Em v The Queen
[2007] HCATrans 142
•19 April 2007
[2007] HCATrans 142
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S59 of 2007
B e t w e e n -
SOPHEAR EM
Applicant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 19 APRIL 2007, AT 10.19 AM
Copyright in the High Court of Australia
MR S.J. ODGERS, SC: May it please the Court, I appear for the appellant with my learned friend, MS A. FRANCIS. (instructed by Legal Aid Commission of NSW)
MR D.C. FREARSON, SC: May it please the Court, I appear for the respondent with my learned friend, MS J.A. GIRDHAM. (instructed by S.C. Kavanagh, Solicitor for Public Prosecutions)
GLEESON CJ: Yes, Mr Odgers.
MR ODGERS: Your Honours, I will go to the Evidence Act shortly, but can I just briefly refer to the narrative statement which is contained in our submissions, particularly at paragraph 11 on page 5. It is stated there that the finding of Justice James, that at the commencement of the conversation in the park the appellant’s belief that if the conversation was not recorded, evidence of it could not be used against him in criminal proceedings, was a belief he had formed independently of anything said or done by the police and it is said there that we are challenging that finding. In truth we are not. What we are submitting, and it is contained at paragraph 36, is that the police contributed to the continued existence of that belief, not that they had contributed or caused the formation of the belief, but rather that they had acted in a way which contributed to it continuing to exist. I will expand on that argument later, but I just wanted to clarify the precise nature of the submission that is being put.
KIRBY J: Do you rely on the fact that they met in the leafy, arboreous environment of a park?
MR ODGERS: Yes, we do. We say that that is one of the relevant circumstances pertaining to section 90(b) going to the apparent informality of the circumstances which in turn bore on ‑ ‑ ‑
KIRBY J: Informality, is it? It is the fact that it is, one would think, a non‑regular venue for a conversation between sworn police officers and an accused person.
MR ODGERS: Your Honour, as I hope is apparent from the written submissions, the precise focus of the appellant’s argument is that the police by their conduct both failed to correct the appellant’s mistaken assumption about the nature of what he was doing in the park, the consequences of what might happen from what he was saying, and tended to confirm that mistaken assumption. The focus of the argument is that one of the circumstances which related to that was the informality of the situation.
We are not advancing what I might call a section 138 public policy argument here. We have not below and we are not doing it here. We are not contending that the police acted improperly and therefore there are public policy reasons why the admission should have been excluded. It is rather that in looking at all the circumstances, including the circumstance that it was in an informal setting in a park when he is not under arrest, where he is repeatedly told he is not under arrest and is not being taken to the station, that that is one of the circumstances that goes to the question of whether or not it would be unfair to use his admissions against him.
KIRBY J: That concession that you just made, which I did read in your submissions, may be the answer to a matter that has been puzzling me. If one looks at this case historically with the background of McKinney and Judge and the long train of cases that preceded that, one could at least have some concern that the system instituted in New South Wales for the recording by sound and videotape of confessional statements by accused, could very easily be undone if police officers can just go along to parks and have conversations which are subsequently used. Now, does that come anywhere into your argument or is that to be put to one side because you are not challenging the public policy aspect of the matter?
MR ODGERS: I think it has to be put to one side. I understand that it may well impinge on the appeal to be heard tomorrow, but it is not something that we are seeking to ventilate here.
GLEESON CJ: I notice that on page 16 of your written submissions at line 10 you say:
It is accepted that the mere fact that a conversation is being secretly recorded is not sufficient for it to be “unfair” to a defendant to admit the recording into evidence.
Everybody who has discussed this subject seems to hasten to say that at the beginning. I am not suggesting that is wrong, but why not? A secret recording of a conversation almost always involves an implied misrepresentation, does it not?
MR ODGERS: Yes, it does.
GLEESON CJ: It always involves some kind of trickery unless it has occurred accidentally.
MR ODGERS: Yes, it does. It may be that in some circumstances it would be improper to so proceed and there may be public policy issues that arise, but the real question, as I said, which we are seeking to ventilate here is section 90 and the question of unfairness.
GLEESON CJ: But it seems to be common ground and indeed, as I say, everybody who discusses this subject seems to go out of their way to make the point that the trickery that is almost always involved in the secret recording of a conversation does not of itself make it unfair within section 90.
MR ODGERS: The answer that I am going to give, which may not be the complete answer, is that given that the focus of section 90 – and obviously I will come to it – is the unfairness of using any admissions as evidence against the person who was being questioned, it is difficult to see how there can be unfairness of that kind because there is an accurate record of what was said. That may be the real reason why the - - -
GLEESON CJ: Even though in most cases, or in many cases, the person would not have said it unless the person had been misled into believing the conversation was not being recorded.
MR ODGERS: Yes, I understand that. We have made the concession here and I am not going to resile from it. I can well understand why somebody might want to put a contrary argument. We have not. We do not need to in this case, we submit, but it may just involve ultimately a question of a judgment about what is unfair, and that is one of the issues that is going to have to be determined by this Court and what the applicable principles are in respect of that.
KIRBY J: Is it relevant in judging whether it is unfair to consider that it may be unfair both to this accused and to others? If this becomes the general standard, it will be destructive of the whole effort of the law over 20 years to try and get sound‑recorded formally‑taken confessional statements. We had the Tasmanian case and then we had a Western Australian case. We have another case, Carr, and we just have to be careful as a court that we do not go back to the bad old days before McKinney and Judge.
MR ODGERS: Your Honour, if we had been advancing a section 138 argument, there is no doubt whatsoever that those factors would be entirely pertinent to the balancing exercise that is required under that provision, but I am not contending that those considerations have any significant and probably no bearing on the section 90 exercise.
KIRBY J: You are probably lucky I was not on the special leave because this case assumes an element of the ethereal, as far as I am concerned. No doubt it was your citation of Miranda that got you up in the special leave.
MR ODGERS: Yes. I am sure that that was a very effective piece of advocacy. Your Honour, I hope I am not in the Tofilau situation of not advancing an argument and then trying to change my mind later, but certainly that is our situation, that we are relying on section 90 and not section 138.
I think I was going to page 5, paragraph 11. I have dealt with that point. If I could just also refer to paragraph 13, as is stated there Justice James, the trial judge, made no finding one way or the other as to whether or not the police officers were aware that the appellant believed that if the conversation was not recorded evidence of it could not be used against him. There is not doubt, and it was conceded, that the appellant did have that belief at the commencement of and throughout the entirety of the conversation at the park.
As I said, Justice James made no finding about whether the police adverted to that or were aware of it. However, in the Court of Criminal Appeal where it was argued that such a finding should be made, the court was prepared to determine the appeal on that assumption – I have referred to the relevant part of the judgment – and I do submit that it is a reasonable assumption or a reasonable conclusion. The police themselves believed, as they both testified, that if the conversation was not electronically recorded it could not be used in evidence and, in those circumstances, it is likely that they believed that the appellant had the same belief particularly since that would explain why he had been so emphatic on 24 April in refusing to speak to the police unless there was no electronic recording or written recording or recording in any way of what he said.
KIRBY J: That was recorded, his statements to that effect.
MR ODGERS: No, it was not recorded contemporaneously. What happened was that the police made notes after speaking to the appellant, some hours later, and there was no significant challenge at the trial to the essential accuracy of those notes, albeit with one relatively minor qualification that it was put that they had not precisely recorded something that had been said by the appellant in relation to what I will call the Logozzo offences, but put that to one side.
KIRBY J: It apparently does not arise in this case, but that would be another reason if you have been around for a long while to be concerned about this procedure because that used to be the way that the accused allegedly said to police officers, “I never make written statements to police. I never sign police statements”. That would be in the testimony.
MR ODGERS: Yes, I understand that, your Honour but, of course, this was a case where there was no dispute on the part of the defence as to the essential accuracy of what was said by both the police and the appellant at the police station on 24 April.
HEYDON J: This belief of the accused and of the police officers that the evidence could not be used unless it was recorded, that was quite correct, was it not?
MR ODGERS: Yes.
HEYDON J: Section 281 applied?
MR ODGERS: No, with respect. I am sorry, your Honour. It was not and, indeed, there was lengthy cross-examination of the police to try to challenge that, because - - -
HEYDON J: Why did not section 281 apply?
MR ODGERS: It did apply, but there was a reasonable excuse for the failure to electronically record. That is, he refused to allow it to be electronically recorded. So the short answer was that what he said thereafter was not excluded by 281. It may well have been excluded by section 90 because the police had agreed to him speaking off the record. That is on 24 April, but that was not an issue that needed to be resolved.
HEYDON J: But in the park - - -
MR ODGERS: In the park he - - -
HEYDON J: - - - why would not 281 apply?
MR ODGERS: Because it was electronically recorded subject to the argument tomorrow that - - -
HEYDON J: So their beliefs were correct?
MR ODGERS: Their belief – well, no, the police did not have that belief in the park. They knew it was being electronically recorded. Therefore, they knew that section 281 was being complied with.
HEYDON J: But they - - -
MR ODGERS: They believed that if it was not electronically recorded it was not admissible, full stop. That was - - -
HEYDON J: And that was correct.
MR ODGERS: That was correct as a general statement, though it was not correct on 24 April because there was a reasonable excuse, and it was not correct on 15 May because it was being recorded.
HEYDON J: I do not think I am going to get much further with this, but you accept - whether or not it was recorded on 15 May, the fact is it could not have been admitted unless there were a recording, the surreptitiously‑made recording.
MR ODGERS: Yes, I am sorry. That is correct. It had to be recorded.
KIRBY J: What is the provision that requires ordinarily the recording of confessional statements?
MR ODGERS: Section 281 of the Criminal Procedure Act.
GLEESON CJ: Do we have that?
MR ODGERS: No.
GLEESON CJ: It is not the case that ordinarily confessional statements have to be recorded, is it? Confessional statements might be made by one man to another over a drink in a hotel.
MR ODGERS: That is certainly correct, your Honour, but section 281 ‑ ‑ ‑
KIRBY J: In an interview situation.
MR ODGERS: - - - like the Western Australian provision you will be looking at tomorrow mandates – specifically says that:
(2)Evidence of an admission to which this section applies is not admissible unless -
and it applies in the case of serious offences, during official questioning, and so on.
GLEESON CJ: Yes, that is why I wanted to look at the actual section.
MR ODGERS: I have been kindly handed a copy of that provision by my friend and I will - - -
GLEESON CJ: Section 281 of the?
MR ODGERS: Criminal Procedure Act 1986 (NSW).
GLEESON CJ: Thank you.
KIRBY J: It may be a language problem, but I just do not understand what your client meant by saying that “I don’t want to look like a dickhead.”
MR ODGERS: I do not know what he meant by that, your Honour. Presumably, one possible interpretation is that he did not want to be an idiot who says things which are then used against him to prove his guilt in a criminal trial.
KIRBY J: That would imply that he knew that that was a risk of talking.
MR ODGERS: If one asks why he was so emphatic that he would not talk to the police on the record, to use language he was later recorded as saying, and in substance what he was demanding when he spoke to the police, and one asks why plausibly might he not want to be on the record, the most obvious inference that jumps out is a concern that he does not want to say something that can be used as evidence against him in a criminal trial. I accept that he did say the words, “I don’t want to look like a dickhead.” I do not know what they meant, your Honour. They could be interpreted in the way I have just put it but - - -
GLEESON CJ: We probably need to be fairly modest about our capacity to psychoanalyse somebody like Mr Em.
MR ODGERS: Yes, quite. At the moment I am putting an argument as to why this Court, as with the Court of Criminal Appeal, should proceed on the assumption that the police were aware that he believed that if what he said was not electronically recorded it could not be used in evidence against him. As I have said, the police had that belief. It is likely therefore that they believed he had the same belief. His refusal to go on the record on 24 April certainly supported that conclusion. He was recorded after he left the police station on 24 April in a listening device as referring to what he had said to the police as being “off the record”. It is difficult to know what that means other than that it is something that cannot be used as evidence in a criminal trial, that that seems to be the natural meaning of those words.
In combination, it is our submission, that it is a reasonable conclusion that the police were aware of that belief on the part of the appellant but we have not challenged, in paragraph 12 – I reaffirm it – we have not challenged the finding that they did not intentionally set out to induce such a belief. What we are contending is that, even though the judge did not look at the question one way or the other, it should be accepted that they were at least aware of his pre-existing belief to that effect.
KIRBY J: So taking into a park is completely neutral. It is not done in order to lull a person into belief that this is a very informal, off the record, secret, private conversation.
