Carr v State of Western Australia

[2007] HCATrans 143

[2007] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P34 of 2006

B e t w e e n -

MICHAEL JOHN CARR

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 20 APRIL 2007 AT 10.02 AM

Copyright in the High Court of Australia

MR N.J. MULLANY:   Your Honours, with MS L.M. TIMPANO, I appear for the appellant.  (instructed by D.G. Price & Co)

MR S. VANDONGEN:   If your Honours please, with my learned friend, MR T.B.L. SCUTT, I represent the respondent.  (instructed by Director of Public Prosecutions (WA))

GLEESON CJ:   Yes, Mr Mullany.

MR MULLANY: Your Honours will find section 570D which appears in Chapter LXA of the Criminal Code at tab 10 of your booklets. That copy is from Reprint 10 as the Code stood at the material time. Section 570D(2)(a) which your Honours find at page 135 of the tab provides that:

On the trial of an accused person for a serious offence, evidence of any admission . . . shall not be admissible unless –

there is a videotape recording of the admission.

GLEESON CJ:   You are applying to amend your notice of appeal, are you not?

MR MULLANY:   Yes, I am, your Honour.

GLEESON CJ:   Is that opposed, Mr Vandongen?

MR VANDONGEN:   No, it is not, your Honours.  The respondent also seeks leave to file a notice of contention.

GLEESON CJ:   Is that opposed, Mr Mullany?

MR MULLANY:   No, your Honour.

GLEESON CJ:   Very well, you both have that leave.

HEYDON J:   That notice of appeal asks for an order for a new trial.  Is that what you want?

MR MULLANY:   Yes, it does, your Honour.

HEYDON J:   Yet you say several times in your submissions that but for this confession, there could not possibly have been conviction.

MR MULLANY:   Your Honours, we have considered that.  The position that we took ultimately is that it would be a matter for the Crown in the expectation ‑ ‑ ‑

KIRBY J:   I am not hearing you.  You will have to speak up.

MR MULLANY:   I am sorry, your Honour.  We have considered that.  The position we took was that that would ultimately be a matter for the Crown.  If we thought that there was any prospect of a retrial, we would then seek an order that there be no retrial.

HEYDON J:   Seek an order from whom?

MR MULLANY:   From you, your Honour, but, given that you did not ‑ ‑ ‑

HEYDON J:   We do not like particularly dealing with cases more often than we have to.  We are all here on this occasion.  Should it not all be tidied up on this occasion?

MR MULLANY:   Yes, your Honour.  We would have sought an order to that effect but for the fact that we thought that it would be best left to the Crown to ultimately decide whether or not to institute a further trial.  If we need to make a second order that varies the current order we seek, we will do so.

KIRBY J:   A technical question:  a new Act has been enacted apparently to govern recording and refers to an audiovisual recording.  Was the actual recording in the police lockup a video recording or was it an audiovisual recording?  Was it on tape?

MR MULLANY:   Yes, your Honour.  It was a recording which depicts both a picture and a sound.

KIRBY J:   I realise it gave a picture, but the question is, was it a videotape?

MR MULLANY: That is my understanding, your Honour, not for the purposes of the section but in common parlance, yes. Your Honours, there are two exceptions to the prohibition which are contained in 570D(2) neither of which, the appellant submits, is attractive in this case. The first exception appears at section 570D(2)(b):

the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission –

Our learned friends place no reliance upon that provision.  The second exception appears at subsection (c) of ‑ ‑ ‑

GUMMOW J:   I am not deaf, Mr Mullany, but you will still have to speak up.

MR MULLANY: I am sorry, your Honour. The second exception appears at section 570D(2)(c):

the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

Our learned friends have a notice directed to that.

GLEESON CJ:   Mr Mullany, can I ask you a question about a matter that seems to be common ground.  The point of your amendment to the notice of appeal obviously was that you recognised the fact that section 570D does not make evidence admissible, it just makes it inadmissible in certain circumstances, but is it the only possible ground of inadmissibility that is relevant to the decision in this case?  You heard us yesterday hearing a case about Swaffield and Pavic and general considerations of fairness.  I take it, from the absence of any reference to that in the Supreme Court of Western Australia or in the submissions of parties, that no other ground of potential inadmissibility other than that created by section 570D is said to be relevant.

MR MULLANY:   That is the position that we advance in this Court, your Honour, yes.  The expression “reasonable excuse” used in 570D(2)(b) is the subject of further amplification in D(4).  That subsection provides that:

For the purposes of subsection (2), “reasonable excuse” includes the following –

(a)The admission was made when it was not practicable to videotape it.

(b)The equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person.

(c)The accused person did not consent to the interview being videotaped.

(d)The equipment used to videotape the interview malfunctioned.

It is the appellant’s contention that the reference to the concept of “consent” in that subparagraph is instructive in relation to the way that the subsection operates.  I will develop that submission in due course, but before I do, can I direct your Honours to subsection D(3) which provides that:

Subsection (2) does not appellant to an admission by an accused person made before there were reasonable grounds to suspect that he or she had committed the offence.

It is accepted that at the material time there were reasonable grounds to suspect that the appellant had committed the offence in question, namely the armed robbery of the South Perth branch of the Commonwealth Bank.  In relation to that can I ask your Honours just to note AB 71 at line 38.

Your Honours, can I turn to the relevant definitions.  They have been set out in our submissions at 24 to 27.  “Interview”, a concept integral to the arguments thought to be agitated by the appellant, is unhelpfully defined in section 570(1) to mean relevantly an interview with a suspect by a member of the police force.  “Interview” is a concept which appears in the heading of Chapter LXA, “Videotaped Interviews”, but it appears for the first time in subsection D(4).  “Suspect” is defined in 570(1) to mean “a person suspected of having committed an offence”.  It is accepted by the respondent that at the material time the appellant was a suspect.

“Admission” is defined in 570D(1), which your Honours find at page 134 to mean:

an admission made by a suspect to a member of the Police Force . . . whether the admission is by spoken words or by acts or otherwise -

It is clear that the words “interview” and “admission” are not used interchangeably in Chapter LXA and that they are recognised as separate and distinct concepts and defined as such.  Admissions can be made other than in the course of an interview and they were not made in that setting for reasons I will develop in due course.  “Serious offence” is defined in D(1) to mean, relevantly:

an indictable offence of such a nature that, if a person over the age of 18 years is charged with it, it can not be dealt with summarily -

There is no question that the offence in question falls within that. The statutory precondition for the admissibility of admissions made by suspects is set out in section 570D(2)(a). It is this:

the evidence is a videotape on which is a recording of the admission -

That precondition to admissibility directs attention to the definition of “videotape”.  That term is defined in section 571, page 132 of your booklet, to mean:

any videotape on which is recorded an interview, whether or not it is the videotape on which the interview was originally recorded.

