Coombe v The Queen S53/1997 [1997] HCATrans 372 (14 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S53 of 1997

B e t w e e n -

IAN ROBERT COOMBE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 1997, AT 10.48 AM

Copyright in the High Court of Australia

MR S.R. NORRISH, QC: May it please the Court, I appear in this application for the applicant with my learned friend, MR S.J. ODGERS. (instructed by Arden Associates)

MR A.M. BLACKMORE: May it please the Court, I appear in this matter for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Mr Norrish.

MR NORRISH: Your Honours, in this application the first point of general importance is this: may a police officer authorised by warrant to apprehend a person delay executing that warrant in order to question and seek admissions from the suspect. In other words, at the time of the possession of the warrant, did the police have an obligation to arrest? In our submission, this is a matter that was not to be determined either at trial or on appeal by the terms of the warrant. It was not a question of fact; it was a question of law to be determined by regard to the operation of the Service and Execution of Process Act. The issue of general importance is that the relevant provisions of that Act, as they existed in 1991 when the applicant was arrested, are, whilst not the same in the current Act, of the same import in so far as they confer a discretion upon an arresting police officer to execute a warrant that has been issued and is capable of being executed under the Service and Execution of Process Act.

BRENNAN CJ: Now, there are two questions, are there not? The first is does the amendment of the Service and Execution of Process Act raise any question which is different from that which arose in 1991 under the Act as it then stood? The second is, assuming that is so, what is the nature of the duty of a police officer who is in possession of a warrant or a provisional warrant? I suppose there is a third question and that is, if there is an obligation to execute that warrant forthwith or however it may be put, what is the consequence of that for the admissibility of the confessional evidence that was obtained in this case?

MR NORRISH: In our submission, the question is not one of whether there is an obligation to execute the warrant forthwith in the sense that there may be circumstances, as outlined by Justice Hunt, which may require a delay in the execution of the warrant. The principal submission we make in relation to this important point, which has application now as it did then, is whether that discretion to execute the warrant is constrained by an absence of power to detain for the purposes of questioning or to delay the execution of the warrant so as to question a particular suspect in circumstances where that particular suspect would be deprived of the protections that the law would provide if the warrant had been executed at the time that the suspect was apprehended.

BRENNAN CJ: Let us assume that in this case the suspect had been arrested, instead of merely detained; taken to the police station; and then the questions were asked. What then would you say about the admissibility of the confession?

MR NORRISH: In relation to the admissibility of the confession the finding of the trial judge was that the illegality, if I could call it that, of detaining the applicant for the purposes of questioning him was a deliberate one. In our respectful submission, having regard to what this Court has said in Bunning v Cross and subsequent judgments, where the illegality is a deliberate one, it is a matter which militates in favour of exclusion of the confessional material.

BRENNAN CJ: I was putting it to you on the footing that there had been no illegality; that there had been an arrest, taken to the police station and the interview then followed. What then would you say about the admissibility of the confession?

MR NORRISH: In our submission, the public policy discretion would require the exclusion of the confession.

BRENNAN CJ: Why?

MR NORRISH: Because in the circumstances of the execution of the warrant, there would have been a requirement to take the applicant before a Justice of the Peace; not a requirement or a power, I should say, to keep the particular suspect in custody so as to elicit from him, if possible, admissions in relation to the matter that the police were charged with executing the warrant for.

BRENNAN CJ: Not if that was the purpose of the arrest. But if there was time available before a justice was available, what then?

MR NORRISH: I suppose it raises the issues that were addressed by this Court in a different way in McKinney and Judge. The circumstance of the suspect at the police station alone in a position of vulnerability, where a person is arrested and knows that a warrant has been executed and they are going to be brought before a justice. They may seek to obtain legal advice as to their position and they may obtain advice which would prevent the police conducting an interview or cause the police to desist from any conduct involving the questioning of the applicant. Also, as my learned junior points out, protect him from fabrication, in circumstances which were alleged in this particular case. It should be pointed out that the particular interviewing of the applicant involved an untrue representation, amongst other things, which was held not to be a wilful untrue representation, but it involved that and it also involved a dispute as to what was actually said by the applicant.