MR ODGERS: Your Honour, one may have one’s suspicions that the police did have such an intention. We are not trying here to challenge the factual finding that they did not have that intention. That was the factual finding made by the trial judge – sorry, I do apologise. Of course, a finding was made that during the conversation they formed the intention but the judge did not make any finding of such an intention up to that point and we do not seek to challenge it. Perhaps I should withdraw what I have said to some extent.
We have not challenged the proposition that they set out to induce a belief because that is precisely what the trial judge found. We are contending that what they did did in fact tend to confirm such a belief both before the commencement of the conversation at the park and thereafter and we would go so far as to contend that it is not inconsistent with the judge’s finding that one could reasonably infer that they intended to confirm his belief.
Now, it may be that I am splitting hairs here and that your Honours would not think that there is a meaningful distinction between intending to induce a belief and intending to confirm a pre-existing belief. If your Honours find that a distinction which is not a meaningful one we do not place great reliance on any such conclusion. The essence of our argument is that the courts below were too focused on the question of the police officers’ intentions and should have looked much more carefully at the effect of the circumstances on the appellant and the failure of the police to correct his mistaken assumptions when they, themselves, knew of the existence of that mistaken assumption.
HAYNE J: Do we begin consideration of the issues arising under section 90 from the premise that that part of the statutory law of New South Wales which regulates reception of admissions by suspects, namely section 281, has been satisfied?
MR ODGERS: Yes.
HAYNE J: So that the statutory law directed to the question of the form in which the results of official questioning may be tendered in evidence are satisfied?
MR ODGERS: Yes.
HAYNE J: Which then leads to the further question of what is the particular content that you are giving to the word “unfair” in this case, that is, expressed as a matter of principle, not by reference to the particular facts of the case, but what is the principle that you say is engaged by the use of the word “unfair”.
MR ODGERS: I will come to that shortly because, of course, that is one of the key matters I have to address and I will soon get to that.
GUMMOW J: It is the only question. That is why you are here.
MR ODGERS: I understand, of course it is the only question, and I am about to get to it.
GUMMOW J: The sooner we reach it the better. Common…..always wants to talk about the particular circumstances of the case. To ascend into principle is like climbing Everest.
HAYNE J: North Cole lies before you, Mr Odgers, and the summit is there. Tell us what is up there.
MR ODGERS: Yes, your Honour.
KIRBY J: This is Last Year in Marienbad because all of this was said in the special leave application. You were confronted with this accusation.
MR ODGERS: Yes, I have this great sense of deja vu, your Honours.
GUMMOW J: So do I.
MR ODGERS: As I said at the beginning, I would be going shortly to section 90 and I will be. I just wanted to deal very quickly with two factual matters which needed to be dealt with and I will be very shortly getting to section 90. Can I just say in respect of the question that is asked though, particularly in the context of section 281, I know the comparable provision in Western Australia will be the subject of argument tomorrow, but certainly one view of that kind of provision is that it is aimed at ensuring the accuracy or reliability of the evidence of what was said by the accused. That, with respect, is not an issue really that arises in respect of section 90. Section 90 is not concerned so much, or perhaps not at all, with the reliability of the evidence of the admission. It is concerned with the fairness of admitting the admission itself, essentially on the assumption that it was made. Indeed, the judge is required to assume that for the purposes of the Evidence Act.
HAYNE J: Since we are delayed in getting to the summit, Mr Odgers, you will build into your answer then this consideration. You accept, do you not, that the provision of the relevant statute governing when a caution is to be administered was not engaged? Section 139 of the Evidence Act was not engaged because the person being interviewed was not under arrest.
MR ODGERS: Yes.
HAYNE J: So we have got two provisions of the statute law, neither of which is engaged.
MR ODGERS: Correct.
HAYNE J: I wait with bated breath.
MR ODGERS: Well, your Honour, that is one of the reasons why we are not here to argue about section 138, because 139 is a provision which defines “impropriety” for the purposes of section 138, a particular form of impropriety for the purposes of 138 and, as I say, that is not something that has any real significance in respect of section 90 and, of course, that is what I should go to.
If I can take you to that provision, we have advanced written submissions in respect of the meaning of that provision. I do not really have anything to add to what I have said we have submitted at paragraphs 19 and 20 of the written submissions as to what can be understood from the – well, first paragraph 19 is making some general statements which we do not understand to be controversial which do not answer your Honour’s question but I will come to it. Section 20 points to some aspects of the wording, the words of section 90, and I do not propose to add anything to what is written there unless your Honours want to query something I have written.
HAYNE J: Mr Odgers, can I say this to you? Can you point to where in the written submissions you identify the principle that represents the particular application of the concept of unfairness that is engaged in this matter?
MR ODGERS: Yes.
HAYNE J: I read the submissions as saying this is hard, the word is very broad. Where do I get to the whodunit?
MR ODGERS: I think it is true to say that there is no particular paragraph or sentence in the submissions where that is dealt out and what I will do right now is attempt to do so.
HEYDON J: Mr Odgers, just before that, did you say that if there is anything in paragraph 20 anyone disagrees with, they should say so?
MR ODGERS: Yes.
HEYDON J: I have a significant question over the last eight lines or so. You really say that once the conditions are satisfied then the Court must either refuse to admit the evidence or refuse to admit the evidence to prove a particular fact, but cannot allow the evidence in. There is no third possibility.
MR ODGERS: The latter option, “may refuse to admit the evidence to prove a particular fact,” means it comes in. What happens is that the judge directs the jury in some way in respect of how they can and cannot use it. In fact must give them direction. It cannot be used in some particular way. So it comes in, but, if it is a jury trial, the judge would have to give an appropriate direction of the sort referred to.
HEYDON J: You say that if the section were to mean something different from your submission, it should have had a third phrase, “or allow the evidence”.
MR ODGERS: Yes.
HEYDON J: I am not saying that is not powerful, but that is all you want to say about that.
MR ODGERS: Yes, that is all ‑ ‑ ‑
HEYDON J: Nor is it really decisive in this case, is it?
MR ODGERS: It is not.
HEYDON J: No.
MR ODGERS: It is not because in this case, as I think I have tried to make clear, both the trial judge and the Court of Criminal Appeal were focusing on section 90(b) and did not get to the preliminary words. They did not need to.
HEYDON J: You say you win on unfairness and the Crown says you do not win on unfairness, but that is the parameter of controversy?
MR ODGERS: Yes. Back to my mountain climbing, your Honours, in this case fairness or unfairness of the type referred to in section 90(b) arises from a series of circumstances, which I will spell out in a moment, but in essence comes down to the following proposition, that the – perhaps I should put it this way, that in circumstances where the appellant incorrectly assumed that what he said could not be used in evidence against him, it would be unfair to allow the State or the Crown to use what he said as evidence against him in circumstances where the police who are questioning him failed to correct his incorrect assumption and engaged in conduct that would have tended to confirm his incorrect assumption. So to use language from another area of the law it would be unconscionable to allow the State to use what he said as evidence against him in those circumstances.
HEYDON J: Why?
MR ODGERS: Because he is labouring under an incorrect assumption as to whether it can be used in evidence against him. He believes it cannot be. The police are or should be aware that he is labouring under that mistaken assumption. They deliberately choose not to correct it by cautioning him about it and they engage in conduct which, in all the circumstances, would have had the effect of confirming that pre-existing belief.
GLEESON CJ: What is the difference between that and the case where the incorrect assumption is an assumption that what is being said is not being recorded?
MR ODGERS: Because there is a big difference between the situation where you believe it is not being recorded and where you believe it cannot be used as evidence against you.
GLEESON CJ: What is the difference?
MR ODGERS: The difference is - the first is that you are not aware that there is going to be an accurate record of what is said. When you do not know it is being electronically recorded, putting to one side the question of whether it can be used as evidence, if all you believe is it is not being electronically recorded, you would in those circumstances assume that the police could go along and give oral evidence about what was said. It just would not be evidence of what was said which was in electronic form.
GLEESON CJ: But you might or might not think that matter through. The sort of people that we are dealing with here are not people who draw distinctions between matters of fact and matters of law or who think logically through. In this conversation that we are talking about, for example, your client says he was trying to trick the police.
MR ODGERS: Yes.
GLEESON CJ: You say in your written submissions on page 16:
that the mere fact that a conversation is being secretly recorded is not sufficient for it to be “unfair” to a defendant to admit the recording into evidence -
But in almost every such case there will be trickery involved and an incorrect assumption on the part of the person who is being spoken to which is being usually deliberately contributed to by the conduct of the police.
MR ODGERS: Yes. If that translated into a belief that it could not be used in evidence then we would say that that is this case and the consequences of unfairness flow. But if the emphasis is on the word “merely”, the “mere fact” that you believe that it is not being recorded does not have the impact in terms of unfairness that a belief that it cannot be used in evidence has because in one situation where it is not electronically recorded, all that happens is that you believe that the police can give oral evidence of what you have said, evidence of your admissions will get before a court. There may be an argument you can advance as to the unreliability of those admissions which in fact may be of benefit to you, a limited benefit, but it is a very different thing from believing it cannot be used as evidence. One reason that it is different is that if you believe it cannot be used in evidence, a very significant factor in exercising your right to silence is missing.
GLEESON CJ: That sounds like a very plausible account of the sort of things that might go on inside your head if you were being interviewed by a police officer. I am not so sure about the majority of members of the class of suspects.
MR ODGERS: It comes back to what I have been asked and challenged about, what causes unfairness. The difficulty is in attempting to isolate when something becomes unfair. Because it has not been necessary for me to contend that a mistake or a trick about electronic recording is sufficient, I have not put that argument and I am really in a way arguing against myself because I am putting an argument that it is distinguishable from the situation where you believe it cannot be used as evidence, but I put the proposition as clearly as I can. I do not know that I can provide a better explanation than what I have provided.
HAYNE J: It puts me in mind of altogether a different field of discourse which is unilateral mistake in contract, Mr Odgers. It seems to me that the proposition you are putting is not unlike that in Taylor v Johnson 151 CLR 422 at 432 where the proposition is put that:
a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension.
Now, it is a rather large step to take to go from principles about voluntary assumption of obligations in bargains to propositions about unfair, but in essence that is what you are doing, is it not, saying the police do not disabuse this man of his belief, therefore it is unfair?
MR ODGERS: I have said that that is one basis of unfairness. I have also said that they acted in a way which tended to confirm his belief. But putting that to one side, I use the term “unconscionable”. Your Honours are far more expert in these areas than I am but, as I understand unconscionability, if a person is under a situation or disability which might be a lack of important information or a significant mistake as to the factual situation and the other party is aware of that or should have been aware of it, then it may be unconscionable to allow that party to take advantage of the person’s mistake.
GLEESON CJ: But this is the problem. The police take advantage of the ignorance or the stupidity or the bravado of suspected persons every day of the week.
MR ODGERS: Yes, quite, but I have expressed the argument in terms of the State taking advantage of his belief it could not be used as evidence in circumstances where he certainly would not have spoken if he had been aware that it could be used as evidence to ‑ ‑ ‑
HAYNE J: But that is so with every piece of listening device evidence that is ever received. The person who is taped does not know it is happening, thinks it is not happening.
MR ODGERS: Your Honours, a person does not know that. He does not know that the person he is speaking to might not end up in court giving evidence against him. He does not know that. Indeed, that is often said to be one of the significant distinctions between undercover questioning or undercover conversations and conversations with the police.
HAYNE J: It brings you to this, does it not, that an element of the unfairness lies in the failure to disabuse him of his belief?
MR ODGERS: We say that that is an important element, not the sole one. Another one is the combination of circumstances which tended to confirm the belief.
HAYNE J: How does that sit with section 139 which says in these circumstances you have to tell this man that what he says may be used in evidence?
MR ODGERS: Your Honour, I am not in public policy territory but, in essence, 139 reflects the common law position and essentially the judges’ rules and the judges’ rules were, in essence, an attempt to give guidance to the police as to the circumstances where, in general, if they failed to comply with these requirements, unofficial non-legal requirements, that the evidence may well be excluded. It is a general guidance provision. Section 139 is a general provision which applies to all cases and says that it would be assumed to be or be treated as improper, it will not necessarily result in exclusion, if you do not provide the caution in these circumstances.
Section 90 is dealing with a separate question. It is not dealing with giving guidance to the police or determining what is proper or improper. It is determining whether or not, in all the circumstances in which the admission was made, it would be unfair to admit it and, with respect, section 139 has nothing to do with that question. It is not a question about impropriety or public policy, although we would contend that it could be said that in all the circumstances of this case it was improper for the police to choose to leave out the second part of the caution, but we do not need to make that submission because, in truth, as indeed was said in Lee, the question is not whether the police acted properly or improperly. The question is whether it would be unfair to admit the admission in the circumstances in which it was made.
