R v HEISS and KAMM

Supreme Court of the Northern Territory of Australia Nader J
28, 29, 30, 31 May, 1 June and 16 July 1990 at Darwin in the absence of the jury.

EVIDENCE - Criminal law - application under s.26L Evidence Act (NT) - admissibility of confessional statements - whether voluntary - Crown bears burden of proof - standard of proof - on balance of probabilities.

EVIDENCE - Criminal law - whether persistent questioning renders confessional statements of accused inadmissible whether accused's free will is overborne - test in
McDermott v R - decision to make confessional statements must be made freely.

EVIDENCE - Criminal law - trial judge's discretion to exclude admissible evidence where "unfair to the accused" - when voluntary confession is "illegally", "unfairly" or "improperly" obtained.

STATUTE - Police Administration Act (NT) - interpretation of
s.123 prior to and after amendment Act No. 10 of 1988 - detention of suspect in custody for "reasonable period" after lawful arrest - new Division 7 of Act - ss 137 and 138 - requirement that accused be taken into "lawful custody" - ss
123 and 134 - whether reasonable in all circumstances to hold accused in custody, without bringing him before a justice as soon as practicable, to enable questioning and/or investigations - whether period from time of arrest up to and including time during which accused made a challenged confessional statement is a reasonable period to continue to hold the accused in order to question him and/or carry out investigations - wide discretion conferred by ss.137 and 138 - balancing factor of "liberty of the subject".

STATUTE - Police Administration Act (NT) - interpretation of
s.137 - not explicit as to whether questioning and/or investigation by police may only proceed "lawfully" when police honestly believe they have a reasonable prima facie case - requirement that statutes affecting liberty of the subject be expressed in unequivocal terms.

Statutes:
Evidence Act (NT) 1939-79
Police Administration Act (NT) 1979-90

Cases followed:
R v Ireland (1971 - 1972) 126 CLR 321
Williams v R (1986) 161 CLR 278
McDermott v R (1948) 76 CLR 501
R v Lee and Ors (1950) 82 CLR 133
Macpherson v R (1981) 147 CLR 512
Bunning v cross (1978) 141 CLR 54
Cleland v R (1982) 151 CLR 1,

Counsel for the Crown: Solicitor for the Crown:

Counsel for the accused (D.L. Heiss):

Solicitors for the accused (D.L. Heiss):

I. Barker QC with R. Wallace

Solicitor for the Northern Territory

F. Gaffy QC with D. Farquhar Cridlands

I
'	l
IN ?;HE /SUPREME COURT
OF 'l'HE'NORTHERN TERRITORY
OF AUSTRALIA
No 151 & 152 of 1989

THE QUEEN

against

DANIEL LOTHAR HEISS and PETER MICHAEL KAMM

CORAM: NADER J

REASONS FOR JUDGMENT
(Delivered 16 July 1990)

This is an application under section 26L of the
5		Evidence Act (NT) to determine whether certain confessional statements should be admitted in evidence at the trial of the accused, Daniel Lothar Heiss, who was arraigned, together with Peter Michael Kamm, on the following charges:

10	"Count 1
On or about 14 May 1989 near the carpentaria Highway on
O.T. Downs Station in the Northern Territory of Australia murdered Dean Peter Robinson.
15
Section 162 of the Criminal Code.

Count 2
20
On or about 14 May 1989 near the Carpentaria Highway on
O.T. Downs Station in the Northern Territory of Australia stole a Winchester .307 lever action repeating rifle, a Savage .22 magnum/20 gauge over-and-under rifle/shotgun,
25	combination firearm, a Fabrique National D'Armes 30/06 bolt action rifle, a brown vinyl gun case, a Lee

reloading press, two Leopold telescopic sights, a quantity of aillI!lunition, an aillI!lunition belt and a jack having a total value of approximately $1500.00, the property of Dean Peter Robinson and iillillediately before
5	doing so used violence to Dean Peter Robinson in order to obtain the things stolen,
AND with the following circumstances of aggravation:
10	a)	That Daniel Lothar Heiss was armed with a firearm;
That Peter Michael Kamm was armed with a firearm;
That Daniel Lothar Heiss and Peter Michael Kalllill were
15	in company with each other;
That iillI!lediately before the robbery Daniel Lothar Heiss caused bodily harm to Dean Peter Robinson; and
20	e)	That iillI!lediately before the robbery Peter Michael KaillI!l caused bodily harm to Dean Peter Robinson.
Section 211(1) and (2) of the Criminal Code.
25
Count 3
On or about 14 May 1989 near the carpentaria Highway on
O.T. Downs Station in the Northern Territory of Australia
30	stole a Winchester ,307 lever action repeating rifle, a Savage .22 magnum/20 gauge over-and-under rifle/shotgun combination firearm, a Fabrique National D'Armes 30/06 bolt action rifle, a brown vinyl gun case, a Lee reloading press, two Leopold telescopic sights, a
35	quantity of aillI!lunition, an ammunition belt and a jack, having a total value of approximately $1500.00 the property of Dean Peter Robinson.
Section 210(1) of the Criminal Code.
40
Count 4

45	on or about 14 May 1989 near the Carpentaria Highway on
Downs station in the Northern Territory of Australia improperly offered an indignity to the body of Dean Peter Robinson, namely, burned with petrol the head of the said body.
50
Section 140(b) of the Criminal Code."

The accused says that the statements under challenge:

are inadmissible because they were not voluntary.
(in the alternative) ought to be excluded in the exercise of the court's discretion.

5	The challenged statements:

Time and date of statement: 10.35 am to 1.00 pm on Sunday
6 August 1989.

10	The statement consisted of a series of answers to questions asked by Det. Sgt Sodoli at the watch house and
C.I.B. offices at the Berrimah Police Station with Det. Const. James present.	Notes of that conversation (exhibit 73) were taken by James: see below.
15
Time and date of statement: 2.00 pm to 3.50 pm on Sunday
6 August 1989.

The statement consisted of a series of answers to
20	questions asked by Det. Sgt Sodoli at the watch house and
C.I.B. offices at the Berrimah Police Station.	Det. Sen. Const. James, who was present, also asked some questions. The statement was sound-recorded (exhibit 61). A transcript of the statement is exhibit 62.	The
25		transcript is annexure A hereto.	It might be said of it that it records a long, detailed and self-incriminating account of the death of the deceased and of many matters circumstantial to the death.

Time and date of statement: 3.15 pm to 3.35 pm on Monday
7 August 1989.

5	This statement consisted of an oral account by the accused concerning the shooting of the deceased accompanying physical demonstrations by him of how the shooting occurred, at the site of shooting on OT Downs Cattle Station.	The approximate location of the shooting
10		is marked with a cross on exhibit 98, a large scale map of the Northern Territory.	The whole procedure was referred to in these proceedings as a "re-enactment''·	It
was sound and video recorded.	The video tapes are exhibits 44 and 65; the sound recording, exhibit 101.	A
15	transcript of what the accused said is part of exhibit 101: a copy is annexure B hereto.

e and date of statement: 12.39 pm to 12.42 pm on Tuesday 8 August 1989.
20
The accused was questioned by Det. Sen. Const. James at the site of an old car dump at Bamboo Creek (just short of the 47 Mile, 3 to 4 kilometres from the Stuart Highway).	The interrogation was sound recorded: exhibit
25	36.	A transcript of the interrogation (exhibit 36A) is as follows:

"James:	Um wish to ask some questions in relation to this area before I do I must advise you

5
Heiss: James:
10

15
Heiss: James:
20
Heiss: James:
25

Heiss:
30	James:

Heiss:
35
James:

Heiss:
40
James: Heiss:
45
James:
Heiss:

50
James:

55	Heiss:

that you don't have to answer any of my questions unless you wish to, whatever you do say will be recorded on the tape recorder and may later be used as evidence.	Do you understand that.
Yeah.

Right, do you agree that er when Detective SODOLI and I interviewed you on er Sunday afternoon on the tape recorder at er Police Headquarter in Darwin you were showing, shown a er photograph of a green motor vehicle and you made some comments in relation to that.

Yeah.

Right er did you see that green motor vehicle in this area at all.

Yeah, that's the one there.

Right, and um can you tell me what er you said at the time in relation to this motor vehicle.

Er put the rifles underneath it in a bag.

Alright, could you just er point to that area now and er I'll get Detective SODOLI to take a photograph.

Under there.
And you're pointing down towards the tail­ shaft.
Yep, yeah.
Right, um.
There used to be a tray on the back of this thing.
Right . . .
That's why they probably found it because they pulled the tray off.

Right um, er in the photograph that you were showed on er Sunday in Darwin there was actually a, a tray on it at that time.

Yep.

James:

Heiss:
5
James:

Heiss:
10
James:

Yeah, right no worries, um but was the vehicle this way up.
Yep.

When you last left, right.	Anything else you wish to say about this.
Oh no not really.

Okay then we'll conclude this part of the interview, time is now 12.42."

15		It is contended by the accused that these four statements are inadmissible.	Their relevance is not attacked but it is submitted that none of them was made on the exercise of a free choice by the accused to speak or remain silent.	In other words, their voluntariness is challenged.	The challenge
20		having been made, the burden of proving the voluntariness of each of the statements rests upon the Crown.	The required standard is proof on the balance of probabilities.

It was submitted on behalf of the accused that he was

25		subjected to persistent questioning by Det. Sen. Const. Hambleton and by Det. Sgt Sodoli after he had said three times to Det. Sen. Const. Hambleton that he was not willing to answer questions, which expression of unwillingness was communicated by Det. Sen. Const. Hambleton to Det. Sgt Sodoli.
30	In order to appreciate this submission it is necessary to refer to the evidence.

Before turning to the evidence, it is convenient to refer to the relevant authorities.
35

Mr Gaffy QC, for the accused, if I understood him correctly, relied specifically upon The Queen v Ireland (1971- 1972) 126 CLR 321 and Williams v The Queen (1986) 161 CLR 278. Ireland concerned the persistent questioning of a suspect of
5	murder despite repeated statements by him that he did not wish
to answer.		That case differed from this in that the persistent questioning of Ireland did not elicit appropriate answers.	Barwick CJ said, at page 331, that the unanswered questions should not have been admitted into evidence at the
10	trial because "the fact that he was asked and made no answer
was not relevant: it would not be probative of any relevant fact or circumstance.	It was therefore not admissible." However, his Honour made some observations about persistent questioning.	As I understand his Honour, he said that, where
15		questioning is persisted in after an indication that the accused does not wish to answer questions and where the persistent questioning results in relevant answers, the evidence is admissible but the occasion arises for a consideration of the exercise of a judicial discretion to
20	exclude the evidence: ibid p333.	Although Ireland was relied
upon by the accused as a basis for his submission that the statements were not made voluntarily, it does not support that proposition, but may have to be considered later in connexion with possible discretionary exclusion.	In support of his
25	submission that persistent questioning rendered the confessional statements of the accused inadmissible, the appellant also relied on the reasons of Gibbs CJ in Williams. Again, I cannot see anything in the reasons of the Chief

Justice that bears on the question of inadmissibility arising from the mere fact of persistent questioning.

The authorities that relate to the issue of voluntariness
5		make it clear that a confessional statement is voluntary only if the decision to make the statement was made freely. Therefore, if any circumstance results in the will of a confessionalist being overborne, his confession is not voluntary.	From the start to the finish of the confession the
10	choice to speak must remain free.	See especially the
statement of basic principle in the reasons of Dixon J, in McDermott v The Kina (1948) 76 CLR 501 at p.511.	See also The Kina v Lee &   Ors (1950) 82 CLR 133.	It was also said in Macpherson v The Queen (1981) 147 CLR 512 at p.519: "However,
15		if there is nothing to suggest that the confession was involuntary, the presumption is that it was voluntary...and the onus is discharged...''·

Because the Crown bears the burden of proving
20		voluntariness, when the whole of the evidence upon the issue is in, it must be such as to convince the court upon the balance of probabilities that no circumstance existed that deprived the election of the confessionalist to speak of its free character.	It would follow from these propositions,
25		without the need of special authority on the point, that if the persistence of interrogators was such as to overbear the will of the accused the confession resulting from such questioning would be inadmissible, not because of the

persistence of the questioning as such but because by reason of the persistent questioning the choice to speak was deprived of its free character.	If, upon a consideration of all the evidence on the question, the court is not able to find that
5	the choice to speak was more likely to have been freely made
than not by reason of the persistent questioning, the crown will not have discharged the onus of proof and the resultant confession must be held to be inadmissible.

10		The questioning characterized as persistent by the accused here is that which followed expressions by him of unwillingness to answer further questions being asked by the police.	It is necessary therefore to refer to the evidence of the circumstances in which those expressions were made.
15

Detective senior Constable Hambleton testified that he became involved in the enquiry concerning Dean Peter Robinson (the deceased, but then a missing person) when it was handed over by Detective Constable Wardrope as being no longer a mere
20		missing person matter, but a possible homicide.	Hambleton first entered the investigation on 14 July 1989.		He thereafter made a number of enquiries and caused other people to make enquiries and was told a number of things about the deceased.	Amongst other things, Hambleton had learned that
25	the deceased had damaged his Nissan Patrol 4 wheel drive motor vehicle in an accident at Borroloola; that he had arranged for a Mr Quan Sing to deliver it to Darwin; that he had left Borroloola some time ahead of the vehicle; that he had left

his dog at Borroloola with a Mr Mitchell saying that he would call back for it in a fortnight; that he had told Quan Sing that he had been staying in the Acacia area; that his vehicle in fact arrived at Darwin on 20 May.	Hambleton seized the
5	deceased's vehicle from Quan Sing's yard in Darwin.	Hambleton
was also told that the deceased had left his firearms at Borroloola; that the deceased had been told there were two Nissans at Acacia which might provide a body for his own damaged vehicle; that he had left his firearms with a Neville
10		Andrews at Borroloola and had returned for them in a small utility vehicle, possibly a Daihatsu with white wheels.

By 14 July 1989, Hambleton knew that the deceased had been declared a "missing person" and that his father had been
15		enquiring about him.	Hambleton also knew that the deceased's three firearms had been found at Bamboo Creek under a derelict vehicle and that his father had expressed the view that the deceased was very attached to the weapons and would not have lent them to anyone or sold them.	Hambleton also knew that
20		the deceased's father had said that the deceased had not been keeping contact with him and that it was unusual for him not to do so.	Hambleton spoke to the co-accused, Kamm, and to several other people at Acacia on 22 July 1989.	On 25 July 1989 he spoke to Mr Shannon White who lived at Acacia.
25	Hambleton recorded, at entry 158 of the police running sheets, that White told him that, some 10 weeks before Hambleton spoke to White, he, White, had been contacted by the accused enquiring about pig shooting and that the accused had told

White that he had another young fellow who was a shooter and who had his own guns.	Hambleton had been told that the accused used to reside at Acacia and drove a black Daihatsu motor vehicle.	At that stage Hambleton first learnt of a
5	crime report (exhibit 86) whereby Shannon White had complained
to the pclice on 17 June that the accused had stolen White's Nissan motor vehicle.	White said that he had handed it to the accused to take to have repaired and that he had not returned it.	So far as Hambleton knew, when he went to see him on 5
10	August 1989, the accused was suspected of having stolen that
vehicle, and that was the reason for Hambleton's visit to the accused.	In fact, nothing came of that matter.	But, 25 July 1989 was the first time that Heiss's name was mentioned to Hambleton in connection with their enquiries at all, and it
15	was mentioned by White.

On 5 August Hambleton was told that on 28 July Heiss had walked out of the bush at Acacia.	He had told a Mr Tep that the cops were after him and that he was going to burn his
20		Daihatsu motor vehicle.	Tep bought the vehicle for $100. Hambleton was also told that the accused told the co-accused, Kanan, that he intended leaving for Perth in the near future.

As Mr Barker QC, who appeared for the Crown, submitted,
25		the police were acquiring knowledge, none of which was sufficiently cogent to prove a murder but which was enough to make them suspicious, both that Robinson was dead and that the accused was in some way involved, perhaps.	The accused had

been directly accused of stealing White's Nissan and there was the probable theft of Robinson's firearms.	Hambleton was looking for the accused because it was quite obvious to him that the accused might be able to help the police in their
5	investigations into a suspected homicide and some offences of
larceny.

