Cowan (AKA Shaddo N-Unyah Hunter) v The Queen

[2016] HCATrans 57

[2016] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B30 of 2015

B e t w e e n -

BRETT PETER COWAN (AKA SHADDO N‑UNYAH HUNTER)

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 11 MARCH 2016, AT 9.30 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   If it please the Court, with my learned friend, MR A.V. EDWARDS, I appear for the applicant.  (instructed by Bosscher Lawyers)

MR M.R. BYRNE, QC:   If it please the Court, I appear with my learned friend, MR G.P. CASH, QC, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL J:   Mr Callaghan, could I say at the outset that this is an application for special leave.  The Court has been inundated with over 1,000 pages of judgments and transcript – largely transcript.  We understand that there are some larger issues that require a fair bit of transcript material, but we are still being inundated with material in the last few days.  This is, of course, not the final hearing of this matter; it is only an application for special leave, which is important in itself, but as you would appreciate, it is our task to determine whether the threshold for argument before a Full Bench of the Court is warranted.  So I just draw to your attention that this is not usually how an application for special leave is undertaken.

MR CALLAGHAN:   Yes, your Honour.  Can I indicate at the outset that from the application that appears on page 95 of the application book, we propose to isolate ground 2.1 and foreshadow that, for the moment at least, we will be relying only on the written submissions in support of the other grounds.  Our oral argument will be confined to the proposition that the applicant’s confessions were inadmissible because of section 10 of the Criminal Law Amendment Act.  To respond in part to your Honour, there will be only ‑ ‑ ‑

KIEFEL J:   So to be clear, you are not going to address the second ground, in effect, which is that the confession ought to have been excluded in the exercise of discretion.  You are not going to address that orally?

MR CALLAGHAN:   That is so.

KIEFEL J:   And you are not going to address the question of whether or not the directions concerning the evidence regarding Jackway and McLean – there should have been further directions?

MR CALLAGHAN:   That will not be the subject of oral submissions.

KIEFEL J:   I see.  But you are not abandoning those grounds?

MR CALLAGHAN:   No, we will just rely on the written submissions in support of those grounds.

KIEFEL J:   That is not to say, of course, that there may not be some questions for you about those grounds.

MR CALLAGHAN:   I understand.

KIEFEL J:   Yes, Mr Callaghan.

MR CALLAGHAN:   The focus of the application is upon the operation of section 10 of the Criminal Law Amendment Act.  That provision is reproduced at various places, including at application book 75, paragraph [62] in the judgment from the Court of Appeal.  At the outset we draw attention to the plain and broad language in which the section is expressed.  It applies to:

every confession made after any such threat or promise –

by some person in authority.  For current purposes, can we focus upon “counsel assisting the coroner” as being a person in authority, and draw attention to specific things said by him in the course of the inquest, beginning at application book 297 ‑ ‑ ‑

KIEFEL J:   Well, it is “counsel assisting” that you are really pointing to as the person in authority, is it not?

MR CALLAGHAN:   Yes, your Honour.

KIEFEL J:   The coroner is drawn into it, in your argument, but it is what is said by counsel assisting that is the focus of your argument?

MR CALLAGHAN:   The focus, for current purposes, is on four specific things said by him, and I was going to take you to each of those in turn.

KIEFEL J:   Yes.

MR CALLAGHAN:   As your Honour, with respect, has observed, it is part of a much wider context, of which your Honours are aware.  There is a background to the whole thing, but we do focus upon these four specific exchanges or statements made by counsel.  The first is at 297, line 30.  The context of which we speak is important, because it is questioning about the way in which the applicant had accounted for his movements on 7 December 2003 – that is to say, his alibi.  He was told in that exchange, at about line 30 and following, that:

if you can establish for us, to [the coroner’s] satisfaction, that you’re not involved then it’s likely that will be the end of it ‑

We move then to application book 336, line 20, where the applicant was told that he was at the inquest and under suspicion because he could not account for certain periods of 7 December – that is to say, his lack of alibi.  At application book 373, towards the bottom of the page, line 55 and following, over to 374, line 20, he was told in effect that if the coroner held a reasonable suspicion about the applicant’s involvement, then the matter would go to the Director of Public Prosecutions.

Finally, of these four items of evidence – we have 391, line 40.  In the course of a peroration which was followed by, but was not in fact part of, a question, the applicant was told that within his existing “fanciful” alibi, there was a period of time for which he could not account, and he was told that this time “must be accounted for”.

