Chowdury v The Queen; McMillan v The Queen

[1988] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M68 of 1984

B e t w e e n -

SUPAHAUS CHOWDURY

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne ~- .No M66 of 1984

B e t w e e n -

DAVID McMILLAN

Applicant

and

THE QUEEN

Chowdury

Respondent

Applications for special leave to

appeal

MASON CJ

WILSON J

BRENNAN J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 31 MAY 1988, AT 11.56 AM

Copyright in the High Court of Australia

C2T24/l/SDL 1 31/5/88

MR P.G. NASH, gc: If the Court pleases, I appear for the	applicant Chowdury in this matter. (instructed by
Paul Markopoulos & Co.)
MR J. WINNEKE, QC:	May it please the Court, I appear with

my learned friend, MR A. SHWARTZ, for the respondent.

(instructed by the Director of Public Prosecutions)

MR M.S. WEINBERG, QC: If the Court pleases, in this matter

I appear together with my learned friend, MR. R. WILD,

on behalf of the applicant, McMillan. (instructed by

Phillips Fox)

MR J. WINNEKE, QC:  And, Your Honour, I again appear with

my learned friend, MR A. SHWARTZ, for the respondent.

(instructed by the Director of Public Proseuctions)

MASON CJ: Well, it is convenient to hear these two applications

together, is it not, and ~o hear you,Mr Winneke,

after we have heard .Mr Weinberg.· Yes,Mr Nash.

MR NASH: If the Court pleases I hand up a copy of the applicant

Chowdury's outline of submissions.

MASON CJ:  Yes, thank you.

MR NASH: If the Court pleases, this is a case where, to

use Your Honour Justice Gaudron's words in WILDE's

case, ·the trial of the applicant was, in our submission,

affected by error from the outset, namely, the

refusal of the trial judge to order separate trials.

It was also affected by illegality and improper

police behaviour from the time that the police

kicked in the door of the applicant's hotel room

at approximately 2.30 on the morning of Sunday,

27 December 1981. The issues which are raised

by the appeal stem from a number of bases.

(Continued on page 3)

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Chowdury

MR NASH (continuing):  The first is the issue which arises

from this Court's decision in DARBY in relation
to the separate trial of conspiracy charges, affected,

as it is by the juries decision in this case, that

the head conspiracy was not ma4e out. The essential

point is that looked at in retrospect, looked at

in hindsight, if not, as it appear~d to the
trial judge, the case is one where evidence not
properly admis~ible against the applicant was

admitted and admitted against him by reason of the

joinder of the head conspiracy. The courts have

historically- and going to the outline I do not

propose to go into detail in relation to the trite
propositions of law which commence that outline, but
the courts have historically frowned upon the
joinder of conspiracy charges with charges of
substantive offences because of the prejudicial
evidentiary effects of such joinder. This prejudice
also arises where an indictment charges a head

conspiracy and numerous subconspiracies.

In fact, in our submission, the problem is

exacerbated where one has a head conspiracy and a

series or subconspiracies and that exacerbation is,

in our submission, illustrated rather than anything

else by the authorities referred to under head 1.2.

That separate trials should be ordered where the evidence admissible against one conspirator is significantly different from the evidence admissible against a co-conspirator appears from DARBY's case,

from GUIMOND V REG and, in our submission, from

DIRECTOR OF PUBLIC PROSECUTIONS V SHANNON. The

failure to order separate trials in the present case

was fraught with dangers of injustice. There were

some 12 counts charged. It was a, to use the

colloquialism,, chain conspiracy. The chain was

not made out but some of the links were held to be

forged.

(Continued on page 4)

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Chowdury

TOOHEY J:  Mr Nash, were all the charges charges of

conspiracy?

MR NASH:  All the charges were charges of conspiracy,

Your Honour, but the applicant, Chowdury, was

not party to all the subconspiracy. There were - - -

TOOHEY J:  I wondered about your proposition 1.1 and the relevance of:

joinder of conspiracy counts with charges

of substantive offences.

MR NASH:  Well, it is really there, Your Honour, to support

the subproposition, if one can call it that. But
the reason for that non joinder, for that frowning

admissible against an accused is found to be	on such joinder, is that evidence not otherwise
admissible, and the authorities which frown on that
joinder, in our submission, are authority for that
second proposition which, in fact, should have been
in the outline. It was in the original outline and
by the time my secretary, Your Honour, had managed
to reduce it to its present size, what had originally
been important submissions had been relegated to
a subsidiary role.

TOOHEY J:	Yes, I understand, thank you.
MR NASH:	Perhaps if I had had more time in redrafting something
else would have gone instead.  The situation is
that the Full Court, sitting as the Court of Criminal
Appeal in this case, held that there was no
improper joinder because, inter alia, the jury's
verdicts indicated that the jury had exercised
a responsible choice, had not allowed itself to
be led into error but had picked out particular
conspiracies, found them proved, and not found
the head conspiracy. In our submission,that is
a fundamental error and conflicts with the reasoning
of the Court of Criminal Appeal in New South Wales
in REG V GULDUR, (1987) 8 NSWLR 12 where the
Court of Criminal Appeal, referring to DARBY's
case and applying DARBY's case, said at page 15
at letters D and E:

(Continued on page 5)

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Chowdury

MR NASH (continuing):  The first is the issue which arises

from this Court's decision in DARBY in relation

to the separate trial of conspiracy charges, affected,

as it is by the juries decision in this case, that

the head conspiracy was not ma4e out. The essential

point is that looked at in retrospect, looked at

in hindsight, if not, as it appear~d to the
trial judge, the case is one where evidence not
properly admis~ible against the applicant was

admitted and admitted against him by reason of the

joinder of the head conspiracy. The courts have

historically- and going to the outline I do not
propose to go into detail in relation to the trite
propositions of law which commence that outline, but
the courts have historically frowned upon the
joinder of conspiracy charges with charges of

substantive offences because of the prejudicial

evidentiary effects of such joinder. This prejudice

also arises where an indictment charges a head

conspiracy and numerous subconspiracies.

In fact, in our submission, the problem is

exacerbated where one has a head conspiracy and a

series ot subconspiracies and that exacerbation is, in our submission, illustrated rather than anything else by the authorities referred to under head 1.2.

That separate trials should be ordered where the

evidence admissible against one conspirator is

significantly different from the evidence admissible

against a co-conspirator appears from DARBY's case,

from GUIMOND V REG and, in our submission, from

DIRECTOR OF PUBLIC PROSECUTIONS V SHANNON. The

failure to order separate trials in the present case

was fraught with dangers of injustice. There were

some 12 counts charged. It was a, to use the

colloquialism,, chain conspiracy. The chain was
not made out but some of the links were held to be

forged.

(Continued on page 4)

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Chowdury

TOOHEY J:  Mr Nash, were all the charges charges of

conspiracy?

MR NASH:  All the charges were charges of conspiracy,

Your Honour, but the applicant, Chowdury, was

not party to all the subconspiracy. There were - - -

TOOHEY J:  I wondered about your proposition 1.1 and the relevance of:

of substantive offences. joinder of conspiracy counts with charges

MR NASH:  Well, it is really there, Your Honour, to support

the subproposition, if one can call it that. But

the reason for that non joinder, for that frowning

admissible against an accused is found to be	on such joinder, is that evidence not otherwise
admissible, and the authorities which frown on that
joinder, in our submission, are authority for that
second proposition which, in fact, should have been
in the outline. It was in the original outline and
by the time my secretary, Your Honour, had managed
to reduce it to its present size, what had originally
been important submissions had been relegated to
a subsidiary role.

TOOHEY J:	Yes, I understand, thank you.
MR NASH:	Perhaps if I had had more time in redrafting something
else would have gone instead. The situation is
that the Full Court, sitting as the Court of Criminal
Appeal in this case, held that there was no
verdicts indicated that the jury had exercised improper joinder because, inter alia, the jury's
a responsible choice, had not allowed itself to
be led into error but had picked out particular conspiracies, found them proved, and not found
the head conspiracy. In our submission,that is
a fundamental error and conflicts with the reasoning
of the Court of Criminal Appeal in New South Wales
in REG V GULDUR, (1987) 8 NSWLR 12 where the
Court of Criminal Appeal, referring to DARBY's
case and applying DARBY's case, said at page 15
at letters D and E:

(Continued on page 5)

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Chowdury
MR NASH (continuing):

It is, of course, always a difficult

matter for a trial judge to be able at the

outset of a trial to anticipate quite how
the trial will unfold. He has a discretion

in dealing with an application such as this

and that discretion will not be lightly

interfered with. At the same time, if it

can be seen that the discretion, although

properly exercised at the time, has in the

way in which the trial unfolded brought about

a situation where there is a real concern

regarding the fairness of the procedures of

a joint trial, then at an appellate stage

there is a power which is exercised in

appropriate cases to rectify the position

by quashing the conviction and ordering a

new trial.

WILSON J: Mr Nash, I am sorry to interrupt you but there

is a just a thought niggling in my mind you can

probably remove. I take it the relief you would

be seeking would be a new trial?

MR NASH:	Yes, Your Honour.
WILSON J:	And I appreciate that the application for special
leave was made within time but 3\ years has elapsed

since that application was made. Now there may

be good reason for it but it is now what,

approaching 10 years ? If there were to be a new

trial the period alleged in the offence in which
the alleged crimes were committed would be getting

very stale.

(Continued on page 6)

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Chowdury

MR NASH:  I must concede to that, Your Honour, and there

have been difficulties in bringing this matter on,

largely, frankly, Your Honour, financial matters,

but, of course, it is a considerable period of

time since the - - -

WILSON J:  Yes, I appreciate there may well be circumstances, but it is an unfortunate characteristic of the

case when one wonders whether a new trial could

really be held justly.

MR NASH:  It is not really an answer, Your Honour, but in

some exhoneration one can say that from the time of

arrest to the time of the original trial was 16 months during which the applicant, of course, was in custody.

It does not answer Your Honour's question. What I am

really saying, I suppose, is that at every stage there

are delays and there was a considerable delay at that

stage also which - - -

WILSON J:  Yes. Well, it eases my mind to have shared it with

you.

MR NASH:  I am sorry that I cannot allay Your Honour's concern

because it is a concern that we unfortunately have to

live with. The failure to order separate trials in

the present case resulted in evidence on the head
conspiracy and evidence in relation to the

subconspiracies to which the applicant was not a party,

and in relation to which he was not charged, all being

led in the same trial, and much of the evidence

against the other conspirators in so far as it related

to the head conspiracy being led as evidence
admissible against the applicant. In our submission,

if DARBY's case means what it says, then it is.

essential that there be a rational approach to the

joinder of multiple conspiracy counts.

The dangers, in our submission, are self-evident

and the case law cited under head 1 generally consists

of trite law which, in our submission, is

unquestionable. Court of Criminal Appeal has held it proper to The fact that the New South Wales	look at what happened in order to determine whether
severance, or failure to severe, has resulted in an
injustice and therefore there should be a new trial,
is inconsistent with the approach taken by the case, and it is a matter which, on our submission, a ruling of this Court is required.

WILSON J:  All the Court said in DARBY, if I remember, about

GUIMOND, was that where the evidence against

co-conspirators was different, there was much to be

said for separate trials.

MR NASH:  I think '_'significantly different" was the expression used.

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Chowdury

MASON CJ:	Yes, thatisthe expression.
WILSON J:	It did not compel separate trials.
MR NASH:	No, it did not compel.
WILSON J:	It counselled separate trials.
MASON CJ:	We would encourage the adoption of such a

practice.

(Continued on page 8)

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Chowdury

MR NASH: Yes, and, in our submission, as it turned out- leaving

aside for the moment what it may have looked

like to the trial judge at the beginning, as

this turned out the evidence against the

co-conspirators was significantly different - it
was hiihly significantly different. The

Victorian Court of Criminal Appeal said, "No,

because the jury has shown a discretion". In
our submission, the very fact which caused the

Victorian Court of Criminal Appeal to say "No,

there should not have been separate trials"

is the very reason why there should have been

separate trials.

GAUDRON J:  Mr Nash, the application for severence is not

in your application book, I take it? The application

made to the trial judge?

MR NASH:	No.
GAUDRON J:	The one recorded in the McMILLAN application

book suggests that the only application that

was made was for a severance of counts 3 and 6?

MR NASH: And 1, Your Honour. Perhaps, Your Honour, could I

come back to that question rather than delay

the Court at this moment looking for the reference.

I am confident that there was an application

in which all counsel joined - - -

GAUDRON J:  Yes. What your argument, as put, seems to

suggest is that count 1 should have been the

subject of a trial on its own. I am just wondering

if that proposition was ever clearly put to the

trial judge.

MR NASH:	If I may draw Your Honour's attention to page 8
of the McMILLAN appeal book.  Page 8, the second-last
paragraph of His Honour's ruling:

I have carefully considered the submissions

advanced by counsel for the other three

accused, Mr Langslow, who appears for McMillan,

seemed to me to go so far as to submit

that I should not only sever counts 3 and 6,

but that I should sever counts 11 and 12

~gainst Chowdury, which would also result

in Chowdury having to be struck out from

count 1.

GAUDRON J: That is quite a different proposition, though, from

what you are submitting here today, I think?

MR NASH:	Yes, Your Honour, I must confess that it had been my understanding until Your Honour made
this point at this moment, that the applicant,
Chowdury, had, in fact, sought - or that separate

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Chowdury

trials had been sought of counts 3 and 6, 11

and 12 and, in fact, of 1.

GAUDRON J:  What you are really submitting is that there

should have been a trial on count 1 and that

the other counts should have been left to wait
their fate depending upon whether or not there

was a conviction or acquittal on count 1.

(Continued on page 10)

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Chowdury

MR NASH:  With respect, Your Honour, my submission really

perhaps goes further than that, that just as it

goes to the disapproval point rather than to the
substantive law question, that the joinder of a

head conspiracy with subconspiracies is not

illegal, not improper, but highly undesirable. If

the subconspiracies exist and can be established

there is a prejudice which derives ipso facto

from the fact that there is a head conspiracy,

and that there is no more point in the joinder of a

head conspiracy together with the substantive

subconspiracies. Or put it this way, Your Honour,

the head conspiracy is usually an inferential
conspiracy and if one has the substantive agreed
conspiracies than the tacking on to the top of
them of the inferential conspiracy is akin to the

tacking on to the top of substantive offences of

a conspiracy count. I know it is rather garbled,

Your Honour, but that is effectively the argument

that I sought to put.

GAUDRON J: Yes, and the consequence of that argument if right

is that only count one should have been the subject

of a trial at that stage?

MR NASH:  I would have put it the other way, Your Honour,

that count 1 should not have been the subject of

a trial it being the icing on the cake but the

subconspiracies should have been the subject of the trial -

of two trials, Your Honour.

GAUDRON J:  I can understand two trials. Now, where is the

application anywhere in pages 2 to 11 in the

McMILLAN book which reflected that view of the

appropriate way in which conspiracy charges should,

I presume, be laid rather than proceed? Because

your argument goes so far as to say, count 1

should never have been charged. It mus~ because

if count 1 does not proceed, but all the subsidiary

counts proceed at other stages, what you get is

issues of autrefois acquit and convict impedeing

any trial of count 17

MR NASH:  I accept that, Your Honour, yes.

GAUDRON J: So, ultimately you have to say it should not have

been charged?

MR NASH:	And to the extent - subject to the rider, of course, that the Court has very carefully, in relation to the joinder of charges of this kind,
consistently said, it is for the prosecuting
authorities to say what charges shall be laid but
tut tut tut would not be better that. If the
course that I am suggesting had been adopted, Your Honour, there would, of course, have been

C2T30/l/SR	10	31/5/88
Chowdury

effectively autrefois pleas available,either

acquit or convict,which would have hampered any

subsequent allegation of the head conspiracy. But

one asks the question, where is the point in a

head conspiracy if the subconspiracies are being charged, any more than where is the point in the

conspiracy if the substantive offences are being
charged.