In the light of this state of affairs,	Hambleton sought out the accused and, at 9.35 am on Saturday 5 August, arrested
10		him at the Salvation Army hostel, Darwin.	Detective Dickinson accompanied Hambleton.	Hambleton gave an account of the circumstances of the arrest.	After inquiries, he went to the Red Shield, Salvation Army hostel in Mitchell Street with Dickinson on the morning of Saturday, 5 August 1989 at about
15	9.15.	Dickinson had with her a photograph of the accused whom
neither of them otherwise knew by sight.	The photograph had been taken some years before and the accused's appearance had changed considerably: exhibit 60.	Upon arrival at the hostel Hambleton spoke to one of the persons in charge of the
20		accommodation section who said that there were a number of people in the building who had booked-in the day before, which was within the time frame that Hambleton had been informed that the accused would have booked in.	Hambleton said that he did not use the accused's name when making the enquiry.
25		Dickinson testified that the accused's name was mentioned to the person of whom they enquired.	Hambleton said he was sure he would have shown the man the photograph of the accused although he could not actually remember doing so.	Hambleton

and Dickinson went to room 105 and entered after knocking. The curtains were drawn and lighting inside the room was poor. The accused was the only person in the room.	He was on the top bunk just inside and to the right of the door lying on his
5	back.	The following conversation took place:

Hambleton: The accused:
10
Hambleton:

15		The accused: Hambleton:
The accused:
20
Hambleton:

25
'I'he accused: Hambleton:
30	The accused:
Hambleton: The accused:
35

Hambleton:
40	The accused:
Hambleton:

45

Dickinson:

50

"What's your name, mate?" "Who are you?"
"Police.	I'm Detective Hambleton.	This is Constable Dickinson from the Darwin CIB".
"What do you want?"
"I'd like to know your name, please?" "Why? II
"I'm investigating a report of a stolen Nissan Patrol motor vehicle;	you may be able to assist me with that matter.	I need to know your name, please"

"Thomas".
"What's your full name?" "Peter Thomas".
"Is this your gear?"
"Yes".	[Hambleton indicated a large backpack at the foot of the bunk that the accused was sleeping on.]
"Have you got any ID?"

"Let's have a look anyway, jump out of bed."	[The accused put on his pants and got out of bed.	Constable Dickinson drew Hambleton's attention to the photograph of the accused in her possession.]
"Daniel Lothar Heiss, we've been looking for you for a while".

······-~------

The accused:

Hambleton:
5

"What about?	That Nissan?	If it is, I didn't steal it".

"Are you Danny Heiss?"

The accused made no reply.

10	Hambleton:

The accused:
15
Hambleton: The accused:
20	Hambleton:
The accused:

25
Hambleton:

30

"Listen Danny, I'd like to ask you some questions.	I'd like you to come back to the police station with me".
"Are you arresting me?"
"I'm asking you to come with me" "I don't want to''·
"Why not?"

"I don't want to go anywhere with you. I'm not going anywhere unless you arrest me".

"Fine.	You're under arrest for giving a false name to a member of the police force".

Thereupon, the accused was taken to the police station where Hambleton placed him in an interview room in the CIB offices.	The Crown relied upon sections 134 and 123 of the Police Administration Act as the source of the power to make
35	the arrest in the circumstances.

The accused was given breakfast.	Hambleton and Dickinson searched his backpack.	It contained several things, two of which were of immediate interest to Hambleton: a receipt from
40	Territory Firearms dated 18 May 1989 and 3 rounds of Winchester .307 calibre ammunition.	The receipt (exhibit 12) was as follows:

"18/5/89
Bought of TERRITORY FIREARMS PTY. LTD.
90 WOODS STREET
5	DARWIN, N.T. 5790
PHONE 81 3843

PURCHASE
1 X LEUPOLD
10	SCOPE	$90 -
27	n

Police had been informed by the deceased's father that
15		one of the deceased's firearms had been fitted with a Leupold telescopic sight and, according to Hambleton, a telescopic sight appeared to be missing from one of the deceased's firearms when they were recovered.	The three Winchester .307 rounds were also thought to be significant because of their
20	rarity considered with other information in police possession.

Having found the .307 rounds and the receipt for the sale of the Leupold telescopic sight, and considering those circumstances together with others, Hambleton suspected the
25		accused of involvement in the disappearance of the deceased and was becoming more suspicious.	He formed the view that the situation was appropriate for the application of section 137 of the Police Administration Act.	He considered that the matter required further and urgent investigation.
30
In these circumstances, on 5 August 1989, between 10.15am and 11.57am,	Hambleton questioned the accused.	He made some notes between episodes of questioning.	Part of the interrogation was as follows:

Hambleton:
The accused:
5
Hambleton: The accused:
10	Hambleton:

Do you own a telescopic sight? No.
Have you bought one lately? No.
Have you sold one lately?

The accused:	No.

Hambleton:
15
The accused: Hambleton:
20	The accused:

Have you ever been to Territory Firearms? What's that?
It's a shop in Woods Street. I've never been there.

(Hambleton then showed the accused exhibit 12, the receipt)

Hambleton:
25
The accused: Hambleton:
30	The accused:
Hambleton: The accused:
35

Hambleton:
40
The accused: Hambleton:
45	The accused:
Hambleton: The accused:
50
Hambleton:

The accused:
55
Hambleton:

Have you ever seen that before? No.
It was in your back-pack. It's not mine.
How did it get in your back-pack?

When I left that caravan at Acacia I just took everything out of the drawer; there was stuff in there that had been there for months.	I don't know who it belonged to.
When did you move out of the caravan? A couple of months ago.
Who was living there when you left? People moved in and out all the time. Whose name was the van in?
I don't know.
The records show that it was you paying the rent.
I might have paid it sometimes.
You stopped paying the rent in April.

The accused:
Hambleton:
5
The accused: Hambleton:
10	The accused:

I don't know.
Is that when you moved out? I can't remember.
The receipt is dated 18 May 1989.

Listen, I don't want to answer any BOre questions, I've told you about the Nissan, I'm not saying any	BOre.

15		Notwithstanding the accused's last answer, Hambleton asked the following questions:

Hambleton:
20	The accused: Hambleton:
The accused:
25
Hambleton:
The accused:
30	Hambleton:

The accused:
35	Hambleton:
The accused:

40	Hambleton:
The accused: Hambleton:
45
The accused: Hambleton:
50	The accused: Hambleton:
The accused:

What calibre were your firearms again? 6.5 and 22	250.
You ever owned any other calibre rifles? I've ow ed lots of rifles.
What calibres? All calibres.
Where did you get all those rounds in your pack?
I collect them.
What calibres have you got?
There are some 22 250s, 3030 and I think there's a 303.
Where did the 307s come from? I found those.
Where?
At Tep's camp. At Acacia?
No, the camp he was living at before that.
Where's that?
It's in the bush near Acacia.

Hambleton:
The accused:
5
Hambleton: The accused:
10
Hambleton: The accused:
15	Hambleton:
The accused:

What's there?

There's a hut there.	I went there after Tep moved in to Acacia.
Where were the rounds?
They were on a table in the hut. How many were there?
I can't remember. Does Tep own a 307? I don't know.

20		Hambleton, after showing the accused a photograph of the deceased, asked:	What about him?

The accused:
25	Hambleton:

The accused:
30
Hambleton:

The accused:
35

Hambleton:

40	The accused:

Don't know him.

His name's Dean Peter Robinson, he was at the Acacia store looking for parts for his Nissan Patrol.
I never saw him.
He was there when you had the two Nissans in front of your caravan.

The last bloke that asked me about parts was months ago and it wasn't him.

He's missing now, you sure you haven't seen him?
Never seen him.

(Hambleton then showed the accused a photograph of his brother Clifford.)

45	Hambleton:
The accused: Hambleton:
50
The accused: Hambleton:
55
The accused:

Who's that?
That's my brother, has he been in here? Yes, we had a little chat last week.
What about?
Lots of things, he told me you were going to go pig shooting.
I've told you about that, it was with

Hambleton:
5
The accused: Hambleton:
10
The accused: Hambleton:
15
The accused: Hambleton:
20
The accused:

25
Hambleton:

The accused:
30

Shannon White.

You had another young bloke lined up to go with you, is that right?
Who told you that?

I heard that you told Shannon that you had a young fellow lined up to go shooting with you.
Who told you that?

A young bloke who had his own guns and gear all ready to go.
What's this all about?

I told you, this young bloke's missing, he was a bit of a hunter too.

I don't know anything about him.	I'm not saying anything else.	What are you trying to do?

I'm just trying to find where young Dean is.
I'm not saying anything else.

Then, at Ham.bleton's request, between 11.57 am and 3.45 pm on the same day, 5 August 1989, the accused accompanied Hambleton and Dickinson to three camp sites to which he
35		directed them.	These were bush camps where the accused had lived during the preceding few months.	One of them, an old camp of Vuthy Tep, was where the accused said he had found the
307 rounds referred to above.

40		Then, at about 3.45 pm, the police car broke down on the Stuart Highway, about 3 kilometres north of Acacia Store.
They remained there until about 6 pm.	Another police car came along, and Dickinson went to the Acacia Store where she asked

more questions and received information about another camp site where the accused had lived.	Then, guided by the accused, they went to that camp site, near Bamboo Creek on an escarpment line at the 47 Mile, and searched it.	They then
5	returned to Berrimah, arriving back at about 7.38 pm.

Upon their return, the accused'was placed in an interrogation room and Hambleton again examined the accused's back-pack.	He found a photograph of considerable significance
10	(exhibit 32) in a book in the back-pack.	The photograph showed the accused leaning against a Daihatsu motor vehicle holding two rifles, a bolt-action and a lever-action, both
with telescopic sights attached.	They appeared to Hambleton to be two of the rifles that belonged to the missing man.
15	Hambleton saw other property in the photograph that he believed to belong to the missing man.	Hambleton re-entered
the interrogation room and, after showing the accused the photograph, said:

20
The accused:
Hambleton:
25
The accused:
Hambleton:
30	The accused:
Hambleton: The accused:
35
Hambleton:
The accused:

Who's that?
It's me.
Who took it?
I don't know. Where was it taken?
It's at Howard Swamp on a hunting trip. Whose guns are those?
They're not mine.
Whose are they?
They're Tep's and Greg's.

Hambleton:
The accused:
5
Hambleton: The accused:
10	Hambleton:
The accused: Hambleton:
15
The accused:
Hambleton:

20
The accused:
Hambleton:
25
The accused:

Hambleton:
30

The accused:

35
Hambleton:
The accused:
40

Greg McConnell? Yes.
What type of guns are they? I can't remember.
Whose is the lever action?
Tep's.
What calibre is it? I don't know.
Who owns that brown gun bag in the picture?
I don't know.
What about that sleeping bag and the jack and the other gear?
It's not mine, the others were there on that trip, why don't you ask them?
I'm asking you.	That's not Howard Swamp, where is it?
Look, that was a hunting trip to Howard Swamp; Tep, Greg and Peter where there, they'll tell you.
Peter Kamm?
I'm not saying any more; if you're going to charge me with something you go ahead, I'm not saying anything else.

A number of the articles shown in the photograph, exhibit 32, seemed relevant to Hambleton with respect to the
45	disappearance of the deceased by reason of various pieces of
information he had received through the police investigations.

Then Hambleton decided to go back to Acacia to talk to other people in order to further his investigation in the

light of what had then transpired.		The accused remained in the interrogation room.	Hambleton was away between 8.30 pm and about 10.30 pm while he arranged for three people to come back to Berrimah for questioning:	McConnell, Tep and the co­
5	accused, Kamm.

Upon returning to Berrimah, Harobleton questioned the persons referred to, after which he gave some time to reviewing the state of the evidence at that stage.	Hambleton
10	did not speak to the accused again on 5 August, and at
12.55 am on Sunday, 6 August 1989, the accused was taken from the interrogation room to a cell where he spent the remainder of the night.

15		Hambleton himself had a break for a meal and, having reviewed the evidence and given some thought to his position, he commenced to question the co-accused, Kamm, at 2.00 am. That interrogation continued until 3.50 am.	The interrogation was sound recorded and a transcription was made: exhibits 34
20	and 35 respectively.

What Kamm said was significant to Hambleton because he claimed to have been alone in the bush with the accused and the deceased when the accused shot the deceased dead.	He gave
25		the police a history of their association with the deceased. Kamm placed the blame for killing the deceased on the accused. He said that the accused shot the deceased.	He described how he and the accused disposed of the deceased's body.

Thereupon, Hambleton determined that he should take Kamm, who agreed to go with him, and try and find the deceased's grave and make an examination of the crime scene with a
5	forensic pathologist.	This he did.

Detective Sergeant Sodoli then came into the matter: Hambleton was to be engaged for an indefinite time furthering the investigation with Kamm, amongst other things trying to
10		locate the crime scene and the deceased's body.	Sodoli was briefed about what had taken place till then.

At 10.35 am on the next day, Sunday, 6 August 1989, Sodoli went to the Berrimah watchhouse with Detective James
15		where he introduced himself and James to the accused.	He told the accused that he wanted to talk to him and requested him to come to the CIB office.	The accused agreed to do so.	Then followed the interrogation referred to earlier in these reasons, the notes of which are exhibit 73:
20

(The accused was given the conventional caution) Sodoli:	Want a drink.
Accused:	Yeah water.
25
(James obtains water.)
Accused:	What's going on.

30	Sodoli:	I think you know more about it than we do.
Accused:		All I know is that I have been here since yesterday.
35	Sodoli:	You are well aware of what the allegations

are.
Accused:	Yeah that other policeman Nick said we
5		were supposed to have killed someone. Sodoli:	What do you know.
Accused:	I don't know anything.

10	Sodoli:

Where are you from.

Accused:	Canberra.
Sodoli:	How long have you been in Darwin.
15
Accused:	A few months.
Sodoli:	Were you born in Canberra.
20		Accused:	No Adelaide. Sodoli:	When.
Accused:	29/5/65
25
Sodoli:	Got any brothers and sisters. Accused:	A brother.
30	Sodoli:	Where is he.

Acc sed:	Hes gone.
Sodoli:	Where was he.
35
Accused:	Up here.
Sodoli:	Did you live with him.
40		Accused:	Yeah  sometimes. Sodoli:	Where are your parents.
Accused:	Whats it matter.
45
Sodoli:	Nothing really - just interested.
How well do you know Kamm.
Accused:	Fairly well - his mates with my brother.
50
(James/Sodoli leave room attended to another matter.	They return.)

Sodoli:	Where were we.
55
Accused:	You tell me.

Sodoli:	Where have you been living.
Accused:	out bush.
5
Sodoli:	Where.
Accused:	Acacia Hills - Marrakai area.

10	Sodoli:	Do you work.

Accused:	No not at the moment - Wheres Peter.
Sodoli:	Whose Peter.
15
Accused:	Peter Kamm.

Sodoli:

20

Hes gone out to Borroloola way with Nick & his offsider.	They flew out a short time ago.

Accused:	Why have they gone out there.

Sodoli:
25

I think he is going to try & find the place where Robinson is buried.

Accused:	Why, has he admitted to killing him.
Sodoli:	Yes he has.
30
Accused:	I dont believe it.
Sodoli:		Believe it - he has confessed & he has gone out there.
35
Accused:	Whats he said.
Sodoli:	Hes admitted to been involved but that he did not do the actual shooting.
40
Accused:		Is that right.	I booked the flight and Peter gave him the ticket.
Sodoli:	Whats that mean.
45
Accused:		Work it out for yourself - has Peter actually made a statement.
Sodoli:	Matter of fact.
50
Accused:	Can I read it.
Sodoli:	Why.
55	Accused:	I just want to see what he had to say.

Sodoli:

James:
5

Sodoli:

I cant see anything wrong with you reading his statement.

No hang on a minute - it was done on a tape recorder.

Well I suppose we could get a copy of the tapes for you to listen to.

10	Accused:	Am I allowed to listen to the tape.

Sodoli:

I cant see why not - I will have to get in touch with the boss and get his ok.

15	(Sodoli/James leave room.	They return.)

Sodoli:

20	Accused:
Sodoli:

25
Accused:

Sodoli:
30

,35		but its up to you.	If you want to - I'll try & get the tapes.	
	Accused:	Did Peter really confess.	
40	Sodoli:	Yes he did.	
	Accused:	If he had stuck to the story you would never have got us.	

Accused: Sodoli:

We havent been able to find the boss.	Do you really want to listen to them.
What do you think.
Is it going to make any difference to your account of what happen if you listen to the tapes.

I'll make a statement after I've heard what he's had to say about it.

Id rather you made a statement without listening to his version.
Why's that.
Because it might influence your account -

45	Sodoli:

What story.

Accused:	That we had left him in Katherine.
Sodoli:	Look I'll go and get the tapes for you.
50
Accused:		No - I don't want to listen to them - I just booked the flight & he gave him the ticket.

55	Sodoli:

Whats that mean.

Accused:	figure it out for yourself. Sodoli:	Can you tell us what happened.
5	Accused:		Dean wanted to shoot something so we pulled off into the bush &   started walking.	There was nothing around &  it was really weird and quiet & Dean had this look in his eyes.	He was in front of us
10		and he suddenly looked at me & then at Peter with a real strange look & I knew he wanted to shoot someone or something - I thought he was going to shoot me so I shot him first - in the back - this made him
15	spin around	- he was on his knees facing us and he started to lift the rifle - so I ran up & knocked it out of his hand and at the same time I heard 2 shots & saw Dean fall on the ground and it looked like he
20		had been shot in the throat.	We were in a panic - we walked around for a while then we went back to the car & got a sleeping bag and some petrol.	We went back to where Dean was lying - we couldn't find
25	him for a while - when we did - we put him in the bag - we dug a hole - put some rag around his head - put him in the hole & set fire to him.	We waited for the fire to stop &   then buried him.	We went back
30	to the car and drove to Dunmurra where we stayed the night.	The next day we came back to Acacia Hills.
Sodoli:	Okay hold it there for now.	Are you
35		prepared to tell us what happened again and this time we will record it on the tape.
Accused:	Yes why not.
40

At the completion of the interrogation noted in exhibit 73, a sound recorded interrogation took place commencing at 2 pm and finishing at 3.50 pm.	A transcript of the
45	soundrecording is annexure A to these reasons.