KIRBY J:   Where do we find 570(1)?

MR MULLANY:   Page 132 of the booklet, your Honour, at tab 10, 570(1).  It is clear therefore, your Honours, that in order to be evidence for the purposes of D(2)(a) the videotape must be a videotape as defined, that is, a videotape on which is recorded an interview with a suspect which recorded interview contains an admission made by the suspect.  It is our submission that there was no such admissible evidence here.

KIRBY J:   What do you say - “interview” is defined, but only by reference to its own terms ‑ ‑ ‑

MR MULLANY:   Unhelpfully, your Honour.

KIRBY J:   What do you say is the meaning of “interview” in this context?  First of all, what is the general meaning of “interview”?  I notice we have had the usual Oxford Dictionary put to us, but the respondent says that the idea of formal component has gone out of the meaning.  The Macquarie Dictionary, Federation edition, does seem to continue with the idea of formality.  Its primary meaning is:

a meeting of persons face to face, especially for formal conference in business, etc., or for radio and television entertainment, etc.

MR MULLANY:   Your Honour, I will develop what we say is inherent in the concept of “interview” a little more fully, but can I answer your Honour directly by saying that, in our submission, the concept of “interview” carries with it a concept of formality directed to the formal interrogation of suspects, investigation of criminal activity and, critically, we say, for the purposes of Chapter LXA it requires an appreciation on the part of the suspect, the interviewee, of two matters:  firstly, that the conversation between them is being recorded and, secondly, that what is said by him or her on the videotape might be used as evidence against him or her in court.

GLEESON CJ:   This Court actually had to decide in Nicholls and Coates the meaning of the word “interview”.  That was a majority decision in relation to that aspect of the case, but what was actually decided in Nicholls and Coates was that on an occasion when a person said “Stop the cameras, I’ve got something to say to you but I’m not prepared to say it while that camera is still on”, that was an interview.

MR MULLANY:   The central question in Nicholls’ Case, your Honour, was the question whether or not “reasonable excuse” within subsection (b) could be made out.

GLEESON CJ:   Yes, but the Court, in order to decide that case, had to decide what the meaning of the word “interview” was.

MR MULLANY:   That is so, your Honour, and what had happened in that case was that there were submissions directed to apply a temporal restriction, if you like, to that concept.  We do not seek to do that.  What we seek to do is to apply another limitation directed to the knowledge on the part of the interviewee.  The issue that we seek to ventilate was not the subject of debate or, in our submission, a ruling by this Court in Nicholls’ Case.

Your Honours will have noted, and I will take you to it in just a moment, that the basis of the decision below was the judgment of Justice McHugh in Nicholls’ Case where his Honour rejected a submission advanced on behalf of the appellant below that the interview had come to an end.  It was the opinion of Justice Buss, with whom the President and Justice Steytler agreed, that the form of the submission advanced was not open to the appellant in the light of that ruling.

GLEESON CJ:   It would be in the light of the majority decision in Nicholls, not in the light of what Justice McHugh said alone, because what the majority held in Nicholls was that there was an interview going on even though the accused person, the suspect, had said “Stop the cameras, I’ve got something I’m prepared to say to you, but not on camera”.

MR MULLANY:   That is so, your Honour, and the majority found that the interview had been suspended, as opposed to concluded.  Justice McHugh and Justice ‑ ‑ ‑

GLEESON CJ:   But the majority found the interview was continuing.

MR MULLANY:   The other way round, I am sorry.  Your Honour is quite right.

KIRBY J:   The problem with giving a narrow meaning to “interview” is that it allows those who are doing the interviewing to say, “We’re not going to do this now formally.  We’re going to just have a little chat”.

MR MULLANY:   That is so, your Honour.

KIRBY J:   If you allow that, then you walk out of the statute, whereas if you take a broad view, as Justice Buss was inclined to do, you embrace all interchange between police and suspect in a dialogue form that thereby really addresses the mischief for which this particular legislation was directed.  In that sense, the word “interview” has a particular meaning in the context of this type of legislation.

MR MULLANY:   We accept that, your Honour, and there are two responses to what your Honour has put to me.  That directs attention to the purpose and objective of the legislation to which I will turn in just a moment, but it also requires the Court to direct attention quite obviously to the exact language adopted by the West Australian Parliament to remedy the problems associated with the interview process.

The West Australian Parliament adopted a strategy which differs significantly, in our respectful submission, from that adopted in other jurisdictions, most notably South Australia, to which I will turn in a moment, Tasmania and some others.  We are a unique statute.  We are the only statute which uses the term “interview” in the form that it is used in Chapter LXA and, in our respectful submission, it makes all the difference.  Situations like the one that arose here fall through the legislative strategy.  I will develop why I say that more fully.

CRENNAN J:   When you say “interview” carries with it a suggestion of formality, how are using formality?  How is that to be used to distinguish one conversation between a police officer and a suspect and another?

MR MULLANY:   Your Honour, we say that the element of formality here is not found in the fact that an officer is interviewing a suspect.  We say that for the purposes of LXA where the consent of the suspect to videotaping is required, that the element of formality is found in the appreciation by the interviewee of the two matters that I have referred to:  firstly, that he or she knows that it is being recorded and, secondly, that he or she knows that it might be used against him or her later.  We use it in the sense that Justice Wright used it in McKenzie’s Case, case 6 in your booklet.  It is a formal, unhurried interrogation procedure directed to the investigation of crime, as opposed to a chat, informal banter, talk carried out in an atmosphere of informality, which is what occurred in the lockup.

KIRBY J:   The problem with that theory is that it really does undermine, as it seems to me, the purpose, which is effectively to interview all dialogue between police and suspect that may subsequently come to be used in a trial and thereby to avoid the difficulties that have appeared before the sound recording systems were introduced of juries resolving an accusation by the police that things were said and the denial by the accused.

MR MULLANY:   It depends, your Honour, with respect, on how one views the purpose and object of legislation of this particular type.  It is our submission that there was a broader imperative here.  I will explain that a little more, but in a nutshell the broader imperative was to ensure a formality of process, an integrity of process, throughout the interviewing period rather than a measure directed exclusively to deal with the police “verbal”.  I will develop that in a moment.

