dumped.
5	Dalton relies mainly on ss 90 and 138 of the Evidence Act 2008 in challenging the admissibility of the recordings. In particular, Dalton complains that she was not given her prescribed diazepam at the required 6 hour intervals whilst in police custody and that she was illegally detained by police contrary to section 464A the Crimes Act 1958.
6	A brief chronology of events is necessary.
Events on 24 October 2017 
7	At approximately 4:30 pm on 24 October 2017, Dalton accompanied police to Hastings Police Station to make a statement about the last time she saw Goodwin. In the course of her statement to Detective Watson of the Homicide Squad, she alleged Goodwin had raped her on the afternoon of 14 October 2017 when she was visiting McOrmond’s unit. 
8	Detectives were also speaking to McOrmond on the afternoon of 24 October 2017. Detectives Ross and Riley made an overt field recording with her between 4:32pm and 5:44pm. Detectives Burke and Walsh then took a video-recorded significant witness statement from her between 9:14pm and 4:45am on 25 October 2017. McOrmond signed her witness statement at 4:43am on 25 October 2017. During the overt field recording on the afternoon of 24 October 2017, McOrmond indicated that McDowall and another male had attended her unit and had had an altercation with Goodwin resulting in his death and that Dalton had also attended her flat soon after. 
9	At approximately 9:40 pm on 24 October 2017, as a result of information received by police from McOrmond which suggested Dalton was not being truthful, Dalton was arrested by Detective Watson and taken from the witness room to the custody area. She asked to speak to a barrister, Justin Willee, which Watson facilitated.
10	At approximately 10:26pm, Watson proceeded to conduct a record of interview with her. She was told she was being questioned in relation to the death of Jade Goodwin. She informed Watson that she had been advised by her barrister to answer no comment. She also indicated several times that she wished to follow that advice. Watson tried to get her to answer questions by telling her that what her barrister said to her was merely advice not instructions but Dalton continued to answer no comment. Watson “suspended” the interview at 10:37pm, saying he intended to speak to the rest of “the crew” about the state of the investigation. Dalton was not charged, nor was she released from custody on the night of 24 October 2017. Instead, she was held in police custody for another two days. 
Events on 25 October 2017
11	At approximately 5:30am on 25 October 2017, Watson spoke with Dalton in the custody area of Hastings Police Station. Dalton said she was feeling the effects of alcohol withdrawal and required medical treatment.  
12	At around 8:00am on 25 October 2017, pursuant to instructions from Forensic Medical Examiner Dr Sophie Ping, Dalton was taken to the Emergency Department of Frankston Hospital by Detectives Watson and Walsh for assessment and treatment regarding alcohol withdrawal. On the way to the hospital, police allowed Dalton to speak to her barrister again over the phone. 
13	At the hospital, Dalton was given three 10 mg doses of diazepam (at 9:43am, 11:01am and 2:10pm) and at approximately 2:45pm she was allowed to leave the hospital in the custody of Detectives Butterworth and Windle who had relieved Detectives Watson and Walsh. The hospital gave the police a prescription for diazepam for Dalton and instructions that she should be given one or two 5 mg diazepam tablets and Vitamin B tablets every six hours. Police attended a chemist and filled the prescription before arriving back at Hastings Police Station with Dalton at around 3:00pm.
14	Although Dalton had been adamant to Watson the night before that she did not want to answer questions about the circumstances of Goodwin’s death, and over 19 and a half hours had elapsed since she was arrested by Watson, Detectives Burke and Walsh began interviewing Dalton at around 5:13 pm on 25 October 2017. Burke told Dalton that she was being interviewed about Goodwin’s death. Burke gave Dalton a caution and her rights and asked Dalton to explain them back to him in her own words, a task which Dalton performed promptly and satisfactorily. In this first part of the record of interview, Dalton appeared alert. She certainly appeared in much better shape than she had been when interviewed by Watson the previous evening. She had no difficulty comprehending or responding to Burke’s questions. When Dalton asked if she could speak to her lawyer again, the interview was suspended to allow that to take place. She ended up speaking to a solicitor, Mr Andrew Halphen, for about half an hour between 7:09pm and 7:41pm as her barrister was not contactable. 