Following that confession, Sodoli informed the accused that he was to be charged with the murder of the deceased and

that he would not yet be allowed bail as there were further inquiries to be made.	This becomes significant later in these reasons because it shows that Sodoli believed that the police then had a prima facie case of murder.
5

Sodoli then asked the accused if he would take police to the place where the alleged murder was committed.	The accused agreed to do so.	While Detective James was duplicating the audiotapes, Sodoli asked the accused whether he was willing to
10	take part in a video re-enactment.	He cautioned the accused
that he was not obliged to do so.	Sodoli explained that the accused would demonstrate how the deceased was shot and that the demonstration would be recorded on videotape.	The accused agreed to take part.	At 4.40 pm he was returned to the cell.
15
At 9.50 am on Monday 7 August 1989, Hambleton located the deceased's skeletal remains after a search conducted late on Sunday 6 August and from about 7 or 7.30 am on Monday 7 August with the assistance of the co-accused Kamm.	The
20 discovery of the skeleton was a major advance in the investigation. The police were now in possession of incontrovertible evidence that Robinson was dead.

on Monday 7 August, Sodoli left Darwin at 4 am and drove
25		to Daly Waters arriving at about 10.30 am.		He was met by a police aircraft carrying the accused, James and two police officers described as task force members.	They had left Darwin shortly before 9.00 am.	At Daly Waters they

transferred to the police vehicle and travelled to the Highway Inn where, between 10.49 and 11.20 am, they had a meal.	Then they travelled on the Carpentaria Highway for about 185 kilometres where they were met by a police officer from
5	Borroloola.	The party then travelled South off the highway
for about a kilometre where they were met by Hambleton, Dickinson, Dr Lee (forensic pathologist) and a forensic team. The videotaped re-enactment commenced at about 3.15 pm and concluded at 3.35 pm.	What the accused said and did on that
10	occasion is the statement numbered 3 above: see annexure B.
The accused was then taken to Katherine and lodged in a police cell overnight.

On Tuesday 8 August 1989 he was taken to Adelaide River,
15		arriving at 11.50 am.	From there he was taken to Bamboo Creek where the statement numbered 4 and set forth above (exhibit 36A) was made.

Mr Gaffy relied especially upon specific parts of the
20		evidence.	He referred to the accused's statement of 5 August 1989 made to Hamnleton, set forth in full above: particularly to the two passages I have emphasised in heavy type.	Later on the same day, Hambleton again questioned the accused (p ... above).	Mr Gaffy relied also on the passage (in heavy type)
25		at the end of that interrogation.	He submitted that answers to questions given after those expressions of intention by the accused were not voluntary.	He relied on the fact that, before Sodoli and James actively entered the investigation,

Hambleton briefed them and, amongst other things, informed them that the accused had declined to speak to him on the previous day.

5		It was submitted also that the duration and other circumstances of the accused's incarceration before and during the interrogations were oppressive to the extent that the court could not be satisfied that his choice to speak was not the product of an overborne will.	I am not, for the moment,
10		concerned with the question whether the detention was lawful, but whether, in the circumstances of it, it rendered the questioned confessional statements inadmissible by adversely affecting their voluntariness.	The following illustrations were given:
15

The accused was arrested at 9.25 am on 5 August 1989 at the Salvation Army hostel at Darwin and held in custody all day.	Investigations carried on that day involved considerable questioning of the accused.
20	He spent some 5 or 6 hours in the interview room.

The accused yawned several times during his sound­ recorded interrogation by Sodoli.	The following cross-examination of Sodoli is recorded:
25
"He was showing signs of considerable tiredness, wasn't he, at that stage, especially when he was being recorded on tape?---He was yawning, yes.
30	Quite a lot?	Quite frequently, I should say?­
--I don't remember how often, but I remember

him yawning, yes.
Did he tell you he hadn't slept the night before in the cells?---No, he never mentioned that at all."
5

Mr Gaffy contended that certain answers given by the accused to Sodoli evince the complete erosion of the accused's will to resist questioning:
10

"Would you have a look at - just 3 things I want to take you to in that.	Page 2, sergeant, about half-way down, there is an account of some conversation you had.	It said:	"Would
15	you be prepared to show us where this murder took place?	You don't have to do it if you don't want to", and he said:	"I don't mind; it doesn't matter now; how are we going to get there?"
20
Does that accurately record what he said to you?---Yes.
Do you see one paragraph further down, when you
25		were asking him about whether he would do a re­ enactment of the murder, he says: "I don't see why not; I've got nothing to lose now"?---Yes.

On the next page, page 3, there's another
30	indented conversation, is that correct?---Yes.

A conversation at about 3 pm?---out at the scene, yes.
35	Pardon?---out at - - -
out at the scene, yes?---Yes.
You said - the last question and answer I refer
40		you to specifically:		"While the camera is running I'll also be using a tape recorder to record our conversation, is that all right with you?" and he said:	"Do whatever you have to do".	Is that accurate?---Yes.11
45

Mr Barker QC, for the Crown, for his part, pointed to the fact that the accused was cautioned that he need not answer

questions and that his responses clearly show he understood his right to remain silent.	I agree with him.

The accused was asked whether he was willing to assist
5		the police on three separate occasions, each time agreeing to do so.	The first time was at the end of the recorded interrogation by Sodoli on 6 August 1989; the second was on the next morning before leaving for the location and finally, at the location, before the re-enactment.
10

It cannot be denied that inordinately long incarceration is capable of affecting the freedom of choice whether to answer police questions.	So much is obvious.	At one end of the scale of possibilities, brief custody in pleasant,
15		comfortable surroundings might suggest no possibility that freedom of choice was affected.	On the other hand, very lengthy detention in a dark dungeon might manifestly remove  all freedom of choice.	This is neither such case.	As for the evidence that the accused yawned during interrogation, I could
20		not help noticing that he frequently yawned during these proceedings.	Nevertheless, it is a matter of which I have taken account.

Despite the accused's occasional statement of intention
25		not to answer questions, there is nothing in the circumstances in which further questions were asked to suggest that his will was overborne.	I think the answering of questions after the statements of intention does no more than demonstrate that the

accused did not have a fixed intention on the matter and that after expressing the intention not to answer questions he changed his mind.	As for the questions put to the accused by Sodoli after Kamm's allegations, I think the police were
5	almost under a duty to give the accused a chance to explain
them.	The circumstances under which any earlier statements of intention had been made had changed greatly.

My impression of the accused was that he was confident of
10		his persuasive ability. It is likely that, for a time, the accused chose to answer questions because he held a real hope that he might thereby avoid being charged with any serious crime.	Later, having learnt that Kamm had effectively accused him of murder, it is likely that he hoped, by giving an
15	explanation, to put his own conduct in the best possible light
permitted by the known circumstances.	Indeed, the later statements, although amounting to a confession that he fired a shot into the deceased that wounded him, present circumstances in which that shot was fired in pre-emptive self-defence and
20		in which the fatal shots were not fired by him but by Kamm. By making the statements under challenge, the accused has established a foundation for defeating the charge of murder and of being convicted merely of complicity as an accessory. The significance of these considerations is that, when loo)ced
25		at against an absence of evidence of conduct by the police that might have overborne the will of the accused, they provide a possible explanation of the accused's readiness to answer questions, and later to visit the location of the

alleged murder and to demonstrate what happened.	An early, partly exculpatory explanation might have been thought to be more effective than one that emerged at the trial for the first time and which might be thought to be of recent
5	invention.

Here, judgment has to be exercised and a decision made whether in the circumstances of this case it is likely that the choice to speak made by the accused was a free one.	With
10		the benefit of hearing all of the evidence and of observing all the witnesses, including the accused himself, I am confident that the accused's choice to answer questions and otherwise co-operate with the police was free.

15		In so finding, I have also taken into account the impressions gained from listening to sound recordings of the accused.	Neither the manner in which the questions were asked nor the manner in which they were answered suggests undue moral pressure exerted or experienced of a kind that suggests
20		an overbearing of the accused's will or deprivation of freedom to cease to answer questions.

Therefore, I declare the confessional statements under challenge to be admissible.
25
The question whether they should be excluded in the

exercise of a discretion to do so must be considered. I will briefly state the applicable principles first.

Again, There

are two possible discretionary bases upon which a trial judge might be required to consider excluding admissible evidence. To obtain a complete perspective of the development of this modern position reference should be made to McDermott, supra,
5		at p 513; Ireland, supra; Bunning v Cross (1978) 141 CLR 54; Cleland v The Queen (1982) 151 CLR 1; Williams v The Queen, supra.

Dawson J said: 11 •••	,	there is a discretion to exclude
10		voluntary confessions from evidence where it would be unfair to the accused to admit them.": Cleland, p29.	This states shortly one of the two bases upon which the discretion to exclude admissible confessions may be exercised.	The other basis of exclusion was, as far as I know, first enunciated in
15	Ireland, supra, at p335, by Barwick CJ speaking of evidence illegally or unfairly obtained:

"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence.
20		He must consider its exercise.	In the exercise of it, the competing public requirements must be considered and weighed against each other.	On the one hand there is the public need to bring to conviction those who cow it criminal offences.	On
25		the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment.	Convictions obtained by the aid
of unlawful or unfair acts may be obtained at too high a price.	Hence the judicial discretion."
30

The evidence in question in Ireland was real, but the principle has been declared to include confessions [with the addition of the adjective "improper" to "unfair" and
35	"unlawful'': Cleland].	In Cleland, Dawson J expressed the

distinction between the two bases for exclusion as follows:

"The distinction which can be usefully drawn is ... a distinction between unfair, improper or illegal
5	methods (and all three may be merely different
aspects of the same thing) of obtaining evidence and evidence which it would be unfair to use against the accused because its reliability has been affected by the unfair, improper or illegal methods used to
10	procure it. 11 :	p 33.

It was submitted that the accused's arrest and detention were illegal and, even if the arrest and initial period of
15	detention were not illegal, legal detention could not have
extended beyond 7.38 pm on 5 August 1989.

As I understood Mr Gaffy, he also submitted that, by reason of the circumstances of the detention, it would be
20	unfair to the accused to allow the statements under challenge
to be admitted in evidence.	I take him to have submitted that those circumstances were such as to have affected the evidential reliability of the statements.

25		Moved by the decision of the High Court in Williams, supra, the government of the Northern Territory amended the Police Administration Act by Act No.lo of 1988 to enable a suspect to be detained in custody for a reasonable period after his lawful arrest to enable him to be questioned or to
30	enable investigations to be carried out, or both.

Before the passage of Act No.10 of 1988, the position in the Northern Territory was similar in effect to that in

Tasmania [although worded quite differently from it] where the Justices Act 1959 provided for a person taken into custody for an offence to be brought before a justice as soon as was practicable.	Section 123 of the Police Administration Act
5	(NT) (hereinafter called "the Act") was as follows:

123. ARREST WITHOUT WARRANT BY MEMBERS OF POLICE FORCE
r of the Police Force may, without
10		warrant, arrest and take into custody any person where he believes on reasonable grounds that the person has committed, is committing or is about to commit an offence.

15		(2)	Where a person has been arrested in accordance with sub-section (1) and is in the custody of a member of the Police Force but is not charged with an offence, it is lawful to continue to hold the person in custody for so long only as the merober believes on reasonable grounds
20	that it is necessary to hold the person -

to ensure the appearance of t..he person before a court of competent jurisdiction in respect of the offence;
25
to prevent a continuation of, or repetition of, or commission of the offence;	or
to prevent the loss or destruction of evidence
30	relating to the offence.

Act No.10 of 1988 amended section 123 by omitting the word "only" and paragraph (a): shown above in heavy type.
35	There is no doubt that, if Act N.10 of 1988 had not been
passed, the police could not have lawfully held the accused for longer than Hambleton believed on reasonable grounds that it was necessary to hold him to ensure his appearance before a court of competent jurisdiction, to prevent a repetition of
40		the offence, or to prevent the loss or destruction of evidence relating to the offence.	I do not intend to indulge in the

idle exercise of considering whether the second or third of those possible grounds (paragraphs (b) and (c) above) might have been available.	The fact is that, at the time of the events here, the law had been amended as I have said.
5

By section 7 of Act No.lo of 1988 a new Division 6 entitled "Bringina Detained Person before a Justice or Court and Obtaining Evidence, &c., after taking into Custody" was added to the Act.	For present purposes the two significant
10	sections of that Division are sections 137 and 138, both of
which I set forth in full:

137. TIME FOR BRINGING PERSON BEFORE JUSTICE OR COURT
15		(1)	Without limiting the operation of section 123, but subject to subsection (2) of this section, a person taken into lawful custody under this or any other Act shall (subject to that Act where taken into custody under another Act) be brought before a justice or a court of
20	competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail under the Bail Act or is released from custody.

25		(2)	Notwithstanding any other law in force in the Territory (including the common law), a member of the Police Force may, for a reasonable period, continue to hold a person he has taken into lawful custody in custody to enable -
30
the person to be questioned;	or
investigations to be carried out,

35	to obtain evidence of or in relation to an offence involving that person, whether or not -

it is the offence in respect of which the person was taken into custody;	or
40
the offence was committed in the Territory.

138. DETERMINING REASONABLE PERIOD DURING WHICH PERSON
45	DETAINED, &C., TO BE BROUGHT BEFORE JUSTICE OR COURT

In determining what is a reasonable period for the purposes of section 137(2), but without limiting the discretion of the justice or the court, a justice or
5	court befo:e	horn or which the question is brought shall,
so far as it is relevant, take into account -
the time taken for investigators with knowledge of or responsibility for the matter to attend
10	to interview the person;
the number and complexity of matters to be investigated;
15	(c)	the time taken to interview available witnesses;

the need of members of the Police Force to assess relevant material in preparation for
20	interviewing the person;
the need to transport the person from the place of detention to a place where appropriate facilities were available to conduct an
25	interview or other investigation.
the number of people who need to be questioned during the period of detention in respect of any offence reasonably believed to have been
30	committed by the person;
the need to visit the place where any offence under investigation is believed to have been committed or any other place reasonably
35	connected with the investigation of any such offence;

40

( j)

45

the time taken to communicate with a legal adviser, friend or relative of the detained person;
the time taken by a legal adviser, friend or relative of the person or an interpreter to arrive at the place where the questioning or the investigation took place;

(k)	the time taken in awaiting the completion of forensic investigations or procedures;

50	(m)

55	(n)

the time during which the investigation or questioning of the person was suspended or delayed to allow the person to receive medical attention;
the time taken by any examination of the person in pursuance of section 145;

the time the person in custody has been in the company of police prior to and after the commencement of custody;
5
the time during which the investigation or questioning of the person was suspended or delayed -
10	(i)	to allow the person to rest;	or
(ii) because of the intoxication of the person; and
15	(r)	the time taken to arrange and conduct an identification parade.

20		A condition of operation of section 137 is that the accused be taken into lawful custody.	For this the Crown relies on sections 134 and 123 of the Act.

Section 123 confers power to arrest without warrant where
25	the arresting police member believes on reasonable grounds that an offence has been committed: subsection (1), above.

By section 134, where a police member believes on reasonable grounds that a person whose name is unknown may be
30		able to assist him in his inquiries in connexion with an offence, the member may request the person to give his name. Where such a request is made, the person shall not furnish a false name.	There is a money penalty for contravention.

35		Mr Gaffy submitted that the circumstances of illegality of the arrest and detention are to be found in the running sheet, exhibit 52, page 61, entry 159, and in the transcript of these proceedings at pages 52.5, 78.6, 54.8 and 55.	He

submitted that the import of that evidence was that the detectives knew the name of the person they were seeking and had, in fact, located.	Remember, Hambleton had information that the accused had stolen a :motor vehicle from Shannon White
5	who complained on 17 June 1989 that the accused had stolen his
"IIIOtor vehicle. Hambleton had been looking for the accused.	He and Dickinson had a photograph of Heiss.	However, he said - and I accept - that he did not recognize the man on the bed as Heiss.	Dickinson recognized him but, before she did so, he
10		had given the false name, Peter Thomas.	She failed to recognize him straight away because his appearance had changed "quite dramatically" from when the photograph was taken.	The photograph was taken from a passport photograph "some years" old.	Hambleton was looking for Heiss because, amongst other
15	things, he believed on reasonable grounds that he might be
able to assist him with inquiries into the theft of Shannon White's motor vehicle.	Hambleton located a person, now known to have been Heiss, in a room at the Salvation Army hostel at Darwin.	There can be no doubt that Hambleton suspected that
20		the person was Heiss but did not know him to be so.	That suspicion provided a reasonable ground for believing that the person may be able to assist in the inquiries.	It was reasonable for Hambleton to confirm or dispel his suspicion by asking the person his name.	I think the situation is one
25	contemplated by section 134.

Mr Gaffy submitted that Hambleton knew that the name of the person who might be able to assist him in his inquiries in

relation to the car theft was Heiss.	But that overlooks the fact that Hambleton did not know, at the time he asked the question, the name of the person to whom he was speaking.	The fact that he suspected it to be Heiss justified his reasonable
5	belief that that person might be able to assist.

For the purpose of section 123 of the Act, section 116(6) defines "offence" so as to include an offence under section
134.	Therefore, the requirement for the taking into lawful
10	custody was satisfied.