Secondly, your Honour, can I say this. As this Court said in Kelly at 51, one has to direct attention to the actual wording of the statute and interpret it with a view to how that particular State or Territory went about combating the problems associated with the interview process.  Now, we – that is, the West Australian legislature – took a very different approach.  I will take your Honours to it in a just moment, but can I offer this one comparative example.  In South Australia, the concept of interview was used, and perhaps with the concern that your Honour Justice Kirby has identified, the South Australian legislature defined “interview” in a way which does not accord with the ordinary, natural meaning.  Perhaps I can go to it immediately.

KIRBY J:   Does or does not accord?

MR MULLANY:   It does not accord, your Honour, with a view to picking up all of the interaction between police and suspect that your Honour Justice Kirby alludes to.  We have provided a copy of that for your Honours.  You will find it at tab 11 of your booklet and specifically page 143.  Your Honours see at 74C an option that attracted the South Australian legislature, but did not attract the West Australian legislature.  An interview there is defined as broadly as one can possibly define it to include:

(a)      a conversation; or

(b)      part of a conversation; or

(c)      a series of conversations -

Now, there has been some discussion of that and how that takes it outside of the ordinary and natural meaning of the word and we have referred to that, your Honour, in our written submissions at paragraph 52.

KIRBY J:   When was the South Australian provision enacted in relation to the enactment of the West Australian?

MR MULLANY:   The West Australian legislature came in in 1992 and it is my understanding that the Summary Offences Act came in in 1953.

GLEESON CJ:   There is one other notable difference - I am not sure whether it helps you or hurts you - but a notable difference between the South Australian legislation and the Western Australian legislation and it follows from section 74D of the South Australian legislation.  Section 74D is what might be described as a code of police procedure regarding interrogation of suspects.  Section 570D is no such thing.  It is a provision that deals with the admissibility of evidence.

As was pointed out in argument yesterday, it would be a very naïve person who would think that the only harmful consequences that might flow from making an admission to a policeman is that the admission may be used in evidence against you.  So that whatever effect this might have for the outcome of the present case, the section with which we are concerned in Western Australia is a section that says that in certain circumstances evidence is inadmissible, whereas the South Australian section is a law that lays down some requirements that police officers have to follow.

MR MULLANY:   That is right, your Honour.  I think that it helps us, with respect.  The argument that we advance ‑ ‑ ‑

GUMMOW J:   You have to look at 74E as well, have you not?

MR MULLANY:   Yes, your Honour.

GUMMOW J:   And 74G.  Is there such a provision?  Is that found in your State’s statute?

MR MULLANY:   It is not, your Honour, no.  Although can I direct your Honour to the new statute, the one that is not yet in operation, and section 155 which your Honours find at tab 14 and specifically, your Honour, page 172.  That is a new provision.

GLEESON CJ:   Section 154, is it?

MR MULLANY:   Section 155, your Honour. 

GUMMOW J:   Under the present system, the system that operated with this case, what would happen if the interviewee was threatened with violence?

MR MULLANY:   It does not exclude the operation of the common law, your Honour.

GUMMOW J:   There is not an evidence Code in your State?

MR MULLANY:   No, that is right, your Honour.

GLEESON CJ:   Why do not general principles of fairness come into play?

MR MULLANY:   They do come into play, your Honour.  If I have misled you inadvertently, can I clarify what I mean.  They do not in terms of the argument we seek to agitate.  If your Honours are not persuaded that this conversation was inadmissible by force of statute, then the appeal must fail.  Before the Court of Appeal there were arguments run dealing with unfairness and public policy.  There was also what was described as a voluntariness argument run.  Those arguments were defeated and no application for special leave in relation to any of those grounds was sought.  But, your Honour, as a general proposition the questions of fairness and public policy that might apply in a uniform Code State, uniform evidence State, would apply if one were running a slightly different argument.  We are not doing that here.

GLEESON CJ:   How does the proposed new legislation deal with the situation that we are concerned about?

MR MULLANY:   Well, your Honour, it is interesting because the concept of consent, the second limb of our argument, if you like, is retained.  Can I show you where that occurs.

KIRBY J:   I just do not understand, and I say it to you as I said it yesterday to Mr Odgers, why you have thrown only one of your weapons against the enemy.

MR MULLANY:   Your Honour, we threw a lot of weapons against the enemy and they all failed to hit the mark.

KIRBY J:   I realise that and I realise you have to show discernment and you have to get special leave and it has to have a clear point and so on, but there is just an element of artificiality, as I felt yesterday, in dealing with this with only half of the statutory provisions that are applicable.

MR MULLANY:   No, with respect, your Honour.

KIRBY J:   Or half of the provisions of the law that are applicable.

MR MULLANY:   Your Honour has all the provisions that are relevant.  What your Honour is not asked to engage is the application of any common law principle for the reasons I have explained.  To return to the question your Honour the Chief Justice asked me, at 167 of the booklet your Honour sees 118 and at subsection (3) your Honours find the equivalent of 570D and what your Honour will immediately note is that “videotape” has been replaced by “audiovisual”, an inconsequential amendment really.

KIRBY J:   That is purely a technological change.

MR MULLANY:   Yes, but the important point, your Honour, to note is found in the definition of “reasonable excuse” and there are two things to note about it:  (c) retains the concept of consent.

GUMMOW J:   What are you reading from?

MR MULLANY:   I am sorry, your Honour.  I am reading from the new Act.

GUMMOW J:   Yes.

MR MULLANY:   Section 168, which is part of the definition, the top of it, is part of the definition of “reasonable excuse”.  So if your Honour turns to 168, the first paragraph begins (b).  That corresponds to 570D(4).

GUMMOW J:   Yes, thank you.

MR MULLANY:   At (c), your Honours will note the retention of the concept of “consent.”  The second point to note is that the word “interview” has been removed.  The word “admission” replaces it.  Now, that, in our submission, is significant.  We have looked at the parliamentary material dealing with the new Act to see if any indication has been given as to why that occurred.  We can tell your Honours that there is no such indication. 

What we submit is that there has been an amendment for a reason and it may be the reason that your Honour Justice Kirby alluded to earlier.  It may be that it was thought that the way that the Act had been structured to encapsulate interview created a difficulty in the types of circumstances that we are confronted with, and that having regard to a broad imperative to preserve the integrity of the interview process, it was thought that language of a wider nature was required.

