Duke v The Queen

[1988] HCATrans 177

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

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 22 AUGUST 1988, AT 3.30 PM

Copyright in the High Court of Australia

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MR D.H. PEEK:  May it please the Court, I appear with my learned

riend, MR M.J. SYKES, for the applicant in

this matter. (instructed by Sykes Bidstrup)

MR P. RICE: If the Court pleases, I appear on behalf of

the respondent. (instructed by the Crown Solicitor

of South Australia)

WILSON J:	Yes, Mr Peek.
MR PEEK:	May it please the Court, I hand up copies of

the outline of our submissions.

WILSON J:	Yes, Mr Peek.
MR PEEK:	May it please the Court, I seek to tender an

affidavit of Mr Sykes which I understand has

been provided to the Court. This is as to the

delay in the matter, Your Honour.

WILSON J: That is dealing with the question of delay,

Mr Peek, yes. The Court would invite you to

continue with your submissions on the substance of the application, Mr Peek. We will deal with

this question of delay, if necessary, later.

MR PEEK:  Yes, I did have some other matters on that but

I will come to that later.

WILSON J: It could have serious implications on a new

trial, for example.

MR PEEK:  Yes, certainly I do have some comments to make

on that but I will defer them for the moment

as to that aspect, Your Honour. I certainly

do not intend to read any evidence but can I

just point to a general outline of the facts

against which the matter is to be tested just

to very briefly present the picture.

What happened was that between about 5

o'clock and 6 o'clock in the morning of 12 July,

five armed Queensland detectives entered an

apartment at the Horizon, an apartment building

at Burleigh Heads. Those gentlemen were from

two different squads: three were from the Broadbeach

Queensland CIB, they were Meskell, the officer- in-charge, Foreman and Frohmuller. Broadbeach

is at Gold Coast City, about 70 kilometers south
of Brisbane and, for reasons that will become
important later, it is the neighbouring CIB

district to Burleigh Heads, only 5 miles away.

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Duke

The Horizon apartment building was 6 kilometers

south of Broadbeach and about a five or six

minute drive. The second group of detectives,

two, Edwards and McMullen, were from the consorting

squad of Queensland based in Brisbane, and there

is only one consorting squad.

Edwards, from the consorting squad had

certain information and I will not trouble the

Court with that. He had looked through a number
of circulars in relation to armed robberies.

The police evidence, then, was that they all
went into the apartment and Edwards, after taking

a blanket off the applicant, recognized him

as Graham William Duke, a person he believed

to be wanted for armed robbery in Adelaide,

and informed Meskell of that.

The police evidence was that the applicant

agreed that he was Duke and went on to make

brief admissions of a very laconic sort in relation

to robbery. The police evidence was that although

they were armed, no police officer at any stage

drew a gun either prior to going in or in the

apartment. The applicant testified on the voir

dire and he stated that he had been woken from
sleep initially by the banging, hid under a

blanket which was ripped from him, and was confronted

with a loaded revolver pointed at him by Edwards.

He testified that he gave a false name to the

police and made no admissions whatsoever.

The police evidence continued to the effect that the applicant was then taken back to the

Broadbeach police station, about 6 kilometers

away, about a five minute drive, and the appli~ant

was there interviewed in three separate records

of interview as to three alleged offences in

New South Wales.	The first of those interviews
starting, I think, at about	9 o'clock in

the morning, he being held in custody to that

time. Different detectives of this group I

have mentioned to the Court conducted the various
interviews.	The police evidence was that the

Adelaide interview was the last one, that is

the one with which we are concerned, and started

at 1. 00 pm.

The police evidence was that the applicant

made full admissions in each of the four records
of interview, never requested a lawyer but,

in relation to each of the four records, he

was asked at the end of it would he sign it

and, of course, said, "No, I want some legal

advice". So he does that in relation to one

interview, then goes to the next interview,

fully co-operates and then takes that stand

four times.

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I should also mention that the interviews were

said to be proceeded on each occasion by copious

warnings as to his rights generally and way

beyond a bare caution. So it was being suggested,

in other words, that on four different occasions

he was being told in very clear terms that he

did not need to say anything, that it would

be held against him and so on, and yet he continued

to do so on four occasions but would not sign.

The police evidence, indeed, was that the

applicant was a very friendly, happy-go-lucky

young man and extremely co-operative. The applicant's

version was diametrically opposite, of course.

He said that he requested a solicitor when first

spoken to; he was. treated with complete disdain;

he made no admissions at all; that, as I have

said, he was initially arrested at gunpoint,

he was handcuffed at the apartment and he remained

in handcuffs at the police station. The police

evidence as to handcuffing was that he was never

handc~fifed and !the gun was :never pointed at.
him~ I!

After those interviews but before being formally charged, he was taken back to the apartment

where some clothing was collected and the police

agreed that at this stage he was in custody

and would not have been ,allowed to leave. He

was then taken back to a police station and

it was recorded that he was arrested at 3.35 pm,

that is to say, after he was taken back to an

apartment, and then he was taken to Southport

police station, which was some little distance

away from Broadbeach but a much bigger police

station, alongside of which there was a c0urt.

He was charged at the watch house there at 4.20 pm.

The police witnesses on the voir dire recognized

that under the Queensland JUSTICES ACT they

were obliged to take an arrested person before

a justice as soon as practicable - I am assuming

that the Court does not want page references

but I have them if the Court at any stage wants

them - and that the applicant could have been

taken before a justice that day and, in fact,

there was at least one magistrate sitting at

Southport that day and, indeed, Meskell and

Foreman themselves took a female person charged
with larceny before that magistrate at approximately

4.30 pm that day.

The learned trial judge and the Court of

Criminal Appeal proceeded on the definite footing, as was the case, that the custody of the applicant was unlawful; that he should have been taken

and there was no obstacle to him being taken

before a court forthwith or as soon as practicable.

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Duke

But the applicant was, of course, not taken

before a court that day at all. He spent that

night in the watch house at Southport. The following day he was extradited back to New

South Wales, a Detective Parmeter, from the

consorting squad in Sydney, having arrived that
evening and, as I say, extraditing him the following

day.

If it please the Court, it is recognized

that, of course, there is a difficulty involved

in the review of an exercise of discretion but
it is submitted that the terms of His Honour
the learned trial judge's ruling in this case,
coupled with the strength of the considerations

in favour of exclusion, do demonstrate that

His Honour exercised his discretion upon wrong

principles or, indeed, as I would wish to put
it, did not exercise his discretion in relation
to the matter of fairness, the LEE discretion,
in any real sense at all.

