Coates, Nicholls and Stapleton v The Queen

[2003] HCATrans 428

[2003] HCATrans 428

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P120 of 2002

B e t w e e n -

MARTIN GRAEME COATES

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Perth  No P121 of 2002

B e t w e e n -

THOMAS NICHOLLS

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Perth  No P136 of 2002

B e t w e e n -

JAMES WAYNE STAPLETON

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 23 OCTOBER 2003, AT 3.14 PM

Copyright in the High Court of Australia

MR M.J. McCUSKER, QC:   May it please your Honours, I appear with my learned friend, MR J.J. EDELMAN, for the applicant in Coates and in Stapleton.  (instructed by Clark Whyte and Young & Young)

MR J.A. THOMSON:   May it please the Court, I appear for Nicholls.  (instructed by Mazza & Mazza)

MR D. DEMPSTER:   If it please the Court, I appear for the respondent in all three matters.  (instructed by Director of Public Prosecutions (WA))

McHUGH J:   Yes, Mr McCusker.

MR McCUSKER:   Your Honours, in the matter of Coates, a number of important issues giving rise to special leave are, in our submission, contained.  First, the question of the admission of non‑videotaped confessions or statements giving rise to implied admissions.  That really falls into two parts.  The first question is, what is a reasonable excuse?  The second question is the nature of the McKinney direction that needs to be given and when should it be given where there is a disputed admission which is not videotaped.

The second issue that arises deals with the somewhat vexed problem of the collateral evidence rule.  That falls again into two parts:  the question of the bias exception and the extent of it and exactly how that applies and also a reconsideration we would seek of what was stated by this Court in Piddington’s Case concerning the question of collateral evidence and whether it should be restated in the way that we have formulated in our application.  In addition to those issues, we raise the question of the extent of the obligation of a trial judge to give balanced directions, and we have dealt with that at some length.  Can I turn to the first of those matters.

KIRBY J:   That last one would not normally attract special leave.

MR McCUSKER:   I accept that, your Honour, and I propose simply to mention that that is a matter that we would seek to agitate on the appeal.  So far as the special leave application goes, I will concentrate on the question of non‑videotaped admissions and the question of the collateral evidence rule.

KIRBY J:   We have given special leave, as you may know, in a case under the Tasmanian statute.

MR McCUSKER:   Kelly’s Case, yes, your Honour.

KIRBY J:   That is going to be heard on 1 November.

MR McCUSKER:   I understand.

KIRBY J:   Have you studied the transcript in that?  Are there common issues with this case?

MR McCUSKER:   Yes.

KIRBY J:   Because one would perhaps want to preserve the position of your clients in case the decision in that case is relevant to their outcome.

MR McCUSKER:   Yes.

KIRBY J:   The statutes are different in different parts of Australia, are they not?

MR McCUSKER:   They are, your Honour, and in Kelly’s Case the issue that is raised by the appeal is the question of whether the non‑videotaped admissions there were made in the course of the investigation.  What occurred in Kelly’s Case was that there were ‑ ‑ ‑

KIRBY J:   They were walking across the police garage, I think, were they not, on the way to the interview?

MR McCUSKER:   There was a videotaped statement, as I understand it, but there was non‑videotaped material, and the question was whether the non‑videotaped statements, which were the admissions or alleged admissions, because they were disputed, were made in the course of the investigation because the Tasmanian statute, different from the Western Australian statute, provides that admissions which are made in the course of an investigation must be videotaped unless there is a reasonable excuse.

The reasonable excuse seems to have simply been accepted.  It certainly was not raised on the appeal to the Tasmanian Court of Criminal Appeal by the respondent, it was not argued, and it was not raised in the application for special leave.  But it would seem to follow that if, on the appeal in Kelly, it were to be held that the disputed statements were in the course of investigation, then there would need to be an examination of whether or not there was a reasonable excuse.  I think that point was made in the course of discussion when the special leave application was brought.

It is our submission that the question of what amounts to a reasonable excuse is a very important one in the administration of criminal justice.  We have referred to the factual material in this case.  I do not propose, unless your Honours wish me to, to take you through that in detail.  In short, there was a videotaped interview of Coates and in the course of the interview after some time he was asked whether he wished to go to the toilet and he signified that he did.  There was then a break and the police officers alleged, disputed by Coates, in the course of the break he made certain incriminatory statements.

KIRBY J:   Which they said they recorded the day after but lost their notes.  It sounds a little suspicious.

MR McCUSKER:   There were two lots of police officers, two teams, as it were, and each team of two gave evidence of two different pieces of statements, if you like.  I think it was the first two said that they made notes the day after and then lost them and the second two did not make any notes and simply from their recollection, all of them getting together, made witness statements I think some 21 months after the event.  But I think that does not go and I would not press that that goes to the special leave as such, but it is very odd circumstances.

KIRBY J:   Well, I do not know.  The whole purpose of the video recording by statute was to prevent just this sort of evidence ‑ ‑ ‑

MR McCUSKER:   Exactly.

KIRBY J:   ‑ ‑ ‑ which is difficult for courts, difficult for juries and destructive of public confidence in the administration of criminal justice.

MR McCUSKER:   Even more odd about this case and the non‑videotaped admissions was that after the break the videotaping was resumed.  So there was no question of Coates not being prepared to speak on video.  When the videotaping was resumed, there was no reference to the admissions that he had made by the police officers.  It was not put to him that he had made these admissions.  It was stated that there had been a short discussion, but that is all that occurred on video when it was resumed.

The trial judge said that the evidence should be admitted because Coates had initiated the break.  That was factually wrong.  The videotape, which was in evidence, shows that in fact he was asked whether or not he wished to have a toilet break.  That really is beside the point, whether he initiated it or not.  The question is whether there was a reasonable excuse for not videotaping the alleged admissions in these circumstances.

Your Honours, the purpose, in our submission, of this legislation would be defeated – I think in the course of the Kelly application, it may have been your Honour Justice Kirby who observed that if this kind of thing is allowed to go on and non‑videotaped admissions admitted into evidence in these circumstances, then a camel train is being driven through the legislation.  Its entire purpose would be defeated.  The second matter which is allied to ‑ ‑ ‑

KIRBY J:   My understanding is that the use of videotape has been a tremendous acquisition for the prosecution in criminal trials throughout this nation..