GLEESON CJ:   The word “interview” certainly created the difficulty that divided the Court in Nicholls and Coates.

MR MULLANY:   Yes, your Honour.

GLEESON CJ:   Because the statute in the form with which we are concerned just does not expressly deal with the situation of somebody who says, “Hang on a moment.  I am prepared to talk to you about that subject, but not on record.”

MR MULLANY:   That is so, your Honour.  We have a different problem, one that did not surface in Nicholls.  We have a situation where a fellow is brought into a police station on suspicion of a serious offence.  He is taken to a formal interview room.  He is cautioned a number of times.  He tells the police on 12 occasions that he does not want to continue to answer questions until he consults with a lawyer or has a lawyer present.  He does, it is true, continue to speak, those statements notwithstanding, but eventually it gets to the point where the interview is finalised.  There can be no doubt about that.

Your Honours, in relation to that, can we hand to your Honour an aide‑mémoire produced with the consent of our learned friends which contains what appears on the video record of interview, and particularly how the interview ended.  Can I hand up seven copies for your Honours.  Can I direct your Honours’ attention to page 13 where Shillingford and Richards, the interviewers, wrapped it up.  Richards say:

Thanks, Michael, for your time in answering your questions.

Then there are some formal questions that are asked.  About three‑quarters of the way down your Honours see that one of the interviewers says:

Well, if that’s the case, um, we’re going to finish the video.  We’ve obviously got inquiries that still need to be completed.

A.       Yes.

Q.       Um - - if any charges happen further on down the track . . . 

Q.       - - a copy of this tape and the tape that was -  - the interview that was done at the scene at the search warrant will be made available to your or your solicitor.  Contact your solicitor, they’ll need to contact us and we can provide one for you.

A.All right then.  No worries.

Q.       Okay.  If that’s all we’ve got to talk about we’ll stop the video now.  It’s, by my watch, 7.29 pm.

So there can be no doubt that the interview came to an end.  Having been told that they were through with him and all that remained to be done with Mr Carr was to process him without charge – more about that in just a moment – a third discussion ensues in another part of the station, the lockup, within about 14 to 18 minutes of the conclusion of the formal video interview.

CRENNAN J:   Was the recording equipment in the lockup section permanent?

MR MULLANY:   Yes, it was, your Honour.

CRENNAN J:   Was it visible?

MR MULLANY:   There is some debate about that.  Can I answer your Honour by directing you to paragraph 41 of our submissions.  It was recorded by a surveillance video.  The surveillance video and the microphones were permanent fixtures and they were not concealed.  To answer your Honour Justice Crennan’s inquiry, there is some uncertainty as to the extent to which they were visible and, importantly, discernible by the appellant.  Your Honours can see the evidence that was given in relation to that and what Justice Wheeler said on the voir dire at footnote 22.  What is clear, your Honours, is that the appellant was ignorant of the fact that he was being recorded.  Of that there is no doubt.  That was accepted below and that was the way the case was presented at every level.  We have the relevant references in relation to that in our submissions.

Having told him that they were through with him, that the formal video interview had ended, another discussion ensues in another part of the station within 14 to 18 minutes in circumstances where the officers knew, because he told them 12 times he did not want to speak to them any more, that he was not prepared to continue to answer their questions, that he was ignorant of the recording equipment and that if he had known about it, he would not have continued to speak to them.  At no time during the lockup conversation did the officers caution him again, remind him that he was being videotaped and, critically, remind him that what he said was liable to be used against him in the future.

To return to your Honour Justice Crennan’s inquiry, the relevant references to the question of the knowledge of the appellant of the setup in the lockup are found at 37 of our submissions.  To those there can I ask your Honours also to note the finding of Justice Buss at paragraph 16 of his reasons which your Honours find at AB 249.

Before I go on, can I perhaps direct your Honours’ attention to the errors that we contend were committed below and the statements that we actually challenge.  Your Honours find those set out at 21 of our submissions and they appear at 270 to 271 of the appeal book.  At paragraph 38 of his reasons for decision Justice Buss says this:

The legislative purpose in enacting s 570D was to prohibit, subject to the exceptions in pars (a), (b) and (c) of s 570D(2), the reception at trial of unrecorded admissions by an accused to the police. It is necessary, in order to promote this purpose, that “interview” be construed broadly. An “interview” is not confined to a formal interrogation.

We challenge that statement.  His Honour continues:

In my opinion, “interview”, within the definition of “videotape” and in the context of par (b) of s 570D(2), means any conversation between a member of the Police Force and an accused person in relation to an alleged offence. It includes an informal conversation initiated by the accused person.

We challenge those statements.  Can I say this.  It is there that his Honour interprets the West Australian statute, in effect, as if it had been defined in the way it has been, that is “interview”, in South Australia.  I will say more about that in just a moment.  At paragraph 39 his Honour quotes from your Honour the Chief Justice in your Honour’s reasons for decision in Nicholls v The Queen at 9 where your Honour said this:

Section 570D(4)(c) assumes that the consent of a suspected person is necessary if the police are to videotape an interview.

Of those comments his Honour said this.

GLEESON CJ:   The next sentence may be important also, “That assumption was not challenged”.

MR MULLANY:   That is true, your Honour.

GLEESON CJ:   The assumption may be contestable.  What if it is wrong?

MR MULLANY:   I will hope to persuade your Honour that it is not wrong, but of even more importance ‑ ‑ ‑

GLEESON CJ:   No, the assumption.  The legislature has said not that refusal to consent to an interview may be an excuse for not having a tape recording of it.  The legislature had said unconditionally that refusal to consent is an excuse for not having a tape recording of it.  That appears to assume, as it seems to me – that appears that Parliament assumed that consent was necessary.  If it were otherwise, why would absence of consent always be an excuse?

MR MULLANY:   We agree, your Honour.  The critical point, of course, is what is the significance of that?  Justice Buss says of those comments:

If, with great respect, s 570D(4)(c) makes that assumption (an issue which is not referred to in the other judgments in Nicholls –

Can I pause there, your Honour, and make this observation about that.  There is a reason for that.  In Nicholls the Crown conceded on two occasions that that assumption was correct and, importantly, also conceded that not only does 570D operate on the assumption that the consent of the interviewee is critical, but also that the failure to obtain it is fatal to the attempt to tender.  His Honour Justice Buss goes on:

s 570D does not prohibit the reception at trial of admissions by an accused person which are recorded on videotape in circumstances where the accused did not know that the admissions were being recorded, and therefore was not given the opportunity to consent or refuse to consent to the interview being videotaped.