KIRBY J: Can I explain why I said earlier that the case, as you present it, takes on an element of the ethereal, because we are not here sitting in order to clarify the meaning of section 90 of the Evidence Act disjoined from a case. I may be wrong, but I assume that the reason why you have not pursued the public policy section 138 point is because that came up on the line of Justice Shaw’s decision. Justice Shaw’s decision went to the Court of Criminal Appeal. That was determined against you and that you have treated as the end of the road. But one would normally look at this matter in a trial and in a criminal appeal with the benefit both of section 90 and section 138. We instead are being asked in this case, unlike other cases, to be disjoining the public policy issue and simply looking at the unfairness where it seems, with respect to you, that you have a lot of problems with the unfairness which may not exist, at least in my mind, in the public policy point.
MR ODGERS: I have to live with that.
KIRBY J: We have to deal with grounds of appeal. You raise grounds of appeal and you may be hell bent on having section 90 of the Evidence Act clarified, but behind all this is a person who has been convicted of the most serious crime in the book and is sentenced accordingly and I just feel a disquiet about dealing with the matter on one element only of a package deal in the legislation on evidence.
MR ODGERS: Yes, I understand that, your Honour. It is not really pertinent for me to explain why we are conducting it this way we are, but I will just say two things: One, there is a real problem with section 139. It was not breached. There was no general obligation under 139 to give a caution and therefore impropriety in that sense was not engaged for the purposes of 138. But, secondly, 138 imports a whole range of considerations relating to balancing exercise, the probative value of the evidence and various other matters, whether or not the police acted intentionally or recklessly, improperly, and there were factual findings against us in that respect. We say, the fact of the matter is, your Honour, if we cannot succeed on section 90, it is hard to see how we could possibly succeed on section 138.
HEYDON J: Every factor listed in subsection (3), or nearly all of them, seems to be against you.
MR ODGERS: That is one view of it.
HEYDON J: No doubt you could argue to the contrary on some of them. Could I just ask you this. What is the general view of the criminal Bar as to the status of the Judges Rules now amid all these provisions?
MR ODGERS: Your Honours, in the appeal book you will see that there is a Code of Practice in volume 2, which begins at 767, and this is a document prepared by the New South Wales police and given to the New South Wales police and is a much expanded version of the Judges Rules. Obviously there is a great deal in there which extends beyond the Judges Rules but the view is that if there has been a breach of that Code of Practice that may be a basis for an argument under 138 in that the police have acted improperly, quite apart from section 90.
HEYDON J: I suppose there is no general Lee type discretion left, is there, because you have sections 138, 135, 137, 90.
MR ODGERS: Section 90 is ‑ ‑ ‑
HEYDON J: Is intended to reflect Lee.
MR ODGERS: Is intended at least to reflect Lee. What its precise parameters are is one of the issues before this Court but there is no doubt that the Law Reform Commission intended that they called it the Lee discretion.
GLEESON CJ: It is fair to say, is it not, that like section 281 of the Criminal Procedure Act, the Judges Rules only ever dealt with a very narrow area of what I might call possible encounters between officers of police and people who later came to be charged with criminal offences?
MR ODGERS: Yes, and that is pertinent to what I was putting before, that section 139 and the common law Judges Rules are designed to provide guidance in some situations as to how the police should proceed to avoid exclusion of the evidence in an attempt to reduce the risk of exclusion, but that is in a sense putting the cart before the horse because the issue today is, putting that guidance to one side and looking at the circumstances of this case, was there relevant unfairness.
GLEESON CJ: I presume that in England the Judges Rules have been overtaken by the Police and Criminal Evidence Act.
MR ODGERS: That is my understanding, yes. I will come back to say something in response to Justice Hayne in a moment but can I just say in respect of that that in paragraph 23 we have not taken your Honours to English law or Canadian law or other jurisdictions and I understand that your Honours might have found that a little surprising, particularly in respect of the United Kingdom because section 78 of the Police and Criminal Evidence Act has some similarity to section 90. Without going into detail, we say that there are very significant differences in the precise wording of that provision and its statutory context and that in those circumstances it provides really no assistance to this Court when looking at section 90.
Going back to Justice Hayne, one argument we have put about unfairness is to call in aid concepts which might be seen to involve equitable notions of unconscionability and I have put that argument. But just looking in terms of contract, in terms of agreement, there is certainly an argument that we advance, a submission we advance, that you can see unfairness in this case in those terms as well. The situation was that this appellant set the terms of his dealings with the police on 24 April.
He said to them, “I am not going to talk to you unless it is not recorded at all and cannot be used” – in substance – “as evidence against me”. The police agreed to that. They said, “Okay. Well, we will continue to ask you questions off the record, we won’t record it, we won’t use an electronic tape recorder, we won’t make notes.” He then said a number of things. Indeed he made full confessions about the Kress offences. When he asked them whether they were wearing a wire, they said, “Look, you will just have to trust us”. So he has said to them, “I will talk to you on these conditions,” and they have agreed to those conditions. They have then released him without charge, even though he has made full confessions about the Kress offences, thereby demonstrating their continuing agreement with the terms of his dealings with them.
My submission that looked at from that point of view, if the police were intending to alter the terms of those dealings or the State wishes to be permitted to act in conflict or in breach of those terms, it needed to be made very clear to him on 15 May that the terms had changed.
KIRBY J: Where do you state most clearly what you contend is the meaning of “unfairness” in section 90 and the matters of fact that you rely on to combine to prove it?
MR ODGERS: Your Honour, the reason why the written submissions do not contain a clear statement is that you cannot give a clear and comprehensive statement of what “unfairness” means in section 90. It is expressed ‑ ‑ ‑
KIRBY J: There must be what the ALRC said.
MR ODGERS: No, your Honour. Well, sorry, with one respect it does - the only example that the Law Reform Commission gives – and I will take you to it in a moment – is incorrect assumptions made by a suspect, and that is pertinent to this case, but there is no doubt whatsoever that fairness can extend beyond that. It can arise where the police engage in highly coercive conduct designed to overcome the exercise of the right to silence. There can be no doubt that that could be relevant unfairness. It could be relevant unfairness that the police engage in conduct which is likely to cause an unreliable admission.
GLEESON CJ: What about a case where the police say to an accused person, “We have an eyewitness who saw you do this. You might as well own up to it” and the police are not telling the truth?
MR ODGERS: Yes. That could well be a case and it would fall within the rubric of what I might call fraud.
HEYDON J: That would be 138(2)(b).
MR ODGERS: Well, no, your Honour, but it would also be relevant to section 90. Yes, your Honour is quite correct, but it would also be something which would impact on section 90. How? Because, if I might use language from a different area of discourse, it involved fraudulent conduct on the part of the police, not just an incorrect assumption made by the suspect as a result of a deliberately – sorry – per se, but an incorrect assumption which he had been led to believe by a deliberate fraudulent act on the part of the police and that could be as regarded as unfair and, using discourse from other areas of the law, both common law and equity, one would have no great difficulty in concluding that it would be unfair in those circumstances ‑ ‑ ‑
GLEESON CJ: What if the police had said, “You might as well own up. We know you did it”?
MR ODGERS: It is hard to see how that would be unfair, but it might be. I am hesitating because I am ‑ ‑ ‑
GLEESON CJ: The fundamental problem is that police trick and deceive suspected people in a wide variety of ways and the community expects them to do so.
MR ODGERS: Yes, and it is the responsibility of this Court to determine, applying your Honours’ understanding of the values of the community today, where the line of fairness is crossed. It is left in that deliberately vague way to allow the courts to determine how changing social values – they may change over time – operate in the circumstance of a particular case. It is left deliberately vague because you cannot predict all the circumstances that arise.
GLEESON CJ: For my part I would have thought you are right about that; it is deliberately vague.
MR ODGERS: What I have been saying to your Honours is that the reason there is no clear and comprehensive statement of what it means in these provisions is because you cannot. All you can do is say that there are a number of kinds of circumstance or categories of circumstance which may well produce relevant unfairness.
GLEESON CJ: What is the relationship between this deliberately vague concept of “unfairness” in section 90 and the more precise concept of “unreliability”?
MR ODGERS: There is no doubt that under the common law discretion it was a very relevant factor that the police had engaged in conduct which made it likely or created a significant risk that an admission would be unreliable.
GLEESON CJ: That is one form of unfairness.
MR ODGERS: That is one form of unfairness. It is a form of unfairness that still exists under section 90 but it is unlikely to have much practical play because of the existence of section 85. It is because of the existence of section 85 and the finding of the judge in this case that we have not attempted to advance reliability arguments or concerns as a basis for section 90 exclusion.
HAYNE J: Would not 85 have been engaged if there were a reliability issue?
MR ODGERS: Yes. I did refer to that a moment ago, your Honour.
HEYDON J: But we have to be clear about this. There was no reliability problem because the recording was working. What was said was clearly said.
MR ODGERS: No, your Honour, with respect ‑ ‑ ‑
HEYDON J: But you do have a reliability point, do you not, in relation to the reliability of your client as a speaker as to the past ‑ ‑ ‑
MR ODGERS: I need to be very clear. We do have a reliability point and we rely on that heavily in respect of the final ground of appeal before this Court. However, one of the practical difficulties we have in respect of section 90 is that a number of the matters that found the reliability point were advanced in evidence given by the accused during the trial and were not before the trial judge on the voir dire to determine the admissibility or exclusion of the evidence.
We have a secondary problem, which is that the judge made a finding that the evidence was not admissible by reason of section 85. That does not end the issue of reliability. Just because the evidence is not admissible for that reason does not mean that, for example, you might say that it is likely to be reliable. That is a different thing. It may well be that there is a real risk that it is unreliable, even though it is not excluded by reason of 85. Given the combination of the fact that the accused did not testify before the trial judge and the point I have just made, we are not here today relying on a reliability argument as a basis for section 90 exclusion.
I think I was making an argument based on agreement and we submit that that is another way of looking at the question of unfairness, importing what are at the end of the day legal formulations of fairness in different contexts. Law of contract is a subset of what is fair and what is unfair. Unconscionability is similarly a subset of the very same concepts. We say that it is not necessary for there to be fraud. In this context we have contended that we do not need to show House error, but if we did, the critical error that we say is made by both the trial judge and the Court of Criminal Appeal is to look to the intention of the police and to exclude where the police intended to create a mistake or mislead the appellant as to the consequences of speaking.
We say that there is no such need for fraudulent conduct on the part of the police, that unfairness can arise in the absence of fraud and that both the trial judge and the Court of Criminal Appeal engaged in an unduly narrow approach to fairness within the terms of section 90. When one looks at it in terms of unconscionability or in terms of the agreement as to how the questioning was to proceed, which had been set on 24 April, in those ways one can see that there is unfairness in allowing in what the appellant said on 15 May at the park.
HEYDON J: One factor we have to weigh is this, is it not, if you are content with this finding? On page 167 of volume 1, paragraph 125 Justice James made a finding “that the accused understood that he did not have to say anything to the police”. You do not challenge that?
MR ODGERS: No, absolutely not.
HEYDON J: That rather narrows down the extent to which your client’s choice to speak or not is affected, does it not?
MR ODGERS: Well, your Honour, this is an unusual case relatively where the focus is on the consequences of speaking. It is well understood that a right to do something needs to be understood in terms of your informed waiver. If you are completely mistaken as to the consequences of waiving your right, that then impacts on your ability to exercise the right in a meaningful way. As we will see, the Law Reform Commission understood that that was an important issue which section 90 was directed towards and, indeed, that unfortunate reference to Miranda v Arizona was only for the purpose of highlighting that a function of the second part of the caution is to ensure that any person who is being questioned is aware of the consequences of speaking.
So in this case the area of discourse is where the police have used techniques to get a suspect to waive his right to silence to speak and whether or not unfairness arises, not just where he is not aware of the consequences of speaking – of course, he may be aware of some consequences – but not aware of the critical consequences that it can be used in evidence against him.
GLEESON CJ: Does that not apply to any case of electronic surveillance? Any time there is an authorised telephone tap what is happening is that from one point of view the suspect is waiving his right to silence by being deceived by the police and the authorities, often with the connivance of a judge who has authorised the telephone tap, into saying things in circumstances where he otherwise would have kept silent.
MR ODGERS: But he is not. It is not a situation where he has really turned his mind to whether or not he is going to speak or not in terms of whether or not what he says might be used in evidence ‑ ‑ ‑
GLEESON CJ: He has been deprived of that opportunity. The secrecy of the surveillance deprives him of the opportunity to even consider the exercise of his right to silence, and yet that is what judges authorise regularly.