In any event, Hambleton genuinely believed that the accused had committed an offence under section 134 of the Act. This is a relevant consideration if the competing public
15		interests specified in Ireland and subsequent cases have to be weighed against one another.	This is so notwithstanding that Hambleton used the alleged offence under section 134 as a device to get the accused into custody in order to question him and investigate his suspected unlawful involvement in the
20	disappearance of the deceased, at that time, an innominate
offence: see subsection 137(2).	Section 137 authorizes questions and investigation about an offence other than the one for which the accused was arrested: see subsection (2).

25		When the lawful custody is satisfied, the judge must ask himself questions to the following effect:

Was it reasonable in all the circumstances to continue to

hold the accused in custody (without bringing him before a justice as soon as was practicable) to enable him to be questioned or to enable investigations to be carried out, or both?
5

If the answer is "no", any period of detention beyond the time it was practicable to take the accused before a justice was unlawful.	If the answer is "yes", the further question has to be asked:
10

Was the period from the time of arrest up to and including the time during which the accused made a challenged confessional statement a reasonable period to continue to hold the accused in order to question him or
15	to carry out investigations, or both?

If the answer is "no", the challenged confessional statement was made during a period of unlawful detention; otherwise if the answer is "yes''.
20

By subsection 137(2), Hambleton was empowered to continue to hold the accused after his arrest for a reasonable period to enable him to be questioned or to enable investigations to be made.	By what standard is the reasonableness of the period
25		to be measured?	Because sections 137 and 138 confer a wide discretion, neither this nor any other court should lay down a rigid set of criteria to be considered in all cases.	I am not purporting to do so here.	The Parliament could have done so

if they had intended it to be done.	I think the trial judge should look at the period of custody having in contemplation all the known circumstances, after which he should ask himself whether in those circumstances it was reasonable for the
5	accused to be held up till and throughout the time of the
making of the confessional statement.	In considering the question the judge should keep to the forefront of his mind the jealousy with which the courts and the law regard the liberty of the subject.
10

Section 138 does not limit the discretion of a judge in determining what is a reasonable period, but requires specified matters to be taken into account so far as they are relevant.	See (a) to (r) of section 138, above.
15

In advancing his argument that the accused was at material times in unlawful custody, Mr Gaffy submitted that it was not reasonable for the police to hold the accused beyond
7.38 pm on 5 August 1989.	He submitted that further detention
20		under section 137 was not reasonable because by then the police had a firm view that the deceased was dead and that the accused was connected with his death.	He submitted that there was nothing in paragraphs (a) to (r) of section 138 to justify detention beyond 7.38 pm on 5 August.	In my opinion, prior to
25	the making of the statements under challenge, the police had admissible evidence creating the strongest suspicion that the accused had been unlawfully implicated in the death of the deceased, but it was not sufficient to put him on his trial

for murder or manslaughter.		The evidence was circumstantial and was not capable of excluding every rational hypothesis consistent with innocence.	It was certainly open to Hambleton to have held that view.	Further evidence might have either
5	further implicated the accused or tended to exonerate him.
The first direct evidence of the accused's implication in murder was the confession of the co-accused, Kamm.	But it came later.

10	Mr Gaffy made a submission in relation to the evening of
5 August 1989 that seems inconsistent with his general submission that detention after 7.38 pm was unlawful. Consistently with that submission he might have been expected to have included the statement made at about 8 pm on 5 August
15		in his challenge.	He argued that Hambleton, instead of "going off on a tangent and organising this posse and going out to make another raid on Acacia and bring people in, that they ought to have, if they were acting reasonably, questioned Heiss on that abundance of material they had to put to him
20		about his close association with Robinson.	That it's not reasonable to suddenly stop that and go off on another tangent and leave him in custody for another 24 hours.	In our submission, that's unreasonable, and takes them outside the justification of section 137."	Whatever the precise import of
25		Mr Gaffy's submission, I take its central thrust to be that a reasonable period of detention expired at 7.38 pm on 5 August 1989 and therefore the accused was thereafter in unlawful detention and, irrespective of the effect of that illegality

on the statement made at 8 pm, which is not challenged, the challenged statements, which commenced on the next day, were made at a time of more obvious and blatant illegal detention and therefore should be excluded according to the principle of
5	competing public interests and also because it would be unfair
to the accused to admit them by reason of their unreliability.

Mr Barker said the purpose of sections 137 and 138 was to overcome the restrictions enunciated in Williams, supra.	He
10	said that the sections are justified, amongst other things, by
the great remoteness from one another of elements of the Northern Territory community.

I think that the submission that a reasonable period of
15		detention ended at 7.38 pm on 5 August 1989 ignores many of the facts.	Time was taken interviewing the accused on 5 August.	There were many other time consuming matters to be investigated.	Time was needed to interview witnesses a considerable distance away.	Time was needed to consider and
20		assess relevant material in preparation for interviewing the accused.	An interrogation should not be conducted without considering the significance of a large amount of circumstantial material that might be in police possession. Time was needed to arrange to take him on 7 August from the
25		place of detention to the place where the offence under investigation was believed to have been committed.	An examination of the running sheet (exhibit 52) and chronology (exhibit 53) give a fuller picture.

I understood Mr Barker to submit that one relevant consideration in determining a reasonable period is the time it takes to put together a prima facie case.	He submitted: "I
5	wouldn't argue that they're entitled to keep him there simply
to look around to see if they could help brush up the case and make it a little bit stronger.	It's a question of how they perceive the evidence they had and what was available to them and what was likely to be available to them, to make it not
10	just a matter of strong suspicion but a reasonable prima facie
c as e . 11

I agree with that submission.	Section 137 permits questioning and investigation before bringing a suspect before
15		a justice.	It could not have been the intention of Parliament to permit a reasonable period of detention for questioning and investigation for the limited purpose of converting an existing suspicion of guilt into a stronger suspicion of guilt.	In my opinion the implicit requirements of the section
20		are that the initial suspicion be justified, that the investigators work diligently, without delay and with due skill by means of questioning and investigation to elevate the initial suspicion into a prima facie case.	I think that the prima facie case must appear to the police to be reasonably
25	achievable because it could not otherwise be reasonable to
hold a person under subsection 137(2) in the mere hope that something may turn up.	That was manifestly not the case here.

The evidence here shows that at the time of the accused's arrest the police had reasonable grounds to suspect his involvement in the disappearance of the deceased.	After the arrest they pursued their inquiries tirelessly, both by
5	questioning the accused and making other investigations.

Another matter that must affect the reasonableness of a period of detention under subsection 137(2) is the gravity of the crime being investigated.	A murder of the kind alleged
10	here would justify a longer period of detention under section
137 than a relatively minor offence.

I put it to Mr Barker that the police had a prima facie case at the end of Sodoli's interrogation commencing at 10.35
15		am on Sunday 6 August 1989 (although I should add now that, having had time to reflect on the significance of the accused's answers, in my opinion they fell short of being an unequivocal confession to murder: see above).	In any event, Mr Barker agreed that the police then had a prima facie case
20		but he submitted that it was not unreasonable, in the light of the accused's oral confession, to have a confession sound recorded.	In the light of the likelihood that an oral confession, not sound recorded, would be the subject of debate, it was not unreasonable to ask the accused to take
25	part in a recorded interview.	It was not unreasonable, Mr Barker argued, for the police to wish to have the confession properly recorded so that it might be presented without argument as to its content.

5

10

1- -

After the sound recorded interrogation of the afternoon of Sunday 6 August 1989, there is no doubt there was a strong prima facie case against the accused both evidentially as well as substantively, although this must be qualified by the fact that at that time the body of the deceased had not been discovered.	It is arguable that the police regarded the case as insufficient with the body not having been discovered.	The body was not to be found until the next day.		Nevertheless I think the police should have taken the accused before a justice as soon as practicable after the conclusion of the sound recorded interview on the afternoon of Sunday 6 August 1989.	I do not think that the detention of the accused beyond that time was authorized by subsection 137.	It was not suggested that the police did not have access to a justice on that Sunday afternoon.

This is an appropriate place to observe that I was at considerable pains during the hearing of this application to
20		evaluate, in so far as it was possible, the bona fides of the police at the time of the material events.	I mean whether they honestly believed they were entitled to hold the accused in custody for as long as they did.	I took into account their demeanour and how they responded to Mr Gaffy's thoughtful and
25		forceful cross-examination as well the evidence of their activities generally during the course of the investigation as disclosed by the evidence.	My concluded opinion was that they investigated the matter with genuine professionalism.	I am

confident that they had a desire and intention to apply the law as they understood it.	It is unlikely that they would have done otherwise because every investigative step they took was recorded in one official chronology or another and must
5	almost inevitably have become the subject of judicial
scrutiny.

In one respect, it is regrettable that section 137 and 138, so recently enacted in respect of such a contentious
10		matter, should be so lacking in specific guidance to the people who have to apply it, namely, the police.	They can hardly be expected in the busy atmosphere of a criminal investigation to indulge a lawyer's nice abstractions in construing the section and in the evaluation of the factual
15		situation from time to time as the investigation proceeds. There is nothing in the relevant sections that says in terms that the questioning and investigation may only proceed lawfully until the police honestly believe they have a reasonable prima facie case, but Mr Barker conceded as much
20		and, as far as this case is concerned, that seems to me to be a proper concession.	If the Parliament's intention was that such a restriction apply, it might usefully be expressed in section 137.	If that was not the Parliament's intention, it is imperative that section 137 be clarified because the courts
25		will take Parliament to have intended a statute limiting the liberty of the subject to be strictly construed.	In any event, I repeat that I am convinced that, notwithstanding the likely illegality of detention after the conclusion of the

sound recorded confession on the afternoon of Sunday 6 August, the police honestly believed that the detention continued to be lawful and authorized by section 137.

5		It would benefit no-one for this court to once aa-ain work through the well known principles expounded in the series of
cases Ireland, Bunning v cross, Cleland and Williams, all cited above, therefore I will content myself with stating my conclusions and the reasons for them in relation to the
10	question whether the challenged material should be excluded.

I have already said enough about the facts to make it clear that the evidence does not satisfy me on the balance of probabilities that there is anything in the facts that affects
15	the reliability of any of the challenged confessional statements so as to render it unfair to the accused to admit them in evidence at his trial.

I have also said why I think it probable that detention
20		after late Sunday afternoon was unlawful.		The accused should have then been charged before a justice.	As far as I can see there is no reason why the fact of his being charged would have prevented the investigation proceeding as it did on the next day with the accused's consent.	But, I have made it
25	clear that I believe the police acted in good faith.	I have considered the community's interest in having the police abide by the relevant provisions of the Act.	That interest would not accept lightly an deliberate flouting of the provisions of

the _Atl.	However, by reason of the enormity of the crime being investigated, not only of its nature but by virtue of the circumstances of its commission, the community has a great interest in having its perpetrator brought to justice.	I do
5	not think that these circumstances warrant the exclusion of
the evidence gained in good faith during the period of probably unlawful detention after Sunday afternoon.

These considerations relating to the evidence acquired
10		after Sunday afternoon would, in my opinion, apply equally to the confessional evidence acquired between 7.38 pm on 5 August 1989 and late on the afternoon of next day if that had been a period of unlawful detention which, as I have said, I do not believe it to have been.
15

The accused gave evidence in these proceedings.	About that, it is enough to say that the main effect of his testimony was to strengthen the Crown's case on the facts.	It would be inappropriate for me to enlarge on this before the
20	trial.

Looking at all the circumstances in which the challenged confessional statements were made, I am not satisfied that considerations relating either to their reliability and the
25		fairness of allowing them in or to the public interest require me to exclude them from evidence in the exercise of discretion.	I observe however that, for the reasons I have given, the period of detention in this case was excessive.	It

would be a mistaken inference to draw from these reasons if criminal investigators were to conclude that a like period of detention will generally be regarded as reasonable.	On the contrary, it would be in a rare case, both complicated and
5	serious, that such a period of detention could possibly be
regarded as reasonable for the purposes of section 137.	As soon as diligent effort has raised a reasonable suspicion to the level of a prima facie case, the accused should be taken before a justice even if there is more investigative work to
10		be done.	There can be no legitimate reason for not doing so. The investigation can be continued after.	It is understood that the police cannot be expected to make a precise judgment in a situation that lawyers might argue about at length in the relatively contemplative atmosphere of litigation, but when it
15		has become clear to a member acting in good faith that a sound prirna facie case has been gathered, the suspect must be taken before a justice or a court.	The present case partly turned on the fact that the police acted in good faith in connexion with a difficult area of the law that has not been the subject
20	of previous judicial scrutiny and guidance.	If it had not
been so, the confessional material arising after Sunday afternoon might well have been excluded.

I commend to the legislature consideration of the
25		question whether more certainty can be given to sections 137 and 138 of the Police Administration Act.	Statutes affecting the liberty of the subject should be as unequivocal as it is possible to make them for the benefit of all concerned with

their administration.

For these reasons, and subject to any fresh matter that may be brought forward at the trial, the evidence under
5	challenge will be admitted.

ANNEXURE "A"

5       RECORD OF CONVERSATION BETWEEN DETECTIVE SERGEANT MATT SODOLI AND DANIEL HEISS CONDUCTED AT BERRIMAH POLICE COMPLEX AT 2.00 PM ON SUNDAY 6TH AUGUST 1989

10	ALSO PRESENT IS DETECTIVE SENIOR CONSTABLE MARTIN JAMES.

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Can you both sort of identify yourselves please? Yeah, Detective Senior Constable Martin James speaking.
Daniel Heiss speaking.
Daniel can you tell me what your full and correct name is?
Daniel Luther Heiss.

And your date of birth? 29th, fifth, 65.
Where were you born? Adelaide.
Do your parents still live there? No they live in Canberra.
What's their address do you know?
19 Stubbie Street Canberra.
How long ago did you move to Canberra? Oh about 10 years ago.
What sort of schooling did you have?
Oh I went as far as year 10, and then worked and er, did a TAFE course, couple of TAFE courses.

Where did you go year 10 at? Melrose High.

Sorry?
Melrose High.
That in Canberra is it? Yeah, it's ah!..yeah.

Where are you presently living now? Ah•.staying at the Salvation Army in town.

And prior to that where were you living?
Oh I stayed at um..a back packers guest house and prior to that I was living out in the bush.

Whereabouts out in the bush? In a camp um..on Marrakai.

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How long ago did you come to the Territory? February.

This year?
Yep.
Why did you come up here for?
Oh to do some work and I've been up here before.
What sort of work?
Oh like, I was just gonna find some construction work or see what's around you know.

When	you came up here what sort of work did you end up doing?
I ended up um being involved in a pig shooting business.
Where was that based at?
Acacia we were - I had to fit this Nissan out, and get it ready to do the pig shooting, cos it was for the wet season.

So you lived out at Acacia Hills area? Yeah.
When did you actually start pig shooting?
Didn't actually really do it commercially only bits and pieces because my partner was trying to arrange contracts in Ports Keats and Palumpa and he was in negotiations with the traditional land owners and the Northern Land Council.

And who's your partner? Shannon White.

When you were living out at Acacia were you with, living with anybody else there?
Yeah I lived with a girl for a while, about a fortnight and then I stayed with another guy Warren Stafford in his van and just yeah then lived in a van there of my own for a while yeah and.
I was told that you had a brother up here at one stage?
Yeah my brother and Peter, Pete Kamm they come up
here for a while.

What's your brothers name? Clifford Heiss.
And who's this Peter Kamm?
A friend of ah...Cliff they'd been travelling together and they were down in Adelaide.	I saw them on the way up and I sent them post cards saying

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about pig shooting, if they were interested, come up and they came up.
When did they come up here?
Can't recall the exact date, would've been...
So Peter was a friend of your brothers not yours? Oh I'd known Peter since high school ten or twelve years, ten maybe, no, about nine years, say.
What I want to do is ask you some questions in relation to a missing person by the name of Dean Robinson.
Mmh •••

Now before I ask you any questions in relation to this person, I must warn you that you don't have to answer any of my questions unless you want to.
Anything that you do say will be recorded on this tape recorder as you can see and may later be used in evidence, do you understand that?
Yes I understand.
Can you tell me what that means?
Oh it means if I say anything it can be used as evidence, but I don't have to if I don't wanna.
Right.	Have you ever meet this Dean Robinson? Yeah I've met him.
Can you describe him for me?
Oh about five ten, long hair, skinny, pale and a beard, young.
I want you to have a look at a photograph here, it's not marked anything, so I'll mark it lA also put my initials next to it, I want you to have a look at this photograph that's marked lA and tell me if this is the person you know as Dean Robinson?
Yeah that's him without a beard.

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Right he's got a beard. back of this card saying photograph?
Yeah alright.

Would you like to sign the that you've identified this

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You don't have to if you don't want to.	So this is the person you know as Dean Robinson?
Yep.
When was the first time you meet him?
Oh I met him late one night about ten thirty we were sitting there at the caravan and he rocked up.
How long ago was that?
Oh it would have been May.

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This  year? Yeah this year.

And you say he rocked up, where were you staying at the time?
In the caravan area, Acacia, my brother and Cliff were there.

Right, so you say there he arrived there about 10.30 one night.	How did he come to sorta see you?
Oh, I had a blue Nissan parked out the front and it was a wreck had the motor and that in it, he was interested in buying the body, to rebuild his car or something.

