Carr v State of Western Australia

[2006] HCATrans 582

[2006] HCATrans 582

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P19 of 2006

B e t w e e n -

MICHAEL JOHN CARR

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 26 OCTOBER 2006, AT 9.59 AM

Copyright in the High Court of Australia

MR K.M. TAVENER:   If it please the Court, I represent the applicant.  (instructed by D.G. Price & Co)

MR S. VANDONGEN:   If it please the Court, I represent the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

GUMMOW J:   Yes, Mr Tavener.

MR TAVENER:   Thank you, your Honour.  This matter arose from a trial in respect of a robbery whilst armed and in company.

GUMMOW J:   You will have to shout at us a bit.

MR TAVENER:   Thank you, your Honour.  This matter came from a trial by which the applicant was ultimately convicted of one count of robbery whilst armed and in company.  The issue that I wish to raise today is quite a narrow one and that relates to ‑ ‑ ‑

GUMMOW J:   It is an issue of statutory construction, is it not?

MR TAVENER:   That is right, primarily.

GUMMOW J:   Will you take us through section 570 and the succeeding sections insofar as they bear on this particular matter.

MR TAVENER:   Thank you, your Honour.  Section 570D was dealt with by ‑ ‑ ‑

GUMMOW J:   You start at 570, do you not?

MR TAVENER:   At 570, yes, your Honour.

GUMMOW J:   It has a definition of “interview” and it also has a definition of “videotape”.

MR TAVENER:   Thank you, your Honour.  Under 570(1), which falls under a chapter cited “Videotaped interviews” it deals both with interviews and also with admissions generally, but:

“interview” means an interview with a suspect by –

(aa)    an officer of the Corruption and Crime Commission;

or

(a)     a member of the Police Force ‑ ‑ ‑

GUMMOW J:   Was this an interview?

MR TAVENER:   We would say it was an interview in that there was a conversation between police officers and the applicant, so it was an interview.  We are not suggesting ‑ ‑ ‑

KIRBY J:   Is it an interview within the mischief to which the statute is directed?

MR TAVENER:   The mischief of the statute is primarily directed towards eliminating the allegations of improper police conduct.

HEYDON J:   It is directed towards policemen questioning people without videotaping what they say and what the answers are.

MR TAVENER:   Without what the suspect was saying being recorded, that is correct.

HEYDON J:   This suspect’s words were recorded.

MR TAVENER:   And that was never in dispute, that he spoke to the police after a formal interview.  He spoke to police in a situation where he was in the lockup of the police station.  It was his understanding and, in fact, when one looks at the circumstances of the particular matter, the formal interview in respect of the offence that was being investigated was the armed robbery, but that had come to a stop, a conclusion.  It concluded with the standard series of statements made by police officers when stopping a record of interview, when completing a record of interview.

GUMMOW J:   You have not got to 570D yet, have you?

MR TAVENER:   Thank you, your Honour, I will come back to 570D very shortly. 

GUMMOW J:   Let me put it on the table.  You are only going to get special leave, I think, if you can demonstrate there is some point of statutory construction, which I thought you were going to show us.

MR TAVENER:   Your Honour, with that I refer to the ‑ ‑ ‑

GUMMOW J:   As relative to the particular circumstances of this case, but we understand the circumstances of the case, I think.  At the moment I am not really confident that I grasp the statutory construction point.

MR TAVENER:   What we say is, and we certainly rely on the words of his Honour Chief Justice Gleeson in ‑ ‑ ‑

GUMMOW J:   No, no, take us to the words of section 570D.  We say until we are blue in the face that we like looking at the statutory text, not looking first at what someone else may or may not have said about it in some other case.

MR TAVENER:   What happened here, your Honour, fell under 570, as your Honour said.  It was an interview.  All the normal provisions were complied with.

HEYDON J:   Your argument is this, is it not, that in (2)(a):

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

evidence is a videotape to the making of which the accused consented on which there is a recording of the admission?  Your argument turns on an idea of voluntariness?

MR TAVENER:   That is the difficulty, your Honour.  We say that it is not an easy matter to categorise.  As has been said before, it is not easy to assert confidently that the privilege against self‑incrimination serves one particular policy or purpose. 