MR ODGERS: I understand that. Fortunately I do not need to get into that issue, your Honour. I am very hesitant to make submissions about whether or not there is relevant unfairness in that situation. I can see arguments both ways and fortunately I do not need to ‑ ‑ ‑
GLEESON CJ: Well, it is just that if we have to state a principle we have to bear in mind what goes on.
MR ODGERS: Of course. I understand that. But the principle here relates to the circumstances of this case and the question is, in the circumstances of this case, would it be unfair to admit? One looks at all the circumstances and we say that putting them in combination there is unfairness because of what I have been saying. That does not necessarily mean that there would be unfairness in the kinds of circumstances that your Honour is referring to.
KIRBY J: Where is the error in the approach of the Court of Criminal Appeal who appear to have reached a conclusion which is uncongenial to you, but dealt with the matter in much the way that you are suggesting?
MR ODGERS: The court at paragraph 76 in the judgment at 1160 essentially concluded that since the police were not responsible for the formation of the accused’s belief, for the formation of his mistake, that was the end of it.
KIRBY J: As I understand it, you contest that as a matter of fact and you say that because they did not give the second part of the warning ‑ ‑ ‑
MR ODGERS: No, your Honour. I do not contest it. Earlier in the judgment Justice Giles drew a distinction between failing to correct and confirming and - perhaps I am not disagreeing with your Honour. Plainly, his Honour and the court took the view that in circumstances where all that happened was that the police failed to correct his mistake, if they had not caused it, that there was no relevant unfairness.
KIRBY J: Was it not suggested at the trial that the very reason why the police did not give the second element of the warning ‑ ‑ ‑
MR ODGERS: Yes.
KIRBY J: ‑ ‑ ‑ was because they believed that might alert the accused to the fact that he was being the subject of a recording?
MR ODGERS: It was accepted. It was accepted and there was no dispute. Indeed the police gave us the reason for not giving the second part of the caution that they did not want him to be aware that he was being electronically recorded. But there was a separate question about whether they intended him to believe that what he said could not be used in evidence, and the police denied that they had intended to inculcate that belief and the trial judge rejected that evidence as it pertained to what happened at page 25 of the transcript. At that point the judge found that they did set out intentionally to induce a belief that what was said could not be used in evidence against him and from that point on what was said was excluded.
The issue before the Court of Criminal Appeal is whether or not what had been said prior to that should be excluded in circumstances where the judge had made no finding that they had set out to induce such a belief. The argument before the Court of Criminal Appeal was, and it is very similar in essence to the argument that I have put today, which is that it is unfair where the police deliberately fail to correct his mistaken belief for no good reason, and I can expand on that in a moment, and it is certainly unfair where their whole conduct confirms a pre-existing belief and that all this has to be understood in the context of what happened on 24 April and I have put an argument about that and I will expand on it in a moment.
The Court of Criminal Appeal rejected those propositions and, we say, took an unduly narrow view to the concept of fairness because they rejected the view that there is unfairness because you failed to correct the mistaken assumption for no good reason and they rejected the view that the conduct of the police tended to confirm – I am sorry, they did not reject it but they said that since the police were not responsible for the belief, presumably a reference to the formation of the belief, that there was no relevant unfairness and we say that that unduly narrows the approach to fairness which should focus on looking at all the circumstances and seeing if what the police had done tended to confirm the existence of the pre‑existing belief.
KIRBY J: In your submission, does the question of fairness invite attention to the fact that the material revealed by your client did tend to inculpate him in the offence and that, therefore, that served the fairness of the community in having a person who is guilty of an offence so reveal before the jury?
MR ODGERS: No, it is not relevant to section 90.
GUMMOW J: …..fair to a defendant.
MR ODGERS: Yes.
GLEESON CJ: To use it, that is to tender it in evidence. It is the unfairness of the use that is focused on in section 90.
MR ODGERS: Yes, then that may be contrary to what I have just put to your Honour Justice Kirby, but the focus is on the use, in essence, against the defendant.
GLEESON CJ: Use as evidence.
MR ODGERS: Yes.
GLEESON CJ: As somebody has pointed out in another context – I think it might have been Justice Giles in his reasons in this case on your second round of appeal, the warning aspect of it – even if an inculpatory statement made to a police officer is made in circumstances where it cannot be used in evidence, it can be used in many other ways to the disadvantage of the person who is making it.
MR ODGERS: Yes, that is true but that does not negate the proposition that the most serious potential use is that it can be used to end up locking you in gaol for many, many years. I am not sure if I fully answered your Honour Justice Kirby’s question.
KIRBY J: I am not sure either. I am still back there at the fundamental problem I have with the scheme of the Act which seems to, by section 90, concentrate on the impact on the accused and, by section 138, concentrate on the impact on the public but they are intended to work in tandem and harmony with each other. I just find it awkward to deal with this case without having both matters subject to consideration.
MR ODGERS: I have taken your Honours to paragraphs 19 and 20 to the wording of the provision. In what follows I refer to the legislative context. I do not think there is much that is controversial in paragraph 21 but, of course, in understanding section 90 one has to be aware that you have sections 84, 85, 137 and 138 and they are relevant to the proper interpretation or construction of section 90. Section 84 is a provision which deals with violent and oppressive conduct and does not ‑ ‑ ‑
GUMMOW J: Not confined to criminal proceedings.
MR ODGERS: Not confined to criminal proceedings, but perhaps more importantly, does not import the voluntariness doctrine into the Act. The Law Reform Commission determined that it was not appropriate to retain the voluntariness rule and section 84 certainly does not do that and that may be relevant to the proper interpretation of section 90 because it may be that section 90 has more work to do than might exist with respect to the fairness discretion at common law where you do have a voluntariness rule which has to be heard or which has to be jumped before you come to consider questions of fairness.
Section 85, as I have said, is a rather difficult provision to precisely delimit, but it is enough to say here that it is a provision concerned with the reliability of admissions and that also has relevance for the scope of section 90. Plainly enough, section 90 is not purely about a liability. You would not have it if it was only focused on the reliability of admissions because you have got section 85. It may be that issues of reliability have less practical impact in respect of section 90 because of the existence of section 85, as I have said before.
Section 137 I do not need to take you to. That is a different aspect of unfairness. Section 138, I do not need to say any more about that than what I have. What I do want to take your Honours to is what the Law Reform Commission said.
KIRBY J: Have any decisions been made on section 90 that have elaborated what “unfairness” means in the context?
MR ODGERS: Your Honours, yes, there have been some New South Wales decisions and, without taking your Honours to those decisions, there is no doubt that the courts have been very heavily influenced by what this Court said in Swaffield and Pavic and I will go to that myself in a moment.
KIRBY J: That was pre‑Evidence Act though, was it not?
MR ODGERS: No, it was a non‑Evidence Act jurisdiction and therefore was dealing with the common law position and there was some reference in those judgments to the Evidence Act and that is why I will take you to it. But there is no doubt, and not surprisingly there is no doubt, that what this Court has said regarding the common law fairness discretion, if I might use that language, is of assistance to the interpretation of section 90 because the Law Reform Commission, as I will take you to in a moment, certainly intended that section 90 would to a large extent import the kinds of considerations which the common law discretion permits.
I am not saying that it is precisely the same as the common law. You have to give meaning to the statutory words. I am not contending that the common law and section 90 are identical, but they obviously have considerable similarities and what this Court has held as to the common law is of some assistance in the proper application of section 90.
HAYNE J: In considering section 90, would any provision other than section 90 be engaged in a case where, for whatever reason, a person being interviewed by police believed that he or she was bound to answer police questions, the police knew that the person held that belief and the police did not disabuse them of that? Is there any provision other than 90?
MR ODGERS: I am assuming we are not in a 139 situation.
HAYNE J: Yes.
MR ODGERS: Yes, and we are not in a situation where it could be said to be applying the police instructions or the Lee or the Judges Rules or anything like that, that it could said to be as a general proposition improper to fail to caution. If that is the situation then, no, section 90 is the provision which would appear to be the only relevant one, unless there was some argument about unreliability which might bear on section 85, but it is unlikely that that would be the case.
HAYNE J: Thus it comes in the present case to it is unfair to use this in evidence because he believed it could not be. The police did not disabuse him of that belief and you go the further step of saying and what is more, reinforced it.
MR ODGERS: Yes. In substance, yes.
GLEESON CJ: Mr Odgers, just before we leave unreliability, I realise you say that in most cases that will fall to be dealt with under section 85, but is reliability a consideration? Where you think there is positive reliability, is that a consideration relevant to fairness?
MR ODGERS: Certainly the High Court in Swaffield and Pavic, the majority judgment said it was. I think the High Court said in Lee it was. I would not be contending otherwise in respect of section 90. It certainly would not be determinative but it would be a relevant circumstance. The difficulty would be that ‑ ‑ ‑
GLEESON CJ: So you might say in this case - in a particular case, I mean, not our case – a factor suggesting that it is not unfair to use this against a defendant is that it seems very reliable.
MR ODGERS: It may be hard – and maybe that is putting the same proposition in a different way – it will be harder to persuade a court that it is unfair where there is no reason for concern about the reliability of what is said, but in an appropriate case it would still be unfair even though you do not have that particular concern. I do not think there is anything controversial about that proposition. Indeed, what I am advancing to the Court today is that, putting to one side reliability - we are not conceding that what he said was reliable, but putting that to one side - there were good reasons why it is unfair to admit what he said.
In paragraph 22 I have extracted parts of the Law Reform Commission final report. I do not know that your Honours have that. You might have one page of the final report. I can see most of you are holding it so I do not need to hand anything up. Can I take you to what the Law Reform Commission said - I will just find my copy – at page 85 is where the Law Reform Commission began to discuss the whole area of admissions and confessions and relevantly it should be noted at page 87 that, in summarising what had been proposed in the interim report, the Law Reform Commission noted that the voluntariness rule suffers from many deficiencies and they were spelt out at page 87 and noted at paragraph 157 on page 88 that the interim report had proposed not retaining the voluntariness rule. Then at page 89, paragraph 159, the Law Reform Commission had also proposed not to include the Lee discretion, which is the fairness discretion.
So the interim report had proposed not retaining voluntariness and not retaining fairness and had instead relied on a package of what is now 84, 85 and 138. However, at paragraph 160 on page 89, about seven lines down:
Reference was also made to the importance of both voluntariness rule and the Lee unfairness discretion -
I am sorry. Does your Honour Justice Kirby have what I am reading from?
KIRBY J: Page 89.
MR ODGERS: Yes, 89, middle of paragraph 160:
Reference was also made to the importance of both the voluntariness rule and the Lee unfairness discretion in recognising and protecting the right of silence. However imperfectly those rules may operate (and the fact that they are unsatisfactory was accepted by commentators), they are expressly directed to that objective. The proposal advanced in the Interim Report, however, did not specifically address that objective and relied instead upon the indirect effect of the above package of proposals to protect the individual suspect’s right to silence. It emerged in discussions that the proposal suffered from two major disabilities.
We do not need to look at the first but over the page, page 90, there was a major disability which was the “Absence of the Lee unfairness discretion”. Before I take you through that passage, I just note from 89 that the Law Reform Commission is focusing on protecting the right of silence and that is the context in which the Lee unfairness discretion or section 90, as it came to exist, used to be understood. The Commission said:
Several commentators made the point that the Lee discretion has been used to deal with the situation where the accused has chosen to speak to the police but on the basis of assumptions that were incorrect, whether because of untrue representations or for other reasons.
That is a sentence we place a lot of reliance on because it is talking about incorrect assumptions and it is not limiting it to the situation where there is an untrue representation and, of course, that is what we say is very pertinent to the present case. Then the Commission says:
The proposed ‘circumstances test’ –
which is now section 85 –
mentioned above does not deal with that situation. It is concerned with circumstances affecting the truth of the admissions, not the choice whether or not to make the admission.
So here the focus is on not so much the knowledge of the right to not speak but, rather, the circumstances in which you choose to speak and to make the admission, that is, the circumstances in which you waive your right.
The interim proposals included a discretion enabling the judge to exclude evidence obtained illegally or improperly. That discretion is capable of dealing with the matter but not in the way that the Lee discretion does. The Lee discretion focuses on the question whether it would be unfair to the accused to admit the evidence. The discretion to exclude illegally or improperly obtained evidence requires a balancing of public interests. It would, therefore, be less effective than the Lee discretion in the situation where the confession was obtained because the accused proceeded on a false assumption.
Then there is a footnote, footnote 18, and there is a reference to several examples which had been given in the interim report of cases which the Commission says “are best addressed by the Lee discretion”. Those examples are the subject of some written submissions by the Crown in their submissions but, with respect, the issue is not so much what the courts had held in those cases. The question is, what did these examples reveal about the intentions of the Law Reform Commission.
GLEESON CJ: A false assumption about what, anything?