Did you know why he came to see you or just? Yeah someone had told him about it, in Katherine apparently there was a Nissan at Acacia at the wreckers there or something.

This wreck of yours did it go or not? No.	No wheels.	Up on blocks.

So what did he want with your car when he?
He wanted the body.	It was all rusted out and I said, "Oh yeah if you want to buy it, you know, it's all rusted out pay, pay me fifty, you can have it." We got to talldn and then he sat down, came over to the van and had a few beers.	Someone had some gunja.	I had a smoke.	these girls come round and mmh ! ....

When you say you had a smoke you talking about cigarettes or?

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SODOLI: HEISS:	Marijuana and that.
What sort of a car did he say he had? He said he had a Nissan.	
40	SODOLI:	Did he tell you where it was or what had happened to	

45	HEISS:	it?
Yeah he said he hit a tree and wrote it off or something.	He needed a new body and swap all the running gear and the motor and that.	
	SODOLI; HEISS:	Did he tell you where the car was? Yeah Borroloola.	
50	SODOLI: HEISS:	Did he tell you what colour it was?
No.	

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HEISS:	Alright so did he spend the night there at your place?
Yeah he camped out the front.	

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Was there anything else discussed, decided that night, apart from the car?
No not at that point.

So what happened the next day?
Next day um I think we went into town the whole lot of us.

When you say the whole lot who was that?
Ah .•• me and Peter and Dean.
Where did you go?
Went into town and I· bought a rifle, from um Fishing World a two two fifty.

Yeah and what else did you do?
Um...oh I don't, can't remember, maybe checked the Post Office and stuff like that.

Did you go to any Trucking Company that day?
No, not that day.	Might have been.	Yeah, we, went to Quan-Sing's there I'm not sure if it was that day or the next day.

And what was the reason for going there?
Oh he wanted to arrange something about getting i sent up on a truck, his Nissan, and fixing it there you know.

How much (inaudible)?
(inaudible) That's right he wanted to bring it up there and we were going to rebuild it there and that sorta shit, we figured it was the easiest way to do it.

You said that the previous night you started talking about guns, did Dean appear to be interested in guns?
Yes, he was interested in guns, he was telling us hunting stories about some sambar he got, when he was in Victoria.

Did you own a gun at that stage? Yeah I had a Mauser.

What colour was that? Oh pale brown.
And what, what calibre?
What calibre, six poit (sic) five.

Alright so you had a six point five Mauser and the following day you said you bought a twenty two two fifty.
Yeah.

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Where did you buy that from?
Fishing Worldw

Allright.	What did that cost you?
It cost me five hundred bucks I think it was.

All right.	I want you to have a look at this twenty two two fifty and six point five Mausa (sic) I'll get Detective James here to get them for me, they're just outside the room.
Mmmh!...what, have you've got twenty two two fifty here?

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HEISS:	see if you can identify them as being the ones that you referred to as being your guns.
Mmmh!...yeah that's my twenty two two fifty.	

20	SODOLI: HEISS:	Can you describe the rifle to me?
Oh about Ruger its got a scope, variable, variable	
		scope three to nine power, target barrel free floating um... Ruger, no, yeah Ruger the make it's um.. it's got a Mauser bolt on it.	
25	SODOLI: HEISS:	Right.	Can you read out the serial number to me? Seven five dash one, no, dash eight one six nine six.	

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HEISS:	Right and this is definitely that you bought at Fishing World?
That's the one.	

35	SODOLI:	Now the Mauser the six point five Mauser you're talking about, is this the gun that you're referring
to?	
	HEISS:	Yep that's the one it's in bad condition now though.	

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SODOLI: HEISS:	All right and? Surviving rain.
And this is your rifle, that you owned at the time? Yep.	
	SODOLI:	Can you tell me what the serial number of this one	

Yeah and I just want you to have a look at them and

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is?
Two one eight two two one.
And this is definitely your rifle that you had before?
Yep.
All right.	Why did you buy the twenty two two fifty?
To shoot pigs.
Alright after you bought

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Pig shooting (inaudible)

After you.bought the, this other rifle the twenty two two fifty and you went round to Quan Sing's you think that day, where did you go after that?
Um, er...we went back down to Acacia I think, no I can't remember exact times or anything that happened cause this is two and a half or three months ago, I tell you.

Okay did anything get resolved or discussed back at Acacia about er?
Yeah we were talking about pig shooting and um...he wanted to be part of it so yeah I said all right, yeah and he said he got rifles and that.

When you say he who are you referring to? This Dean yeah that's right.

Right, so did he, was it decided to let him come along with you pig shooting?
Yep.

Was anyone else involved in this venture in your pig shooting besides yourself?
Yeah Peter, Cliff and Shannon White.
All right.
But Peter was like um...he was serious, he was serious about part of being my right hand man and Cliff yeah he was casually interested and that cause we had to fix the Nissan up you know repaint it and finish working on it to get it all ready.

Did you have another car at the time besides this wreck?
Yeah another Nissan.

What colour is that? Green.

Is there anything else unusual about the car? Camouflaged Green with a white water pipe frame on it to hang pigs on it, natural water pipe.
Have a roof on it?
No, no doors and a big black bull bar on the front.

All right.	Was anything decided on the second day when you were back out at Acacia about what was going to happen to Dean's car?
Yeah we were gonna um...Dean was hanging around with us for about two days you know, I went and did some other things I hired a car and came out with me to um...Batchelor and me Peter and Dean and um •.I brought I we, had to go I went down a couple of

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times and running back and forth down up back up to Acacia went down again trying to catch this Bob guy. He wasn't home and finally in the afternoon I think it was yeah or that, no it was the next morning, the following morning, yeah we went there and he was home I had a look at this Daihatsu he had for sale I took it for a test drive and that, yeah it was good. Bought it off him, $1,000.00 cash and um!...I drove, we drove into town.	They followed me in Dahatsu (sic) I think we picked up Cliff on the way.	I dropped the rent-a-car back and then we drove in the Dahatsu back out to Acacia.	Somethin like that yeah.

Was it decided to go out to Borroloola at all or if it was when was that decided?
Yeah on the way out that, that day I think, yeah we stopped at Palmerston Tavern and we were talking and um... oh yeah, fuck off down Borroloola for a while you know, do most (inaudible) pick up his rifles and that he was going to give roe a scope you know, so yeah, all right, we'll do that, so and it was that night yeah, so it was dark, round about eight or nine o'clock, maybe, maybe later, the three of us set out in the Daihatsu and drove down, drove all that night.
All right.	Who when you say the three of yous, can you tell me who the three of yous were?
Me, Peter Karr and Dean.
All right.	So you drove out in what car? In my Daihatsu.
This is the camouflaged one?
No this is the one I just bought.

Sorry and what colour was that? Brown.
p..nything else unusual about it?
Oh yellow doors, corrugated roof, white wheels.

When you say corrugated roof?
Yeah, oh made from a piece of corrugated tin.

And who did you buy that one from? A guy in um..• Batchelor.
Righto.	Do you know his name?
Yeah oh not his last name.	Bob with one arm.
Right.	so what time did you arrive at Borroloola? Oh we got there about two days later or somethin. Evening, dark.

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Can you remember what, what time of the, what day it
was?
Oh no I can't really recall it might have been a Wednesday.	Maybe on the weekend.

And you say it was night time was it?
Yeah we got there evening.	The sun had gone down.
What did you do when you got there?
Went into town um stopped at a shop brought somethin to eat and went to this place where, this big wrecking yard where Dean had left his car, some dudes yard and um went in there.

Do you speak any other language besides Australian? Yeah I speak German.

Does Peter speak German? Yep.

On the trip to Borroloola was there any discussion between yourself and Peter about Dean?
Oh not really.	No not really.	We talked, yeah all the time, in German, just for practice you know.
Was Dean discussed at all?
Oh (inaudible) that he virtually was a bit of an idiot you know, because he was like he was fuckin had some ego trip to prove you know, had somethin to prove you know.	He felt out of place and when we stopped at Mataranka on the way down and had a swim we jumped in the water we got suntanned and nice and everything and like Dean's pale and white so he felt a bit fuckin inferior so we sorta (inaudible) and he was arguing at us and fucking trying to prove things and that sorta shit all the way you know, getting the shits with him.

All right.	After you bought the food at Borroloola that night where did you say you went?
We went to this yard where Dean had left his gear and his fuckin Nissan.

All right.	What did you do there?
Pulled up in the dark in the driveway and Dean went and talked to this guy, on the patio and he came back, I said come with us, come with me and we went and got his stuff out of the Daihatsu, I mean the Nissan.
What sort of stuff did you get out?
Got a box full of miscellaneous bullets and stuff like that, (inaudible) gear and stuff and um... three rifles.
Can you remember what sort of rifles they were?

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They were a three oh seven, Winchester um... thirty oh six and a over and under shotgun thing.

Right so you got the three rifles, a box of miscellaneous items, including bullets.	Anything else?
Um... yeah got a couple of water bottles, black water bottles just to carry water in, we couldn't carry too much stuff we had a heap of swag on the back of the Daihatsu already.
Did he have swag himself?
Yeah he just had a sleeping bag I think.

Was that in his Toyota, or did he bring that from Acacia with him?
No, I'm not sure I think he might have, ah I think he picked it up there, yeah sleeping bag.

Was there any other items taken out of the car that night?

	HEISS:	Nah... maybe a lacket yeah and that's about it I think, bit of junk.	
25	SODOLI:
HEISS:	Was there any tools?
No, spotlight.	Yeah a roo jack, that was taken out, yeah.	

30	SODOLI:
HEISS:	I'm sorry.	A roo jack as well? Yeah a big roo jack.	
	SODOLI: HEISS:	Do you remember a gun belt being picked up as well? That was probably in the box.	
35	SODOLI: HEISS:	Any knives or?
Yeah a Gerber, which Peter's got.	
	SODOLI:	Was there a reloading outfit also taken out of the car?	

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Like I said it was probably in that box, cause I
didn't...

How big was the box, can you just for the sake of the tape recorder?
Oh two and a half foot by a foot and a half by maybe a foot and a half deep.
And what was that, what was that made out of? Cardboard, light cardboard.

Um, what I want you to do, I've got three rifles out here and I just wonder whether if I show them to you, if you can identify these guns and where you've seen them before?
Yeah.

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Detective James can just get them from outside the d0or again, also the jack.	Can you look at this rifle and tell me what it is?
It's the thirty oh six.

What's the serial number of that one? Ah ... Two nine three four.

I notice you're not holding the gun, is there any reason?
No, I just don't want to handle.
And was this one of the guns, sorry?
I don't like to handle other peoples guns you know.

Is this the rifle that you referred to that belonged to Dean?
Yep.
Right, you can have a look at this over and under shotgun.	Is this the one that you were talking about?
Yeah that's the one, serial number I can't see under
it.

Wnat brand is it? Savage.

Sorry, and that gun belonged to? Yeah Dean right;
Could you have a look at this, this lever action rifle, can you tell me what colour it is, and?
It looks like a three oh seven.

Have you seen this rifle before? Yeah.	That was Dean's too I think.
And the serial, can you tell me what the serial number of that is?
A E one four three nine six.
And you say that these are the three guns that Dean took out of his car that night?
Yeah.
Also can you see these here?
Yeah that's the kangaroo jack by the looks of it.

Sorry?
That's the kangaroo jack by the looks of it.

What colour's that? Orange and black.
And that's the one that you referred to?

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Yep.

All right.	And you also said there was a knife or some knives?
Yeah there was a pocket knife, no not a pocket knife, a pouch knife.

Detective James is just going to grab a bag out here with some knives in it, do you recognise any of these?
Yeah they're all of my knives my personal knives.

All these are your personal knives? Yeah.

None of these are the knives that you referred to? Nup.	No.	The knife is um.. the one that I'm talkin about is what Peter wears in a pouch on his belt.

That's the knife that belonged to Dean is it? Yep, Gerber, German knife.

All right.	So Dean spoke to the owner of this wrecking yard out there and you sat in the car you say and then he unloaded all his stuff, did you give him a hand to take the stuff out of the car?
Yeah then he came back to us and we went up to his car and unloaded his stuff, put it into the Daihatsu and then split.
How long did he speak to the guy there for? Oh about ten minutes.
So between that and unloading the gear into your car, how long did that all take?
Oh, maybe twenty five minutes.
So where did you head for after that? Oh then we drove out of town.
All right we will stop the time is now half past two and we cease this tape and put on another one is that okay?
Yeah, is it alright if I go to the toilet?

Yep no worries.

13

RECORD OF CONVERSATION BETWEEN DETECTIVE SERGEANT MATT SODOLI AND DANIEL HEISS CONDUCTED AT BERRIMAH POLICE COMPLEX AT 2.35 PM ON SUNDAY 6TH AUGUST 1989
5	 	
ALSO STILL PRESENT IS DETECTIVE MARTIN JAMES.

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Dan you still understand that you don't have to answer any of my questions?
Yeah.

Sorry?
Yeah I understand yep.
Do you agree you've just been to the toilet and back?
Yep.
Where were we?
When we were leaving town we got some hamburgers I
think.
Allright.	Can you remember if anything else was taken out of the car that night?
Yeah there was a bit of stuff taken out you know I mean maybe some rope or somethin.	We tied up the thing, tied the doors closed and that so that it would be put on a truck or somethin.
What about a gun case?
Yeah that's what the rifles were put in.

What colour was that? Brown.
could you remember it again if you saw it? Yep.
I'll get Detective James to just grab a gun case here, fairly large one and it's marked with an exhibit K tag appears to have nuwber 4 written on it and the number seems to be, exhibit number seven one two one zero I think it's, is this the gun case that you're referring to?
Yeah it looks like the one yep.
How many guns did you put in that?
Um..at the time I think they all put in there.
Allright.	So you brought the food and you left Borroloola.		Which way did you head?
out on the highway.
Towards which way?
um.•we headed back there on the you know the highway
there (inaudible) to the Stuart Highway and we got

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out some of the way, and it was I was getting really tired and it was late so we pulled over and slept for six, seven hours.

	HEISS:	Mm.. Yeah maybe it was maybe it was past um Port Crawford or whatever it's called.	
10	SODOLI: HEISS:	Cape Crawford?
Cape Crawford yeah, maybe a hundred kilometres past there.	About half way from Borroloola to Stuart Highway.	
15	SODOLI: HEISS:	Allright.	Camp there the night? Yeah just pulled over and slept.	
	SODOLI:	What happened the next morning?	

Have you got any idea how far away from Borroloola this was?

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Woke up and started driving again.

Did you have any intentions of where you were heading for?
Mmh..drove a bit further to see if there was anything around to do a bit of shooting you know, cause there were these guns (inaudible).	ah...we drove along it was a good enough and pulled over.

How far was that from the Stuart Highway?  Ah!...we drove in, we were going to drive in you know a bit to see some wildlife, drove in about a kilometre and half maybe two kilometres and pulled over, found this big patch of brush.
Alright at that stage, was there any discussion at that stage between yourself and Peter about Dean Robinson at all?

40	HEISS:

SODOLI: HEISS:	No not really.

Wnat did you have for breakfast that morning? Ah!...I don't know I think we blew some Js you know.	

45	SODOLI: HEISS:	Sorry?
Might have smoked some Marihuana, either that or the night before what was left of the bag that Peter had.	
	SODOLI: HEISS:	Who smoked that? We all did.	
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55	SODOLI: HEISS:	While you were travelling in the car who was sitting where?
It was alternating around between whoever was
driving and sitting in the passenger seat and sitting in the back, I can't tell you exactly who was driving at the time.	

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Why did you stop off in the bush?
Oh we were going to see if there was any roos around.

Whose idea was that?
Dean, sort of a mutual decision you know.

Allright.	So you drove in a kilometre and a half in off the road, how far down, how far from the Stuart Highway do you reckon you might have been there?
Oh about a kilometre and a half.
From the Stuart Highway? Yeah.

That's in?
No not the Stuart Highway no.

How far back from the Stuart Highway were you? Ah!..from the Stuart Highway couple of kilometres maybe, three hundred.

So you drove in you say about a kilometre and a half.
Yeah.

What happened then?
Had a drink of water.	Got out of the car.	Got the rifles.	Dean had the thirty of seven and I had the thirty of six and Peter had the Mauser six one five. We walked into the bush, walking along, walking along seeing what's around, funny, strange you know.
Sorry?
Strange, str·ange day like just the feel of the place.	It was only early in the morning and there was a wind blowing and Peter was looking strange. Yeah I was feeling strange and so we were walking along and looking for things and ah!..we stopped. We had the sight.	We wasn't sure whether they were sighted in you know, so we see a tree stump, and
ah...Dean reckons he knows how to sight rifles in so he sights it in on the tree.
Which rifle did he sight in?
The thirty of six and then he shot the three of seven and the six one five cause he was really clued in on all those you know the specifications about firearms and all that kind of crap you know and um.. we fired a heap of shots maybe fifteen, twenty shots, before that while we were walking along I'd separated from them too, um!.. I'd walk one way and they'd walked off the other way you know we'd all spread out, which was a stupid thing to go on a shooting party, I took the shit you know and I didn't know the fuck they were you know and

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um..then.

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You say you fired fifteen, about fifteen rounds, was that out of each rifle?
No about the whole lot.