(Continued on page 12)

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Chowdury

MR NASH (continuing): Certainly, that argument was at no

stage put to the trial judge. That was never put

to the trial judge but there was an application for severance which, I must say, I had taken to

include severance of count 1. Now, with respect,

Your Honour, I cannot be so sure that that was

the case.

WILSON J:  Was any complaint made of the way in which the

trial judge, having refused separate trials, directed

the jury in their approach to the evidence?

MR NASH: No, Your Honour, no complaint was made. But, once

again, Your Honour, that goes to my retrospectivity

point. If the retrospectivity point has validity

then it is unaffected by views as to what the trial

judge did at that stage because it really arises,

largely, from the verdicts of the jury itself.

WILSON J:  You are in a difficult area of clouds of discretionary

decisions surrounding you, really. I mean the question

of separate trials is peculiarly a matter for the

trial judge and appellate courts, of course, can

offer all sorts of advice but, ultimately, it depends

on the correctness of a discretionary judgment

in the circumstances of a particular case which

is not shown retrosepctively to have been wrong - or

to have led to an injustice.

MR NASH:  Yes, Your Honour, and without the - - -

WILSON J: It is difficult to make a special leave point

out of that.

MR NASH:	I take Your Honour's point but perhaps if I go
to the second point where, in our submission,
the Court of Criminal Appeal misconstrued the
concept, or the principle, laid down in MAKIN's
case.  The Court of Criminal Appeal said that the
evidence.of the finding at Chiang Mai Hod Road
of heroin and other articles was not evidence which
attracted the rules relating to similar fact
evidence and, with respect, it is our submission
that that is erroneous and it is erroneous because
of the title "similar facts".

I,t is the classic case, i think it was "Alice Through

the Looking Glass" - "Who is the master, the words

or I?". The expression "similar fact evidence"

has been used to describe the sort of evidence

that was led in MAKIN's case and which in MAKIN's

case was held to be admissible in certain circumstances

and subject to certain qualifications and this

C2T31/l/AC	12	31/5/88
Chowdury

Court in PERRY and in SUTTON has said that that evidence must be strongly probative before it

should be admitted. And, it is our submission

that in saying that, this Court has been talking

about the principle - the original principle -

enunciated in MAKIN's case, (1894) AC 57 at 65.

(Continued on page 14)

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Chowdury

MR NASH (continuing): If it was evidence tending to show

that he had been guilty of criminal acts other
than those covered by the indictment, then

logically it attracted - it fell within the

principle in MAKIN's case and attracted what the House of Lords has said in KILBOURNE and

BOARDMAN, and what this Court has said in

MARKEY, PERRY and SUTTON in relation to the

probative value of that evidence.

In our submission, if, contrary to the

principal proposition that MAKIN's case and

the similar fact rules, apply to all evidence
tending to show that the accused has been guilty

of criminal acts other than those with which he

is charged, then, none the less, this is evidence

of such a similar nature to similar fact evidence

that like principles should apply.

TOOHEY J:  Mr Nash, the Court of Criminal Appeal positively

rejected the evidence as being admissible as

similar fact evidence, did it not? That may be

putting it a little strongly. Maybe it was

not urged upon the court to treat it in that way,

but, in any event, so far as the court was

concerned, if it was admissible, it was not because

it was similar fact evidence.

MR NASH:	Yes, Your Honour, that effectively is the real basis
of the application here, that the court said it is not similar fact evidence, therefore the rules
in relation to similar fact evidence do not apply.
It was urged, as I understand it, on the court
that this was similar fact evidence, did not have
a strong degree of probative force and therefore was not admissible. The court said this is not
evidence of similar facts and if one picks up the words, "similar facts" and does no more with them than look at them, the Court of Criminal Appeal
was clearly correct.

(Continued on page 17)

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Chowdury

MR NASH (continuing):  But if one goes back to MAKIN' s case to see what

are similar facts, where does this phrase come from,

when we talk of similar facts what are we talking

about? We are talking about the principle

enunciated in MAKIN' s case, and MAKIN' s case was concerned

with the prejudicial value or pr~udicial effect of evidence

tending to show the commission of a crime other than

that charged. For that reason, it is our submission

that this evidence falls strictly within the rules

enunciated to cover similar facts, that similar facts,
although it has been a handy label, is a somewhat

misleading label, that the phrase does not really

mean what it says when one looks at the cases.

BRENNAN J:  Mr Nash, that argument does not really get you

very far, does it?	The first proposition is, is there
any probative value in the evidence at all?	Now, if

the answer to that is yes, then and only then do you

come to the question of whether the evidence is

prejudicial by reason of showing that other offences

have been committed and unfairly prejudicial in the

sense that there is no countervailing, strong,

probative force which justifies its admission.	Now,
that being so, the problem that you face here,
whether you put it under similar facts or not, is
surely is the evidence relevant and probative?

If the answer to that is yes, then is there some

consideration of unfairness which justifies its

rejection?

MR NASH:  With respect, Your Honour, I accept everything that

Your Honour has put to me with one slight proviso, and

that is that because of the - perhaps because of

its history, perhaps because of the nature of what

is commonly known as similar fact evidence, there has

been a considerable concern that, although relevant,

probative and therefore otherwise admissible, that

there should be this, the matter that Your Honour

mentioned at the last, a strong probative force.

(Continued on page 18)

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Chowdury

BRENNAN J:  To justify what would otherwise be simply

prejudicial.

MR NASH:	Yes, Your Honour, and that really is the difference
between 2.4 and 2.3 in my outline of argument. At
2.4 I am really attempting to say, "Even if it
is not similar facts then basically the same principles apply."

BRENNAN J: Well, apply it is to this case: there is heroin

in the house at an address which the accused gave

as his address and the problem at issue in the

case is was he engaged in an attempt to bring in
heroin to Australia? Is that relevant? Is it

admissible? If it is, is it not very powerful

evidence indeed to establish that point which was

in issue?

MR NASH:	In my submission, Your Honour, it does not have,
by reason of the time lapse, by reason of the fact
that although he had given that address, the evidence
appears to be that it was not his address.

BRENNAN J: That is a double-edged sword, is it not?

MR NASH: It is a double-edged sword, I accept that,

Your Honour.

BRENNAN J:  So he gives a false address and the address that

he gives is a house that has heroin in it.

WILSON J:  And, indeed, the issue can be stated even more

strongly than Justice Brennan stated it. He was

an admitted smuggler and the issue was whether he was smuggling gems and jewellery or heroin.

That sharpens the relevance of this evidence even

more.

MR NASH:	Your Honour makes me grateful that I am not in
the witness box. In our submission, and I hear what Your Honours say, but the real question is
and, if the Court is of the view that this was
strongly probative, then the point vanishes but
our submission is that there are two points here and one is perhaps the special leave point but
that similar facts are not "similar facts" but are something quite distinct and different and
the other is, if that is correct, did this evidence
in the context have that strong degree of probative
force which is require4 which this Court has said
is required, in the case of similar fact evidence.
I cannot take it any further than that.

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Chowdury

TOOHEY J:  But, probative of what, Mr Nash?

MR NASH: Probative of his being a participant in a conspiracy

to import heroin into Australia, not probative

of his being the possessor of heroin in Thailand,

not probative that he knew someone who had heroin.

The further one takes it down the chain, the

stronger the - - -

TOOHEY J:  But this case is a little different than most 1n

so far as the applicant was admittedly engaged

in smuggling activity. He said the activity

was one related to gold and gemstones; the Crown's

case was that the smuggling activity related

to heroin and, as I understood it from reading
the papers, the significance of finding the heroin

in Thailand was the li~ht it threw on the nature

of the smuggling activity. Have I misunderstood

it?

MR NASH: No, Your Honour.

TOOHEY J: In other words, the Crown introduced this evidence

to show that this activity was in fact not one

related to gold or gemstones but one related

to heroin. So, the question is: is the evidence

of the finding of the heroin relevant to that

issue? ·

MR NASH:	And if it had been found in his bedroom,
it would be very difficult to say that it was
not. The real question and the submission that
we make is that - and in some respects it seems
to me that I have a difficult task - is that the connection between him and the premises in
which the heroin was found was not of such a
nature as to have strong probative value in leading to the logical conclusion that he was smuggling heroin.

The third ground of appeal which relates

to the record of interivew of 27 December 1981

was not a ground of appeal before the Court of

Criminal Appeal. It is in the outline under heading 4, but its relevance really relates to its impact on 3, the record of interview of

12 January 1982.

(Continued on page 20)

C2T37/l/SDL	19	31/5/88
Chowdury

MR NASH (continuing):  To put this into context it is, in our

submission, necessary to point out that the accused

was taken into custody when the police kicked in

the door o f his hotel room on 2 7 December. They

apparently had a key but the key did not work.

They took him from the hotel room just after

3 o'clock in the morning. He asked could he get

dress, they said, "Yes." He asked if he could

put on certain clothing, they said "Yes." They

took him to Russell Street Police Station where
he was kept until - being l..1.1.terviewed on and off

and reading documents - some time after 5 o'clock

that day. Despite section 460 of the CRIMES ACTS,

as it then existed, requiring that he be brought

before a magistrate or a justice as soon as practicable

after arrest, he was brought before the magistrates court at 9.45 the next morning, some 30 hours after

he was taken into custody.

The formal arrest took place at about 5 o'clock in the afternoon when he was formally charged. He

was remanded in custody on Monday 28th and a warrant

was issued, presumably in the standard form,

requiring him to be taken to Pentridge or the

nearest prison. He was taken back to the city

watch-house where he was kept until the next remand

date, 4 January.	On 5 January he was taken out
to Pentridge.	He was brought back on the 11th

for further remand and on 12 January he was interviewed

by being taken from the city watch-house to, I think,

the federal police headquarters in Melbourne for

the purpose of being questioned further.

(Continued on page 21)

C2T38/l/MB	20	31/5/88
Chowdury

BRENNAN J: Is it said that this interview was involuntary?

MR NASH:  It is not alleged that it was involuntary, Your Honour,

no.

BRENNAN J:  So it is a discretionary matter?

MR NASH:  It raises the matter which the majority in

CLELAND's case, Your Honour, will recall, took a

very strong view that illeeality which did not
result in a confession being involuntary would only
in exceptional circumstances result in the

exclusion of the confession, not as a matter of

discretion but as a matter of practice because

of the illegalities associated with it. And there
was considerable discussion as to the role of

the court in dealing with that type of irregular

behaviour. And the reason, Your Honour, that I

put the background to the illegality here was

to put it into a context. This is not- and it is

a simple question, Your Honour- is there a sta3e

at which the police failure to obey the law becomes

such that irrespective of voluntariness, unfairness

or anything else, it is necessary for the court to say this behaviour will not be sanctioned no matter how noble the purposes for which that behaviour

takes place.

It appears from the transcript in the appeal

book that the unlawfulness, not the unlawfulness

in the original arrest and failure to take him

before the court, but the unlawfulness in keeping

him in the watch house and not taking him to

Pentridge.

WILSON J: 

I was going to ask you what significance do

you attach to him being in the watch-house from
28 Dececember till 4 January? Surely that is

a matter of police administration?

(Continued on page 22)

C2T39/l/SR	21	31/5/88
Chowdury

MR NASH:  No, it is not a matter of police administration,

Your Honour. The problem arises because the

magistrates - under section 68 of the MAGISTRATES

COURTS ACT, as it then existed, on remand a warrant

issues authorizing the police officers to take the

man to prison.

WILSON J:	To a named prison?
MR NASH:	To a named prison, or a prison more accessible.
WILSON J:	And the watch-house is not a prison?
MR NASH:	The watch-house is a prison - sorry, is a police gaol which may be used for certain purposes and in which a person may be kept for up to three days, no longer. The Police CoIIm1issioner's Standing Orders deal with
interviews of people in the watch-house. Effectively,
if someone is kept in the watch-house he is in police
control, because the watch-house is controlled by the police. If he is at Pentridge he is in control of the
Department of CoIIllilunity Services - I think that is now
changed, but at that time it was - and it becomes
significant because, amongst other things, it is
necessary in conducting an interview of someone in
Pentridge to make a formal application, and a member
of the prison authority goes along to the prisoner and
says that, "The police want· to interview you about
so-and-so", and he can then consent or refuse, whereas
when he is in police custody the formalities are
slightly less.
WILSON J:	Yes, I see, thank you.
MR NASH:	In that respect it is significant, not only as a matter of formality, but, in our submission, as a matter of substance.
WILSON J:	But you said there was no attack on the - - -
MR NASH:	There is no attack on the voluntariness of it, in

the sense that there was no - - -

WILSON J:  It was the statement on 12 January that was the

subject of attack down below, having regard to

the history that you have spoken of.

(Continued on page 23)

C2T40/l/HS	22	31/5/88
Chowdury
MR NASH:	Yes, Your Honour.	Both were argued before

the trial judge and argued strongly before the	trial judge, but only 12 January was the subject
of appeal to the Court of Criminal Appeal.

WILSON J:	Yes.
MR NASH:	The reason I put all this material in, and the
reason that item 4 of the outline of argument
is there is because it is our submission that
when one looks at the police behaviour one has to look at it as a cumulative thing. It may be that, as the majority of this Court said in CLELAND,
it is only in an exceptional case that it should
involve a free kick, if one likes to call it that,
for the accused. But there is, in our submission,
a fundamental matter involving the administration
of justice here, looking at the pattern of
behaviour as a whole. And for that reason, in our submission, this is an exceptional case.

If the Court pleases, they are the

submissions on behalf of the applicant Chowdury.

MASON CJ: Yes, thank you, Mr Nash. We will adjourn now

and resume at 2.15 nm. .

AT 12.52 PM LUNCHEON ADJOURNMENT

C2T41/l/JM	23	31/5/88
Chowdury
UPON RESUMING AT 2.15 PM:

MASON CJ:	Yes, Mr Weinberg.
MR WEINBERG:	May we hand to the Court copies of an outline

of submissions on behalf of the applicant, McMillan.

MASON CJ:  Yes. Thank you.

MR WEINBERG:  May it please the Court, it is comforting to

come before this Court with the authority of six

decisions of the United States Supreme Court, one
decision of the Supreme Court of Canada and a

decision of the House of Lords which, in our

respectful submisssion, support the contentions

to be put before this Court.

It is submitted that the rules governing the admissibility of confessional evidence whilst

they operate for the most part in a simple and

straightforward fashion circumstances where difficulties

which arise with those rules stem, on the whole,

from their application to particular facts rather

than conceptual problems associated with them.

Whilst that is true as a general proposition this

case is very different. It is our submission that

this application raises for the consideration of

this Court a fundamental question of principle

which has caused difficulty to courts in some other

jurisidictions; which has caused difficulty to

legal scholars for a very long period of time. The question is whether the rules which render inadmissible involuntary confessions apply also

to partial admissions and also to exculpatory

statements when tendered by the Crown in support

of its case as evidence of consciousness of guilt

or admissions.

It will be our respectful submission to this application of the common law to partial admissions

Court that there is no difference whatever in

or to exculpatory statements tendered as evidence

of consciousness of guilt. If a statement, whether

it be a confession or a partial admission or an

exculpatory statement is induced by some form of

inducement offered by a person in authority then,

in our respectful submission, it is inadmissible

and no difference in approach ought to be countenanced

on the part of trial judges to such evidence, depending

upon whether it is classified as a full confession

or as something other than a full confession. It is

our submission to this Court that it cannot be

countenanced for one moment that a statement procured,

C2T42/l/AC	24	31/5/88
Chowdury

for example - to take a strong example - some

powerful threat, some South American police officer

offering some powerful threat to a person being

questioned unless he answers questions. If the

answers involve directly incriminating answers

and amount to a confession it would be said that

that would be inadmissible as being involuntary.

If, on the other hand, the person responds to that

threat by making what are loosely described as

exculpatory statements, statements which are probative

of the ultimate Crown case because they are tendered

to prove lies, then it is said that a different

approach will be adopted.