MR McCUSKER:   Yes, your Honour.  It works both ways, of course, and it is important that the principle and the purpose be adhered to.  For the police it provides a protection against false accusations of verbals, false verbals, and of course for the accused person it is supposed to provide the safety that generally speaking verbals will no longer be the case and anything that is said to be evidence against him on his own admission will be videotaped.  So far as the allied question of the ‑ ‑ ‑

KIRBY J:   A McKinney direction was sought in this trial, was it not?

MR McCUSKER:   It was, your Honour, yes.

KIRBY J:   Why did his Honour say he did not have to give it?

MR McCUSKER:   It is difficult to understand, with respect, why that conclusion was reached.

KIRBY J:   Does it not fit within the language of McKinney?

MR McCUSKER:   The approach seems to have been that the requirement to give a McKinney direction only applies where there is a challenge to the total evidence, the total of the police evidence.  Well, of course there is never any challenge to the total police evidence in terms of the videotaped material because there it is, inescapable.

KIRBY J:   But the mischief that McKinney, after two decades of cases gradually working their way in this Court towards the McKinney principle, the mischief was exactly the problem of verbals.

MR McCUSKER:   Exactly, your Honour, yes.

KIRBY J:   If that is the mischief, then at least arguably the McKinney principle applies ‑ ‑ ‑

MR McCUSKER:   It should.

KIRBY J:   ‑ ‑ ‑ for that segment which is contested and which is alleged to be a false verbal.

HEYDON J:   The Court did say in McKinney that a direction is only necessary where substantially the only basis of finding guilt is a confessional statement.  Now, I think here there is other evidence ‑ ‑ ‑

MR McCUSKER:   There is other evidence that was relied upon.  That goes to another ground and that is the collateral evidence rule, because there was evidence, your Honour, given by a witness Davis who gave evidence that he was present at the time of the murder of this lady and that Coates was also present.  There was evidence that was sought to be introduced from another witness, Mr Ross, who had been at the prison over some four months with Davis.  That evidence was to the effect that Ross had told him not once but on a number of occasions during their imprisonment that the police had in effect persuaded him to give what he said was false evidence and that the evidence he was going to give was entirely false, that Coates was never there.

KIRBY J:   But criminal trials are already too long in this country.  If we allow every collateral issue to be chased down the burrow, they will be even longer.  I mean, just compare them when you started in the law and today.

MR McCUSKER:   Yes, that is so, your Honour, but the question of economy of the court’s time is a very important one but should not overshadow the importance of the interest of justice in a given case.  Here the evidence of Davis was of considerable importance to the Crown case.  The fact, if it be the fact, that he had told Ross on a number of occasions that what he told the police about Coates being in the room was, as he put it, bullshit and that he was going to give false evidence – in effect, he had done a deal with the police – that is evidence which, in our submission, is not evidence which ought to have been excluded.  It is directly relevant to a central issue, and that is whether Coates was in the room at the time of the murder and whether he took part in the murder.  Coates’ evidence was that he was nowhere in the room; he was not on the scene at all.

Could I just come back briefly, your Honour, to the question of the McKinney warning.  Not only was a McKinney warning not given, but the trial judge’s direction to the jury in one section was directly contrary to what McKinney said should never be done, and that is he told the jury not that they were required to determine whether the police were committing perjury, but it came, we say, close to it because he put it to the jury that they might consider that they should determine whether the police were committing perjury.

Now, the Court of Criminal Appeal, with respect, drew a distinction which is too fine a distinction between what the trial judge said, that is, “might consider whether the police were committing perjury” and the proposition that “they were required”.  So the distinction was drawn between whether the jury were directed they were required, which was clearly contrary to McKinney, as distinct from whether the jury was simply told that they might consider whether the police were committing perjury.  We say that that is purely a question of semantics and the thrust of the McKinney requirement was that nothing to that effect should be said. 

In the Court of Criminal Appeal at page 254 of the application book the court dealt with it at paragraph 155, where the court said:

His Honour said that a question might well arise as to who was telling the truth and who was committing perjury, but fell short of indicating to the jury that they were required to answer that question.

So for that reason the court said that there was no problem with the direction.  In our submission, that is too fine a distinction.  In McKinney’s Case at page 477 – that is at tab 22 – the Court in its joint judgment, at the top of that page, said:

That is a different question from the question whether the police have, in fact, perjured themselves and conspired to that end.  It cannot be sufficiently emphasized that a jury should never be directed in terms which suggest that it is necessary to decide that latter question.

Now, the Court of Criminal Appeal took that, as it were, literally and said the learned trial judge here did not tell them that it was necessary to decide that question, but he came, with respect, so close to it that there is no real distinction.

KIRBY J:   I think you have made those points now.  We have read the written submissions.

MR McCUSKER:   Thank you, your Honours.

KIRBY J:   It is just a question of the collateral evidence.  Would you just explain the importance of the collateral evidence?

MR McCUSKER:   Yes, certainly, your Honours.

KIRBY J:   I am a bit constitutionally reluctant to open up that field, because it is a never‑ending field.  One thing will lead to another and then another collateral issue and trials will never finish.

MR McCUSKER:   That is so, your Honour, but the submission we make in that regard is that it should not be treated as an inflexible rule, that is, it is collateral in that it is hearsay.  Certainly it is hearsay because the witness Ross was seeking to give evidence of what Davis had said to him about who was in the room.  But more to the point, he was sought to be called to give evidence not only of that but also of the fact that he would be lying, he would be giving evidence, and there is the question of whether in all the circumstances, given that he had done a deal with the police, it was a basis upon which one of the exceptions to the collateral evidence rule applied and that was the exception generally called bias, evidence of bias.

In this case there was clear evidence of bias if Ross’ evidence was accepted, of course, in that he had said, “I am going to give false evidence”, the reason being, in essence, that he was going to get a lighter sentence.  We note in the application book that the learned trial judge in that regard failed to direct the jury that under section 37A of the Sentencing Act an offender such as Davis who reneges on a promise to assist can be resentenced and have the full sentence imposed.  The whole basis upon which that evidence was sought – it was sought to be introduced on a number of bases, but one of them was bias, and that was rejected.  We say the rejection on that ground was wrong. 

