B (A Child) v Potts

[1992] HCATrans 307

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P6 of 1992

B e t w e e n -

B (A Child)

Applicant

and

ANTHONY MICHAEL POTTS

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 15 OCTOBER 1992, AT 2.01 PM

Copyright in the High Court of Australia

1   15/10/92

MR o. DEMPSTER: If it pleases the Court, I appear on behalf

of the applicant. (instructed by Aboriginal Legal

Service of WA(Inc))

MR L.B. ROBBINS:  May it please Your Honours, I appear on

behalf of the respondent. (instructed by The State

Director of Public Prosecutions)

BRENNAN J: Yes, Mr Dempster.

MR DEMPSTER:  Your Honours, for the purposes of this

applic~tion for special leave, argument will be

addressed only in relation to the first ground

which is set out of the two grounds in the draft

notice of appeal, which is at the very end of the

application book. That is, argument will be

addressed only in relation to the question of

admissibility of the confessional material.

Should this matter proceed to a hearing, we

would say that the matter of general importance for

the system of criminal justice which it would

address is the question as to how far an accused

person can rely upon judicial protection from

leading questions. There are two broad authorities

in the list, namely Van der Meer and R v Lee, and

both those authorities - and there are very brief

passages I will refer to in them - are pertinent to

this matter, Van der Meer because there is the

statement at page 661 of His Honour the

Chief Justice.	I did flag Your Honours' copies
which were handed up.	Page 661 at the foot of the

right-hand column of the page.

There is the statement by His Honour the

Chief Justice that an accused person must not be asked leading questions where that amounts to
cross-examination. It is not suggested in this

behaved improperly, but that is the broad statement	instance that the interviewing police officers have
of principle so far as leading questions are
concerned.

GAUDRON J:  How are you using the expression "leading

questions" in this context? You are not using it,
are you, in the way it was there used, to break
down what had already been said? You are using it

as questions which suggest an answer, are you?

MR DEMPSTER:  We are saying that in the context that the use

of leading questions amounted to cross-examination,
and the context brings into play the other feature

of this matter, which was the disability of the

applicant. It is when the disability of the
applicant is taken together with the fact of
leading questions that we say the position of

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inadmissibility arises and a question of unfairness

to the accused.

GAUDRON J:  You are saying that the questions were intended

to break down the answers earlier given.

MR DEMPSTER:  Yes, that does come into play. In relation to

the other authority of R v Lee, at page 159, in

justifying the mere existence of the discretion to

exclude, there is the statement half-way down

page 159, referring to an over-zealous police

officer, that:

The latter may be honest and sincere, but his

position of superiority is so great and so

over-powering that a "statement" may be

"taken" which seems very damning but which is

really very unreliable.

This matter has aspects of both those circumstances.

GAUDRON J:  You say of both those, but at base, is not the

only issue one of reliability, no matter how you

put it?

MR DEMPSTER:  So it would appear. The argument on law is

set out at paragraph 7 on page 3 of the outline.

While those two aspects are essentially questions

of fact, and that is acknowledged, none the less we

say that in this particular case the learned trial

judge erred in taking the view that the form of the

questioning, leading questions, did not amount to

an issue of admissibility, but rather simply went

to the weight of evidence. I have handed up to

Your Honours two pages which do not appear - - -

BRENNAN J:  You are saying that it goes to the admissibility

of the evidence. What do you have to say about

Sinclair's case in 73 CLR and the reliability of

material which comes from a person of defective

intellect?

MR DEMPSTER:  I am sorry, I missed that reference,

Your Honour.

BRENNAN J: In Sinclair's case in 73 CLR, this Court

considered the question of the admissibility of

evidence which is adduced by way of confession from

a person who is of limited intellectual ability.

What do you have to say about that?

MR DEMPSTER:  Indeed, that authority was referred to in the course of submissions in this matter. We say none

the less that the test that must be applied in
exercising the discretion must have regard to the

nature of the questioning.

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BRENNAN J: It did, did it not? The trial judge expressly

did have regard to that.

MR DEMPSTER:  No, with respect, Your Honour, I think that is

not clear. I say that by reference to the two pages of transcript which do not appear in the

application book but which have been handed up.