As we have already observed, there was much to give context to these passages, but even in the absence of much of that, each of those statements by counsel assisting was relevant for the purposes of section 10, because they raised the hope that by satisfying the coroner of his alibi, all this unpleasant attention would disappear, but also invoked the fear that unless he could account for the period of time in question, he would be the subject of continued attention, investigation, and potentially referral for the purposes of prosecution.

KIEFEL J:   I am sure you have some more yet to develop about the events which followed, but if this is the focus of what you are saying, one can accept, speaking for myself, that there is pressure applied, and that no doubt he felt under pressure.  But where is the threat?

MR CALLAGHAN:   It is a threat in that it induced – as I said, it invoked the fear that unless he could account for his whereabouts, he would be the subject of the prejudice of continued attention.  The threat is, if not explicit, then very clearly implied to that effect.

KIEFEL J:   That he might be charged?  That is the threat?

MR CALLAGHAN:   We do not have to go that far, with respect.  He only has to be in fear of some prejudice, and the continued investigation, the continued attention and so on is enough to satisfy the requirements that he was threatened with something unpleasant, with the prejudice that would follow.

KIEFEL J:   Of course, in the submissions that you will develop, you will explain why the pressure or whatever he felt emanating from counsel assisting a coroner might come within section 10, or might not.  You will deal with that question, because I think that was squarely raised in the Court of Appeal?

MR CALLAGHAN:   It was, and I think our contention is encapsulated in paragraph [69] of the judgment from the court, which is at application book 77.  With respect, that is the contention accurately reproduced, and it was rejected by the court in the following paragraph.  It is in that paragraph, we submit, that, with respect, the first error made by the Court of Appeal can be found because the proposition that we advance, namely, that “counsel assisting” statements were inducements within the meaning of the section, that was rejected on the basis that he was acting in accordance with the Coroners Act ‑ to use the term of the court, was under a statutory obligation which he was discharging.

We do not concede that by making a rhetorical statement such as “that time must be accounted for”, the counsel was actually acting in accordance with the Act, but our argument is of course wider than that.  There are two points to be made at the outset in support of a proposition that the Court of Appeal’s position cannot be maintained.  The first is to reflect upon the enormity of the implications that flow from the proposition contained in paragraph [70].  In effect, what is said there is that we should read into section 10 a preface that runs something like “save in the case of an inducement being offered by a person in discharging a statutory obligation, no confession which is tendered” and so on, the section would run.

Of course, it is no small thing to read words into any statute, but to do so in this case, we submit, would be truly startling because the impact would be far‑reaching.  It would mean, in effect, that section 10 goes out of play on the very field where it has most work to do.  It is in the course of discharging statutory obligations, statutory duties such as those involved in the processes of arrest, bail or confiscations – it is in just such situations that persons in authority will be in a position, quite lawfully, within the exercise of lawful discretions to hold out inducements, and the fact that they are backed by statute only makes the inducement more powerful, because it is real.

That situation could be legitimised, if Parliament wanted to do that – section 10 could be amended – or in a discrete piece of legislation, such as the Coroners Act, Parliament could make clear that the provisions of a particular section, like section 10, were not to have effect.  That did not happen with the Coroners Act, and to that Act we should go – we do not need to go to the Act itself; the effect of it is summarised at application book 75 in paragraph [64] of the judgment.

Your Honours, the short point is this; the Act follows a scheme which is by now familiar in statutes around the country.  It has an explicit and dramatic impact upon the very concept of voluntariness.  It does away with the right to silence.  It allows for the coroner to compel attendance, to compel testimony on oath, and therefore puts people on notice as to the prospect of prosecution for perjury.

Within the operation of the Act, counsel assisting can, in effect, threaten and promise and exhort confessions from witnesses, but it does so within a scheme in which there is explicit protection, offered for such a process.  Privilege can be claimed, and the effect of the answers given can be quarantined to those proceedings, and not used elsewhere.  What we say is Parliament’s intention was clear.  Yes, voluntariness is removed, but there are accompanying safeguards for the purposes of that Act and even safeguards that extend to derivative use of evidence obtained from confessions.

We submit there is no basis for holding that, in addition to this loud and explicit intention, Parliament also held a quiet and inferred intention that once the enacted provisions had been exhausted – a confession exhorted, but not forthcoming – then the use of threats and promises was impliedly authorised, to the extent of removing the privilege which had been encapsulated in section 10 for well over 100 years, the privilege that the witness has upon leaving the Coroners Court.