The Court of Criminal Appeal in rejecting that proposition said, we submit, that it is not based in authority that there must be a proven relationship between the accused and the person in respect of whom bias is alleged.  Our submission is that that is too narrow a constriction on the admission of evidence of this nature.  Our submission is that, first, we say that bias was clearly established and the court was wrong in rejecting it and, second, in our submission – and we put this at paragraph 31 at page 328 of the outline – that the collateral evidence rule should be replaced with a rule based on whether the matter on which a witness’ credit is tested is sufficiently relevant to that credit as it bears on the issues in the case.

HEYDON J:   This may not be a very good vehicle to reverse so ancient an authority as Piddington in view of the fact that apparently no attempt was made to comply with section 21 of the Evidence Act, which would have had the same effect, namely, getting the inconsistent statement in, as going to credit.

MR McCUSKER:   Yes.  Your Honour, I cannot explain why no such attempt was made.  There may have been a reason.  It certainly was not expressed.  The non‑compliance was in failing to particularise the date and the specific circumstances in which the statement or statements had been made by Davis to Ross but ‑ ‑ ‑

KIRBY J:   Could I ask you, in the uniform Evidence Act how do they deal with collateral evidence?  It would not seem to be a very propitious time for the Court to be reformulating common law rules.  The country seems to be moving towards the uniform laws.  Tasmania joined the group the other month.  That means it is half the country now.

MR McCUSKER:   Yes.

KIRBY J:   Do you know how the Evidence Acts deal with it?

MR McCUSKER:   As we say in paragraph 31 of our outline, this would bring the common law in line with the Commonwealth, New South Wales and Tasmanian Evidence Act, so we would not be doing damage to those provisions.  It would bring it in line so as to provide that ‑ ‑ ‑

KIRBY J:   That is one way to look on it.  The other way to look on it is from the special leave point of view, that that could be left to the legislative process.

MR McCUSKER:   Well, that is a possible approach, but it does no justice in the particular case.  There may be some time, of course, before the legislative process crosses the Nullarbor.

KIRBY J:   I do not see why.

MR McCUSKER:   I do not, your Honour, but it has not been unknown for Western Australia to stand alone.  So what we are seeking here is a reformulation, as I say, not a dramatic reformulation, but a reformulation of the collateral evidence rule, which I think was referred to by your Honour Justice ‑ ‑ ‑

KIRBY J:   Well, I referred to it as being one full of inconsistencies, uncertainties and other defects.

MR McCUSKER:   Yes.

KIRBY J:   I think Chief Justice Gleeson said something similar.

MR McCUSKER:   That is so, and it is an inconsistency.

HEYDON J:   Yes, but those Evidence Acts do not accord with the assumption on which the last exchanges have been proceeding.  I do not think they greatly change the common law, except for the facts of Piddington’s Case itself, the opportunity to observe an incident.

McHUGH J:   Yes, your time is up, Mr McCusker.

MR McCUSKER:   Thank you, your Honour.

McHUGH J:   Yes, Mr Thomson.

KIRBY J:   Do you simply support what Mr McCusker says or have you got something additional to say?

MR THOMSON:   There are in fact two main grounds upon which we seek special leave.  There is the collateral evidence ground, if you like, but we come at that in a slightly different fashion.  There is also a question about the discretion to exclude improperly obtained evidence.  We have also included a question about balanced directions to juries, but I wish to say nothing more about that, adopting the same approach as Mr McCusker to it.  In respect of the question about the application of the collateral evidence rule, our primary submission is that ‑ ‑ ‑

KIRBY J:   Would you remind me, is your client affected by the turning off of the video recording?

MR THOMSON:   No.

KIRBY J:   So that issue does not arise in his case at all?

MR THOMSON:   No.  There were ‑ ‑ ‑

KIRBY J:   So if we were to refuse special leave on the collateral evidence point, then that would knock away the major point you want to argue?

MR THOMSON:   Well, there are two main points.

McHUGH J:   Well, you have a Swaffield type ‑ ‑ ‑

MR THOMSON:   That is exactly right.  The Swaffield‑type point relates to our own video record of interview, because they were interviewed separately, and we say that there was a different deficiency in respect of the video record of interview with Nicholls.

HEYDON J:   The request for a lawyer was refused.

MR THOMSON:   That is correct.  In relation to the collateral evidence rule, as I said ‑ ‑ ‑

McHUGH J:   Was the Swaffield point run in front of the Court of Criminal Appeal?  It is not mentioned in the judgments.

MR THOMSON:   Swaffield was cited to the Court of Criminal Appeal.  They did not mention it, but they certainly dealt with the question about whether it was unfair or improper to continue without a lawyer, and they do deal with that question very specifically.  That is at paragraphs 180 to 182 of the judgment, which is at pages 264 to 265 of the application book.  You will see, starting at the beginning of paragraph 180:

Counsel for the applicant submitted that there was a blatant disregard of Nicholls’ right to access to legal advice and as a consequence, matters of public policy and fairness required the exclusion of the interview in the exercise of the learned trial Judge’s discretion ‑

and a reference to Pollard.  There is conclusion in paragraph 181 that:

no authority was cited for the general proposition that in the absence of access to a lawyer the continued questioning of a suspect will, as a matter of fairness, render any record of interview in that regard inadmissible.  Indeed, it is obvious that no general proposition to that effect can be sustained.

As I say, there was no reference at all to Swaffield by the Court of Criminal Appeal.  However, it does appear in a list of cases cited to the Court of Criminal Appeal.

HEYDON J:   Yes, but it is one thing to just have a reference to a case.

MR THOMSON:   Yes.

HEYDON J:   Was an actual submission developed along the lines of the
one which you have developed in your written argument here?

MR THOMSON:   I did not appear on behalf – however, the indication in the judgment showed that it was clearly raised.

HEYDON J:   It is just that there are some words in Swaffield that fit your case rather better than the summaries in paragraph 181.

MR THOMSON:   Yes.

KIRBY J:   Swaffield is mentioned on page 189 as one of the cases cited in the Court of Criminal Appeal.