HEYDON J:   Can I just ask you to go back.  Justice Buss says that the issue “does not require resolution in this appeal”.  You have two arguments, one based on media interview and the other one based on the necessity for consent.  Does that mean the second argument was not put to the Court of Appeal?

MR MULLANY:   That is so, your Honour.  In relation to the last statement of Justice Buss, we disagree, respectfully, and we say that the section does operate in that manner.

GLEESON CJ:   It is not easy to understand why consent is always a reasonable excuse if it is not necessary.

MR MULLANY:   Precisely, your Honour, with respect.

GLEESON CJ:   If you could say to the suspect, “Listen, I don’t care whether you consent or not, we’re going to record this interview”, in this respect – and again I do not know whether this helps you or hurts you – the legislation is different from the New South Wales legislation that arose incidentally in argument yesterday where the reasonable excuse is a reasonable excuse as to why a tape recording could not be made and one of the reasonable excuses as to why a tape recording could not be made is the refusal of the person being questioned to have the questioning electronically recorded.  In other words, in the New South Wales legislation the reasonable excuse turns upon confronting the accused person with the option.

MR MULLANY:   Yes, your Honour.  We agree with those observations and your Honour will not be surprised to hear me say that we think they help us again.  We have got a very unique piece of legislation and it may be that some might think that the legislation should have gone further having regard to what we characterise as a broad imperative to preserve the integrity of the process, but the fact of the matter is that it did not.  It did a number of things which were unique to that particular State ; the use of the concept of “interview” in the way that has been used, the incorporation of the concept of “consent” in the way that your Honour the Chief Justice has just explained, not mirrored in any other State or Territory in the land. 

KIRBY J:   Have you given us all of the other State and Territory provisions?

MR MULLANY:   No, your Honour, we have not, and the reason we have not done that is for the reasons I have just ventilated.  What we have done is give your Honours the South Australian and the Tasmanian provisions, both repealed and in force in Tasmania, to highlight the difference in the legislation in the terms that I have just explained.

KIRBY J:   It is just that as you sit here you become a bit suspicious in your old age.

MR MULLANY:   I hope your Honour trusts me.  There is nothing, in our respectful submission, other than to emphasise the points I have already made in relation to South Australia that will help your Honours, in any of the other legislation.

KIRBY J:   Very unlikely that that South Australian legislation was enacted in 1953 as you suggested.  That is the date of the Act.  It would have been inserted in the Act in the 1980s probably, or 90s.

MR MULLANY:   We will check that, your Honour.  Our learned friends suggest that the element of formality in the concept of “interview” if it needs to be there or if it is there – they submit that it is not – but if it is, they say, it is found in the mere fact that there has been some interaction between officer and suspect.  On that theory, your Honours, any kind of chit chat between the appellant and Officers Richards and Shillingford during the smoko breaks that occurred between the video record of interview and the lock up conversation would be included.

KIRBY J:   That is a dreadful interpretation to adopt.  It means that they will say, “All right, look, we’ll switch off the videotape now and just have a little talk.  We’ll go out to a park and have a little talk.”

MR MULLANY:   Well, indeed, and that is exactly what happened.  It was put to the officers at trial that during the smoko break details of the offences were revealed to the appellant.  You find that at footnote ‑ ‑ ‑

KIRBY J:   Yes, but revealed by your client and recorded and objectively recorded for the jury to see.

MR MULLANY:   No, your Honour.  Your Honour and I, I think, are at cross-purposes.  There were a number of conversations.  Between the formal video record of interview, which ended at 7.26 or 7.29 depending upon who you listen to, and the recorded conversation in the lock up, the subject of contention there was another conversation.  I told your Honours that the gap between those two conversations was 14 to 18 minutes.  In that period there was another conversation during a smoko break where there was no recording and no notes taken and a chit chat and what occurred during that conversation was the subject of much dispute. 

It was put to the officers – and you find where that was done at footnote 17 of our submissions – that the officers revealed to him elements of the offence during that conversation and that was part of the explanation he gave for why he said some of the things that he said in the lock up conversation.  He said he became possessed of certain information from three sources: one, photographs that were revealed to him during the formal video interview; two, details revealed to him during the course of the smoko break; and, three, reports of it in the media.

CRENNAN J:   That was his explanation when he went into evidence to explain the verisimilitude in the interview.

MR MULLANY:   That is right, your Honour.  That is so.  There were some discrepancies, and I will say a little bit about that when we get to reliability in the context of the notice of contention.

HEYDON J:   I am not clear about the point of this submission.  I mean you have two points.  One might call them technical.  One might call them points of construction.  You are now attempting to demonstrate that what was actually recorded by the equipment was unreliable in the sense that they were untrue statements by the accused.  That is irrelevant to any of your arguments, is it not?

MR MULLANY:   It is, your Honour, and I am not doing that.  The reason I am here is as a response to Justice Kirby’s observation about the way one ought to interpret the word “interview,” and my submission to the Court is that if my learned friend’s contention is correct, namely that any required element of formality in the concept of interview is found in the mere fact that there is a conversation between police officer and suspect is correct, that would mean that any kind of informal chitchat conducted between officer and suspect, banter if you like, would be encapsulated within the concept of interview.  In our respectful submission, that is not so.

HEYDON J:   That point has nothing to do though with whether or not the knowledge he was revealing at this time was, at it were, esoteric to him or whether it had been already suggested to him by the police.

MR MULLANY:   I agree with your Honour.

HEYDON J:   In that case, why are we talking about it?

MR MULLANY:   I will cease talking about it, your Honour.  The attitude of the officers to what occurred outside the realms of formality is perhaps reflected at AB 78 to 79, which I will not take your Honours to but ask your Honours to note.  Can I direct your Honours’ attention to what Justice Wright said in relation to the context of the former Tasmanian provision which contained the words “official questioning”.  Your Honours find that – I will not take you to it – at tab 6 of our booklet.  The paragraph that I direct your Honours’ attention to is 14, and his Honour compares the use of the expression “official questioning” in that legislation with “interview.”  He says they cannot be the same thing.  He says:

It is interesting to note that “interview” seems to be used in contradistinction to the words “official questioning” which appear as part of the definition of “confession or admission” used in s8(1).  The words “official questioning” are not then used again in the section.  The very requirement that the “interview” must be videotaped tends to confirm that it is a formal, unhurried interrogation procedure, conducted in circumstances in which electronic recording aids are likely to be available, which is the real target of s8.

