Duke v The Queen

[1988] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A27 of 1985

B e t w e e n -

GRAHAM WILLIAM DUKE

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

WILSON J

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

Duke 33

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 23 AUGUST 1988, AT 10.00 AM

(Continued from 22/8/88)

Copyright in the High Court of Australia

AlT2/l/SH 23/8/88

WILSON J: Yes, Mr Peek.

MR PEEK:	May it please the Court, if I can briefly conclude
my remarks as to the learned trial judge's surrnning up. If I can refer to His Honour's surrnning up at page 408 of the appeal book, His Honour there
directed as to the topic of handcuffing and the drawing of guns. This is important because
His Honour put those matters forward as important illustrations of the clashes between the applicant's version overall and the police version overall and
gave the impression that the resolution of such
matters as that would point to the ultimate
resolution of the case.

Now, the handcuffing direction, at 408, line

15, of course, comes immediately following the

careers on the line direction about which I spoke

yesterday and which I will not repeat myself. The

direction as to handcuffing suggests that it would

be obvious to police that the consequences of a responsible member of the public walking in and seeing the applicant handcuffed would ~e such to

the police that the police would be unlikely to

handcuff.

Now, at page 410 in a similar way, His Honour

suggests that the possibility of an innocent member
of the public inside the apartment being affronted
at the sight of a drawn gun would be such as to deter

detectives drawing guns on entering an apartment in

which they suspected an armed robber was present.

Now, there are two complaints about these directions,

one obvious, and perhaps one less so. The first is

that it would have been appropriate if His Honour

was going to direct along these lines to point out

that any member of the public who saw a man handcuffed

in the police station, if he asked about it and was

told that he was a dangerous man wanted for four

armed robberies, would hardly be likely to be

affronted at all.	He would probably say, "Well,
it is a good job he is handcuffed."
In any event, it would be not such as to deter

the police from handcuffing. Secondly, of course,

on that, the chances of a member of the public

walking into that room about which His Honour was

speaking were non-existent. For example,

Detective McMullen agreed in cross-examination at

page 356 that no one, apart from the detectives

who had been to the unit, came into that room at

all that day, for the very good reason - - -

WILSON J: What point are you addressing these remarks to,

Mr Peek?

MR PEEK: Just on the overall a~cy of the summing up in

such a case.

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WILSON J:  And a summing up in which no redirection was

sought by counsel for the accused. Is it really

making a substantial addition to the application

for special leave?

MR PEEK:	Except this, Your Honour, that the directions, in
my submission, were positively misleading as distinct
from merely being inadequate, if I can make that
distinction.

WILSON J: Apparently they did not appear so to counsel for

the accused.

MR PEEK: Well, of course, I accept what Your Honours says but I merely put these in the totality of the case as it now appears. In any event, I do not want to dwell

on that and I will not. Can I simply say, leaving

that topic of handcuffing, the guns, can I simply

say that the police went into the room expecting to

deal with a dangerous man and that the possibility
of the hypothetical minister that was alluded to
by the prosecution would, really, hardly affect the

detectives' assessment of whether they -~hould go in

with guns drawn and yet these were arguments solemnly

puti:by the learned trial judge to the jury for their
consideration.

Now, the other thing about it is, and this does impinge much more on the confessional situation and

the overall special aspect of the case is this: that

it will be remembered that the Queensland police had

strenuously maintained on the voir dire hearing that
the defendant was not arrested at the unit and for

the very good reason that they appreciated they had

no power to arrest. They said so often on the voir

dire and that the consequences of them having arrested

would - it would have appeared to them - led to the

likely exclusion of evidence.

Further, the aspect of handcuffing and drawn guns would have appeared to the police to be very

strong indicia of arrest and, consequentially, they

would have been rather concerned to maintain for

that reason that no such things took place. Now,

having done that on the voir dire, of course, they

had the strongest of reasons to maintain that stance

on the trial proper, the obvious problem of cross-

examination as to inconsistency.

So that was a motive that would have been far less obvious to a lay jury and about which they really

needed help if they were going to get these other sort

of directions going the other way and this is help that

they did not get. Now, that is about as far as I can

take that aspect factually so, of course, I say that

the summing up was unbalanced. It fails to put the

defence case and I would say further - - -

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DEANE J: Just going back for a moment, on what you have said,

is the position as you see it this: that if the

police in Queensland are aware that somebody is

wanted for four armed robberies in another State

and they see him, there is nothing they can do about

it unless they have already processed papers?

MR PEEK:	Your Honour, they strenuously maintained that that
was the position as they saw it, that they then - I do not know now - but they then had no power of arrest
of a person reasonably suspected of having committed
a crime in another State. They did not have that
power then and that until they had a provisional
warrant through, they considered that they had no
power to arrest.  Now, they did explicitly say that
on more than one occasion.

Now, I would submit, just on the - - -

DEANE J: And is - - -

MR PEEK:  I am sorry, Your Honour.

DEANE J: Is that the true position, is - - -

MR PEEK: It certainly seemed to be; - everyone proceeded on

that basis. Whether it has changed since then, I

do not know.

DEANE J: It is an absurd one, if it is.

MR PEEK: Well, that may be so, but that is the way that they

operated and that perception, more than the truth of
the situation, may well be the motive for putting

things in various ways and, of course, the learned

trial judge specifically found against the detectives in this area of arrest. I do not think I can take

that much further, Your Honour.