And the shells these rifles, what did you do with them?
They'd all be lying on the ground.
Still there eh?..I'm sorry go on then.
Then um...yeah I meet up with them again I'd seen em, and Peter's looking crazy he ah..I knew he had it in his head to shoot this guy he wanted to shoot him and murder him.
Do you know why?
Oh just to kill someone I suppose I don't know.	we play with guns all the time and fuck em, and that's what happens to people.	Look at the Army's they'r all obsessed with killing people.

Did he talk to you about killing Dean at all, that morning?

25	HEISS:	Yeah.	He had this "(words in German)".	
	SODOLI: HEISS:	What's that mean?
I'd...I'd like to shoot him.	
30	SODOLI: HEISS:	Where was that said?
Um!...that was said, when we were walk, just got out of the Daihatsu and we were walking along, just got out of it you know, like there was, it was strange	

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you know, we were looking (inaudible) funny you
know, fuckin all that morning.

Did it occur to you to do the same thing to him?  Oh I didn't fuckin shoot anybody but Dean was fuckin, he was looking strange too you know he probably had it in his eye, he thought he was like, my right hand man or somethin and there was a sorta fuckin psych trip going on between the two of them, cause I was the boss, was, you know, I had fuckin um..was the one in charge of the pig shooting
escapade, you know, and Peter was my right hand man, Dean thought he was my right hand too you know so bit of a psych trip going on and um...after we'd done that we were together again three of us and when Peter had been off in with Dean in the bush before he was he was going to shoot him, you know, (inaudible) he told me going to shoot him but he didn't have the nerve, you know, and fuckin Dean was holding the he had the Winchester cocked the whole time fuckin the handle pulled back and fuckin me and Peter cocked his too still walking along the three of us, just then, he cocked his and I fuckin cocked

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the	hirty of six then and we fuckin just till about oh five or ten seconds you know fuckin walking and Dean turned around with the fuckin Winchester like this, I fuckin just told him (inaudible).

Where were the three of yous in position to each other?
Like this.

You had three of yous in a line? Yeah sorta me I was, yeah in a line.
All right where were you, one in?
Yep I was the one in and the lefthand side, Peter was on the righthand side, Dean was in the middle about 5 feet between us I suppose.
Was Dean in front of you, or behind you or?
Yeah he was about a foot or two ahead, not far right there.

So you were all pretty close to each other, arms length to each other?
Mrnh ! ...

Sorry?
Yeah.

Allright you say you were walking, what, what happened then?
I was just fuckin, Dean had his cocked, man, he cocked it and his was fuckin carrying the thing with a bullet in the breech cocked you know and and going fuckin aah....aah..it's all fuckin psych mate, leading up to it and fuckin Peter had his cocked you know and he was fuckin carrying it like this.

Can you describe how, when you say like this? Like somethin like that.
What up in the air, sorta thing?
Yeah, up in the air, can't remember whether he was holding it up like that you know with his elbow.
Yeah and fuckin he turned around.

Who turned around?
Dean turned around with his rifle.

Were you talking to each other as you were walking along?
Not then.
Did Dean say anything when he looked around? No, but he had a funny look in his eyes.

Did he turn around slowly or did he spin around or?

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Quick.

Sorry?
Quick.

Allright what happened then?
Real quick.	Shot him.	In the shoulder.
How were you carrying your rifle?
I was carrying it like that, and that's, I uncocked it about a second, as he was, just like intuition like he was fuckin going to blow me away I knew, you
know, fuckin, so just pshm boom, like that held it, boom.

You say that as you cocked it, he turned around? Yeah he was fuckin already had it like this mate, like this.

Do you think he may have turned around, cause he heard you cocking it?

HEISS:	No.

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(Inaudible), tell me again he turned around, did he turn towards you or towards?
Yeah he turned around.

Which way did he turn to the left or to the right? To the right.

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Towards Peter? Yeah.	

35	SODOLI: HEISS:	Allright.	wnat happened then?
Fuckin slid, pulled the bolt back cause those things	

40		you know you've only got to pull it back that far
I'm left handed you know (inaudible) and I shot him and fuckin he, he as he went he went down on his knee then like that with the gun fuckin like this.	

45	SODOLI: HEISS:	Sorry could you describe because you can't see, so can you describe?
I shot him and then he went down on his knee on his left knee like that with the gun I think to bring it like that and I fuckin dropped my gun and a fraction	

50		of a second and fuckin ran.	I had it like that. Pulled the gun like this and as I did that I heard a fuckin shot and then ran past and saw his head go whoof!.•with another shot all in the space of fuckin two or three seconds.	Peter had shot him too.	I	
		fuckin booked the flight and Peter gave him a
ticket.	

55	SODOLI: HEISS:	All right you say...?
That's Peters bullet the one that killed, man, in	
		the head.	

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Allright.	Well, let's go back a bit?
I wouldn't have shot him if I didn't think he was going to blow me away man I'm not fuckin crazy.

Now, getting back to the point where...?
It was all loaded everything was fuckin loaded you know, the whole situation.
Why did it become loaded?
I don't know mate it was just crazy, fuckin, carrying guns fuckin things get into your head you know you carry loaded guns around it's crazy.	You just fuckin we hadn't seen no more roos or no rabbits not even fuckin tracks or nothin we had been walking for a least fuckin, prowling around the bush there fuckin three quarters of an hour maybe an hour.
All right.	You say that Dean turned around towards Peter, turned to his right?
Mmh...but he looked at me first like this.
All right.	And you were carrying, how were you carrying the gun?
I was carrying it like that I think.

On the side?
Yeah on the side that's how I always carry a gun,
like that. (inaudible)
on your left side or right side? Left side.
can you just explain to me, the sequence of events between you cocking the gun and Peter, and Dean turning or Dean turning around and you cocking the gun which way did it happen, or did it happen at the same time can you just explain it to me?
Dean looked at me like this first right.

Looked after his left shoulder? Yeah.
Right.
A. d then he turned around like this.
Well why did he look at you for? I don't know.
"Was that....
Maybe he was going to fuckin shoot me.
Sorry was then when you cocked the gun or hadn't you cocked it then?
That's when I put my hand on it, no.

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What, before he looked around at you or after? After he looked at me.

And did you cock it at that stage? Yeah.

Right.	And then you say he then turned around and looked at Peter?

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SODOLI:	Yeah he was going fuckin I don't know what he was going to do mate, shoot someone.
Alright and when you say you then fired again?	

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So what, roughly what area were you trying to hit?	
	HEISS:	Oh I was just going to fuckin shoot his arm or his
leg or his shoulder or somethin.	
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An shoulder, about here I think.	

25	SODOLI: HEISS:	In the front or the back? Back.	
	SODOLI: HEISS:	In the back?
Yeah.	
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Yeah.	

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Yeah.	yeah we he had the gun higher so I mean you just gotta turn around and fuckin take anything you	
		know.	

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And how far behind was Peter then?
Oh he was we I don't really think he was going to go at Peter because he was fuckin, I don't know why he turned around that way man, he was, because Peter was over here and he was already right around.

So Peter was, he'd gone past Peter? Yeah he'd gone past Peter.
Or, do you think he'd gone past Peter because of the bullet hitting him in the back and spinning him around or do you think he purposely turned around that far?
Oh it might have been because of the bullet hit him.
Right.	So he was facing virtually behind yous again?

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Yeah.

And how far were you to, to one side of him? Oh, about 5 or 6 foot.

Allright.	Did he, you say he was on his knees is that right?
He went down on his left knee, put his left knee down.

And what was he doing with the gun? Like that.

Can you describe it, can you describe it? Like that.

You're indicating that he was holding it up to his chest?
Mln •• To his shoulder mate.
Right and where was the barrel pointing? At me.

So he'd come around to you had he?
And that's when I fuckin moved aside, dropped my gun and fraction an instant, just fuckin jumped, knocked his gun up like that, cause it's a bolt action I couldn't fuckin take another shot or anything you know in that short space of time, really, just fuckin instinctively threw the gun and knocked it out of his hand and as I fuckin did that.
Did you manage to knock the gun right out of his hand?
Yeah, flying that,
Mm! •••
And then as I went past him I heard bang and I looked back down, bang fuckin his I see his head bouncing blood fuckin fire and then fuckin.

Well where?
I walked off I just fuckin walked off into the bush for maybe fuckin twenty feet, Peter fuckin dropped his gun and he's fuckin walked over there and we're go inah of fuck man of fuck we fuckin shot him oh fuck what are we going to do, what are we going to do, fuckin hell, where are we going to hide the body, (inaudible) fuckin, (inaudible), ah shit, freaking right out.
Allright.	You say that as you ran up to him, you knocked the gun out of his hand and went just slightly past him did you?
Yeah.

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Was he still kneeling on the ground or had he fallen over onto his back?
I don't know because I went past him, knocked the gun over like that and I heard bang when I was only that fuckin far away from him.

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About Yeah. still

a foot two foot past him?
He would have been up, he up.

was up mate, he was

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On his knee? Yeah like that.

Allright you say you heard the first shot?
Mmm! ••••

You looked around?
Yeah.	Heard the first shot and I fuckin saw him hit the ground, fuckin with his throat or it looked like it just fuckin red mate, fuckin hit the ground and his head bounced man, as soon as he fuckin hit the ground he got shot again in the head.

Whereabouts in the head did it hit him?
Would have hit him - all I saw later was in the back of the head.
In the back of the head?
Mmmh •••

Was there an exit wound to the front? I didn't look.

You didn't look, you say his throat, did you say that the first shot, sorry the second shot, well... I don't know it might the first shot might have been the one in the head and the second one might have been in the throat man I couldn't tell you.
Your not too sure?
No, that two shots got fired and that's where they
hit.
Alright now prior to this happening, sorry after having breakfast that morning...
Yeah.
You drove off, did you stop before you went on this walking excursion through the bush? Did you stop anywhere else?
No.	Didn't stop anywhere mate, we saw these pig
shooting people down there, but we didn't stop there.
Did you take some photographs that day? Yeah later.

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Before this incident happened?	Was it before or after the incident?
Oh it was after the shooting mate, with the guns.

Do you remember what sort of photographs you'd taken?
Yeah just holding the guns that's all, one of Peter holding em and one of me.

And your saying this was taken after? Yeah.

Do you know where they were taken? Oh in a clearing somewhere.
Do you know the name of it at all?
No, on a hill with a flat part and we was up on the hill.

Are you sure it was after? Yeah.

I want you to have a look at these photographs marked 2A, 3A and 4A which bear my initials thats two, three and four A, can you describe photograph two A for me and tell me what it shows?
That's me with the guns, they're the guns in the back of the Daihatsu.

All right.	Well, you'll notice that in the photographs there's some gear lying on the ground, sorry?

	HEISS:	That's the kangaroo jack and that's Peter's blue	
35		bag.	
	SODOLI:	That rifle against the back wheel is?	
	HEISS:	Mine, that was the Mauser.	
40	SODOLI:	Your Mauser.	What's on top of the roof here?	
	HEISS:	Looks like a sleeping bag or something.	
	SODOLI:	And on the ground, something blue?	
	HEISS:	Yeah, dunno, a I bag or something.	
45	SODOLI:	What are you wearing there?	
	HEISS:	Pair of Khakis.	
	SODOLI:	Camouflaged pants?	
50	HEISS:	Yeah.	
	SODOLI:	Did you have a shirt on that day?	
	HEISS:	No.	
55	SODOLI:	Were you wearing something on your head?	
	HEISS:	Yeah a red bandanna.	

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Allright.	What was Dean wearing that day? Black T.Shirt and blue jeans.

Black T. Shirt and blue jeans.	What about shoes? Oh he had a pair of sneakers on I think.
Have a hat?
No not that.	I, no.

Allright.	Do you want to sign this photograph, you don't have to if you don't want to?
Ohl don't know, don't worry about it.
1'..h ! ....
Yeah I'll sign it, man, why not.

On photograph three A can you tell me what that is of?
That's Mr Kamm, with a three of seven and a bullet belt with a thirty of six round it, wrapped around.

Whose gun belt is that?
A black bandanna, ah!...there was the military ammo for the six point ah the fuckin thirty oh six.

Allright.	And the gun he's holding whose gun is that?
That's Dean's.

Allright.
Theres, the fuckin three of seven he's got there.
Do you want to sign that one?
Right, Peter's going dow to Court isn't he?	here? will be the same time as me eh?

I think so, I don't.	Right photograph four A what's that?
Ah...that's me with a rifle in the bush.
And what are you carrying there?

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Um that's a dunno I think that was the seven we both took a turn holding it. around my neck I think.

three of Gun strap

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Do you want to sign this photograph, you don't have to?
Yeah I'll sign.
Right the time is now 3.00 o'clock the tape is about to run out, so I'm going to have to suspend the conversation and put in some new tapes. Is that okay?
Yeah.

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RECORD OF CONVERSATION BETWEEN DETECTIVE SERGEANT MATT SODOLI AND DANIEL HEISS CONDUCTED AT BERRIMAH POLICE COMPLEX AT 3.02 PM ON SUNDAY 6TH AUGUST 1989
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ALSO PRESENT IS DETECTIVE SENIOR CONSTABLE MARTIN JAMES

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Daniel do you still understand that you don't have to answer any of my questions?
Yeah, I understand that.

Alright, now you say these photographs were, were taken after Dean was shot, is that correct?
Yep.

How far away from where he was shot? Uh, maybe, uh, up the highway a bit.

Okay.	What did you take the photographs with?
A camera, it was Peters, or Deans;	one of the two.

I'd like you to have a look at this camera.	I've got, do you remember what model or make it was?
No, it was little plastic, el cheapo.

Will you have a look at this small... Nylon, vinyl case it was.

Would you have a look at this small Kodak camera, was, before I show it to you, was there anything unusual about the camera?
Uh, not that I recall.
Was it repaired in any way?
Yeah, it was pretty scruffy looking camera.

Allright, I now want you to have a look at this. It had a, I don't remember, it had a white lens on it I remember that, white surrounds.

I want you to have a look at this Kodak VR thirty­ five and you'll notice that it's got white sticky tape around the lens to hold it in place.	Is that the camera that you took the photographs with?
Yeah it looks like it.	It had a cord though I think.	Yeah, that, that's probably the camera, yeah.

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Okay.	Allright.	Getting back to when Dean was shot, you say that after Peter shot him that you walked off into the scrub a bit.
Yeah, holding my head, and Peter fuckin came over, and I really, we were both fuckin spinnin out. Oh wow, shouldn't a happened.

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Okay.	What was said between you then?
Uh, we gonna have to bury the body man, so we covered him up, went.

What did you cover him up with?
What did we cover him up with uh, I don't know, maybe leaves, or branches or something or we might of just left him lying there I think, yeah, yeah we just left him there we didn't want to touch him.
Alright, what happened then?
We went out to the car, well we had a hassle we fuckin walked around the bush an we had to find the Daihatsu and we found it about three quarters of an hour later, got some petrol, got a sleeping bag and we went back with a shovel and that and um, we dragged him over, near this bunch of trees or low bush, scrub thing and dug a hole it was only a shallow hole (inaudible) and dug it and put him in a sleeping bag, the ants were already eatin him and um, wrapped his head in a blanket or something cos we felt you know, Peter said we should burn him so we set him on fire, burn him.

What colour sleeping bag did you put him in? Blue one

What colour blanket did you put around his head? Uh, it might have been a jumper
And what colour was that?
Uh, I can't remember now, it was a dark colour.

How deep did you dig the grave? Not very deep, maybe three foot.

Did you dig it or did Peter dig it or..? We took turns, we both dug.

Allright.	How far from where Dean was shot did you dig this grave?
40 foot, 50 foot

And how did you get him over to the grave? We carried him in the sleeping bag.
Allright you say you brought some petrol with you?
Mmm

What was the petrol in? Uh, a jerry can I think.

What colour was that? Green.

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Would you remember or recognise the jerry can if you saw it again?
Aw, not really, a jerry can's a jerry can.	You know, all rusty and rough looking.

Allright.	Was there any discussion between you and Peter on the way back to your car or from your car back to where the body was about what you were going to do or not going to do?
Yep.	We decided that uh, we won't tell nobody and um, if there's inquiries we'll say that we went down to where we were with Dean and he was arguing with us the shit sort of way and then we came back up and he had no money and he wanted to go down south to Adelaide and see if he could get a Nissan down there cause he couldn't get one up in Darwin, you know, a decent body, Nissan body and we would say we dropped him off, bought his rifles and stuff off him for a couple hundred cash and left him just outside of Katherine to hitch south.	Never saw him again.

That's the story you were going to use, was it? Yep.

Alright so you get back and you dig this grave is that right?
Yep.
What happened then?
Dug the grave, put him in there, wrapped his head in a this jumper, or towel or whatever it was, set it on fire.

How did you do that? Just pouring petrol on
Right, did you put anything else in the grave with the body?
No.
Did Dean have a licence?
Yeah he had passports and that and we took out, ah it was in the car actually, in the glovebox.
What did you do with that?
We burnt it.	After we got in the car we drove along the highway and so got out of the car emptied all the paper and stuff out of his wallet and set it on fire.
So you didn't put that in with the body? Nah.
so you poured petrol over the body? Yeah, over the head mainly.

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Who did that?
Peter.