MR ODGERS: A false assumption about anything may lead to a conclusion of unfairness.
GLEESON CJ: What about a false assumption that there exists evidence pointing to guilt which does not exist? Not an assumption fostered by police misrepresentation, but just an erroneous assumption.
MR ODGERS: The Commission is not saying what the outcome should be. What they are saying is that section 90 will be triggered, that is, consideration of fairness will be triggered in this situation where there is an incorrect assumption. The question will then arise whether or not applying social values of the kind I have been discussing and conceptions of fairness, that it would be unfair given that assumption and given the circumstances in which it arose, given the conduct of the police in terms of fostering that assumption or, alternatively, failing to correct it or whatever, and the nature of an incorrect assumption, that a conclusion is to be drawn that it would be unfair to admit.
The Commission is not providing an answer, it is simply saying there should be a provision in the Act to allow a court to apply conceptions of fairness to determine whether, particularly in the circumstance of incorrect assumptions made by a suspect which impact on his or her decision whether or not to speak and whether or not to make an admission, to determine whether or not, in all the circumstances, particularly the conduct of the police, that it would be unfair to allow the use of that admission in evidence.
GUMMOW J: Could we just go to the draft explanatory memorandum, page 234 on 1279.
MR ODGERS: I am sorry, are we talking about the Law Reform Commission ‑ ‑ ‑
GUMMOW J: Yes.
MR ODGERS: Page, your Honour?
GUMMOW J: Page 234, appendix A, the draft explanatory memorandum, the draft bill, item 199:
This clause enacts an exclusionary discretion similar to that known as ‘the Lee discretion’ in existing law.
Do we get anything else out of the ramblings in the earlier part of the report?
MR ODGERS: In my submission, yes, one does get something of use in what is said on page 90 as to what the Law Reform Commission anticipated would be an area in which the discretion would have work to do, that it is focused on protection of the rights of the suspect, in particular, protecting the right to silence; that it is concerned with the circumstances in which the suspect chooses to waive the right.
GUMMOW J: What is said in item 199 explains perhaps why the subsequent traditional decisions have focused on Pavic.
MR ODGERS: Quite. As I think I have said in the written submissions at page 8 and going over to page 9, top of page 9 of the written submissions, it is apparent that the Law Reform Commission intended that the concept of “fairness” in section 90(b) should be at least as broad as under the common law discretion. We accept that.
GUMMOW J: Where do you then deal with a postulated common law discretion on the facts of this case, in your written submissions?
MR ODGERS: The written submissions do not discuss the common law other than to refer, at the bottom of page 8, to what fell from Justices Toohey, Gaudron and yourself in Swaffield and Pavic as to “the purpose” of the “fairness discretion” under the common law and the proposition that it may be unfair to use an admission where the defendant’s freedom to choose whether or not to speak to the police has been impugned, at least where the admission was elicited by the police in breach of that right.
Now, we certainly do submit that in the present case the appellant’s freedom to choose whether or not to speak to the police had been impugned by the police in failing to correct his mistaken assumption, in confirming his mistaken assumption which impacted on his understanding of the consequences of waiving the right.
GUMMOW J: That comes back to the formulation Justice Hayne put to you earlier, does it not, as to what your case comes to?
MR ODGERS: Yes, and the submission I have made has been expressed in terms of the language of fairness and I have used “unconscionability” and “agreement” to assist in giving content to that concept, but another way of saying precisely the same thing is that his freedom was relevantly impugned and I rely on precisely the same process of reasoning to reach that conclusion, although it is to be noted that this is a case where there is no doubt whatsoever that the police did elicit admissions. In Swaffield and Pavic there was some reliance on Canadian authority talking about a distinction between a situation where the police elicit and do not elicit admissions. There is no doubt whatsoever that this is a case where the police, by their questioning, sought to obtain admissions and elicited them from the appellant.
I think I was almost finished with page 90 of the Australian Law Reform Commission final report, other than to note that the examples that were given in footnote 18, most of them refer to circumstances in which the police failed to warn a suspect about something, failed to correct an incorrect assumption on the part of the suspect, and this again confirms the Law Reform Commission’s intention that it would not be necessary that there be any untrue representation by the police. It is not necessary that there be any fraud. Unfairness can arise from the failure of the police to correct a significant incorrect assumption on the part of the suspect.
Of course there are incorrect assumptions and incorrect assumptions, responding to your Honour the Chief Justice, and it will depend on what the incorrect assumption was and it will depend on, no doubt, why the police failed to correct it. I have not said it to this point but I will say now that it must be relevant to the assessment of fairness to consider the reasons given by the police for their failure to correct the mistake.
GLEESON CJ: There have been celebrated cases in recent years in which police officers have wired one prisoner up with a hidden sound‑recording device and then arranged for that prisoner to sit in a prisoner cell with a suspect and question the suspect about the suspect’s involvement in a crime, and evidence of admissions made by the suspect in those circumstances has been used to convict the suspect.
MR ODGERS: Yes, but in Swaffield, which was not dissimilar to that factual scenario where the appellant had - I think he was the respondent, he had declined to answer police questions. He had asserted his right to silence. They then had somebody go into the cells to effectively question him and to elicit admissions and the court held that it was rightly excluded.
HAYNE J: What sets this case apart is the finding of fact. This appellant knew he was talking to police, knew he did not have to say anything to the police.
MR ODGERS: But the issue here is not that aspect of the right to silence about whether or not he is aware of his right to silence, whether or not they have sought to get around his decision to say nothing. The issue here is that aspect of the right to silence which relates to the consequences of speaking. The techniques that were used to persuade him to speak, which included - not so much a technique, but everything that was done had the effect of ensuring that he did not understand the consequences, the grave potential consequences, of speaking.
If, as must be, with respect, accepted, as was stated by the United States Supreme Court in Miranda the second part of the caution is essential to ensure that the suspect understands the consequences of waiving his right, it must necessarily also be the case that if a suspect does not understand those consequences, is mistaken as to those consequences, that will impact on his exercise of his right. While that by itself may not be enough to found a conclusion of unfairness, if the police have deliberately chosen not to correct his mistake then one is surely, with respect, getting close to a conclusion that it would be unfair to allow the admission in.
GUMMOW J: It is unfair to a defendant to use the evidence against him, I suppose, we understand, do we not?
MR ODGERS: Yes. I think that is all that needs to be said about page 90 of the Law Reform Commission Report other than to note the final conclusion which was that there should be a discretion added to the proposal. It was expressed in the very broad language that the Evidence Act section 90 contains, although it is not precisely the same. If your Honours are interested, the Act ‑ ‑ ‑
GUMMOW J: The drafting was turned around.
MR ODGERS: It was. It was redrafted.
GUMMOW J: It is better drafting in the draft Bill, I think. Someone got hold of it.
MR ODGERS: I am sure the drafter of the draft Bill will be pleased to hear that, your Honour.
GUMMOW J: When you read section 90 you have to begin with the word “if”, I think. “If these things happen, then something else is to happen”. You say if (a) and (b) apply, the court can do one of two things.
MR ODGERS: Yes. I do not place any reliance on section 79 of the proposed evidence Bill. It is appropriate that I take your Honours to Swaffield and Pavic 192 CLR 159. I have covered it to a very large extent in what I have said so far, but if I might just refer your Honours to some particular paragraphs of that case. It is, as I have said, dealing with the common law situation. The Law Reform Commission intended that the section 90 would be similar to the common law, therefore it is relevant to know what the common law position is. At paragraph 52 in the joint judgment of Justices Toohey, Gaudron and Gummow, their Honours say, “The second basis” for rejection of a voluntary admission:
is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person.
That is consistent with what the Law Reform Commission said in the final report, which I have taken you to. At the bottom of the page, and this is pertinent to what your Honour the Chief Justice raised with me:
While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted.
More is said about reliability and in a moment I will take you to that.
GLEESON CJ: I notice that they relate unfairness “to the right of an accused to a fair trial”.
MR ODGERS: Yes, and so would we, because the question is, would it be unfair to use it as evidence at trial. At paragraph 66 there are some statements there that we contend are apposite to section 90 about it being “a vague concept”. Then at paragraph 67 there is a reference to the Evidence Act 1995 and that discussion goes over the page.
GLEESON CJ: Is Lee referred to in this case?
MR ODGERS: In Swaffield and Pavic, yes, it is referred to at page 197, paragraph 77.
GLEESON CJ: Thank you.
GUMMOW J: Namely:
must be voluntary, that is, “made in the exercise of a free choice to speak or be silent”.
MR ODGERS: Sorry, where is your Honour referring to?
GUMMOW J: Paragraph 50 in Swaffield, footnote (113). Then there is a quotation from McDermott.
MR ODGERS: Yes, that, of course, was in the context of the voluntariness rule and is not something that I would refer your Honours to, but there is, I think, some reference to Lee in the discussion of the fairness discretion. I am told there is some reference to it. I think I referred you to paragraph 77 where there is some reference to it, there may be others. I was at paragraph 67 and it is to be noted that the joint judgment referred with approval to what the Law Reform Commission of Canada said, this is at middle of page 194:
“there is an undeniable advantage in granting judges discretionary power, since it keeps the courts continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities.
That is consistent with what I was putting to your Honour, the Chief Justice about the intention behind section 90 and the undefined concept of unfairness and how, at the end of the day, content must change over time depending on social attitudes. At paragraph 78, returning to this issue of unreliability, it is said that:
Unreliability is an important aspect of the unfairness discretion but it is not exclusive. As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights.
Lastly, in a passage which the Crown I understand will take you to, paragraph 91, their Honours conclude as to the position under the common law. The first sentence is important:
However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion.
I draw that to your Honours’ attention because, so far as I understand it, the Crown’s argument seems to be very heavily dependant on an argument that fairness is about coercion and relating it to the voluntariness rule. Our submission is that the Law Reform Commission made no reference to coercion. I am not disputing by any means that coercion would not be a basis for a finding of unfairness, but it is simply not correct to say that that is the core or the central focus of unfairness. It is not, as their Honours said in respect to the common law, not an integral part of the fairness discretion. What their Honours then said is:
In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted.
Then the majority judgment proceeded to consider, in the case of Mr Swaffield and in the case of Mr Pavic, whether or not it should be concluded that their freedom to choose to speak had been impugned and they concluded in respect of Swaffield that it had, and in respect of Pavic that it had not been shown that it had not, or at least I think there was some reference there to ‑ ‑ ‑
GUMMOW J: What was the factual distinction?
MR ODGERS: An important factual distinction was a conclusion in respect of Pavic that what he had said had not been elicited by the police. They had not gone in seeking to question him through an agent to obtain admissions. It was rather that he had been allowed to talk and he had chosen to speak, and this is relevant to this question about the different contexts in which people speak.
GLEESON CJ: The facts appear on page 161. The police interviewed Pavic and told him they believed he had committed a murder and he said he was not going to answer any questions. Then the police interviewed his friend Clancy and they suggested:
that Clancy speak to Pavic on behalf of the police and carry a recording device for the purpose.
So the concept of eliciting, of which you speak, might become a little blurred in a situation where what the police had done is to say to Pavic’s friend, “Go and have a talk to Pavic and wear this secret tape recorder”.
MR ODGERS: Yes. I can take you to what the majority said. It is contained at page 204, paragraph 101:
If Broyles is applied, the next question is whether the admissions by Pavic were elicited by Clancy or were made in the course of a conversation. Put another way, was there an interrogation by Clancy?
Then there is a reference to what Pavic argued and then at 103:
In all the circumstances there is no sufficient reason to interfere with the trial judge’s refusal to exclude the evidence of the conversation.
So, as I read it, their Honours took the view that it had not been shown that there was an error made by the judge in not being persuaded that there was an interrogation. Putting it differently, not being persuaded that the admissions were elicited. I say, with respect to your Honours, that one difficulty is that the vagueness of the concept of fairness might also be said to be true of the concept of impugning a freedom to choose to speak. It is, with respect, not entirely clear.
GUMMOW J: Does the reasoning of Justice Kirby differ in any respect?
MR ODGERS: As to the result, as to what happened in respect of Pavic, his Honour concluded that there was eliciting - I think that is correct – but, as I apprehend it, not in any significant respect in terms of the formulation of principles.
GLEESON CJ: So, in terms of the order.
MR ODGERS: Yes.
GLEESON CJ: In terms of the order, Justice Kirby was in dissent on Pavic?
MR ODGERS: On Pavic, yes. I was saying a moment ago that the difficulties with fairness may be said also to apply to working out whether or not a freedom to choose to speak has been impugned, but our argument is that in this case it was impugned because the police both failed to – I have said the argument. I am not going to repeat it. I think your Honours understand it.