In a case such as the present, I would simply submit this: that the jury should be warned that it

is dangerous to convict in such a case of an unsigned,
disputed record of interview without some corroborative

or, at the very least, supportive evidence in the case

and that any evidence said by the Crown to fall into

such a category should come from a source independent

from the police and if the evidence consists of

alleged esoteric knowledge, it should not be used

in a corroborative or a supportive way, if there is

a real dispute as to whether the police knew or could

have known of those mattersat the time.

DAWSON J:  But these are all questions of fact, are they not?

MR PEEK: Well, I am putting that forward as a principle, a

special principle, if it please the Court, that -

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DAWSON J: What, a principle of law, principle of practice,

what?

MR PEEK: Well, I submit that the time has come when it should

be recognized as a principle of law but, at least,

as one of practice in1 a case such as this, that

when, really, the only evidence against a man is a

disputed unsigned record of interview about which there are certain unsatisfactory features, namely,

it is procured in a custodial, unlawful situation

and there is no independent verification, no tape

recording, no superior officer and so forth, that a fair trial requires directions warning the jury

as to such evidence and that they should look for support before convicting. Now, I say that - - -

DAWSON J: Well, no doubt this was put to the jury in no

uncertain terms in addresses.

MR PEEK: Well, we do not have the addresses but I am going on

the summing up and when I looked at the summing up

or when one looks at the summing up one sees that a

matter of alleged esoteric knowledge is·· put to the

jury as some sort of evidence upon which they can

rely but with absolutely no directions as to the

very important matter of the detectives' own sources

of knowledge of that matter and, in my respectful

submission, that is the very antithesis of what is

required in a case such as this for a fair trial.

BRENNAN J:  Mr Peek, the submission you have just made is one which we have heard recently in a case of GA.RR , in

which judgment has been reserved. Have you any

submissions as to why it is that there should be a

special direction of the kind that you have just

mentioned to cover cases of this kind?

MR PEEK:	It is my submission that it is a situation with
which the courts are more familiar than the lay
person, much the same as, for example, in sexual
cases for many years, cases of accomplices now, it
is recognized that the courts in dealing with these
matters come to perceive certain recurrent dangers which the lay jury, sicting for one only case of this sort, would not necessarily see and, consequently,
for a fair trial it behoves the trial judge to acquaint
the jurors with those dangers, namely, ~hat it has
been known that police have fabricated confessions,
that the presence or absence of a signature is a
very important matter going to that and the Court
will remember that that was not even mentioned in this direction to the jury and that the aspect of
the fact that for many years now the courts have
been touching upon these questions, the police have known of these disputes, known that the best way or a better way of resolving these matters would be to
tape record, or to have some independent verification

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and in the light of that knowledge which the police
and the courts have but the jurors do not, have cr.osen to put forward this sort of evidence and

that very choice, that very excluding of any

independent means of verification available to

an accused, is significant to the courts but not

so apparent to the lay jurors. Now, I think that

is the approach and the justification I would put

forward, Your Honour.

BRENNAN J:  Can I just ask you other question. Leaving that

point aside for the moment, is there any complaint
to be made of the sununing up along the lines that

the issue for the jury, namely, whether the confession

was made and whether the confession was true, was not

adequately put to them as a matter for their decision?

MR PEEK:	I really meant to convey that and I apologize if I
did not when I was talking about the careers on the line directions; that that was not only to fail to adequately put it, but was to positively blur that
very important problem because it diverted, as I
have said in my outline, the jury from .the true
inquiry and it is the true inquiry, I think, that
Your Honour is now adverting to and that is what I meant.

BRENNAN J: Yes.

MR PEEK:	Yes, I make that complaint strenuously, Your Honour.
In other words, it becomes a contest, as it were, between the accused and the police and, of course,
bearing heavily in mind, the adverse consequences
that are said to exist for the police, should they
lose the contest.
BRENNAN J:	Why is it not a case in which, I mean, one can see

some situations in which a judge may divert a jury's

attention from the real issue, some cases in which,

perhaps, his observations are of so overbearing a

kind as to leave the jury without a real capacity to

form their own view on the subject-matter but on a

subject of this kind, why are not conunents of the

sort that he made about the police and their careers,

why are they not likely to be seen by a jury as merely

the expressions of a view which they are perfectly at

liberty to disregard?

MR PEEK: Well, obviously the jury are net directed, "You must

accept my comments" but, nevertheless, in this

particular summing up there are not very strcng

conunents to the effect that the jury can and should

disre9ard any impressions they may have of the trial	judges views. There is very little of that there and it is my submission that, at the end of the day,
if the jury hears competing points of view being put

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Duke

forward by opposing counsel and then hears the

learned trial judge select on balance principally

those views put forward by the Crown, that can only

sway them because) of course, they have the greatest

respect for the trial judge and particularly in this

State and, I am sure elsewhere, but I mean that can

only, in the experience of South Australia, sway them.

and if the learned trial judge does go down that track,

it behoves him to, as I say, direct fully and address

the balance, particularly on matters of esoteric

knowledge and so forth.

WILSON J:	Mr Peek, you answered Justice Brennan by saying that
the trial judge did not put the basic issue squarely

and fairly to them. I am just looking at page 416:

Reflect on the submissions of counsel

about all the evidence. Are you satisfied

beyond reasonable doubt after thorough

consideration that the police are truthful.

If not, acquit. If you have a reasonable

doubt about whether they are truthful, acquit.

If you do not know where the truth lies abcut

what they say, acquit. There realiy is no

evidence upon which the accused can be

convict~d other than the police evidence

of the alleged confessions at the apartment

and at the police station.