HEYDON J:   Particular (b) of your ground 2 of draft of notice of appeal is that:

To be admissible for the purposes of Section 570(D) any conversation is required to be voluntary and made in the knowledge that it was being recorded.

MR TAVENER:   That is correct.  Voluntary not in the sense of being overborne or that the will is ‑ ‑ ‑

HEYDON J:   Threats or violence, yes.

MR TAVENER:   Exactly, not in that sense, but in the sense of being aware one is being interviewed.

HEYDON J:   You have to find a word or words in section 570D that will mesh with particular (b).

GUMMOW J:   Or a necessary inference.

MR TAVENER:   Which is why, your Honour, first of all, if I could - I will come back to 570D and I am conscious of the time - if I can briefly say this.  The position was that the man was interviewed, the applicant was interviewed.  The interview was concluded in the usual way.  We then have a situation where – and we say this is not anticipated or is not an intended effect of section 570.  Section 570 covers normal…..in order to avoid, as we have already said, certain allegations against police.

KIRBY J:   Is it your argument that if what happened in this case can happen, then you ride a team of camels through 570 because 570 had been exhausted, it had been concluded.  He said he wanted his lawyer present.

MR TAVENER:   That is correct.

KIRBY J:   The police properly then terminated that procedure, yet subsequently they can pick up this other form of interview, as you put it, and that just means that 570 becomes an ineffective guardian which it was not intended to be.

MR TAVENER:   Exactly, and that is because we would say the need to address particular police practices whilst we have the application of technology and that has now caused the problem, we would say, in this matter where a person is aware he is being interviewed, he is then aware the interview has stopped, he is not aware that he is now engaged in a second interview with the police officers about the matter about which he had just said he would not want to be interviewed.  Now, in previous times a person was fully aware they were being interviewed.  They would be in a room, someone will be typing, there will be multiple copies, he is fully aware he is engaged in an interview, or the police somewhere are recording notes.  But whatever the situation was, they were fully aware they were being interviewed.

GUMMOW J:   Despite what you say, I think you only get your point across if you can get something into the word “interview”, some notion of awareness or consent.  You do not seem to want to say that, so ‑ ‑ ‑

MR TAVENER:   Again, we do not dispute there was an interview.  What we are saying is it leads to a number of problems which cannot be categorised particularly under voluntariness, under unfairness, under public policy, but the end result is, a person declines to be interviewed any further without being told he is still engaged in an interview subsequently.  He is not aware of that interview.  Now, there are situations where a person may say something afterwards to police.  They can be taken back into the interview room and they are re-interviewed and 570D applies.  Now, 570D was not designed to address this type of problem.  It was not designed to address the problem where a person who, as far as the suspect is concerned, is no longer engaged in an interview with that person.  By legal definition, it is an interview and that is the difficulty.

KIRBY J:   One possible mischief that would arise if the interpretation of the Court of Appeal is correct is that outside every formal interviewing room will be a video camera.  The police will lead the person out there and just stand still and rely on the usual inclination of people when they think they have finished the formal bit to make statements which are being recorded and which are then used against them.

MR TAVENER:   Exactly.

KIRBY J:   Which would undermine, indeed, destroy the whole purpose of the formal interviewing process that Parliament has gone to all this trouble to set up after this Court in Duke and lots of other cases said it was not acceptable to have matters that were not recorded in a formal manner.

MR TAVENER:   That is correct and to return to 570D ‑ ‑ ‑

GUMMOW J:   Then we get to this, that an interview connotes some element of formality, which is lacking here because there is an unawareness of it.

MR TAVENER:   We would say it connotes some element of understanding you are in an interview and what a person says outside – and has been said before – the concerns are a person may be boasting, a person may be making stories up, a person may be just talking.  He is not aware that what is being said will be used against him.  Part of the traditional caution was always “You are not obliged to say anything unless you wish, but anything you do say will be taken down in writing ‑ ‑ ‑

GUMMOW J:   What is the difference between a conversation and an interview?