What I propose to do before I sit down is very briefly summarise what we say are the pertinent circumstances for the purposes of section 90 and why there was unfairness. I will be to a significant extent repeating what I have said, but just so that I can put it comprehensively. We say that the primary circumstances for the purpose of 90(b) were that the appellant incorrectly assumed that the conversation was not being electronically recorded and, as a result, incorrectly assumed that anything he said could not be used in evidence.
KIRBY J: No warning was sought, I assume?
MR ODGERS: I am sorry, your Honour, I am still dealing with section 90.
KIRBY J: I am sorry.
MR ODGERS: When I said I will sit down in a moment, I had forgotten I have to deal with that remaining ground. I will deal with that briefly. I am just ‑ ‑ ‑
KIRBY J: Also as far as I am concerned, you had better deal with the proviso.
MR ODGERS: Yes, well, I have referred to it at page - - -
KIRBY J: I know you have dealt with it in your written submissions.
MR ODGERS: Yes, I will refer to it.
KIRBY J: I wondered if that had taken into account sufficiently the decision in Weiss.
MR ODGERS: Certainly, your Honour, and, with respect, proviso just does not arise in this case if we are right about section 90, because there is no doubt whatsoever that – there was very little of a case left once the admissions went.
KIRBY J: So you say, but how could we – is that conceded?
MR ODGERS: Certainly not. Nothing has been said from the Crown to the contrary and it would be hard to see how they could say anything to the contrary given what the Crown said at the trial and what has been said on a number of occasions by the Crown in respect of the significance of the admissions.
KIRBY J: Anyway, I have deflected you into the proviso. You go back to where you were and then deal with the second issue and then the third issue which is the proviso.
MR ODGERS: Thank you, your Honour. I will do that. I was just summarising what we say are the relevant circumstances for the purposes of 90(b) and I have given the first; the incorrect assumptions about it being recorded and his resulting incorrect assumption that anything he said could not be used in evidence. As I have said, we also submit that the police were aware or should have been aware of those incorrect assumptions. We say that it is a relevant circumstance that the police failed to say anything to correct the incorrect assumption that anything he said could not be used in evidence and for no legitimate reason.
I have referred at paragraph 39 to the reason that was given by the police officers as to why they left out the second part of the – sorry, paragraph 38 of the written submissions. The reason that was given was that the police were concerned that the appellant may become aware that the conversation was being recorded and I note in parentheses that Justice Giles erred when he gave a different reason for why the police had failed to give the second part of the caution.
Then we make a submission that the reason given by the police could not be legitimate. At a practical level they could quite easily have said to him, “You have a right to silence and anything you say may be used in evidence against you”. That would not disclose the fact that it was being secretly electronically recorded. But even more importantly, we submit that a police desire to avoid a suspect learning that his interview is being electronically recorded could not justify a decision to leave out half the standard caution which would have corrected his mistaken assumption about the potential use that could be made of anything he said.
HEYDON J: Is there any obligation to caution at all? By “obligation” I mean including that police code of conduct that you referred to.
MR ODGERS: No, not by reasonably ‑ ‑ ‑
HEYDON J: Did they believe there was sufficient evidence ‑ ‑ ‑
MR ODGERS: No, there was not by reason of section 139 or the Police Code, but we say there was an obligation arising from the circumstances of this case.
HEYDON J: You say, I suppose, you either give it all or you give nothing. A misleading character, in a way, arises from giving half of it.
MR ODGERS: I have tried to make the point, perhaps not very successfully, that one always has to return to what the question is and the question in section 90 is in all the circumstances would it be unfair to admit? What we are saying is that in circumstances where they have - that a relevant circumstance is the failure to correct his mistaken assumption and that we would go so far as to say that it was improper not to give the full caution, but we do not need to establish impropriety because that is not the relevant question.
GLEESON CJ: It would have been misleading even if they had given the second part of the caution, if they had not added, “And by the way, we have got a tape recorder recording what is going on here”.
MR ODGERS: Yes, your Honour.
GLEESON CJ: By their very silence they would have been misleading him.
MR ODGERS: Yes, your Honour. The next circumstance we rely on is that the police by their conduct acted in a way that would have tended to confirm the appellant’s incorrect assumption. I have referred in the written submissions to the atmosphere of informality. He was not under arrest, he was not going to the station, that was constantly being brought home to him. The police indicated that they were seeking information to assist the investigation. The focus of the questioning was, “We are looking for information to assist the investigation.” At page 188, line 15:
We want to try and clear up a few things here.
At page 189, line 18:
we need to know who’s involved and who’s not involved –
GLEESON CJ: What, if any, is the significance of the fact that he said he was using this conversation for his own purposes or, as I think Justice Giles said, the parties to this conversation were fencing with one another? According to the defence case, he was trying to manipulate the police at this stage.
MR ODGERS: Yes. I cannot say it is irrelevant, your Honour, but the critical point is and I go back to the first point which is that he would not have spoken to them if he had not made the incorrect assumption. He would not have spoken to them if he knew it could be used in evidence against him. So that to leave that out of the equation and say, well, in those circumstances, him believing it could not be used in evidence against him, he then had certain motives he expressed in his evidence to why he chose to speak and to say what he said, does not bear on the critical issue. The circumstances, which I have pointed to, tending to confirm his incorrect assumption were, the atmosphere of informality, the fact that the police indicated they were seeking information to assist their investigation, and the repeated references to not tricking him.
Now, all of these matters, on the face of it, may not be seen to go to the issue of confirming his belief it could not be used in evidence, but they take on a particular significance in the light of what happened on 24 April, because on 24 April, as I have said, he was given a full caution, he was at the police station, it was a formal situation of interrogation, he was under arrest, at least initially they indicated they were proposing to record everything, and then they agreed to speak to him off the record and then released him without charge after he had made full confessions about the Kress offences. Indeed, during this period on 24 April, they assured him that he should trust them and that they were not using secret recording.
He asked, “Are you wearing a wire?”, and he said, “No, you will just have to trust us. I am not going to be naked.” So he is being told, on 24 April, it is a formal situation, it is potentially evidence against you, he was given a full caution, he was told it is being recorded. He says, “No, no, I want to speak off the record.” They agree to that. They let him go, even though he has made full confessions about Kress. They assured him that he should trust them and that they are not using secret recordings. In the light of all of that, it puts what happened on 15 May in a very significant light, because we say that how the police conducted themselves on 15 May would have confirmed his belief that nothing he said at the park could be used in evidence against him.
You have got the contrasting informal nature of it, you have the failure to give the full caution, you have the emphasis on seeking information as distinct from something else to assist the investigation and you have the repeated references to not tricking him. All of that, whatever the intentions of the police, would have tended to confirm his belief that whatever he said at the park could not used in evidence against him.
Without placing any great significance on it, we also rely on the pressures to speak that were put on him by the police at the park. We have referred to these in paragraph 41 of the written submissions. At the very least, it can be concluded that the police did elicit his admissions in compliance with what was said in Swaffield and Pavic. Those are the primary circumstances upon which we rely.
KIRBY J: Could I just ask you before you move to the second point two things. First of all, given that you accept the difficulty of formulating a way of expressing what “unfairness” means, it is more difficult for you then to point to any error on the part of the Court of Criminal Appeal. Essentially what Justice Howie seems to have said at paragraph 78 was he just was not persuaded that what he calls the judge’s exercise of discretion was unreasonable or ‑ ‑ ‑
MR ODGERS: I am sorry, is this Justice Howie or Justice Giles?
GLEESON CJ: It was in the first appeal.
MR ODGERS: Justice Howie was the leading judgment in the first Court of Criminal Appeal decision.
KIRBY J: Yes, I am sorry, it was Justice Giles.
MR ODGERS: Can I just first deal with what we say is the error that was made by the trial judge and then go to the question of the proper approach of the Court of Criminal Appeal. In respect of the trial judge, he really does say very little, with respect to him, as regards his reasons.
GLEESON CJ: Is this Justice Greg James or Justice Bruce James?
MR ODGERS: Bruce James. The relevant part of the judgment is pages 168 to 169, paragraphs 130 to 132. In paragraph 130 his Honour accepted:
that the accused believed on 24 April and still believed at the commencement of the conversation on 15 May that, if a conversation he had with police officers was not recorded (“was off the record”) –
that was the language he used himself in a secret listening device conversation earlier on 24 April –
evidence of the conversation could not be used against him in criminal proceedings. That was a belief which the accused had formed himself, independently of anything said or done by the police and up to the commencement of the conversation on 15 May nothing the police had said or done had induced, or contributed to, the formation of this belief.
Just let me stop there. We have submitted that what the police had done prior to the commencement of the conversation, particularly on 24 April, had tended to confirm his belief. We say that that is an important point to be noted. His Honour then says:
I accept that, up to the commencement of the conversation on 15 May, police officers had not set out to induce in the accused a belief that, if what he said to police officers was not recorded, evidence of what he said could not be used against him.
I, accordingly, find that nothing happened, before the commencement of the interview on 15 May, which would lead to a conclusion in favour of the accused, that it would be unfair to use evidence of the conversation against him.
I do not consider that anything said or done in the conversation up to page 25 of the transcript would change the situation.
That is his reasons for deciding that section 90 was not engaged up to page 25 of the transcript. Then what would happen at page 25 is he made a finding that the police intentionally set out to induce or promote a belief that what he said could not be used against him and excluded from there on.
Our contention is that his Honour erred because he focused on whether the police intended to promote a belief that what the appellant said could not be used as evidence against him. His Honour failed to even decide whether the police were aware of the appellant’s incorrect assumption that nothing he said could be used in evidence against him, so he failed to even consider that issue, and he ‑ ‑ ‑
HAYNE J: That rather suggests it was not argued, does it not, or if it was it was not argued in a fashion that brought it home to his Honour that this was the way in which it was being put?
MR ODGERS: No, it is true to say that certainly the focus was on the intentions of drawing an inference as to the intentions of the police, but it was not limited to that and there was certainly reference to the failure to caution and so on.
KIRBY J: They seem more relevant to the public policy discretion than to the unfairness discretion.
MR ODGERS: That, indeed, is one of our arguments, that his Honour has focused too much on the question of intention, which is certainly relevant to the 138 public policy discretion, and we say gives unduly narrow scope to the application of fairness because it really requires fraud when unconscionability or breach of agreement or something like that can be a sufficient basis for a conclusion of unfairness. His Honour failed to consider whether the conduct of the police tended to confirm the appellant’s belief or failed to correct his incorrect assumptions. So we say – the essence in our argument is his Honour took an unduly narrow view of the scope of fairness for the purposes of section 90.
Going then to the Court of Criminal Appeal we make a similar argument. The court held in volume 3 at page 1160, paragraph 76:
The appellant spoke to the detectives in the belief that, if the conversation was not recorded, evidence of the conversation could not be used against him. Even if, as the appellant submitted should be inferred, the detectives were aware of that belief, I do not think there was thereby unfairness. Where the police are not responsible for an erroneous understanding of which causes the accused to speak, more will be needed to make it unfair to use against the accused what the accused says.
We agree with that. We accept that more is needed – more was probably going to be needed than him simply making a mistaken assumption. Then the next sentence:
Hence the correct inquiry into why the appellant had his belief, the answer being that the police were not responsible for it.
Our submission is that that is an unduly narrow approach to section 90. You cannot say that the State and the police can wash their hands simply because a person – they did not cause the formation of the beliefs in the first place. If they have deliberately chosen not to correct it or if they have acted in a way which tends to confirm the belief, as we say happened here, then there is a powerful case, we say, for a conclusion of unfairness. Justice Giles at paragraph 65 on page 1155 ‑ ‑ ‑
KIRBY J: But 78 is really where he comes to the crunch. He just says that:
I am not persuaded that the judge’s exercise of discretion –
as he calls it –
was unreasonable.
MR ODGERS: Yes. Your Honour, there is a question which we have addressed in the written submissions as to ‑ ‑ ‑
KIRBY J: This was raised on the special leave application by Justice Gummow, I think, as to whether this is truly a discretion as distinct from a power.
MR ODGERS: I must say I had not understood it that way, your Honour. I had understood what was being put to me was that there was no discretionary element in determining whether or not something is fair or unfair. Certainly our contention is that there is not ‑ ‑ ‑
KIRBY J: It is not a matter of judgment ‑ ‑ ‑
GUMMOW J: This is the debate we have had over the last two days, actually.
MR ODGERS: I am sorry?
GUMMOW J: We have had a debate over the last two days in another context about this word “discretion” and this is another example of it.
MR ODGERS: Your Honours, we dealt with this in the written submissions at some length. I have lost my written submissions. No doubt I will find them in a moment.
