Clarke, Tofilau, Hill and Marks v The Queen

[2006] HCATrans 627

[2006] HCATrans 627

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M102 of 2006

B e t w e e n -

MALCOLM JOSEPH THOMAS CLARKE

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M106 of 2006

B e t w e e n -

LEMALUOFUIFATU ALIPAPA TOFILAU

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M109 of 2006

B e t w e e n -

SHANE JOHN HILL

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M118 of 2006

B e t w e e n -

MATTHEW JOSEPH MARKS

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 NOVEMBER 2006, AT 10.40 AM

Copyright in the High Court of Australia

__________________

MR P.F. TEHAN, QC:   May it please the Court, I appear with my learned friend, MR C.B. BOYCE, in the matter of Clarke.  (instructed by Ronald V. Tait)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear in the matters of Tofilau and Hill with my learned friend, MR L.C. CARTER.  (instructed by Victoria Legal Aid (Criminal Law Section))

MR G.J. LYON, SC:   May it please the Court, I appear in the matter of Marks with my learned friend, MR C.B. BOYCE.   (instructed by Victoria Legal Aid)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MS S.B. McNICOL, for the respondent in all these matters.  (instructed by Solicitor for Public Prosecutions)

HAYNE J:   We are minded to deal with the matters together, but before we go further, can I just understand exactly what is in issue.  Firstly, do I understand that there are time questions in each of Tofilau, Hill and Marks, but there is not in Clarke; is that right?

MR HOLDENSON:   Well, there is in Tofilau, Hill and Marks, your Honour.

HAYNE J:   Yes.

MR TEHAN:   There is, I think, in Clarke also, your Honour.

HAYNE J:   Is there?  Well, is there any opposition to the extension?

MR McARDLE:   Well, we are not able to point to any prejudice, if the Court pleases.

HAYNE J:   Very well.  Next, can I just be quite plain about what is in issue.  Mr Holdenson, in the two matters in which you are engaged, which are Hill and Tofilau, in Tofilau are we to understand that ground 2(1)(b) is not pressed?  That is at page 377 of the application book.

MR HOLDENSON:    That is correct.  The ground concerning discretion is no longer relied upon.

HAYNE J:   Likewise in the matter of Hill, is the equivalent ground, which is I think there 2(II)(b), not pressed?

MR HOLDENSON:    Yes, discretion is not relied upon, that is correct.

HAYNE J:   Is it therefore plain that the only point or points that are pressed are questions of voluntariness?

MR HOLDENSON:    Yes.

HAYNE J:   Which involves person in authority ‑ ‑ ‑

MR HOLDENSON:    In each case.

HAYNE J:   ‑ ‑ ‑ in each case, and that there is no discretionary question pressed?

MR HOLDENSON:    Correct.

HAYNE J:   Very well.  Is that so with each of the other applications?

MR LYON:   Yes, your Honour.

HAYNE J:   That is the only issue, is exclusion as of right?

MR LYON:   Yes, your Honour.

HAYNE J:   Yes, very well.  Perhaps if we might hear from you first, Mr McArdle.

MR McARDLE:   Your Honours, can we commence by saying that we should have included in the reasons why leave should not be given in this case the fact that the person in authority notion, which essentially is one of common law, is going to be replaced with the advent of the new Evidence Act which appears to be imminent in Victoria.

HAYNE J:   Well, you say it appears to be imminent.  What is the present state of play?  Is there legislation enacted, proposed?  Where are we up to?

MR McARDLE:   Proposed, as I understand it, and has been the subject of extensive deliberations by the Law Reform Commission.

HAYNE J:   But is there a Bill in a ‑ ‑ ‑

MR McARDLE:   I do not think so.

HAYNE J:   We have a prorogation of Parliament and, yes, it is in the mind of the reformers.

MR McARDLE:   Yes, and the present government, as I understand it, were committed to it.  So if that is the situation and if that becomes law then the notion of person in authority will be of no relevance.  Now, the new legislation has a version of it, but these applications are directed towards the question of whether or not the undercover operatives, their master are persons in authority.  The Court would have noticed from the judgment of Mr Justice Callaway in the Court of Appeal that the situation would, in his opinion, at least probably be different under the new legislation.  The Evidence Act legislation, of course, applies in New South Wales, Western Australia, Tasmania and in the Commonwealth, so we say that it is not a matter of pressing importance or a matter requiring special leave in the circumstances.

Your Honours, turning to the essence of the matter, this aspect of voluntariness is well established in the common law of Australia.  It has been part of the common law since towards the late 18th century.  Its genesis was in an entirely different legal system.  People were often, perhaps almost always, unrepresented.  You had a different type of police force, if any police force at all, and the accused had no right to give evidence; no ability, in fact, to give evidence.  So you had a system that developed so that confessions which were determined not to be voluntary and were presumed to be involuntary as a result of a threat or inducement from a person in authority were excluded and were excluded because they were considered unreliable.

Now, this notion has remained in the common law to the present time.  The threat or inducement is likely almost always to come from an agent of the State.  Now, there are a number of authorities to which I think reference was made in passing in the course of the leading judgment in Tofilau which really sets the benchmark for all of this in which there were occasions in which victims, or someone purporting to represent a victim, might be a person in authority.  Those, we submit, are at the outer limit of this particular notion. 

There is no case, except for ones I will come to shortly, in which undercover operatives telling lies about who they were, what they were, what was going on and what authority or capacity they might have had in relation to interfering with the prosecution that was outstanding in relation to these four applicants before the Court.  There are no cases like that except the four that have been decided which are presently before the Court, another two cases in Victoria, one called Ghiller and another one called Favata.  Favata was one of the appeals heard at the same time that this matter was ‑ ‑ ‑

HAYNE J:   It went back for retrial on other grounds.