In other words, the Coroners Act has a radical effect on voluntariness once in the court within a scheme where there is protection.  Once the witness leaves the court, the relevant protection, so far as voluntariness is concerned, is to be found in section 10, and there is nothing in the Act that can be extracted to evince any intention to remove that protection.  Against that background, may we turn to the respondent’s argument, which is ‑ ‑ ‑

KIEFEL J:   Just before you do, because you have not quite completed the story, it is your submission, obviously, that whatever pressure was applied at the first coronial inquest, that it remained or it was re‑enlivened on the issue of the summons which was later issued by the coroner requiring him to return to further questioning.

MR CALLAGHAN:   I should have made my argument more clear.

KIEFEL J:   I interrupted you.

MR CALLAGHAN:   No, no, with respect, I am well corrected.  The points I am making at the moment are directed to the proposition that what the counsel assisting did was a threat for the purposes of section 10.  The Court of Appeal rejected that on the basis that it was not a threat because it was something being done in the discharge of the statutory duty.  If we were to establish that, we would have to go on and prove that the threat was operative at the time the confession was made.

That is the second part of the argument to which I will come, but I can flag for your Honour’s assistance now that the complete answer, we say, is contained in paragraph [90] of the judgment of the Court of Appeal, where the evidence, with respect, could not be more concisely nor accurately summarised, and the effect of it explained.

KIEFEL J:   Just before you move on – and I know that you are doing your submissions in two parts, and you are going to come to the question of how the threat, as you put it, operated later on – but just in terms of how the effect of what was put by counsel assisting the coroner, clearly pressure, no doubt an influence later on, how do you get from that to the requisite threat?

MR CALLAGHAN:   We trace it, as did her Honour the President – the threat or promise is directed towards his need to have an alibi.  There is the threat of unwanted continuing attention if he does not have an alibi.  There is the promise that it will all go away if he does.

NETTLE J:   Why is it any different to Swaffield, where the accused knew that the police were going to continue to pursue him?

MR CALLAGHAN:   With respect, everything in this case hinges upon the operation of section 10 and the plain effect of the words, whereas Swaffield was principally concerned with discretionary arguments.  Discretion does not enter into the argument that we advance.

KIEFEL J:   But the question of voluntariness does?

MR CALLAGHAN:   Yes.

NETTLE J:   With exactly the same consideration, surely?

MR CALLAGHAN:   Not if we are looking at the words of the section, because if the section applies to any confession made after any inducement, and deems the confession to be involuntary, if it has been made following that point in time ‑ ‑ ‑

NETTLE J:   So it is any confession whensoever and to whomsoever after a threat or inducement has been issued by someone in authority?

MR CALLAGHAN:   Then the onus switches; that is right.

GAGELER J:   The word “after” is just a temporal connection, is it?

MR CALLAGHAN:   Yes, with respect, and there is no temporal specificity; no period of time provided.  Of course, it will depend upon the circumstances of each case.  That will bring us to the question of causation, which I am happy to address now – I would like to think we had moved beyond the first point, but I apprehend we have not.  The considerations addressed by Justice McHugh in Foster v The Queen are, we submit, a complete answer, because it does not have to be the sole or even dominant cause of the confession, as long as it is, as his Honour expressed it, a substantial cause.

As explained by her Honour the President in paragraph [90], the links in the chain or the net, or however it should be described, are all established.  If we get over the proposition that discharging a statutory obligation is not a complete answer to the proposition that what was said was a threat, then we submit it is a very short path to the point where the confession ought to have been excluded, because the chain is so clearly established, as explained in paragraph [90] on page 81.

I have advanced the arguments we say support the proposition that just because something has been done in discharge of a statutory duty, it does not mean they are not a threat for the purpose of section 10.  Can I come to the respondent’s argument against us on that point?  It is encapsulated, I think, at application book 1204 in paragraphs 11 and, in particular, paragraph 12, where reference is made to the case of Kempley v The King (1944) 18 ALJR 118.

That is really, in our respectful submission, and as clearly stated there, the only authority, the only basis upon which the arguments that we have made can be rejected, but upon examination, we would submit, that authority does not discount our argument.  The statutory provision in that case was a prices regulation applicable during the Second World War.  The detail in the report is relatively spare, but it is, we think, clear enough that these regulations contained nothing like the protection offered by the Coroners Act to confessions obtained in court.

From Kempley, we say only this much can be distilled; that in the course of that particular judicial proceeding, the act of calling attention to a duty to answer truly was not a threat.  We have clearly no difficulty with that.  The only other proposition to be derived from Kempley is the result that objection could not be taken to the admission of a confession offered in that judicial proceeding.