GUMMOW J: The mere fact that it is difficult to make up your mind whether a criterion has been satisfied does not mean that the consequence of making up your mind is a discretion.
MR ODGERS: Yes, certainly, your Honours. As I say, we have dealt with this and, in accordance with what fell from your Honour Justice Gummow at pages 9 to 11, we submit that House v The King principles do not apply to the question of determination, whether or not something is fair or not. I cannot add anything more to what I have said there. Interestingly enough, we have referred to what Justice Callinan in Berbatis about unconscionability and his Honour said there that House v The King principles do not apply to that. We would say, just as we have sought to use unconscionability as a way of looking at unfairness in a layman’s sense, similarly, the same proposition must be correct here.
We say that the question is a question of law, whether or not it would be unfair to use the evidence and while it may be a concept which involves broad conceptions of fairness, there is no reason why House v The King principles would apply. But, in any event, and I need to make this very clear, section 6 of the Criminal Appeal Act gives alternative bases for an appellate court interfering. One is where there is an error of law made by the trial judge and we say that House v The King principles do not apply but, even if they did, the argument we put to the Court of Criminal Appeal is that there is an alternative basis for intervention by an appellate court and that is where there is a miscarriage of justice on any basis. With respect, surely there must be a miscarriage of justice if an appeal court concludes that it would be unfair to use the evidence against the accused.
HEYDON J: That is surely not controversial.
MR ODGERS: I would have though it is not controversial in which case ‑ ‑ ‑
HEYDON J: Your problem though is this, accepting that House does not strictly apply, because of the indeterminacy of the criteria that have to be applied and the fact that it is a matter calling for a judgment, an impression, once you have concurrent findings of fairness, it is not going to be easy to overturn them unless something in the nature of a House v The King error can be found. It is a different test but it is ‑ ‑ ‑
MR ODGERS: I have put an argument as to why there is House v The King error because I have said that their Honours took an unduly narrow view, so I have sought to meet that.
HEYDON J: Yes.
KIRBY J: That was why I was going to ask you my second question which is, fundamentally, what is the law trying to do here? What is the Evidence Act trying to do? Is it simply laying down rules of fair play in the conduct of criminal trials or is it trying to defend the fundamental rights of the accused or is it trying to ensure that innocent people are not convicted? Or is it all of the above?
MR ODGERS: Yes, there are elements of all of those things but I would express it in these terms, that a purpose, and possibly the purpose, of section 90 is to protect the rights of accused persons and suspects including the right to silence and that this provision is a mechanism to do that but uses a criterion of fairness at trial. Using that criterion of fairness at trial asks whether or not, in all the circumstances, the right to silence has been relevantly impugned, to use the language of Swaffield and Pavic.
HAYNE J: That is a rather large proposition because the structure of the Act is one that distinguishes. Take, for example, sections 84 and 85. Section 84 applies to all kinds of admission. Section 85, though, by contrast, deals with admissions by defendants in effect to persons in authority. That is where you would expect notions of right to silence in respect of official questioning to find its natural place. Section 90 may perhaps better be seen as a general sweeper of the cases that are not otherwise dealt with, but notions of rights to silence, I would have thought, would find their home more naturally in the combination of 84 and 85 plus what we now see added by the Criminal Procedure Act and backed ultimately by notions of impropriety reflected in 138, 139, so that I think there is a difficulty about seeing 90 only through the lens of right to silence. It may have that consequence but ‑ ‑ ‑
MR ODGERS: Yes, that is the one thing that I have been trying to do is to avoid saying it is only focussing on that. I have not adopted what was said in Swaffield and Pavic that “the” purpose of the fairness discretion is to protect the rights and privileges of an accused ‑ ‑ ‑
GUMMOW J: If you just go back to Swaffield for a minute. If you go to 192 CLR 195, what the joint judgment was concerned with starts appearing at paragraph 71 in judgments in Duke of Justice Brennan and Justice Toohey. If one reads carefully what Justice Brennan says in the second sentence quoted:
If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason –
He then referred to, “trickery, misrepresentation, unlawful detention” et cetera:
but emphasised that the fact that an impropriety occurred did not carry the consequence that a voluntary confession must be excluded.
Likewise you see Justice Toohey at 72. Then if you over to paragraph 91 on page 202 there is an anxiety to repel:
the notion of compulsion is not an integral part of the fairness discretion –
et cetera. Then the last sentence in paragraph 91. You have got to then read the overlay of the structure of the Evidence Act which brings with it the sophistication, as Justice Hayne has been putting to you, in the statutory framework.
MR ODGERS: I just want to make it very clear. I resisted any attempt to provide a submission as to what section 90 comprehensively deals with it.
HAYNE J: The notion of charting the metes and bounds of section 90 is a remarkable prospect.
MR ODGERS: What I have submitted is ‑ ‑ ‑
KIRBY J: But we can see from the reference of the prosecution that it is only applying to criminal matters and therefore it is written against the fundamental basis that the Court emphasised in R v RPS of the accusatorial nature of criminal process in this country and therefore that is for the prosecution to prove the case out of usually police and other evidence.
MR ODGERS: That may be so, your Honour, but I am not really, with respect, relying on an accusatorial model. What I am saying is that the Law Reform Commission referred to a purpose of section 90 is to protect the right to silence. The High Court in Swaffield and Pavic at least recognised that a purpose of the fairness discretion is to protect the right to silence. I submit that section 90 should be understood to have as one of its purposes, one of its goals, the protection of the right to silence, but that is not a comprehensive guide to the scope of fairness.
In this case, though, it provides assistance because a clearly relevant question is whether the conduct of the police, both what they did and what they did not do, whether that relevantly impugned the exercise of the right to silence. I put the argument that it did and, putting the same proposition in a different way, that because of the unconscionable nature of the way the police acted, it would be unfair to admit his admission made in evidence against him.
GUMMOW J: The second matter I want to put to you is that, although in Swaffield in talking about the common law the word “discretion” is certainly used and we understand that, but when you come to a statutory formulation like you have got in section 90 where the word does not appear, you are in the territory of a decision-making process where there is some latitude as to the choice that can be made. There is a discussion of that in Coal & Allied 203 CLR 194 at 204, point 19.
MR ODGERS: I have referred to that in footnote 8, your Honour, of the written submissions.
GUMMOW J: Yes, it might be worth a look, I think.
MR ODGERS: As I say, it is referred to on page 10.
GUMMOW J: It is hard to shake the common law.
MR ODGERS: I have been very, very careful not to give too much weight to the common law.
GUMMOW J: I am not criticising you but that is why the discretion slops over into construction of the statute because of the common law background.
MR ODGERS: Yes. I do not know if your Honour Justice Hayne was asking me a question but I am not going to say any more about it.
HAYNE J: It is a joy that awaits you.
KIRBY J: But this is the whole point that I think was emphasised in the special leave hearing and that is that when you are in the realm of the statute you are in the realm of the normal principles that govern this Court in construing statutes, which is to search in the text and the context for the purpose. In Swaffield I tried to see the way the law was operating in terms of voluntariness – you do not torture people – and then reliability and then discretionary considerations, public policy and fairness to the accused, but I do not know whether that has survived the Evidence Act.
MR ODGERS: One has to be very cautious about that in circumstances where the Law Reform Commission and the Act does not include voluntariness and where it has adopted a clear distinction between fairness on the one hand and public policy on the other. In Swaffield and Pavic there was some degree of overlap between those concepts, but the Act chooses to keep them rigidly separate. Of course, section 90 only applies to admissions. It does not apply generally, whereas section 138 applies to all evidence. I am not sure that that assists.
KIRBY J: How is voluntariness dealt with under the Act?
MR ODGERS: No, it is not.
KIRBY J: Surely the police cannot torture somebody?
MR ODGERS: Yes, section 84 excludes – it does not require an investigation of exercise of choice or exercise of will or overbearing will or anything like that, which is one of the ‑ ‑ ‑
GUMMOW J: Section 84 is not just the police.
MR ODGERS: Of course, it is anybody. If I might summarise it, extreme misconduct, extreme forms of misconduct in the obtaining of admissions will result in automatic exclusion but it does not require a court to engage in any kind of analysis of the exercise of whether or not the will of the accused was overborne or whether or not there was a free choice to speak or remain silent.
GLEESON CJ: Because peoples’ decision to act or not to act or speak or not to act can be influenced by all manner of pressures and circumstances, which is one of the criticisms of that concept of voluntariness.
MR ODGERS: Yes, and I took your Honours to what the Law Reform Commission in the final report where they referred to the problems with voluntariness and why they had abandoned it. So there has to be borne in mind steadily, particularly when one considers the Crown submissions relying so heavily, as they do, on fairness as linked to voluntariness. That is of marginal assistance when one is considering the meaning of section 90, I would respectfully submit.
I think I have said all I want to say then about the first three grounds. We have really adopted three, we have tried hearing what your Honours, Justices Gummow and Hayne had said to me in the special leave and I have hopefully reformulated the grounds in a way which is satisfactory but, in any event, one has to live with them.
The fourth ground which is what your Honour the Chief Justice referred to as “second ground” is the failure to warn. I can be very brief about that. The written submissions spell out, we say, why there was not a need in this case to give a warning. I want to emphasise we are talking about a common law obligation. We are not talking about an obligation under the Evidence Act. It is a common law obligation that has been recognised by this Court in numerous decisions, Bromley, Carr, Longman ‑ ‑ ‑
GLEESON CJ: What would be the general tenor of the warning?
MR ODGERS: It is formulated on page 18 of the written submissions at line 12.
HEYDON J: I just find a lot of difficulty in understanding the sense of that, with all due respect to the Victorian Court of Appeal. It does not at first blush correspond with one’s knowledge of human nature.
MR ODGERS: I am sorry?
HEYDON J: It seems to refer to some general rule of human ‑ ‑ ‑
MR ODGERS: That is my formulation of what should be said.
HEYDON J: Yes, I know but you get the underlying idea from Tofilau.
MR ODGERS: I use Tofilau in that concept from there although, with respect, Tofilau is just another way of saying that one of – I rely on the rationale for admitting admissions against people in criminal cases. The primary rationale is that people do not usually admit things against themselves which can be used as evidence to prove their guilt of criminal cases unless they are true. It is likely to be reliable.
GLEESON CJ: But what do you say about Justice Giles’ response to that proposition in paragraph 69 on page 1157?
MR ODGERS: That was not his response in respect of this ground of appeal.
GLEESON CJ: What do you say about what Justice Giles says in paragraph 69?
MR ODGERS: I have dealt with it.
GLEESON CJ: He says that it is unreal to think that in effect a person would think that the only harm that could come to him from making an admission that he committed a crime is that it might be used in evidence against him.
MR ODGERS: I have dealt with it in detail on page 19 of the written submissions at paragraph 57 and I do not want to read it out, but what we say is that conceding that a suspect might anticipate that there are some potential harmful consequences even if it cannot be used as evidence against him does not alter the fact that it is likely that the most severe potential consequence he is likely to have in mind is the potential use as evidence against him in a criminal trial to convict him in this case of murder. The fact that he might be the subject of further police investigation, the fact that the police might be confirmed in their belief that he is guilty ‑ ‑ ‑
HEYDON J: This is trivialising the thing. Those police officers would hound this man until they left the service, in the light of the admissions he made. They would not just say, “Oh, we can’t use it. What a pity.” They would stick to him until they retired.
MR ODGERS: His position was that they were hounding him a great deal up to the time when he was in the park and that in those circumstances he chose, in his evidence, to say, “Okay, they’re not accepting my denials. They’re hounding me. I will now imply” – this is his language – “that I was guilty because I have an interest in helping my friends to avoid them being hounded”. His evidence at trial was, in substance ‑ ‑ ‑
GLEESON CJ: We are not dealing with an admission of engaging in illegal gambling or catching undersized fish. We are dealing in an admission of invading somebody’s house and shooting him dead.
MR ODGERS: Yes, quite, and the Crown prosecutor at the trial said that his story was absurd. Nobody would confess or imply that they are guilty of murder in order to help their friends to deflect attention from the real offenders when they are innocent. It is an absurd prospect and, of course, that is the reaction of your Honours. But it becomes, with respect, less absurd if you believe that what you say cannot be used in evidence against you, as was accepted by the Crown at the trial, so that anything you say cannot be used to prove your guilt, and you believe that since you are innocent, as he said, “There was no other evidence that I was guilty, therefore I don’t believe that they’re going to prosecute me”, and one is left with his concern of being hounded.
That is a concern, but it is a much less implausible scenario, with respect, his account. But in any event, your Honours, the question is, is it a factor that should have been brought to the attention of the jury?
GLEESON CJ: Is that a convenient time, Mr Odgers?
MR ODGERS: It is your Honour, yes.
