Carr v The Queen

[1988] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H2 of 1988

B e t w e e n -

DENNIS ROBERT CARR

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

WILSON J
BRENNAN J
DEANE J

Carr

DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 JUNE 1988, AT 10.21 AM

Copyright in the High Court of Australia

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MR H.J. KABLE:  May it please the Court, I appear for the

applicant with my learned friend, MR D.J. PORTER.

(instructed by Zeeman Kable & Page)

MR D.J. BUGG:  May it please the Court, I appear for the

respondent with my learned friend, MR A.G. MELICK. (instructed by the Director of Public Prosecutions)

WILSON J:	Yes, Mr Kable?
MR KABLE:	May it please the Court, this is an application
for special leave to appeal from a judgment of
the Court of Criminal Appeal of Tasmania and

I hand up our written outline of submissions

to the Court together with the additional copies

required and a summary of the facts.

WILSON J:	Thank you.
MR KABLE:	Your Honours, there is a preliminary matter.

The application for special leave to appeal was,

in fact, filed out of time and I refer this honourable

Court to paragraph 11 of my affidavit as to the
circumstances surrounding that late filing of

the documents and the Director - - -

WILSON J:  We have read the papers relative to that matter,

Mr Kable, and I think you should just proceed

to the merits of the application for special

leave.

MR KABLE:  May it please the Court. Your Honours, in respect

of the first point referred to in the outline of submissions on behalf of the applicant, at

this moment throughout this countrv it is reasonable

to assume that 50 per cent of the courts presently

sitting are dealing with criminal matters and

that a significant number of those courts are

likely, at this moment or toward the end of this

week, to be involved in the adjudication of a

matter which relates to the use or otherwise

which should be put to what I have described

in the submissions as a disputed, uncorroborated
alleged oral admission.

That phrase, whilst long, is important because it is a phrase that has been used to

describe an oral admission ascribed to a defendant
or an accused which oral admission has none of

the features that are referred to in the various

High Court judgments that I will refer this honourable

Court to later surrounding it.

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I will, in the course of argument, refer

the Court to a number of cases of this Court

where observations have been made as to unsigned

records of interview, what His Honour Mr Justice Wright

described as "pejoratively verbals" but the

significant point that I wish to make at the

outset is that the case concerns an ascribed

oral admission which does not have any of the

features referred to in any of the judgments

of this honourable Court.

(Continued on page 4)

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MR KABLE (continuing): It is an oral admission which was

disputed. It is an oral admission which, in my

respectful submission, is uncorroborated in the sense

that there is nothing external to the admission or
to the police conducting the investigation of the

crime which corroborates it, and there is nothing

in writing in particular which provides written

corroboration.

WILSON J:	You are putting aside the interrogating officer?
MR KABLE:	Yes, I am putting aside the interrogating officer and

I will be dealing with him specifically, if it please

Your Honour, in due -

WILSON J:  I take it he was not involved in the investigation?

MR KABLE:  It is correct to say that he was not involved in the actual investigation. His Honour

Mr Justice Neasey in the Court of Criminal Appeal

described his evidence as peripheral, whereas
His Honour Mr Justice Wright attributed greater
significance to that evidence in his assessment.

My submission is that the observations contained in

the various judgments of this honourable Court when

using the word "impartial" lead to the conclusion

that impartial should be given a wider meaning,

ie not to a policeman or policeperson in the

station at the time the investigation is being

undertaken, and there are specific references to the
type of impartial person who might be desirable in

some of the judgments to which Iwill make reference in

due course.

This Court, if it please Your Honours, has, in

two recent cases, made significant observations as to

the utilization of documents to support oral

admissions and, of course, those observations are to

be found in DRISCOLL's case, and in STEPHEN's case.

This case relates to the utilization of and

directions to be given to juries in respect of the

oral evidence of such admissions. It is submitted,

in so far as the question of special leave is

concerned, that because this type of evidence is

likely to occur throughout the country, and because

this type of evidence is likely to require

consideration by courts throughout the heirarchy of
courts, from magistrates courts to courts of criminal

appeal, that it is appropriate for this Court, in the

light of the previous decisions of this Court, and in

the light of the public inquiries which have been

conducted,which inquirers have commented upon this type

of evidence, it is submitted it is appropriate for

this Court to articulate the approach which should be

taken by a trial judge, or alternativE=ly a magistrate

sitting as judge and jury, when considering this type

of evidence.

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MR KABLE (continuing): It is submitted that the judgment

of Mr Justice Neasey in the Court of Criminal Appeal

is a persuasive dissenting judgment and establishes

a sufficient degree of conflict between the judges

of the Supreme Court of Tasmania to warrant this

Court's adjudication upon the issues raised in this

case and it is submitted that that degree of conflict

creates a need for an authoritative pronouncement

as to the approach to be taken by trial judges in of evidence.

It is submitted further that that conflict is

heightened by the apparent inconsistency between

the judgment of Mr Justice Nettlefold in this case

and His Honour's judgment in BOHDAL's case where

His Honour decided - within the last 12 months, where

His Honour described unsigned records of interview

as suspect evidence. Apparently, His Honour has

resiled from that observation. That resiling is

apparent from His Honour's judgment in this case.

WILSON J:	He refers to it and does not resile from it in terms.
MR KABLE:	Yes, Your Honour. His Honour refers to it but if

I could take Your Honour to - - -

WILSON J: Do not let my comment take you out of your course.

MR KABLE: If it please Your Honour, it is appropriate

specifically to refer to what His Honour '

Mr Justice Nettlefold says at page 172 of the

application book and to analyse His Honour's judgment

to highlight the conflict that I am submitting occurs.

BOHDAL's case, if it please the Court, was reported

at 24 A Crim R 318. The crucial issue in BOHDAL's

case, or one of the crucial issues, was whether the

jury door was open at any time. However, in the

course of His Honour Mr Justice Nettlefold's judgment,

at page 322, His Honour made observations as to

unsigned records of interview. (Continued on page 6)

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MR KABLE (continuing): If I can refer the Court to the

passage connnencing half-way down the page, where

His Honour observes:

I have described those unsigned

records of interview as "suspect evidence".

By that I mean they belong to a class

of evidence now causing wide concern throughout the nation. Wide concern because with distur~ing frequency prisoners,

including experienced criminals, are

supposed to have admitted all in the bowels

ot a police building only to repudiate

it all in court. And they are supposed to

have admitted the truth of the record

orally but did not sign it. Concern

about this class of evidence is being

expressed even by wide groups of laymen

who take the trouble of reading newspapers

of good quality.

And His Honour then makes a reference to a

publication and to oft quoted passage in THOMPSON's of credit, that the learned trial judge had given
case. In His Honour's judgment in this case,

the jury a sunnning up_ which., save and except for the

complaint which forms one of the grounds of appeal

before this Court, was an impeccable sunnning up

and His Honour at page 170 indicated that he:

did not think that there is any rule of

law which i:equires a trial judge -

must warn a jury along the lines suggested in

ground 3. His Honour continued:

I do not think there is any rule of law which requires a trial judge in an

uncomplicated case like this one to

warn a jury that there is a special need

for caution before finding that they

are satisfied beyond reasonable doubt

that a police officer was not lying

when he said that he heard the prisoner

confess.