The contrast with the circumstances here is rather stark.  The confession by the applicant was not made after calling his attention to a duty to answer questions truly.  His confession was made in response to false representations about the ability of others to provide the applicant with the further ability to provide false evidence.  It does not bear comparison with Kempley, and no principle from Kempley can be extracted that applies to the situation in which the applicant made his confession.

We would say that it is clear enough that Kempley has no application, if only because of the fundamentally different nature of the statutes involved.  But even if we are wrong about that, for the purposes of an application of this kind, we would submit that an interpretation of a very narrow point in a case from as long ago as 1944, which involved nothing more than this Court dismissing a special leave application, is a spare basis upon which to conclude that an interpretation of section 10 of the Criminal Law Amendment Act should be as contended for, and as must necessarily follow from, the argument advised by the respondent.

KIEFEL J:   I see the light, Mr Callaghan, but in view of the interruptions which we have made, we think you should have the opportunity to deal with the second aspect of your submissions.

MR CALLAGHAN:   The second aspect is simply dealt with, with respect, and that is that the error of the Court of Appeal is demonstrated within the judgment itself ‑ ‑ ‑

KIEFEL J:   But thus far, you have only referred to the effect which might be inferred upon your client by what was said by counsel assisting.

MR CALLAGHAN:   Yes.

KIEFEL J:   Now, it is the fact that your client did not bow to that pressure during the first coronial inquest.  Why should it be inferred that after the summons issued, and he knew that he was being recalled, that he would have changed in his approach to the pressure that had been applied – and not inconsiderable pressure that he had been put under in the first inquest – because now we have the scenario where the undercover police operation is in place.  He has been given other motivations to confess, namely, to be part of a criminal gang and to have an alibi applied.  There are a number of factors now operating.  This has to still operate as a substantial threat.

MR CALLAGHAN:   It does.

KIEFEL J:   How does it?

MR CALLAGHAN:   Because it makes no sense without it.  The concepts are ‑ ‑ ‑

KIEFEL J:   Well, it might be a cause, but it has to be a substantial threat.

MR CALLAGHAN:   A substantial cause; a threat which had a ‑ ‑ ‑

KIEFEL J:   Yes, I am sorry, a substantial cause.

MR CALLAGHAN:   Yes – and will remove the need for an alibi from the consideration, and none of it makes any sense.  It was no prerequisite to joining the gang that there be a confession to a killing or to anything.  The prerequisite was that he not be someone who is going to draw attention to things.  He is going to draw attention to things; he knows that because of what he has been told by counsel assisting for so long as he does not have an alibi.

With the very greatest of respect, we draw attention to the President’s summary at paragraph [90] and again, with respect, endorse the use of the semicolon as appropriate in a case involving concepts that were closely related but, nonetheless, to be expressed in independent clauses.  He chose to make the confessions to do each of the things listed.  With respect, her Honour was entirely accurate in the way she expressed that.  One runs inexorably into the other, and they are not sensibly divorced.  You cannot unscramble that particular omelette.

It is clear enough from Foster in the judgment of Justice McHugh at page 128 that a threat may play a part in inducing a confession, even though other factors contributed.  If we go back to the way in which her Honour dealt with it earlier, notwithstanding her later summation, at application book 77, paragraph ‑ ‑ ‑

GAGELER J:   Paragraph [73], I think.

MR CALLAGHAN:   Thank you, [73] – yes, the last line, and over the page.  Her Honour is treating the situation as a binary proposition, which it is not and, as was made clear by Justice McHugh, is not.  There was a clear contribution made by the conduct of counsel assisting to the confession which was ultimately obtained.  There was, of course, evidence from the applicant himself on the point about the manner in which the threat was operative.  We understand ‑ ‑ ‑

KIEFEL J:   Yes, I think we have been referred to it.

MR CALLAGHAN:   We understand there were bases upon which his evidence could have been discounted, for reasons of credibility.  We would submit although general findings of credibility were made, and that even though it was said his evidence could not be accepted unless, for example, it was supported by commonsense, there is an obvious commonsense, as seems to have been ultimately accepted by the Court of Appeal, to the proposition that one thing contributed to the other and one cause ran into the other.

Your Honours, I have canvassed, I think, the arguments which, for the purposes of the special leave application, really reduce to three propositions.  One is that the proposition that an inducement offered in the course of discharging a statutory obligation is not an inducement to which section 10 applies is a far‑reaching one, and one of enough general importance to warrant the attention of this Court.