(Continued on page 26)

C2T42/2/AC	25	31/5/88
Chowdury

MR WEINBERG: (continuing): The conclusion that the statement	is the product of the inducement will be less
readily drawn than if it was a full confession,so
it is said,and the evidence will be admissible. We
say that the United States Supreme Court, the
Supreme Court of Canada and the House of Lords have
considered this matter and have concluded that no difference of any kind is to be countenanced in
respect of the nature of the statement made by
the accused. We say that the trial judge in this
case and the Court of Criminal Appeal fell into
fundamental error because each of them, that is
the trial judge and the members of the Court of
Criminal Appeal, approached the statements made by the accused in an entirely different way because
of the nature of those statements, rather than

•	looking at the strength and force of the inducements
and in effect the manner in which they would normally be inferred to operate upon au accused person.

In this particular case there were what the

trial judge described as classic inducements or

classic statements of a kind which have been held to

be inducments .held out by what the trial judge

readily conceded was a person in authority. In

our submission, His Honour was plainly correct in

both of those findings. It is our submission that

it would be difficult to think of more powerful

inducements actually offered to a person being

questioned by a police officer than were the inducements

offered to the applicant McMillan in the

circumstances of this particular case.

BRENNAN J: Are there any cases where the involuntariness

of a confession obtained by a foreign police force

have been held to justify the rejection of what

is other probitive evidence?

MR w'EINBERG: 

We have not been able to find any, Your Honour,

and that is another aspect of the case in which
we say there is a point of general importance to

be considered. It was raised below, in the sense

that there was an argument that because the judge's

rules or their equivalents had not been complied

with by this particular Belgian. police officer,

that was a basis for the exclusion of a confession

as being in the excercise of discretion. But we say

that there must be recognized in our common law

system the rule that a confession obtained by a
foreign police officer, through threats or promises
which would render that confession involuntary in

Australia, will also render it involuntary and

inadmissible in an Australian court, in our

respectful submission.

BRENNAN J: It depends a little on what underlies the purpose of the rule?

C2T43/l/SR	26	31/5/88
Chowdury

MR WEINBERG:  It does certainly, Your Honour, and we will

be coming to that, but we will certainly be saying

that it is quite simplistic, with respect, and

wrong and not in accordance with modern thinking
about the rule to treat it as having no basis

other than the Wigmore reliability theory.

(Continued on page 28)

C2T43/2/SR	27	31/5/88
Chowdury

MR WEINBERG (continuing):  We say that, in fact, there are

a number of important principles which underlie the

exclusion of involuntary confessions, and reliability

is one of them, but it is only one. Our submission

to the Court will be that it would be quite

intolerable for confessions procured as a result

of torture or threats or force by overseas police

forces which do not adhere to the standards of

behaviour that are expected of police forces in

this country, to be able to use those methods of

interrogation and to say that an Australian court

will allow its own integrity to be polluted by

receiving evidence obtained in that fashion even

though had it been an Australian police officer who

procured the confession or statement in that way,

undoubtedly it would have been held to be inadmissible.

We submit it is not merely a matter of discretion

but a matter which goes to the very question of

voluntariness.

There is nothing in any of the classical statements

of voluntariness of confessional evidence which

limits the principle excluding involuntary statements

to statements procured as a result of threats or

promises by a police officer within the domestic

jurisdiction, if one can put it that way, within

which the trial is being conducted. We say the rule

is not so circumscribed. Your Honours, the inducements

that were offered in this case, really, in our

submission, were very powerful. The applicant was

told, in substance, that if he did not answer

questions he would be arrested. He was told,

in substance, that if he did answer questions

that would be the best thing he could do and

that he could go whenever he wished. He was told,

in substance, that it was possible that he would

be denied his freedom pending the hearing of a court

case and because of that possibility it would be

better if he answered questions and he was told,

in substance, that if he co-operated ~ith the police

he could get a lesser penalty and that Belgium law

provided for this. Each of those statements - - -

MASON CJ: 

Does the passage that appears on page ISA and

page 16 adequately set out the inducements from
your point of view? When I say ISA and 16, that is,

of the-judgment of the Full Court.  It is at page 472

and - - -

MR WEINBERG: 

Your Honour, it might be better if we took

the Court to the direct language of the inducements.

MASON CJ:	Yes, very well.
MR WEINBERG:	They do appear, firstly, at page 24. They are

not very long.

C2T44/l/MB	28
Chowdury

MR WEINBERG (continuing): At page 24, Mr Gielen is being

cross-examined and he says this at about line 10:

You apparently did not tell him that he did not have to answer your questions, I gather?

---Yes, I did.

You did tell hirn?---Yes.

When?---Before we started, I told him that

we had to know where he was corning from and

if he refused then he would be arrested.

He was arrested anyway?---He wasn't arrested

the first time; for 24 hours he was not

arrested.

Not arrested?---No, it is only administration in Belgium, 24 hours.

You held him for 24 hours?---24 hours we can keep him with us.

Without charging him with the crirne?---Yes.

If you keep them longer you have to charge him with the crirne?---Yes, so I marked the

photo-statements.

Well, you say you told him that he didn't have to answer questions?---(Witness nods.)

But if he didn't answer questions he would be arrested?---He wouldn't be arrested but

we have to know the reason for his journey.

But you told him, as I understand it, from

what you said before, that if he didn't answer

questions he would be arrested?---He would

have been arrested then, yes, because of the

flight tickets with other names, so he could

be arrested until we knew where the tickets

were corning from because they could be stolen.

Until the moment we knew that they weren't

stolen, until that moment he could be arrested.

(Continued on page 30)

C2T45/l/ND	29
Chowdury
MR WEINBERG (continuing):

And you told him?---Yes, I told him. I

also told him that if he would answer,

that is the best thing he could do, that

he could go whenever he would.

And then there is some further discussion on page 25, which is not germane. Then we go to page 26,

and perhaps 10 lines from the top of the page,

Mr Langslow puts this:

And if there is evidence that a person is a drug user, they can be held, I suggest

to you, for up to three months imprisonment?

---(Direct) I don't know exactly, but I

don't think so.

(Now direct): Well, for a substantial period,

anyway, they can be held in prison if there is

evidence?---Yes.

I suggest to you that you told McMillan that?

---I don't think so. No, I am sure. No.

Well, why do you say you are sure that you did

not tell him that?---I told him that it is

possible that he would be taken out of

freedom during the case for court, but we do
not take the decision. It is for a magistrate
to take the decision, not us.

And because there was that possibility you advised him that it would be better if he

answered questions?---We always do, yes.

I suggest to you that you told him that it

was possible that he could be under arrest or

in custody for an indefinite period unless

he was prepared to answer questions?---I

didn't.	I told him if he co-operated with us
that he could get a penalty that is less than
normal, and so the Belgian Law is like this:
if they are working with us, they can get a
penalty which is less than normal.

The learned trial judge, quite rightly, in our	submission, said that these were statements of a
classic type which would be regarded as inducements
in any ordinary case offered by a police officer,
a person in. authority. And the ordinary approach
adopted by any trial judge confronted with statements of that kind offered by a police officer
to a suspect being questioned would be undoubtedly,
in our submission, assuming a confession had

C2T46/l/JM	30	31/5/88
Chowdury

emanated from those statements, to conclude that that confession was contributed to - to use the

language that Your Honour Mr Justice Brennan

used in COLLINS' case - by the inducements that

had been offered by the person in authority.

(Continued on page 32)

C2T46/2/JM

31   31/5/88

Chowdury

BRENNAN J:  But there is a great difference here, is there not?

If I understand the passages that you have just

read to us correctly, Mr Gielen was telling the

accused the contents accurately of Belgian law

and its operation. In the case of what you would

regarded as "classical inducements" these are

cases where threats are made as to the exercise

of powers by the person in authority.

MR WEINBERG:	Your Honour, we do not know and there was no evidence at all as to whether Mr Gielen was
describing the way Belgian law operates or not.
For all we know, what Mr Gielen was doing was
a breach even of Belgian law. There was simply
no evidence of that at all in the case. But
we say that cannot matter. If the law of Chile
authorizes a police officer to use a certain
degree of violence to procure a ~onfession and
if a person is told that unless he answers questions
the law of Chile will enable him to be mildly
beaten up in order to procure answer~, that cannot
possibly, in our respectful submission, alter
the fact that the person who makes the statement
does not do so as a result of a free choice - the choice which His Honour Mr Justice Dixon, as he then was, in McDERMOTT's case said was
a precondition to the admissibility of a confession.
It matters not, in our  respectful submission,
whether Ser~eant Gielen was complying with the
law of Belgium or was accurately describing the
effects of the law of Belgium. The fact of the matter is that he had before him, in his custody,
a person who, on the evidence, was a heroin addict; a person who, on the evidence, had recently,
shortly before he took the flight from Bangkok,
injected himself with half a gram of heroin;
who appeared to him to be sick;  who was sweating,
perspiring, which Mr Gielen agreed was a sign of a person, as he understood it, who was withdrawing from heroin, and he was saying to him, "Unless
you answer my questions, you are going to be
locked up for a very long period of time. Belgian
law provides for that so you had better answer
my questions".

(Continued on page 33)

C2T47/l/SDL	32	31/5/88
Chowdury

MR WEINBERG (continuing):  That is not just a promise, or

an inducement in a promissory sense, it is a threat

of a most powerful kind by a person with the capacity

to enforce that threat, a person who is, in every

sense of the word a person in authority, within the

meaning of the rule, as His Honour found. We say

it is inconceivable that had statements of that

kind been made, as we indicated earlier, in a

situation where a confession itself had been procured

where, take the argument that Mr McMillan had fully

confessed to his involvement in count 10 of this

particular case, that a trial judge would have

permitted evidence of that kind to be given. These

were very powerful inducements, in our respectful

submission. They did take away from the applicant

his capacity to exercise a free choice whether to

answer or not. He was given the kind of offer which,

to use a different analogy, he simply could not refuse.

It is not a matter, we say, of unfairness, or oppression or discretion. It is a matter of a series

of powerful inducements being offered by a Belgian

police officer to a man who was vulnerable in the

particular circumstances to those particular threats

or inducements, because of the evidence about who he

was and what he was and why did the trial judge reject

the submission that the statements which emanated from

Mr McMillan ought to be excluded as being involuntary?

He gave a series of reasons for doing so, none of which,

we say, withstands any proper scrutiny. He did so

on the basis, firstly, that the answers given by

McMillan were, in His Honour's words, "wholly

exculpatory", "intended by McMillan to be exculpatory"

I think was the language used and - - -

WILSON J:	Could you tell us where they are, Mr Weinberg?
MR WEINBERG:	Yes, Your Honour, certainly, at page 47 to

page 48 - there were three separate rulings, I might

indicate to the Court, in relation to these statements

made by the applicant to Sergeant Gielen.	On three
excluded, and on each occasion His Honour ruled that it	separate occasions it was sought to have this evidence
was voluntary and admissible. Pages 47 to 48 of
the transcript - - -

WILSON J:	There was apparently no voir dire.
MR WEINBERG:	There was not, Your Honour, no.
WILSON J:	Was the objection taken in the,course of the trial?
MR WEINBERG:	Yes. It emerged after the cross-examination of

Sergeant Gielen. Once Sergeant Gielen had conceded and

volunteered that he had obtained the confessional

statements in this way, what counsel did was to say,

"We submit that it is now perfectly clear that these

conf~ssions are involuntary. Either Your Honour should

C2T48/l/HS	33	31/5/88
Chowdury

discharge the jury, or at least Your Honour should

direct the jury that they must disregard this evidence

as being totally inadmissible against the applicant,

and obviously it was evidence that was only

inadmissible in relation to count 10, which was the only count upon which the applicant was convicted."

His Honour declined to entertain that because

His Honour ruled that the confessional statements - he

did not describe them as such - but the statements were

voluntary and admissible. But at page 48 - at the

bottom of page 47, His Honour described the statements

made by the applicant in these terms, His Honour

said:

Certainly McMillan chose to give an

explanation and chose to make what was

obviously an extremely exculpatory statement

which led to his subsequently being released.

"Extremely exculpatory". We could hardly think, with respect, of a more inculpatory statement in relation to

count 10 than the contents of the statement that were

actually tendered to the court. One only has to look

at what that statement contained. It contained

admissions, if accepted by the jury, that the applicant

had gone from New Zealand to Bangkok, together with

another person, had gone there for the purpose of
being involved in heroin trafficking, dealing in

heroin, that the applicant was himself a drug user, but, it was said, the applicant reversed the roles. The applicant put himself in the lesser role of the

courier and put the other man, Jordan, in the major role of the principle, and the Crown made great play

of that fact, and the probative effect of those

statements in the context of a trial where the defence

was, that the purpose which the applicant went to

Bangkok had nothing to do with heroin, but was rather

for the purpose of smuggling currency, or gold, or

diamonds, has only to be considered for a moment to

be appreciated. This was described as a "wholly

exculpatory statement". (Continued on page 35)

C2T48/2/HS 34 31/5/88

Chowdury
MR WEINBERG (continuing): There is a passage from a judgment

of Chief Justice Warren in a case that we have

been most anxious for years to cite to any court,

the case of MIRANDA V ARIZONA, 384 US 436, and

the particular passage appears at pages476 and 477.

WILSON J:  Has it been diminished by recent decisions in the

Court?

MR WEINBERG:  Not at all, Your Honour. This decision stands

along with five other decisions of the United State

Supreme Court, all of which support this proposition.

MASON J:  This is the first opportunity you have had to

unleash MIRANDA on an Australian court?

. MR WEINBERG:  Yes, Your Honour. It is probably not authority

for a number of the propositions that it stands

for in this country but it is authority as to the

common law rule relating to voluntariness and

confessions, in our respectful submission, and

Chief Justice Warren had this to say towards the

bottom of page 476. His Honour said:

No distinction can be drawn between statements

which are direct confessions and statements

which amount to "admissions" of part or all

of an offense. The privilege against self-

incrimination protects the individual from

being compelled to incriminate himself in

any manner; it does not distinguish degrees
of incrimination. Similarly, for precisely

the same reason, no distinction may be drawn

between inculpatory statements and statements

alleged to be merely "exculpatory." If a

statement made were in fact truly exculpatory

it would, of course, never be used by the

prosecution. In fact, statements merely intended

to be exculpatory by the defendant are often

used to impeach his testimony at trial or

to demonstrate untruths in the statement given

under interrogation and thus to prove guilt

by implication. These statements are

incriminating in any meaningful sense of the

word and may not be used without the full

warnings and effective waiver required for

any other statement. In ESCOBEDO itself,

the defendant fully intended his accusation

of another as the slayer to be exculpatory

as to himself.

We say whilst that passage deals with the MIRANDA warning requirements the passage has wider

application and covers also inducements which would

render a statement otherwise involuntary and therefore

inadmissible.

C2TL+9/l/ND	35
Chowdury
BRENNAN J:	How do you make that passage sit with the test

of a choice freely taken to speak or to be silent?

MR WEINBERG:  Your Honour, if a person has a gun put to his

head and is told, "You either answer questions

or your brains will be blown out. 11 , can it make

any different whether he thereupon confesses his

guilt to the crime or answers questions but does

so in a fashion which is thought by him to be
exculpatory and which can be proved later to amount

to lies and relied upon by the Crown ostensibly

as a consciousness of guilt.

BRENNAN J: 

You are putting into that proposition a gun being held at the head but you are citing this proposition

for anything which amounts in the ordinary course

of events to an inducement.

MR WEINBERG: 

Your Honour, there is no difference, in our

submission, between an inducement in the nature
of a promise or an inducement in the nature of

a threat. Any inducement, provided it is sufficiently

powerful, which takes away a person's right to

make a determination, whether he speaks or does
not speak, which restricts that choice, which

contributes to his making the statement which is

made, in our submission, vitiates the statement.

(Continued on page 37)

C2T49/2/ND	36
Chowdury

BRENNAN J:	Now, that takes us back, perhaps, to some of these classical statements, "It would be better
for you to speak" and that is followed then by
a exculpatory statement. Do you find in that,
consistently with MIRANDA, an abolition or an
infringement of a free choice to speak?
MR WEINBERG:	Yes, Your Honour, one certainly does, in our

respectful submission, it makes no difference.