MR THOMSON:   Yes, that is exactly right.  We say that the question about the exclusion of the video record of interview evidence based on public policy and fairness was clearly before the court.  There was also reference to R v Pollard, which was a case which dealt with that exact discretion, we would say, albeit in the statutory context of the Victorian legislation.

Perhaps in respect of the Swaffield point, what I should say is that we start with the proposition which comes from Pollard and we respectfully adopt what your Honour Justice McHugh said there, and go to tab 25 of our book of materials at page 230 of the report of Pollard.  Your Honour Justice McHugh, in the second paragraph under the subheading, said:

Independently of the effect of any relevant legislation, the courts appear to have recognised a common law right for a solicitor to be present while a client is being questioned by police officers.

There is reference then to a number of authorities, including Driscoll v The Queen.  If you move then to Swaffield’s Case, there is acknowledgement of a discretion in Swaffield to exclude evidence which has been improperly or unfairly obtained in the sense that the evidence has been obtained at a price which is unacceptable, having regard to prevailing community standards.  The discussion of the discretion in R v Swaffield picked up very largely upon various Canadian authorities, although they were careful to distinguish the context of the Canadian authorities because they relied upon the Charter.  However, there is a truly analogous Canadian case which deals with the type of point that we raise, and that is the decision of the Canadian Supreme Court in the decision of Manninen, which is behind tab 24.  That was a case which concerned a police interview of ‑ ‑ ‑

HEYDON J:   This is a Charter case, is it not?

MR THOMSON:   It is a Charter case.  However, as I said, in R v Swaffield they picked up the point that the Canadian authorities applied, despite their Charter background and, moreover, in R v Manninen they relied on the position as it was before the Charter.  If I take you to page 391 of that judgment, you will see in the paragraph about halfway down the page, in the second sentence:

First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay.  The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so.  This aspect of the right to counsel was recognised in Canadian law well before the advent of the Charter.

The circumstances of this case are highly analogous because what occurred is that a caution was read to the accused.  He then said, “Prove it.  I ain’t saying anything until I see my lawyer.  I want to see my lawyer.”  The police continued with questioning, as in this case, and certain admissions were made.  The questioning in those circumstances was characterised as really continuing in the face of a demand to see a lawyer, and the Supreme Court of Canada excluded that evidence.

HEYDON J:   It must be a discretionary decision, must it not?

MR THOMSON:   I beg your pardon?

HEYDON J:   It cannot be a matter of an absolute rule such as ‑ ‑ ‑

MR THOMSON:   Certainly.

HEYDON J:   Did not Justice Miller look at the video and the other judges consider whether overall the process was fair, and they thought therefore it was?

MR THOMSON:   He viewed the video.  What he said about the video is found at application book page 263.  He says that that was:

the best guide to the question of fairness.

I think by “fairness” his Honour meant there reliability.

It is important to assess the capacity of Nicholls to cope with the questioning process as it unfolded on the video.  In my view, the learned trial Judge was absolutely correct in concluding that the accused was quite capable of bringing himself to address the questions asked of him, following them and giving considered answers to them.  Indeed, my assessment of Nicholls as he appeared on the video was that he was initially particularly alert, sitting forward and able to grapple with the questions and give detailed answers to them.  He was thoughtful, lucid in expression and capable of recalling matters of detail.  His version of events at the motel was clear, measured and evidenced a certain reluctance to give the complete picture.  It is true that by about 4.30pm Nicholls showed signs of tiredness.  This fluctuated.  From time to time he put his head in his arms on the table, but at other times he sat back and gesticulated in quite an alert way.  His answers remained clear and his account at 5pm of the circumstances in which he actually grabbed Ms Garabedian in the motel room was particular clear.

Now, the point that we seek to make is that the admissions that were relied upon occurred after 4.30 pm, that they were in circumstances where he had been up all night and there were traces of amphetamine found in his blood after that was tested, that there was no particular urgency that the interview needed to be conducted immediately and he had requested to see a lawyer.  So having regard to all of those circumstances, we would say that at least there should have been consideration of the discretion in Swaffield in terms of improperly obtained evidence, not just reliability of the evidence, and what his Honour Justice Miller was focusing on was reliability in that passage.

McHUGH J:   Voluntariness, I think.

HEYDON J:   Voluntariness.

MR THOMSON:   Yes.

HEYDON J:   A sort of Bunning v Cross‑type analogy you are drawing, are you?  It is a discretion like that which operates under Bunning v Cross?

MR THOMSON:   Yes.

McHUGH J:   I think Justice Brennan, was it not, in Swaffield said that this question about legal advice and so on should be considered under the public policy discretion.

MR THOMSON:   And Justice Selway, as he now is, in his article which is reproduced at the back of the book of materials, has identified three different ways in which the Swaffield discretion has been understood by lower courts.  If you go to tab 29 and page 23 of that article, Justice Selway says:

Although the issue does not seem to have been expressly analysed it would nevertheless seem that various Courts of Appeal have taken quite different views as to what was intended by the majority judgment.  One is that the new rule is merely a restatement of the previous distinct discretions which continue to be applicable.  There are several decisions of State Courts of Appeal where this seems to be the unstated premise of the reasoning.

He then goes on in the next paragraph over the page:

Another view is that the majority approach in Swaffield is not a new discretion but a further development of the distinct discretions as they had been previously identified.

And then lastly he says:

Finally there is the view that Swaffield has replaced the previous distinct discretions with a new overall discretion in relation to confessional evidence based upon ‘contemporary community standards’.

He actually ends his article by saying that:

Unless the discretion is replaced by statute throughout Australia, the meaning and application of Swaffield will have to await further judicial explanation. 

That was a very recent article he published.

KIRBY J:   What have you got Hobby in our list for?

MR THOMSON:   I do not have Hobby in my list.  It is a case that is cited by my friend, Mr Dempster.

KIRBY J:   I see, by the respondent.

MR THOMSON:   Yes.

KIRBY J:   Yes.

MR THOMSON:   Perhaps I can just turn then, having dealt with that ground, to the way we approach the collateral evidence rule which is, as I say, a different way and which may assuage some of the concerns that your Honour Justice Kirby has raised.  We say that in fact the rule was improperly applied because you can, at least on one view, say that the proposed evidence to be led from Ross was evidence as to a fact in issue.