We submit in this matter that before the Court of Criminal Appeal there was no - at the trial, there was no factual dispute that the police were in possession of a valid warrant authorising the arrest of the applicant. There was no suggestion that the words of the warrant did not in terms direct the Tasmanian police to arrest the applicant. There was no factual dispute that the Tasmanian police chose not to execute the warrant but rather to ask the applicant to come to their offices so that they could proceed to question him. In so far as the issue was relevant to the determination of the matter by the Court of Criminal Appeal, there was no real issue as to what the terms of the warrant were, having regard to the statutory provisions in section 18 and section 19A of the Act.

It is important to perhaps take your Honours to, if I may, the judgment of Justice Smart which clearly we rely upon in material respects, as we do the finding of the majority, that the learned trial judge, in determining to admit the confessional material, took into account an irrelevant consideration in determining that the confession ought be admitted. Justice Smart, if I could take your Honours to page 225 of the application book, after summarising the evidence and dealing with some of the legal principles involved and a consideration of relevant statutory provisions, said this at line 25:

I have been troubled by the police neither arresting the applicant at his home nor telling the applicant at his home of the existence of the warrant and that he was going to be arrested. What took place appears to have been a stratagem designed to enable the police to question the applicant at length before becoming subject to a duty to bring him before a Justice forthwith. This is curious when a sworn information has been laid.

If I could take your Honours to page 226, after his Honour discusses this question of the discretion that does exist in relation to the execution of the warrant, Justice Smart said at line 30:

It is a different situation where police have a warrant but abstain from arresting a person so that they can question him. It did not matter what the applicant said, he had to be, and was, arrested. I do not think that the discretion which the police have as to the time at which they execute a warrant and arrest the person named in it extends to delaying executing it while they question the person in an attempt to obtain admissions. If the applicant had known of the existence of the warrant and its effect he may have declined to accompany the police voluntarily.

That was, of course, a critical matter going to the matter that was raised a moment ago as to what might have followed in circumstances where the warrant had been executed or he had been told at the time that he was first spoken to by the police that he was not free to leave. My learned junior draws to my attention a further passage on that page which is of importance:

He may have arranged for a solicitor to be present or he may have had his mother do so. There are also other steps he may have taken to ensure that he was not alone with the police. This was not a case where there was any sufficient reason for the police not to execute the warrant when they spoke to the applicant at his parents' home at which he was living.

In my opinion what happened was impermissible.

In essence, in relation to this point, we submit that the Tasmanian police acted outside the exercise of the discretion conferred by the relevant provisions, either section 18 or section 19A it makes no difference, because the discretion is either similar or identical. They acted outside that discretion when they delayed executing the warrant for the purposes of questioning the applicant.

In our submission, there was no factual uncertainty. If there was any factual uncertainty, as one has regard to the judgment of the majority, it was a question of whether it was a warrant issued pursuant to section 19A, as a provisional warrant, that is issuing from the State at which it was executed, or it was a warrant issued pursuant to section 18 of the Service and Execution of Process Act that requires endorsement in the State where it is to be executed.

BRENNAN CJ: Your argument does not really turn on the Service and Execution of Process Act, does it? Does it not - I mean, you are not challenging the validity of the arrest which was what was done under statutory power; what you are doing is saying, "They had a warrant for his arrest and that being so it is not proper conduct for the police to take a person to the police station for questioning without at least letting that person know that they have the warrant for his arrest and that he will be arrested".

MR NORRISH: Yes, that is correct, your Honour. And it involves a consideration of the extent of the discretion that exists to arrest - - -

TOOHEY J: I know the word "discretion" is used in the judgments. It may not be the happiest of terms. The police officer has an obligation to execute the warrant according to its tenor, but there may be circumstances that explain why it was not executed. Now, whether you describe that as a discretion, I do not think it is a very happy use of the term, but it is an explanation and the consequences that might follow from a failure to execute the warrant according to its terms may not apply in such a case. I do not know that that affects your argument.

MR NORRISH: No, your Honour, we would submit in the circumstances it is an obligation. The use of the expression "according to its tenor", I think it is in section 19A of the Act, is concerned, we would respectfully submit, with the requirement to do something in relation to the applicant. Once the warrant is executed, it does not go to the question of how the warrant should be executed.

BRENNAN CJ: This is not a case like Williams where it is an abuse of power, that is a power for a purpose other then that for which it is conferred. This is a case where the power has been exercised by arresting and that power was validly exercised. The concern is that, being armed with the warrant and having the power to arrest, they did something else.