An inducement or a promise is, in a sense, nothing

more than the obverse side of a threat. Inducements

can take the form of a direct threat or they may
take the form of, "We will not do something nasty

to you if you make the statement." It cannot matter,

in our respectful submission. We say the inducements

in this case were both threats and promises. We

say the threat to be locked up for some very

considerable period of time when you are arguably

withdrawing from heroin and to be deprived of your

access to your heroin is a very powerful inducement
to say something, to speak. It is not giving a

person the free choice to speak or to remain silent. We say there can be no rational distinction between

a statement which is intended to be exculpatory

which is, in fact, inculpatory and a statement which amounts to a partial admission. For example, saying "Yes, I was there but I did not do it", so that there

is a partial admission of one of the elements of

the offence or the full confession. It cannot

matter. What matters, as Chief Justice Warren said

is, looked at in the end, is it incriminatory.and

it is obviously incriminatory is the Crown are

relying upon it.

In this case, the statements in this case

were not in truth, we say, exculpatory at all. They

fall into the category of what can properly be

described as either direct admissionsor partial

admissions of guilt in relation to count 10. They

put the applicant in the position of being in

All they did was to reverse the roles. Just to

Bangkok for the purpose of heroin trafficking.

illustrate the point and make it clear to this

Court that that was the way in which the trial

judge ultimately saw the matter, one only has	to turn to page 374 of the transcript to find that
His Honour actually told the jury precisely that,	in a formof a redirection, where His Honour is

talking about the tenth count at page 374.

WILSON J:  Was this made at the request of counsel for your

client, was it? There was a request to redirect -

MR WEINBERG:  I think it was an offer by His Honour to redirect.

His Honour had some doubts after having given the initial direction as to whether there had an adequate

C2T50/l/MB	37
Chowdury

differentiation in respect of each of the counts

and certainly directed again as to count 10 at

page 374, but dealt with the evidence of Gielen

about 10 lines from the bottom of that page where

His Honour tells the jury this:

McMillan gets on the plane and carries on

and is intercepted by Gielen at Brussels and

makes a statement in which he says, yes, well,

he was assisting Jordan to smuggle heroin

out of Bangkok with the idea that they were

going to take it back to New Zealand, but

eventually he got on the plane and left;

Jordan didn't leave. The Crown says in

relation to that, you remember, that the story

that McMillan gave to Sergeant Gielen was

essentially the truth, except that McMillan

swapped his place with Jordan's place - the

role.-

"essentially _the truth". 'Ihat lies

very ill with His Honour's earlier observation that

cihis was a wholly exculpatory statement. It was

nothing of the sort,in our respectful submission.

(Continued on page 39)

C2TS0/2/MB	38
Chowdury

MR WEINBERG (continuing): This statement was tendered as

a direct admission, on the part of the applicant,

of his involvement in the circumstances of the

conspiracy charged in count 10. It was tendered

for that purpose and the Crown said, "just reverse

the roles" that is all, that is the only thing

that was not true about the statement but the rest

of it is true, it is a direct admission.

BRENNAN J:  Mr Weinberg, I do not wish to delay you or to

debate with you, but I should just point out the

difficulty I have with the approach that you take

and the use that you make of MIRANDA in relation

to that approach. One view that could be taken,

and perhaps this is the view taken under the

Fifth Amendment of the United States, and that is

that the rule is intended to keep out from evidence

statements which are likely to be used adversely

to an accused person. And therefore if the

statement answers the requisite description,

any inducement et cetera is necessarily indicative

of the non-admissibility of the statement. The

other approach is to see whether the statement,

whatever its content may be and whatever purpose it

might be put to, is one that is made involuntarily

by the person who makes it. And that looks solely

to the question of that persons's state of mind

and in that event, of course, the purpose that the

person has in mind, rather than the effect to which

the statement is ultimately put, is the determinant?

MR WEINBERG:	Yes, Your Honour.
BRENNAN J:	I just thought I would mention that to you

because it seems to me that MIRANDA by no means

addresses that second proposition?

MR WEINBERG:	No, Your Honour, we concede that, Your Honour, and there are elements in MIRANDA of, perhaps one
could say, a constitutional underpinning for the
argument that was being advanced and indeed in the
other 6 or 7 occasions on which this matter has
reached the United States Supreme Court. That
cannot be said, of course, in respect of the
Supreme Court of Canada and it cannot be said in
respect of the House of Lords. Perhaps we might take the Court to the approach adopted by those
supreme appellate courts. In Canada, the case of PICHE V REG,(1970) 11 DLR (3d) 700. It is a considered judgment by the Supreme Court consisting
of 9 members of that court, 7 of whom adhered to the view that we put before this Court, that there
is no difference at all between exculpatory
statements or partial admissions in terms of the operation of the inducement rule upon them. Two

C2T51/l/SR	39	31/5/88
Chowdury

members of the court, Their Lordships Mr Justice Judson

and Mr Justice Fauteux dissenting. And the

matter was fully argued and agitated before the

court, that was the sole issue before the Supreme

Court and Chief Justice Cartwright, from pages 701

onwards considers a great many of the principles

in a short judgment, but concludes quite clearly

that the principle is the same. His Lordship says

this, half-way down page 701:

I agree with the conclusion of my

brother Hall that we are free to say

and should say that no statement made by

an accused to persons in authority

should be admitted in evidence· against

him unless it is shown by the

prosecution to have been a voluntary

statement in the sense stated by

Lord Sumner in the passage from his

reasons in IBRAHIM V THE KING ..... quoted

by my brother Hall, and that this rule

applies whether the statement sought to

be admitted is inculpatory or exculpatory.

I agree with the reasons of my

brother Hall but wish to add a few words
as to why, in principle, an involuntary

exculpatory statement should be inadmissible.

(Continued on page 41)

C2T51/2/SR	40	31/5/88
Chowdury
MR WEINBERG (continuing):

The main reason assigned for the rule

that an involuntary confession is to be

excluded is the danger that it may be

untrue but, as has been recently reasserted

by his Court in DeCLEREQ V THE QUEEN .....

the answer to the question whether such

a confession should be admitted depends

on whether or not it was voluntary, not

on whether or not it was true.

It appears to me to involve a strange

method of reasoning to say that an involuntary

statement harmful to the accused's defence

shall be excluded because of the danger of its being untrue but that a harmful

involuntary statement, of which there is

not merely a danger of its being false
but which the prosecution asserts to be

false, should be admitted merely because,

considered in isolation, it is on its face

exculpatory.

If, on the other hand, one regards

the rule against the admission of an involuntary

statement as being based in part on the

maxim nemo tenetur seipsum accusare, the

right of an accused to remain silent is

equally violated whether, when he is coerced

into making a statement against his will,

what he says is on its face inculpatory

or exculpatory. I find it difficult to

see how the prosecution can consistently

urge that a statement forced from an accused

is in reality exculpatory while at the

same time asserting that its exclusion

has resulted in the acquittal of the accused

and that its admission might well have

resulted in conviction.

I might just interpolate that this was	an appeal
against a decision of acquittal by the	court
below to the Supreme Court of Canada.	His Lordship
went on to say:

In my view, the supposed rule that an involuntary statement relative to the offence with

which an accused is charged is admissible

against him if on its face it is exculpatory

is an anomaly which should be rejected

from our law.

His Lordship cited from the judgment of

Justice Traynor in ATCHLEY's case in support

of that proposition. We have a dissenting judgment

of Mr Justice Judson which it is fair to say

is based in large measure upon some older authorities

C2T52/l/SDL	41	31/5/88
Chowdury

and also upon the older view which was represented in

editions of Wigmore prior to the edition which

was produced by Chadbourn in 1970. Wigmore himself
was a strong supporter of the principle that
an involuntary statement of an exculpatory kind

if one looks at the chapter in Wigmore. That view, of course, is no lon~er the view expounded

produced from an accused person should not be

rejected as inadmissible because it was exculpatory.

by the current editor of W1gmore and it is rejected

in favour of what is described as "the modern

view" which is the view represented by the United
States Supreme Court, by the Supreme Court of

Canada in PICHE's case and also by the House

of Lords, in our submission, to a very considerable

degree in the case of COMMISSIONERS OF CUSTOMS

AND EXCISE V HARZ AND ANOTHER, (1967) AC 760.

There is a passage from the judgment of

Lord Reid that we wish to take the Court to.and could we say, right at the outset in reading this passage, Lord Reid does not go so far as

to deal with exculpatory statements as such.

What His Lordship was dealing with was whether

the rule governing exclusion of confessional

evidence which is involuntary, also applies to

partial admissions. It was argued that the rule

had no application to admissions falling short

of confessions and that if a damaging admission

was elicited as a result of an improper inducement

then it was still admissible in law. Lord Reid

had this to say, at page 817 of the judgment;

the passage at the bottom of the page:

Then it was argued that there 1s a

difference between confessions and admissions
which fall short of a full confession.

A difference of that kind appears to be

recognized in some other countries. In

India and Ceylon legislative enactments	severely limit the admissibility of confessions
and the courts have construed these enactments
as not preventing the admission in evidence
of other incriminating statements obtained
by fair means though not in the manner
required for confessions. And for some
reason not made clear in ar.gument some
such distinction appears to be recognised
at least in some states in the United
States.

C2T52/2/SDL	42	31/5/88
Chowdury
MR WEINBERG (continuing):

But there appears to be no English case for more than a century in which an admission

induced by a threat or promise has been

admitted in evidence where a full confession

would have been excluded. If such a case

had occurred since appeal to the Court of

Criminal Appeal became possible I find it

very difficult to believe that there would

not have been an appeal. I can see no

justification in principle for the distinction.

In similar circumstances one man induced by

threat makes a full confession and another

induced by the same threat makes one or more

incriminating admissions. Unless the law

is to be reduced to a mere collection of unrelated

rules, I see no distinction between these

cases. And it is noteworthy that the new

Judges' Rules published in 1964 ..... make no

such distinction.

And perhaps that does not carry very much weight
but they are in the form of statement rather than

confession. Curiously enough, so also is the classic

formulation of the confessions rule in IBRAHIM's

case. So also is the description of the operation

of the confessions rule in LEE's case in this Court

where the expression "statement" is used rather

than the expression "confession" and so also

is the decision of the House of Lords in

DIRECTOR OF PUBLIC PROSECUTIONS V PING LIN where

the House of Lords speaks of statements rather

than confessions and we say that, of course, one

has to go back to the question that Your Honour

Justice Brennan asked earlier: what is the rationale

for excluding involuntary confessions? If the

sole rationale is the old view, the Wigmore view,

reliability, then I might as well sit down because

there is nothing further to be put. But, if it

with the possible exception of the current editors	is accepted as all modern text writers accept,
of Cross, that there are a number of factors at
play here; that involuntary confessions are excluded because they violate important societal interests, community interests; they are excluded not just because they are likely to produce untruthful
confessions but also because they violate rights -
rights of people to speak or to remain silent; because they do violate the integrity of the judicial process when a confession which has been forced
from someone is tendered against that particular
person. They do violate the broader principle
nemo tenetur se ipsum prodere which underlies also
the privilege against self-incrimination but is
not limited to that principle.

C21'53/l/AC	43	31/5/88
Chowdury

It is our respectful submission that once one accepts that there are these other principles

at play underlying the exclusionary rule, excluding

involuntary confessions, the whole basis for this

perceived distinction drawn by His Honour the learned

trial judge between non-confessional statements

as His Honour described these statements and a

true confession wholly disappears in our respectful

submission.

Now, Your Honours, we say that it was with

that background in mind that His Honour, in the

course of this case, came to the conclusions that

he did and the reasons that he came to for not

excluding this confessional material. There were

a series of reasons given by His Honour; one was

that the material was not confessional in nature,

well we say that simply is wrong in law - it does

not matter whether it is confessional in nature

or not, no such distinction is to be drawn, the

matter was approached on an entirely wrong basis.

The second reason given by His Honour was

as set out in paragraph 8 of the applicant's arguments

that the so-called classic inducements in this

case should not, in the circumstances, be regarded

as inducements; once again that is tied to the

first point. They are not really inducements because

in the circumstances of this case they did not

lead to the production of inculpatory statements,

they led to the production of - - -

(Continued on page 45)

C2T53/2/AC	44	31/5/88
Chowdury

WILSON J:  But is it necessarily tied to the first point?

Why is it not simply that they were not induced because in fact, having been acquainted with

the circumstances of Belgian law, he wanted to

continue his journey.

MR WEINBERG:  That is the third point, Your Honour, which

I was about to come to.

WILSON J:	The third point.	I am sorry, I am anticipating.
MR WEINBERG:	What His Honour was actually was:	these

are not inducements, rather than whether the

statements were actually induced.

WILSON J: Yes.

MR WEINBERG:  So, what His Honour is saying is: these

are not inducements. At another point His Honour

says they are classic inducements. We say they

obviously are inducements and it should not be

thought that the statements which emanated from

Sergeant Gielen were not inducements: they plainly

are. The second point was that the rules operate

differently, depending upon whether it is a

confessional statement which is produced, or an

exculpatory statement. We say that distinction

is without substance.

The third point which His Honour came to,

which is the one that Your Honour raises, is,

even if these were inducements, even if they
emanated from a person in authority, they did

not, in the circumstances of this case, cause

the applicant McMillan to make the statements which

he made. That is an important part of His Honour's

reasoning, although, by no means, the whole of

the reasoning.

But what one needs to explore is how

His Honour came to that conclusion, and the basis

passage in His Honour's third ruling on this	for that conclusion emerges from an important
point. We can take the Court to that, on page 68
of the application book.

WILSON J:  How did there come to be three rulings? There

was no voir dire.

MR WEINBERG:  No, Your Honour.

WILSON J: So that evidence was admitted. Was it in

cross-examination, or simply the Crown led it?

MR WEINBERG:  What happened at the outset - we might

say this, there was no conm1ittal in this case.

C2T54/l/JM	45	31/5/88
Chowdury

I think the applicants came to this Court on a

prevous occasion to complain about the fact

that they were denied a committal and this Court

refused leave. So, there was no knowledge, no

cross-examination of Sergeant Gielen. There was

no precise knowledge in advance of what he would
say when pressed on these particular matters.

What happened was that Mr Langslow sought to have Sergeant Gielen's evidence excluded right

at the outset, before he gave that evidence,

and in the course of so rejecting that application,	on the basis of discretion. That was rejected
at page 13, His Honour indicated that he saw no
reason to doubt that the confession was voluntary
and admissible.

WILSON J:	So that was the first.
MR WEINBERG:	Sergeant Gielen then gave his evidence and

at the end of that, after cross-examination,

Mr Langslow again raised the matter and said,

"Now that we have heard what Sergeant Gielen

has said, this confession is plainly involuntary

and inadmissible and should be excluded." And

the Crown responded to that and Mr Langslow was

taken a little by surprise by one or two of

the points that were taken and he asked His Honour

for leave to be able to refer to the matter again

and raise the::matter again. His Honour gave a

ruling, which appears at pages 47 and 48 of

the application book. Mr Langslow then raised the matter again, a third time, and that third

ruling appears at page 66 onwards of the

application book.

His Honour, on this occasion, introduces

for the first time this additional notion that

it could not be said in the circumstances of

this case that these inducements had operated

upon the applicant so as to cause him to

confess. What His Honour said, and the principle

underlying that conclusion appears at page 68

line 5:

It may be readily inferred that any

confessional or incriminatory statement made

after an inducement has been held out robs

that statement of its voluntary character.

But if the statement is neither confessional

nor, in the circumstances under investigation,

incriminatory it is not so readily to be

inferred that it was made by reason of

the inducement held out. Indeed, the whole
of the cited passage relates to confessional

statements -

C2T54/2/JM	46	31/5/88
Chowdury

that is the passage quoted from McDERMOTT's case

and it is also to be noted that an
involuntary statement may not be admitted

in evidence against the accused person "upon his trial for the crime to which

it relates".