The primary fact in issue here was the presence of Coates and Nicholls in the motel room at the time of the murder.  The prosecution sought to establish that fact by Davis’ evidence that he saw Coates and Nicholls in the room.  The fact of Davis’ observation of Coates and Nicholls in the room may be characterised as a fact relevant to the ultimate fact in issue. 

In that regard we would draw attention to the comments of your Honour Justice McHugh in Goldsmith v Sandilands, which is behind tab 6, by saying that the fact of Davis’ observation is a fact in issue, we draw some comfort from what your Honour said at paragraph [34], which is found at page 378 of the reports, where your Honour draws attention to the point that evidence about the capacity to observe may be admitted and you say that may or may not be an exception to the collateral evidence rule.  If you go to paragraph [34] and about three lines in:

Thus, whether the opportunity to observe a relevant fact is or is not a collateral matter, the practice of the common law courts has been to admit evidence that shows that a witness did not have an opportunity to make the observation.

Perhaps from there I can just mention that just as capacity to make the observation is a fact relevant to the ultimate facts in issue, Davis’ motivation for testifying as to his observation is a fact relevant to that fact as well.  Again, we draw comfort from what your Honour Justice McHugh said in Palmer v The Queen, and you will find that behind tab 4.  If you go to page 22.  This is a matter that no other judge had to consider given the way the appeal turned out.  At paragraph 50 found on page 22 your Honour Justice McHugh says:

However, in my view evidence concerning the motive or lack of motive in the complainant for falsifying her complaint is admissible not only in relation to her credit but also in relation to the facts‑in‑issue in the case.

So that way of looking at the matter does not require any exception to the collateral evidence rule or looking at it as a judicial rule of procedure.  That way of looking at it is in fact consistent with an old authority in England, Phillips v The Queen, where evidence of coaching of the witness to say things has been said to be admissible.  Conceptually, it might be that it is said that it is akin to…..against the interest of a party.  I think that is perhaps one way it is put by your Honour Justice Heydon in the work on Evidence.  If that view of looking at the matter is not correct ‑ ‑ ‑

HEYDON J:   I will have to correct that.

MR THOMSON:   I think you only put it as a possible suggestion, but you do acknowledge the manifest justice of the decision in Phillips.  Another way of looking at it is to say that the collateral evidence rule is simply a matter which is used to limit issues, but that authority seems to indicate that evidence as to an intention to lie about the events in question is admissible.  I should mention there a decision given in 2001 which was not referred to the Court of Criminal Appeal in Western Australia, but it is a decision of the Court of Criminal Appeal in Queensland, R v Lawrence, and that is found behind tab 3.

In that case there was a question about whether evidence could be given as to someone saying that they were going to falsely accuse another person of having anal sex with them.  It was held that that evidence should have been admitted and that it was wrong for it to have been excluded on the basis of the collateral evidence rule.  The various different conceptual ways it could have been admitted were discussed in the judgments.  If you go to the judgment of Justice Thomas at page 412, you will see in

paragraph [34] he refers to your Honour Justice McHugh’s observations in Palmer v The Queen, and at paragraph [36] he says:

I do not think it matters whether the present question is approached, as McHugh J. suggests, by the “adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts in issue”, or whether it should simply be recognised that evidence of previous false charges may properly be regarded as falling into the “corruption” exception to the finality rule.  For my part I prefer the later course as it preserves a recognised structural approach and it may assist in leading to greater predictability in rulings than recourse to perceptions of justice from case to case.

However, there is now a division of opinion between the Court of Criminal Appeal in Queensland and the court in Western Australia, and that in itself would be a possible factor which might persuade your Honours to grant special leave.  There is also an argument about it being within the bias or corruption exceptions.  I do not think I need to go further than what Mr McCusker has said about that.  Those are the submissions I would make.

McHUGH J:   Yes thank you, Mr Thomson.  Mr McCusker, Stapleton?

MR McCUSKER:   Yes, your Honour.  Stapleton gives rise to the same question as the first ground in Coates, that is, the question of what is a reasonable excuse.  In Stapleton’s Case there was a non‑videotaped alleged admission which was disputed.  The Court of Criminal Appeal held that there was a reasonable excuse in that case because the police officer concerned said that he believed that the applicant did not wish to be interviewed further.  That was notwithstanding that the applicant, both before and after the alleged oral admissions, had made statements which were videotaped.  There was no basis on the evidence for a belief which Scantlebury said he held that the applicant did not wish to be interviewed on videotape.  There was no suggestion by the police officer, Scantlebury, that he actually asked the accused, the applicant, whether he wished to be videotaped, it was not on that basis, and there was no reason not to believe in all the circumstances that he was not prepared to have any interview videotaped. 

So we say that the facts of course in this case are totally different from the facts in Coates’ Case but they give rise to the same problem.  It may be helpful, if special leave were granted, to consider the application of this particular provision, this very important provision of the Code, and the question of what is reasonable excuse in relation to different factual circumstances.

McHUGH J:   What about the question of a miscarriage of justice in this case?  Your client went with the police to the grave site, did he not?

MR McCUSKER:   Yes, he did.

McHUGH J:   Was that videotaped?

MR McCUSKER:   Yes, it was, your Honour.

McHUGH J:   Yes.

MR McCUSKER:   That was videotaped, which lends point to what we say, that there was no objection by him to being videotaped at the grave site.

KIRBY J:   If you look at it from the point of view of our function in criminal appeals, are we not dealing sufficiently with the matters of important principle by - if we were to grant special leave in Coates on the videotape issue, maybe the McKinney issue, perhaps the collateral evidence issue, and in the matter of Stapleton, notwithstanding those grants, if we were persuaded to give them, to take the view that that was very damning evidence that he led them to the grave site and that it was shown on videotape.

MR McCUSKER:   Your Honour, the leading to the grave site was clearly evidence that he knew where the body was.

KIRBY J:   It certainly was.

