Carr v The State of Western Australia [2007] HCA 47 23 October 2007 P34/2006
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Western Australia
Representation
N J Mullany with L M Timpano for the appellant (instructed by D G Price & Co)
S Vandongen with T B L Scutt for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Carr v The State of Western Australia
Criminal law – Evidence – Admissibility of videotape evidence of admissions recorded without suspect's consent – Police videotaped conversation with appellant in the lockup section of the police station – Appellant was unaware lockup conversation was being videotaped – Appellant made certain admissions – Whether lockup conversation was an "interview" within the meaning of s 570(1) of the Criminal Code (WA) ("the Code") – Relevance of formality of the lockup conversation – Whether s 570D(4) of the Code excluded, by implication, admissibility of videotape evidence of admissions recorded without suspect's consent – Relevance of assumption in s 570D(4)(c) of the Code that consent required – Difference between implication and assumption – Whether an "admission" within the meaning of s 570D of the Code included only those admissions capable of being videotaped.
Statutes – Interpretation – Purposive interpretation – Where the statutory provision reflects compromise between competing interests – Relevance of purpose or object of statute.
Words and phrases – "admissibility", "assumption", "consent", "exceptional circumstances", "formality", "implication", "interview", "right to silence".
Criminal Code (WA), Ch LXA, ss 570(1), 570D. Interpretation Act 1984 (WA), s 18.
GLEESON CJ. I agree with Gummow, Heydon and Crennan JJ that the appeal should be dismissed. As to what their Honours describe as the second branch of the appellant's submissions, concerning the absence of consent to videotaping, I shall state my own reasons for not accepting those submissions of the appellant. Subject to that, I agree with the joint reasons.
One preliminary matter should be noted. It is not a rule of the common law, and it was not suggested in argument, that the trial judge was bound to exclude the evidence in question because the police did not caution the appellant at the commencement of, or during, the events that occurred in the lockup. It is not a principle of the common law that evidence of an admission, or a confession, to a police officer is inadmissible unless a caution is first administered. If that were the common law, then the Judges' Rules of 1912 would have been based upon a misconception[1]. The true position is that failure to administer a caution may enliven a judicial discretion as to whether to receive or reject the evidence. Thus, in the reasons of Dixon CJ, Webb and Kitto JJ in Stapleton v The…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Carr v Western Australia [2007] HCA 47
Case
[2007] HCA 47
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, Carr, against the Western Australian Court of Appeal. The dispute concerned the admissibility of videotape evidence of admissions made by the appellant while in police custody. The appellant was unaware that his conversation in the lockup section of the police station was being videotaped, and he made certain admissions during this recording.
The central legal issues before the High Court were whether the lockup conversation constituted an "interview" within the meaning of s 570(1) of the *Criminal Code* (WA), the relevance of the conversation's informality, and whether s 570D(4) of the *Code* implicitly excluded the admissibility of videotaped admissions made without the suspect's consent. The Court also considered the distinction between an implication and an assumption in statutory interpretation, particularly in relation to the consent requirement in s 570D(4)(c), and whether the definition of an "admission" under s 570D encompassed only those capable of being videotaped.
The High Court, in a joint judgment by Gummow, Heydon, and Crennan JJ, with Gleeson CJ agreeing, determined that the police's actions constituted a conscious breach of the requirements laid down by Parliament in s 570D of the *Code*. They found that the circumstances were not "exceptional" in a way that would enliven s 570D(2)(c). The Court emphasised the importance of upholding the right to silence and the strict application of statutory requirements, even when the outcome might seem uncongenial. Kirby J dissented.
The appeal was dismissed, meaning the appellant was entitled to succeed. The Court ordered that a judgment of acquittal be entered, finding that the reception into evidence of the admissions was an error, as the police had not complied with s 570D of the *Code* and no exceptional circumstances justified the admission of the evidence. Without these admissions, there was insufficient evidence to prove guilt beyond reasonable doubt.
Orders
Orders of the court
Appeal dismissed. (Gummow CJ agreeing, in a separate judgment, with Gummow, Heydon and Crennan JJ that the appeal should be dismissed and agreeing in part with their joint reasons; Kirby J dissenting)
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GUMMOW, HEYDON AND CRENNAN JJ
Conclusion: contention rejected: The result is that the circumstances are only "exceptional" in that they amounted to a conscious breach by public officials of the expressly stated, or implied, requirements laid down by Parliament in s 570D. The State has failed to enliven s 570D(2)(c) of the Code. Its contention should be rejected.Conclusion: order for acquittal The result is that the appellant is entitled to succeed in this appeal. The revised order, sought on his behalf, was that a judgment of acquittal be entered. It is not appropriate to order a retrial. The error below was not made in the directions to the jury of the trial judge. It lay in the reception into evidence of admissions made in a case where the police had not complied with s 570D of the Code and where there were no "exceptional circumstances" to justify the admission of that evidence. Those admissions would not be available at a retrial. Without them, as was accepted, there would be insufficient evidence to prove the guilt of the appellant beyond reasonable doubt. It is an undeniably uncongenial outcome to discharge a prisoner, evidence of whose guilt is seemingly established by his own words. Such an order is not made with enthusiasm. I can understand the tendency of human minds to resist such an outcome. However, the order is not made only for the appellant but as an assurance of the adherence of our institutions to the rule of law[125]; to steadfast observance of the requirements of the accusatorial system of criminal justice hitherto followed in Australia; and to the neutral judicial application of the requirements laid down by Parliament in s 570D of the Code. [125]cf Blackburn v Alabama 361 US 199 at 207 (1960); R v Oickle [2000] 2 SCR 3 at 42-44 [68]-[70]. Section 570D is a strict and unusual provision. It was enacted to deal with a large and endemic problem. We do the law no service by failing to observe the requirements that appear in the provisions of s 570D of the Code because the appellant, who claims their benefit, becomes their uncongenial beneficiary. This was not a case where a suspect, suddenly apprehended by police, blurted out incriminating evidence. In such a case different considerations would arise[126]. Instead, this was a case of a suspect in police custody who was properly cautioned, formally interviewed and who then insisted on his right to silence and to consult a lawyer before answering questions. Knowing of that insistence, police proceeded to override his rights and privileges. He was a smart alec for whom it is hard to feel much sympathy. But the police were public officials bound to comply with the law. We should uphold the appellant's rights because doing so is an obligation that is precious for everyone. It is cases like this that test this Court. It is no real test to afford the protection of the law to the clearly innocent, the powerful and the acclaimed[127].[126]Em [2007] HCA 46 at [224].[127]cf Em [2007] HCA 46 at [230]-[231]. The "right to silence" may indeed sometimes evoke "strong but unfocused feelings". It is, without doubt, a "shorthand description" of different rules that apply in the criminal law[128]. But it has not been, at least until now, meaningless and impotent in Australian law. In default of clear and valid legislation authorising a contrary course, this Court should uphold the right to silence in a case such as the present for it is important to the individual's true choice to remain silent in the face of authority and to the proper control of the conduct of the agents of the state.[128]Joint reasons at [36].Orders
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GUMMOW, HEYDON AND CRENNAN JJ