I wonder if I can just then take the Court to His Honour's ruling on this matter, at page 244

in book I. Page 244 is the commencement and

I will, if I can, go through very briefly -

His Honour commences at page 244 to briefly

outline the facts and then, at page 246, I think

is the first matter I need to say anything

about. His Honour finds that contrary to what

the police were very concerned to assert, the

applicant was under arrest. I think the Court

would have noticed from the papers that the

Queensland detectives were adamant right throughout

that they would have let him go if he had made
to walk off at any time prior to when they took

him back to the apartment to get the clothing

shortly before 3.35 pm but that they would have

had a man follow him and keep and eye on him

and take the risk that he might be lost.

The learned trial judge rejected that and

page 247, however, His Honour found in favour	found that, in fact, he was under arrest. At
of the police evidence that they did not go
in with guns drawn or draw their guns despite
the information that they had that there might be an .armed robber inside and, in fact, then proceeded to also make a finding against the accused on the issue of handcuffs, I should mention, and then found that the conversations as deposed to by the police did take place at
pages 247 and 248.

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Duke

At page 248, His Honour there refers to

LAVERY, CLELAND, DIRECTOR OF PUBLIC PROSECUTIONS

REFERENCE and, at page 249 really comes the

pith and substance of one aspect of this application.

His Honour, after finding and making a positive

finding that the accused made the confessional

statement, then reasons, at line 10 or 11:

(Continued on page 7)

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Duke
MR PEEK (continuing):

The accused never sought any opportunity

of making any complaint. I am satisfied

on the police evidence that the idea of

making any complaint never crossed his mind. I am satisfied that he decided, having been

apprehended and found by the police, to say

the confessional things which he did

say ..... he did that entirely off his own bat -

and so on. Then the next paragraph:

Therefore, it appears to me that he has made
a perfectly voluntary response to all the
questions asked of him, and that there can
be no possible unfairness in the admission

of the challenged evidence when the matter

comes on before the jury.

Can I then just skip the next paragraph and go to the second-last paragraph on that page at line 30:

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.

Now, it is my respectful submission that this sort of approach is largely circular in many respects,

because what it really means is, if it please the

Court that if the police witnesses can convince the ' ..

trial judge that in fact the disputed confession is

made, then that, virtually of itself, disposes the
qestion of fairness, even in a clear unlawful

custodial situation.

BRENNAN J:  What about voluntariness,

MR PEEK:  Yes. That is rather different because, of course,

the learned trial judge found against the accused in

relation to those specific matters that traditionally

go to voluntariness, such as threats, pointing of
guns, and so forth,	although, of course, it may be

under CLELAND and some of the other cases that the

mere fact of custody for a long period of time,

having been woken up from sleep in the early hours

of the morning, on any view of the facts, in an

isolated situation from which all but he and the

police are intentionally excluded, that may well be

a matter going to voluntariness itself.

BRENNAN J:  Mr Peek, the passage I would have thought with

which you had to come to grips was at page 247,

line 22, and I do not understand whether you say

that you accept that fin ding or whether you wish to

challenge it, but that seems to be the start of

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Duke

His Honour's subsequent more discursive observations

about things.

MR PEEK:  That line which reads, "I am perfectly satisfied

that the accused,for some reason we do not know,

decided he would say to the police all that he could"?

BRENNAN J:  Yes. You see, His Honour comes back to that at

the end of his reasons, does he not?

MR PEEK:  Yes, but of course, really, if it please Your Honour,

I appreciate that the Court of Criminal Appeal,
for example, chooses to say, "The finding here is that
the applicant decided off his own bat -to use a

colourful term - to do these things", but the point is

really this, that it is no different to any other

case of a disputed confession. I mean, if the police

easy, they might just as well go so far as to say,	are going to make up a confession, then it is just as
"Not only did he say these things when we asked him,
but he volunteered them, off his own bat".

So what I am saying, if it please the Court,

is that just because the police choose to pitch it in

that way, fundamentally it is nc different than any

other dispute as to a confessional statement. It is

in a situation - and indeed, it is worse for the

accused, because it is in a situation where the police

have intentionally made sure that he can have no

independent verification of his version.

BRENNAN J:  You mean it is doubly unfair because there is a

greater risk of the judge having the wool pulled over

his eyes?

MR PEEK:  I do not resile from that proposition whatsoever.

After all, we are talking with persons who were

then experienced detectives and this would not have

been their first voir dire and one would soon learn

that it is these little things, although when one

strictlylogically analyses it, as I have tried to do,

sometimes seem to make the difference between whether

it is thought there is a ring of truth, or not.

DAWSON J:	Have we got a copy of the record of interview?
MR PEEK:	Your Honour,  it appears at the trial proper, that

the Court does not have an actual copy of the

transcript, but the content of the record of

interview starts at page 272 of volume II, right down

the bottom, and then on page 273 begin these copious

warnings that I referred to before.

DAWSON J:  He had already confessed in the broadest of terms

to this offence, had he, when he was arrested, or

they said he had?

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Duke

MR PEEK: What the detective said about that was that he had

said, "Right on, man", or something like that,

a very nebulous statement about which they never

made any notes until some six years later. Now, the

justification for that was that they thought that

they would incorporate that in the record of interview, which of course they had in their

minds of then doing, and which, of course, they

would have then have realized they intended to do in

quite unlawful circumstances, I might add.

DAWSON J:  While I am interrupting you, is there any other

evidence, apart from the confession against - - -

MR PEEK:  No. I say that quite unequivocally and I will stand

corrected if my learned friend takes a different stance, but apart from the confessional evidence

there would be no case to answer.

DEANE J:  That "Right old man" should be "right on man"

should it?

MR PEEK:	As I understood it - where is Your Honour referring to?
DEANE J:	Page 247.
WILSON J:	Page 247, it is, "Yeah, right on man".
BRENNAN J:	And at page 272 the same.
WILSON J:	I do not know that it makes much difference.
DEANE J:	We might as well be accurate though.
MR PEEK:	"Right on man", whatever that might mean - taken of

itself it might be the most sarcastic, ironical retort

one could make. It is the merest snippet. Clearly

the primary concern is on this later typed record

of interview, although if that goes, if that should go

out, then there are the clearest reasons why that

snippet should also go out.

BRENNAN J:  Because it would be open to the jury to interpret

it as meaning "precisely, sir"?

MR PEEK:  Your Honour, it nay be, but as a matter of fact I would

like to hand up to the Court the case of KHALIL in the Court of Criminal Appeal dealing with possibly

equivocal oral statements made in a custodial

situation in which the court said that very great care

should be made in relation to those matters and

indeed in that case the Court of Criminal Appeal
reviewed the discretion of the learned trial judge

and in fact decided that such statements should have

been excluded.	Perhaps if I can just hand up copies
of KHALIL.