That is an approach we respectfully adopt – “a formal, unhurried interrogation procedure”.  What we submit is that Justice Buss has characterised the term “interview” in 570D as if it were conversation, a term he uses twice in paragraph 38.  It is that approach, an erroneous approach in our respectful submission, that Justice Wheeler also adopted on the voir dire.  Can I take your Honours to that which your Honours find at AB 25.  At about line 50 her Honour says this:

It is of course conceivable that there may be videotaped conversations which for one reason or another don’t satisfy the definition of interview, but the statutory scheme seems to suggest that what is contemplated is a relatively loose understanding of an interview for that purpose, something, effectively a conversation which results in a videotape.

We would respectfully disagree.  Over the page her Honour continues that theme.  It is a long sentence but I will pick it up from the first word of the following page:

fabrications what had been said by them to police officers, so that the mischief at which it was aimed was, it seemed to me, any conversation between police officers and a suspect which could result in an admission, and I for my part would read the reference to an interview with that beneficial purpose in mind.

The difficulty, your Honours, is that that is not the approach that the West Australian legislature elected to adopt.

GLEESON CJ:   I think we had better get clear the sequence of the Western Australian and South Australian legislation.

MR MULLANY:   We will deal with that, your Honour.

GLEESON CJ:   For that matter, as I sit here I do not know the date of the legislation that is in the Criminal Procedure Act 1986 (NSW), but I think it may well have been inserted into the Criminal Procedure Act 1986 at some later time.

MR MULLANY:   We have those dates, your Honour, and we will just retrieve them for you.  In relation to South Australia, can I also refer your Honours to the matter of Nayda, case 7 on our list, because it directs attention to the observation your Honour Justice Kirby put to me earlier.  Page 49 of the booklet is the page I wish to direct your Honours’ attention to.  Judge Lunn says at about 28:

It is also notorious that some instances of police “verballing” have occurred not in formal interviews, but in alleged informal discussions between police and defendants.  In seeking to set up a procedure through s74D which would provide a means to establish readily whether a defendant had made an admission to police it was likely that Parliament would have intended these procedures to cover admissions made outside of formal interrogation, and within general discussions.

That is exactly what they did in South Australia by defining “interview” to ensnare conversations and parts of conversations and thereby take it outside of the ordinary and natural meaning of the word.  As I have said, we did not do that.

KIRBY J:   Depending on the sequence, you might have a good technical interpretive argument here if the sequence is the Western Australian statute with “interview”, then the South Australian statute with the very broad definition of “interview”, then the amended Western Australian statute which deletes “interview”.

MR MULLANY:   We believe that is the sequence, your Honour.  We are checking it, as I have said.  The year that the West Australian provision came in was 1992 and we have the legislative history in the back end of our submissions.

HEYDON J:   Your best sequence would be South Australia first, then 1992, and you would say they would not go as far as South Australia.

MR MULLANY:   That is what I thought I had just put, your Honour, yes.

HEYDON J:   You might be right but I thought it was the other way round.  I do not see ‑ ‑ ‑

MR MULLANY:   I agree with what your Honour just put to me.

HEYDON J:   I do not think that 2006 Western Australia helps though.  Can the meaning of the statute in 1992 be controlled by what ‑ ‑ ‑

MR MULLANY:   No, it cannot, your Honour.  We have given that to your Honour for obvious reasons.  We say that the approach that was adopted below and the approach that our learned friends press is out of step with the ordinary and natural meaning of the word “interview” and that acceptance of that requires acceptance of the concept of a surreptitious or a secret interview, a concept we submit does not exist.  We submit that in order for exchanges between persons to be capable of characterisation as an interview, there has to be evident interaction of a particular kind.  There has to be, we submit, a meeting of minds so that each appreciates the purpose and the circumstances of the meeting.  In the context of Chapter LXA that requires on the part of the interviewee an appreciation of the two matters to which I have made reference.

GLEESON CJ:   If your submission about the meaning of “interview” is correct, what is the consequence in terms of admissibility in the following situation?  A person walks up to a police officer in the street and the police officer says nothing and the person says to the police officer, “I’m the culprit, I’m the person who committed that crime that you’re investigating”, and the police officer says, “Come down to the police station and assist me with my inquiries”.

MR MULLANY:   There are two reasons why that is not an interview, your Honour.  The first is that when that occurred – I should hasten to add, within the context of Chapter LXA – the person who made the statement was not a suspect.  Secondly, there was no questioning on behalf of the officer of the person who made that statement.  As we outline in 49 of our submissions, if a police officer asks no questions of a person, let it be assumed who is a suspect ‑ ‑ ‑

CRENNAN J:   What if it is a professional criminal who is under suspicion and the policeman said, “Hello, how are you today?”, then the rest followed?

MR MULLANY:   By that does your Honour mean that that particular professional criminal was a suspect for the purposes of the offence under investigation?

CRENNAN J:   Yes, in relation to which he made a voluntary admission.

MR MULLANY:   If he is a suspect for the purposes of that crime under investigation, then that box is ticked.  There would need to be an inquiry made of him by the officer for the purposes of Chapter LXA for it to be able to be characterised as an interview.

KIRBY J:   So it would get down to borderline decisions such as if the policeman said, “Hello, hello, hello, fancy seeing you here”.

MR MULLANY:   No, with respect, your Honour, because the situation that your Honour Justice Crennan has just put to me might be able to be characterised, for example, as official questioning if there were a question because, as the majority in Kelly observed, that kind of interaction can occur anywhere; a car, at the crime scene, even informally.  The critical difference between that situation and interview is that an interview requires, as Justice Wright put it in McKenzie, a formal unhurried procedure directed to the investigation of crime and interrogation of a suspect for that purpose, a known meeting of minds, an appreciation on the part of the suspect of why he or she is there, the process undertaken to which he or she must consent and, critically, an appreciation that what he or she says might be used later against him or her in court.  So for those reasons the answer to your Honour Justice Crennan would be no.

KIRBY J:   Your submission on this point gets back to the point that I think Justice Callinan and Justice Heydon in Kelly said that minds can differ as to whether or not this is good or bad legislation or has gone far enough, but this is what the text of the statute says.  I think that was the majority view in Kelly and Justice McHugh and I dissented because of our view of what the object and purpose of the legislation was but the majority felt that the legislation had not gone so far.  Here you really have a verbal or linguistic argument.