His Honour then refer to SPENCER's case and I will come back to SPENCER's case in due course if it

please the Court because•, in my respectful submission,

the very important point to be extracted from

SPENCER's case was that a warning of the type sought

in this case was in fact given and that it was

connnon ground that it should have been given. SPENCER's

,.,.

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case was about, in my respectful submission, whether

there ought to be some precise formulation of the

warning and whether the concept of a warning to a

jury that it was dangerous to convict as distinct

from a warning to cautiously scrutinze the evidence

was required, because it is clear from a reading

of Lord Ackner and Lord Hallsham's judgment that it

was common ground that the jury in SPENCER's case

were told and should have been told to be cautious

in their assessment of the evidence.

(Continued on page 8)

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MR KABLE (continuing):  Mr Justice Nettlefold, therefore,

in my respectful submission, at page 172 observes: In the circumstances of this case it would have

been quite inappropriate for His Honour to

"warn" the jury of "a special need for caution"

and "the reason why such warning should be given"

Now, in my respectful submission, that observation does

not lie easily with His Honour's observation in BOHDAL's
case but, more specifically, is in direct conflict with

the observation of His Honour Mr Justice Neasey at page 167 of the application book where he observed

about five lines from the top of the paee:

It would also have been appropriate, in my view, to warn the jury of the difficulty which even

experienced judicial officers often have in

being able to make with confidence a subjective

judgment as to whether a practised witness, from

observation of his demeanour and consideration of the content of his evidence, is telling the

truth or not; and that they should consider

carefully whether they felt able to make such

a judgment.

His Honour had previously observed at page 166 that:

I think that in the present case,

notwithstanding the overall fairness and care

with which the trial was conducted, the

circumstances were such that the jury should
have been warned specifically that since proof

of guilt depended primarily upon their acceptance of evidence by police officers that the appellant

had made oral admissions which allegedly had been

recorded in an unsigned record of interview, they

should scrutinize that evidence with great care

before accepting it as the basis of proof of guilt.

And it would not, if it please Your Honours, come as

a surprise that two of the grounds in the notice of

appeal which are filed in this document come from

those two passages of His Honour's judgment.

Mr Justice Wright at page 185 in His Honour's judgment

observed that he was:

Unable to see the necessity for a trial judge

to give specific warnings about police evidence

so as to suggest to the jury that judicial

experience, as distinct from mere judicial

awareness of repetitive public assertion of

police perjury, is such as to cause immediate

suspicion of any such testimony.

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MR KABLE (continuing):  And His Honour had adverted earlier

at page 184:

In my opinion this is not a case in which

it can be said -

I am sorry, that is not relevant at this time.

It is submitted that there is a clear conflict

of opinion as to the desirability of such a warning
being given and, in fact, a conflict of opinion
as to whether there ought to be a rule of practice

that where the Crown case substantially or solely

depends upon evidence of the type under discussion

there is a need for special scrutiny of the evidence.

DAWSON J:	What do you mean by special scrutiny?
MR KABLE:	What I mean, Your Honour, is that the jury should

be told to look very carefully at it because it

is of the type of evidence that ca~ in the circumstances

such as this, be easily made up and difficult to

refute. The phrase "special scrutiny" was the

phrase used in TURNBULL's case when Their Honours
in the Court of Appeal articulated the warning

to be given in identification cases and it seems

that it is a phrase which has not been amplified

to a greater extent than that. What I am submitting

is that the jury should be told:  "Be careful".

DAWSON J: ~r Kable, I would like to know what that.means. Does

it mean that evidence of this sort has to be proved
to a standard higher than beyond reasonable doubt,

because the jury are told that?

MR KABLE:  No. It does not mean that it has got to be proved

to a standard higher than beyond reasonable doubt.

DAWSON J:  What does it mean?

MR KABLE: It means in reaching the assessment as to whether

you are satisfied beyond reasonable doubt that

the admissions were made. It is a warning bell,

"Be careful. Look very carefully at this evidence"

because it is a type of evidence that, to use a phrase that is referred to in the documents, is

apparently safe to act upon but may not be - to

issue a warning in the terms that His Honour

Mr Justice Neasey did, that even experienced judicial

officers - and His Honour said of himself, in many

years at the bar and the bench he has difficulty

in having induced in him a state of mind of satisfaction

beyond reasonable doubt where there are experienced

police officers and a witness contrary.

DAWSON J: But you ca~not ~~y that as a general rule. If

you will forgive the expression, there are verbals

and verbals and the circumstances will differ from

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case to case.	You appeared for the accused
in this case,	did you?

MR KABLE:	I did, Your Honour.
DAWSON J:	And no doubt you reminded the jury time and time

again, maybe in terms of Mr Justice Cave in

THOMPSON's case of the dangers of this sort of evidence.

MR KABLE:  Your Honour, I did - - -

DAWSON J: But it is in that context that the judge gives

his charge.

MR KABLE:  Yes, Your Honour, however my submission would

be that it is of fundamental importance for a trial

judge to also echo what counsel might say because

it is inescapable that in a jury situation an

observation from a trial judge will be accorded

much greater significance than the observations

from either side.

DAWSON J:  But perhaps that is the very reason why the trial

judge should not enter into the arena. Why should

• II h

h e say 1n every case: You must suspect t ese

witnesses" - namely the police witnesses.

(Cohtinued on page 11)

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MR KABLE:  My submission, Your Honour, would be because

there is a - again to utilize the TURNBULL

example - real risk that on occasions jisputed

evidence which is not in fact correct will not

be given the scrutiny that it deserves.

DAWSON J: Well, the trial judge here told the jury that

this was crucial in this case, did he not?

MR KABLE:	Yes.
DAWSON J:	And that they had to be satisified beyond reasonable

doubt that the admissions were made.

MR KABLE:	Yes, Your Honour. There was no - - -
DAWSON J: Would it not be superfluous then to say, "and	.

you must be very careful about this crucial issue"?

MR KABLE:  Not in my submission. because, in my respectful

submission, the position of a trial judge in

giving a warning as to various classes of evidence

places an obligation on the jury to follow that

warning. That becomes a very serious matter in

their consideration, as distinct from the

observations by counsel, who necessarily are

at either side.

DAWSON J: What you are really asking the judge to say,

are you not, no matter in what phraseology it

is couched, is that this evidence is suspect?

MR KABLE: "This evidence may be suspect and be very

careful with it." That is what I am asking, yes,

in non-legal terms. I am saying, to use a

non-legal term, "Just hold off, stand back and

look very carefully at it" because there will
be evidence which has got a signature, or which

has been affirmed in front of a magistrate, or which has - all these other things. But, with

just hold-off because experiE:!nce has shown us	this sort of evidence where there is nothing,
that not all the time, perhaps not a majority of the time, but interestingly again, if I come back to TURNBULL, the Court there said that it
is not a majority of cases where an injustice
was likely to have occurred, but that it could
not b.e said that there were not a number of cases where that occurred. What I am submitting
is that that is the sort of direction, just,
"Be careful where there is nothing else".