That seems fairly direct and plain speaking, does it

not? 1

MR PEEK:	Sure, I appreciate that that .is put and I am relying
for my counter submission on, principally, this
matter of the career direction. Your Honour may
remember that a little before that direction to which Your Honour points, His Honour had called
back to mind the career on the line direction at the bottom of the previous page, page 415, although, of course, the main direction, career on the line,
occurred earlier.
WILSON J: Yes.
MR PEEK:	But it was in close proximity, as it were, to that
direction that Your Honour refers me to.
WILSON J:	Do you have any objection to the manner in which

the Court of Criminal Appeal dealt with that aspect

of the direction?

MR PEEK:  Well, certainly, they said in no uncertain terms
it should not be given.

WILSON J: Indeed, comparatively little of your address has been

directed to the reasons of the Court of Criminal Appeal.

MR PEEK:  Yes, I wanted to turn to that this morning, actually.

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WILSON J: This is an application for special leave to appeal

from that decision.

MR PEEK:	Yes. I did want to turn to that,virtually next,
actually, if it please Your Honour, but I cannot
say anything more as to that direction. I see it
there. It is there but I say that it is a short direction and this matter as to careers on the line
rather overshadows it.
Can I just very briefly summarize the principles for which I contend in a few sentences and then turn
to the judgment of the Court 0f Criminal Appeal and
conclude my submissions in that way.
What the applicant submits is this: that the learned trial judge did not, in fact, exercise the
LEE fairness discretim at all; that His Honour
erroneously thought or said, at page 249, line 21
and line 30 that in a case where His Honour found
that misstatements had been made:

There can be no possible unfairnes~ .....

no consideration of fairness -

to be considered. Hence, no occasion for the

exercise of such a discretion. In fact, His Honour

should have addressed the objective surrounding

circumstances of protracted, unlawful, custodial

questioning and unsatisfactory recording and the

fact that the disputed record of interview was really

the only evidence against the applicant. His Honour

failed to exercise his discretion or, alternatively,

failed to exercise it on correct principles.

It is submitted that when such evidence as here

constitutes the only evidence against an accused, it

is unfair to admit i~ and, at the very least, that is

a factor that must be considered and, furthermore, it

is submitted, that if there is a conviction based upon

sue~ evidence - well, I will put it this way, if I

may, that if there is to be a conviction based upon

such evidence alone which would be unsafe and

unsatisfactory then, for that reason, such

confessional evidence should not be admitted at

that stage of the inquiry.

I would submit that, in fact, the learned

trial judge took into account in the area of the

fairness discretion, the remarks that His Honour

sets out at page 248, line 40, from the DIRECTOR

OF PU:RLIC PROSECUTIONS REFERENCE in Victoria and,

if one reads that reference, one sees that it is,
really, or those remarks are really addressed to

the residual discretion under BUNNING V CROSS in

contradistinction to the primary LEE discretion

in a confessional case but His Honour has used

AlT2/8/SH	40	23/8/88
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those remarks,with respect, erroneously in the

context of the LEE discretion. It is further submitted

that the only correct exercise of both the LEE

discretion and, indeed, the BUNNING V CROSS discretion

in this case was to exclude and that this Court

should so find.

Now, as to and on this aspect, the jndgment

of the Court of Criminal Appeal - I wonder if I

can refer to that now - at page 447 of appedl book
volume II. At that page, Their Honours had considered
that passage from CLELAND in the j 11dgirent of

Your Honour Mr Justice Deane, part of which is set

out at the top of that page. Their Honours

recognized the importance of such factors and then

go on to say there are, however, other considerations.

Then, at about line 15, Their Honours say.

The learnec judge in the present case

to:)k certain of those other considerations

into account. He thought that when the whole

matter was viewed in its totality~_including

the fact, ut1ich he found as a positive

conclusion of fact, that the appellant made

a confession, as the judge put it 'off his

own bat' -

Now, thac is the first of two only considerations

that are to be found. Now, as to that, I would simply

put that to say that 'the defendant made it 'off his

own bat' is to simply rely upon the police evidence

because it is only upon:the police evidence that one

can make that finding. It is not as though there was

independent evidence to show that the applicant had

volunteered, had sought the police out, had decided
to go to a police station. Such a finding relies

entirely on the word of those putting forward the
confession and, indeed, the surrounding circumstances

are not such to portray the applicant seeking the

police out but rather the police seeking him out at 5 or 6 o'clock in the morning and getting him	from his sleep and taking him away and arresting
him.

BRENNAN J: But the problem is one of whether the confession

is voluntary, not whether it is volunteered?

MR PEEK: Well, this matter here is really - sorry, Your Honour.

BRENNAN J: And why should not the trial judge rely on the police evidence? After all, that is what a voir

dire is about, is it not?

MR PEEK:	Yes, but Your Honour, certainly in relation to the
aspect of voluntariness, obviously I agree,but
His Honour then transposes such finding to the

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area of discretion and here it is that we say one

should look at the surrounding circumstances and,

as a matter of fairness, the applicant should not

be put into a contest of credibility in such

circumstances and that - - -

BRENNAN J:  I would like you to develop that if you could,

Mr Peek, because frankly I do not understand in

a voir dire context what you mean by that. I mean,

if there is a question of whether or not a statement

was made by an accused person to a pold.ce officer at

a police station in circumstances such that there
will only be the police officer and the accused or

the suspect present, are you saying that because of

that method of investigation, that there is some

inherent unfairness which tells against the admission

of whatever evidence comes out?