MR TAVENER:   We say the difference is in an interview a person is aware he is speaking to police and the purpose of speaking to police is that material will be taken down and can later be used against me in evidence, following the traditional caution.  That is the difference between a conversation.  Also the difference between a conversation and an interview is, from the suspect’s point of view, an interview is for the purposes of the investigation or adding to the investigation or contributing in some way.  The conversation is simply talking to police.  It is not going to go any further.  From his point of view, it is not intended to go any further.  In fact, if I can refer to Nicholls v The Queen, at page 208 the words of his Honour Chief Justice Gleeson ‑ ‑ ‑

GUMMOW J:   Yes, but the Chief Justice was interpreting the phrase “reasonable excuse”, was he not, in subsection (4)?

MR TAVENER:   Yes, but if I can go on to paragraph 11‑ ‑ ‑

GUMMOW J:   Is that true or not true?

MR TAVENER:   As I understood, he is talking about the purposes of 570D and that is correct, he did note that ‑ ‑ ‑

GUMMOW J:   Paragraph (c).

MR TAVENER:   Paragraph (4).

GUMMOW J:   I know, but section 570D(4)(c), “The accused did not consent”, that goes to the notion of reasonable excuse and that goes back to subsection (2)(b) whereas we are on paragraph (a).

MR TAVENER:   That is correct, so the argument being that if you do not consent then the police do not then have to record, but therefore that implies, we would say, that consent is necessary for an interview and that would make sense, because otherwise a person is not aware.  He may well be cautioned, as he was many times on this occasion, but as far as the suspect is concerned, that had ceased.  If I can just refer to one paragraph of his Honour Chief Justice Gleeson.  In the middle of paragraph 11 at page 208 of the reported decision:

There is nothing in the section to suggest that consent, once given, covers all that follows without any opportunity for bringing it to an end.  It would be unfair if that were so.

Now, we are not saying that this position falls directly under unfairness or we have never suggested it was involuntary or a matter of public policy.  What we do say, the outcome of this legislation leads to something that cannot be right and that is, in effect, an interview in two parts within a police station.  So we are speaking specifically about a police station.  We were told we were being interviewed, the interview stops for whatever reason, here because he did not want to say any more unless his lawyer was present.  It is over.

KIRBY J:   Yes, but we now live in a society where there are video cameras and recordings and it is all over the place.  Look at those two little children in England who were caught because they were caught on the video recording outside, and that is just the nature of the society we are in now.

MR TAVENER:   I accept that, and England is noted for having ‑ ‑ ‑

KIRBY J:   One could perhaps say that the mischief to which this is directed, namely, bludgeoning and police bashing statements out or making things up is not the mischief that is presented by the facts of this case where there is just a neutral recording and your client says things.

MR TAVENER:   We would say that all that needed to happen for this to be properly admissible, and clearly it was admitted, but we would say that the police officer should have either told this person, the applicant, that there are recording devices in this room or re-cautioned him.  Neither of those acts by the police would have cost them anything, to simply say to him, as he started to speak, “I should remind you that in this room are recording devices”.  That is all we are asking for and in this case that was not done and that does not impact adversely on the legislation.  You are simply reminding a person about something that he does not – well, not reminding, he does not know and it is conceded ‑ ‑ ‑

KIRBY J:   Is the mischief which was abuse of power, or at least that was one of the mischiefs ‑ ‑ ‑

MR TAVENER:   That is correct.

KIRBY J:   Is that caught by the statute and you say that is not the only mischief.  The other mischief was an unconsensual, unknowing recording of things that are said at risk to the person’s right to silence?

MR TAVENER:   We say the legislation is appropriate.  Obviously it ‑ ‑ ‑

GUMMOW J:   Wait a minute.  Is not the Swaffield principle an answer to that mischief?

MR TAVENER:   That relates to a different part of the investigation, the use of police officers or informants to obtain admissions from people.  We are saying this is a different situation, quite clearly a different situation.  This is a man who has been interviewed ‑ ‑ ‑

GUMMOW J:   You want to say by force of statute, simply not admissible, regardless of any other circumstances.

MR TAVENER:   We would say that the statute has caused an inadvertent unfairness ‑ ‑ ‑

GUMMOW J:   Regardless of any oppression.