MR MULLANY:   I have two, with respect, your Honour.  The answer to the first half of what your Honour put to me is yes, but I hope to persuade all of your Honours and, perhaps in the light of what your Honour Justice Kirby has just put to me, particularly your Honour, that the construction for which we press is consistent with the broad imperative to which the legislature had its eye.  I will come to that in just a moment.

GLEESON CJ:   The parliamentary history that was before the Court in Kelly shows, and is notorious, that this legislation represents a compromise.

MR MULLANY:   Indeed.  You might say there is a sliding scale as to how the legislatures have chosen to tackle it and at one end of the spectrum is Western Australia.  Given that I have referred to it and your Honour ‑ ‑ ‑

KIRBY J:   It will take a lot of talk to persuade me that this is legislation directed at the mischief.  If you attach consequences to what is a very narrow view of what is an interview and thereby leave out of the obligations of the Act conversations which are the very circumstance in which in the past all things are alleged to have been said to police and which are then not corroborated and left to the old debates about verbals.

MR MULLANY:   Well, your Honour, we would say this, that there are many measures that can be adopted to tackle the perceived problems of interviews.  One of them is insisting on them being recorded.  There are other measures, like insisting on the consent of the interviewee and appreciation that he or she knows what is going on and that it may be used against him and so on.  What your Honour’s observation implies is that where one has a recording of an admission that the process by which that recording was obtained preserved the integrity of the interviewing process as a whole.  We would submit that the circumstances of this case show that that assumption cannot be made.  The mere fact that you have got a recording does not necessarily mean that the integrity of the process was preserved.

KIRBY J:   Let me just understand that.  Is your point that the process which is normally important for criminal investigation is the “formal interview process” by police?  That is where it was alleged in the past lots of abuses occurred when they were typed out, and so on, and that therefore the law targets in on that and leaves other matters peripheral to that to be dealt with by common law principles.

MR MULLANY:   No, your Honour, I am not suggesting that.  I am suggesting that what happened in Western Australia is that the Parliament was directed to adopt a procedure which would operate to promote formality and to preserve the integrity and propriety of the process.

KIRBY J:   It does not promote finality if you then, as it were, bundle the debates and the vice out of the formal process and into conversations during smokos.

MR MULLANY:   Well, it did a lot of things.  It not only required that there be a recording, but it required the consent of the interviewee to the process, and we say failure to obtain it is critical to the question of admission.  In our submission, it incorporated a concept the content of which contains an appreciation on the part of the interviewee of the two matters I have referred to.  I will get to the issue of object in just a moment, your Honour, but can I just perhaps conclude a couple of other points I wanted to make about the first half of what your Honour Justice Kirby put to me. 

There has been an exchange about Kelly.  Perhaps in the light of that I should take your Honours to it and particularly the passage that we are relying upon.  That is 51 on page 263 in the judgment of your Honours the Chief Justice, Justices Hayne and Heydon.  At that paragraph, second sentence, your Honours say:

Parliament could have chosen to adopt a wider solution to the problem than that which appears in s 8 of the Act, but it is not open to the courts of this country to ignore or alter the meaning of s 8 in order to achieve what they might think is a better solution by creating safeguards ‑ ‑ ‑

KIRBY J:   Where is that passage, I am sorry?

MR MULLANY:   This is 51, your Honour.

KIRBY J:   That was, I think, the passage I was thinking of earlier.

MR MULLANY:   That is the one we rely upon, “by creating safeguards which Parliament itself chose not to create.”  Can I also ask your Honours to note what Justice McHugh said in Nicholls.

HEYDON J:   Just before we leave Kelly, on page 229, paragraphs 33 and 34 and footnotes (36) and (37) – this will have to be checked – but as you say, the Western Australian section was introduced in 1992.

MR MULLANY:   That is right.

HEYDON J:   It says in footnote (37) it says that a different “approach was adopted in 1995 in New South Wales, Tasmania and South Australia” and then it sets out the three statutory changes in New South Wales that led to 281.  This would need to be checked, but that suggests that the order of events was 1992 Western Australia, 1995 South Australia.

MR MULLANY:   We are chasing it down, your Honour.

HEYDON J:   It is just that the chasing may be assisted by those footnotes.

MR MULLANY:   Thank you, your Honour.  Section 74C of the South Australian provision was introduced by Act 65 of 1995.  I am grateful to my friend.  The reference to Nicholls, your Honour, is at paragraph 105 in the reasons for decision of Justice McHugh who considered an interview to cover those exchanges during the period that the suspect remains under caution, that is, we submit, in the circumstances where he or she is cognizant of the two matters that I have outlined.

Can I address one last issue raised by my learned friend on this point.  Our learned friends appear to be suggesting in paragraph 5.47 of their submissions that the fact that the lockup conversation occurred in the context of processing the appellant satisfies any requirement of formality of process.  That overlooks completely the fact that the video interview in relation to the South Perth robbery had been brought to a conclusion and that formality of purpose in this context is directed to the investigation of crime and interrogation of suspects for that offence and not to some administrative task undertaken following the express termination of that exercise.  What occurred in the lockup can hardly be characterised as a formal question and answer session by police for the known purposes of investigation of the crime of that I have described.

Can I just explain what happened in relation to the processing because there appears to be a degree of uncertainty.  Can we clarify something that is said in relation to that by our friends at 5.46 of their submissions.  Contrary to the comments that were made by his counsel before Justice Wheeler on the voir dire at AB 5, the appellant was not charged with any offence on 30 July 2003.  He was processed that evening in the Kensington Police Station to be taken to the East Perth lockup in relation to a breach of parole. 

There was at the time an outstanding return to prison order in relation to the appellant.  At the time of his arrest, 30 July 2003, he was in breach of parole in relation to a sentence for armed robbery.  A return to prison order and a bench warrant for his arrest had issued due to his failure to comply with his conditions of his parole.  It appears that the reason that the police had not acted on that was because they had him under surveillance for the offence in South Perth.  After he was processed he was taken that night to the East Perth lockup and he was not charged with any other offences until about two weeks later and they were in relation to minor cannabis offences and possession of some other drug.  Viewed in its entirety there is limited questioning by the police at all during the lockup conversation.  What emerges emerges in a casual and informal climate during the course of administration unprompted by them.