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Duke

WILSON J:	What use do you make particularly of this, Mr Peek? Are you going to take us to a passage?
MR PEEK:	I do not want to take up the Court's time with that,

but I merely cite it as an example of this very sort

of thing, namely a snippet of conversation,which is

not recorded until some time after, in a situation

where the precise nuances or the precise word might

make all the difference; in other words, the mere

way that you say it or the precise words may make

all the difference as to whether the jury could, in

fact, afford it a confessional meaning, and KHALIL is

precisely on that point.

WILSON J:  And you make that reference to the short confession,

supposed confession?

MR PEEK:  Yes, Your Honour. That is why I brought it along ·with

me, just in case there was some question about chat.

WILSON J:  Yes. That was not the subject of any note for

several years?

MR PEEK:  Six years - not in KHALIL. I am not sure of the

time in KHALIL, but here six years.

WILSON J:  Yes.

MR PEEK:  And six years was up to just before the lower court proceedings. Perhaps what I should say about that to

explain, indeed, why a matter which involves an

alleged robbery in 1978 should have taken so long to be

disposed of - perhaps I can just give the Court a few

dates. The date of the alleged offence was 11 May 1978.

On 20 May 1978 Queensland detectives from the

consorting squad that I have already mentioned

interviewed one Lavery and Evans who made confessional

statements in relation to this offence, and I will

come to that in more detail in a little time. On

12 July 1978 we have the raid of the apartment building

and on the 13th we have Duke extradited back to Sydney.

Now, he in fact pleaded guilty to offences in

New South Wales, but I hasten to add, as it appears

from the transcript, was quite adamant that he

disputed having made any confessional statement in

relation to those matters, but in fact he was guilty

of them, and that was put in his plea to the

Supreme Court in New South Wales. In any event, he

served a sentence in New South Wales for those matters.

A warrant for arrest for Duke in relation to the present matter was not taken out until 2 November 1978

and nothing at all, apparently, was done in relation

to proceeding against Duke as to this South Australian

matter until 26 June 1984 when Detective Kelso

executed a warrant of apprehension on Duke in Sydney

just after he had been released, and extradicted him

to Adelaide.

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Duke

WILSON J:  : presume he was in custody when the warrant was

issued in November 1978?

MR PEEK:	Yes, in 1978 he most certainly was in custody.
WILSON J:	Yes, so that explains why it was not executed.
MR PEEK:	Yes, except that there would not have been any real

impediment, one would have thought, to having him

stand trial in South Australia, even though he was

then serving a sentence in New South Wales,

certainly he was.

BRENNAN J:  What would have been the warrant for releasing

him from custody?

MR PEEK:  I would have thought that under the TRANSFER OF

PRISONERS ACT, or as between the two States'

Attorneys-General there would have been no real

problem in arranging that. In any event, it did not

happen, and I have not gone into it in any great depth,

but I can see no legal impediment for doing it.

(Continued on page 12)

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Duke

:t1R. PEEK (continuing): Now, as I say, Detective Kelso did

extradite the applicant on 26 June 1984 and he

was in custody and remained in custody throughout

his committal, which was in August of that year,

and committed for trial on 29 August. He was not

granted bail until December of 1984. So, up to

that point, of course, he had served something like

six months - very close to six months, from

June 1984 to December 1984.. Now, he was granted bail

on conditions that he return to New South Wales,

reside at a certain address and come back for trial.

He came back for trial on one occasion, his

trial was put off; he cam: back again. On 27 May 1985,

when his trial was just under way, His Honour determined

that he would not grant bail for the trial and there

is no suggestion of any bad behaviour by the applicant;

that was just the way His Honour saw it. So, he remained

in custody from then until just after he was

sentenced on 27 September 1985. Now, what

happened, and this largely explains - it is in the

affidavit - the delay, of course, his sentence on

27 September 1985 was after the papers had been

filed in this Court and the sentence was nine years but with a non-parole period of six months backdated

to the beginning of May. Now, that meant that he

was released almost immediately and so he had served

something like 10 - very roughly - months in the

periods I have given to the Court, and now he has

been on parole for approximately three years.

DAWSON J:	Why was such a short non-parole period given?
:t1R. PEEK:	I think it largely revolves around the fact that nothing had been done to process the South Australian offence during those years that he had been in
custody in New South Wales and that he had, as it were, served a good dea.l of time in relation
to those matters; had honoured his bail; had made
a new start; had not committed any new offences
and he has not for the last three years and that ·is the way His Honour disposed of it.
WILSON J: It was backdated until when, did you say?

:t1R. PEEK: Backdated to, I think, 8 May 1985.

TOOHEY J:  I think it was 5 May, Mr Peek, and the significance

of that date, I think, was that was when bail was

refused.

:t1R. PEEK:  Yes. That may well be so, Your Honour -5 May.

DAWSON J: But, in effect, he was given a non-custodial

sentence?

:t1R. PEEK:	Of course he had served some 10 months in the
circumstances that I have put.
DAWSON J: Yes, yes.	I just want to know why?
AIT9/l/JM	22/8/88
Duke	12

MR PEEK: Well, that is all I can tell Your Honour, really.

But, what I would say, and perhaps now is as good

a time as any, is that history would, in my submission,

go strongly towards an order of acquittal rather

than a retrial in the sense that,reallY, if he

were tried again and convicted, there would be
no real prospect of him being gaoled because,

of course, this matter has already been disposed of and he has been on successful parole for some three years, coupled with the delay since the

offence some 10 years ago.

WILSON J: And there was no appeal by the Crown over a

lenient sentence?

MR PEEK:	No, and furthermore, I think I can say, and my
learned friend will correct me again if I am wrong,
that it would be extremely unlikely that this man
would be presented for a retrial in all the
circumstances such as have been outlined. And,
of course, if I make good the complaint as to the confession, there is another matter there would
be no case to answer.

Of course, on the matter of whether there

should be a retrial, I would just refer generally

to a case on the list of CHEATLEY, a Tasmanian

decision, which sets out a number of factors that

should be taken into account. At page 124, line 3,

His Honour Justice Everett said:

The factors which should influence an

appellate court in exercising such a

discretion will depend basically on all

the facts of each individual case, the

circumstances which surrounded the trial,

the nature of the miscarriage of justice,

the strength of the prosecution case and

a full and fair balancing of the public

interest and the personal interests of the

successful appellant.

Now, if I can just leap from there to the next

page, page 125, about half-way down, just after

one sees the cases of JENKINS and DALEY, His Honour

continues:

My conclusion is that there is no

presumption in favour of a second trial being ordered when an appeal succeeds, and that the discretion of the court must be exercised on

a consideration of all the relevant facts and

circumstances.