I am not submitting that that sort of

direction ought to be 3ivc~ where there are any

of the other features that have been referred to

in the various judgments, but where the case is

wholly and soley fought on the question of an

oral admission ascribed to an accused then, in

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my respectful submission, in order for the judge

to direct the jury to t~e r~al evidentiary
questions and to the type of problems alluded

to and expressly referred to by Mr Justice Neasey,

it is a question of hold-off. It is not a

question, and I have never argued and do not argue,

that the type of warning that historically was given

in the sexual complainant cases, the accomplice

cases, the cases referred to in SPENCER and in

Mr Justice Brennan's judgment in CHAMBERLAIN, it

is a different sort of warning; it is akin to an

identification, very much akin. I mean, the

argument runs - if I may put it that way, Your Honour,

from the identification cases, from the observations

of the Court of Appeal in TURNBULL, which have now

been applied in many areas, particularly where.

in the preliminary part of the case it observed,

that in my submission is significant when answering	if I might just refer Your Honour to an observation
the question that I - - -

WILSON J: Which case is this, Mr Kable?

MR KABLE:	TURNBULL's case, (1977) QB, if it
please the Court, .. was the case which
first articulated the warning to be given in
identification cases. In my submission, the process cf. reasoning which lead the Court of Appeal to take the step it did in TURNBULL's case, which case has subsequently been applied, is exactly
the situation that can apply presently. If I might
take the Court to page 228 where, in the judgment of Lord Widgery, about the second paragraph:

(Continued on page 13)

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MR KABLE (continuing):

Each of these appeals raises problems

relating to evidence of visual identification

in criminal cases. Such evidence can bring

about miscarriage of justice and has done so

in a few cases in recent years. The number
of cases, although small compared with the

number in which evidence of visual

identification is know to be satisfactory,

necessitates steps being taken by the courts,

including this court, to reduce that number

as far as possible. In our judgment the

danger of miscarriages of justice occurring
can be much reduced if trial judges sum up to

juries in the way indicated in this judgment.

DAWSON J:  You see, this sort of evidence is different. When

you are talking about identification you are talking

about objective difficulties which exist with respect
to that sort of evidence, physical difficulties. But
here what you are saying in relation to this evidence

is that the credibility of the various police witnesses

is suspect, a different thing reall~ is it not? It may or may

not be, and it may or may not be appropriate for the
j tidge to say, "Look, I think in this case you may

well think that this evidence is suspect, but as

a general rule one cannot lay down a proposition."

MR KABLE:	Your Honour, I cannot quarrel with the distinction that Your Honour draws between the nature of the
evidence, but the way that I answer the distinction,
Your Honour, is this, that the quality of it being
suspect evidence is the determining factor as to
whether the warning ought to be given and if it be
appropriate or correct to describe it as suspect
evidence within the type of reference that I have
just made reference to, and particularly bearing in
mind that in TURNBULL's case it was an extra judicial
connnittee's inquiry which caused the court to go to the stage of being worried about this type of evidence,
then my argument and my submission would be that with
the large number of inquiries that have identified
this type of evidence as problem evidence and with
the observations of this Court as to the ways in which
problem evidence could be better corroborated or
better confirmed, that the description "suspect
evidence" is an appropriate one and that it is in
that situation that the warning ought to be given,
and my submission is that notwithstanding the
distinction between objective evidence of the type
of visual identification and this sort of evidence,
if one has regard to how it was that the court became
concerned about visual evidence, which was its own
experience,  and a connnittee which made a particular
finding, then we find in an analysis of the cases, to
which I have made reference, the very same process

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developing, and we find a number of cases where
this Court, and courts of criminal appeal, have

made observations of the type that I have read from

Mr Justice Neasey.

We find where there are, and I refer to a number

of them in paragraph 4 of the outline of submissions

relating to special leave, a dramatic number of

inquiries where this type of evidence has been

highlighted as problem evidence and has been

documented as occurring and thus those findings, in

my respectful submission, warrant the description

"suspect evidence", and if that be a description that

is warranted by virtue of experience and/or an analysis

of the reports, then that description requires, in my

respectful submission, a response.

DAWSON J:  You see, there are difficulties with it because

really when you say "suspect" you are covering up

something. Really what you are asking the trial judge

to say in every case is, "Now, you've got to approach

this evidence upon the basis that the policemen who

are giving it may be lying, probably are lying" -

'~robably~ is probably the word that is suspect.

MR KABLE:  Or be alive to the risk that they might be, because

there is nothing either way. Obviously, it is a

fundamental part of my submission that such an

observation, such a warning from a trial judge is

of much greater significance in causing the jury to
properly perform their task than would be the

observation of defence counsel.

(Continued on page 15)

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DAWSON J:  I am just testing you - whether it is

right to ask a judge to say 1n every case of

this sort to the jury that they have to more

readily accept that these policemen have been

lying than they would with other witnesses?

MR KABLE:  Yes, I am conscious that that is - - -

DAWSON J: It is very appropriate for counsel's address.

MR KABLE:  Yes, and that is why in the grounds, the phrase

"carefully scrutinize or a pp roach with cau t iot1" -

It is not a phrase that has as a component a starting point, "Look at this evidence because it is likely

to be false". The submission does not go that

far.

DAWSON J:  I cannot see - I am sorry to interrupt you,

Mr Kable - I cannot see any other basis for saying

that you must carefully scrutinize it other than

that it is likely to be false. Which is to say

other than the policemen are likely to have been

lying.

MR KABLE:  It is a warning: be careful to make sure it

is not. Your Honour may be of the view that

that is a semantic - - -

DAWSON J:  Why do you have to be more careful of this evidence

than others? The only answer is because the

policemen are likely to have been lying in

the circumstances.

MR KABLE:  Because experience shows that in cases that

can occur and, as I indicated from TURNBULL's

case, it is not said that it is in 51 per cent

of the cases; it is not said that it is however

in a miniscule number of cases. The mere number

of cases that have warranted the attention of

appellate courts warranted the attention of appellate	courts to this issue in itself, in my respectful	submission, and the cases that have come to this
Court, disclose that I am not discussing just
an isolated case here or there and when we get
to the stage, and, I hope, I do not propose
to be tedious and take the Court through every
one of these reports, but there are so many all
of which reach a finding that this evidence is
a problem area of evidence and I am being very
cautious to keep the argument away from what
ought to be the case. I am utilizing the reports
to enable the identification of the evidence as a problem area of evidence and that is a
distinction that, in my respectful submission, is important but it is a distinction which I
have submitted enables the tag "suspect evidence"

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to be u~ed and thus the more research that was

done in respect of this issue, the closer the process that I am urging this Court to embark

upon is to what occurred in relation to
identification evidence.

When one has regard to the cases - DRISCOLL, WRIGHT,. STEPHENS - and one has regard to the

multitude of ways in which evidence would not
be correctly or accurately described as "disputed
uncorroborated alleged oral admissions" then

the ease with which the type of problem I am

adverting to could be got over is at once apparent.

It is not a case, lest it be thought, that if

this Court were to reach the view that there

is now a rule of practice, or there ought to

be a warning or there ought to be some articulation

of the concern, that does not in any way impede

the investigative process because the very suggestions

that have been made throughout - and I will come
to them briefly in due course - the other cases

show, as it were, a path through the woods.

My submission is that this type of evidence

now attained this status where it is encumbent

on the Court to say "just be careful" and, in

my respectful submission, as I wi.11 indicated

in a moment and I will not repeat myself, the

reasons why we now get to that stage are

for almost exactly the same reasons as identification

evidence achieved that status.