Can I say something about the legislative purpose and object of the statute?  His Honour Justice Buss’ reasons for decision suggest that he regarded this as compelling the construction which he adopted contra Kelly at 43.  The reference to which I have directed your Honours in relation to this has to be read, we submit, in the context of the submission advanced on behalf of the appellant below which was interpreted as an attempt to place a temporal restriction on the concept of “interview”, an approach regarded by some, your Honour Justice Kirby in particular, as inconsistent with the legislative purpose and intent.  We know that because of his Honour Justice Buss’ direction, in particular, to the reasons of decision of Justice McHugh to which I have already taken you. 

It is our submission that concerns of that type do not arise on acceptance of the proposition that interview connotes the degree of element of formality that we have described.  To recognise that is not, we submit, to ascribe to the word “interview” an unduly restrictive meaning inconsistent with the purpose and object of the legislation.  It is put against us that this construction for which we contend is inconsistent with that.  Can I briefly address that? 

My learned friend and I are in agreement that there is little to be gleaned from the Parliamentary debates in Western Australia as to the object and purpose of the legislation.  What can be found is reproduced in 98 of our written submissions.  There is no doubt that the legislation of the type that the court is concerned with was directed generally speaking to overcome the perceived problems with the police verbal.  The court said that on a number of occasions.  It is our submission that although the general purpose, as your Honour the Chief Justice put it in Nicholls at paragraph 10, and similar provisions:

is to reduce the possibility of police fabrication of admissions, and to limit the potential scope for dispute about “verbal admissions”.

Legislative reform of this type is properly to be seen as directed to a broader imperative.  That broader imperative is the protection and preservation of the integrity of the interview process generally and thus the protection and preservation of the integrity of the administration of criminal justice.  The administration of criminal justice is facilitated by the insistence on a formal process of interview and the implementation of methods designed to combat the police verbal.  What Parliament was really concerned about here was to introduce a scheme designed to promote formality and propriety of process which serves to protect all of the participants in the interview process.  The mere fact that exchanges have been recorded does not of course mean that that objective has been achieved. 

Parliament is not to be taken, in our submission, as having intended to introduce a regime pursuant to which all videotapes containing admissions are admissible subject to the application of the common law.  That is why, unlike legislatures of other jurisdictions, it elected with broad imperative in mind to incorporate the concepts of both consent and interview.  It is to that general purpose, that broad imperative, and not to issues of form, as our learned friends would have it, that this particular section is directed.  The fact that its focus is solely on admissibility does not reveal a focus as to form, in our submission. 

Can we direct your Honours’ attention on this to what Justices Brennan, Dawson and Gaudron said in Pollard v The Queen, case number 3 on our list, (1992) 176 CLR 177, and particularly at 191 to 192. In relation to the Victorian equivalent to section 570D, namely, 464H of the Crimes Act 1958 (Vic), their Honours speak in terms of the need to ensure the integrity of the questioning process in the context of the need to record. At 191 they say:

There are good reasons for thinking that the purpose of s. 464H was to ensure that the entire questioning process should be tape-recorded.  It is clear from the second reading speech for the Bill which resulted in the enactment of sub‑div. (30A) that one of the main purposes of the new subdivision was to ensure the integrity of the questioning process and to reduce the scope both for impropriety and for allegations of impropriety during questioning.  If the entire questioning process is recorded that purpose is advanced; if not, there remains scope for impropriety –

et cetera.  So it is true that their Honours are talking about the integrity of the process generally in the context of the requirement for recording.  We take your Honours to that because it seems to us that it reflects a recognition of a broader imperative directed to the mischief to which I have referred.  On that and without taking your Honours to it, can I ask your Honours to also note R v Cavkic, case 4 on our list, and particularly at 246 which appears at page 4 of our booklet where his Honour Acting Justice of Appeal Osborn speaks in terms consistent with the submission I have just advanced. Can I just say, your Honours, that the relevant paragraph that we have provided does not appear in the Victorian Reports. It does appear in a further reference I will give you but they have renumbered the paragraph. The further reference is 155 A Crim R 275 at 287.

GUMMOW J:   What footnote is that?

MR MULLANY:   Footnote 17 was the second of those two categories, your Honour.

GUMMOW J:   What is the third?

MR MULLANY:   The third was paragraph 39 of our submissions.  Finally, can I return to the exchange your Honour Justice Heydon and I had at the outset, and we would seek to amend the orders sought should we prevail in this case - order (c) to read, “There be no retrial.”

KIRBY J:   I am sorry?  You were going to - your order you seek ‑ ‑ ‑

GUMMOW J:   That does not make sense.

GLEESON CJ:   That could not be quite right.

KIRBY J:   ‑ ‑ ‑ is a retrial, but was there any other evidence other than the evidence of the confession?

HEYDON J:   What you need is (c) that the appellant be acquitted or that an order of acquitted be entered, something like that.

GLEESON CJ:   Yes.

MR MULLANY:   We have (b):

The Appellant’s conviction be quashed ‑ ‑ ‑

HEYDON J:   But that still leaves no acquittal.

MR MULLANY:  And there be an order for acquittal, if it please your Honours.

KIRBY J:   It is that step which ultimately Mr Odgers was obliged to place before the Court yesterday that tactically is a difficulty, because we are then confronted with something which would probably offend a lot of members of the public, that you have got a recorded confession of a person which indicates fairly clearly, if not obviously, that he is guilty of a serious crime and yet you are saying because of the infraction of the statute there is no real discretion, no issue of the proviso, he has just got to be let free.

MR MULLANY:   Well, your Honour, I am acutely aware of that, and it is a matter to which consideration was given.  The expectation was, and I think ‑ ‑ ‑

KIRBY J:   So much nicer to order a new trial.

MR MULLANY:   The reality is, your Honour, that if we were to prevail and that order was made, the prosecution, I am sure, would not proceed.

GUMMOW J:   Yes, I know, but in the meantime it might be thought we would not have been excited.

MR MULLANY:   Well, I have grasped the nettle, your Honour.

GLEESON CJ:   Ultimately you have decided that you are going to administer the pill without any sugar coating.

KIRBY J:   You have got to bite the bullet, if I can use that word.

MR MULLANY:   That is a good way of putting it, your Honour.  If it please your Honours.

GLEESON CJ:   Thank you, Mr Mullany.  We will reserve our decision in this matter and we will adjourn until 9.30 am on Tuesday, 24 April 2007, in Sydney and at the same time in Melbourne.

AT 3.21 PM THE MATTER WAS ADJOURNED