The second is that if there is any argument to the contrary, the state of the authority is spare and certainly not in a state that mandates any such conclusion such that clarification by this Court would be required.  The third is that if that much is accepted, the applicant is in a strong position to demonstrate error in the Court of Appeal’s approach to the questions about the effect of the inducement with the result that he does enjoy prospects of success sufficient to warrant a grant of leave.  Those are our submissions.

KIEFEL J:   Thank you, Mr Callaghan.  Yes, Mr Byrne.

MR BYRNE:   Your Honours, the submission from our end of the Bar table is that, quite frankly, this is a facts case.  The established principles that are already in existence can be applied to the resolution of the matter, and have been, but there is no miscarriage here.

KIEFEL J:   I suppose it will be put against you that this is something of an extension on what was determined or the facts in Tofilau, for example.

MR BYRNE:   Tofilau came before this Court on issues of basal involuntariness, and in the case of the co‑accused, Clarke, on the issue of discretion, so certainly it was not the definite rule, as it was referred to in some of the judgments.  In Queensland, that is found in section 10 of the 1894 Act.  That is certainly the case, but nonetheless, the principles which apply to the issue of voluntariness are readily applied in the facts of this matter.  The coronial inquest was ‑ ‑ ‑

KIEFEL J:   Sorry to interrupt you again, but what about the question that is at the heart of the applicant’s submissions, which is the identification of the person in authority, and the Court of Appeal’s ruling that the fact that it is determined under the Coroners Act affects the operation of section 10?

MR BYRNE:   We say this, that first of all, as is common ground, the coronial hearing was conducted lawfully.  The obligation on the coroner, which in practical terms is largely taken up by counsel assisting, to inquire, to question and so forth, is one that can be conducted in a range of different manners.  If the conduct of the coroner and/or counsel assisting was so threatening as to be unfair in the circumstances of the coronial hearing, then they are not acting within the ambit of the Act; they act outside their jurisdiction in doing so. 

That is not the proposition here.  The questioning was robust – we have not shirked from that for a moment – but it was not, in the context of a coronial inquest, unfair or unreasonable.  Once that proposition is accepted, one needs to, if I may adopt the question posed by your Honour Justice Kiefel, identify where is the threat?  Could I take the Court back to a passage that my learned friend has taken the Court to, at pages 373 and 374, commencing at line 55 on the former page – this is in volume 1 - we can ignore the initial rhetorical question:

You understand that the role of this Court, at the end of hearing this evidence, or the role of his Honour, in particular, is that if he forms a reasonable suspicion that anyone has committed an offence from the material he’s heard, that he’s obligated to pass that information on to the Director of Public Prosecutions.  Do you know that?-- Yes.

He went on to say he did not know who the Director of Public Prosecutions was.  He was reminded of a previous court appearance - continued at line 13:

well their boss decides –

That is my emphasis:

who gets prosecuted for criminal offences in this State.  So you understand that if his Honour reasonably suspects, which you might think is not a particularly high standard, that anyone’s committed an offence in this case, that he is obligated to pass that information on to the Director of Prosecutions?

That is an accurate statement of the legal position, of the Coroners Act as it stood at the relevant times.  The power of the coroner, as was noted by her Honour the President, was to refer to the DPP, that is, to refer to an independent body – independent of the coroner, independent of the police – for a decision to be made by that independent person.  He was not threatened with being charged, even though that is the proposition in writing against us, and even though he gave evidence to the effect that he thought that meant that he was going to be charged.

Now, as has been noted in oral submissions today, there were reasons why his credibility was in issue.  Her Honour the President at record book 72, line 50 in the last sentence, referred to him having – and these are my words – “credibility issues”.  Could I take your Honours specifically to some of those noted by the primary judge at the pre‑trial hearing?  First of all, the ones that were noted in the footnote by the President were in the primary judgment at paragraph 123, a finding that he agreed he was ‑ ‑ ‑

KIEFEL J:   Which page of the special leave book?

MR BYRNE:   It is not in the special leave book, it is in the material - I beg your pardon.  That is why I was going to read the quick passages, your Honour.

GAGELER J:   What is this submission addressed to?

MR BYRNE:   That there are reasons why his evidence that he believed he was going to be charged would not be accepted, and were not accepted.

GAGELER J:   This goes to the second point, the causation point, does it?

MR BYRNE:   Yes, it does.