(Continued on page 48)

C2T54/3/JM	47	31/5/88
Chowdury

MR WEINBERG (continuing): It is our submission that what

His Honour there is saying is a different approach

must be adopted to the question of the effect of

an inducement upon an accused depending upon the

nature of the statement which emanates. If it

is confession then you can readily infer that the

inducement contributed·to the making of the statement.

If it is not confessional or incriminating in nature

then no such inference should be readily drawn

at all and it does not matter if in fact there

are what appear to be powerful inducements operating

in the circumstances, factors which would rob a

confessional statement of voluntariness, exculpatory

statements fall into a different category.

His Honour then went on, after citing from

the judgment in PING LIN'scase, to further answer

Your Honour - - -

WILSON J: Before you go there, though, he goes on beyond

the point you have just mentioned. It is not confined

to exculpatory or otherwise. His Honour draws

from McDERMOTT's case, presumably, the circumstances

of the interrogation. In other words, the - - -

MR WEINBERG:  Yes, and certainly in McDERMOTT's case,

His Honour Mr Justice Dixon, in the context of

a case where a confession was in issue, uses the

language of a confession. There is nothing

particularly magical about that.

WILSON J:  And in relation to the charge which is being

investigated - - -

MR WEINBERG:  And that is a point, of course, upon which

the House of Lords, also in HARZ AND POWER simply

disa~rees. I mean, that was one of the bases of

the Judgment of the House of Lords in HARZ AND

POWER that the inducement need not relate to the

particular offence which is the subject of a, trial

at all.

WILSON J:  So you would say the fact that the charge which

was made .against your client in the present case,

the fact that it came 12 months or more after the

interview in Belgium is of no materiality?

MR WEINBERG:  No materiality, at all. The question is whether

when he made the statement there were factors operating

upon him which prevented his choice as to whether

to answer or not from being a free choice. That

is the only question which has to be considered,

not whether the inducement was one which related

to the particular charge which he was subsequently

facing. There is no warrant in the law for that

qualification whatever in our respectful submission.

C2TSS/l/ND	48
Chowdury

That point was one of the points actually raised

in HARZ AND POWER and rejected by the House of Lords as being any part of the common law rule

at all.

If I can just take the Court to page 818 in

the judgment of Lord Reid. His Lordship just rejects

that and says there is no warrant for it although

it is contained in some of the older text writings.

WILSON J: Where does it - it is on page?

MR WEINBERG:	818.
WILSON J:	Yes, at E and F.
MR WEINBERG:	It is about E where it was said that:

the threat or promise which induced the

statement related to the charge or contemplated

charge against the accused -

then -

the statement is not admissible; but if it

relates to something else, the statement is

admissible.

That distinction is simply rejected by His Lordship

and by the House of Lords. It is not a question

of whether the inducement relates to the charge

at all but whether there was an inducement.

And again, to answer Your Honour Mr Justice Wilson

further, the next passage at page 70 is, in our
submission, quite a remarkable passage from

His Honour's point of view. His Honour says this

at the top of page 70:

In the present case I have no doubt that

Sergeant Gielsen was a person in authority

so far as McMillan was concerned at the time

of the interrogation.

His Honour rejected the argument put by the Crown

that Sergeant Gielen was not a person in authority

and we say quite rightly. If there is a person in

authority requirement at all, we do not concede

that there is, but if there is Sergeant Gielen

was plainly a person in authority.

(Continued on page 50)

C2T55/2/ND	49
Chowdury
MR WEINBERG (continuing):	He then went on to say this:

But I have heard enough evidence in the

case to enable me to form a clear picture

of the character and capabilities of McMillan.

I am quite satisfied that he is an intelligent,

resourceful, competent and self-reliant man -

not a man to be easily persuaded or induced

to act or speak against his own interests.

We say that is a most remarkable conclusion, bearing

in mind that at that stage His Honour had not heard

from McMillan, what His Honour had heard was evidence

of a series of indemnified accomplices who gave

by the jury, ultimately, not being credit worthy

evidence about McMillan, all of whom were rejected

because the jury acquitted the applicant of each and every one of these counts with the exception

of count 10, that count being the one count in

relation to which Sergeant Gielen's evidence was

received, that evidence being extraordinarily

damaging and powerfully corroborative, in our

submission, of the witness, the indemnified witness,

Dale, in respect of that count. It is particularly

jury on counts 4, 5 and 7. Dale gave one lot	significant that Dale had been rejected by the
of evidence implicating the applicant in four separate conspiracies, rejected by the jury on	counts 4, 5 and 7 but accepted by the jury on

count 10, the one count in respect of which this

evidence, which was highly incriminating and highly

damaging to the applicant, was led.

Now, we say how could His Honour possibly

conclude that the applicant was not a person who

was easily persuaded or induced to act or speak

against his own interests in the face of the evidence

that His Honour had heard about him being a drug

addict, on the face of the evidence which His Honour

had heard about the inducements which had been

offered. His Honour had not seen the man, knew

nothing about him except for his plea of not guilty.

His Honour had heard only from a series of indemnified

accomplices, all of whom were rejected.

Again, the Court of Criminal Appeal takes the

same approach, the broad-brush approach. The

Court of Criminal Appeal dismisses the appeal

on the basis that, in any event, even if there

were these inducements and even if they did emanate
from a person of authority, firstly, they did not

lead to confessional-type statements - and that is

a different principle which operates - and, secondly,

this man did not confess or make these statements

because of any inducements or any pressure placed

upon him, he made them as part of a calculated plan

on his part to have a contingency available to him

to deal with a situation of this kind. Again, a

C2T56/l/MB	50
Chowdury

most remarkable way, we would say, of attempting

to sustain a conviction in the particular circumstances
of this case.

We say that the whole ruling on the question of causation is coloured, and obviously coloured

by the approach which His Honour adopted at page 68

to treat this kind of statement as being different

to a confessional statement, to say that one will

readily infer that there was no free choice if

what emanates is a confessional statement, One

will not readily infer that if what emanates is

a non-confessional statement.	We say that is simply
wrong, basically wrong.

BRENNAN J: 

As a matter of law or as a matter of fact?

of law. It cannot be right, in our respectful
submission, that any such distinction can be drawn

MR WEINBERG: 

Wrong as a matter of law, wrong as a matter

by a trial judge. Wrong in law, in our respectful submission.

BRENNAN J: What is the principle of law which it offends?

MR WEINBERG:  It offends against the principle that a statement

made by an accused person, which statement was the
product of or contributed to by an inducement, is
inadmissible irrespective of the nature of a

statement.

BRENNAN J:	Or the effect of the inducement?
MR WEINBERG:	Your Honour, there can be no doubt that these

inducements, had they produced a confession, would

have been regarded by the learned trial judge as

being of a sufficiently powerful kind to enable

the appropriate inference to be drawn.

(Continued on page 52)

C2T56/2/MB	51
Chowdury

MR WEINBERG (continuing); He had no reason not to draw it.

What His Honour fixed his hat upon, if we can put it so, was the fact that they did not produce a statement

of the appropriate kind. They produced a different

kind of statement and therefore the ordinary inference,

the ordinary approach will not be adopted.

A completely different approach will be adopted and

His Honour then, more readily, concluded, adversely to

the applicant, we say on wholly specious grounds - - -

BRENNAN J:  I appreciate that argument. I am just trying to

test your proposition that this is an argument of law

thatyouare now addressing, that there is no

distinction between the two types as a matter of law.

MR WEINBERG:	Yes, Your Honour.
BRENNAN J:	But yet, if you come back to the question of the

effect of the inducement on the mind of the accused

and the inferences that are to be drawn on that subject

then,for my part, I fail to see why it is a matter of

law and not a matter of fact.

MR WEINBERG:  The question of law, Your Honour, is whether

inculpatory and exculpatory statements are t·o be

treated in precisely the same fashion as a matter of

law. We say there is a rule of law which says they

They were not treated in precisely the same fashion.	are to be treated in precisely the same fashion. them to be treated in the same fashion, therefore
we say there was an error of law made by the learned
trial judge. I do not know if we can - - -

BRENNAN J:  No. I appreciate the argument.

MR WEINBERG:  Your Honours, we say the point is one of

importance.	It is of general application, it transcends
the facts of this particular case.	There is no

doubt that this is an era of international crime
and the movement of persons throughout countries.

We say that there will important questions to be

resolved about the way in which Australian courts

deal with and respond to material of this kind, confessional-type material obtained by overseas

police forces.	We do not know what the rules of
other communities provide for.	We do not know what

the law of Belgium was at the relevant time, but we

do know that had inducements of this kind been offerred

by an Australian police officer to this applicant in

these circumstances, and had a confessional statement,

in its true and narrow sense emanated, is

inconceivable, in our submission, that a trial judge would not have excluded such confessional statements.

Why the difference? Is it because Sergeant Gielen was

Belgian? Is it because what emanated was an

C2T57/1/HS	52
Chowdury

exculpatory statement?	We say that cannot be an
appropriate legal distinction.	We say that it is

plain, in our submission, from the very fact that the

applicant was acquitted of counts 4, 5 and 7, the

same witness giving that evidence, that this was

important evidence, on any view. We say that if this

material had been excluded, or the jury told to
disregard it, it makes the case against the applicant

in respect of count 10 very much weaker than it was

actually presented, very much weaker.

I understand my friends are going to say the case on count 10 is overpowering and overwhelming,

et cetera. We do not accept that for one moment.

If one takes away Sergeant Gielen one is left only with

the same discredited evidence of Mr Dale, the
indenmified accomplice, a jury that was not prepared
to act on any indenmified accomplice alone in this

case, coupled with only one additional fact, and that

is that Jordan was actually picked up with heroin in

Bangkok, a matter that is quite equivocal so far as

the applicant's guilt of this charge is concerned,

given the defence which was of course, "Jordan went off

on a frolic of his own. He did get involved in heroin.

I concede that. That was not part of any arrangement

with me", but once one adds Gielen's evidence that the

applicant had conceded to him that he, the applicant,

had gone to Bangkok for heroin-related purposes, and

once the jury accepts that the applicant had said that,

that is the end of the case, as far as the applicant

is concerned.

It should never, in our respectful submission, have been left to the jury as part of the evidence

in respect of count 10. Those are our submissions.

(Continued on page 54)

C2T57/2/HS	53	31/5/88
Chowdury

MASON CJ:  Mr Weinberg, there is one question that we

want to put to you which Justice Brennan will put

to you.

BRENNAN J:  Mr Weinberg, Mr Nash, you will remember, was

asked by Justice Wilson about the question of delay.

Do you have anything to say about that?

MR WEINBERG:  Yes, we do, Your Honour. So far as our

application was concerned we were in a position to

proceed some time last year. We have been held up

for some period of between 6 and 12 months by the

fact that it was decided that these matters should
be dealt with jointly rather than permitting the

applicant, McMillan, to present his argument alone

and originally the third person, Sullivan,was

also going to be a party to this application and

he ultimately abandoned his application.

BRENNAN J:  When you say it was decided, you mean it was

decided by those - - -

MR WEINBERG:  A decision of the Registry as we understand

it that the matters had to be proceed together rather

than permitting our client to come here and

present his argument some time ago.

BRENNAN J:	I see.
MR WEINBERG:	We had •settled a draft application book in

May of last year. There was new representation

obtained for the applicant in March -

BRENNAN J: That still leaves a period of some years, does

it not?

MR WEINBERG:  About two or three years, yes, Your Honour,

and the problem was, as we understand it, largely

a financial problem again. The application did

go in on time but there were problems about

actually getting sufficient funds. Could we say
this in relation to any order for a new trial:	we

would submit that it would be, of course, a trial

limited to count 10. It is a fairly limited

endeavour. The first trial was a monumental exercise,

it was -

BRENNAN J: Well, of course it will be limited to count 10

there is no question about that.

MR WEINBERG:  Indeed, but a very short trial limited to the

evidence of Dale and limited to some evidence to be

given by Sergeant Gielen or one or two other

officers. It would be a very short not difficult

trial to run in that sense.

BRENNAN J:  Do we know whether they are available or not?

C2T58/l/SR	54	31/5/88
Chowdury

MR WEINBERG:  We do not, Your Honour, we do not. We can

only say that if our point is good and if the

applicant has not received a fair trial, the

fact that he was ·unable to prosecute his appeal more

swiftly, and certainly we have a complete excuse

for about the last 6 to 12 months, should not - - -

MASON CJ:  But that is only a small period of the time really,

is it not?

MR WEINBERG:  It is about a third or quarter of the period, we

concede that if the Court pleases.

BRENNAN J: It is the initial delay of some years. It seems

to me to be a very serious situation if the

applications for special leave to this Court can be

allowed to lie for a period of years and then, even

assuming that there is a good point, it then

comes up on an application for special leave with

all the possibilities of injustices that follow

from a late consideration of that problem?

MR WEINBERG:  Can we say this in response, Your Honour~. it

might even be said fairly that the appropriate course

in relation to this count would be to order no new

trial and we say that because without Gielen's

evidence we would have only the discredited evidence

of Dale coupled with the actual finding of heroin

upon Jordan in Bangkok which is equivocal. We

submit that it would not be at all unreasonable to
say to this Court that the strongest steps should
be taken, so far as the applicant is concerned

if our point is good, and that this applicant should

not be retried at all. But if the Court were not with

us on that, then we say there is no obvious

difficulty about a retrial limited to the very

narrow issues involved in count 10 so far as the

applicant is concerned.

TOOHEY J: Mr Weinberg, what is the position regarding

custody of your client?

MR WEINBERG:  He is serving a sentence of 17 years, Your Honour.

TOOHEY J: Yes, but going back, how far back in time, or for

how long has he been in custody?

MR WEINBERG:  He has been in custody for 7 years, Your Honour.

He is serving a sentence of 17 years with a

minimum of 15 years and in the ordinary course of

events remissions would mean that he would ultimately

serve about 10 of those years in the State of

Victoria.

C2T58/2/SR	55	31/5/88
Chowdury

MR WEINBERG (continuing):  So he has served seven years'

custody thus far. If the Court were minded to

consider this matter, no doubt it would take

some considerable time before the Court handed

down judgment, he would have served a very considerable

portion of the sentence actually imposed.

MASON CJ: It will not take three years though, Mr Weinberg.

MR WEINBERG:  I hope not, Your Honour. We have had the

experience of waiting thirteen months on one

occasion, if the Court pleases, for a decision,

but we say that cannot be decisive.	We understand
what Your Honour is saying;	we wish it were

otherwise, but we say that that point must be

subsidiary to the question of whether the applicant

has received a fair trial and it would be wrong,

because of the difficulties associated possibly
with ordering a new trial, to say that special
leave would not be granted because the applicant

did not have the funds to prosecute this appeal

for some time and finally assembled them. We

understand the concerns of this Court about the

dangers associated with allowing people to sit

on appeals. It was open to the Crown, of course,

to come to this Court and seek to strike out

the applicant's appeal for want of prosecution.

The Crown, very fairly, did not take that course.

I am not being critical of them but we say there

is a remedy in the hands of the Crown in cases

where the matter is not prosecuted in sufficient

time and perhaps the Crown ought to avail themselves

of that remedy more frequently. If the Court

pleases.

MASON CJ: Yes, thank you, Mr Weinberg. Yes, Mr Winneke.

MR WINNEKE:  Your Honours, I wonder if we can hand up some

written submissions that we desire to speak to.

They are in two parts, Your Honours:

respect of the application of Chowdury and one one in

in respect of the application of -

MASON CJ:	We can deal with Chowdury first.
MR WINNEKE:	May it please Your Honours.
TOOHEY J:	Mr Winneke, could I really cut right across

your proposed argument in relation to Chowdury

and just ask you a question. It is in relation

to a passage in the judgment of the Court of

Criminal Appeal on page 384 of volume II. It

is a matter that arose in discussion with Mr Nash

and it is the passage that begins about mid-way

down that page, in which the court rejects the
evidence of what was found i.n Bangkok as having
any weight as similar fact evidence but then

goes on to say:

C2T59/l/SDL	56	31/5/88
Chowdury

It was, in our op1n1on -

it is about two-thirds of the way down -

strong circumstantial evidence which tended

to show that the applicants were guilty

of the crimes charged because it supported

the conclusion for which the Crown contended,

namely that Chowdury and the others concerned

were involved in smuggling heroin into

Australia and not gold or gemstones as

they claimed. As such, that evidence was

clearly relevant and highly probative.