MR McARDLE:    On other grounds, yes.  There was no difficulty, as we recollect.  It was seen in relation to the person in authority issue.  Yesterday we provided the Court with a judgment ruling in a Western Australian court.  That is a case called Lauchlan in which the same, what is called locally, scenario procedure was followed.  That was held to be admissible as well and it was attacked on the basis of person in authority.  So the arithmetic of it is that there were six Victorian judges, one Western Australian judge, the Court of Appeal in Victoria and the Canadian authorities as well, the leading Canadian authority being that of Grandinetti.  So the position is that all the judges who have looked at this have taken the view that the undercover operatives are not persons in authority.

The notion of person in authority is of considerable importance in the Canadian law, it being quite essential to the question of voluntariness.  It appears that the notion of basal voluntariness does not form part of the Canadian law.  So a deal of consideration has been given over the years to the notion of person in authority.  Grandinetti, which is a case almost or probably completely on all fours with those presently before the Court, involved undercover agents who were members of a police force purporting to be criminals allowing or suggesting the recruitment of Grandinetti into their gang and saying as one or another of the reasons why this would be an attractive option that they could meddle in the outstanding investigation, or they could destroy it or deflect the outstanding investigation.  So it is really on all fours with this case.

The Canadian court, consistent with some earlier authorities, took the view that the offer of the inducement in such a case is not a person in authority because he is not perceived by the confessionalist as an agent of the State.  The case, of course, would be entirely different if it was a policeman acting as a policeman or one of the other people who are commonly understood to be persons in authority.  The Canadians say that the coercive power of the State is not therefore engaged, which takes one back to the earlier notions of the late 18th century. 

It is contended against us that the approach of the Canadian courts is different, but an examination of Grandinetti and, in particular, paragraph 46 of the judgment would indicate that at least the Canadian court was concerned with the reliability of the confession, which again is the traditional English view and what we submit is the Australian view as well.  A similar position was taken in relation to Tofilau by the ruling of the trial judge.  His Honour Justice Osborn’s approach to it was that the inducement was not held out in a manner cloaked with authority.  He continued, quoting at paragraph 42:

the essence of the inducements that were offered was that they were not offered by persons in authority but were offered by criminals purporting to have connections with, but in fact to be outside, authority.

So what we contend is that whatever be said about the notion of person in authority, which has never been exhaustively defined in any of the cases, however it might be expanded, whatever cases may or may not be on the outer margins of it, it has never included and never thought to include a situation where you have a person who has not identified himself as a legitimate agent of the State. 

Again, lest it be said against us that, in fact, it was always contended in this case that there was a corrupt policeman somewhere down the line who was capable of interfering with things, that person never made the inducement, nor did the undercover operatives purport to act as his agent and, in fact, the whole syndicate was run by a boss who had access to the corrupt policeman, so the corrupt policeman was several steps away.  So it cannot be said that the corrupt policeman who may or may not have existed is a person who might be a person in authority in these applications.

Your Honours, it is said that the present authorities are inconsistent with R v Dixon and R v Smith, which is one case of the Court of Criminal Appeal in New South Wales.  In that case an Aboriginal welfare officer suggested to a young Aboriginal man or boy in custody that he should tell the truth when interviewed by the police.  The issue arose as to whether or not this welfare officer, or liaison officer I think he was, was a person in authority.  The court held that he was and in saying so their Honours said that – or at least the leading judgment, that of Justice Wood, was to the effect that the person in authority:

includes any person concerned in the arrest, detention or examination of the accused, or who has an interest in respect of the offence with which the accused has been charged or –

and this may be the particular part of the definition that is seized upon –

who otherwise is seen by the accused as being capable, by virtue of his position, of influencing the course of the prosecution or the manner in which he is treated in respect of it. 

If that last part of the sentence is to be taken in isolation – and it is to be suggested that that would include these people – that, we submit, is a misreading of the definition given in Dixon and Smith which is concerned with an entirely different sort of case and would not include a person who has gone to extraordinary lengths not to identify himself accurately as to what his position was. 

Your Honours, we understand from what has been said to the Court just a short time ago that the question of basal involuntariness is not to be argued.

HAYNE J:   No, that is not how I understood it at all.  I understood that to be wrapped up in exclusion as of right.

MR McARDLE:   I see.  Well, that matter, we submit, is relatively easy, the issue being whether or not the choice to speak or silent was overborne, essentially a finding of fact.  The various judges, the trial judge has examined that matter.  They were equipped with the proper authorities.  The matter was reviewed by the Court of Appeal.  No error was seen in relation to that.  There was a careful examination of the authorities and the facts.  Ultimately it is a factual matter and no error is disclosed. 

The authorities in relation to that are well known and little point would be, it is submitted, achieved in repeating them, but they were all considered by both the trial judges and by the Court of Appeal.  Your Honours, I think that brings me to a conclusion of the submissions that I wish to make in relation to the matter.  Thank you.

HAYNE J:   Thank you, Mr McArdle.  We need not trouble counsel for the applicants. 

There will be grant of leave in each of these matters limited in the fashion described at the outset of this hearing. 

The case is one which, it seems to me, will occupy less than a day.  It would be expected that counsel for the respective applicants would co‑operate in such a fashion as to ensure that there is no duplication of argument of any kind.  The arguments of the applicants are, I would have thought, largely identical.  I do not wish to exclude the possibility that there may be some variant, but it is essential that there be co‑operation for the avoidance of duplication.

AT 10.58 AM THE MATTERS WERE CONCLUDED