GAGELER J:   Dealing just with the first point, it is put against you that the argument is contained in paragraph [69] of the court’s judgment, and that the response in paragraph [70] is inadequate.  Do you support that response, or do you add to it?  It is not quite clear to me.

MR BYRNE:   Not quite clear ‑ ‑ ‑

GAGELER J:   Whether you stand on paragraph [70] or you add to what is contained in paragraph [70].

MR BYRNE:   No, we stand by paragraph [70].  The issue has been raised in discussion this morning as to whether counsel assisting was in fact a person in authority.  We have conceded in writing at paragraph 9 of our summary of argument that the counsel assisting is capable of being – it should, of course, also be recognised that he is one person removed – one step removed, perhaps is the better way of putting it - in this issue of a threat being raised.  He can only make a recommendation as to whether that is to be taken up by the coroner in then referring to the independent DPP.

Your Honours, the argument that is placed before the Court today as to, in effect, an exemption being found if the Coroners Act is not read in a particular way has an underlying message that there is protection needed for a person being questioned.  Our submission to that is that if that argument is good, and if our argument as to the response found at paragraph [70] is good, bearing in mind what was said in Tofilau – I beg your pardon; I withdraw that last part - that is a different argument.  If those propositions are good, then what was said after what is asserted to be the threat or promise would not be involuntary, but there is still the protection of discretionary issues.

If it is said that the conduct was such as to make him reasonably – and he would probably need to establish that he did in fact believe that he was going to be charged – discretionary issues would be raised either as to a general fairness discretion operating under section 130 of the Evidence Act (Qld) in the inherent power of the court in regulating its functions fairly in considering the evidence, and in issues of abuse of process. It is not to be that our construction or our application of the Coroners Act leaves a person without any response.  It leaves them, we submit, with the appropriate response.

KIEFEL J:   Just before you move from that question about the Coroners Act, at paragraph [70] of the Court of Appeal decision, the President says that in doing what was done during the course of the inquest the counsel assisting:

were acting in accordance with the Coroners Act.

That goes so far.  But in the last sentence, the conclusion her Honour reaches is that there was no impropriety, which one might take to mean that the questioning did not go outside the ambit of the authority under the Coroners Act.  Then in the alternative, her Honour says:

or made any threat or promise to the appellant amounting to an inducement –

Do you rely upon that as a question of fact, as a conclusion of fact as distinct from questions about the Coroners Act itself?

MR BYRNE:   We do.

NETTLE J:   Do you not have it both ways?  Do you not say that the last few words in this paragraph [70] are really an indication of Kempley, that what the counsel assisting did was no more than to vigorously encourage the telling of the truth, and therefore not to constitute a threat, or is that wrong?

MR BYRNE:   No, that is right.  Having heard your Honour say that I suspect I may have misunderstood Justice Kiefel’s question then.

NETTLE J:   I think what her Honour is putting to you is do you embrace that proposition, or do you put it on another basis about impropriety – or do you put it on both bases?

MR BYRNE:   We put it on both bases, your Honour.

NETTLE J:   So not a threat and, in any event, not improper?

MR BYRNE:   Yes.  That comes back to the proposition that it would be improper if it was of such a nature as to be acting outside the jurisdiction to be outside the ambit of the powers that are given by the Act.  We note also, your Honours, that Justice Fraser at paragraph [135] at record book 92, for the reasons given at paragraphs [70] to [73] of Justice McMurdo’s judgment, agreed that:

neither the coroner nor counsel at the inquest made any threat or promise to the appellant and . . . were not induced by anything that occurred at the [coronial] inquest –

That is a causation issue, that last part, as Justice Fraser has phrased it.

GAGELER J:   If I can just go back to that question about the last sentence of paragraph [70], and linking it to the argument that was being addressed that is captured in paragraph [69], is part of your response to say that the questioning before the coroner could not be characterised in the manner that is contained in the second sentence of paragraph [69]?

MR BYRNE:   Could not have been within ‑ ‑ ‑

GAGELER J:   Really, I am trying to ascertain whether your response is an in‑principle response based on the construction and effect of the Coroners Act, or whether you say there is something about the way in which the questions were put – or the content of those questions, or the content of the statements – which meant that, in any event, there was no threat or promise in the relevant sense?

MR BYRNE:   We accept the statement in the second sentence of paragraph [69] that he may have been led to believe that “the coroner would refer the matter to the DPP”.  We do not accept the last part, “and he would be charged”.  He could not, on what he was told – and I have emphasised it is their boss that decides.