His Honour goes on to outline some of those matters

and then, in numbered paragraphs towards the bottom

of that page, His Honour says:

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Duke

(a) It was common ground that without the

confessional evidence, which I stress again
was strongly disputed by the appellant, there
was insufficient evidence to justify the

appellant being charged with the alleged crime.

I should interpolate that this was not a case in

which such evidence could not have been led again

at retrial. So what the Court was saying was that,

even looking at the confessional evidence, that

is all there is and it was strongly disputed. Then:

(b) On the assumption that, on a new trial,

the evidence for the prosecution and the

defence would be subscantially the same as

on the first trial, it cannot in my view be

asserted with confidence that, on a proper direction to the jury, a verdict of guilty

would clearly be even probable.

I will come back to that in the context of the

directions in this case, if I may, shortly. Then,

down the bottom, the effect that had occurred in

relation to the appellant himself, his career

prospects and so forth, and then the matter of cost

to the State is referred to, to some extent, on page 126.

So, in my submission, those matters that I

have been canvassing go not only to the question of

the appropriate order should an appeal be allowed,

but also to the anteLLOr question of the matter of
delay because, of course, a retrial is inherently

unlikely in view of the circumstances I have put.

Now, what i say occurred here is that His Honour

took a far too subjective approach to the resolution

of the voir dire question, subj~ctivein this sense:

His Honour finds that the applicant makes the confession and therefore it cannot be said to be

unfair that it should be used against him. Now,

it is my submission that really what should be

looked at is the objective circumstances surrounding

the disputed confessional statement and that

there is great unfairness in itself in the very

requirement that the applicant be forced into a

contest of credibility before the jury in

circumstances of unlawful conduct, that is to

say, his unlawful custody, in a situation where

the police have assiduously excluded all but them

and the accused, that they have eschewed much

more reliable means of reporting, such as tape

recording or video recording, and they have not

even, for example, had an independent superior

officer in any way verify with the applicant whether

or not he has made a confessional statement.

The comments of Your Honour Mr Justice Deane

in CLELAND in relation to this matter are relied

upon. I wonder if I can go briefly to that passage,

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Duke

I appreciate it is well known. It is at

151 CLR 25.

WILSON J: Before you get further away from the history,

what happend to Lavery and Evans?

MR PEEK:  They were convicted. There was an appeal - - -

WILSON J: After a trial?

MR PEEK: Yes. Certainly I am correct in Lavery. Can

I just slightly correct that? Apparently Evans

pleaded half-way through a trial, but Lavery

proceeded completely through trial to verdict

and indeed, to an unsuccessful appeal to the

Court of Criminal Appeal.

It is at point 7 on page 25, if it please the Court,tl1a.t last paragraph and just about

the first three lines of the following page,

page 26, is all I need to take the Court's time

with.

Now, what I want to say is that the question of reliability should not now be afforded a

very narrow meaning in this sense, namely,the

accused admittedly made these statements, but
are they true? Now, that issue will come up
in only a small minority of cases

It is my submission that the factor of reliability should go to the overall reliability,before a

jury,of the circumstances surrounding the taking

of a disputed unsigned confession. Now, this

perhaps has not been explicitly spelt out

often, although I respectfully submit that

that passage in CLELAND,to which I have just

referred the Court, is along those lines.

BRENNAN J: What do you mean by "reliability" there?

MR PEEK:	I mean that,particularly in an unlawful
custodial setting,when police deliberately exclude
everyone but the accused and rely on typewritten
record, as distinct from tape, which is unsigned,
that that is,or may be,unreliable evidence against
an accused person. There is a factor there to be considered which may be put under the
rubric ·"unreliability".  Now, that is perhaps
a choice of words by myself and, of course, it could be perhaps considered under some other
rubric, I suppose.
BRENNAN J:	Is it saying anything different from this:

that those are factors which a judge, on a voir dire,

will no doubt have regard to in deciding whether

or not the submission of the confession would be

fair?

MR PEEK:  He should have, but unfortunately -

15

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BRENNAN J: Should have?

MR PEEK:	- - - this learned trial judge did not. He merely
went straight to the question of deciding whether, from his point of view, the confession was made.
Deciding that it was, His Honour thought that he had no need to decide these questions of reliaiblity, as I say them, which go to the fairness
discretion.

BRENNAN J: Well, that is your phraseology, "reliability",

and it seems to me that we are at risk of confusing

thoughts if we adhere too closely to it. If, by

"reliability" you mean no more than that it is a

fact which the judge may or ought take into account

in determining whether in the exercise of his

discretion he ought to admit it, then that is one

thing. If it means something different from that,

then I would like to know precisely what you mean

by "reliability",

MR PEEK:	It does mean the first, but it may also mean, and there are examples of this, that a confession
in certain circumstances where it is the only evidence of guilt may be thought by an appellate
court to be an unsafe basis for a verdict and
that would be because of, I would wish to say,
unreliability in its wider sense. Unreliability
in the sense that there i& and wa~ no way for
the applicant to verify his version with an
independent source because the police had been assiduous in making sure there cannot be such a source.

( Continued on page 17 )

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BRENNAN J: Well, do you then take it a further step and say,

"And· if that is the kind of evidence which an

appellate court might find to be unsafe and

unsatisfactory, then that should bear upon the

exercise of the discretion and tell against its

submission"?

1:1R PEEK:	Yes, I would say that, but at least the fact that has to be taken into·accotmt.and,::.indeed, -I can point to various factors that go to discretion which I say are to be justified
by a ·basal  principle which I would choose to describe
as reliability.  Now, one of those illustrations would
be, for example, the matter of provision of a copy of
a record of interview to an accused person at the
first available opportunity.  Now, His Honour
Chief Justice Gibbs,as he then was, referred to
this aspect in DRISCOLL V REG, (1977) 137 CLR 517,
at page 540. It is at about half-way down page 540,
innnediately after the reference to REG V DUGAN and
His Honour says:

However neither a failure to allow the

solicitor to be present nor a failure

to make a record of the interview innnediately

available to the applicant would in itself

render evidence of the interrogation

inadmissible, although it might be a ground

for the judge to reject the confession in

the exercise of his discretion if he regarded

it as unfair to allow it to be used.

Now, I proceed from that observation to pose

this question: why would it be considered to be

unfair? And that is always - or up to now, is

perhaps something that has not had a definite answer,

apropcs:what I choose to describe as reliability.