BRENNAN J:	Mr Kable, you are putting it on a basis quite different from that which was adopted by
Mr Justice Neasey,  are you not? Mr Justice Neasey' s
proposition was not that the evidence itself
falls into some special category  dnd, indeed, it
is a common place of dispute as to whether
a confession was made 1 but he was putting it
on the basis that it 1s difficult with experienced
witnesses to use the demeanour of the witness as the appropriate touchstone for determining
the truth or falsity of the allegation.

(Continued on page 17)

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MR KABLE I was not seeking to put it on a

completely different basis to tne way His Honour

put it. The gravamen of what ·His Honour said was

that His Honour found it very difficult

notwithstanding His Honour's experience on the bench

of the evidence that I have urged, ie that it is
and at the bar with practised witnesses to himself
reach a decision about that. That is the very type
of warning or the very type of comment that I am
submitting ought to be made to a jury. It is whether

suspect evidence, or whether it is an observation

based on experience which observation then ought

to be brought to the attention of other juries because

that experience is an experience within the courts

which shows of the risks. It does not matter, in

my respectful submission, at the end of the day.

WILSON J:  You wi 11 be taking us, later _on,. to what the trial

judge actually said so we can see how far it measures

up to the standard you are adumbrating -

MR KABLE:  Yes, I will, Your Honour. The passages are

precisely referred to in the submission on facts,

that I handed up to Your Honours, in the final

paragraph and I will be but I was at this stage merely

addressing the Court as to the question of special

leave.

Your Honours, as to this aspect, I would wish

to refer the Court now to a number of reports. Many

of the reports are voluminous and many of them deal
with a variety of matters and the course that I have
taken and I hope it is a course that the Court finds

of use is to photocopy the front page of the relevant

reports and then annex the relevant pages thereto.

I was not going to go through and ask the Court to have regard to each one of them individually because

it struck me that that might be time consuming and

the Court might not be inclined to do that. Suffice

it to say that the reports referred to adjacent to

paragraph 4 of my outline of submissions, with which	reports, no doubt, the Court is familiar: the Murray
report, the Mitchell report, the Australian Law Reform
Commission Report on Criminal Investigation, the
Beach report, the Lucas report from Queensland, and
the Crawford report from Tasmania, with which the
Court may not be familiar, together with the New
South Wales Attorney-General Criminal Law Divisions
Report and the Shorter Trial Committee Report prepared in Victoria under the auspices of the
Australian Institute of Judicial Administration and
a minor reference in the Stewart Royal Commission
Report, all of those reports, and the extracts that
I have made available. recognize that there can be

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a problem with this type of evidence and perhaps

if I might just take the Court to the Lucas Report

where it is put in the clearest terms.

The Lucas Report, at page 14 - there should

be copies available for the Court - and there,

His Honour observed:

We have come to the conclusion that the

fabrication of evidence by police officers -

particularly of confessional evidence - does

occur. The sad truth is that "verballing", as it has become known, is a device that is not uncommonly employed by certain members of

the police force. And, for what it may be

worth, we are also satisfied the practice is

by no means peculiar to the State of Queensland.

27. It should be pointed out at this stage

that our finding by no manner of means implies

that all or most members of the police force

have at one time or another committed perjury.

It was impossible to expect that the true

incidence of "verballing" would be revealed

to us. However, we are in a position to express

some view as to the frequency of its use.

At paragraph 28 there are some further observations

and then annexed is, at page 30, paragraph 42:

It would be bad enough if there things happened,

but nevertheless one could guarantee the

correctness of the decision ultimately obtained.

In our opinion, of perhaps all the answers to

questions of fact that must be given in the

courts, those that are concerned with what

really occurred in the situation under discussion

are amongst the most susceptible to error.

(Continued on page 19)

C2Tll/2/ND	18	7/6/88
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MR KABLE (continuing):

This is because here, usually, there are at

least two experienced witnesses arrayed against

the one accused who, not infrequently, is a

person of dull intellect with some history of

prior involvement with the law. Very, very

seldom is there any outside evidence to assist
the determination; it is the word of the police

officers against the word of the accused.

DEANE J: Is that still the case in Tasmania, that very seldom

is there any outside evidence?

MR KABLE:  I am being cautious, to be precise, to -

DEANE J: Well, have any procedures been introduced in Tasmania

such as recording interviews, et cetera.

MR KABLE:  No. The strict position in Tasmania is that, at the

moment, the only procedure is the interrogation

register procedure which was utilized in this case.

However, there have been occasions where there have

been video re-enactments of murder investigations.

There has been an announcement - and I do not know

if my friend objects to me mentioning it - by the

Attorney that a pilot scheme as to recording is to

be introduced.

DEANE J:  No, well, I was not asking you about the future.

MR KABLE: No, but I was being cautious. But, certainly, there

have been video re-enactments in murders but there has

been no other procedures invoked to independently

corroborate and that is one of the reasons why I

referred this honourable Court to the Crawford report

because, although it is a report that was prepared in

very different circumstances to all the other reports

under discussion, it was a report prepared by a

Mr Crawford who is a barrister appointed pursuant to

an order in council dated 25 August 1987 to investigate

whether two police officers had, in fact, falsified a

breathalyzer reading. The observation of Mr Crawford,

the investigate~ and the relevant pages have been

photocopies for this Court, was that of the three

police officers interviewed by inspectors, they each

hid upon themselves a tape recorder so that what was

said between themselves and the relevant inspectors

could be recorded and I have put that in to indicate

we have not had in Tasmania any inquiry of the type

referred to in paragraph 3 but Mr Crawford's report

at page 102, where he observes:

I make some preliminary comments about the

procedure involved when persons are being

interviewed by police officers and the

desirability -

C2Tl2/l/SH	19	7/6/88
Carr

I leave that part alone -

I have had evidence from three police

officers that when they were being interviewed

by Chief Superintendent Roffe and Inspector

O'Garey they had hidden on them tape recorders.

..... If police officers find it necessary to

tape record interviews with them, it speaks

volumes for the need.

So I put that report in to indicate that observations

which may be made in other States are not observations

of which it can be said have no relevance in Tasmania

and, in fact, could I go one step further. There is

a case that I will refer the Court to a little later,

an unreported decision, again, of Mr Justice Neasey,

in a case of WALKER, where His Honour made a grant of

costs under the TASMANIAN COSTS IN CRIMINAL CASES ACT,

1976, which is an Act which authorizes the Supreme

Court to grant costs to a successful defendent in

certain circumstances,and His Honour, in that case,

made observations on almost all fours with those

contained in His Honours's judgment in this case and

His Honour's discretion to award costs was positively activated. That judgment - - -

BRENNAN J:  When was that?

MR KABLE: It was on 22 June 1987, Your Honour. It is the case

of REG V WALKER and - - -

BRENNAN J: That was before or after this investigation?

MR KABLE:  The chronology, Your Honour, was that the trial of

Mrs Walker took place after the investigation of this

crime. The trial of Mr Carr took place while

His Honour Mr Justice Neasey's decision as to costs

was reserved. Mr Carr was convicted on 17 June 1987

and His Honour Mr Justice Neasey's decision as to

costs was given on 22 June 1987. Perhaps if I just

take the Court to that decision now. That is an

unreported judgment of His Honour, No. 31/1987.

As I indicated, there is an Act of Parliament in which authorizes the Supreme Court or, in fact, a

lower court to make an order for costs in favour of

an accused in certain circumstances.