MR McCUSKER:   But the issue was whether he had made an admission that he had committed wilful murder.  That is the issue.  So that there was no question at the trial – there was no question about his having committed some very barbarous acts on the deceased, but the question was whether those acts were acts intended to kill.  So that was the real issue and that was where the non‑videotaped admissions were heavily relied upon by the prosecution.  There is a decision, your Honours, in the case of G which is ‑ ‑ ‑

McHUGH J:   Before you go to that.  There is even a further difficulty, is there not, in that at the trial the admissibility of this evidence was not objected to.  Is this not the case?  Is that not so?  Or is my recollection failing?

MR McCUSKER:   Well, I think your Honour is correct, it was not explicitly objected to.  There was a question of whether it could be admitted, but I accept that it was not explicitly objected to in the case.

McHUGH J:   It was only when Detective Scantlebury was cross‑examined and the applicant gave evidence, was it not, that it became apparent that he disputed significant parts of the evidence and denied making the admissions attributed to him?

MR McCUSKER:   Yes, he did.  That is so.  The question, however, for this Court is whether, objected to or not, as a matter of policy this kind of evidence ought to be admitted.  That policy issue was adverted to in the case of G, which is on our list.  It is tab 13, if I could just take you briefly to that, tab 13 of the bundle of authorities.  A decision of the Court of Appeal in New Zealand.  At page 6, paragraph [16] the court there said, at the conclusion of that paragraph:

In any event we think it clearly inferential that if the videotaped interview had been offered at the outset, it would have been declined and the appellant’s right to silence would more likely have been respected.

That really is the question of principle that is involved here because the requirement that a videotape be made of any interview is one of policy.  It is not simply a question of whether it is objected to, it is a question of policy.  The policy in this case would be defeated if such a non‑videotaped interview were permitted to be introduced into evidence, objected to or not.  It was clearly the subject of cross‑examination and clearly was disputed by the applicant.

Our submission, your Honour, is that although the facts in this case are clearly different from Coates, that the application, or the operation of the section, in relation to those facts may assist the Court in ultimately resolving the question of what is meant by the legislation when it refers to reasonable excuse.

KIRBY J:   We have the decision of the Court of Criminal Appeal for that purpose.  We do not have to have the case before us.  The only ground on which we would bring the case up would be if we were convinced that an error has occurred that was sufficiently in issue below or should be allowed by us and which would lead to a reasonable prospect of success and the refusal of special leave occasioning a miscarriage of justice.  But that seems difficult to argue in Stapleton.

MR McCUSKER:   All that we can say in relation to Stapleton is that the basis upon which reasonable excuse was said to exist is one which, if it is allowed to stand, would guide future courts in this State ‑ ‑ ‑

KIRBY J:   Yes, but we are presumably going to be looking at the issues of general principle if special leave is granted in Coates and Nicholls.

MR McCUSKER:   May it please your Honour, they are our submissions.

McHUGH J:   Yes, Mr Dempster.  Mr Dempster, we need not hear you in Stapleton and we do not want to hear you on the issues of balanced directions, but we will hear you on the other issues.

MR DEMPSTER:   I would like to begin by referring to the Stapleton book in this sense.  The trial judge in ‑ ‑ ‑

McHUGH J:   In Stapleton?

MR DEMPSTER:   In Stapleton.

McHUGH J:   We do not want to hear you.

MR DEMPSTER:   I understand that, your Honour, but in relation to our submissions in respect of Coates and Nicholls, there is a point I wish to make.  There was some concern and suggestion that a train would be driven through the legislative provision, that is, section 570D of the Code.  The trial judge in Coates and Nicholls was Justice Murray, who also formed part of the coram in Stapleton, and we have referred in submissions to particular aspects of that unanimous judgment, but particularly at what is application book 70, the foot of that page, the court said this:

However, Ch LXA of the Code will have achieved little, if anything, if no more is necessary to satisfy s 570D(2)(c) ‑

which is a “reasonable excuse” provision ‑

than apparently credible evidence from a police officer that admissions were made.  When there is no reasonable excuse for there not being a videotape recording, it will not ordinarily be in the interests of justice to admit evidence of disputed admissions that are not recorded . . . Unless courts resolutely promote the statutory policy to avoid disputes about alleged admissions, even when (or, perhaps, particularly when) crimes are serious, that policy will be steadily eroded to the detriment of the criminal justice system.

So certainly his Honour, as the trial judge in Coates and Nicholls, was well aware of the policy behind the legislation.  Moreover, his Honour dealt with this aspect of off‑video admissions, that is, admissions made between two segments of video recording, by, firstly, hearing submissions on the papers, by thereafter hearing evidence, although the applicant Coates did not give evidence, but hearing evidence and a voir dire about the matter.

The timing of the matter is critical.  There was some dispute in the fact at the trial as to whether Coates had asked to go to the toilet or whether he had been invited to go to the toilet, but the matter - and a break in the video came significantly at a point where Coates had just been faced with telephone records.  To that point he had maintained that he was at home, or rather in Bassendean at any rate, another suburb, that evening.  He was then faced with telephone records showing that his own records recorded mobile phone calls putting him in the vicinity of the motel in Rivervale, not only that, but also in communication with the mobile telephones of the other accused, Hoy and Nicholls. 

In fact, at the end of that portion of the video, before the break, Coates in fact declared that in answer, “Logic would very well suggest I was in Rivervale”.  It then made perfect sense when during the break, according to the police officers, Coates said, “What are my options?”  He spoke again consistently, first of all, with two lower ranking detectives and then asked for the boss, which led him to speak to two other officers.

In reviewing the whole matter, the Court of Criminal Appeal were particularly impressed with, as a factor, the initiation by Coates of the off‑video interview.  Plainly, if it was in the circumstances and for that purpose, then there is no question but that Coates did not wish that interview to be recorded.  There is simply no question about that, and their Honours have held that that amounted to a reasonable excuse.

Some of the other cases cited of course can be readily distinguished on the facts.  There is the authority of Heinicke, for example, where an accused had hospital treatment, there was a psychiatric background and a sudden and otherwise unexplained change of heart.  This is not that instance.  This is something where the course of circumstances made what occurred readily explicable.  Firstly, his Honour the trial judge and thereafter the court below have examined those circumstances in great detail and concluded that there was indeed a reasonable excuse, which of course is of itself an exception within the legislation.