Can you tell us what can be said in support of

that view taken by the court? What was the evidence

and how was it admissible as "strong circumstantial

evidence"?

MR WINNEKE:  Your Honour, the raid upon the two houses

in Chiang Mai were conducted by the police on

the same day, 30 December, approximately three

days after Chowdury had been apprehended here.

There was one house, a guest house, at Gaewnawarat Road

and there was another house, some two miles away, at

Chiang Mai Hod Road, number 58.

(Continued on page 58)

C2T59/2/SDL	57	31/5/88
Chowdury

MR WINNEKE (continuing):  And in each of those houses there

were found what the Crown contended were the trappings

of a heroin smuggling operation by the people who

occupied the houses, in this case, Chowdury.

Your Honour, there were found in both houses partially

completed ,cutlery boxes, in partial states of

construction with false bottoms and false tops,

of the type that were found with Chowdury when

he was apprehended in Australia or when he came

into Australia.

In addition to that, Your Honour, there was

found at the Sun guesthouse which was occupied
by Chowdury what was called the press or a ram,

the contention being that that was used to flatten
out the heroin into the lids and the bases of the

boxes; in other words, it was a press used for

pressing the heroin. In addition to that, letters.certainly addressed to Chowdury, indicating

that he was a man who smuggled heroin. In fact,

there was one letter that talked about anal runs

and coming back and getting other cutlery boxes,

et cetera.

In addition to that, Your Honour, there was

evidence of material found at the Chiang Mai Hod

Roadhouse and there were partially completed cutlery

boxes there. There was, in fac½ No 4 heroin of

the type that was packed into these boxes as the

Crown alleged found in a locked room in a locked cupboard which also contained letters and other

documentation indicating it was room owned by

Chowdury's wife and used by Chowdury's wife; that

is the allegation, in any event. In addition to that, Your Honour, there was

a car out the back of these premises with all its

tyres flattened and giving the appearance that

it had been there for a long time, or so the jury

could find, which, in a concealed portion of it,

under the floor boards, contained an enormous amount

of raw opium which, as the evidence indicated,

was the product from which No 4 heroin was refined.

Your Honour, in addition to that there was evidence

of a relationship between Surasak Prompun who was

the occupier of that house and Chowdury.

There was evidence of Prompun and Chowdury

being seen together shortly before Chowdury came

to Australia. There was evidence of the two of

There was evidence of Prompun and Chowdury going from Chiang Mai Road to the Sun guesthouse. There was evidence, Your Honours,

them going into the house at 58 Chiang Mai Road. by Chowdury.

C2T60/l/ND	58	31/5/88
Chowdury

that when Chowdury came to Australia he gave his

address, on occasions, as 58 Chiang Mai Road.

There was evidence that shortly after the raid

was conducted Mrs Chowdury disappeared with both that she was the owner of 58 Chiang Mai Road.

the press and the completed cutlery box that was
found in the house, they have never found

In addition to that, Your Honour, there was

evidence of a statement made by Chowdury to the
police here on 12 January 1982 when it was put
to him about his relationship with Prompun, he

denied that he knew Prompun, and in addition to

that he denied that he had ever been to the house,

58 Chiang Mai Road. Your Honours, all of that,

the Crown contended, was a powerful body of evidence
from which the jury could infer or use as evidence
to show that in the one main issue of the trial

remaining that Chowdury was a man who had all the

trappings of the operation alleged against him

and none of the trappings of the operation that

he alleged that he was indulging in, namely, a

gemstone trader.

In that sense, Your Honour, the Crown suggested

that the jury was perfectly entitled to look to

it as evidence indicating how that issue, the major

issue in the trial, ought to be resolved.

(Continued on page 60)

C2T60/2/ND	59	31/5/88
Chowdury

MR WINNEKE (continuing):  As we understand it, Your Honour,

the Court of Criminal Appeal said, and we would

adopt it, that it was strong circumstantial evidence

going in resolution of that issue. It really was

not evidence tendered to show that Chowdury had

done the same acts before but it was rather in

the nature of the man being found, as it were, with

all the trappings of the operation alleged against

him,,. much the same way as a bank robber might who
has robbed a bank with particular tools and with

particular sort of rope. If those things were found in his possession or in the custody of a person with whom he had frequent contact, in the

same way that evidence could be used, notwithstanding

that it also discloses in the course of reducing

the evidence, the commission, perhaps, of other

offences.

Now, Your Honour, as we understand it, in

the case of O'MEALLY evidence was used in similar

ways, not to identify a product but to identify a

man. In that case, which is reported (1953) VLR.

I think it was a case where it was sought to identify

O'Meally as the perpetrator of a crime by seeking

to relate certain stolen items found in his house

with certain items found at the scene of the crime.
In essence, what the Full Court was saying was,

"This is not a case of similar fact evidence, this

is a case of going to evidence which tends to show

that O'Meally was a man who committed this crime."

So here, where the one remaining issue in this trial, as it turned out, was was Mr Chowdury a

heroin S1JJ.Umleror was he a gem smuggler,. in-essence,

what the Crown was point to was material found

contemporaneously with Chowdury's arrest, or very
shortly thereafter, which bore all the trappings

of Chowdury being a heroin smoker.

In our respectful submission that was the

way in which the evidence was put and that was the

way in which the Court of Criminal Appeal picked

it up and used it.

TOOHEY.J:  Yes, thank you very much, Mr Winneke.

MASON CJ: Well, I think you might now turn your attention

to the second of the cases, McMILLAN's case.

MR WINNEKE:  Yes, Your Honour. Your Honours, might I turn

to our submissions and, indeed, one, I think, has

to go to page 2 because we are only dealing with

grounds 4 and 5. What we contend, Your Honour,

first of all, is that this application, notwithstanding

its novelty, in fact in this case raises not a case

of general importance, which if wrongly decided might

seriously interfere with the administration of

criminal justice. We submit that the principles

applicable to what constitutes an inducement so

as to render a confessional statement or admission

C2T61/l/MB	60	31/5/88
Chowdurv

involuntary and inadmissible,are clearly laid down

in McDERMOTT's case and IBRAHIM's case and many

other cases. Now, Your Honours, we say that the

judgment of the Court of Appeal did not purport
to limit or redefine principles rendering a confessional

statement involuntary and inadmissible. The court

and the learned trial judge - and if I might insert,

Your Honours, interpolate - not only accepted that

the statement made by the McMillan to Gielen was
a voluntary statement in the sense of the rules
but also they relied upon the factual conclusion

that the statement made by the applicant to the

Belgium police officer was neither confessional in

relation to the charges which the applicant was

facing upon his trial, nor was it relied upon as

being such.

Now, Your Honours, what we mean by that is

set out, first of all, if we can Your Honours to

it, to the ultimate ruling by His Honour the trial

page 66 canvassed the submissions of Mr Langslow	judge at page 67 and following. His Honour at
on behalf of McMillan and at about the middle of page 67 he went on to say that:

(Continued on page 62)

C2T61/2/MB	61	31/5/88
Chowdury

MR WINNEKE (continuing):

It will be observed that some of the

statements are classic examples of the type

of statement which has been held to constitute

an inducement so as to render a confessional

statement involuntary and inadmissible.

And then His Honour cites the passage of

His Honour Mr Justice Dixon, as he then was, at

McDERMOTT's case and then he goes on to say:

This passage has been generally accepted in Australian courts as the locus classicus

of the law in relation to confessional statements.

But I do not understand the last sentence

as meaning that if an inducement is held out

any statement made by the person being

interrogated will be inadmissible notwithstanding

the particular circumstances of the case.

It may be readily inferred that any confessional

or incriminatory statement made after an inducement

has been held out robs that statement of its

voluntary character. But if the statement

is neither confessional nor, in the circumstances

under investigation, incriminatory it is

not so readily to be inferred that it was

made by reason of the inducement held out~

Indeed, the whole of the cited passage relates

to confessional statements and it is also to be noted that an involuntary statement

may not be admitted in evidence against the

accused person "upon his trial for the crime

to which it relates". Ordinarily the crime

to which a statement relates would be the

crime in respect of which the accused person

is being interrogated.

Now, Your Honours, we understand that what His Honour

Mr Justice Murray was there saying was: to be

of a confessional character of the type to attract

the exclusionary rules of the common law the statement,

whether it be regarded as a confession or an

incriminating statement must, as it were, emanate

from an investigation into the subject-matter of

the crime or the offence with which the applicant

is ultimately charged. If in the course of making

answers during the course of an interrogation in

relation to an entirely different matter he makes

statements which thereafter might be seen to be

incriminating as by a side wind in respect of another

matter then His Honour says, and we would contend,

that is not evidence of a confessional character

which attracts the rules. And I think one example

was given by the Court of Criminal Appeal and,

indeed, we gave another one to His Honour and the

C2T62/l/AC	62	31/5/88
Chowdury

Court of Criminal Appeal that if a man, for example, were to rob a bank in Canberra today and shoot

the bank teller and make off with $10,000 in cash
in Australian currency and then take the first

flight to London and be apprehended by a London

airport officer who finding the $10,000 in cash

asked for an explanation under pain of detaining

him until he gets a satisfactory one and the man

in answering that question makes an allusion to

the fact that he had been on this day near that

bank, in our respectful submission, it would be

absurd to think that if subsequent investigations

revealed that this man was a prime candidate in

a charge of murdering a bank teller and robbing
a bank that the incriminating material - material

which was then found to be incriminating but which

placed him on this day in the vicinity of that

bank could not be used in evidence against him

because it had been extracted in circumstances

some time before in London in circumstances which
would render it involuntary and inadmissible in

any trial that took place in London in relation

to the possession of stolen bank notes.

(Continued on page 64)

C2T62/2/AC	63	31/5/88
Chowdury

MR WINNEKE (continuing): Now, we respectfully submit that

the exclusionary rules of the common law do not

go that far and that when His Honour Sir Owen Dixon

used the words in that passage, namely, that:

At common law a confessional statement made out of court by an accused person
may not be admitted in evidence against

him upon his trial for the crime to

which it relates unless it is shown -

et cetera, His Honour is in fact using those words

in the sense that we are using them here. We submit

that there is a vital distinction to be drawn

between this sort of expression and the words used

by Lord Reid in HARZ's case and we will take the

Court to that. But in essence it is the short-hand

way of saying what, in our respectful submission,

is the law, is that unless the confessional material

is extracted upon an investigation in relation to

that crime upon which it is sought ultimately to

be tendered than the exclusionary rules do not

apply and that is what His Honour Sir Owen Dixon was

meaning when he said, "the crime to which it relates".

In the same case, His Honour Mr Justice Williams

made the same allusion and that is to be found

in the report of MCDERMOTT, 76 CLR, 516.

BRENNAN J:  If that . is right, Mr Winneke, it means that

if there should be a charge of multiple rape being

investigated the police officer can ask questions

only with respect to the rape by A and if he

should over bear· the will of accused C and extract

a confession from him of his involvement in the

evening in question, that confession can be used

then to charge accused C with his act of rape.

MR WINNEKE:  Your Honour, subject to the overriding

di.icretions that the Court has to exclude any statement

which has been unfairly obtained. But what we

say, Your Honour is that the exclusionary rules

of the common law have grown up in a tight fashion,

if we can use those words, that they ought not to be

carried further than they need to be. They grew

up, as Your Honour well knows, in a different era,

of course, but none the less, they have grown up

in a neatly confined environment. And, in our

respectful submission, one of the limitations which

has been imposed upon them has been that before

the exclusionary rules will apply the incriminating

statement or confession, call it what you will,

must as it were be made in response to an

investigation of the subject-matter of the charge

C2T63/l/SR	64	31/5/88
Chowdury

at which the confession is sought to be tendered.

Otherwise, in our respectful submission, you could have a great variety of absurdities which would follow, very similar to the ones that we have

already indicated to the Court.

BRENNAN J: For my part I do not see why the basic notion

that the rule is intended to protect a person

from self-incrimination is not a satisfactory

underlying principle and guiding light in these

cases?

MR WINNEKE:  Yes, Your Honour, and with respect we would

agree with that that if indeed the underlying

principle to the rule is that a man should not
have to incriminate himself, then it is appropriate,

we respectfully submit, that the rule does apply

in circumstances where the officer doing the

interrogation knows of the particular offence which

it is that he is interrogating the accused

suspect about and has brought the mind of the
accused suspect to that offence. Now in those

circumstances it seems to be quite appropriate that any incriminating statement made in those

circumstances, in a manner-which is contrary to the

rules, should not be admitted if the underlying

basis is that no man should be held to have

incriminated himself in those circumstances.

(Continued on page 66)

C2T63/2/SR	65	31/5/88
Chowdury

MR WINNEKE (continuing): But if in the course of trying

to explain something, or get himself out of one
hole when his mind is being directed to one
particular offence, he digs another hole for
himself, then, in our respectful submission,

the underlying thesis of nemo tenetur does not

seem to apply so well.

MR BRENNAN: Well, that is a different proposition. Your

first proposition, as I understand it, is that

a question of voluntariness, or no, can be

matter of the inquiry being conducted by the	answered in part by reference to the subject
person in authority. Now, that seems to me
to be a mechanistic approach to the rule and
one which does not really lead to any answer
in terms of a satisfactory principle.

MR WINNEKE: Well, Your Honour, we would respectfully

submit that unless you confine the rule, the
exclusionary rule to answers obtained in

circumstances where the interrogator, knowing

that an offence has been c0Dm1itted, directing

his mind to that offence and directing the

accused's mind to that offence, in those

circumstances one can understand the rationale

of the rule and the basis of it being that the

man should not have to incriminate himself

in those circumstances of an offence when his will

has been overborne. But, in our respectful

submission, it is not so easy to understand the

rationale of that rule if, when being interrogated
in those circumstances in respect of an offence
that both he and his interrogator know that the

interrogation is proceeding for, he lets slip

something that in later circumstances becomes

incriminating. We respectfully submit that that

is what has happened here. That is why it is

not really a question of confession. We submit that that is the significance

of the words of Sir Owen Dixon when he says,

"the charge to which it relates", that is,

the confession relates. In other words, the

statement must relate to the charge.	We
respectfully submit that is sound	c0Dm1on

sense, because otherwise it would be excluding all sorts of statements that subsequently were found to become incriminating in other circumstances.

It seems to us, with respect, to be somewhat foreign

to this rule to, as it were, lay down a proposition

that would lead to what) we respectfully submit,

would be an absurdity, rorwhere an accused man,

as McMillan was here, confronted with what he must

have known to be a compromising situation, having

in his possession, not only a false passport but

C2T64/l/JM	66	31/5/88
Chowdury

several airline tickets in other names, sought to

extricate himself from the hole in which he

found himself, and in the course of doing so let

something slip that became incriminating because

he was subsequently investigated and charged with

other offences that were not in contempl&tion of

Mr Gielen at the time. We respectfully submit

that there is that limit to the rule and there

is sound reason for it.

We might refer Your Honours to the passage

in the decision of His Honour Mr Justice Williams
in McDERMOTT's case at 516, about two-thirds of

the way down the page. His Honour says this:

A confession can only be admitted in

evidence against an accused person if it is

proved to the satisfaction of the judge that

it is a voluntary confession.

(Continued on page 68)

C2T64/2/JM	67	31/5/88
Chowdury
MR WINNEKE (continuing):

In Phipson on Evidence, 8th ed (1942), o. 248, it is stated that in

~rirninal cases a confession made by the

accused voluntarily is evidence against him

of the facts stated. But a confession made after suspicion is attached to, or a charge

has been preferred against him, and which has been induced by any promise or threat

relating to the charge and made by, or with

the sanction of, a person in authority, is

deemed not to be voluntary and is

inadmissible.