MR NORRISH: That is exactly right, your Honour. If they had executed the warrant at the time that they had spoken to him, then they would not have taken him away to question him in the circumstances in which they did. They had the warrant, they did not inform him that they had the warrant, they did not inform him that he was not free to leave, although he was not free to leave. He was, in our submission, effectively detained, although he did not know so.

In our submission, it makes one of the matters that touches upon the second matter of general importance in this case. It does not matter that the applicant did not know that he was free to leave. The reality was that he was not free to leave and they devised a means by which they could place him in that position of vulnerability that enabled them the opportunity of putting various matters to him which were the subject of dispute at the trial.

HAYNE J: The proposition that you contend for is that there can be no questioning of a person named in a warrant without, in effect, execution of the warrant and whatever limitations may follow thereafter.

MR NORRISH: No. We respectfully submit there can be no detention for the purposes of questioning. You see, in our submission the issue here is that armed with the warrant and with no other factor operating such as to justify a delay in the execution of the warrant, the police were obliged to execute the warrant and thus put in train what they were obligated to do under the terms of the Act, and that is to bring the applicant before a Justice of the Peace.

HAYNE J: Because the detention was wrongful?

MR NORRISH: We respectfully submit the detention was wrongful because of the failure to execute the warrant. They were entitled to detain him once they had executed the warrant but what then happened, or what then would happen, after the execution of the warrant, would be a quite different train of events than emerged in this particular case and that was the particular matter to which his Honour Justice Smart referred in his judgment in the passages that I referred your Honours to. The critical matter, as it was related to the public policy discretion, was the fact that it was found by the trial judge, and obviously to be accepted by the Court of Criminal Appeal, a deliberate stratagem or step on the part of the police.

If I could just take your Honours to the terms of the majority's judgment in this regard. At page 200 line 40 their Honours discuss his Honour's judgment in relation to the effect of the illegality upon the cogency of the evidence. Over the page his Honour Justice Hunt, giving the judgment of the majority, referred to the passage in Bunning v Cross that had been submitted to him in the course of oral argument and he goes on to say:

The example given of an exception to the proposition could not usually apply to evidence of admissions made whilst in unlawful detention. It does not do so here. Nor was any other exception suggested by the Crown which could be applicable in the present case. I am therefore satisfied that, once the judge had found (upon the basis of the assumption which he made) that the illegality was deliberate, he took an irrelevant consideration into account when declining to exercise his discretion to exclude this evidence on the ground of public policy.

In other words, he took into account the issue of cogency as militating against the exercise of the discretion to exclude the evidence. Then at pages 203 and following, Justice Hunt goes on to discuss the issue of whether there was a basis for making the assumption there was an obligation upon the police officers forthwith to arrest the appellant. The word "forthwith" was never submitted to him as it appears in the Service and Execution of Process Act to be directed at the issue of the execution of the warrant. It is clearly, in its terms, concerned with the issue of what happens once the warrant is executed. But his Honour says, if I could take your Honours to page 203 line 27:

That assumption was vital to all of the findings of fact which followed. As I have already pointed out, there was no evidence before the judge as to whether that was their obligation, and nothing further has been placed before this Court either at the hearing of the appeal or with the further submissions made subsequently by leave. The onus lay on the appellant to supply the evidence upon which the judge was being asked to exercise this particular discretion, and in those circumstances I am not prepared to make the same assumption where, as I shall point out, I believe it to have been unfounded.

In our submission, that is the error in the approach of the majority because if one goes back to the terms of the provisions of the Service and Execution of Process Act, it required the court to consider whether - and I am sorry to use the word "discretion" again, but perhaps it is discretion or obligation - whether the obligation to execute the warrant could be delayed for the purposes of undertaking an investigation of the matter where the police were always going to execute the warrant. They were not delaying the execution of the warrant solely for the purposes of determining whether they should do so, they were always going to execute the warrant.

BRENNAN CJ: I can understand your references to the Service and Execution of Process Act and obligations. It just does not seem to me to touch the real question here. Is it elimination of the confession on a Bunning v Cross basis or an unfairness basis?

MR NORRISH: The primary issue was the public policy discretion.

BRENNAN CJ: Bunning v Cross.

MR NORRISH: Bunning v Cross, but unfairness - - -

BRENNAN CJ: The police did not act unlawfully in detaining him, did they?