MR TAVENER:   That is correct, that is correct.  We would say all that is required, all that should be required and the law should require it, is that when a person has been interviewed, the interview is completed.  When he goes to another part of the police station – and I understand it is not on the papers – the only evidence against him was his admissions he subsequently made.  There was other evidence, I should say, but it would be highly unlikely he would have been charged except for those admissions he made or the words he spoke in the lockup subsequent.

So from his point of view that matter is over, always suggesting – 570D serves its purpose.  However, there is an inadvertence, an injustice, we say, because a person is not told that he is still being recorded, that the interview – there is two parts of the interview and that cannot be the case.  That cannot be the situation, interviewed formally and then without your knowledge you are interviewed again informally.

KIRBY J:   I think you are repeating yourself, are you not?

GUMMOW J:   There is no oppression, is there, on this?

KIRBY J:   No oppression here either.

GUMMOW J:   Your client was a bit of a smart alec and it did not quite turn out as he hoped.

MR TAVENER:   And again, we are not disputing that, your Honour, but the position is, in short form – and I will try not to repeat myself, your Honour - we are saying it cannot be right that you decline to be interviewed, you are simply led to another part of the police station, you are working under the understanding it is over, the interview is over, then without being told ‑ ‑ ‑

GUMMOW J:   So you can poke a bit of fun at the authorities.

MR TAVENER:   It may or may not be true, but the difficulty is, having said it, it is recorded, it can be used against him, the section applies.

KIRBY J:   It is a very, very well‑known technique of interrogation and, indeed, of cross‑examination to have persons in a position and to confront them with silence at which event there is a natural human tendency of people to start babbling and that is very damaging in a formal situation in a police station.

MR TAVENER:   And we would say that.  As your Honour says, it is not an unusual technique to say to someone, “I am almost finished now”, as I am, and therefore rely upon that release to engage that person in further conversation.  That is the difficulty ‑ ‑ ‑

KIRBY J:   It is just a question of whether it fits within the statute, something which you do not seem to be very keen to help us with.

MR TAVENER:   Sorry, your Honour.  The difficulty is that we are not disputing the validity of the statute in terms that it was an interview, it was voluntary.

KIRBY J:   But do you say that the second step was also an interview which, to be a valid interview, must comply with the statute?

MR TAVENER:   Yes, and we say that ‑ ‑ ‑

KIRBY J:   So although the police ask no questions and simply stand there and ‑ ‑ ‑

MR TAVENER:   The applicant initiated the conversation.  That is correct.  However, we say, relying upon the words I have mentioned of the Chief Justice, consent is necessary.  So the person had to consent to the interview.

KIRBY J:   The interview involves an interaction between two people and therefore the knowing participation in it.  Consent may not be quite the word, but the Chief Justice is trying to get at that it has to be a meeting of minds.  It cannot just be a Rock of Gibraltar standing there.

MR TAVENER:   The applicant may well have initiated the conversation, but the police continued it.  They continued it knowing the matter was being recorded, it being an interview, but the suspect did not know that and there is the unfairness, involuntary in the sense of not of oppression, but he was not volunteering to be in the interview and that is why it is difficult to say – well, we are not saying the legislation does not apply except there should be the rider, we would say, that the person should be told that he is now engaged in an interview.

KIRBY J:   That is about the fourth time you have said that.

MR TAVENER:   Thank you, your Honour.

GUMMOW J:   Do you challenge the statement in the court below on page – there are so many numbers on those – in the application book it is page 86, it is paragraph 38 of Justice Buss’s judgment.  The second last sentence:

In my opinion, “interview” . . . 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.

This was an informal conversation initiated by the accused person, I suppose.

MR TAVENER:   It was an interview.  I may fall into repeating again, your Honour.

GUMMOW J:   You challenge the last sentence.  We have to be clear about these things.

MR TAVENER:   We accept it was an informal conversation initiated by the accused person.  However, we then adopt the words underneath, the words ‑ ‑ ‑

GUMMOW J:   That is about section 570D(4)(c).

MR TAVENER:   That is right, which we say implies in this the need for the suspect to consent.  It was an interview by definition.  However, it was not an interview to which he consented.