(Contined on page 21)

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MR KABLE (continuing): His Honour at page 5 indicates the

admissions which were sworn to have been made by
Sergeant Brazendale and Mr Hinds in Mrs Walker's case and at page 6, His Honour referred to them. But the crucial passages of his judgment appear

at pages 19, 20 and 21, where His Honour made

observations in very similar terms to those contained

in this present case. His Honour said:

In summing up to the jury, I left

them in no doubt that my view on the

evidence was that there was a grave

danger of injustice being done to the

applicant if she should be found guilty

of the charge on the evidence before them,

unless they felt sufficiently confident
of their ability to make a subjective
judgment about the truth or otherwise

of the evidence of oral admissions given

by the police officers, so as to rely

upon this as the principal basis of being

satisfied of the applicant's guilt

beyond reasonable doubt.

His Honour observed at page 20 at the bottom

paragraph - - -

DAWSON J: May I stop you there, Mr Kable. That sort of

charge is exactly what I had in mind when I was speaking to you. There he is conunenting on the

facts of the particular case, but it is a very far

cry from requiring, as a rule of practice let
alone a rule of law, that the judge should in every

case give a stereotype direction of some sort. And

you see, what His Honour does there is regard this

as a conunent on the facts in the particular case,

and no doubt an appropriate conunent?

MR KABLE:  Yes, if it please the Court. His Honour, it would

be my submission, goes a little further in his

judgment in CARR in that His Honour articulates that

in a case, to use His Honour word, which "substantially"

depends upon this type of evidence, then that is

an appropriate observation that should have been

made. I was about to refer the Court to His Honour's

observations at the bottom of page 20 and the top

of page 21 and I will not read those paragraphs

aloud, but as indicated in my submission, they are

observations of particular significance. And that

was what His Honour told the jury as to Mr Hinds
and Mr Brazendale in WALKER' s case-. That judgment

was published, as I indicated,some five days afer

the conviction which is currently the subject of

this ap:i:-,lle:ation for special leave to appeal.	And
it is obvious from a reading of the case that

certainly no direction was sought in the trial and

I take responsibility for that. Once this judgment

C2Tl3/l/SR	21	7/6/88
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has been published then one obviously would seek

a direction. Your Honours, I was answering a

question from Your Honour Mr Justice Deane when I

went on to WALKER's case and the answer is that at

this stage there is no evidence that anything other

than an interrogation register procedure of the
type in this case or referred to in that case occurs,

although there have been examples where there have

been video reenactments as I indicated in murder

cases.

Your Honours, as indicated, a number of reports

have been prepared. I refer to them to highlight

the problem with the type of evidence - I do not
refer to them for the purpose of seeking a non-legal

remedy to that situation but, as I indicated in

answer to a question from Your Honour, to support

the conclusion that the evidence warrants the

description "suspect". Those cases and some

observations from overseas were collected by

Mr Justice Kirby in an article in 53 ALJR 626, at

pages 635 and following. His Honour there observed

that in other countries there were different

procedures which were adopted. His Honour made

refer to India, England, and His Honour was in the

main concerned with articulating the arguments as

to why video and sound recording ought to be

introduced and I am deliberately in the Court of

Criminal Appeal and here keeping away from that.

(Continued on page 23)

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MR KABLE (continuing):  The collection of the examples

and the reports that His Honour refers to there,

in my submission, support the conclusion that I

have sought to put to the Court and the relevant

pages again I have annexed to - - -

BRENNAN J:  Are Justice Mitchell's comments on this paper

printed, do you know?

MR KABLE: Justice Mitchell's recommendations are available

to Your Honour. I have - - -

BRENNAN J:  No. I am just wondering where are her comments

on this paper.

MR KABLE:  They were not in the volume I had - sorry,

Your Honour. As indicated in paragraph 4 this

matter has also received the attention of the
Australian Law Reform Commission on Criminal

Investigation. That paper drew heavily on the

Beach inquiry and the Lucas report. I do not

propose to read - sorry, not the Lucas, the

Beach report only.

BRENNAN J: It was written before either of those.

MR KABLE:  No. Sorry?

BRENNAN J:  The Australian Law Reform Commission report was

written before either of those reports.

MR KABLE:  The New South Wales. I am· sorry, Your Honour,

I had them chronologically out of order. The

extracts from the Australian Law Reform Commission

report have been photocopied and presented.

Your Honours, as to the question of special

leave, it is submitted that those matters are the
significant matters. Paragraphs 5 and 6 of the
outline of written submissions as to special leave

will depend upon the cases to which I propose to

refer in a moment,as will paragraph 7, but it is

important to note that it certainly is not
submitted that a warning of the type that was sought

to be given in SPENCER's case is suggested as

appropriate here and this Court had considered

SPENCER's case in a case of BROMLEY V KARPANY in which SPENCER's case was considered and I shall

come to refer to that in due course. But the

important distinction between SPENCER's case and the

present case is that in SPENCER's case the trial

judge - it was common ground - appropriately warned

the jury as to the type of evidence and what was

sought tn be ~one in SPENCER's case was that there

was to be a refinement of the warning to include

the words "dangerous to convict in the absence

C2Tl4/l/AC	23	7/6/88
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of corroboration" and perhaps if I do take the

Court to SPENCER's case, (1987) AC 129.

WILSON J:  What are you going to make of SPENCER's case,

Mr Kable?

MR KABLE:  I am going to make of SPENCER's case that the

warning that was given in SPENCER's case is

exactly of the type that ought to be given in this

case and that Mr Justice Nettlefold's utilization
of the judgment in SPENCER's case to reject the
validity of ground 3 was not a valid utilization
because, in fact, in SPENCER's case it was sought

to take the nature of the warning one step further

and therefore where His Honour in His Honour's
judgment quoted the passages from SPENCER's case

where Lord Ackner talked about the danger of a

ritualistic approach to warnings and magic formulae,

Lord Ackner was there referring to whether - and

that is at page 141 - there was a particular form

of words or, as His Honour said, incantation that

had to be used, no question arose in SPENCER's

case as to the desirability or otherwise of the

original warning being given and thus His Honour

Mr Justice Nettlefold's utilization of it to reject

ground 3, in my submission, was inappropriate -

that is the point that I seek to make from SPENCER's

case.

(Continued on page 25)

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WILSON J: Yes, the trial judge told the jury that they

should approach the evidence of the mental patients

with great caution and he explained why.

MR KABLE:	Yes.
WILSON J:	But the effect of the decision is to say,

well, every case must be considered on its own

merits, in its own circumstances . There is no

magic form of words which must be used.

MR KABLE:  I would not dissent from that, Your Honour, and

in particular what was sought to be imposed upon

trial judges in that case was the time-honoured formula that it was dangerous to convict in the absence of uncorroborated evidence and Lord Ackner

specifically refers to that at page 141 and he

observes, if I might just mention, if it please
the Court:

Given that it is common ground that a warning was required as to the way in which

complainants, the question is: was the warning	the jury should treat the evidence of the
sufficient?

His Lordship then refers to full warnings.

WILSON J: And that will be the question here - the

ultimate question.