That very issue was raised with the trial judge

before he made his decision on the voir dire. If

Your Honours have it, the first of those two pages

which are transcript pages 355 and 356, two-thirds

of the way down His Honour makes the comment:

I .suppose what I am thinking as you are

speaking, Mr Dempster, is: is the question

whether this goes as to admissibility or does

it just go as to what it proves in the

ultimate issue. At the moment, all we're

talking about is the question of

admissibility; we are not talking about what

it proves, what weight is to be given to it,

what it establishes.

A discussion then follows.

BRENNAN J: What was the ground on which you were

challenging the admissibility at this stage?

MR DEMPSTER:  It was on the basis that the form of

questioning was objectionable.

BRENNAN J: What ground is that?

MR DEMPSTER:  And for that reason, the unfairness to the

accused, discretion should be exercised.

TOOHEY J: But that is shifting the ground, is it not? I

thought you were trying to put it more

fundamentally in relation to the exercise of

discretion.	The judgment of the Court of Criminal
Appeal, Mr Dempster, suggests that the

voluntariness of the statements made in the video

were not being challenged.

MR DEMPSTER:  Your Honour, it was taken by the Court of

Criminal Appeal that the argument had been simply a
question as to whether it was a correct exercise of

the discretion having regard to the weight of

evidence, but that, in fact, was not - there was an

alternative argument which was, in fact, put before

the Court of Criminal Appeal. That is at the foot of page 3 at the end of paragraph 7, page 3 of the

outline. It was submitted that the trial judge did

not regard the form of questioning as an issue of
admissibility but rather as a question of weight of
evidence. In the application book at the foot of

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page 197, Mr Justice Ipp, in his leading judgment

from the Court of Criminal Appeal, indicated that:

The sole basis of the first ground -

which was the question of admissibility -

was the argument that the learned trial judge

failed to give sufficient weight to the

intellectual disability and the asking of

leading questions.

Although that argument was put, that was not the

only argument. The alternative argument which we

say was not dealt with by the Court of Criminal

Appeal was the one that I am now addressing.

GAUDRON J: But the learned trial judge did seem to

understand you were putting it on the basis of

admissibility as well. He just formed a conclusion

adverse to you on reliability, as it were, which

underpins the question of admissibility.

MR DEMPSTER:	Your Honour, the pages of transcript I handed up were simply to demonstrate .what was in
His Honour's mind at that stage.  He indicated he
was giving consideration to that question,
starting to approach it.  He does not reach a
decision or indicate a decision at that point, but equally when he came to make his decision on the
voir dire, he did not indicate any reason in that respect. He did not address that particular line
of argument other than to say that there was was no reason to exercise a discretion.

I appreciate His Honour was not obliged to

give reasons, but none the less why I mention that

is that it does suggest that he did adhere to his

original view of the matter and took it that this

was not a question of admissibility as such but

that it was a question of weight.

BRENNAN J:  Mr Dempster, we need to understand, do we not,

what is the ground on which you say this interview
was not admissible? As I understand it, what you

are saying is that it was not admissible because,

in the exercise of a sound judicial discretion, it

should be excluded because the form of the

questioning made it unfair to admit the answers

against him. Is that right?

MR DEMPSTER:  Your Honour, we are saying that the discretion

was not exercised in the correct way.

BRENNAN J:  Why do you say it was not exercised in the

correct way?

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MR DEMPSTER:  Because we say that if His Honour the learned

trial judge did not treat that objection as a

question going to admissibility proper, but only as

a matter to be dealt with at some later point when

the weight of the evidence is concerned, then that

was wrong, we say with respect.

BRENNAN J: But is that not, on a true construction of

what His Honour said, to be understood in this way:

"that there is nothing in that questioning which ought to affect its admissibility, though I will

have to take into account the form of the

questioning in determining the weight to be

attributed to it"?

MR DEMPSTER:  The form of the questioning is certainly a

factor, and we are simply saying that that was a
factor which was disregarded by the learned trial

judge.

BRENNAN J:	Why do you say disregarded?
MR DEMPSTER:	Because at the stage when he was considering the matter, he had a question as to whether the
form of the questioning affected admissibility or
whether it simply went to weight in the passages I
have handed up.  We say it is clear for other
reasons in other parts of the proceedings, which I can go into, that His Honour continued to take that
view and did not treat the form of questioning as
such as a matter going to admissibility, but rather
simply weight of the evidence as a whole. We are
saying that there was a salient factor which was
not taken account of in exercising the discretion.