GUMMOW J:   Yes, very well.

KIRBY J:   Is there a possibility that in this case, having regard to the apparent reliability of the evidence and fairly neutral circumstances of the police conduct and the actual initiation of the conversation by your client that a court would be satisfied that there are exceptional circumstances in the interests of justice to justify the admission, in other words that you might make a technical point but would not have a knockout against you under the equivalent to the proviso, that there is no substantial injustice?

MR TAVENER:   We accept the court can rule the way in which it did in the – by the Court of Criminal Appeal.  They can see it as falling within public policy and then not being unfair.  I am sorry, I may have misunderstood your question, your Honour?

KIRBY J:   I am asking you if 570D(2)(c) is satisfied?

MR TAVENER:   It was open to the Court to find that, your Honour, but we say that – and that is because of a strict reading of 570D and we say that 570D did not intend the consequences which have now arisen in this particular case.  Section 570D and 570, generally, did not intend that there would be this second interview.

KIRBY J:   That is where you pick up what Chief Justice Gleeson said in Nicholls.

MR TAVENER:   Exactly, your Honour.

KIRBY J:   So you do not get to that if you, as it were, if what has happened has not complied with the previous requirements.

MR TAVENER:   That is so, your Honour.

KIRBY J:   It is only there for where there is a requirement of exceptional circumstances.

MR TAVENER:   That is correct, 570 was not introduced.

KIRBY J:   Such as the breaking down of the equipment or things of that kind?

MR TAVENER:   That is right.  And, certainly, 570 was not introduced to allow for this second interview approach by police and that is ‑ ‑ ‑ 

GUMMOW J:   Well, the red light has been on for some time.

MR TAVENER:   Thank you, your Honour.

MR VANDONGEN:   At the risk of repeating your Honour Justice Gummow’s comments, this is a question of statutory interpretation and if I could deal with that issue, the starting point, in my submission, is section 570D(2) and, in particular, paragraph (a), because that is the paragraph which justified the admission of the videotape in this particular instance, because there was a videotape of an admission that was made by the accused.  That then leads the Court ‑ ‑ ‑

GUMMOW J:   “Videotape” is defined, is it not?

MR VANDONGEN:   “Videotape” is defined and I was going to take your Honour to that now.  It is defined in section 570(1) and it relevantly takes the Court in an interpretation sense back to the definition of “interview” which appears earlier in that section and we would, your Honour, adopt the broad definition propounded by his Honour Justice Buss at paragraph 38 on page 86.  That broad interpretation would seem to fit neatly in with the purpose and policy of the legislation, that is, to ensure that admissions are only admitted in circumstances where they are recorded and particular admissions made to police officers.  The broad interpretation propounded by ‑ ‑ ‑

KIRBY J:   But can you see the point behind Chief Justice Gleeson’s statement in Nicholls in the circumstances of this case, which is that the person is confronted, goes to the police station, is subjected to the formal interview process, he objects, as he wants to have his lawyer, the interview is terminated, quite correctly, then he goes into another room and the whole thing is being recorded and then it is tendered.  It really does tend to undermine one of the objects of the interview process, which is to stop thumping and falsehoods and use of the interview process before the person has had a chance to see a lawyer.

MR VANDONGEN:   Yes, in my submission, that raises two issues.  One is an issue of statutory construction and the other is an issue relating to the purpose of the particular section, that is section 570D.  The argument put against me relies upon acceptance of an argument that the consent of the interviewee or at least in this case the knowledge of the interviewee is critical to the admission – sorry, should be implied into the terms particularly of subsection (2)(a), whether by use of the definitions of “videotape” or more particularly “interview”.

It is of interest, in my submission, to note that the word “consent” or “knowledge” is not used at all in the section except when one comes to look at the question of what a reasonable excuse is, and had Parliament intended that consent or knowledge would be relevant to the question of admission under paragraph (a), one would have expected Parliament to have made that clear.

KIRBY J:   Do you accept that there was no other evidence against the accused save for his admissions?