MR PEEK:	What I am saying is that when the police make improper
use of their powers of arrest and use improper
detention as the occasion of securing what they say
are admissions, that the accused is in unlawful custody and, because of that, has no access to independent verification such as the magistrate
before whom he should be immediately brought, then
that is a situati~n of not only unlawfulness but
also of unfairness and that one of the reasons
why it is unfair is  as expressed by
Mr Justice Deane in that ·passage from CLELAND,
and that it is no answer to that unfairness matter
to say, and to go  straight to a conclusion, "Well,
he confessed, therefore, how can it be unfair",when
the very inquiry at the trial is going to be, "Did he confess?" and the question is, on that inquiry, is it fair to use such evidence. So, in a very real
sense, His Honour usurps that inquiry. Now, it is
unfair because the police have produced a situation
of unfairness. It is they who have made sure that
they are alone with the accused and adopt this
method of recording on a typewriter which cannot be
objectively checked. That is why I say it is
unfair and why His Honour Justice Gibbs in DRISCOLL
thought that one aspect going to fairness would be
the non-supply, at the first available opportunity,
of a copy of the transcript because that goes to
the question of independent verification - - -

BRENNAN J: Yes.

MR PEEK:	- - - and non-access of a solicitor. It goes to the same inquiry. Now, all I say about this matter that
the Court of Criminal Appeal puts as one of two

that are there has totality is that this

finding as to 'off the bat' does no~ go anywhere

beyond any dispute between an accused in custody

and the police because it is just as easy for the

AlT2/10/SH	42	23/8/88
Duke

police to say, "He did it off his own bat.	He went
out of his way.	He wanted to" as for them to say,

"We had to cross-examine him to get the admissions."

It is both corning from the same source and, therefore,

it is to raise by one's boot straps an argument to

say, "Well, he made it off his own bat," therefore, it

is something different and apart from the normal

dispute between an accused and the police and,

indeed, if one looks at the record of interview,

there is very little volunteering in the sense of

long discursive answers. Mainly, it is questions

and yeses and noes of that type and, indeed, on the

voir dire, the record of interview was tendered. I

have one copy about which I was asked yesterday. I

do not know whether the Court wishes to see that but,

as I say, it was before the learned trial judge on

the voir dire, but not before the jury and, from

that aspect, when His Honour looked at it, it should

have been apparent that there were none of the indicia

of a concurrent record on the face of this document.

By that I mean that when one has a genuine record,

the police are typing in an answer, perhaps, and

then, preparatory to the next question, .they put a

and they have to cross that out and keep on going "Q" and then, of course, the accused runs over it
and jump down a line. That is the indicia that are

often to be found in a genuine record of interview.

There is not one illustration of that nature in this

document.

Now, this document is referred to in the index

to the appeal books. It is available separately. I

emphasize it was only before the trial judge on the

voir dire but I wonder if the Court wish to see that,

to illustrate that submission. In any event, it is

available if so needed.

WILSON J:  You could hand it in, Mr Peek.

MR PEEK: Sorry, Your Honour.

WILSON J: You could hand it in.

MR PEEK: If Your Honour pleases. That is the only copy we

have, I think.

Now, the other matter that the Court of Criminal

Appeal said went to show some sort of a different situation - yes, there are signatures down the side

by the detectives, if it please the Court. That is

the writing.

The only other matter that the court put

forward as taking the case outside of that envisaged

by Mr Justice Deane was that the circumstances in

which the accused was questioned did not tend to

AlTZ/11/SH	43	23/8/88
Duke

render the confession unreliable. Well, it is

my submission that they certainly did not tend

to render the confession reliable. At most, it

was completely neutral on that. There was nothing

about the matter which suggested, in the sense I
have put it, that this confession was reliable and,

indeed, certain aspects, the very fact of lack of

signature alone, raise questions as to its

reliability.

(Continued on page 45)

AlTZ/12/SH

44   23/8/88

Duke

MR PEEK (continuing):  So those matters, really, were of very

little, if any, weight in my respectful submission

and those are the only matters put forward by the

Court of Criminal Appeal in this regard. Their Honours,

of course, then turned to BUNNING V CROSS and discussed

certain public policy aspects relevant to that
discretion.

Finally, if it please the Court, it is true

that the Court of Criminal Appeal did attempt to
perform their statutory duty pursuant to section 353(1)
of the CRIMINAL LAW CONSOLIDATION ACT, that is to

Sa½ requiring them to inquire as to wheth~r the

verdict was supported by the evidence on the appeal.

At page 455, line 25, near the bottom, Their Honours

said:

There was ample evidence upon which a jury

could, if they accepted the police evidence

and rejected the evidence of the appellant,

conclude that the confession was indeed made

and that the appellant was guilty of the crime.

And they said that that was "essentialfy a matter

for the jury" and no miscarriage. Now, it is my

respectful submission that having regard to, for

example, the recent case of MORRIS V REG, which

case was, I think, mentioned in the context of the

previous application before the Court yesterday.

The reference is, (1987) 61 ALJR 588, which case

emphasizes the nature of the task required of the Court of Criminal Appeal particularly in the area

of reliability. And, ·of course, the case of

WHITEHORN, which the Court referred me to yesterday,

which is very close to the present case. It is
my respectful submission - - -

DAWSON J:  I was wondering about that. I was wondering about

it yesterday too. There were additional circumstances

in WHITEHORN's case which you cannot point to here.

There was the prosecutrix who was not called; no	explanation was given for not calling her so that	one could assume her evidence was not favourable.
All you had was an initial denial and then, eventually,
a confession of guilt - and there are unsatisfactory
aspects about the confession. But, really, what
was central to that case was the fact that there
was no evidence of any crime at all having been
committed apart from the confession which was
disputed.