As to the directions concerning those off‑video admissions, it is important, we say, to remember that those off‑camera admissions were described by the trial judge as being quite insufficient of themselves to justify conviction, and that appears at application book 250 at paragraph 147 of the judgment.  Moreover, of course McKinney has application where the contended or contested statement or admission is either the only or substantially the only evidence.  Those two aspects run together in the context of this trial.  There was of course a great volume of evidence other than these mere off‑video admissions against Coates. 

The trial lasted for something like two months.  Davis, who was the principal witness, was cross‑examined for something like four days, and his evidence in particular was the subject of strong warning.  So one really must put the matter in context.  So far as the collateral rule is concerned, really the short answer to that ‑ ‑ ‑

KIRBY J:   Were you going to deal with that before you deal with the McKinney point?

MR DEMPSTER:   Well, as to McKinney, their Honours in the court below found that no McKinney direction was ‑ ‑ ‑

KIRBY J:   I know they did, but is not the whole point of the McKinney warning to bring to the notice of jurors the experience of the courts in this very particular problem?

MR DEMPSTER:   In the context of the trial ‑ ‑ ‑

KIRBY J:   I just do not understand this.  What was wrong with giving the McKinney direction to deal with that potential mischief?  In such a long trial, just to say, “Well, you’ve got to take this into account.  I have to warn you.  This has been a problem.  People have told lies about the things that are not recorded”.

MR DEMPSTER:   It might have been done, your Honour, but really one is looking at whether the omission to give that direction is fatal.  That is what one is looking at and whether that ultimately ‑ ‑ ‑

KIRBY J:   Yes, but is it not the quid pro quo if you are going to admit it that you have to balance it up by telling the jury that - especially where it is sought.  I mean here it was applied for.

MR DEMPSTER:   His Honour was in a position to see the whole picture, that is ‑ ‑ ‑

KIRBY J:   It seems a very narrow view of the mischief that McKinney was directed at.  Do not forget it came after two decades of cases where this Court started by denying it and then gradually moved towards the McKinney principle, and when it did, video recording came in within months and it was a great weapon, as you would know, in the armoury of the Crown ‑ ‑ ‑

MR DEMPSTER:   I accept all of that.

KIRBY J:   ‑ ‑ ‑ in the overwhelming majority of cases.

MR DEMPSTER:   I think it is a matter in the interest of justice generally, your Honour ‑ ‑ ‑

KIRBY J:   And it has also been to the advantage of the police service because it has meant that you have not had this unfortunate problem that really was a pestilence in the 1980s, 1970s.

MR DEMPSTER:   It really is…..we are all agreed in the interest of justice generally, whether prosecution or accused persons.  However, his Honour did of course have the conduct of the matter and was aware of all the evidence and how the evidence balanced.  It is notable that, as I have indicated, his Honour stressed to the jury that those off‑video admissions could not justify conviction, and that is important, and his Honour took the view then, it is correct, that McKinney does only apply where the evidence in strict terms which is challenged ‑ ‑ ‑

KIRBY J:   Maybe that is the point of this case and why special leave should be granted.  If the court does say that these cases fall within the “reasonable excuse” exception but that the judges have to give McKinney‑type directions, then the jury has a balanced direction.

MR DEMPSTER:   McKinney, your Honour, on its face certainly does provide that the warning, which is provided for there, should only be given where that evidence, the disputed evidence, is either the only or substantially the only evidence which could justify conviction, and that simply is not this case at all.  Moreover, the off‑camera admissions of course were between ‑ ‑ ‑

KIRBY J:   In slightly, I say with respect, unsettling and worrying circumstances, where things were recorded and then the record was lost and then it was reconstituted a very considerable time later.  We are back in the 1970s.

MR DEMPSTER:   Again, your Honour, if one looks at what his Honour ‑ ‑ ‑

KIRBY J:   This is what I was looking at in 1975 in the Law Reform Commission.

MR DEMPSTER:   ‑ ‑ ‑ the trial judge said in Stapleton in very strong language about protecting the purpose and scope of the legislation, then ‑ ‑ ‑

KIRBY J:   It is one thing to say it.  It is another thing to give effect to it.

MR DEMPSTER:   Obviously the facts are there and your Honour has to look at them.  That is very much what the Crown says in this whole matter, that these are issues of fact.  There were issues of fact and determinations made by the learned trial judge.  They were then reviewed by the court below and found not to be wanting.  Ultimately, they are issues of fact, rather than questions of principle as such.

Can I turn now then to the collateral evidence aspect.  The short answer to that, we say, is that section 21 was not invoked.  There was no attempt in fact to properly invoke section 21 of the Evidence Act.  There is an interesting question as to whether the matter, in terms of that section, was relative to the subject matter of the proceedings as section 21 puts it.  Justice Wheeler held that had there been a foundation for section 21 then Ross would indeed have been able to give evidence.  Be that as it may, the plain fact is no foundation was properly laid.  It is quite plain.  So that the only way that that evidence could become admissible would be by some other category, and it plainly is not within the bias exception as it is normally understood.

One could understand the wish to extend categories, perhaps in the interest of justice, but this is not, we say, an appropriate vehicle to do that.  It was a conscious decision, so far as one can understand, of counsel to approach the matter in the way counsel did.  That is at application book 232, where objection was taken when the question, that is, as to what Davis had said to someone, was raised.  It was not particularised.  The man Ross was not named.  His Honour spelled out the position.  Counsel was well aware of the choice to go down a different path. 

One of the ironies – and this is really a proviso point on this ground – appears in the following page in the application book at 233, because in fact the evidence was actually given in re‑examination.  At paragraph 112 there is a very open‑ended question, “Why is it that you have to come to give evidence, Mr Ross?” and then the prohibited evidence was in fact given, that Davis had for four months every day, according to the witness, told him the same thing, that these people weren’t even there.  Although very properly no one said anything about that, the jury did in fact hear that.

As I mentioned before, additionally, Davis’ credit was tested in cross‑examination over some four days and was in direction the subject of the strongest warning to the jury.  In those circumstances we say that this would not be an appropriate vehicle on that ground for the grant of special

leave.  Unless there are other matters arising, your Honours, I do not think I can add to those submissions.

McHUGH J:   Thank you, Mr Dempster.  Yes, Mr McCusker.