MR VANDONGEN:   Yes, I do, but can I make this point, your Honour, and it relates to the statutory construction point, section 570D(2) is not concerned so much with the conduct of police officers, although that is its ultimate aim, it is to deal with allegations that have occurred in the past about the conduct of police officers.

KIRBY J:   It is hard to say that if you have read all the cases in this Court in the 1970s and 1980s leading up to McInnis.

MR VANDONGEN:   It is aimed at dealing with those instances, but really subsection (2), on a proper construction of subsection (2), is concerned with the form of evidence to be admitted when it concerns admissions made by suspect persons.  It is not concerned - although ultimately it is concerned with dealing with historical allegations against police officers of verballing, to use the vernacular, it is more concerned with the form of the evidence in which it is acceptable before it is admitted, because the provision provides as a premise that evidence of an admission made to a police officer is, prima facie, not admissible unless it is in certain forms, and certainly in this case the admission was in the form required by the statute, that is, a videotape.

KIRBY J:   I have to tell you, I am just frankly worried that what will happen will be that the police will finish their interview and then they will go into the next room and just stand there.  A common experience of humanity is that people then babble and that will be recorded.  The person will think - it is a sort of duplicity which could not have been intended by Parliament.

MR VANDONGEN:   With respect, I accept what your Honour says, that those circumstances could arise, but as his Honour Justice Gummow suggested during my friend’s submissions that that situation is dealt with by the common law, that Parliament by its enactment of section 570D was not intending to do away with common law principles relating to voluntariness, to fairness and more particularly to public policy perhaps in this particular case.  Those discretions in relation to the latter two parts will still be available to be argued as they were in this case, albeit unsuccessfully.

GUMMOW J:   I think the point against you that comes from the Chief Justice’s remarks in Nicholls though is this.  You go to subsection (4) and you are looking at this phrase “reasonable excuse” and the statutory assumption is that there is no videotaping at all because the question of consent came into play and the accused did not consent.

MR VANDONGEN:   Yes, I understand that argument.

GUMMOW J:   Right, and therefore that would be the end of it.  Then the question is, is there a reasonable excuse under (b)?  Now, the inference then is that tells you really something about (a) and the whole process.

MR VANDONGEN:   I understand that argument, your Honour, but the submission ‑ ‑ ‑

GUMMOW J:   Well, what is the answer to that?

MR VANDONGEN:   The submission of the respondent is that there is no, if I can put it this way, flow‑back effect from that subsection dealing with reasonable excuse.  His Honour the Chief Justice’s comments, if the assumption is correct and that ‑ ‑ ‑

GUMMOW J:   But if you could have a surreptitious videotaping, why would you need be there at all?

MR VANDONGEN:   I am not sure I understand your Honour’s question.

HEYDON J:   Paragraph (b) assumes there was not any videotaping.

MR VANDONGEN:   That is correct.

HEYDON J:   And that is not permitted unless there is a reasonable excuse, and one category of reasonable excuse is that the accused…..

MR VANDONGEN:   Well, this is why I come back to my original submission that the focus of subsection (2) is on the form of the evidence that it takes and that the pathway to admission of a non‑videorecorded interview may include a gate of whether or not a particular person has consented to the videotape.  That does not say anything about the situation where there is a videotape of an admission.

GUMMOW J:   But at the second event suppose the police had said, “Look up there before you continue being smart saying all these things”, you would be aware you are being videotaped, and the applicant said, “Oh gee, no, I’m not consenting to anything”.  Now, you would then be, would you not, in a 570D(2)(b) situation, would you not?

MR VANDONGEN:   For anything that is said from then on, yes, because it would not be a recording ‑ ‑ ‑

GUMMOW J:   Why does the whole pivot then become this particular circumstance?

MR VANDONGEN:   It was a fairly rare circumstance, if I can make that submission.  But really if the assumption is correct, the assumption observed by Chief Justice Gleeson, what we say, as I have said I think, that there was no flow‑back effect.

GUMMOW J:   You keep saying no flow‑back effect, which is a great metaphor, but the whole thing has to be construed together.

MR VANDONGEN:   That is right, and it needs to be borne in mind that the words “consent or knowledge” more particularly are not referred to in subsection (2)(a).