Allright.	And who lit it?
Peter.	Then we sat there for about 10 minutes waiting for it to burn.

And how much of it did it burn?
Aw, a fair bit, the head and the pretty much unrecognizable.	Dean's head.

How long did you stay there and watch the fire for? We didn't want to stay too long, you know, so, stayed about 10 minutes and then buried it up and put an ant hill on top, and then we broke this ant hill off and put it on top of the grave.
How big was the ant hill?
Three foot high, four foot high, yeah, between, three, three and a half foot high.	Then we walked back out to the car and drove away.

25	HEISS:	Yeah, we had a bit of trouble, wanderin round, freakin out, couldn't find it.	

30	SODOLI: HEISS:	How far away was it from the car?
Oh, about a kilometre and a half, about three kilometres in from the road.	

35	SODOLI: HEISS:	And what time was this do you reckon?
In the morning, it wouldn't be mid-day yet I don't think.	Maybe, could have been around about mid­ day.	
	SODOLI: HEISS:	So you get back to your car? Yep	
40	SODOLI: HEISS:	And you drive off, is that right? Yep.	
	SODOLI:	How far do you drive before you stop?	

Did you have any trouble finding the body after you left your car to go back to the body?

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Ah, about uh, I'm not exactly sure, we were talkin a lot, it's kinda hard to judge distance when you're talkin, maybe 20 kilometres, maybe less.
Why did you stop?
To burn the papers and that.	Threw the box out that the ammo was in and that.

Did you take the photograph before this or after this?
After.
so you stopped again after you burnt the paperwork?

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Yeah, yeah well its cause we were travelling in flat country and we come to a ridge where you could see down into this huge valley, big, wide open area we got up back up that ridge there and we stopped and took some photos.	It might have been before, I don't know, I can't remember exactly but the photos were taken after the incident.
Allright.	Why did you take the photos?
Uh, I don't know, just take em, took some photos, you know, use a camera, it might have been before, I uh, can't remember exactly.
Right, before what?
Before the incident, you know.

So are you just not sure, is that what you're saying?
Yeah, the photos I'm not exactly sure when we took them.

Okay.	But the burning of the paperwork is definitely afterwards, right?
Yeah.

Was there any other discussion after Dean was shot between you and Peter about, you know, how you felt or why it happened?
Yeah, I fuckin, I felt pretty bad, man, I was fuckin, a few tears running around my face, fuck, it was a bad thing to do, you know.

And what about Peter?
Aw Peter didn't feel too hot either.	we didn't want to fuckin get caught for it, you know, we didn't want to go to gaol.	It was very serious stuff so we made our best of it to cover it all up and hide the tale.

So after burning Dean's papers, what did you do then?
We drove and drove and drove.
To where?
We had jerry cans and petrol and that, drove till we got to the Stuart Highway.	then we drove a bit down to the left to the nearest, next stop, I think or it might have been past the first stop, it was somewhere near the turnoff to Daly Waters, we went past that, an on to this sort of a Hotel, a roadhouse type thing, you know, booked in, and had a drink.

What time of day was that? Evening, man.

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Did you stay there overnight? Uh, yeah, we booked in.

Whose name did you book in under? Peter's

What, sorry?
Peter's

Well, why did you go, to this Roadhouse?
Well, we wanted to fuckin just rest get a decent night's sleep, you know, we'd been roughin it for a few days, you know, sleepin out and that.

Do you know what room you stayed in? Yeah, it was number 5, I think.

Why did you turn to the left after hitting the Stuart Highway rather than come towards Darwin? Well, the nearest stop was down that way.

Were you going to use the stop there as any sort of alibi or anything?
Not that I recall, it might have been, uh, I was pretty freaked out at the time.	I was really freaked out.

30	SODOLI: HEISS:	Was there a petrol station at this Roadhouse? Yeah.	
	SODOLI: REISS:	Do you know what company it was?
It might have been BP or Shell, BP probably.	

35	SODOLI: HEISS:	Big place?
Yeah, pretty big.	
	SODOLI: HEISS:	You don't know the name of it, eh? Nah.	
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45	SODOLI: HEISS:	Anything else happen that night at the Roadhouse? Yeah, we met this dudes shootin pool, scored some speed off this one guy, and went in the room, snorted that, didn't sleep, no rest, you know, didn't sleep hardly at all, speed and this incident
it's was freakin out, you know, so, till we get back	
		on the road the next morning early, we were driving, keep going all the way up.	

50	SODOLI: HEISS:	What, towards Darwin? Yeah.	
	SODOLI:	You know when you hit the Stuart Highway from the Borroloola road, is there a Roadhouse or a	

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Hotel/Motel on the corner there?
Yeah, I think there might be actually, yeah.

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Why did you stop?	Sorry? It was shut.
It was shut was it?
It looked dark, we didn't go in there.	Was too many trucks or something too then we decided it's not better to stop there.

So the next morning you headed to Darwin? Yep.

What time did you leave?
Pretty early, maybe, aw, not that early about eight I suppose.

And where did you drive to?
We were drivin up the highway.	Yeah, drive, drive, drive, got as far as about, I say about before Larramah, picked up a hitchiker, and kept goin up, and dropped him off when we got to Katherine.	We stopped in Katherine, painted the Daihatsu black, um then we just kept goin from there, got some money out of the bank, or somethin, and just kept drivin.
To where?
To Acacia.

Did you stay in Katherine over night? Nah.

You say you painted the Daihatsu, in Katherine? Where did you get the paint from.
Bought it, black board paint from a hardware store or something there.

Was it, did you hand paint it or was it spray can? Hand painted.	Black board paint, black.
Oh, yeah.	Why did you do that?
Uh, I wanted to paint in anyway, you know, so I painted it.
Did the fact that ...?
Yeah, it occurred to me, you know its a good idea to make the car look a bit different, so that's probably why we painted it there.

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Sorry?	
	HEISS:	Well, yeah, yep.	
55	SODOLI:	Because you thought it might not get recognised or	

Why did it occur to you that, because of having shot Dean?

what?

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Yeah, we were, it's good to change the colour, you know or something like that, so we painted it black.

Whereabouts in Katherine did you paint the car?
Ah, near a water tower off the main street, on the left hand side going north.	Just, you know just off the main street behind the buildings there.

When you went north, towards Darwin did you go over the main bridge or did you go down to the low level area?
Um, what bridge, the bridge on the north side of Katherine?

Yeah, the main, you know the main bridge that leads straight into the main street of Katherine?
Yeah, that's on the north side.

Yeah, did you go over that bridge or did you turn to the left?
No, no no it was before that.	It was just off the main street, you know before that big bridge.

On the left hand side? Yeah.

Over the back behind all the shops and all that? Yeah, yeah.	There was a clearing and that over there.

	HEISS:	Uh, about, we didn't get to Darwin, I think we just got to Acacia.	Got there it was dark, late.	
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	SODOLI: HEISS:	What time?
Aw, about, pretty late, maybe, shit, I don't know maybe close to midnight.	
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45	SODOLI: HEISS:	What did you do then?
Uh, we stopped there, and um, Cliff was in the van, we didn't tell him nothin, just told him we dropped Dean off at Katherine, after we had an argument and um, Dean's bag was still sitting out the front so we
fuckin, stashed that under the caravan and that was	
		it.	

50	SODOLI: HEISS:	What sort of bag was that?
Some, green, army bag type thing, one of those long ones.	

55	SODOLI: HEISS:	Where is it now?
I don't know, its gone, people looted that caravan after we left.	A lot of my stuff went missin an
that.	

Then you drove to Darwin, what time did you get to Darwin.

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What did you do with Dean's guns?
That's right.	On the way in, we stashed them out at Manton Dam, up higher with the reloading gear.

What did you, sorry what did you put there? The reloading gear.

And what else?
The guns.

How many of them? Three

Alright, so you put the guns there before you get to Acacia?
Yep.

And you spent the night at Acacia? Yeah

What happened the next day?
The next day, well, I think we got really drunk, or something.	I'm not sure, uh, yeah, we didn't do much that day, I don't think.
Alright.
Worked on the vehicle or somethin.
Did you go back to the guns?
Yeah, I went back the following night, I think or the afternoon, um, stashed the box of stuff in another place and Peter had said he knew a place where to put the guns, so we went down to marrakai, fuckin where this car graveyard is in there and jacked up one of the cars and put the guns underneath in the bag.

That's all you put there was the three guns? Yep.

What happened to the rest of the property?
We stashed that out at Manton Dam.	But Peter went back at another time with T and that and fuckin took it somewhere else or something.
With who?
Aw, Ray said he went there with T and them and another time.
T and M?
With T and well whoever else went I don't know who an stashed it somewhere, somewhere else.

You don't know where? Nah.	(inaudible)

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Dean's, did Dean's rifles have scopes on them? Yeah they had a couple of scopes.
And what happened to them?
That's right, before we stashed it, we took them to Acacia that night, that's right, I think or fuckin, aw, something like that, we took them to Acacia, when there was no one there, Cliff was out and we pulled the scopes off them.	Peter wanted to use the three oh seven, I said "Aw, fuck don't, mate, we was (inaudible) you know".	So we pulled the scopes off and took the guns out then, the following night, that's it.

Allright
And stashed them there at that place at Marrakai, under the car.

Do you remember what sort of car they were stashed under?
Yeah, it was an old toyota 1 ton ute or something, a ute.

Do you know what colour it was?
It could have been green, pale green.

I want you to have look at a photograph fiveA and tell me if you recognize what's on the photograph? Yeah that looks like the car.

What sort of car was it? Green Dodge.

Does that look like the car that you put the rifles under?
Yep.

Okay would you like to sign that, you don't have to if you don't want to?
Yeah, I'll sign it.

Alright you say you took the guns back to Acacia that same night, took the scopes off, is that correct?
No we didn't take them off that same night we came back, it was the next night or something, the next day, we did it, we didn't do them that night.
But the guns were, what I'm trying to get at, were the guns put out at Manton Dam before you went to Acacia or did you go Acacia first then go back?
Before, before we went to Acacia.

So what the following night you went down and took the scopes off?	.	.
Yeah, the following, yeah, the following night, I

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Is that when you moved the guns again or?
The following night went over there and picked them up and then in the morning when it was light or something we pulled off the scopes, so we had them stashed under the seat in the van I think, I think over a period of two days this took place.

Allright.	So you took the scopes off, right? Yep.

What happened to the scopes?
Sometime over the next few days we went into town and sold them.

Do you know who you sold them to?
Yeah, I sold one to um, Territory Firearms on Woods Street and Peter sold one to uh, Fishing World on Cavanagh Street.

How much did you get for the one you sold to Territory Firearms?
Uh, about ninety bucks, I think.

Did you get a receipt for it? Yeah.

I want you to have a look at a receipt dated the eighteenth of the fifth eighty nine its in relation to a receipt made out by Territory Firearms Propriety (sic) Limited Ninety Woods Street Darwin, for the purchase of a scope.	Do you remember what brand name the scope was?
Um, I think it was a Nikko or a something like that.

I want you to have a look at this receipt anyway for the purchase of a one Leopold scope for ninety dollars, do you recognise this receipt?
Yeah, that would be the receipt, I suppose, yeah.
And that's the figure you got for the purchase of, for the sale of that rifle, sorry for that scope? Yeah, that was in my bag yeah.

Would you like to sign the back of that, you don't have to if you don't want to?
Yeah.	How come I got to sign everything.

Well just so I can keep a record, yeah. Alright, you don't have to if you don't want to.
Might as well.	Cat's well and truly out of the bag now.

How much did Peter get for the other scope he sold? Hundred bucks, I think.

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Did he get a receipt for that? Dunno.
Excuse me Sergeant we're just about out of tape.
Alright, well we'll stop this tape, is that all right with you Dan?
Yeah.
The time is 3.28 pm.

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RECORD OF CONVERSATION BETWEEN DETECTIVE SERGEANT MATT SODOLI AND DANIEL HEISS CONDUCTED AT BERRIMA.H POLICE COMPLEX AT 3.29PM ON SUNDAY 6TH AUGUST 1989
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ALSO STILL PRESENT IS DETECTIVE MARTIN JAMES.

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Danny do you still understand you don't have to answer any of my questions unless you want to? Yeah I understand.

Right getting back to what we were discussing, do you remember Dean having a gun belt?
He never wore one.

Did you ever see one that belonged to him? Yeah I saw it when I was putting the boxes in um!...I saw one sometime.

Do you know what become of this gun belt?
I had not interest in it at all in shit like that I'd sooner have left all that stuff in thrown it in Manton Dam or somethin, but Peter wanted to fuckin hang onto it.

Do you know what become of the gun belt? No because it was in that box.

Right did you see any camouflaged clothing that belonged to Dean?
Yeah there was a jumper, Peter claimed that.

Do you know what became of it? He cut the sleeves off it and.
Would you recognise it if we, if you saw . 1 +..-.?..
Yeah if it's got cut off sleeves in it.
Also what about a pack of ammo?
A pack of ammo no not if that am o was any use to me because (inaudible) gun would, plus I didn't want nothin to do with it.

50	HEISS:

SODOLI:	No that's mine, I brought that from the disposal store on Wood Street, no.

Alright so that's not the gear that you said had the	
	
HEISS:	sleeves cut off? No.	

55	SODOLI: HEISS:	Do you know what become of that?
Yeah Peter had the jumper with the sleeves cut.	

I want you to have a look at some clothing here and tell me who it belongs to, is that, do you recognise whose is this?

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But you don't, don't know what happened to it? No, no.

Allright.
That's the pants I was wearing at the time of that photo.

Allright I'm looking at photograph twoA and it depicts a photograph of you holding two rifles in the back of your Daihatsu, and you wearing some camouflaged pants.	Are those pants in the bag
marked exhibit number five double, five triple eight three.
Yep.

Same pants okay? Yep.

All right ah!...On your way down to Borroloola, who paid for the Petrol?
We all paid.
All three of you's eh!...?
Yeah but Peter run out of money first and then I ran out money and then Dean ran out of money, he had about $30.00 bucks left in his wallet or somethin after we topped up all the fuel and that.

What happened to this $30.00? Oh we used it.
To do what with?
It was probably more than that, it wasn't a hundred it was probably only fifty or sixty bucks and um!.. we used that to book into the Hotel, buy top up on fuel again cause you see we had enough jerry cans and a full tank of fuel to get us, you know, a thousand kilometres easy, not a thousand maybe five or six hundred blocks.

Allright I want you to have a look at photograph two A again, Dan, there appears to be a sleeping bag on the top, right, of the car and there's a blue thing, on, next to the wheel on the ground.	Is that a sleeping bag as well?
Mmmh!...I think that's Peter's sleeping bag there.
Which one?
Peter's got a blue one that's made of flannel.

That's the one on the ground is it? Mmmh ! ...

What about the one on top of that car?
Mmmh!...I can't say for sure mate I can't remember fuckin.

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Okay.	And whose bag was that?	
	HEISS:	Which one?	
15	SODOLI: HEISS:	The one that you put Dean into?
It might have been Dean's, the one we picked up, you know in Borroloola, cause we picked up a sleeping bag.	
20	SODOLI:	So you put the guns under this other car, down at	

SODOLI: HEISS:

Right the sleeping bag that you put that Dean into, what colour was that?
It might be in there, you know, like I said I can't remember exactly if we took the photos before or after it, so.

What colour?
It was blue, but it might have had a red lining,

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Marrakai?
Yep.

What did you intend doing with the rifles?
Throw them in Manton Darn getting rid of them totally.	Peter wanted to grind the numbers off them and use them, I didn't want nothin to do with that, we had a lot of arguments then you know.
Did you ever go back for the rifles?
No.	We actually, yeah we did.	We went back a while later maybe a month later maybe more and they were gone and we freaked.	We thought someone either locally had ripped them off or the cops had found them, hoping it wasn't the cops, but it was.	Ah!..I freaked out, well fuck man and we had another big argument, we never actually had any physical fight and Peter nearly tried to oh after that ah!... we camp in down near T's camp	for a while and then ah! you-know I fuckin told him I didn't want to live with him no more or somethin, you know didn't wanta share the same space you know so he went off and lived with T and that, lived with T for a while.

Those photographs that I've showed you that depicts you next to your car and one of you by yourself in the bush and one of Peter in the bush, who took those photographs?
I think it might have been Dean actually, I, it's corning back to me now, I remember, but I can't say for sure I can't remember.	Like I said it's one of those things, fuckin if it was before or after I'm not sure, pretty sure it was before now though, but it was I know exactly where they were taken,
exactly.	You go across a plain and you come up a ridge that's like a shift in the lana plates

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(inaudible) and from the top of the ridge there you can see for hundreds of miles.

Was there any heavy discussion between yourself and Peter, prior to shooting Dean, about shooting him for his, to take his rifles off him?
Oh yeah we were thinking about it you know, cause something funny happened when we pulled up at Adelaide River that night, when we first come down.
On the way to Borroloola?
Yeah Peter, yeah Peter had been quite the whole time and we were getting out of the car and Peter's looking funny and we were looking at each other like we were on the same wave length you know.
And what was that?
Oh me and Peter goes somethin like ah!..(German words) or something like that, I love shooting or somethin like this you know, somethin cryptic and he said somethin like yeah, next thing we're, saying (inaudible).