15	Burke and Walsh recommenced the interview at approximately 8:05pm. It was only at this stage that Dalton began answering police questions about the circumstances surrounding Goodwin’s death.  
16	Shortly before 8:45pm, Walsh interrupted the questioning to ask Dalton whether she wanted more diazepam. Approximately six and a half hours had passed since her last dose at Frankston Hospital. Dalton indicated that she would like to have more diazepam, not because she was experiencing alcohol withdrawal symptoms but because she wanted to stop such symptoms returning. The interview was suspended at 8:45pm so she could have a break and take her medication.
17	At 8:56pm the record of interview re-commenced. Dalton was reminded of the caution and her rights, and proceeded to answer questions promptly and responsively. At about 9.30pm, Dalton agreed to participate in the re-enactments.
18	At approximately 9:43 pm, the police suspended the record of interview with a view to taking Dalton to the scene of the killing in Hastings and the scene of the disposal of the body in Tyabb for video recorded re-enactments. Just before that suspension, Burke asked Dalton whether she would like something to eat to which Dalton replied “no I feel sick”. Burke replied “yeah, well you yell out if you need anything at all from us, alright” and then suspended the interview. Neither Burke nor Walsh asked Dalton whether she needed medical attention and there is no evidence that medical attention was provided to her prior to the crime scene re-enactments.
19	At this point in the chronology, it is necessary to backtrack a little. At approximately 9:15pm on 25 October 2017, one Paul Lloyd signed his first statement at Hastings Police Station. In that statement he said that Dalton, McDowall, Heiberg and he had been sitting around in his mother’s garage at Unit 8, 110 Victoria Street Hastings on the evening of 14 October 2017 when Dalton said Goodwin had raped her. Lloyd said McDowall responded to this by saying: 
Enough is enough, you’re my girl. Me and Shane are going to go over and check him out. I’m going in there before he can wake up. I’m going to have him tied up with some ties.
20	According to Lloyd, McDowall also said that he wanted Goodwin tied up properly like a wild pig so he couldn’t get out, so it was virtually impossible for him to escape.
21	Lloyd told police in this statement that Dalton “was in agreeance” to what McDowall was proposing.  
22	Coming back to the re-enactments involving Dalton, the first video re-enactment, commenced at 11/110 Victoria Street Hastings (McOrmond’s flat where Goodwin was killed) at approximately 11:45pm on 25 October 2017 and lasted for about 18 minutes. During that re-enactment, Dalton gave prompt and responsive answers. There were a number of times where she yawned and where she struggled to recall details but she provided a reasonably informative and coherent account of events that she said had happened there some 10 days beforehand.
Events on 26 October 2017 
23	Dalton was then taken to Tyabb where Goodwin’s body had been dumped by McDowall and Dalton. The second re-enactment commenced there at 12:25am on 26 October 2017. That re-enactment went for about 10 minutes and again, whilst Dalton showed signs of tiredness and yawned a number of times, her answers were prompt, responsive and coherent. She was then taken back to Hastings Police Station where Walsh conducted a short interview commencing at 2:07 am. He commented that Dalton seemed very tired: she said she was exhausted. She was then taken to Frankston Police Station to rest. At her request, she was placed in an interview room at Frankston Police Station rather than in the cells and during the night she was observed to be sleeping on the floor in that interview room.
24	Burke and Walsh collected her from Frankston Police Station at approximately 10:05am and took her back to Hastings Police Station for a continuation of the record of interview. Walsh realised that Dalton had not been given any medication whilst at Frankston Police Station and so, at approximately 10:30am, he gave her two more diazepam tablets and two vitamin B tablets.
25	At 12:05pm, Burke and Walsh re-commenced the interview with Dalton and that part of the interview lasted until approximately 1:29pm. 