GUMMOW J:   It seems to me the theme running through the Chief Justice’s mind is this notion of implication.

MR VANDONGEN:   That is right.

GUMMOW J:   The question is whether it is a necessary implication or inference as to the construction of the subsection (2) as a whole, this question of consent.

MR VANDONGEN:   What the Chief Justice said in obiter ‑ ‑ ‑

GUMMOW J:   We know his exact words.

MR VANDONGEN:   ‑ ‑ ‑ was concerned with the videotaping by police but not concerned with the admission of a videotape, which is what section 570D is concerned with.  So even if there is such an assumption, if it is assumed that the police are required to obtain consent from a suspect before videotaping them, that, in my submission, says nothing about the admissibility of it under section 570D(2)(a).

GUMMOW J:   Well, I think that is the issue.

MR VANDONGEN:   That is the issue.  Can I deal, your Honours, with some issues relating to whether this is an appropriate vehicle to deal with this?  Your Honours would have noticed that the issue was not dealt with at the Court of Appeal.  The argument put there was that what occurred in the lockup could not constitute an interview.  The issue of whether or not consent or, more particularly, knowledge was a necessary implication into section 570D(2)(a) was never argued.

It is important to note at appeal book page 86, paragraph 39 in the section where his Honour Justice Buss deals with the quote from the Chief Justice, he specifically says at line 40 that the assumption “does not require resolution in this appeal”.  So your Honours do not have the benefit of any considered reasoning by the Court of Appeal dealing with the assumption that is put against me.

A second issue in relation to whether this is an appropriate vehicle is that it has been assumed that there was evidence that the accused, that is, the applicant, did not know or did not consent to the record of the interview.  It has been assumed throughout the process that the applicant did not know that he was being recorded.  A challenge to the record of interview, if I can put it that way, was made at what in Western Australia at that stage was called a section 611A hearing, in other words, a voir dire conducted before the trial before Justice Wheeler, and it is clear from the Court of Appeal decision that no evidence was led at that stage, this being a challenge to effectively the admission of the evidence at that stage.  In particular, there was no ‑ ‑ ‑

GUMMOW J:   So there is no evidentiary basis one way or the other in the record as to whether or not the applicant did or did not know as to the taping?

MR VANDONGEN:   No.  When he gave evidence ‑ ‑ ‑

KIRBY J:   That is a pretty thin argument though when he has, just a few seconds earlier, said, “I don’t want to say anything” or “I’d better not say any more.  I want to speak to my lawyer”.

MR VANDONGEN:   Well, the difficulty, your Honour, is that this Court is then asked to proceed on a premise that that is the case and more particularly the Crown, or the State at that stage, did not have the opportunity to cross‑examine and test that assumption at the stage at which the video was admitted.

KIRBY J:   But the whole force of the inference is that he had said he wanted to see his lawyer.

MR VANDONGEN:   I accept that.  I simply point out ‑ ‑ ‑

KIRBY J:   That gives rise to the inference that he had no idea he was being recorded, especially because it is such a short time interval.

MR VANDONGEN:   Justice Wheeler in the court below made the point that there was no evidence and she said that she was prepared to proceed on the assumption that there was a possibility that he did not ‑ ‑ ‑

GUMMOW J:   Where did her Honour say that?

MR VANDONGEN:   That is not referred to in the Court of Appeal but in the transcript, which your Honours will not have, I can perhaps ‑ ‑ ‑

GUMMOW J:   This is the transcript of argument?

MR VANDONGEN:   This is the transcript of argument at the voir dire, which your Honours will not have.  If your Honours will permit me to read from – it is page 30 of the transcript where her Honour Justice ‑ ‑ ‑

GUMMOW J:   What date?

MR VANDONGEN:   This was on 21 June 2004.  She said, “The accused says through his counsel that he did not know that the conversation was being recorded.  Again, although that is a matter of submission, I am prepared to assume that it is at least possible that he was not aware of the presence of the camera and of the recording of the equipment.”  So that was

the basis upon which she proceeded.  I would have to, for completeness sake, say that at the trial the accused did give evidence that he did not know that he was being recorded.