MR PEEK:	True.
DAWSON J:	And that rather takes it outside this sort of case.
I was going to ask you if you could say, shortly,
what it is that makes this conviction unsafe, if
that is what you are contending,apart from the matters
which you have already said?
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Duke	45
MR PEEK:	Yes. I thought Your Honour yesterday was really

referring me to the general approach in testing WHITEHORN rather than, necessarily, saying that

it was completely on all fours. But what I say

is that it is unsafe and unsatisfactory particularly -

perhaps this is more the English approach, I do

not know - against the directions and the course

of the trial in that context and that all you have

against a complete lack of directions in favour

of the defence, really, is a majority verdict of

a jury accepting, obviously, this unsigned~

confession. But the confession itself has unsatisfactory

features about it; you have the fact that not only

he refused to sign this one but he refused to sign

four giving, so it is said by the police, the reason

at the end of each one, "Well, I want to have legal

advice".

One sees, for example, in that transcript and,

indeed, in the oral evidence that just before he
is asked to sign the police are careful to say,

"Now, I will caution you again, you do not have

to sign". Now, why would they do that? You see

that may give them a plausible reason ·iater to say:

"Well, we cautioned him at that point and he said,

'I will not sign"'. But, of course, if he was

co-operating with them as they said he was, why caution him at that point at all? I mean, they

have given him a lot of cautions - all that could

be possibly required at the outset. Why not just

ask him to sign? If he was so co-operative he would

be anxious to sign.

It is that sort of thing - the cross-examination

of the police as to the way they conducted the whole

investigation; the possibility, as I say, of them

conferring - the likelihood of them conferring -

with the nearby police station and the consorting

squad as to Evans and Lavery; and the phone calls

as to the alleged esoteric knowledge.	One remembers
of the car left the car there all right, he testified	that on that aspect of esoteric knowledge the owner
positively that all that was there on the sign post
was SAIT. South Australian Institute of Teachers
is obviously what is meant to be conveyed by SAIT and a South Australian might know that and might
say it is an education centre. But would a man
such as Duke, from interstate, know that or is it
fabrication derived from information from the
consorting squad.

All of those matters which, unfortunately,

were never put to the jury smack of an unsafe verdict,

in my respectful submission. It is not - and this

is my final comment - dissimilar to the earlier

case involving the appeal in·SMITH V REG,

(1956-57) 97 CLR 100 when the High Court overturned

a verdict which relied, principally, on confession

which they considered to be unsafe. Those are my

submissions, if it please the Court.

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WILSON J:	Thank you, Mr Peek.	Yes, Mr Rice.

MR RICE: If the Court pleases, I hand to the Court an outline

of my submissions.

If Your Honours please, it is the Crown submission

that the trial judge and the Court of Criminal Appeal

all correctly applied the correct principles of

both LEE and BUNNING V CROSS and I will move, in a

short while to a reference to the actual terms of

His Honour's ruling and, indeed, the reasons of

the Court of Criminal Appeal. But it is the

respondent's submission that the view of the majority

of this Court is that there is no general rule that

a voluntary confession should be rejected because

it has been unlawfully obtained in a situation such

as this.

It is the respondent's respectful submission

that something exceptional must be shown and it

is the respondent's submission that that view emerges

from a combination of two cases. There is CLELAND's

case itself where Your Honour Justice Wilson concurred

with the Chief Justice and Your Honour .. Justice Dawson,

as well, concurred in a similar view and all of

Your Honours concurred in what Your Honour

Justice Brennan said in COLLINS' case. So it is

the respondent's submission that it is not sufficient

for this applicant to merely point to unlawful conduct

in the obtaining of the confession but there needs

to be something exceptional or special justifying
the rejection of the evidence in the exercise of

the discretion.

DAWSON J:	I do not think I said something exceptional and
special was required.  I think I said not much was
required.
MR RICE:	I think, certainly in one place, Your Honour did
say that not much would be needed to be added to the situation of unlawfulness to bring about the
exercise of a discretion.  But I think there was
another part where Your Honour did concur with
what His Honour Justice Brennan said in COLLINS'
case: that where you have got a situation of
unlawfulness and an unsigned recorded interview
that if it is not unfair to the accused person
to allow the confession in, then there would need to be something exceptional to justify its rejection
pursuant to the BUNNING V CROSS discretion - and
that is what I really had in mind.
DAWSON J:	BUNNING V CROSS is something different.
MR RICE:	Certainly it is but what I am really saying is that
here the trial judge and the Court of Criminal Appeal considered both the LEE discretion and the

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BUNNING V CROSS discretion and that when one has

a voluntary confession - and it is not unfair to

allow it in evidence - then it would need to be

something exceptional under the BUNNING V CROSS

discretion to have it rejected on public policy

grounds - and that is what I was really getting

at.

Now, it is submitted by the respondent that

both the discretion in LEE and the discretion in

BUNNING V CROSS were considered by the learned trial

judge and, indeed, by the Court of Criminal Appeal

and whilst I do not wish to take a great deal of

the Court's time in referring to the original ruling

of His Honour Justice Bollen could I, briefly, take

Your Honours to the substance of his ruling.	I
would like to commence at page 247 of book 1.

His Honour, in the middle of that page, accepted the police evidence and, indeed, was prepared to, apparentl½ accept it beyond reasonable doubt.

He said he was:

perfectly satisfied that the accu_qed for some

reason we do not know decided that he would

say to the police all that he could.

And then His Honour then recites at 247 precisely

what it was that was said at that initial conversation~

At page 248, if the Court pleases, His Honour found

that the applicant was offered food at the police

station and found that there was no impropriety

in what happened at the police station itself.