26	At 2:15 pm, Walsh provided Dalton with another two diazepam tablets and two vitamin B tablets. 
27	At 3:09pm, Burke and Walsh re-commenced the record of interview, suspending it at 4:19pm. 
28	Burke and Walsh re-commenced the interview at 4:32pm, concluding the interview at 5:16pm, with Dalton being informed she would be charged with murder.
The voir dire 
29	On the voir dire, I heard evidence from several detectives (Watson, Butterworth, Windle, Burke and Walsh) and two doctors (Bonavia and Gaya), all called by the prosecution. Dalton did not give or call evidence. 
30	It is not necessary to summarise all the evidence given on the voir dire. 
31	Detective Butterworth said that, on the afternoon of 25 October 2017, he spoke to a male doctor at Frankston Hospital – he couldn’t remember his name – and the doctor told him that Dalton was fit to be interviewed. He and Windle and another officer then left the hospital with Dalton, filled the prescription on the way and returned her to Hastings Police Station.
32	Detective Walsh said that when he supplied the diazepam to Dalton on 26 October 2017 at 10:30 am and at 2:15pm, he thought he was following the prescription requirements. I found this aspect of his evidence unconvincing. The fact that on the evening of 25 October he had interrupted Burke’s questioning to ask Dalton if she wanted some medication indicated to me that he was aware of the six hourly requirement. 
33	The first doctor called on the voir dire was Dr Bonavia. Medical records showed he had treated Dalton at Frankston Hospital on 25 October 2017. Unsurprisingly, he only had a very vague recollection of his interactions with Dalton and the police. Contrary to Butterworth’s evidence, he doubted that he would have told police that Dalton was fit to be interviewed when she left the hospital on the afternoon of 25 October 2017. In the hospital file notes produced by Dr Bonavia, there is no record of him or hospital staff telling police that Dalton was fit to be interviewed.
34	The other doctor called on the voir dire was Dr Gaya, an experienced forensic medical examiner. His evidence was that Dalton had been fit for interview at all relevant times. He based this opinion on having watched the entire record of interview and the recorded re-enactments and having considered the file notes from Frankston Hospital.  As far as Dalton’s fitness for interview was concerned, Dr Gaya indicated he was not troubled by the failure of the police to administer diazepam to Dalton every six hours. What was of more significance to Dr Gaya was the total amount of diazepam taken by Dalton over the relevant period and the fact that on the recordings she did not show any signs of being sedated or of suffering from alcohol withdrawal. 
35	In cross-examination, it was put to Dr Gaya that Dalton may have been experiencing post-traumatic stress disorder at the time of the Burke recordings as a consequence of having been raped by Goodwin on 14 October 2017. It was further put to Dr Gaya that someone who had suffered such a traumatic event only 11 days beforehand would be unfit for interview. Dr Gaya rejected that assertion. Again, Dr Gaya emphasised the advantage of viewing the actual recordings and considering Dalton’s performance on those recordings.
Submissions 
Legal framework 
36	Before I summarise the parties submissions, I will set out the provisions on which Dalton relied, namely, s 464A of the Crimes Act 1958, ss 90 and 138 of the Evidence Act 2008, ss 21, 24 and 25 of the Charter of Human Rights and Responsibilities Act 2006 and Articles 9, 14(1) and 14(3) of the International Covenant of Civil and Political Rights. I include the Charter and Covenant provisions even though it is difficult to see the relevance of some of those provisions.  
Crimes Act 1958 
464A	Detention of person in custody
(1)	Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be—
(a)	 released unconditionally; or
(b)	 released on bail; or
(c) 	brought before a bail justice or the Magistrates' Court—
within a reasonable time of being taken into custody.
(2)	If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—
(a)	inform the person of the circumstances of that offence; and
(b)	question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.
(3)	Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.