MR NORRISH: We submit that they did.

BRENNAN CJ: They could not have. They did not exercise any force on him. They took him there voluntarily. They might have been under an obligation to execute the warrant, but that is another matter. No question of that power miscarrying.

MR NORRISH: Yes, but I was going to make the point - if I could make the point, perhaps, because it might answer your question. This is perhaps a matter that fits in with what was suggested in Foster, that whilst we say primarily there was the issue of the illegality, it overlapped with unfairness because the consequence of the conduct of the police was to put the applicant in a position of unfairness in the way in which it was outlined by Justice Smart in his judgment.

BRENNAN CJ: Thank you, Mr Norrish. Yes, Mr Blackmore.

MR BLACKMORE: Thank you, your Honours. As your Honour the Chief Justice has just noted, the applicant went voluntarily with the police. When he was confronted at his home he was confronted with some substance - we do not know exactly what - of the allegation. He was then asked if he would come with them to the police station. The question from the argument seems to come down to this: was there an obligation on the police, at his home, to serve the warrant there and then?

BRENNAN CJ: To execute the warrant.

MR BLACKMORE: To execute the warrant there and then. With respect, it just cannot be so. The difficulty with analysing this particular matter in that way is that his Honour the trial judge found, if you like, almost as a matter of law that forthwith it had to be executed in that way. So there was no much examination, if you like, of the factual reasoning why, or apparently why it was done in the way in which it was done.

Usually one would say that this is the sort of thing the police would normally do. If they were interviewing a suspect they would normally speak to them. They would not arrest them necessarily at the scene. They would probably invite them to come and speak to them at the police station. As a usual matter, that is probably not anything which would attract any sort of consideration.

BRENNAN CJ: Why not? If there is a warrant out for somebody, ordinarily you would execute it, take them into custody.

MR BLACKMORE: That is certainly an option, your Honour.

BRENNAN CJ: It is not an option, is it, it is an obligation.

MR BLACKMORE: No, with respect. It may not be a discretion, but clearly there was no legal obligation to execute it at the home forthwith.

BRENNAN CJ: That may be right, that there was not an obligation to execute it at the home, but there was a power to execute it at the home.

MR BLACKMORE: Absolutely. They could have done so.

BRENNAN CJ: They could have done so.

MR BLACKMORE: Yes.

BRENNAN CJ: Now, they did not do so. They took him to the police station, he went voluntarily, but none the less he was in detention there.

MR BLACKMORE: He was in detention there.

BRENNAN CJ: Yes. And they questioned him there instead of executing the warrant.

MR BLACKMORE: With respect, I will have to say yes and no to that. They questioned him.

BRENNAN CJ: They questioned him there without executing the warrant, put it that way.

MR BLACKMORE: But telling him that they had the warrant and telling him they had the warrant before any relevant admissions were made. He was starkly aware, with respect, of his dilemma, if you like, in that regard. He said so, "I'm damned if I do and damned if I don't.", prior to making any of the relevant admissions. This raises this issue of whether or not public policy is in fact the applicable principle here.

TOOHEY J: Was that statement made in relation to the existence of the warrant?

MR BLACKMORE: Perhaps if I can just go to it, your Honours. It is at page 100 of the application book and yes, in my recollection, yes, it was. Sorry, it is page 125 of the application book. Right at the bottom of the page is where the detectives talk about the fact that they have a warrant. Prior to that there are some introductory remarks - - -

TOOHEY J: Do they? It is a pretty ambiguous sort of statement, is it not?

`The point is, Ian, that in New South Wales the detectives have supplied sufficient evidence to a magistrate for him to issue a warrant for your arrest.'

Is that telling him that they are actually holding a warrant for his arrest?

MR BLACKMORE: We do not know precisely what else was there in the interview.

TOOHEY J: It is not a very clear way of saying it.

MR BLACKMORE: Verbally it is not, that is true.

BRENNAN CJ: They do go on to say that:

you will be arrested and charged and have to return to New South Wales - - -

MR BLACKMORE: That is true. With respect, I do not see that he was under any doubt at all what was going to occur following that passage of conversation. It was after that that he commenced to make significant admissions. I will not read them all, but they were significant, obviously.

BRENNAN CJ: The one before it was not insignificant, was it?