His Honour then went on to find - about line 22,

that the:

accused decided off his own bat that he would

give that information -

to the police. His Honour found that the confession

was improperly obtained and there is obviously no

question about that. Then moving on to page 249,

His Honour said that the applicant, at no stage,

"sought any opportunity of making any complaint"

and the idea, in fact, "never crossed his mind"

His Honour was satisfied that the applicant decided

to confess "off his own bat" and then by means of a "perfectly voluntary response" responded to the

questions that were asked of him. He "acknowledged

his guilt" and he "agreed to go with the police",

because he expected to be caught, and answer their

questions.

Then at the bottom of page 249 is the complaint about which my friend makes some comment, that:

There is no consideration of fairness or even_

of public policy which seems to me that can lead

me to think that I should exclude the evidence.

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And what the respondent says about that is that

what follows on page 250 is that His Honour had

in mind considerations of both the type mentioned
in LEE and, indeed, the type mentioned in

BUNNING V CROSS - taken in light of what his earlier

findings were. At page 250 he said that there "was

a serious bank robbery" and the criminals needed

to be brought to justice. He said that he could

not:

discern any tendency in the circumstances of

the accused's apprehension or detention to

render his answers unreliable.

He was satisfied that:

he was properly treated when taken to the police

station -

and that he did what he did "of his own volition".

Now, in the light of His Honour's earlier rulings

it is the respondent's submissions that, indeed,

what His Honour was there exercising was both the

LEE discretion and, indeed, the BUNNING V CROSS

discretion. He had regard to features of unfairness

and he had regard to features of public policy that

those cases dictate that he should and, indeed,

that CLELAND's case, itself, dictated that he should.

And it is the respondent's submission that the matters

of fact were resolved, obviously, principally in

favour of the police evidence and that there was,

in fact, an actual exercise of both discretions.

Your Honours, as I understood part of the

argument that emanated yesterday - although perhaps

not quite the same this morning - it was suggested

that the factor of reliability was, in fact, a separate

category of unfairness. Now, what the respondent

says about that is that reliability, first of all,

was decided in favour of it being a reliable account,

and reliably obtained. The respondent submits that

reliability is merely a factor to be taken into

account when considering whether it would be unfair

to an accused to allow the evidence to be led against

him. The test is not an objective test of unfairness.

The question is whether or not there is unfairness

in fact and the failure to allow an accused to appear
promptly before a magistrate or provide the means

to record the interview or the failure to provide

a copy are but factors to be taken into account
when considering whether or not there is, in fact,

unfairness in fact.

It is the respondent's submission tha~ in light

of the ruling of the learned trial judge, the

confession of the applicant was reliable in the

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sense that it was accurate. The means of recording

made it reliable as a matter of fact, because

it was recorded accurately at the time and faithfully
recorded as found by His Honour, and that the
environment was such as not to affect the reliability

because it made no difference to the applicant whether

he was under restraint or not.

BRENNAN J:	Mr Rice, you say that it was accurately recorded -
that is in this record of interview, I take it,
that you are speaking of?

MR RICE: Yes. His Honour makes a finding that the police

officers faithfully recorded the questions that

were asked and the answers that were given.	And
that is part of His Honour findings.	And that is

why I say that His Honour found in favour of

reliability, that, in effect, it all happened at

the time and therefore he found against the alternative

suggestions made by my friend that perhaps there

was something made up later and presented as the

confession of the applicant. His Honour expressly

found this way at the time.

BRENNAN J:  Mr Rice, I do not know whether this would be at

your fingertips but would you be able to give us
a quick reference to the evidence of the bank officer
as to what a person who might have been thought

to be the accused sai4 during the bank robbery,

to him?

MR RICE:  No. Your Honour is right, I have not got that at

my fingertips at the moment.

BRENNAN J:  Can you tell me whether the words attributed to

that person, in the evidence, corresponded either
precisely or substantially with the words allegedly

attributed by the police officers to the accused

in their record of interview?

MR RICE:  I think I am in an equal difficulty in answering

that question as well, Your Honour.

BRENNAN J: Perhaps your opponent might be able to have his

junior look it up while you are on your feet.

MR RICE:  Yes. I would be indebted if that could happen.

So the essence of the respondent's submission 1n

respect of the first ground for special leave is

that the factual findings of the learned trial judge

were favourable to the police and that he went about

the exercise of both discretions if one looks at

his rulings. He had regard to the situation of

the applicant and he also had regard to matters

of public policy at the very end. So, in my submission,

he obeyed the dictates of CLELAND's case and that

he regarded the reliability of the interview as

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a factor to be taken into account in determining whether or not it should go into evidence and he

found in favour of the prosecution witnesses at

that time.

Now, I do not want to labour the judgment of the Court of Criminal Appeal but, in my submission,

that was to the same effect. The Court of Criminal

Appeal looked at the requirements of LEE's case;

it looked at the requirements of BUNNING V CROSS;

it looked at Your Honour Justice Deane's words from

CLELAND' s case and said that notwithstanding those considerations

the Court of Criminal Appeal took the view that

it was a proper exercise of a discretion.

Now, whilst it may not be necessary for me

to go back one step I say that, in any event, if

one looks at His Honour's rulings in this particular

case there was ample justification for ruling in

the way he did. My friend did put forward to

Your Honours a submission both, I think, late yesterday

and this morning, I think much in line with the

submission that was put to Your Honour~ in the

special leave matter of CARR that Your Honours have

reserved upon. In other words, that in a case where

you have a disputed confession and the only evidence

is the evidence with respect to that confession

then there should be some sort of special direction

or maybe a corroboration warnin& or something akin

to that, that should be given to a jury to enable

them to unravel the case when they retire to consider

their verdict.