KIRBY J:   I did not hear that last statement.

MR VANDONGEN:   At trial when the accused gave evidence after the video had been admitted he did give evidence that he did not know that he was being recorded.

GUMMOW J:   Was he cross‑examined on that?

MR VANDONGEN:   No, evidence‑in‑chief.

KIRBY J:   It is commonsense, really.  I know you have changed from the Crown to the State but you have not stopped having the obligations of a prosecutor for the people.

MR VANDONGEN:   I accept, your Honour, the special leave application ultimately will be resolved on the question of statutory construction, but in my submission it is important to understand and appreciate the background by which the matter came before this Court and in particular that there was no evidence about this issue at the time the issue was determined.

KIRBY J:   You often have in this Court to apply Immanuel Kant’s question, “What happens if this becomes the general rule?”  If this becomes the general rule then the operation of the scheme of the legislation has a real risk of being undone.  That rather infers that that would not have been Parliament’s intent.

MR VANDONGEN:   In my submission, section 570D was not intended to cover this situation.  Parliament’s intention and purpose was to leave to the common law questions of whether or not situations such as this should be excluded in the exercise of the discretion.  The discretion to exclude on the basis of reliability, unfairness ‑ ‑ ‑

KIRBY J:   I understand that but there is the anterior question whether the statute has the implication that Chief Justice Gleeson seemed to think, or whether it is all left to discretion and there may be an arguable point in this.

MR VANDONGEN:   If your Honours please, they are my submissions.

GUMMOW J:   Thank you.  Anything in reply, Mr Tavener?

MR TAVENER:   Thank you, just very briefly.  One, we would say this is not a rare situation where someone has interviewed the client in the

interview room and taken them to somewhere else in the police station.  So, one, it is a matter of general interest.  Two, it is my understanding that it was common ground that the appellant was unaware that his comments were not being recorded.

GUMMOW J:   Common ground at what stage in the litigation?

MR TAVENER:   At the appeal stage, prior to the appeal stage.  So prior to the matter being heard in the Court of Appeal it was common ground that he was not aware that he was being ‑ ‑ ‑

KIRBY J:   It is common ground in any case, a compelling inference which only the prosecutor for the State, now, has objection to.

MR TAVENER:   I will not say anything about that, your Honour.

KIRBY J:   You are showing a real shift in the approach of the prosecutors.

GUMMOW J:   Anyhow, the point is your opponent now accepts that that is so, is that right?

MR TAVENER:   I understand ‑ ‑ ‑

MR VANDONGEN:   I do, your Honour, yes.

GUMMOW J:   Thank you.

MR TAVENER:   We would say that, as with statutory construction, the difficulty is this does not fall easily amongst the matters mentioned, the voluntariness, fairness, public policy or indeed look into purpose of legislation.  The problem is the matter has arisen because this type of behaviour was not contemplated by the legislation.  Thank you.

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 10.40 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.46 AM:

GUMMOW J:   There will be a grant of special leave in this matter as a one‑day matter.  We expect counsel to give very full attention to the issues of construction that have been flagged in the course of argument.

HEYDON J:   I would be inclined to bring a flak jacket along if I were you, Mr Tavener.

MR TAVENER:   Thank you, your Honour.  I will make a note of that, your Honour.  In response to what your Honours have raised during the course of the hearing might we be allowed a day’s notice to file an amended – just to tidy up our grounds or a draft notice?

GUMMOW J:   What do you mean, tidy up?

MR TAVENER:   Not to add or change.  I am happy with the way they are but if – just talking to my friend, if we ‑ ‑ ‑

KIRBY J:   I think they do need a bit of attention.

MR TAVENER:   Yes, just so we identify the issues more carefully, that is all.

GUMMOW J:   If the amendment you propose is acceptable to your opponent that will be okay.

MR TAVENER:   Thank you, your Honour.

GUMMOW J:   If there is any disagreement between you it will have to come before a Justice to sort it out.

MR TAVENER:   Thank you.

GUMMOW J:   We will adjourn now until 10.15 am on Tuesday, 7 November 2006 in Canberra.

AT 10.47 AM THE MATTER WAS CONCLUDED