MR BLACKMORE: Well, not in the light of the ones afterwards, no, but had he stopped when he knew the warrant was going to be issued to him and he was going to be arrested, in other words at the bottom of page 125, top of page 126, it would have been rather equivocal at best, but when he then goes on to explain exactly what he means by having had sex with them, and explaining that it was not oral, it certainly brings it clearly into light that, yes, what he said about oral was in fact an admission.

If I can come back to the point of the home, because it is significant as to whether or not they had to execute the warrant there. When you analyse it, that is the relevant period, if you like, of unfairness, is the period from home to the police station. Because once they get to the police station, within a reasonably short period of time, he is told that he is going to be arrested. What, with respect, needs to be analysed is what unfairness flows to him from that period. With respect, that is exactly what the trial counsel, Ms Bell, put to the trial judge. That was the issue upon which it was fought at trial: what unfairness flowed from that period? Arguably there is unfairness; there is the McKinney/Judge kind of unfairness that my friend has referred to, where he will not be in a position to corroborate statements that he makes at the police station.

BRENNAN CJ: Where is the trial judge's ruling on fairness?

MR BLACKMORE: Page 22, perhaps I could commence there, your Honour. Page 22, about point 4 on the page, line 24, is the submission made in relation to fairness by Ms Bell. Towards the bottom of the page it can be seen the reference to "McKinney & Judge" and the vulnerability.

TOOHEY J: In the ordinary course, a police officer armed with a warrant would search out the individual in question and I assume say to that person, "I've a warrant for your arrest. Come with me to the police station." and then the requirement to take the person charged or the arrested person before a Justice of the Peace would come into play. But in what sense is the warrant executed here, when the applicant accompanied the police officer to the police station? What is involved in executing the warrant in that situation?

MR BLACKMORE: We would argue that it was not executed at all at that point. What the police officers have done, for reasons which perhaps are unexplained - and I need to elaborate on that a little - it was not executed there and then. It was executed at the police station, for all intents and purposes.

TOOHEY J: I understand you to be saying that, Mr Blackmore, but I am just asking you, in the situation that existed here, what is involved in executing the warrant when the person the subject of the warrant is already at the police station?

MR BLACKMORE: One of the things that must be involved is at least questioning the applicant prior to any execution of a warrant, because it must be necessary to establish who he is. So there cannot be any unfairness in questioning per se before execution. I mean some things need to be asked. It could be argued that that questioning ought be limited only to, say, a reasonable point where identity is established and identity in relation to the warrant. In other words, the two things need to match. He may have an explanation for this, for example, and it may have been fair to ask him, "Look, does this really relate to you? Are you really the John Smith that is referred to in this warrant?", for example. It may not be enough to ask him, "Are you John Smith?" You may have to go on and ask him, "Do you know the people that are referred to in this warrant?", in the course of which he may well make admissions, even without being warned necessarily at this stage.

BRENNAN CJ: If you look at pages 22 to 24, which is his Honour's ruling on the fairness objection, his Honour sets out all the arguments which were propounded or which might have been propounded in favour of rejecting the evidence, and then at 24 he says:

I am not persuaded that it would be unfair -

Does he give any reason for that conclusion?

MR BLACKMORE: Not really. It is explained in the Court of Criminal Appeal's judgment, your Honour, that that - I will have to come to that, but no, I can only assume that the reason is that he is able to give directions in relation to that matter.

BRENNAN CJ: Then what do you find in support of the exercise of the discretion in that way?

MR BLACKMORE: At least he has properly considered all of the matters, one could say, in relation to rejection.

BRENNAN CJ: What is the best passage in the Court of Appeal's judgment which adverts to and upholds that exercise of discretion?

MR BLACKMORE: It is, with respect, your Honour, the discussion is on page 206 and it starts at about line 30 and proceeds over the page. This was really the issue that is now in a sense before this Court. So I do not know that I can actually put it any better than the Court of Criminal Appeal has put it, with respect. It is a limited aspect, with respect, of unfairness which there are specific rules built into the trial process to deal with. It is perhaps not one of those circumstances where you could say there is not much that the trial judge could do to ameliorate the unfairness to the applicant.

TOOHEY J: If you approach it not from the point of view of unfairness but in a Bunning v Cross sense of public policy or legality, what do you say about that, Mr Blackmore?