I suppose, or a completely exhaustive answer but

In other words, what was said. It is unfair not
to supply the defendant with a record straight away

as to what was said because, otherwise, the police

have that much more time to manufacture an interview	and, perhaps, put in it evidence or information that
they subsequently become aware of and then, of course, choose to say that it was given at an earlier time.
So that is, in my submission, why one can use that
sort of thing on an inquiry as to fairness and,
indeed, in my submission, the question of presence
of a solicitor.
Now, the presence of a solicitor may well be an accused's best chance of verification on the issue
of reporting of what was said. Not just on the question of being overborne or on the question of being advised as to his legal position but as to having a witness and, in my respectful submission, it is in that

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context that His Honour the Chief Justice, or then

His Honour Mr Justice Gibbs, I am sorry, was making

his comments and, indeed, that justification which

goes to fairness was recognized in South Australia

in the case of RF..G VEVAf-IB, (1962) SASR 303, particularly

at page 307. Now, that was a case in which the

defendant had requested the presence of a solicitor
and it was a case where the police did not dispute

that. Down the bottom of page 306, His Honour

Chief Justice Napier delivering the judgment said:

that the time has come for this Court to say - something about that -

That is is not permissible for a police officer to persist in interrogating persons in custody

beyond the point at which they intimate the

desire to say nothing or no more. It is, we

think, a fortiori, that the questioning ought

to stop when the suspect declines to speak save

in the presence of his solicitor. This is, in

our opinion, a fortiori in that police officers -

and for that matter Crown Prosecutors - ought to

realise that, apart from advising his client,

the presence of a solicitor may be the client's

security against misinterpretation or distortion

of his answers.

Now, I interpolate that a complete fabrication is only

one type of distortion albeit to a very bad extent.

In this connection it should be pointed

out that - as it is now practised - the business

of interrogating persons in custody is apt to

be one-sided. The suspect is taken to a police

station and questioned by two or more officers.

The questions and answers are not, usually,

recorded at the time, but aiesubsequently -

it may be the next day or even later - recorded

by one of the officers, according to the best

of his recollection, and the note so made is

thereafter treated as the authentic record

of the interrogation.

BRENNAN J:  Is there any suggestion of wanting a solicitor in

this case?

MR PEEK:  Yes, on the part of the applicant, certainly.

BRENNAN J: Yes.

MR PEEK:	I think I mentioned in passing earlier that his
evidence on the voir dire was that he said he wanted
a solicitor right at the outset and the police denied
that.  They say that the only mention of a solicitor
was at the end of each of these four interviews,

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when he says, "I will not sign this one because

I will get legal advice".

BRENNAN J: Well, the judge found in favour of the credibility

of the police evidence, did he not?

MR PEEK:	That is right, he did but, you see, my point is that
evidence and, indeed, DRISCOLL demonstrates that there
is a very real matter which goes to fairness and goes
to whether the confession is accurately reported and
that is the question of whether there is the
possibility of having a witness.

Now, if the police eschew all possible witnesses,

it is just as easy for them to say that the accused
never asked for a solicitor as it is to admit that

he did but we would not give him one.

BRENNAN J: Well, that may be so but is that not a question of

fact that you are addressing us on or are you trying

to convert this into some proposition of law or

practice?

MR PEEK:	It is a question of fact which has to be resolved
in each case obviously but what I am saying is that
His Honour did not have regard to the relevant
principles when addressing the matter of fairness
because I say that the matter of a solicitor in
various cases and the matter of provision of a copy at the earliest opportunity go to the topic of
fairness and go to it in a way, an objective way,
on an inquiry as to whether the interview was, in
fact, made.and it is to those sort of considerations
against the background of unlawful custody that
His Honour should have been appealing or looking
at,rather than simply proceeding to make a finding that the accused had confessed and, leaping from
that finding,to say there can be no unfairness.
WILSON J:	When you speak of fairness, Mr Peek, this is in

the context of the LEE discretion to exclude; having

determined that a confession is voluntary and,

therefore, admissible, is it to be excluded in the
exercise of a discretion on the grounds of unfairness

or are you - is that the context in which you are

making these submissions?

MRl PEEK: Yes. That is so in this sense: that it is an

examination under LEE and McDERMOTT of what use

the police have made of their position of power

vis-a-vis the citizen.

WILSON J: And you are saying, really, that notwithstanding

that the judge makes this emphatic finding when he

says, "I am perfectly satisfied that the accused,

for some reason we do not know, decided that he

would say to the police all that he could",

19

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apparently a very relaxed kind of interview but

you would say, nevertheless, there are objective

features of the circumstances which enable you

to deny the validity of that finding of fact.

MR PEEK:	What I really say, if it please Your Honour, is that His Honour should not have made such a finding of
fact at all.  On a voir dire when we are talking
about a disputed confession, a trial judge should
not in the vast majority of cases make a finding as to whether the confession was made. Now, the reason I say that is because the making of such a
finding is liable to be very embarrassing to the administration of justice.
BRENNAN J:	How?
MR PEEK: Well, for example, if a trial judge finds that a	disputed confession was not made, it seems to me
exclusion in the absence of any question of threats, that that alone, by itself, would not justify
inducement or anything else, simply a finding that it was not made.

Now, if the jury should convict on the basis

of a contrary finding in a case, for example,

where there is nothing but a confession, that the

confession was made, then you have an embarrassing

situation, I submit, a finding by the trial judge

in favour of the accused on the confessional issue,

a diametrically opposed finding by the jury which is

necessary for a finding of guilt.

Similarly if, on the other hand,the trial. judge

makes a finding that a confession was made, then that

can only hamper and embarrass a trial judge in

considering the matter of voluntariness and discretion

because it would then appear to a member of the public

that evidence, admittedly correct, is being suppressed.

So, what I say is that a trial judge should not leap

straight to this question which, of itself, is really

a jury question, namely, whether the confession was

made and make that finding at all and, certainly, he

should not do it as a matter of course as His Honour

as done here and, certainly, he should not reason

from that, well, he made the finding, hence it cannot

be unfair to use it when the accused - - -

BRENNAN J:  So he should make a finding on that proposition

that, "Whilst I will not find that this confession

was made, I am prepared to make a finding that it
was made because the accused thought he had no

option but to make it". It sounds like a lot of

nonsense, if I might say so, Mr Peek?

MR PEEK: Well, in MacPHERSON on this sort of question, it

seems - it is my submission - that trial judges-

can look at the question of voluntariness or

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discretion quite apart from making any finding

as to whether a disputed confession was made.

BRENNAN J: There may be cases where that can happen but

your proposition goes further and that is that

the trial judge should not address the question of

whether it was made or not.

MR PEEK: Well, I would put that proposition in the vast

majority of cases, if it please Your Honour.

DAWSON J:	Can I break it up here?
MR PEEK:	Yes.
DAWSON J:	You could not put these submissions with relation

to the first confession, equivocal as it might be,

could you? ·

MR PEEK: Well, of course - you mean a snippet at the apartment,

of course. That is, of course, in a custodial

arrest situation and if the learned trial judge

here were to have excluded the lengthy interview, then, really, the logical extension and corollary of that would be that that early snippet would and

should have been excluded because the applicant could not explore the surrounding of the making

or the alleged making of that disputed statement

without going into his substantive dispute

encompassing the written record of interview.