It is the respondent's submission so far as

that is concerned that there is no need for that
type of special direction, be it a corroboration

warning or some other type of warnin& that needs

to be given in that particular case. But obviously

each case can be judged on its merits and there

may be cases where the dictates of fairness so far

as a proper balance of the summing up is such that

one should say something about the pros and cons

of the prosecution evidence and the arguments the

other way. But that is not to say, in the respondent's

submission, that there should be some special direction

or some special warning given to a jury in that

situation. It is our submission that that can be

catered for quite adequately in an individual case

depending upon the facts as they emerge in that

particular case.

And obviously the respondent resists any

elevation of this to a rule of practice or, indeed,

of one of law, whereby in that situation such a

direction is needed.

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I want to move from that topic, if Your Honours

please, to one of the other principal areas suggested

by my friend as raising matters of special leave

and they are the directions given by His Honour

the trial judge during the course of the summing

up concerning the police officers putting their

careers on the line.

WILSON J:	Yes, I think both paragraphs 3 and 4 of your outline
are matters which are not germane to the application.

MR RICE:  No. I put them in just in case we did, in fact,

move to a consideration of those but Your Honour

is correct, they are not. Quite clearly the
Court of Criminal Appeal, in the respondent's
submission, correctly applied the principles from

WHITE's case and, indeed, dealt fairly harshly in

their reasons with the submissions that were made

by Crown counsel at trial. It is the respondent's

submission that they correctly applied those

principles and that is not a proper basis for this

application.

My friend, on his list of author1ties, has

a case of CHEATLEY and it is the respondent's
submission that is readily distinguishable because
in CHEATLEY's case there was, as it were, evidence
given by the accused person of his good character
and His Honour endeavoured to redress the balance

in CHEATLEY's case by saying that the police were

also presumed to be of good character and that one

of the two of the groups had to be committing perjury
and committing a crime - either the police were

committing perjury or that the accused himself was

comm~tting perjury and that either of them was committing

a crime.

CHEATELY's case was a much extreme example and really pointed up the possibility of a crime

bein~ committed by those investigating the matter.

And 1n my outline of argument, S(b), I mentioned that because His Honour, in this particular case,
was in fact dealing with arguments of counsel and

not dealing with the topic afresh as appears to

have been the case in CHEATLEY, no redirections

were sought and that if one looks at the directions

of His Honour in the summing up referred to in S(d)
of my outline - that His Honour emphasized on a

number of occasions that there had to be proof beyond

reasonable doubt so far as the police evidence was

concerned. I do not wish to take the Court's time

up by· referring to those matters. I have dealt,

briefly, already with what is contained in paragraph 6

of my outline: that in the respondent's submission

there is no special requirement or need for a special

rule or direction in respect of interviews that

are disputed and that is the only substantial evidence

against an accused person.

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And if I could finally deal, if the Court pleases,

with His Honour's directions concerning what was
being referred to during the course of arugment

as the "education centre" evidence, it is the

respondent's submission about that, that that was

an argument being put by the prosecution. Secondly,
it is put that the jury would have been aware of
the connection between these investigating officers
and those that investigated the case against

Evans and Lavery - and the reason why they would be aware of that would be because of the

cross-examination of the police officers to that

effect and, also, it is put that the jury would

be only too well aware that inquiries were made

in Adelaide of those in Adelaide that investigated

the original armed robbery by virtue of the cross-

examination of police officers to that effect.

And, also, by virtue of the fact that in the

recorded interview itsel~ that the jury asked be read to them after they had deliberated for some

three hours, there was an express reference to the fact that the police officer had rung Adelaide and

made certain inquiries about that particular armed

robbery. So the point that I am really putting

to Your Honours is that the jury would have been

only too well aware that another source of information

would have been the inquiries that those who

investigated the Evans and Lavery case - and also

would have been made aware that, in the interview

itself, that inquiries were made in Adelaide.

If I could just briefly refer Your Honours

to that just to make the point. If Your Honours

refer to page 424 of the second book on the sixth

line down, Detective Sergeant Meskell says to the

applicant:

As a result of what you told me earlier this

morning I made inquiries from the Adelaide police and I have been informed that about

et cetera, two gunmen wearing funny masks robbed five past ten in the morning -

a particular bank. So as well as there being

cross-examination to show that the police officers

could have obtained this particular information

from another source, there was also the express

reference during the course of the interview itself

that information had come from Adelaide - so the

jury would have been only too well aware of that.

And the reason for the submission in this regard

is that CLELAND's case, in the respondent's submission,

is readily distinguishable and one can make that

submission for these reasons. First of all in

CLELAND's case there was an express misdirection

whereas that is not the case ·here. Secondly, there

was no request for further directions here but

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there was in CLELAND's case. The other sources

of information were obvious here whereas perhaps covered this particular aspect of the matter because
they were not so obvious in CLELAND's case.

a lot of cross-examination was directed towards

it and finally, His Honour was not obliged to put

all of the arguments, as it were, in favour of the

defence with respect to this matter and the Crown

said this was an argument in favour of - in other

words the knowledge coming from somewhere else was

an argument in favour of the defence and His Honour

was not obliged to put all of those matters to the

jury in the course of his summing up.

DAWSON J:	Mr Rice, if the Court were to grant special leave and thereafter deal with the matter on the basis
that this was an appeal, what would you say about
the submission that the verdict is unsafe?

(Continued on page 55)

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MR RICE:  I will answer that in a moment, sir. If I could

also go back one step. If it means the verdict

is unsafe it must also mean - and assuming that

is the only evidence - that it was the wrong

exercise of a prosecutorial discretion to put

up in the first place.