MR BLACKMORE: We say that it is just not that sort of exceptional case and if we get to that point by saying, well, it is fair, then at best it was an impropriety. It is arguable, even, that it may not have amounted to that. It certainly was not an illegality, but it may be characterised as an impropriety at some point, perhaps even at the point at the police station where they start to tell him about the warrant. Perhaps an obligation could be inferred on them then to take him before the magistrate forthwith, rather than continue to question. But it is a relatively - no impropriety is permissible, but in terms of improprieties it is a relatively minor one; not the sort that would normally be regarded as a public policy issue where you have a - - -

BRENNAN CJ: In other words, the conduct of the police on the one hand and the cogency and importance of admitting the evidence on the other come down in favour of admission, is that right?

MR BLACKMORE: That is it. With respect to the applicant, I think their stronger argument is really on the unfairness aspect of it. But, with respect to that argument, it is one which was specifically considered by the Court of Criminal Appeal because it narrows itself down to this McKinney and Judge period between the home and perhaps advising him. When he voluntarily goes with the police it is not a question really of taking him forcibly.

The other aspect of that I just briefly want to refer to is we do not really know why the police acted in the way they did at the home. There may have been good reasons. But it was not an issue at the trial because the trial judge's understanding was that it had to be forthwith, so he implied the obligation, perhaps, without even considering why the police would do it. But there may have been good reasons. Your Honours could well imagine there may be good reasons why you would not want to execute a warrant in somebody's suburban street.

TOOHEY J: But you are using "executing" there in the sense of arresting, are you, as opposed to the consequences that follow from arrest. You are saying the trial judge was applying the term "forthwith" to the arrest, not to the entire process involved in the execution of a warrant?

MR BLACKMORE: Yes. By that, he really limited the scope of his investigation of the matter to a certain extent. But we argue that it does not much matter now because the Court of Criminal Appeal has investigated the scope of the matter, the unfairness is identified as the McKinney and Judge unfairness and that it is one that can be dealt with at the trial. There was no error, with respect. Unless there is some other particular aspect, your Honour.

BRENNAN CJ: Yes, thank you. Yes, Mr Norrish.

MR NORRISH: Your Honours, the extent of the impropriety is underlined by the very passage to which my friend refers at pages 125 and 126. Firstly, immediately before advising him that there was sufficient evidence to issue a warrant, the relevant misrepresentation was put in response to which there was an admission or an alleged admission. They tell him that there was sufficient evidence and that he would be arrested and charged but they do not execute the warrant at that time. So, contrary to what the Crown has submitted, it was not a question of, if I could call it the unfairness or the impropriety, whichever way one wishes to look at the relevant discretions continuing only from the time that he left his home to the time that he arrived at the police station and the questioning commenced. It continued throughout until such time as the warrant was executed. The consequence of executing the warrant, in our respectful submission, would have required the police officers to take him forthwith before a Justice of the Peace and not to then continue to question him as they did.

As correctly put, Bunning v Cross is also concerned with impropriety as well as illegality and, in our respectful submission, the impropriety in this matter was a matter which directly affected the cogency of the evidence in any event because it should be pointed out that it was the fact that these oral admissions were strongly disputed by the applicant at court. It was not a question of the court having available to it a video-taped interview, for example, flowing upon the commencement of the interview as might be the case in New South Wales in the present time.

They complete our submissions, if it please the Court.

BRENNAN CJ: The Court will adjourn briefly in order to consider what course it should take in this matter.

AT 11.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.47 AM:

BRENNAN CJ: The application for special leave has been argued by concentrating on the obligation of a police officer who is in possession of a warrant for the arrest of an alleged offender to execute the warrant and not to detain the alleged offender while he is questioned prior to the making of the arrest. We do not have the warrant before us. However, the question in this application is not whether the police officers were under an obligation to execute the warrant when they first identified the applicant; it is whether their conduct in taking him, with his consent, to the police station and questioning him there without executing the warrant and briefly delaying in telling him of the warrant ought to have led the trial judge to hold that the confessional statements made by the applicant ought to have been excluded in the exercise of a discretion to exclude for unfairness. The trial judge held, and the Court of Criminal Appeal affirmed, that the discretion was properly exercised by admitting the confession and no error of principle appears for challenging in this Court the basis on which that discretion was exercised. The same observation can be made in respect of a Bunning v Cross discretion. For these reasons, special leave will be refused.

AT 11.49 AM THE MATTER WAS CONCLUDED