(4)	In determining what constitutes a reasonable time for the purposes of subsection (1) the following matters may be considered—
(a)	the period of time reasonably required to bring the person before a bail justice or the Magistrates' Court;
(b)	the number and complexity of offences to be investigated;
(c)	any need of the investigating official to read and collate relevant material or to take any other steps that are reasonably necessary by way of preparation for the questioning or investigation;
(d)	any need to transport the person from the place of apprehension to a place where facilities are available to conduct an interview or investigation;
(e)	the number of other people who need to be questioned during the period of custody in respect of the offence for which the person is in custody;
(f)	any need to visit the place where the offence is believed to have been committed or any other place reasonably connected with the investigation of the offence;
(g)	any time taken to communicate with a legal practitioner, friend, relative, parent, guardian or independent person;
(h)	any time taken by a legal practitioner, interpreter, parent, guardian or independent person to arrive at the place where questioning or investigation is to take place;
(i)	any time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention;
(j)	any time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest;
(k)	the total period of time during which the person has been in the company of an investigating official before and after the commencement of custody;
(l)	any other matters reasonably connected with the investigation of the offence.
Evidence Act 2008
90	Discretion to exclude admissions 
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if— 
(a) 	the evidence is adduced by the prosecution; and 
(b)	having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.  
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.
Charter of Human Rights and Responsibilities Act 2006
21	Right to liberty and security of person
(1)	Every person has the right to liberty and security.
(2)	A person must not be subjected to arbitrary arrest or detention.
(3)	A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.
(4)	A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.
(5)	A person who is arrested or detained on a criminal charge—
(a)	must be promptly brought before a court; and
(b)	has the right to be brought to trial without unreasonable delay; and
(c)	must be released if paragraph (a) or (b) is not complied with.
(6)	A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to attend—
(a)	for trial; and
(b)	at any other stage of the judicial proceeding; and
(c)	if appropriate, for execution of judgment.
(7)	Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must—
(a)	make a decision without delay; and
(b)	order the release of the person if it finds that the detention is unlawful.
(8)	A person must not be imprisoned only because of his or her inability to perform a contractual obligation.
24	Fair hearing
(1)	A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2)	Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter.
Note
See Part 5 of the Open Courts Act 2013.
(3)	All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.
25	Rights in criminal proceedings
(1)	A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
(2)	A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees—
(a)	to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and
(b)	to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her; and
(c)	to be tried without unreasonable delay; and
(d)	to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and
(e)	to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and
(f)	to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978; and
(g)	to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; and
(h)	to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution; and
(i)	to have the free assistance of an interpreter if he or she cannot understand or speak English; and
(j)	to have the free assistance of assistants and specialised communication tools and technology if he or she has communication or speech difficulties that require such assistance; and
(k)	not to be compelled to testify against himself or herself or to confess guilt.
(3)	A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child's rehabilitation.
(4)	Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.
International Covenant on Civil and Political Rights
Article 9 
1.	Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 
2.	Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 
3.	Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 
4.	Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 
5.	Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
Article 14 
1.	All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 
2.	Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 
3.	In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 
4.	In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 
5.	Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 
6.	When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 
7.	No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
Summary of Submissions
37	As mentioned, Dalton objected to the admissibility of the Burke recordings pursuant to s 90 and s 138 and of the Evidence Act 2008 on the grounds that, first, her answers were obtained improperly because police failed to provide her diazepam in accordance with her prescription (that is, every 6 hours) and second, the police detained her for an unreasonable length of time in contravention of s 464A of the Crimes Act 1958.
38	In relation to the first ground, Dalton submitted that the failure of police to provide her with diazepam on a six hourly basis, as prescribed by Dr Bonavia, rendered her unfit for the Burke interview and re-enactments. 
39	In relation to the second ground, Dalton submitted initially that her detention became illegal after 9:43pm on 25 October 2017 when the Burke interview was suspended. Subsequently, she submitted that her detention was illegal from 10:37pm on 24 October 2017 when the Watson interview was suspended. In addition to s 464A of the Crimes Act 1958, Dalton relied on ss 21, 24 and s 25 of the Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’) and Articles 9, 14(1) and 14(3) of the International Covenant on Civil and Political Rights. In brief, Dalton submitted that, having indicated during the Watson interview that she wished to exercise her right to silence, she was worn down by police and that the seriousness of the contravention of her rights and the unfairness flowing from that contravention required exclusion of the Burke recordings under both ss 90 and 138 of the Evidence Act 2008. 