To put the matter another way perhaps,

His Honour did make a finding, in fact, that the applicant was a person who had difficulty in thinking in abstract terms. That is at page 185C

to D of the appeal book. That was at a different

stage of the trial; that was towards the end of

the trial - at the very end of the trial in fact -
but he had also made a finding at page 152D to E of
the appeal book that the applicant understood the

questions.

We say, with respect, that that may have

illustrated that His Honour did not treat the

objection in the way that we say it should have

been treated, because really in essence the

question is not whether the applicant, in fact,

understood the questions or not. There was an

objection as to the form of the questioning. It is

obviously one factor - indeed I think it is

possibly a predominant factor - whether, in fact,

the applicant understood the questions or not.	But
those are, on the face of it, inconsistent

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findings, to suggest that His Honour held to the

original view which he was proposing to take,

namely that this question of the form of the

questioning went not to admissibility as such, but

as to the weight to be given to that evidence.

So far as the two aspects of fact are

concerned, there was very cogent evidence which was

not contradicted that firstly, the applicant was
mildly intellectually disabled and that his

particular disability consisted of poor verbal

skills and secondly, that he was asked a long

series of leading questions. I can take

Your Ho.nours through those aspects of evidence

justifying those two aspects.

Going firstly to page 48D to E of the appeal

book, there was evidence given by a Mr Suter, a

clinical psychologist, led on behalf of the

applicant. At page 48D to E, he affirms that the

applicant was intellectually disabled, particularly

in terms of his verbal abilities. There is an

explanation at the very foot of page 48 as to what

that, in fact, amounted to: "extremely poor

comprehension ability".

Then going to page SOB to C, there was

particularly significant evidence which was not

challenged, and indeed could not really be
challenged, from this expert as to the level of

understanding and the question of verbal skills of

the applicant. Your Honours can see those two

illustrations given by Mr Suter at SOB to C,

illustrative of the types of ways in which the

applicant could not be understood to have

understood questions unless the matter was relayed

back to him in a different way.

That led also to the conclusion at the foot of

page SOE by a psychologist, Mr Suter, in explaining

that he had worked with this applicant in therapy

for some six months, explaining the type of

interchange and communication he felt he had to

employ with the applicant, namely, open questions

rather than closed or leading questions. So that

was extremely pertinent evidence when viewed in the

context of the questioning in this case, which was

undeniably by way of leading questions. Mr Suter

simply gave evidence, and it was unchallenged, that

he had to deal with the applicant by way of open

questions, because if he dealt with them by way of
closed questions, he would not know whether the

applicant had understood or not.

Just to finish with Mr Suter's evidence, he

did also express the opinion at page S2B to C -

Mr Suter had seen the video involved - that the

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applicant would not have understood the sequence of
events, the sequence of the questions. This

matter, as a matter of fact, does depend

particularly on time and sequence. So there was

very pertinent evidence from a clinical

psychologist as to exactly what the applicant's

disability amounted to and, as I say, that was

unchallenged.

As to the question of whether there were

leading questions or not, the objection	was taken
to what begins at page 22B of the appeal	book.
There is the question:

Were you afraid that the girl would tell on you?

It is notable that that question had not been

raised by the accused; that was raised by the

interviewing detective. There is a response,

"Yeah", and then if one goes on to the foot of page

23, the proposition is put:

Well how were you going to stop the girl from telling on you? What was what were the

options, how could you stop her from telling

on you?

There is an answer given:

Well if she did tell on me I would just take

off. Go away for a while, go and see a

psychiatrist or a doctor, tell him my

problems.

All right.

Then give myself up to the police.

All right -

The proposition which was raised is simply then

dropped, but it is brought up again at the top of

page 33 of the appeal book:

Maybe I've misled you. Let me get go back

through this slowly so I don't confuse you. Then there is a proposition put and an answer

given. There is a whole series of propositions,

and finally at page 41B of the appeal book:

No. Well just to sum this up, if you don't

agree you just say so.

There is a long discourse followed by a

monosyllabic "Yeah" in response. It was suggested

15/10/92

in the Court of Criminal Appeal that there were not

indeed many leading questions. Perhaps I could

read the passage quoted by His Honour

Mr Justice Ipp in relation to that matter. That is

at page 214B of the appeal book where His Honour

said:

Some of the answers given by the applicant in the disputed portion of the video were not in

response to leading questions. The following

falls into this category -

and he gives on that page and the following page a

portion - if I could take Your Honours to page 215,

there is there what is described as the second

question, but it really would be most unfair to

call it a question. That is the question

beginning:

Well I'll ask it another way because it is

important.