NETTLE J:   Could I just clarify that?  I had understood you to say that whatever he, the accused, understood, nonetheless, what counsel did in the course of cross-examination went no further than vigorously to encourage the accused to tell the truth, and therefore was not a threat within the meaning of section 10.  Am I right or wrong about that?

MR BYRNE:   No, we accept that – you are right.

NETTLE J:   That is Kempley.  That is the authority that you rely on in support of that proposition?

MR BYRNE:   Yes.

NETTLE J:   Yes, thank you.

MR BYRNE:   May I move on?

KIEFEL J:   Yes.

MR BYRNE:   There is inherent in any form of questioning the possibility of a threat or a belief by the person being questioned – and I am speaking of questioning by some form of public official – there is inherent the possibility that they will believe they may be charged.  Take a very standard situation where a person walks into a police station, agrees to be interviewed about a particular investigation and is warned at the very beginning in the standard form of warnings.  The continuation of that interview, when that person has the belief, cannot amount to a threat.  The particular contents of how it occurs may, but police do not have an obligation to question.  They have the ability, if the person concedes or accepts to do so.

The continuation of the interview in a police station when the person suspects or believes that they are going to be charged, assuming the questioning is proper, cannot amount to a threat to result in any subsequent confessions being excluded as involuntary.  The decision is made whether to speak or remain silent in those situations.  Here, this man, if he had thought so, had the ability to claim privilege, he did not. 

I simply raise it as a very broad analogy to show that where there is an interview occurring and the interviewee has a belief of being charged, it will depend on the factual circumstances – in that situation, the particular conduct of the investigating police – as to whether the confessions, assuming there are some, will be excluded, or be held to be involuntary, I should say.

Can I move to the causation issue?  It is four months later, it is to a different person, it is on the other side of mainland Australia and in a completely different situation or context.  In those circumstances, one would not readily assume that whatever was said, if it was a threat and if it did at any stage operate on his mind, was still operative at that time.  He testified, at least in one version, that it was operative and as I went to point out before, Justice McMurdo made the findings as to credibility.

Can I very quickly take your Honours to some of the findings of the primary judge - first, the ones that Justice McMurdo footnoted, in particular paragraph 123 of the primary judgment.  He agreed that he was prepared to lie in this proceeding to suit his own purposes.  Secondly, at paragraph 124, he accepted that he deliberately lied to give himself the best chance in this hearing. 

Then at paragraph 61, her Honour the primary judge found that the cross‑examination of him was effective to show he was readily prepared to lie when giving evidence at the pre‑trial hearing.  It was impossible to accept any of his evidence at face value.  It was not possible to act on anything said by him unless it was corroborated or supported by other evidence, was a statement against interest, accorded with common sense, or was not in dispute.  There is not much basis for a finding as to anything that he said, unless it was in those circumstances, to have been accepted.

As I say, the different circumstances and different times puts it in a situation where one would not readily assume that to be the case.  But you would expect that he would be more candid with these people that he had befriended in Western Australia ‑ ‑ ‑

KIEFEL J:   Mr Byrne, just on this causation question, can you develop a little what you mean by “in a different situation”?  You are saying that the confession was motivated by matters other than the pressure that there is a disconnect between the pressure that might have been initially felt at the coronial inquiry and the circumstance that he was in when he comes to make the confession?

MR BYRNE:   Talking socially to friends, newfound friends; indeed, completely different situation.

KIEFEL J:   Because he needs the alibi for other purposes other than not to be ‑ ‑ ‑

MR BYRNE:   Because he needs it for other purposes, to join the gang.

KIEFEL J:   Do you say from that one is to infer that the possibility of being charged may not be operative - one can draw an inference that it is no longer operative?

MR BYRNE:   On the balance of probabilities, yes.  But, that together with what he said at the times – he said variously that his alibi was “a hundred percent” and, in particular, that was noted at paragraph [32] on page 55 of the application book in the judgment of Justice McMurdo.  On 4 August, when the undercover police officer tells him that a summons has been

issued he goes on to say that his alibi was “a hundred percent”, and as her Honour summarised:

police were pursuing him only because of his criminal history.

He also said, a few lines down from there, still in paragraph [32], that:

the “subpoena” would not “work” because he had legally changed his name.