MR KABLE:  The ultimate question is one step before that,

I would submit, Your Honour, and that is that there

is a warning required.	I certainly do not submit
Lord Ackner 1 s phrase, but a warning very much	that it ought to be the "full warning", to use
of the type that Your Honour just read from the
judgment, and that there is no magic formulae
but there should be something to put the jury on
Your Honour.
guard, on notice. That is the way I put it,

WILSON J: Yes. I appreciate the importance of the general

question that you are agitating. The ultimate

question will still be whether in fact the trial

judge did not do what you say he should have done,

albeit in words which might not have suited you.

MR KABLE:  Yes, I do not dissent from that proposition

at all, Your Honour, or submit to the contrary.

BRENNAN J: Well, there wi~l be another problem, will there

not, Mr Kabler that is that in this case there

was no request for a re-direction?

MR KABLE:  I am conscious that that is a hurdle I must -

there was no request for a direction.

C2Tl5/l/JM 25 7/6/88

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BRENNAN J: One can understand that because of the time

at which this occurred relative to the time at

which Mr Justice Neasey expressed his views.

MR KABLE:	Yes.
BRENNAN J:	But it is none the less a very substantial

hurdle for you to overcome, is it not?

MR KABLE:  I would submit not, if it please the Court,

when one has regard to the development - having

regard to His Honour's cormnents to the fact

that, as I said to the Court of Criminal Appeal,

it was only when I was actively preparing the

matter for the Court of Criminal Appeal having

regard, of course, to His Honour's decision

delivered afterwards, that it became crystallized

in my mind that, what I will be submitting to

Your Honour, the effect of those decisions is

that in fact a warning ought to be given. That

was what I said to Their Honours in the Court of

Criminal Appeal. Certainly, I cannot avoid the

fact that it was not asked for but, as Your Honour

has indicated, it was the judgment and then subsequent	looking at other authorities following His Honour's
judgment that lead to the view that that was the
stage the law had developed to.

BRENNAN J:	Can one postulate at this trial that there was a miscarriage of justice on the grounds of
an insufficiency of warning when at the trial no
application for such a warning was made? Is it
appropriate, in other words, for the trial to go
by default and for the issue to be raised on appeal?
MR KABLE:	The only answer that I can give, Your Honour, to

that question is that if it bathe law that a

warning should have been given, and if the error

was the not asking for it, if the Court is of the

view that there is. in fact a miscarriage of

justice, or there has in fact been a miscarriage

of justice, then the failure to ask for the

warning should not overrule that state of mind

and cause the conviction to stay.	I cannot put
it higher, or more precisely than that.	But if

the state of mind induced in the Court is that the
absence of the warning does lead to a miscarriage

of justice, and if the fault for not asking for it

rests with counsel who appeared at the trial

because they had not that - for whatever reason,

then that should not lessen the miscarriage of

justice, in my respectful submission. That is the

only answer I can give Your Honour as to that

question.

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MR KABLE (continuing):  Might I take the Court to the

page headed appeal, which is page 3 of the outline

of written submissions - the only other case that I

was going to mention at this stage was the decision of this Court in BROMLEY V KARPANY which was a case that considered the effect of SPENCER's case.

In my respectful submission, the type of issue that

is being ventilated in this case is very different

from the type of issue that was referred to in that

decision. The nature of the warning sought was a

different one - that is reported in 161 CLR - the nature

of the warning sought was a warning that it was

dangerous to convict and, in fact, the trial judge in

that case did, in fact, warn the jury in terms that

had been used in SPENCER and in terms that are sought

in this case.

KARPANY's case was about a warning of danger to

convict, as distinct from the type of warning that

I am presently urging upon the Court which is a warning

to carefully look at the evidence, and this Court did consider SPENCER's case in that case, and one of the

documents I filed in support of this application

indicated that that was not the case, but it had.

DAWSON J:  What was the Court doing in that case,

laying down a rule of practise, or a rule of law,

or what?

MR KABLE: In BROMLEY's case, the Court, in my respectful

submission, followed SPENCER's case in declining to

impose - to use the word of Lord Ackner - an

incantation or a ritualistic type of warning in that

case, the Chief Justice's judgment at page 319.

WILSON J:  It is emphasizing, is it not, that each case must

depend upon its own circumstances and a fair and

appropriate direction must be given.

MR KABLE:	Indeed, but in a case -particularly in this case, there was a warning given as to this type of evidence.
As I see BROMLEY's case, it was an attempt by the
appellant who had had a warning given on his behalf to further refine or precisely identify that warning,
but I mention that because that is a case where
this Court has considered SPENCER's case.

If it please the Court, I have handed to the Court

a su1Illl1ary of the facts of the case.	I do not propose
to read that through.	Basically the Crown case was

that on the day in question the accused entered into

which connected the accused, but it is correct and fair

a shop in Launceston,called the Personal Finance
Company, with a gun and thereupon held up the person
who was presently in that shop, and stole $3000.

C2Tl6/l/HS	27	7/6/88
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to say, as the members of the Court of Criminal Appeal

said, that there was no identification evidence

which was absolutely inconsistent with the accused.

WILSON J:  Mr Kable, the Court is generally familiar with the

evidence and the circumstances of the case and I think

you may proceed with your submissions on the basis

that the Court accepts that, if it had not been for the uncorroborated evidence of oral admissions there

would have been no case to go to the jury.

(Continued on page 29)

C2Tl6/2/HS	28	7/6/88
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MR KABLE:  I am obliged.

WILSON J: It saves going into the detail of the identification

evidence and the criticisms that can be made

of it.

MR KABLE:  I am obliged. There is only one fact that I

would wish to point out to the Court and that

is the fact that the witness, Maple, gave evidence
in the Court of Petty Sessions that he had never

seen the accused before, as distinct from a mere

failure to positively identify.

WILSON J:	Who was Maple?
MR KABLE:	Maple was one of the taxi drivers. There were
two taxi drivers, one of whom gave evidence that
he particularly looked at this person because
he thought he looked like someone who used to
work with him and his evidence was that he could
not identify the person.  Maple went one step
further because he was taken to the Court of
Petty Sessions the day after and asked if he would see the person and he said, "No", and then,
at the committal proceedings, he was asked if
he had ever seen the accused before and he said "No", and that is the only factor which I would
wish to refer the Court.

WILSON J: That simply reinforces the basis on which I

have suggested we can proceed for the purposes of assessing the special leave point and whether or not leave should be granted.

MR KABLE:  Yes, I am obliged to the Court. The next place,

then, that I would wish to take the Court if

I may is to page 3 of the written outline, the

document headed "Appeal grounds 4, 5 and 9".

In the submissions as set out thereunder

a number of cases and observations from cases

relating to confessions are to be found.

This Court would be well familiar with

THOMPSON's case and I do not pause to recite

the oft-quoted passage from THOMPSON's case in

England where a very strong Court made the well-

known observations about confessions. The two

cases of WRIGHT and DRISCOLL are referred to

and, in particular, those cases were given some

signficance by Their Honours in the Court of

Criminal Appeal. The observations at the relevant

pages are recited in my written submissions and

it is of importance, in my submission, that MACKAY's

case was referred to, which is a further useful

case about confessions but it should be remembered

that MACKAY's case involved a signed confession.