40	The prosecution submitted that, as regards the police’s failure to give her diazepam every 6 hours, the real issue was whether she was fit for interview at all relevant times. The prosecution submitted that a viewing of the recordings and the expert evidence of Dr Gaya justified a conclusion that she was.  
41	As regards the length of time Dalton was in police custody, the prosecution submitted that having regard to the considerations set out in s 464A(4), there was no contravention of s464A(1), that she was held in police custody for a reasonable time. Matters emphasised by the prosecution included the following: 
(a)	the police were faced with a complex investigation starting on the evening of 23 October 2017, involving an ongoing and rapid flow of information from multiple sources;
(b)	there was a need to arrange periods of rest and medical treatment for Dalton and these occupied much of the time that she was in police custody;  
(c)	Dalton readily participated in the Burke recordings after receiving legal advice, which also took time to organise; 
(d)	time was also taken up in transporting Dalton to various places, including the crime scenes. 
42	The prosecution submitted that, when the chronology of events is analysed, including the delays, the length of time that Dalton was in police custody was justified because Dalton was fit for interview, the interview was progressing and Dalton was freely participating in the Burke interview after receiving legal advice. The prosecution submitted that there is no rule that where a suspect exercises their right to remain silent that all questioning must cease. When Watson suspended the interview on 24 October 2017, police were still in the process of obtaining significant information from McOrmond whose statement was not signed until 4.43am on 25 October 2017 and Lloyd’s statement was not signed until 9:15pm on that day. 
43	The prosecution submitted that even if I concluded that there was a contravention by the police of s 464A of the Crimes Act 1958, the public interest in admitting the Burke recordings outweighed the public interest in excluding them. In relation to the factors in s 138(3) of the Evidence Act 2008, the prosecution submitted that the probative value of the evidence provided by Dalton in the Burke recordings was high. In particular, the prosecution referred to Dalton’s statement that it was her understanding that McDowall was going to punch Goodwin “senseless”. Further, the prosecution referred to Dalton’s statement that she understood Goodwin would be “smacked around until he admitted” raping Dalton. The prosecution submitted this was important evidence as it would provide a basis for the jury to infer that the accused thought Goodwin would probably be murdered. The prosecution submitted that the gravity of the offence of murder favoured the admission of the Burke recordings. The prosecution submitted that, even if Dalton was being illegally detained during the Burke recordings, the contravention of s 464A was not significant due to the fair treatment afforded Dalton by the police. This fair treatment included ample food and drink, sleep and rest, attendance at hospital and access to her medication, unlimited access to lawyers and, at Dalton’s request, permission to sleep in an interview room rather than the cells at Frankston Police Station. 
44	In relation to s 90, the prosecution submitted that in circumstances where Dalton’s desires and needs were all accommodated, there was nothing unfair about receiving the Burke recordings into evidence. 
45	In response, Dalton submitted that I should take into account her claim that she had been raped by Goodwin, a claim supported by McOrmond who said she had witnessed some of that incident. Dalton submitted that she was vulnerable as a result of that incident at the time she was being interviewed by the police. Further, Dalton submitted that I should infer that her participation in the Burke recordings was due to the unreasonably long period she was held in police custody.
46	In relation to the balancing exercise mandated by s 138, Dalton submitted that the probative value of the Burke recordings was not high as it would not be open for a jury to find that she had agreed to McDowall giving Goodwin “a flogging”.
Analysis
47	In my view, Dalton was illegally detained when she was not released from custody on the night of the 24 October 2017 after the Watson interview. Clearly, the police did not have enough evidence to charge her at that time. Further, she had indicated to Watson a number of times in the course of that interview that she had received advice from her barrister to answer no comment and that she intended to stick to that advice. Whilst Watson and the other detectives may have wanted to gather more information regarding her possible involvement in the killing of Goodwin and to put that information to her in due course, they could not just ignore the protections afforded to her by s 464A, especially given her reliance on the right to silence. In all the circumstances, s464A required them to release her unconditionally on the night of 24 October because to hold her in custody overnight and beyond, was to hold her for more than a reasonable time. If further information came to light which implicated her in the killing of Goodwin, the police could re-arrest her and attempt to re-interview her, a course of action which is commonplace in many police investigations.  