Now, Your Honour, it was also said in PICHE's case,

a Canadian case to which my learned friend referred

very recently, (1970) 11 DLR 700, in the decision of learned friend referred at page 702, His Honour said

about a little over half-way down the page:

In my view, the supposed rule that an

involuntary statement relative to the offence

with which an accused is charged is admissible

against him if on its face it is exculpatory

is an anomaly.

Now, what His Honour is seeking to do is to suggest that because a statement is exculpatory, none the less

it does not come within the exclusionary rule if it is

incriminating but, in our respectful submission, it

is interesting that he refers to "an involuntary

statement relative to the offence with which the

accused is charged". We respectfully submit that

that is a significant factor which has been imposed by the common law rules and it is understandable,

we respectfully submit, because it is necessary for

the mind of both the interrogator and the accused to be

going to the same issue, and that issue is the

particular illegal act which is the subject of the

charge being investigated .. Otherwise, we would

respectfully submit there would be a wide gap created

by the exclusionary rules that have grown up in relation

to confessional evidence.

Your Honour, we respectfully submit that the

corollary of the proposition is - this was the

proposition that we put to the court below - that the

person who does the inducing must be, in order to be

a person in authority, a person who is capable of

influencing the prosecution of the charge, that is the charge in respect of which the confession is to

be tendered and we respectfully submit that that is

also to be found in the passage of His Honour

Sir Owen Dixon at page 511 in McDERMOTT's case where

His Honour said, towards the bottom of page 511, about 10 lines from the bottom:

C2T65/l/HS	68
Chowdury

If his statement is the result of duress,

intimidation, persistent importunity, or

sustained or undue insistence or pressure,

it cannot be voluntary. But it is also

a definite rule of the connnon law that a

confessional statement cannot be voluntary

if it is preceded by an inducement held out

by a person in authority and the inducement

has not been removed before the statement is

made.

(Continued on page 70)

Chowdury 69 31/5/88

C2T65/2/HS

MR WINNEKE (continuing):

The expression "person in authority"

includes officers of police and the like,

the prosecutor and others concerned in

preferring the charge.

We respectfully submit that that must necessarily

be the case, if our first proposition is correct,

namely, that if the exlusionary rule, in fact,

only applies to the extraction of an incriminating statement in circumstances where the interrogation

is going to the particular offence which is ultimately

charged, or has been charged, then it necessarily
follows that the~person in authority holding

out the inducement, in order to be that person

in authority, must be a person who is capable

of influencing the charge.

So that we respectfully submit that His Honour was right and the Court of Criminal Appeal were

right when they said that this was not confessional

material of the type to which these exclusionary

rules applied. I understood my learned friend

to say to the Court that the concept that the

statement must relate to the charge was something

that was rejected by the House of Lord in HARZ's

case but, in our respectful submission, if one

looks at HARZ's case the House of Lords, or

Lord Reid in particular, was referring to a different

concept.

HARZ's case, (1967) AC 760, and the particular

passage in Lord Reid's speech to which my learned

friend referred was at pa~es 818 to 819. We

respectfully submit that 1f one looks at the

whole of the passage what His Honour was referring

to is a different concept than the one that we

have been referring the Court to. What His Honour

said, was:  I must now deal a little more fully

with the next argument because it was accepted

by Thesiger J. and forms the basis of his

dissent. It is said that if the threat

or promise which induced the statement
related to the charge or contemplated charge
against the accused, the statement is not

admissible; but that if it related to

something else the statement is admissible.

The distinction does appear in some, but by no means all, modern textbooks and it

has a very curious history. There is no

mention of it in the earlier works of authority -

and His Honour then refers to Joy and he refers

to Taylor. His Lordship then goes on:

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This is merely an inference which those

learned writers draw from a few cases,

none of which appears to me to warrant

it. The most striking is REX V LLOYD.

There the inducement was that the gaolor would let the prisoner see his wife and

Patterson J., without giving any reason, held that that did not make the confession admissible.

So that whatever it is that His Lordship is referring

to as being the concept there referred to, it

obviously contemplated circumstances where the

interrogation was in respect to the offence,

or the charge which was ultimately brought against the prisoner, but it seems to be that the argument there being put was that the inducement has to

be an inducement seeking to relieve or threaten

the prisoner with respect to his fate on that

charge.

(Continued on page 72)

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MR WINNEKE.(continuing):  In other words it was being

suggested, "If you said to the prisoner, if you

tell me we know about this I will let you go."

But if on the other hand you said, "If you do not

tell me what you know I will charge your wife

with an offence", that :i.n those circumstances the

former would be relevant to make the rule work

but not the latter. It is that sort of concept

that His Lordship seems to be dealing with in

these passages because he goes on to say:

The report is short and we do not know all

the circumstances.	He may well have thought
the inducement too small to matter.	But

suppose the wife had been at death's door:

I can imagine no inducement more likely to

lead to a false confession, and I cannot

believe that in such a case Patteson J would

have held it to be admissible. Yet the
rule invented by these learned authors would mean

that the confession would have been admissible.

Then there are cases cited where no inducement

was held out at all; for example, in REX V GREEN
where the man offered to confess if his

handcuffs were removed ...•.. REX V GILHAM,

where after much argument it was held that a

confession following on spiritual exhortation

was admissible, but all the argument would

have been quite unnecessary if there had
been any rule of the kind suggested.

Then His Lordship went on, at the bottom of the page, to say:

There appears to have been no judicial	consideration.of this "rule" for more than
a century after it was first formulated.
But in REG V JOYCE Slade J based his
judgment on the rule as stated in Kenny.
constable.had only said: "I need to take I doubt whether he need have done. The
a statement from you." Unless he misled the
man into thinking that he was bound to make a statement and would suffer in some way if he
refused, I would not regard that as involving
any threat or inducement at all. The only case
in the Court of Criminal Appeal broµght to our
notice was REG V SHUTTER. There Fenton Atkinson J
said: "In our view inducement will not vitiate
a confession when the proffered benefit has no bearing on the course of the prosecution and
on this point the textbook writers speak with
one voice."

Then His Lordship goes on at page 821 to say:

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That the alleged rule or formula is illogical

and unreasonable I have no doubt. Suppose

that a daughter is accused of shop-lifting

and later her mother is detected in a similar

offence, perhaps at a different branch, where the

mother is brought before the manager of the

shop. He might induce her to confess by telling

her that she must tell him the truth and it

will be worse for her if she does not: or the inducement might be that if she will tell the

truth he will drop proceedings against the

daughter.

Now, it is pretty obvious when one looks at this

passage in His Lordship's judgment that he is not	dealing with the proposition that we put, that he is
rather dealing with circumstances that certainly contemplate that the interrogation is being made
of the prisoner in relation to the charge .with which the prisoner is either charged or in contemplation of being charged. What he is dealing with is a
totally different proposition which apparently said that notwithstanding the fact that the prisoner is
not given a free choice to make a statement, none the less that statement will be admissible if it can be shown that the inducement did not relate to the
charge then being investigated.

In our respectful submission that is a totally

different proposition from the one which we respectfully

submit does apply and that is that if a statement,

incriminating in its context. as it is subsequently

seen to be, is made bv a person during the course of an interrogation of an entirely different and

unrelated matter, then in those circumstances the

common law rule does not apply. We respectfully

submit that that is what His Honour Mr Justice Murray

had in mind and that is what the Full Court had

in mind when they expressed the view that this

was not confessional material to which the rules

related.

(Continued on page 74)

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MR WINNEKE (continuing):  But they had one other matter in

mind and that was that in any event this could

not be confessional material to which the rules

related because it was a statement made by

McMillan in the course of furthering his unlawful

aim in respect of the offence with which he was

ultimately charged. This particular offence was

an offence of conspiring with other persons to

import heroin into Australia and the offence

alleged that McMillan and the others with whom

he conspired acted in furtherance of that

conspiracy between a date early in March when

Jordan was brought out to Australia and a date

approximately 18 April when McMillan ultimately

called Dale home from London.

Your Honours, this particular offence, we

respectfully submit, was, indeed, a very strong

count against McMillan because in essence what

the Crown proved in relation to this offence was
that McMillan brought a man called Jordan over

from London on false passports and then acquired

a radio tuner with specially hollowed out cavities

from a person called Sigg and the tuner which was

ultimately found with the heroin in it was

identified as the tuner that McMillan had ordered

from Sigg; that armed with that tuner and on false

passports and in false names and on false ticketing,

both McMillan and Jordan left the shores of

Australia and entered, ultimately, Bangkok.

Whilst they were there, the Crown alleged,

although it had no proof of the fact, that

McMillan went to his supplier and had the cavities

of the tuner filled up with No 4 heroin, 2 kilograms

of it. And that he then brought that radio tuner

to the hotel room where Jordan was staying and

packed it in his luggage and then, in accordance

with their plan, they went to the Bangkok airport

prepared to fly out to Brussels. Instead of Jordan

a young Auckland policeman who had seen Jordan	being able to go, because of the altertness of	behaving in a rather suspicious manner before he
set off from Auckland to Bangkok and who had
forwarded the description of Jordan and his name
he was then travelling in to Bangkok, Jordan was
apprehended.

And when he was apprehended the tuner was

broken open and it spilled out contents of nearly

two kilograms of pure heroin. McMillan, who claimed

later that he was aware of this, flew off to Belgium

where he was intercepted by Gielen who had got

information from the Bangkok police and when he

intercepted McMillan Gielen thought that McMillan

was, in fact, a man Alford and was somewhat

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surprised, as he said, to find that he was

travelling under a passport of William Knox

and had, in his possession, a number of airline

tickets going on different routes and in different

names.

And so Gielen then said to McMillan that he

required an explanation as to how he came to be

in possession of these tickets in default of which

he would not permit him to leave, that if he did
give him a satisfactory explanation he could go

and McMillan then made what McMillan himself

described in his statement to the jury as one of

my typical yarns and, as he said, in essence,

gloating, that he put it over Gielen.

In those circumstances - I might just finish

the story - - -

BRENNAN J:  Where is this statement to the jury?

MR WINNEKE: It does not appear in the appeal book,

Your Honour, but there is a reference to it.
If Your Honour goes to 258 in the charge of

His Honour, this is the McMI'tLAN- appeal book,

His Honour is telling the jury about McMillan's

statement.

(Continued on page 76)

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MR WINNEKE (continuing): And McMillan's statement, if one

reads from the top of the page, says:

Tony's suitcase -

that is Tony Jordan -

Tony's suitcase was packed. He then

went off to the airport and at the

airport he positioned himself so he

could see if Tony arrived.

This is His Honour talking about McMillan:

He did arrive, he staggered into the
car park late and used the trolley to
support himself to get to the

check-in counter.

And then His Honour quotes again:

"When he gave his ticket to the airline

girl I saw her signal to some Thai
policemen~' and he saw that they

descended on Tony. "I thought he

would be checked and then allowed to

board the flight. When he did not

I thought they must have discovered the Carradus passport, which is a

British visitor's passport which is

in evidence, and following that they

might have kept him for questioning".

The Carradus passport was one of the passports upon

which Jordan travelled to Australia:

So he got on the plane and flew to

Brussels -

this is His Honour talking -

and he was then intercepted by Gielen -

he flew to Copenhagen first and then

to Brussels. "Some hours later they

told me that the real Jordan had been arrested in Bangkok with two kilos of heroin. At that stage things began

to fall into place in my mind. However
it was not until much later that I

found out there was a tuner involved.

I got Gielen - I got him to tell me as

much as he knew, and then I gave him a

yarn that I thought would fit in with

what he knew". You know what that yarn was -

I think I surmnarised that earlier .... for you.

"I contacted Peter Dale and told him that

Jordan apparently had been stopped in Bangkok

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with heroin and that would of course

interfere vi.th my plans. Dale whined

and carried on, saying that he

needed money badly --

et cetera. Now when McMillan is there referring

to "my plans" it was the Crown case that he took

two couriers with him on this trip, something

that he had done before. One was to carry the

suitcase from Bangkok to London and the other

one was to come back from London to Australia so

that he could give the appearance to all intents

and purposes of being an Australia to Europe and

return passenger.

(Continued on page 78)

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MR WINNEKE (continuing):  Now Dale was the person who went

to London and the fact of the matter is that

McMillan, so the Crown alleged and this was part

of the evidence of Dale, had told Dale to remain

in England until he contacted him and that when

he managed to escape from Gielen, or relieve himself

of the custody of Gielen, and go to London he contacted

Dale where, so Dale said, McMillan told him that

there was still another kilogram or kilogram and

a half of heroin to be picked up in Bangkok and

that he wanted to go home to Australia to see if

he could arrange another trip to go and pick up

the heroin that he had left behind and had not

been caught on Jordan. And that, accordingly,

McMillan made arrangements to fly home from London

to Australia by getting his Australian girlfriend

to send him another false passport that he had;

he flew out of London back to Australia.

Subsequently, he said, according to Dale, that

he was unable to organize another trip to Bangkok,

it would be too dangerous to do so and for Dale

to fly home.

Dale, in fact, flew home on 18 April. Now,

what the Crown alleged was that this particular

conspiracy relating to count 10 was a conspiracy
again between Dale, McMillan and others to import

heroin into Australia and that conspiracy never

ended until the time when Dale was summoned home
by McMillan. And in the course of that, so the

Crown alleged, it became necessary for McMillan

to further his unlawful enterprise to, as it were,

get himself out of the clutches of Gielen, the

Belgian policeman, so that he could go to London,

contact Dale and continue with his plan to import

the heroin from Bangkok to Australia. So that,

in essence, what the Crown was alleging was that

not only was this not confessional evidence - the

statement that he made to Gielen - but that it

was nothing more than a typical McMillan yarn-spinning

exercise to achieve an object that he very much

desired to achieve for the purposes of being able

to complete his plan.

(Continued on page 79)

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MR WINNEKE (continuing):  McMillan said, of course, that

the plan was to get the gold in the tuna, which

he had left behind. His defence was, "I took

a tuna there; there was a tuna full of gold

there. I did not know that Jordan had another

tuna". But he said that he, none the less, had

a tuna of gold that he had filled up in Bangkok

and still left there and that when he was referring

about going back again he was going to get the

tuna of gold that he had left behind.

What the Crown alleged was that this was

part of McMillan's enterprise to, as it were,

spin this yarn to Gielen so that he can get himself

out of the clutches of the authorities, in whose

custody he well knew that he could not afford

to be, so that he could continue on to complete

his enterprise with Dale. In that sense, the

Crown allege, that this could not be confessional

material because however you refer to confessional

material it can only, as it were, attract that

description if it is material which is extracted

in respect of an offence which has been completed.

We refer the Court in that respect to a

decision of the Full Court of the Supreme Court
of New South Wales, the Court of Criminal Appeal

in New South Wales, in the case of REG VG. ,F. ,S.,

AND W., (1974) 1 NSWLR 31. That was a case,

Your Honours, in which a number of people had

been charged with conspiring to pervert the course

of justice by bribing police officers to give
them protection in respect of illegal operations

and a lot of the evidence related to conversations

which took place between the accused persons

and police officers who were, as it were, agent

provocateur and dressed up as citizens and pretending
to be policemen who could, as it were, arrange

for the appropriate cover for the abortion trade

that the medical practitioners wanted to carry

on. (Continued on page 80)

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MR WINNEKE (continuing): At the trial it was sought to

have the statements made excluded on the basis

that they were incriminating statements which

had been obtained in circumstances that rendered

them non-voluntary. Now, in respect of that

the Court said that the statements had been

properly admitted. If the Court pleases, at

page 40 their Honours said, about line C:

Section 410 -

which was the New South Wales section extending

the common law rule -

was considered in R. V S. S. had been

charged under s.21 of the ROYAL COMMISSIONS ACT,

1923, on an indictment allegi.ng _ that he,

being a witness before the Royal Cormnissioner,

knowingly gave false testimony. Chief Justice Street

said: "Section 410 only applies when something

is said by an accused person relating to

some previous happening or events on which

a criminal charge against such person is being

made. Before the section can operate, there

must be a person whose words are sought to be

tendered in evidence against him in proof of
his guilt of the offence of which he is suspect.