So, only to that extent can I - - -

DAWSON J:	I am not sure that I follow that.
MR PEEK:	Well, it is my submission that it would be unfair
to lead that snippet by itself against the applicant
if it had been determined that the lengthy interview
should have been excluded.

DAWSON J: Why? The circumstances are quite different.

MR PEEK:  They are quite different but there was no note made

of it because, and the justification being given that it
was intended to incorporate that little snippet in the

record of interview which was then intended to be held

in unlawful circumstances but, in fact, no note of

that snippet was made for some six years and that

the meaning of that snippet depends very much on
the precise words and nuances used and it would be

very dangerous. and unfair for the defendant to have

to go into all of that in an atmosphere divorced

from what he says occurred during the whole

encounter with the police, namely, one of intimidation,

guns, handcuffs and, indeed, fabrication by the police.

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DAWSON J: You see, there is this logical dilemna, is there not, that

your client says he was not intimidated at all?

MR PEEK:	True.
DAWSON J:	He was not overborne, he was not influenced by the fact
that he was in custody. It made no difference that he had no access to legal advice?
MR PEEK:	He says, of course, that to this extent he was threatened and treated badly - the guns and handcuffs-
but I agree with Your Honour that he maintains
that nevertheless he did not confess, certainly,
but that really, in my submission, was the scenario
in MacPHERSON to a very large extent.

BRENNAN J: Mr Peek, could I just take you back to something

you said before about evidence being unsafe and

• unsatisfactory to rely upon. If there is evidence

which does not fall into that category, in other

words, which, by itself, is sufficient to leave
it open to a jury to convict but yet the evidence
was obtained by the police in circumstances where
the accused was in, let us say, unlawful custody,

that it is a confessional statement which was made voluntarily, in those circumstances, is

there anything more than the ordinary discretion

to determine whether or not it should be admitted? In other words, is it not just a matter of whether

it was fair in the circumstances to allow it

to be used on the trial against the accused?

Then I want to put another question to you and

that is - - -

MR PEEK:	I think that that is right, subject of course
to the trite observation of the BUNNING V CROSS
discretion as well.

BRENNAN J: Yes, of course. Now if, on the other hand,

the evidence is unsafe and unsatisfactory then

of course - and it is the only evidence and that

this is such a case, you do not have to rely

on any discretionary problem, you can go straight

unsatisfactory because there is no other evidence to the question of whether it is unsafe and in the case?

MR PEEK: True, I could make that submission and, of course,

I do, against the background, naturally, of

inherently defective directions to the jury which

is another point, of course.

DAWSON J:  But you see that may be a good point but it

is an entirely different one, is it not?

MR PEEK: It is a different point and perhaps that is a

point I should have come to earlier but - - -

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DAWSON J: But, you see, it was the situation in CLELAND'S case that the confession was denied. It is very hard to say that something is unreliable for

various reasons which are denied by the accused

in respect of which you are only left with the

police evidence.

MR PEEK: Yes, but in CLELAND, too, although, of course,

there are slight d_i.fferences between the approach

of the various Justices, certainly it would seem

that little is required to persuade a trial judge,

or little should be required to persuade a trial

judge_ that it is unfair to use a disputed

confession when it is taken in circumstances

of unlawful custody.

DAWSON J:  Yes, but something is required and here the

evidence is all one way, if I may say so.really.

If your client had said, "Look, yes, I did say

that, but what else could I do in the circumstances?",

it is entirely different.

MR PEEK:	But here it is, in my submission, a great deal more than the mere fact of unlaw custody which,
of course, might be a fleeting inadvertent matter
by the police. What it is is an arrest in the
early hours of the morning, a holding all day
in custody when a magistrate was available from
at least 10 o'clock that morning, a holding and
an abuse of the power of arrest for the purpose of interrogation.
DAWSON J:	He says, "All of that had no effect on me."
MR PEEK:	The learned trial judge did say that.
DAWSON J:	No, your client said that.
MR PEEK:	In my submission it is unfair to require him
to enter into a contest of credibility in a
situation where the police produced that situation
and the accused simply says, "I did not make those confessional statements but because of
the behaviour of the police I had no chance to
make a lawful - as was my right, to make a statement to a magistrate, I had no chance of a witness, I had no chance of independent verification because
the police had chosen to record this on a;
typewriter.  The most that I could do, and did
do, was to refuse to sign and, even then, the
police explain that by the fabrication on our
case that they do."

DAWSON J: Really, what one is saying is that the whole

of the evidence, your client's and the police's

is unreliable, in this case, because - although,

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of course, your client only gave evidence of

the voir dire, I take it?

MR PEEK:	He did.
DAWSON J:	Yes, but speaking broadly it is all unreliable

because of the very situation that was produced.

MR PEEK:  Yes, and it is unfair

DAWSON J: But I understand the point but it is a different

one to saying the actual confession was unreliable

and therefore unfair to the accused.

MR PEEK:	I do make that submission as to reliability and I do say that it was unfair and, most importantly,
from a point of view of reviewing an exercise
of discretion, His Honour never exercised his discretion as to fairness because of those passages
I have pointed the Court to in His Honour's ruling. of unlawful custody and reporting and so forth
that I have repeated more than once. His Honour
thought that it was appropriate in such a case to just make a finding that the accused confessed
and therefore how can it be unfair, against the
background of the accused saying, from the first
available opportunity, "No, I didn't confess.",
and then, of course, against a background of
certain directions concerning the interview.

Just before leaving that point, perhaps

I can just make reference to the remarks of

Your Honour Mr Justice Dawson in CLELAND. I

simply mention that because it appears at the

top of page 3 of the synopsis in which Your Honour

did use the words, "Whether it would be unfair
to the accused to admit the evidence because

of unreliability arising from the means by which

or the circumstances in which it was procured."

I am simply saying that that proposition

would encompass means and circumstances of recording

of which the applicant can have no independent

verification because the police have designedly

chosen such a system which is not subject to

verification and that is an instance of how I

say unreliability can be used in the fairness

discretion .

His Honour found against the applicant on

the question of whether the confession was made.

It may be, indeed, that he found on that, in

the process of reasoning, which he commended

to the ladies and gentlemen of the jury in his

summing up. His Honour directed, at page 408,

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1n the passage that I have reproduced at page 3

of the synopsis - it would be safer to read

straight from the summing up.	At the end of
line 4, page 408:

Remember Mr Cuthbertson's -

he was the Crown prosecutor -

submission that by fabricating or making

up or inventing conversations which amount

to confessions, many officers would be putting

their careers on the line, putting their careeers at risk. Remember that and see

whether you think they are that sort of

men who would behave so dishonourably and

dishonestly as to make up a confession. Reflect on what would be the result for

them if they did that and were discovered.