C2Tl7/l/SDL	29	7/6/88
Carr

Notwithstanding that particular piece of evidence 1n

that case - - -

WILSON J:  There must be something in the circumstances,

additional to the fact of an tmcorroborated oral

confession to make the verdict unsafe or

unsatisfactory? Either an inadequate direction

which is the subject-matter to which we have

been alluding or, as in WRIGHT's case, the existence

of contradictory evidence that could not be dismissed

as uncreditworthy? Is that not so?

MR KABLE:  I do not go as far as that, if it please

Your Honour, but in any event I would submit

in this case, where the evidence of identification

is as I have articulated; where the police have

sworn that within five minutes of this particular

armed robbery occurring their state of mind was

that this man had done it; where there was evidence

from one of the interviewing detectives that

he had asked the photographer to photograph alleged
puncture wounds in the forearm and the evidence
was to the contrary, and where the unsigned record

of interview contained nothing external which

could corroborate it and where all the other

matters that I am mentioning - where there is

nothing else about it, where it really is just

that evidence then, in my respectful submission,

that is the type of case where the Court of Criminal

Appeal could properly conclude that it was unsafe

for all those reasons.

(Continued on page 31)

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MR KABLE (continuing): There was nothing, in my respectful

submission - and I am conscious as an argument can

be put to the contrary~but~ in my respectful

submission, you had all these people who could not

identify: you had the failure of the photographing

of the arm, you had a man saying, "I deliberately

looked carefully at this fellow because I thouRht

I knew him and I can't now tell you who he is. ,

and you had another man who was taken to court in

what may be regarded, for other purposes, as a most

unsatisfactory way of getting identification evidence,

asked to see if he can see someone who was necessarily

in the place where accused persons in custody were,

who says, "I can't identify him that day.", and who, • II I

on a su sequent occasion, says, Ive never seen b

him before."

Those factors, coupled with Sergeant Otley -

Sergeant Otley's evidence I recognize can either

be of assistance or of detriment to the argument

that I am putting. On one view, it is utterly

inconsistent with the concept, or the allegation

in fact, that the accused was the perpetrator of
the crime. On another view, it does as was indicated

in one of the - I_ taink Mr Justice Wright's judgment,

it does demolish his alibi. So, Sergeant Otley's

evidence can be a plus or a minus and, certainly,

as Mr Justice Wright said in his judgment, it would

be speculative to work out why somebody would change

their clothes within that proximity of the crime.

So I put - and I am conscious that it may be said

that I cannot-but I put Sergeant Otley's evidence

aside for a moment and say all those other factora

do lessen the weight to be attributed to the

confession.

Mr Justice Wright and Mr Justice Nettlefold

regarded the factors that I have just mentioned as

neutral, ie that when we analyse the evidence all

the other evidence is neutral, it is not inconsistent

with the accused being the perpetrator of the crime

nor is it necessarily consistent but I submit that

it is a much higher position than that, particularly

where you have two people who have given sworn evidence

as to their inability to identify the accused in
the circumstances in which the court has historically
warned people not to identify people because of the
ease with which he can make a mistake.

And so, my submission is to describe that evidence

as slight is to understate its value in a case such

in fact the person who set fire to the property,

allegedly at- the invitation of Mrs Walker, to

some extent watered down his evidence as to

the strength or extent of that invitation

under cross-examination. So, they were all

factors which obviously would have encouraged

His Honour to have some concern about the admissions

in WALKER's case.

(Continued on page 84)

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MR BUGG (continuing):  Most of the cases to which my learned

friend referred you where there has been a successful

application to this Court, or there has certainly

been some disquiet expressed by members of

this Court at various occasions have involved, in

most instances, the additional evidence; in WRIGHTS's

case the prison warder, King, saying it was not

Wright who was there, in WHITEHORN's case the

concern that the appellant had spent a considerable

time in custody denying any involvement in the

matter, some confusion over a name used by the

complainant, the failure of the Crown to call the

complainant; in MORRIS's case the matters I have

already discussed with Your Honours, or mentioned

to Your Honours; in MACKAY's case the youthful

complainant retracted his complaint on oath and,

of course, the appellant there also resiled from the

admissions which he made and gave an explanation as to why he had signed the confessional material.

My learned friend referred you to BURNS V REG,

(1975) 132 CLR 258. I merely refer Your Honours to

that passage from the majority judgment at page 261,

commencing half-way down the page:

However, a confessional s:atement may be only one piece of the evidence against

the accused and the jury are entitled to

consider all the relevant evidence together

in deciding upon their verdict. The

nature of the direction necessary to be

given properly to instruct the jury as

to the use of evidence of an alleged

confession must depend on all the

circumstances of the case -

and then cites ROSS's case where:

"There is no rule of law or of practice

which prescribes any measure of the comment	which requires the Judge to caution the jury against acting on such evidence or
which it is his duty to make upon it."
In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has
any probative value: for example, it may be suggested that the confession had no
weight because it was extracted by force or given under a mistake or because the accused
when making it was ill in body or disturbed
in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made
is a complete concoction, a reasonable jury,
once satisfied that the confession was made,

C2T50/l/HS	84	7/6/88
Carr

might readily be satisfied also that

it was true. In such a case the

absence of a specific warning to the

jury that they should not act upon the

confession unless they were satisfied

by its truth might be of less significance

than in a case where it was not in issue

that the statement was made, but it was

claimed that it was untrue.

(Continued on page 86)

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MR BUGG (continuing):  Of course, that, as I have said

already this afternoon, Your Honours, is the classic
situation in this case now before you. That was,

I did not make the statement, and, of course, if

the jury have not satisfied itself that the

statement was made beyond a reasonable doubt had,

as His Honour Mr Justice Wright would have said,

little extra effort to then conclude that the

contents of that statement or confession were true.

BRENNAN J:  At what time did the record of interview

commence?

MR BUGG:  1.40 am, I believe, Your Honour. He was taken

into custody at 12.40 am from the caravan park

at Longford and there was evidence about that.

WILSON J:  And he was taken before the interrogating officer,

was it 2.47?

MR BUGG:  At 2.46 am. The time of that interrogation,

Your Honour, is detailed at the top of page 109

on the copy document. It was obviously not before

the jury, but that was the reference point that I

rely on. On the question of special leave,

Your Honours, I have endeavoured to, in the written

submissions before you, incorporate the five

matters of challenge which my learned friend referred

to in his affidavit in support of this application

and he has once again repeated those and covered

them then by reference to various passages from the

transcript. There was a criticism in paragraphs (b)

and (c) on page 1 that the trial judge was obliged

to warn the jury as to their manner of assessing

the evidence of disputed alleged oral admissions.

In my submission, there was no such obligation

at law and that His Honour quite fairly put the

issues which the jury had to consider to them.

He then says that the Court of Criminal Appeal were

in error in that'they failed to carry out an

independent assessment of the evidence bearing in

mind the nature of the disputed evidence!' And I

have referred there, on page 2, to those passages

of the transcript where, in my submission, it is

quite clear that all three members of the Court

of Criminal Appeal in Tasmania considered the

evidence and in so far as His Honour Mr Justice Neasey

is concerned, the dissenting judge,ultimately he
concluded, as did the majority, that on the unsafe

and unsatisfactory ground the appeal had failed and

that he was satisfied that as far as that aspect of

the matter was concerned His Honour had conducted

the trial appropriately.