DAWSON J:	Well, that happens.
MR RICE:	Yes, well, perhaps it does. If. one has an unsigned

interview and that is the only evidence does that

mean we should not proceed with the case at all?

DAWSON J: But, obviously, theprosecutor thought he had

more evidence at the time. He called witnesses

who, from my cursory glance at the evidence, did
not swear up their proofs or at least to his

expectations.

MR RICE: That would appear to be so, yes.

DAWSON J:  So that that explains that.

MR RICE:  Yes. I think Your Honour is asking me -

DAWSON J:  You see, what you are left with is an unsigned

confession which leaves a lot of question marks.

Would you be justified in coming to the conclusion

that any verdict based solely on that was simply

unsafe?

MR RICE:  I think, no. I do not think the court would be

justified in making that step.

DAWSON J:	Well, why not, that is what I am asking?
MR RICE:	Simply because I would say that they are jury

questions and that all of those sort of matters

would be first and foremost to a case 1 like that are canvassed for the jury and, obviously, what

would be issues of credibility.

DAWSON J:  So that you say if the confession was intrinsically

unreliable it should not have been admitted in

evidence at all butonce you admit it it is a

question for the jury and you have their verdict?

MR RICE:	That is the way I would approach it, sir, yes.
BRENNAN J:	Well, now, can I just take you a step further

beyond that? If the question is whether the
alleged record of interview is reliable or not
there seems to me to be two matters that might

bear upon the safety and security of the verdict.

One is whether there was any exotic information

that was contained in it. Am I right in thinking

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that there is nothing in the record of interview

which was not otherwise known or otherwise

discoverable by the investigating police officers?

MR RICE:	Yes, it was either known or discoverable, yes.
BRENNAN J:	And the second factor that may be relevant

is whether this being the only evidence the

direction that was given by the trial judge or

the comments that were made by the trial judge

went beyond what might have been thought to be

mere comments and reconcilable with WHITE's case

and ran the risk of directing the jury into the

wrong inquiry?

MR RICE:  I think if one looks in this particular case

at the directions with respect to burden of proof,

His Honour was at pains to repeat that it was

not merely first of all, repeat the onus a number

of times, but it simply was not a contes.t of five

police officers and one accused person. He mentioned,

I think, certainly once, it was quality not quantity that was important. In my submission, if one

looks at the summing up over all the jury were not diverted on to a side-road of whether or not these

officers were putting their careers at risk or

whether they were conspiring to fabricate false

evidence. It was very plump and plain at the end of the day that if they had any shadow of

doubt there was to be an acquittal but if they
were prepared to accept the evidence of the police

officers then they should convict.

In the light of the summing up of that type

in that fashion, in my submission, the verdict

is still safe for that reason and whilst there

was obviously to some degree a diverting of a

jury's attention by mentioning that the careers

may be put at risk, I think they were put back on

His Honour really made it plain to them that if	to the straight and narrow right at t~e end where
they had any doubt they must acquit. They were
the submissions that I wish to put to the Court,
if Your Honour pleases.

WILSON J:	Thank you, Mr Rice. Yes, Mr Peek, do you reply?
MR PEEK:	I was only going to suggest, in answer to

Your Honour Justice Brennan's inquiry as to what the bank officers said that that would have been

available to the police in Adelaide and probably

in Queensland also apropos the Evans and L'avery

inquiry - - -

BRENNAN J:  Well, what was it?

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MR PEEK:  - - - and therefore it does not take the matter

any further. I have the page references in the

original transcript.

WILSON J:  Could you just read the bank officer's description

of the hold-up?

BRENNAN J:  Only of the words used actually.

MR PEEK:  Words used, yes. The person, C.J. Harrison,

one of the robbers said:

get on the floor -

at page 255. One other. person says:

Where's the fucking money -

at 256. An S.C. Paris, one of the persons:

told us, everyone to get down on the floor .....

told us to face the floor .....

face the floor and to get down on the floor.

A V.J. Nugent:

he asked me to get some coin - some more

cash for him.

Then further down:

He then told me to sit down again and I then sat down again underneath the wash basin .....

He asked where the guns were and Mr Morgan

replied they were locked away in the safe

under two keys -

et cetera. ,·

BRENNAN J:  Well, just before you pass the et .cetera, was

there any admonition, "not to get guns out or I'll

shoot your mate."?

MR PEEK:  Not in the references that my learned junior

has been able to find.

BRENNAN J:	What evidence is that? Whose evidence is it?
MR PEEK:	The evidence of a C.J. Harrison, 255, 256; the

evidence of an S.C. Paris at 262; the evidence

of a V.J. Nugent at 269 and, finally, I was coming

to the evidence of a G.W. Morgan at 279:

Q.	Did he say anything?
A.	I can't remember. He might have said

'It's a hold up' or something like that.

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So that does not take us much further, I do

not think.

BRENNAN J:	Very well. Thank you.
MR PEEK:	But my primary submission, Your Honour, is that

in so far as it is suggested that there is any

correspondence then the statements of those bRnk

officers would have been readily available to the

police so it falls within the concession that

my learned friend makes in relation to that.

BRENNAN J:  Yes, but you do not get a correspondence between -

whatever was in thestaterrent perhaps and what ~J

in here?

MR PEEK:  No, it really is neutral. I do not know that it

takes me any further, I cannot point to ..... those

particular terms.

WILSON J:  Thank you. The Court will retire for a moment

to consider its course.

AT 11.10 AY. SHORT ADJOURNMENT

UPON RESUMING AT 11.16 AM:

WILSON J:  The Court will consider its decision in this

matter.

AT 11.17 AM THE MATTER WAS ADJOURNED SINE DIE

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