Remember too that if there was the

fabricating of a confession and lies by

the police, five or six officers must have

ND been in it.

His Honour reiterated that as an acceptable line

of reasoning and resolution of the issues at

page 415, line 24, five lines from the bottom.

It is only a very short snippet:

I have told you that you are entitled to take

into account, if you see fit, Mr Cutherbertson's
point that if the police had made up evidence
five or six officers put their career at risk.

It is not long after that that the jury are sent out, at page 418.

WILSON J:  Was there any request for redirection?

MR PEEK: There was a request as to the reading out of

interview, at page 420.

WILSON J: That is from the jury.
MR PEEK:	I am sorry, I misunderstood Your Honour. There
was no request for redirection by counsel, if
it please Your Honour.
WILSON J:	The Court of Criminal Appeal took those passages

of the judgment to task, I think?

MR PEEK:	Yes, in the State Court of Criminal Appeal, that
is right,and Their Honours referred to the
previous case of WHITE, which is on the list,
and which strongly depricated such an argument
being put and in which case the appeal was allowed. Perhaps if I just give the Court the reference to
that, without reading from it necessarily at this
time, it is (1976) 13 SASR 276.

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I might also mention that in the case of

CHEATLEY, which I referred to on another point a

little earlier, a similar direction was encountered

and similar corrnnents by the Tasmanian Court of

Criminal Appeal are to be found. That is in

CHEATLEY, 5 A Crim R 114.

It is my submission that those were very serious misdirections indeed in a case where it

was the word of the applicant against a number of

detectives and it is a situation where he had,

and could not have, anyone to back him up. They

were defective in that they diverted the jury from

the correct approach, which was not to worry about the

detectives and what might happen to them if they

acquitted, but simply whether at the end of the day

there was a reasonable doubt~ And it implied a

man not guilty, then there would be disciplinary action against the detectives"and, as then	perceived sanction that, "Oh,well, if we find this in the Queensland police force that has ever been dismissed for fabricating evidence", he said on
the voir dire. Now, that was his perception of
that time some years ago - Detective Meskell.
So, really, it was not an effective sanction in
the eyes of the police at all, and yet this
impression is conveyed to the jury, and, of course,
it is in the context of saying nothing as to these records being unsigned, or the inherent
improbability, as it should be so viewed, of a
man saying, "Yes, I'll co-operate", happy-go-lucky record of interview No 1. Right at the end the only thing he will not do is sign, because,
"I want legal advice". Then, on to record of
interview ~o 2 in which there are copious
warnings that he did not have to say anything;
that it would be used against him as a matter of
law. To the end of that interview, "No, I won't
sign" - legal advice, and so on. Now, nothing
was put by the learned trial judge on that.
Furthermore, His Honour suggested that the record of interview contained a matter showing
esoteric knowledge and this is an important matter, in my respectful submission. At page 416,
line 20 - perhaps I could just mention the lines
above that. His Honour did direct - and this
really supports some of the submissions I have put - at line 16:

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MR PEEK (continuing):

There really is no evidence upon which

the accused can be convicted other than
the police evidence of the alleged
confessions at the apartment and at the

police station.

Now, I, of course, agree with that.	Then
His Honour goes on to say this:

Mr Cuthbertson said that there was the little point internal to the record of interview which might be of assistance

to you in deciding to accept beyond

reasonable doubt what the police say.

It is the education centre. You will

remember Mr Cuthbertson s point about

that. The man whose car was stolen says

he parked it in a car park of Satisfac

and the S.A. Institute of Teachers

Federation.	He worked at Satisfac and parked
his car there.	Mr Cuthbertson says a

man coming from another state in May and

stealing a car from there might in July

remember seeing something about teachers

outside the building and got education

centre into his head.

And, of course, he is alleged to have said something

about an education centre in the unsigned record of

interview:  · ·

Mr Cuthbertson made that point and also said that it would be a very funny thing

for Meskell to make up, very odd he should

hit on putting into a police confession that

the car was taken from an education centre

whereas a man who had taken it from somewhere
near the Teachers Federation, not knowing
Adelaide and being a bit vague about where he took it might have seen teachers and

got education centre in his head. That is

a point for you to reflect on.

But, of course, what was not put to the jury for

them to reflect onwas the detectives had very real

sources of knowledge as to that and everything else

that was in that record of interview. Now, the

point is that there had been this interview with

Lavery and Evans in May of that year and, of course,

I have already mentioned that it was Evans who

pleaded guilty to this very charge half-way through

the trial and Lavery who was found guilty. Now,

those persons, one of them may have been the person who took the car. Certainly, they would have know,

or may well have known as to where it was taken

A1Tl2/l/VH	27	22/8/88
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and they could well have been the source of that

and any other information. Now, it goes much

beyond that, because in passages - perhaps I can

just give the Court the page references - the

detectives had to concede a strong ?roximate

link between them and the persons who interviewed

Lavery and Evans. Now, it was, to start with, the

consorting squad based in Brisbane who had

interviewed some month before.

The Court will remember that two of these

detectives who went in, Edwards and McMullen, were
from that consorting squad. There was only one

consorting squad - it was in Brisbane. It was in
onebuilding in Brisbane, one office. A consorting
squad, of course, is a squad in which it is imperative

for people to be talking to each other, to keep tabs

on the movements of criminals and to keep each other

informed. The other thing was that the consorting

squad had arrested and interviewed those persons

with the assistance of the Burleigh Heads detectives,
but the Burleigh Heads detectives was the neighbouring

CIB branch to Broadbeach, from -which ~eskell and his cohorts were from, and it was only five miles away.

So you had both of those very very strong links.

Without taking the Court through the evidence -

I will perhaps give the page references - perhaps the most important one is Detective Foreman at page 332.

He was there asked as to whether he had information before he went to the units that day, that:

A man called Lavery and a man called Evans

had admitted to this robbery before the court.

He said:

I certainly knew that Lavery and Evans had been arrested sometime earlier, weeks earlier on the Gold Coast.

And then he asserted: 

I wasn't aware of the results of any interviews

that were conducted between police and Lavery

and Evans but I knew that those two had been

located.

He then said, at line 15, that they:

Were located in ..... the Burleighs Heads

C. I. B. branch and the Consorting Sqw. d

came down and had the assistance of the

Burleigh Heads detectives -

and that it was the neighbouring branch. At page 337,

those two police stations were four or five miles

apart and, questioned at line 11:

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Do you know who the police officers who

were dealing with the matter at Burleigh Heads

at that time?