The use of the words of the confession or

statement does not constitute the offence.

They can only have relation to and constitute

evidence of some antecedent incident or

incidents which are themselves the foundation

of the charge. The words used may amount to

a confession, that is to say a declaration that the suspectei·person is in fact guilty of the offence in question, or an acknowledgement

of the truth of facts which would establish

the conmission of the crime alleged against

him. Or his words may constitute an admission,

that is a statement by him recognizing the

truth of certain matters material in

considering the question of his guilt or

innocence. Thus an accused man charged with murder would i)roperly be said to confess if he stated that he killed the deceased by

adminis.tering arsenic to him in his food. If,

on the same charge, he merely stated that

he had arsenic in his possession, that would

properly be described as an admission, but

it would not be a confession of guilt.

(Continued on page 81)

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MR WINNEKE (continuing):

The two words are not mutually exclusive,

for a man may be said to admit his guilt

and this would be equivalent to a

confession. Neither of these words apply

to the evidence given by S. on which

the present charge was based. A

statement, as that word is used in the

section, means some written or oral

conmrunication, ejusdem generis with a

confession or an admission, containing

incidental matter relevant to a particular

charge under consideration and to the

issue of the accused's guilt or innocence

of that charge:	ATTORNEY-GENERAL FOR
NEW SOUTH WALES V MARTIN.	But whether

the words in question of the person

accused are properly described in any

particular case as a confession, an

admission or a statement, they must always

and in every case have reference to some

antecedent events constituting the

subject matter about which the accused is

speaking. To come within the section

the accused must confess to, or admit,

or make statements about some past and

independent happening of which his

words form no part themselves. They

must relate to some previous crime or to

some charge then pending or some criminal proceedings then in contemplation against

him.

When S. gave the evidence now

alleged to be false there was no charge

then pending against him involving the
commission of an offence to which he

could confess or about which he could

make a statement, and if he gave his

evidence truthfully he never could be

guilty of an.offence under section 21 of

the ROYAL COMMISSIONS ACTS. If the

advice given by the commissioner was an

untrue representation or a promise, within

the meaning of section 410, it did not

induce a confession or a statement, as

that word is used in section 410. If it had

any effect all, it induced the witness to

give false evidence on oath and thereby

commit an offence under section 21, and

for this, section 410 affords him no

protection. His answers to the relevant

questions put to him at the commission were

in no sense a confession, an admission, nor

a statement within the meaning of that section.

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MR WINNEKE (continuing):  Then the Court goes on:

Owen J. took the same view of the meaning

of s. 410, although he dissented as to its

application to certain of the evidence under

consideration. He said (5): "The confessions,

admissions and statements to which s. 410

refers are confessions, admissions and statements

made by a person accused of committing an offence, and having a relevant bearing on

the issues whether the offence was committed

and whether the accused committed it. They

are confessions, admissions or statements

made after the happening of the offence, and

in some manner linking or tending to link

the accused with it, either standing alone

or when considered with other circumstances

disclosed in evidence."

The law as to rejection of statements

improperly obtained, whether under common

law principles or under statutory provisions

such ass. 410, is in our view built upon

the proposition expressed in R. VS. (6), viz, there is a past event or crime and a

person subsequently or then charged is speaking

of that past event or crime so as by his words

to acknowledge or admit its existence. The

submission which was made here, thats. 410

can, if there has been ·an antecedent untrue

representation by a person in authority, apply

to a statement which is itself a crime or

which is made in the course of committing a crime and for the purpose of furthering

it, e.g., the offer of a bribe or a call to

murder by one bank robber to another during

the robbery is entirely without authority.
As Herron J. said in R. V S. (7): "It is

no defence to the commission of crime in this

country to assert that the accused was persuaded

to do what he did because of the blandishments
of some person in authority."

And then Their Honours went on to say that the

crime of conspiracy was in fact a continuing crime

which followed the conspirators at all times until

its termination and then at the middle of page 44, Their Honours having, as it were, referred to that concept, went on to say this:

(Continued on page 83)

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MR WINNEKE (continuing):

From these statements we deduce the conclusion

earlier referred to, that the crime of
conspiracy is a crime not limited to the

making of the unlawful agreement, but

committed whilst ever the unlawful

agreement is in existence. The agreement

may exist but for a moment - because the

conspirators are detected immediately after

they make their agreement - or it may exist

for years. Whilst ever the unlawful purpose

or concert is shown to be in existence
between the conspirators, the conspirators are
conspiring and the crime of conspiracy is

being committed. It is a crime of duration,

a continuing offence. So viewed the overt

acts proved will individually or collectively,

or course, be indicative of the formation

earlier of the unlawful purpose, but their

full role is to establish the existence of the

unlawful purpose from that earlier point in

time to whenever the conspiracy was
discovered. That will be the crime of
conspiracy charged in the indictment.

Conspiracy is invariably charged as having been committed between certain dates - it

is the conspiring, the continuation in

existence of the unlawful purpose, between

the dates alleged which is the crime charged

and which is the matter to be proved.

In the light of the considerations set

out above it follows that the statements made
by the conspirators to the police are to be

regarded as conduct on their part attempting

to further and implement their initial

unlawful purpose. The very making of those

statements showed, when they were made, that

the initial unlawful purpose was then still

in existence. Their statements are to be

regarded as conduct showing, not that the

crime of conspiracy had been connnitted, but

that the crime of conspiracy was being

committed - that the conspiracy was on foot

as the indictment alleged it was. The statements,

in our view, cannot be regarded as "confessions",

"admissions" or "statements" as to past events

or past crime - when proved in court they fell

to be considered as acts of the conspirators

constituting an attempt to bribe Det. Sgt Rames

and the other police, and as such they were there

for the jury to consider as material from which	the conclusion was to be drawn whether the Crown
had proved that t.he accused "on or about the
eighth day of March 1971 and thereafter until the seventh day of April, 1971 at Sydney in the State of New South Wales did amongst themselves
as the indictment alleged. conspire together to pervert the course of justice",

MR WINNEKE (continuing):  We respectfully submit that that,

indeed, was the effect of McMillan's statement

here. He was making a statement which was a

statement made in the course of furthering his

unlawful purpose as alleged in the indictment

and that it was a necessary part of his plan

to, as it were, escape the clutches of Gielen

and to be able to further his unlawful purpose.

We respectfully submit that that is what

the Court of Criminal Appeal in Victoria, in

this case, effectively said. The Court,

Your Honours, at page 475 of the McMILLAN appeal books, about half-way down the page, the Court

said:

It was a necessary part of McMillan's

plan to travel under false name and with

false documentation. It followed that

if his identity or documentation were

questioned he would necessarily have to
give false explanations or face the

consequences of being detained by the relevant

authorities.	He found himself in such
a situation with ·Mr Gielen.	To suit his

own purpose to enable him to further his

plan he chose to make up an account with

would persuade the Belgian authorities

to release him.

Then again, at page 476, the Court said:

(Continued on page 85)

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MR WINNEKE (continuing): The Court said:

The statement made by the applicant

McMillan in this case cannot really be

described as a confessional statement

in relation to the charges which he was

facing, nor was it relied upon as being

such. The statement was in effect a

false explanation by McMillan given to
the Belgian authorities to enable him
to travel on to London instead of being

detained in Belgium.

And the Court goes on to say:

In the course of making that statement,

the Crown contended that McMillan made

references which pointed to his involvement

in drug-related activities in Bangkok. And then at page 478, again about half-way down

the page, the Court said:

The present case is even stronger because .

McMillan's desire to exculpate himself from imprisonment on charges under the Belgian law concerning his possession of air tickets was

dictated by his desire to continue his
journey for the purpose of furthering the
conspiracies to import heroin into Australia.

In our opinion, the evidence was properly

admitted and we detect no error in the way

His Honour directed the jury in relation to

it.

So, Your Honours, what we say finally is

this: that although the point raised by our

learned friends is a nice one, this case is not

the appropriate vehicle for the purposes of this

Court considering it. that the evidence was admitted on three grounds: We respectfully submit	firstly, because His Honour found as a question
of fact that the statement was made voluntarily
in the sense that it'Wls not caused by any inducements held out to McMillan, but in fact
was the product of his own self-generating mind and because, as His Honour pointed out, McMillan
was in a situation where he just had to make up one of his yarns for the purposes of being able
to further his exploits. Secondly, because it
is not confessional material of the type to which the exclusionary rules apply.

(Continued on page 86)

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Cowdury	85

MR WINNEKE (continuing): Firstly, because it is not material

extracted in the course of an interrogation into

the charge with which he is ultimately charged

and, secondly, because this was material or a

statement made in .the course of furthering his

unlawful activity and was therefore not confessional

but rather a statement made as an overt act in

the course of a conspiracy. Therefore, we submit,
that for those reasons, this Court ought not to

grant special leave to appeal. May it please

the Court.

MASON CJ:  Thank you, Mr Winneke. Yes, Mr Nash.

0 MR NASH: If the Court pleases, there is no matter that

I wish to raise by way of reply.

MASON CJ:  Thank you, Mr Nash. Mr Weinberg.

MR WEINBERG:  if the Court pleases, we ~hink w~ can put our reply

in just a minute or two. We submit that the

analysis of the law that has been put forward by

my learned friends does have the effect of what

Lord Reid described as reducing the law to a mere

collection of unrelated rules. We submit that

on any view the applicant did incriminate himself

in the answers that he gave to Sergeant Gielen,

that the answers that he gave to Sergeant Gielen

in effect convicted him out of his own mouth if

accepted by the jury of being a party to a

conspiracy with the other man to export heroin

from Bangkok and the only difference between the
role which he ascribed to himself and the role·
which he ascribed to Jordan was the mere reversal

which my friend relied on and the matter was so

put to the jury at page 374 by the learned trial

ND judge.

We submit that there is, with respect, nothing

in the last point that was put by my learned friend

that a confession or admission must relate to some

past matter because this did relate to a past matter.

BRENNAN J:  I think the real point of that case is that if

evidence is admissible as original evidence and

not admissible in order to prove the truth of the

facts stated in it then does it matter that the

facts stated in it contain some confessional material?

(Continued on page 87)

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:t,,fR WEINBERG:  We understand what Your Honours says, we

submit that the learned trial judge told the jury

that they could regard the answers given by the

applicant as being evidence against him, not as

original evidence-this is the first suggestion
that there has been made of that,did not eminate

at the trial at all,but rather as evidence of

the truth of what they contained. He expressly

told the jury that that was the way in which
the Crown tendered that evidence and relied upon
that evidence and we say that the case of G

is a very different kind of case. It is a case

where statements are made in the course of the

actual conspiracy which constitute the conspiracy.

This statement made to Gielen cannot possibly

be regarded in that way, it is a statement of a

past event, that is past participation by the

applicant in a conspiracy with Jordan in Bangkok

to deal with heroin. It was plainly, in our

submission, tendered as an admission not as original

evidence and in our submission there is simply no

force in the last submission put by my learned

friend.

The final point we wish to make is that it

would be absurd if a person was coerced into

answering questions with a view to investigating

a particular crime, made a record of interview

under duress, admitted the commission of that

crime and went on to admit other matters which were

not being investigated by the police officer.	My
learned friend's proposition is right, the

admission of the matters being investigated would

be inadmissible because that would be a confession

which properly related to the inducement. But

the other admissions which had been procured

by inducement or threat, just the same inducement,

precisely the same - the same conversation, would

be admissible against the applicant in relation

be brought into disrepute, in our respectful	to trials on those other counts. The law would	submission, if a distinction of that kind were drawn.
The final point, Your Honours, is this, that in so far as there is any challenge to the proposition that Sergeant Gielen was a person in authority, we
say the trial judge found that he was. We say
that there has been a recent decision of the Court of Criminal Appeal in South Australia in the
matter of GEESING,(1985) 16 A Crim R. 90, which holds in effect that the'person in authority 1~equirement
is not a part of the common law any longer. That was a case where a confession was coerced by fellow prisoners.
A man in gaol was threatened and made admissions to them. The Court of Criminal Appeal said it would be
absurd to allow involuntary admissions made under coercion
by fellow prisoners and excluded those confessions

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Chowdury

as being involuntary and said the 'person in

authority' requirement, in effect, was no part of

the cormnon law as it ought to be applied in this

country.

(Continued on page 89)

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MR WEINBERG (continuing): It has been abolished legislatively

in so far as it was ever thought to exist. It has

been the subject of complete criti·cism and attack ever

since it was laid down. Could we simply refer the

the Court to an article by Murfield entitled

Confessions, the Person in Authority Requirement,

1981, Criminal Law Review at page 92 which deals

with that aspect of the case.

Your Honours, there was one other matter that

we neglected to mention. Last Thursday we received

a copy of a judgment of the last issue of the

Australian Criminal Reports, volume 27, part 4, a

matter of DANIEL DOYLE. It was not referred to in

our list of authorities. It came to us too late. The Court of Criminal Appeal in Queensland, as of last Thursday, held that an exculpatory statement is

not a confession for the purposes of section 10

of the Queensland CRIMINAL CODE. The reasoning appears

to be precisely the kind of reasoning that was

formerly accepted by the courts.	None of the cases
that we have cited to this Court were,	it would seem,

cited to the Court of Criminal Appeal, the American

authorities.	I do not think that PICHE's case was
cited.	The case is directly against us in terms of
the result that was reached.	We say it indicates

just how important the point actually is in support of

our app}ication for special leave.

WILSON J:  Mr Weinberg, when you say, as you said two or three

points back, that the Crown did use this statement to

Gielen as confessional material - did I understand

you to say that?

MR WEINBERG:  Yes, Your Honour. It tendered the statement,

in effect, as evidence of the truth.

WILSON J:  I am just looking at the judgment of the Full Court

at page 476 when they say,"T'he statement cannot really

be described as a confessional statement in relation to the charges he was facing, nor was it relied upon • h II

as eing sue . b

MR WEINBERG: It is simply wrong, Your Honour, with respect.

If Your Honour looks at the passage from - - -

WILSON J:  Even though Mr Winneke, in addressing the jury, spoke

of it as one of McMillan's yarns?

MR WEINBERG:  Yes, but he also said, with respect, that it was

entirely true with only the roles reversed, and he
invited the jury to act on that basis, that McMillan,
in admitting that he was involved in a heroin conspiracy,
that part of it was all true, and we say the trial

judge also told the jury precisely that.

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MR WEINBERG (continuing): This was essentially an admission

with McMillan involved in a limited exculpatory

exercise, putting himself in the lesser role for

a limited exculpatory purpose so that he might be -

I think my friend puts it - be given some opportunity to get out of Belgium, as he puts it, as part of

a conspiracy. We say, quite differently, that this

was plainly the product of an inducement. you remember, that the story McMillan gave to

Sergeant Gielen was, essentially, the truth. That

the Court pleases. is, indeed, what Mr Winneke put to the jury. If

MASON CJ:  The Court will adjourn for a short period of time

in order to determine what course it will take.in

this matter.

AT 4.29 PM SHORT ADJOURNMENT

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UPON RESUMING AT 4.40 PM:
MASON CJ:	Chowdury's application for special leave to

appeal seeks to challenge the correctness of

discretionary rulings made by the trial judge.

In our view the points sought to be raised do

not raise any question of general principle.

Furthermore, we are not persuaded that in the circumstances of the case the rulings made by the trial judge gave rise to any miscarriage

of justice. The case is therefore not a case

for the grant of special leave to appeal.

McMillan's application seeks to challenge

-the admission into evidence of a statement made

by the applicant to one, Gielen, a Belgian police

officer. The applicant's submission is that

the statement was not made voluntarily because

it was induced by inducements or threats made

by Gielen. The difficulty confronting the applicant

is that the trial judge made an affirmative finding.

that the statement was made voluntarily. In

the circumstances of the case we are satisfied

that the statement was properly received into

evidence on the ground that it was voluntarily

made. The application for special leave to appeal

is therefore refused.

AT 4.41 PM THE MATTER WAS ADJOURNED SINE DIE

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