48	By keeping her in custody overnight and throughout the next two days, there was a real potential for Dalton’s right to silence to be undermined, for her to be worn down, whether or not that was the intention of the police at the time. It is not difficult to see how a suspect’s resolve to act on her lawyer’s advice to answer no comment can be weakened and possibly overcome if the suspect is kept in custody for an extended period of time. As the period of detention wears on, the suspect may well reason that, since silence in response to questioning has not brought about her extrication from police custody, one way or another, the only hope is to start answering questions.
49	The mere fact that police provide a suspect with various amenities throughout their time in police custody (for example, time to rest, food and drink, medical assistance when required, further opportunities to communicate with lawyers) does not negate the accumulated pressure on a suspect from continuing to be held in police custody and does not transform illegal detention into legal detention.
50	In summary, I am satisfied that there was a contravention of s 464A(1) and that there was a causal nexus between Dalton’s illegal detention and the police obtaining the impugned evidence.  
51	I turn then to the balancing exercise required by s 138 of the Evidence Act 2008. I acknowledge at the outset that the answers given by Dalton in the Burke record of interview and re-enactments are of high probative value to the prosecution case. Although Dalton does not expressly admit to complicity in the killing, she does make admissions to an awareness of and arguably an assent to McDowall administering a flogging to Goodwin. At one point she admits that she thought the level of violence to be meted out by McDowall to Goodwin included “punching him senseless”. She also admits some awareness of McDowall’s mental health problems and volatility, which lends some support to the prosecution case that Dalton anticipated that in the course of carrying out a serious assault on Goodwin, McDowall would probably murder him. 
52	Dalton’s answers are also important evidence. Given that McOrmond is a co-accused rather than a witness and Lloyd is viewed as a problematic witness for the prosecution, it is difficult to see how the case against Dalton has any reasonable prospect of success without Dalton’s admissions.   
53	Further, she is charged with murder, a most serious offence, which militates in favour of admitting the illegally obtained evidence. 
54	But having said all that, I assess the gravity of the illegality as being of a high order. 
55	The right to liberty is one of the most important rights recognised by the International Covenant on Civil and Political Rights and by our own Charter. The common law too has always jealously guarded that right. One need only consider the following passage in the joint judgment of Mason and Brennan JJ (as they then were) in Williams v The Queen, a case which was also concerned with police illegally detaining a suspect: 
The right to personal liberty is, as Fullagar J described it, “the most elementary and important of all common law rights”: Trobridge v. Hardy. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England “without sufficient cause”: Commentaries on the Laws of England (Oxford, 1765), Bk. 1, pp. 120-121,130-131. He warned:
“Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities.”
That warning has been recently echoed. In Cleland v The Queen, Deane J. said:
“It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.”
The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes.
56	On the evidence before me, I do not find there was a deliberate or reckless disregard of the requirements of section 464A by the relevant police officers – regrettably the issue was not really explored on the voir dire – but neither am I satisfied that it was mere carelessness. Watson, Burke and Walsh were all Detective Senior Constables in the Homicide Squad, officers of considerable experience. I think it unlikely that that they did not advert to the restrictions on their power to keep Dalton in custody without charge. If they did advert to them but wrongly thought they were complying with s 464A, or failed to advert to those restrictions at all, it was grossly negligent on their part considering their experience and the fundamental importance of Dalton’s right not to be illegally detained. 
57	As I have mentioned, if the police had released Dalton unconditionally on the night of 24 October, as I have found they should have done, there was nothing to stop them re-arresting and re-interviewing Dalton at a later stage if new information pointed to her involvement in Goodwin’s killing. In other words, the police had a reasonable and obvious alternative to just keeping her in custody, an alternative that respected her right to liberty, did not risk undermining her right to silence and did not prevent them from questioning her again. 
58	In summary, I am not satisfied by the prosecution that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was obtained when Dalton was being illegally detained. Accordingly I exclude the Burke record of interview and re-enactments.
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