Sorry?
He said somethin like, next thing we're talkin about I wonder what would happen if we fuckin shot him or stuff like this you know.

This is on the way to Borroloola eh? Yeah.

So what else was said?
Oh we never, we never planned to kill him, never planned it, it was a fuckin thing that just happened.

You were going back to when you had breakfast that mornina before vou shot Dean, can you remember, did you ha e anythi;g to eat that morning?
No I don't know, I don't think we did, we might have had some oranges or somethin in the car.
Did you smoke any Marijuana that morning?
We smoked a bit on the way down, we had a bag like I said, Peter had a bag, but umh!...yeah I think we had a smoke that morning.
How much did you have?
Maybe two joints or somethin.

What between the three of you's? Mmh!..

How long was that before you were, started driving off again, before you went shooting?
Yeah.

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SODOLI: HEISS:	Mmh!...Peter use to use that gun all the time, its his gun.
What happened to that gun? Oh eventually I sold it.	
40	SODOLI: HEISS:	Who  too? Nicole Rossina.	
	SODOLI: HEISS:	sorry?
Nicole Rossina.	

SODOLI:

Yeah how long before?
Oh maybe half an hour or somethin.

Well, between the time you had breakfast, sorry, between the time you left that morning, after having breakfast, to the time when you shot Dean, how much of a time span was that?
Maybe two hours, maybe a bit more, maybe a bit less, couldn't say exactly how long.
Did you have anything to drink that morning?
No didn't have any alcohol or anything like that, just water, water, red cordial.
And did the marihuana doing anything for you?
Oh yeah I was a bit stoned, I mean I don't smoke hardly any, anyway so, fuckin I try not to smoke too much.
Well how long do you reckon you were, you were sort of affected by if for?
I was pretty stoned all day.
What from two cigarettes in the morning?
Yeah...it was head.		Stuff that Peter brought up from Adelaide, brought it all the way, fuckin, about two ounces of it.	No, I don't drink or smoke much at all because it knocks me around, I find if I smoke I can't think, can't think straight, get paranoid.
Allright.	You say you had a six point five Mauser?

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How much did you sell that for? Oh, it was sixty bucks.

Why did you sell it?
Oh I didn't want it anymore, cause my rifle was the
twenty-two two fifty you know.

You still kept that eh!?
Yeah I kept it, the twenty-two two fifty.	Peter
wanted to buy it off me	but oh I wasn't going to sell it to him, liable to go and shoot someone else

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with it, with his bandanna and that in his hand, he was an unpredictable man.

Was there any discussion at Adelaide River about shooting Dean apart from...?
No not really, wasn't a premeditated thing.

Is there anything else you want to say about this whole incident at all?
Just that it happened fuckin spontaneously and that the ballistics will show that fuckin Peter's bullet's the one that killed him.	I didn't shoot to kill him.	I was surprised that I actually even hit him, cause I, just when he spun around I just fuckin lifted the gun and fired.

Do you know whether, or did you see whether Peter took aim?

20		hit the back of his head.	

25	SODOLI: HEISS:	You didn't take the gun off of Peter and go back and shoot Dean?
No.	Peter was carrying the gun the whole time the six point five he never go of his guns.	Man he loves to carry guns around, and that's how it is out there I mean Acacia Store and all around there, everyone totes guns out, everyone's gun crazy.	
30	SODOLI: HEISS:	Is there anything else you want to say?
No not really.	Just that I regret fuckin doing it.	

35	SODOLI:	Detective James, do you want to ask any questions. Do you understand Dan you don't have to answer his
questions either unless you won't to, do you	
	
HEISS:	understand that? Yeah.	

40	J.Z._MES:

HEISS:	Your orettv familiar with the workings of the rifle that were carrying at the time out there?
The bolt action?	
	JAMES: HEISS:	Yeah?
Yeah I know how it works, yep.	

No, the only thing that I saw was when the bullet

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Familiar with the safety catch?
It's got a funny safety catch on it, it's curled and you can't, you can't ah use it properly.
To cock that weapon, where do you have the safety catch?
Um!..on the righthand side I think, yeah.
When you were walking through the ah!•.the bush with
the firearm, how did you have the safety catch, was it on safe or off safe or?

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I think it was off safe, but it wasn't cocked. Was there a cartridge in the breech?
No.

When did the cartridge get into the breech?
When I pulled the bolt back and fired, I'm pretty quick.

And your lefthanded so you've got put your hand over the gun to do it?
Yeah but that's a quick action, it's just as quick as doing it with the right hand, as you hold the gun down here.

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What made you cock it?
Cause I thought Dean was going to shoot me.

What just because he looked at you? Yeah, the gun was fuckin cocked.

How do you know it was cocked.
Cause I could see the handle was back.

Did you see him put one into the breech? Yeah there was one in the breech all right.
Yeah but how do you know that?
Because earlier, when we'd finished shooting at the things he put one in the breech then.

What about the, what about the six point five that er!..Peter was carrying.	Did he have one in the breech of that?
Yep.

How do you know he had one in the breech?  Because he cocked it, when we were walking along.

Don't you think that would have made Peter nervous, or sorry not Peter, Dean nervous?
It made Dean very nervous, he cocked it first.
What after Peter cocked his?
No, no, Dean's was cocked already it had been cocked for awhile for maybe a minute or two, two minutes and Peter was walking along and Peter fuckin cocked his and Dean looked at me turned around and bang!
Why did you go around with loaded guns for?
Oh you don't I never put one on breech when I'm walking around.	Some people do and it's a bad practice.

How long have you been handling rifles for? Long time.

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How long?
Oh, oh not that often, Since I've come up here really I've been getting into shooting, game shooting.

Do you know how your Mauser works pretty good? It's basic.	A child knows how it works.

The thirty of six that you were carrying, that was Dean's right?
Yeah.

Have you ever, did you ever handle that gun before? No.

Is that a Mauser action?
Yeah I think so, but it's a different one it's got a bent bolt and slightly different mechanism on it.

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Is this the thirty of six marked seven one two one eight, is that the one?
Yeah that's the one.

This is the one you were carrying? Yeah.

Do you know how the safety catch on this works? Yeah it's that thing on the end there, I think.
Do you know how it works?
Yeah I'm pretty sure I know how it works.	Yeah:
Have you ever fired one of these guns before?

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No not a thirty of six.

Were you familiar with this type of rifle? Not a thirty of six no.

Prior to shooting Dean had you fired this rifle. When you say you were sighting them in, did you have a shoot of it?
No, I didn't actually.

How did it turn out that you were carrying this rifle?
Actually I might have let off a round there, can't remember, cause Dean sighted it in.

How was it you were carrying this one and not your own rifle?
Cause Peter liked the six point five, he'd taken possession of it, oh ever since I picked up the twenty-two two fifty.	I gave that to Peter, the
Mauser, cause he didn't have a gun license you know, so tha became his rifle.

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Allright.
Yeah the gun's bad news I don't want nothin to do with guns ever again.	Too dangerous.

Allright, nothing more you want to say? No.

Dan have you answered my questions and those of Detective James of your own free will?
Yep.

Has anybody forced you to answer any of our questions?
No.
Has anybody threatened you or made any promises or inducements to make you answer any questions?
Not here now no.
What do you mean by that?
No not you two while I was being interviewed no.

Right.	Do you understand that I'm going to give you a copy of each one of these four tapes that we've made and they're for your own use?
Mmh ! ...

And we ourselves will be keeping a copy, do you understand that?
Yep.
Alright the time is now ten minutes to four we will cease the conversation.

ANNEXURE "B"

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THE FOLLOWING IS A TRANSCRIPT OF A MICRO CASSETTE RECORDING
M. DE BY DETECTIVE SODOLI DURING THE RE-ENACTMENT PERFORMED BY DANIEL LOTHAR HEISS ON OT DOWNS ON MONDAY 7TH AUGUST 1989.

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Right the time is Three fifteen on Monday the seventh of August 1989 and we're at a position about a kilometer to two kilometers in from the carpentaria Highway which is about 185 kilometers from the Stuart Highway along the carpentaria Highway.	Oh, my name as you know is Detective Sergeant Matt Sodoli right.	This is Constable Brian MacMichael who is operating the camera equipment and the fellow behind him is Constable Llovd who is operating the sound equipment - do you-understand
that?
Yeah I understand.
For the purpose of this re-enactment, can you tell me what your full name is?
Daniel Lothar Heiss.
Right do you understand that you're in my custody in relation to the death of Dean Robinson?
Yep.
Alright I'm going to ask you to show me what happened here in relation to that matter, which occurred on the fourteenth of May 1989, right - I must warn you that you don't have to show me what happened if you don't wish to?
I understand.
Right but anything that you do say or show us will be recorded both in sound and picture on this video equipment here and may later be used in evidence - do you understand that?
Yep.
Are you prepared to show me what happened? Yeah.
Alright.	over here we've got some extra fellows. If you need anything ask them to do anything, anything you want - is that okay?
Yeah.
Do you recall ever being in this position before? Yeah I was here - about three months ago.

Alright and what were you doing here?
Oh we came down here to do a bit of shooting.

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And who was that with? Kangaroo's anything ah....
Who were you doing -
Me and ah Peter Kamm and Dean Robinson.

Alright.	Did you walk in from Stuart Highway, ah sorry from the Carpentaria Highway?
No we drove in about a kilometer and a half, then walked from there.

To here?
Yep.

Alright.	What did you do when you got here? Oh we sighted in a couple of rifles.

Would you like to show me where you did that? Yeah okay.
Alright just we'll follow you (long pause) where?
...... here?	No?	Is that the spot?
Oh...no doesn't look like it.	It's easy to get lost in this country.

Were you shooting at a tree were you? (long pause). Yep.....yeah, this looks like the spot.
Here?
l{mmh •••

What were you doing here?
Sighting the rifles in on the tree there (inaudible).

We've got one of the fellows here with a rifle - do you want to just show us how you were sighting the gun in?
I wasn't sighting it in, Dean was the expert, he was sighting it in on this here like this.

And what was he shooting at? Tree there.
Alright.	So what happened then?
Ah he fired a lot of rounds maybe ten, twelve - I had a shot, he had a shot, cos he was the bloke that knew how to sight em in he was an expert he reckoned on all the details of, you know, specifications and all that kind of stuff.
Do you want to show us what you did then?
Oh walked out there somehow, through here	not
through here, somewhere round here, (inaudible) probably, walking along...... after Dean had taken his last shot I noticed that he tilt the um.. pulled

3

the lever back again and had one up the breech and left the hammer up, left the hammer back so it was loaded one up the breech and it was loaded and um.... we were walking along here somehow.

	SODOLI:	Do you want anybody to play the part of the other
two people?	
	HEISS:	Yeah okay.	
10	SODOLI: HEISS:	Can I just have a couple of you guys?	You just tell them where you want to stand and what to do?
Well um... Dean was about there and another three or four yards just about there.	
15	SODOLI:	Alright.	

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I was out here.	I was about seven or eight feet I suppose.
Right.
(Inaudible) Peter was about there.	First of all we walkin all abreast, but Dean walked ahead.

Right.
Peter had his rifle like this.
That's Peter over there you're saying right, right? Yeah Peter had his rifle like this and then, yeah, we were walking along.
Right do you want these guys to move as well? Yeah.
Right.
Walked along and um...Peter pulled the bolt back on his like this and Dean was holding his rifle like this and he's like this I don't know like fuclcing holding the boost somehow and um... I had mine like this.
Are you a left hander are you?
Yeah.	I always carry it like that, up in my arm and we were walking along, in fact we were back here further.
You put these guys wherever you want em?
Back there walked around here, Peter was about there...and actually Peter would have pulled his bolt about there I suppose, pulled it back cocked it and Dean looked at me like this and picked his rifle up high like that ah fuck it something crazy so I fuckin, (inaudible) pulled my bolt back half way like that and Dean sort of spun around like that.
Moved.
This way or the other way?
The other way, other way about that far and had his

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rifle up like this and um...I slid the bolt back in and I just went boom! pulled the trigger.
Alright.
Had my eyes closed like that and then I opened them and Dean's down there on his knees.

Did you see where you hit him? Oh in the shoulder I think.

Alright.
Or in his arm or somewhere, I didn't shoot to kill him with the shot but I thought he was going to blow me away, man, he had the hammer back and everything I thought he was going to shoot me, crazy.

Where, which, which how was Dean holding the gun again?
Like this, something like this.

And he was standing there? Yeah.

Is he a right hander was he? Yeah I think so (inaudible)
Alright so what happened then?
Then after...I shot him and he went down like this, went down on his knees, he was still living though. (inaudible).
Do you want him to do that?
What yeah, ok, went down like that, a bit further around.
No No I think he means.
this way more, (inaudible) his arms yeah like that, bit further around cause he turned right around and he had his gun (inaudible) holding it down like that and he went to lift.
Well, do you want to let him hold the gun so you can show how ... can you tell him how he was holding it? Like that, he had it down like this.

Well, he was like that was he? Yep.

In that hand?
Yep.	And then he lifted it like that, and I come - I dropped my rifle and I went like this.

Go on?
And I went like this, and threw it over his shoulder
like that as I went by I heard bang! and I turned around and he was like that, hit tfie ground and

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bang! his head bounced, got shot again the gun went flying (inaudible)

Did you see where this other shot come from? (Inaudible) hard, Peter.
And your saying Peter was standing over there still was he?
Mmmmh •••

Alright...
Within a second, two shots bang! bang!
So what happens to Dean?
He was lying on the ground there.
What happened then?
I'd left my rifle there, I walked over there.. um..

Walked over where sorry? Over there somewhere.
Alright.
Thirty feet and Peter came over, I think he dropped his rifle too and um.. (inaudible) it shouldn't have happened man, and fuckin all this stuff, and... So come back over here, kicked those cartridges around I picked the gun up and carted it over there and let the cartridge out of the breech as I'm walking back that way and um then we kicked those cartridges around a bit, we only spent about a minute doing that things like we was spinning out, freaked right out and um... then we said, we to the car and get something to put the body in and petrol.	We went to the car and after we found the car, we came back in here, we took a while to find where we were... sleeping bag.

What, you came back here, you say? Yeah.
All right what did you do when you got back here? Um put the body in it and carried it over there.

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Would you like Yeah alright. see a spot you
Eh.

to show us where? First we went for know.

a look around to

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We saw this spot over here.	We saw another spot (inaudible) there, but the body was too heavy to carry so we ah•..we ended up with just carrying it over here.	Put it in the shade there and dug a hole I mean he wouldn't have got shot if he didn't have a
loaded gun and it looked like he was going to shoot me.	I thought he was going to blow me away, he was

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crazy you know he was obsessed with guns and things like that.	Had something to prove with his ego.
And a Big V8 four wheel drive, Black Nissan everything you could possibly think of for shooting you know all of tpe reloading gear about three spot lights a pop out sunroof you know. (inaudible).

Well look Danny we'll just what we'll have to do is the cartridge?
Film run out eh.

15	HEISS:	Yeah I - guy put me on edge I thought he was gonna I
mean I didn't trust (inaudible).	
	SODOLI:	While we are waiting for the guy to come back with the tape - do you want a smoke?	
20	HEISS:	Yeah (inaudible) (long pause).	

Yeah the film's run out so I'll keep this recording on the tape recorder run - going the time is now half past three -

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40
SODOLI: HEISS:

Back on.	Alright.	The time is now - I mean,
He wanted to keep shooting you know I wanted to go back to the car and (inaudible).
Alright.
I knew that there was no kangaroos or anything and (inaudible).	I thought oh he must have something up his sleeve, prick.	So we took it over here and then
(Pause).

So what's this part? Where we put him, grave.
Would you like to - how did you get him here again? Sleeping bag.

Carried him?
Yeah.
Then what did you do? (Inaudible).

SODOLI:
45

(inaudible)	Allright the time is now three

we'll cease the re-enactment thirty five pm on Monday the

7

	SODOLI: HEISS:	And then what did you do?
(Inaudible) and jerry can and went back to the car.	
5	
SODOLI:	What did you do with the petrol?	You said you	
	
HEISS:	brought some petrol.
Yes.	Wrapped his head, burnt it.	
10	SODOLI:
HEISS:	Is there anything else you want to show us or tell us?
Didn't want to be identified, you know.	

15	SODOLI: HEISS:	Well, is there anything else you want to say? No.	

20	SODOLI: HEISS:	No.
Not really, just that this guy was crazy, you know, I mean, he was funny, you know, ego problems, proving himself all the time, you know.	Wanted to drive the car and do this - and things like that
(inaudible) happened between him and Peter because	

25	
SODOLI: HEISS:	he was a - - -
Yeah, go on - tapes running on this one. Does that record sound?	
	SODOLI: HEISS:	Yeah, go on.
And I didn't trust him, he made me nervous so that's	

30

SODOLI: HEISS:
35

why it happened.	I thought he was going to shoot me.
All right, is that all?
Yes (inaudible) tried anyway (inaudible) I booked the flight, Peter gave him the ticket.

SODOLI:		All right.	Has anybody forced you to do this re- enactment?
HEISS:	No I gave and done it of my own free will because I
40	just hope to clarify the truth, you know.

SODOLI: HEISS:
45	SODOLI:

All right, so there's nothing more to be said? Self defence man, that's what it was.
Now the re-enactment time is now 3.30 pm on Monday