As far as my learned friend's comments

that the nature of the disputed evidence is concerned

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involves the question of a consideration of the

reliability of the evidence which, of course, he

raised at a later point in time and that is in

paragraph (d), if I can turn now to page 3 and

remain on that aspect of the application.

If the appellant by reliability means it is

safe to draw a conclusion from then the court

assessed this question and I refer you to the various

passages of Their Honour's judgments referred to

under paragraphs (b) and (c) on page 2.

(Continued on page 88)

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MR BUGG (continuing):  But if, however, the appellant by

reliability is suggesting that there should be

some subjective assessment of the appellant -

referring to MORRIS' case - that issue does not

arise in this trial or appeal, there is no

suggestion of some difficulty or problem as far

as the appellant was concerned which should be

taken into account in determining whether or not

the confession itself was reliable or what reliance

can be placed upon it due to some other intervening

factor.

Turning back to page 2, that relates to

grounds 1, 2, 3, 6 and 7 of the draft notice of

appeal and the suggestion that the trial judge was

obliged to warn the jury as to their manner of assessing
the evidence of disputed alleged oral admissions.

The only judgment in the Court of Criminal Appeal which moved anywhere towards an acceptance of that proposition was His Honour Mr Justice Neasey but he

could not be said, in my submission, from what he

said in his judgment to be saying anything like

that situation prevailed. What he was saying was
that in the circumstances of this case a warning

similar to that in WRIGHT's case should have been

given but, with respect to His Honour Mr Justice Neasey,

the warning in WRIGHT's case came in a trial where

there were a number of other matters that distinguished

that case from this and that is that, first of all, the

appellant had been positively excluded from involvement

in the crime by the prison warder, King.	He gave
evidence himself.	He had alibi evidence and there

were matters of that nature which should have caused

disquiet as far as the trial judge was concerned and,

quite clearly, did because of the direction which he

gave the jury and the caution that he encouraged them

to take in considering that evidence but the facts of

WRIGHT's case were quite different, in my submission,	to those facts here. His Honour obviously examining
the direction that the trial judge gave in WRIGHT's case, felt it appropriate in this case but the facts are quite distinguishable.

I have submitted that the question is one of

fact and in all the circumstances of the case was it appropriate

for the trial judge to be called upon to make this
additional cormnent to the jury or encourage them to

regard this evidence with care because of the

circumstances in which it was obtained and that,
in my submission, is a matter which has been
considered by this ~court on a. number of occasions

in so far as applicationR for special leave are

concerned. More recently, in LIBERATO V REG - I

do not propose to refer to it. It is, no doubt,

familiar to Your Honours as, of course, was RASPOR

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and the opening comments of Your Honour

Mr Justice Dawson in MORRIS' case which were

adopted by the learned Chief Justice as well

in that case.

In my submission, this is not a case for

special leave. Whilst I accept the fact that

there are a number of reports, comments from boards of inquiry and matters of that nature

which have expressed concern that steps should

be taken to improve the means of recording

confessional material in police stations and I
do not resile from the proposition that there
are good reasons on occasions for that concern
to be expressed publicly and the circumstances

giving rise to those expressions have been clearly

spelt out in the reports that my learned friend

has placed before you, or those extracts of reports

placed before you.

BRENNAN J:	Was the interrogation register produced?
MR BUGG:	To the Court?

BRENNAN J: Yes.

MR BUGG:	I do not believe so, Your Honour, no. If I can
just say this in so far as the practice is concerned,
the evidence was that he declined to sign the document
itself and that was the evidence of Constable Knight;
that he invited the appellant to sign it and he said,
"No, I will not. I do not sign anything" or words to
that effect.
BRENNAN J: Yes, I appreciate that.	I was wondering if there

was anything to offer any corroboration of

Senior Constable Knight's evidence that he placed

his initials and date on the document at somewhere

around 2.53 am. (Continued on page 90)

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MR BUGG:	No, there was no other evidence other than his own.
Yes, that is correct.  I am at a disadvantage
not having all the evidentiary material before me but I understood that that was the situation,
Your Honour.

Your Honours, I was prepared to consider,

or endeavour to perhaps rationalize and explain

the differing views that have been expressed

by this Court on a number of occasions now as

to unsafe/unsatisfactory ground, the miscarriage

ground and endeavour to resolve it but it is

an exercise that I would not wish to embark

upon at this stage of the matter. Unless

Your Honours wish to hear me on that, and I am

sure

WILSON J: Is your courage failing you? No, I would not

think it was necessary, Mr Bugg.

MR BUGG:	I do not want to suggest to the Court, Your Honours,
that in Tasmania we are different - I think
commentators have on occasions said that we are.
But because boards of inquiry have expressed
concern that on a number of occasions there have
been instances of police corruption in other
Australian States the only positive comment about
any suggestion that this has occurred is contained
in those comments made by Mr Crawford who, as
was stated by my learned friend, sat as a board
of inquiry to investigate allegations concerning the rigging of police breath analysis in Tasmania -
or one breath analysis - and, of course, as he quite
rightly put, there were a number of police officers
who, when interviewed by their superior officers,
saw fit to secrete recording devices upon themselves.
WILSON J:	The relevant passage is there - we can read

it if necessary?

MR BUGG:  Yes. It might be relevant as well, Your Honour,

that in fact the recording of the key subject's

interview was stated by Mr Crawford to in fact

have been more favourable from the point of view

of the way in which he was interviewed by the

police than the record of interview which was

an handwritten document which obviously did not

record all the conversation.and there were substantial

gaps which were stated to have been made off

the record at the request of or as a result of

discussions between the parties.	I have no other
submissions, Your Honour.

WILSON J:	Thank you, Mr Bugg.	Yes, Mr Kable, do you reply?
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MR KABLE: Just to make a couple of brief points if I

might, may it please the Court. Firstly, as to

factual matters:  my learned friend referred

to the discussion and the evidence relating to
the location of the hut in the central highlands

by the police after the discussion.

The evidence in the case was that Mr Carr

had some 10 or 14 days' earlier run away from

Detective Hinds and Sergeant Brazendale so it

is clearly likely that a discussion would have

taken place as to where he had been since he

had managed to evade them and that is all referred

to in the evidence.

My learned friend made a reference to the

time of day, and in Launceston, and I inferred

that he was seeking to make a submission that

it would have been difficult to find somebody

other than a constable to do the interrogation

register procedure and, if that was the inference

he was seeking to have drawn, I would respectfully

submit that it is an inappropriate inference.

The size of the city is well known and it should

not be treated in the way that my friend treated

it, that there would not be anybody else who

could have done that.

Further from that, I do not have the case with me but the observations of Your Honour

Mr Justice Deane in CLELAND's case, as to what happens to people in police stations when they

cannot get into touch with anybody, become relevant.

Finally, where my friend indicated that it was a classic jury question in this trial

as to whether the confession was made or not,

it is not without significance that it is the

police who make the rules as to the way in which

whatever admissions are made, if they are in

fact made, are recorded or not recorded by whatever

means - by hand, by electronic, by video, or

whatever. So, while it is a correct description

of it to say that it is a classic jury question,

it is a classic jury question according to the

rules of one sid~ which rules at this stage can

properly be described as having no safeguards.

They are the matters that I would submit by way

of reply, if it please the Court.

WILSON J:  The Court will consider its decision in this

matter.

AT 2.58 PM TH~ MATTER WAS ADJOURNED SINE DIE

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