A. Well,I would because there were only two

there at that time.

Q. It was through those men that you learnt

about Evans and Lavery or not.

A. Well, it would have been, yes.

Now, this is before going in and arresting the

applicant. Now, I am conscious that the Court does

not want me to read evidence, but I just wonder if cross-examination. Meskell, at pages 303 to 305;

then the two consorting squad officers, Edwards, at

page 374 and McMullen at page 350 to 352. But, of

course, it went beyond that because the Court will

remember that the applicant was arrested at about

6 o'clock. The first interview started about 9 o'clock.

There was a good daal of telephoning going on by these

officers before these interviews.

There was telephoning to Sydney and to Adelaide.

If I can once again just give the Court the page

refernces. McMullen, again, is perhaps the first one

to look at,	page 354; just a snippet there, if I may,
at 354:
Q.	When you first got back to the police

station after going to the units, when you

first got back, can you tell us what happened

to the accused?

A. From memory the accused was sitting in an open office and we made some inquiries.

Q. You phoned up places?

A.	Yes.
Q.	Did you do any phoning?
A.	I am sure I did.
Q.	What, phoned up New South Wales, Adelaide?
A.	And Brisbane.
Q.	Do you know if anyone phoned Adelaide?
Q.	I don't know who phoned Adelaide now.

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Adelaide and get some information?	Q. That was part of the plan, to phone
A. I assume it would have been.

And, indeed, Meskell confirms that he phoned Adelaide.

Of course, he was disposed, for obvious reasons. to

say that no, no, the infonnation in the interview was not given to

me in that phone call. Of course he said that, but,

of course, it was the defence contention that that

is a very real alternative also as to his source of

knowledge of that.

DAWSON J:  Mr Peek, apart from the police evidence and the evidence

of the man whose car was stolen, the Crown did attempt to call evidence to link the accused up, which was not

successful, as I have gather from my - - -

MR PEEK: That is right and, in fact, it led to a situation

where - - -

DAWSON J: Well, what was that evidence? Can you summarize

that for me?

MR PEEK: Well, it was as to two women who were associating

with three men and, of course, it was the Crown case

that theithree men were Evans, Lavery and the

applicant. However, those women were not prepared

to suggest that the applicant was the third man and,

indeed, if one looks at that evidence, at least one

of them positively protested that the police had

put in her statement things that she just really

was not saying, and she said so in court. So that

evidence was profoundly unsatisfactory and led to

a situation where His Honour the learned trial judge

did say, well now, look, at the end of the day, it

is really just the confession, that is all you have

got.

DA~Sl:l'FJ: That becomes a case very similar to WHITEHORN' s case,

does it not?

MR PEEK: It is not dissimilar to WHITEHORN and, in fact, I

have WHITEHORN here; I did not put it on the list,

but - - -

BRENNAN J:  Mr Peek, is it right to say that in the record

of interview that was taken allegedly from your

client that although the police, according to

what you have just been telling us, knew of the

existence of Lavery and Evans, the name of Lavery

and Evans did not appear?

MR PEEK:	No, it did not, but then again, it may well have
been in the police interest - and I am not sure of the reason why you put that to me - it may well be - - -

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BRENNAN J: The reason I put it is this: that you said earlier

that the police had ample information about all the

facts that are stated in the record of interview.

MR PEEK~ Well, I really said they had access, possible access,

to that information.

BRENNAN J: Possible access.

MR PEEK:  Yes.

BRENNAN J: And the significance of having possible access is

that nothing that was in it was inherently to be

accepted because it might explained by the police

having access to that information aliunde.

MR PEEK:	Yes, Your Honour.
BRENNAN J:	Now, the most significant thing, one would have thought, on that theory, if that theory is to be
looked at, are the names of the accomplices, known
to the police yet not in the record of interview.

MR PEEK: Well, that is one way of looking at it, but on the

other hand, as soon as those names were mentioned

the submission might be put, the detectives are

in fact putting those words in the defendant's

mouth. Better, perhaps on one theory by the police,
to suppress any reference to Evans and

Lavery whatsoever, keep that right out of the line of sight and then say that what is said in this

interview came entirely from the accused and we
did not know then very much about Evans and Lavery

and we were not told.

I mean, sure, one can decide, or think about how

best it would be to fabricate at interview - - -

BRENNAN J: Well, is this not all coming back to the question

that these are all questions of fact?

MR PEEK; Yes, but the - - -

BRENNAN J: What is the question of principle we are looking at?

MR PEEK: Well, the question of principle is, one, the proper

approach as to this fairness matter, whether it is

appropriate to decide whether the interview is made

and proceed there - from there to say it is not

unfair. I do submit that is a matter of principle.

And that, two, the question of the unsatisfactory

or unreliability matters going to such a case which

have been ventilated. That is two. And three, at

least the required directions in a case of a disputed

unsigned record of interview taken in unlawful

custody, what are the directions that should be given

by a trial judge in those cases? Particularly, when

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a trial judge decides to put forward so forcefully

arguments by the prosecution. This business about

careers at risk and putting a matter of esoteric

knowledge without directing as to the sources of

information. Now, of course, that is what happened

in CLELAND, that the appeal was allowed in CLELAND
because of exactly that; that the learned trial

judge there gave the jury to understand that the

only source of information as to a particular matter

was Cleland, when, in fact, there was another

possible source.

WILSON J:  Mr Peek,just so that I understand fully the

context in which you put the fairness argumentJ

you are not putting it in the context of the

unlawfulness of the custody, the BUNNING V CROSS

equation, are you?

MR PEEK: Certainly, as I have said before, I have mentioned

that.	I do not abandon that whatsoever.	I do put
that.

WILSON J:  But you are erecting a separate grom.d·. of unfairness

distinct from admissibility.

MR PEEK: Well, I approach it in that way - yes - I approach

it in that way because, in a confessional case, it

is my submission the true reading of CLELAND is

that those rules are not to be set at nought by a

BUNNING V CROSS sidewind, but that when you are looking

at a confessional situation the matter of fairness is

primarily to be looked at from the accused's point

of view as distinct from a balancing public policy.

In fact, His Honour has very much let the public

policy considerations impinge upon the fairness

discretion. So that is that matter and, secondly,

even on the BUNNING V CROSS approach, I submit that

the degree of unlawfulness and the way that the

police went about their business here should have

required a much more assiduous examination of

the BUNNING V CROSS principle.

WILSON J; Well, this might be a convenient time to adjourn.

How much longer would you expect your submission to

take?

MR PEEK:	Not a great deal, perhaps 15 or 20 minutes, if the
Court pleases.
WILSON J: Very well, The Court will adjourn now to resume at	10 o'clock tomorrow morning.

AT 5. 00 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 23 AUGUST 1988.

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