MR McCUSKER:   Your Honours, just a few matters in reply.  So far as the timing is concerned, we have put in our outline, and I will not repeat it, that the evidence was clear that there was a question put to Mr Coates as to whether he wished to have a toilet break and he said “Yes” and that is when the break occurred.  My learned friend has said that that was following some telephone records that were put to him.  There was evidence in relation to those telephone records, not to show that he was there to commit a murder, but that he was making telephone calls on that evening in order to sell drugs.

There was no evidence to support a finding that Coates did not wish to be videoed in the alleged statement.  That really is reinforced by the fact that he was being videotaped, there was a break, and on the resumption of the videotaping after the break there was no mention made whatever of what he has allegedly said during the break.  As regards the McKinney warning, could I just take your Honours to the decision in McKinney.

KIRBY J:   Which tab again?

MR McCUSKER:   The McKinney Case is at tab 22.

KIRBY J:   I thought the Court said that you needed, if there is no other evidence that corroborates – in other words, is there to make the giving of the warning irrelevant and unnecessary in the case.

MR McCUSKER:   What the Court said at page 476, your Honour, about point 4 of that page – it is quite a long sentence actually.  It starts:

Thus, the jury should be informed that it is comparatively more difficult for an accused person held in police custody without access . . . that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated.

HEYDON J:   It was in a sense corroborated, was it not, by other police officers admittedly?  The primary judge cleared them in effect of any conspiracy‑type fabrication.  There was lots of other evidence, apart from the confessions of guilt.

MR McCUSKER:   Well, there was not really, your Honour, unless one takes the evidence of non‑videotaped statements given by two police officers who did not hear what was allegedly said to the other two police officers.  So I suppose all that one could say is that the evidence was that the police officers who had lost their notes, or said they lost their notes, got together and jointly prepared their notes.  That was the clear evidence.  But their evidence as to what was said to them was not corroborated by the other two police officers, nor vice versa.  So there was no corroboration in that sense.

HEYDON J:   But strictly speaking, each police officer can corroborate another police officer.  You cannot treat them as a unity unless you think they have collaborated falsely to tell a story.

MR McCUSKER:   But, your Honour, if that were treated as reliable corroboration, in my submission, in the context of McKinney and what was intended to be the principle stated in McKinney, it could not be treated as reliable corroboration, if you have got two police officers and one says, “Yes, that’s what the other said”.

HEYDON J:   You are trying to challenge factual conclusions that the trial judge ‑ ‑ ‑

MR McCUSKER:   No, your Honour, I am not.  The factual conclusions of the trial judge were that there were two police officers who were present at the same time, and then there were later two other police officers who were present but not at the same time as the first two.  So it is only if one says that with the two police officers each one corroborates the other, but that strikes at the very principle and defeats the principle that was intended to be stated, in our submission, by McKinney.  If you can have the police officer coming forward and saying, “Well, there was a verbal statement made”, how can it be said that that is reliable corroboration?  What McKinney meant, in our submission, was some extrinsic evidence which would support the police officer’s evidence.

In McKinney’s Case it is true that the main evidence was – almost the only evidence against McKinney was the statement, but that is not to say that what the Court intended there was that the warning was only required or desirable in a case where that was the only evidence.  To take that approach would be to defeat, in our submission, the principle behind the case.  May it please, your Honours.

McHUGH J:   Yes, Mr Thomson.

MR THOMSON:   Thank you, your Honour.  One basis on which it was said that the collateral evidence rule did not arise was that section 21 was not invoked.  However, we – and that is Nicholls was the person who tried to call that evidence – tried to adduce the evidence and adduce it on a different basis, apart from relying on section 21 and, therefore, we say that is no answer.

Secondly, in respect of the utterance made by Ross in re‑examination, there are three things to be said.  It was never referred to again during the course of the trial or in the summing up.  It was not cross‑examined and tested and, thirdly, it was uttered during the course of an interruption by the prosecutor and therefore it is not clear how much of it would have been before the jury in any event.  We say that that is not a proper basis on which to say that there was no miscarriage of justice.

Thirdly, just so as any doubt in your Honour’s mind is allayed, I should mention that the grounds of appeal to the Court of Criminal Appeal distinctly raised the basis of the exercise of discretion in terms that I have put the argument.  Ground 1 said – this is found at page 178 of the application book:

The learned trial judge erred in ruling that the Applicant’s video record of interview was admissible at the trial of the Applicant ‑

Various particulars are given, referring to various facts, and those facts include that, in paragraph (g):

The Applicant requested to speak to a lawyer but was asked why he needed one, and told in essence that he did not need one;

(h)  The Applicant made it perfectly clear in the video at the outset that he wanted to speak to a lawyer, and that he did not want to continue being spoken to in the absence of his lawyer ‑

and so on and so forth.  So to allay any doubt that that may have caused I just draw your attention to that.  I should also say that in respect of section 21, it only relates to inconsistent statements but does not deal with bias or corruption.

McHUGH J:   Thank you.  In these matters there will be a grant of special leave in Coates on the “reasonable excuse” issue and on the failure to give a McKinney or similar direction and also on the rejection of the Ross evidence because of the collateral evidence rule.  However, the Court is of the view that, so far as the directions to the jury are claimed to be unbalanced in Coates, it is not a sufficient ground to warrant the grant of special leave.

In Nicholls, the Court will grant leave on the challenge to the collateral evidence rule, but the Court is of the view that leave should not be granted in that matter in respect of the failure of the judge on discretionary grounds to reject evidence because of, among other things, the accused’s inability to speak to a lawyer.  In Nicholls, the Court is also of the view that special leave should not be given in respect of the unbalanced directions ground.

So far as Stapleton is concerned, the Court has granted special leave to appeal in Coates on an issue which is common with Stapleton.  However, the Court is of the view that, having regard to the conduct of the trial and the objective and undisputed videotaped evidence adduced in Stapleton and the strength of the prosecution case, there is no reasonable prospect of a successful appeal in Mr Stapleton’s case.  Nor are we convinced that there has been any miscarriage of justice in that case.  Accordingly, special leave is refused in respect of Stapleton.

The Court will now adjourn until 9.30 tomorrow morning.

AT 4.32 PM THE MATTERS WERE CONCLUDED