This is all indicating he has no fear of prosecution, ultimately.  He was confident that they “can’t pin me for it”.  Now, could I take the Court to application book 746 – it is in part of the extra material that was received yesterday.  At 746 - can I paint the picture?  He has already confessed to Arnold, in the motel room in Perth.  There has been some further discussion fleshing out the details of the confession.  They then go to an outside balcony for a cigarette, and at about line 19, he tells Arnold “The reason why I’m being – because I am the only person that has known about it, so I am confident they can’t pin me for it”.

Later the same day, at application book 885, after he had left Arnold, he was taken by another one of his friends to a hotel to have a feed and a drink.  At 885, at line 12, he says:

Like, there’s no way they can pin it on me unless they can well they took my car, they . . . went through my car –

and fingerprinted it.  At about line 25 –

They’ve got nothing, the only thing they’ve got is my dealer saying that I wasn’t there when I was, but see I didn’t mention the dealer until two years after my first being interviewed –

We point to that material to show that there is a real break in the causation, that one would expect he would be more open with his friends in speaking about these matters, as opposed to the findings that were made concerning his credit in the course of the pre‑trial hearing.  I see the red light, your Honour.

KIEFEL J:   Yes, thank you, Mr Byrne.  Yes, Mr Callaghan, anything in reply?

MR CALLAGHAN:   Your Honours, we relied on the causation issue on the summary, if you like, in paragraph [90], but since you have been taken to the materials, can we take you to page 724 of the application book.  Just to put it in context, perhaps, can I take you over first to page 728, line 6 - just for context that is the confession.

KIEFEL J:   Yes.

MR CALLAGHAN:   In the period immediately prior to that, can I take you to 724, lines 13 to 18 inclusive, in the references to the inquest; over the page, to page 725, line 18, where there is a promise that alibis can be found; on the same page, line 44, the reference to the subpoena that is coming ‑ ‑ ‑

KIEFEL J:   Is this in the context of the need for the heat to be taken off him so that he can operate within the gang?

MR CALLAGHAN:   Yes, and linked back to the heat coming from the inquest, and what he has been told about that; on page 726, line 49, again, a reference to the inquest.  If you are looking at the question of causation, this is not something that he said about the confession after the event, or something that he said about the strength of the evidence against him.  This is what is actually happening in the moments prior to the confession.  It is, with respect, we submit, impossible to contend that the pressure from the inquest was not operative when it is so directly and obviously referred to in the moments prior to the confession.

NETTLE J:   Mr Callaghan, you took us to 723, did you not?

MR CALLAGHAN:   If I did, I did not mean to.  I meant ‑ ‑ ‑

NETTLE J:   It starts there at line 10, where Arnold is telling him “look, it is all very well you saying that you are denying it and so forth, but if you want to come into the gang, there are the subpoenas and so forth, and I need to know that you are absolutely covered so that you can get in”.  What follows, follows from that context, does it not?

MR CALLAGHAN:   Yes.

NETTLE J:   It is not that the accused is scared of being charged; it is that he cannot give in to the gang unless he allays the pretended fears of Arnold ‑ ‑ ‑

MR CALLAGHAN:   Allied and associated consideration, of course, but in the passages that I have taken you to on 724, 725 and 726, it is all linked back to the inquest and to the pressure that comes from there.  This is when he does not know that he is being recorded.

NETTLE J:   Thank you.

MR CALLAGHAN:   The only other thing that comes out of the exchanges between the Director and the Bench, we submit, is that the special leave question is sharply defined.  The Director, with respect, acknowledged the effect of the first part of the second sentence in paragraph [69] of the judgment.  He said he stood by the effect of paragraph [70].  On that basis, we say the special leave question must be asked, does the fact that an inducement is made in the course of discharging a statutory obligation preclude that inducement from being a threat or promise for the purposes of section 10?  That is the question, as I say, sharply defined, and involving no issues of discretion or miscarriage, or anything of that nature.  May it please the Court.

KIEFEL J:   The Court will adjourn to consider the course of action it will take.

AT 10.25 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.37 AM:

KIEFEL J:   The special leave question said to arise on the first ground is that the Court of Appeal erred in concluding that a threat made in the course of the performance of a statutory duty is not caught by section 10 of the Criminal Law Amendment Act.  In our view that question does not arise.  It does not arise because both members of the Court of Appeal concluded, in effect, that what counsel assisting the coroner did was no more than to vigorously encourage the applicant to give truthful answers, and that there was therefore in fact no threat or promise.  With respect to the other two grounds, there are insufficient prospects of success to warrant a grant of special leave.  Special leave is refused.

The Court will adjourn to reconstitute.

AT 10.38 AM THE MATTER WAS CONCLUDED