In fact, if one examines that question at 215A to

C, it would seem to consist of firstly, a

statement, then an opinion of the interviewer, then

three questions, then a proposition, then a further

statement and finally a question. Really, it might

be challenging to an adult to cope with a question

of that nature, if it is indeed a question, but on

any view, we would say with respect to His Honour,

that that could only be seen as leading as a series

of questions interpolating propositions and

statements.

If, for example, it had been met - it has not
been met by a simple monosyllabic answer - but one

would wonder what the answer was to, because there

is simply so much content in it. Indeed, one would

wonder that an ordinary intelligent adult might

have some difficulty in dealing with that type of

questioning, far less the applicant.

BRENNAN J:  But what is. it that makes this unfair in the

relevant sense, that is, unfair to admit it, as

distinct from the unfairness that there might be,

if one were to attribute absolute weight to every

word that is spoken? The statement is found to be

voluntary.

MR DEMPSTER:  I can appreciate Your Honour's point. There

is really a narrow test and a broader test. For

example, one might say that if the question, albeit
objectionable, was met by a non-incriminative

answer, that there was no damage done. Clearly one

would meet that usually in the appellate situation
where one would ask the question: is there a

miscarriage of justice? But we would say it is a

9   15/10/92

broader test than that narrow test, because the

broad test is fairness to an accused. One has to

look at it, we would say, in a stricter sense.

BRENNAN J: Fairness to the accused in admitting against him

a statement made by him voluntarily, understanding

that once admitted, the question of weight falls

for separate consideration. That is the problem

that you have to face, is it not?

MR DEMPSTER:  Yes, I understand exactly Your Honour's point.

That is exactly the question.

BRENNAN J:  I think we understood your point, too, and that

is that as I understand it, what you are saying is

that here you have a person of limited intellectual

capacity who is being interviewed by

police - gently it may be, but none the less in a

way which makes it difficult for him to give

responsive answers or meaningful responsive

answers. That is your proposition, is it not?

MR DEMPSTER: Yes. It is always a difficult question; it

is always a balancing exercise. It is a matter of

discretion as such, but there is a paucity of law,

we would say, in this particular field in relation

to the question of leading questions. Thank you.

BRENNAN J:	We need not trouble you, Mr Robbins.
MR ROBBINS:	May it please the Court.
BRENNAN J:	The applicant was convicted in the Children's

Court of Western Australia on charges of aggravated

sexual assault and murder. He applied for leave to

appeal only against his conviction for murder.	The
Court of Criminal Appeal granted him leave to
appeal but dismissed his appeal.

In the Children's Court, the trial judge sat

without a jury. He gave reasons for finding the

applicant guilty of both offences. There were two

confessional videos, both of which were admitted in

evidence following a voir dire, at the end of which

the trial judge held that the statements made

during the interviews were voluntary and that he

would not exercise his discretion to exclude them.

Before the Court of Criminal Appeal, the

applicant abandoned any complaint about one of

those videos. The only ground of appeal argued on

the application to this Court is that the trial

judge erred in admitting into evidence the other

confessional video.	The transcript of the
interview objected to is 46 pages long.	No
objection was taken to the first 21 pages.

B 10 15/10/92

The complaint made to the Court of Criminal

Appeal was not that the trial judge erred in

holding that the statements were made voluntarily

or that he had applied wrong principles or that he

had misdirected himself in respect of those

principles. It was not argued that the trial judge

had failed to apply his mind to the fact that the

applicant was intellectually disabled or that he

was asked some leading questions.

As Ipp J, who wrote the leading judgment,

observed: "The sole basis of the first ground was

the argument that the learned trial judge failed to
give sufficient weight to the intellectual

disability and the asking of leading questions."

The applicant's argument here is misconceived

so far as it attacks the trial judge's decision to

admit B's confessional statements. The argument

attributes to the trial judge a failure to take

account of the relevant circumstances, in

particular the form of the questioning of the

applicant. We are unable to accept the proposition

that His Honour failed to consider whether it was unfair to admit the confession in evidence. That

was the material question for his consideration.

As the applicant has not made good the ground

on which the application is made to rest, the

application will be refused.

AT 2.30 PM THE MATTER WAS ADJOURNED SINE DIE

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