GLEESON CJ: We will adjourn until 2.15.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Odgers.
KIRBY J: Mr Odgers, do you remember the question I asked you about for the purpose of the various exclusionary rules? What is the best writing on this subject? Has anybody ever sat down and tried to explain what the various sub‑rules are trying to get at?
MR ODGERS: In the Evidence Act or more generally?
KIRBY J: In the Evidence Act or generally, because in a sense the Evidence Act is just a different way of presenting the mosaic. Could you give some thought to that. Also if there are any articles or comments on the meaning of “fairness” in the context of the Evidence Act, I at least would be interested to see them.
MR ODGERS: In respect of the latter matter I am pretty sure there is nothing particularly useful but I will certainly look and within the next few days, your Honour, I will ensure that anything we can find will be ‑ ‑ ‑
KIRBY J: There must be somebody who has looked at the deep currents that are at work and probably human rights explanations are sort of later explanations of what was going on for centuries in the English law of evidence.
MR ODGERS: One of the difficulties with the English provisions, 78 of the Police and Criminal Evidence Act, is that they do not have a 138, so that their fairness provision has been used to import public policy considerations and there is intermingling of those considerations in the English context, which makes it - you have to be rather careful about how it all works and using that in Australia. There are certainly articles that have been written about Swaffield and Pavic, but I am not sure that they will particularly assist the Court. The interpretation of ‑ ‑ ‑
KIRBY J: I think my question is at an earlier and different level, but anyway.
MR ODGERS: There is a mass of literature about confessional evidence and the rules relating to voluntariness and discretion and so on ‑ ‑ ‑
KIRBY J: That is why I am asking for your help.
MR ODGERS: Well, your Honour, you can take it as said that I certainly have looked at a lot of the literature and regretfully could not find much that assisted, I would hasten to add, me, the appellant, but more generally that would, in our submission, provide much assistance to the Court in answering the questions that arise today. Given the focus of our argument which is in terms of fairness and protecting the right to silence and ideas of unconscionability and so on, there is nothing we could find that really assists in the literature about that but we will look again and if we can find something, we will bring it to the Court’s attention.
HAYNE J: Mr Odgers, do you accept that the question of unfairness that now arises is to be addressed on the following bases? There are five. Let me give them all to you. One, the statements the appellant made were made in the free exercise of the choice to speak or remain silent. Two - - -
MR ODGERS: Your Honour, can I interrupt your Honour and say this? Rather than me attempting to remember it all, perhaps if I can respond as we go?
HAYNE J: Very well.
MR ODGERS: No, I do not concede that they were made in the exercise of free choice to speak or to remain silent, whatever that concept means.
HAYNE J: He knew they were police and he knew he did not have to speak to them.
MR ODGERS: He did, but whether or not that means it was a free choice – it certainly was not an informed choice, and to the extent that issues of whether or not a choice – whether you are realistically able to choose when you do not know what the consequences are of choosing one option, whether that is a free choice, in my submission, there is a very real question about that, so I certainly would not be conceding that.
HAYNE J: Two:
the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
Section 85(2).
MR ODGERS: The judge made that finding and we have not challenged it.
HAYNE J: Three, the admissions were not influenced by violent or other like conduct, section 84.
MR ODGERS: Yes.
HAYNE J: Four, either the evidence was not obtained improperly or in contravention of an Australian law or in consequence of impropriety or contravention or, if it was, the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained in that way. Is that not the fourth basis on which we must act?
MR ODGERS: Given that we have not sought to challenge the finding that it was not appropriate to exclude it under section 138, then, yes, in those circumstances I cannot seek to persuade your Honours otherwise.
HAYNE J: The subset of that is that if there was no impropriety, the police made no false statement in the course of the questioning, that the police knew or ought reasonably to have known was false and was likely to cause the appellant to make an admission and, further, neither the provisions of section 139 relating to cautioning persons nor the police rules governing interrogations was contravened, is that right?
MR ODGERS: There is a lot contained in that proposition. I have conceded all along that there was no breach of 139. I have conceded that there was no breach of the Police Code of Practice. I have contended that, notwithstanding that, in the circumstances of this case there was improper police conduct, but I have emphasised repeatedly that that is not really the issue. So I have contended that there was impropriety and that for the reasons I have explained – the very conclusions which should lead this Court to accept that there is relevant unfairness also tend to support a conclusion that what the police did was improper. But, as I say, and I know your Honour understands this, that is not the focus of section 90. But I am not conceding that there was no relevant impropriety.
HAYNE J: Lastly, that the provisions of section 281 of the Criminal Procedure Act were not relevantly engaged.
MR ODGERS: That is correct. Can I just say something about that because I misled the Court slightly when I was – I think I told your Honours that what was said on 24 April was not inadmissible under section 281 because there was a reasonable excuse for what was said not being electronically recorded. I think I said that to you before lunch. However, the judge did exclude what was said on 24 April. I should stress that the appellant said very little about the Logozzo offences. He made full confessions about the Kress offences but said very little about Logozzo but he said some things which were ambiguous and could be seen as a form of admission and the judge did exclude that and he did it under section 281.
I will hand up six copies of the judgment of his Honour. Your Honours will see on page 1 that there is a reference to section 281 of the Criminal Procedure Act which is extracted on page 2. It was conceded before the judge that the police did have a reasonable excuse for not electronically recording what happened on 24 April, that is, he emphatically said he would not agree to talking if it was electronically recorded. The basis of inadmissibility under 281 was subsection (2)(a)(ii) which, if you go back to the provision on page 2:
Evidence of an admission to which this section applies is not admissible unless . . .
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms –
unless there was a reasonable excuse as to that failure. His Honour held that the police could have on 15 May put to the appellant the ‑ ‑ ‑
HEYDON J: The confession made in April.
MR ODGERS: To use the statutory language, the terms of the admissions made on 24 April, and that there was no reasonable excuse for failing to do so. Can I take you to paragraph 15 of his Honour’s judgment. It was argued by the Crown that there was a reasonable excuse and that the accused was directing the course of the questioning and that they did not really have an opportunity to put to him what he had said on 24 April. His Honour said:
Nor do I consider that there was a reasonable excuse constituted by the accused declining to answer questions by the police officers and seeking to direct the course of the questioning. During the conversation of 15 May the police officers, notwithstanding answers by the accused that he did not wish to speak about a particular subject, in fact persisted in questioning the accused and, in my opinion, were able to succeed in directing the conversation to the matters they wished to question the accused about.
Then he gives an example and at the end of that paragraph on page 7:
It is not correct to say that it was the accused who controlled the course of the conversation on 15 May.
Nor do I consider that it would constitute a reasonable excuse . . . that asking the accused about the making and terms of admissions allegedly made on 24 April might have alerted the accused to matters of which he had hitherto been unaware, namely that the police had made notes of the conversation on 24 April or that the conversation on 15 May was, without the knowledge of the accused, being covertly recorded.
I draw this material to your Honours’ attention both in terms of his Honour’s findings about who was controlling the course of the conversation, but also it goes to the point that we have made about the informality of what happened on 15 May. The very fact that the police did not take an opportunity to say “We want to just confirm that you said on 24 April, A, B and C” again highlights what we say is that the police conduct was to create the impression that this was an informal conversation designed to assist them in their investigation to obtain information which we say, as I have repeatedly said, tended to confirm the appellant’s belief that it was not what was intended to happen on 24 April but a very different kind of exercise.
GLEESON CJ: He was assisting them with their inquiries.
MR ODGERS: In the full sense, not in the sense that it has traditionally been used, your Honour.
KIRBY J: We laugh at this but this is the issue that worried me in Pavic, that it is one thing for a policeman to be having a conversation as an undercover person, it is another to engage a close friend of a person and send that person into conversation, and that is what caused me to think that that attracted an unfairness exclusion in that case.
I do not know enough about interrogation techniques but I would assume that if a person is sent to a faraway prison camp and contained there for quite a long time and then suddenly opportunities to get out of that predicament are presented, that might put very great psychological pressure on a person.
Similarly, in this case, if you take a person to a police station and an interview room and you interview them there, I would think the psychological forces are quite different from if you take them to a park for a friendly talk. You could add to the list of things that I have asked you to do, if there is anything that analyses that that is relevant to the issue of fairness I would be interested to read that because I do not think it is a purely formal question.
The statute is addressing a notion which is very deep in English law, fairness. It runs through all of our administrative law and elsewhere and I just feel that we have not really (a) been assisted with any evidence on that matter and therefore we cannot look to any evidence in the case as to the pressures of perhaps a person of this man’s cultural and linguistic and other background, but (b) I do not know what is written about interrogation that might help.
MR ODGERS: Your Honour, could I just say this. It is critically important to understand that we are not relying on a principle of fairness relating to pressure or coercion or techniques used to compel a person.
KIRBY J: This is the “bash ’em” theory. Fairness is not confined to that.
MR ODGERS: Precisely, but, your Honour, that needs to be so fully understood here because one, the Crown has said fairness is about coercion, there was not coercion, therefore the appeal should be dismissed. We are saying we are not relying on coercion, our point is a completely different one. We are not talking about in the police station where there are all sorts of pressures to speak, and somehow it is okay out in the park because it is a very different situation. We are referring to the obverse face of the right to silence and the point that if you interrogate somebody in an informal setting you create the risk that that person will think that this is not something that can harm me.
In all the circumstances of this case, we know he believed it could not harm him in the sense of the evidence against him. We know the police deliberately chose not to warn him that it could be evidence against him. We have pointed to all the circumstances on 15 May contrasted with what happened at the police station to support an argument that what was done confirmed his belief, that it could not be used as evidence against him.
It is not coercion. It is about incorrect assumptions bearing on his decision to waive his right, not because he is coerced to waive it, but because he makes a fundamental mistake about what might happen if he does waive it. That is why I am stressing, your Honour, that it is not about coercion and to draw a distinction between what happens in the police station and the park does not resolve the issue.
KIRBY J: All I am saying to you is I suspect your notion of coercion is a lawyer’s notion, whereas a psychologist might well say there can be coercion from bashing, and pressure of that kind, but there can be just as much coercion from certain psychological forces presented in particular circumstances to a person who is unfamiliar with them.
MR ODGERS: Your Honour, I do not want to be seen to abandon coercion. We certainly said in our submissions that they put pressures on him to speak. That is contained explicitly at paragraph –
KIRBY J: You list a lot of the ‑ ‑ ‑
MR ODGERS: A list of the various techniques to get him to speak but we would concede that those on their own could not be regarded as causing unfairness on their own. It is in the combination of pressuring him to speak in circumstances where he believes it cannot be used as evidence against him and this leads into what I have been putting about the other ground of appeal which is - I know your Honours find it implausible, or some of your Honours may find it implausible that a person might choose to speak and choose to imply that he is guilty of a crime as serious as this.
The Crown went out of its way to say it is absurd that you might do that to assist your friends. The fact of the matter is his case at trial was that he implied to these police that he might be involved to protect his friends who had been involved in circumstances where he thought that what he was saying was off the record and could not be used against him. That was his case. With respect, that is certainly a matter which is relevant to an assessment of the reliability of what he said. Your Honours may take the view that there were still other reasons why what he said was against interest. I have conceded that.
GLEESON CJ: Presumably, one of the reasons section 84 speaks of specific things like “violent, oppressive, inhuman or degrading conduct” or “a threat” is that when you retreat to a notion of pressure you put somebody under enormous psychological pressure just by knocking on his door and saying, “We’ve come to talk to you about a killing”. That itself would put most people under enormous pressure.
MR ODGERS: Yes, but not the sort of pressure that our legal system regards as sufficient to justify exclusion of any admissions.
GLEESON CJ: No.
MR ODGERS: Section 84, one view of it – I have not taken your Honours to what the Law Reform Commission said – has a public policy goal which is saying, “There are certain kinds of techniques which are just never acceptable, for example, torture and regardless of the impact it has or does not have on the mind of the suspect, it’s not to be accepted”.
HAYNE J: But again, Mr Odgers, it is important to recognise when you make these arguments about coercion and even if you were to go further, which you have not thus far, and to make an argument about inducement, that 85 is not engaged. It is not.
MR ODGERS: I understand that.
HAYNE J: If you speak of coercion, if you speak of inducement, if you speak of pressure, circumstances are not such as to lead to the conclusion that the truth of the admission is adversely affected.
MR ODGERS: I am not relying on coercion, as I keep repeating. I simply say that there were pressures which show that the police were eliciting a confession but that is not the focus of the argument. Secondly, with respect, a confession will be excluded as involuntary under the common law even if it is regarded as reliable if it was not made in the exercise of free choice but the Evidence Act has done what this Court in Swaffield and Pavic thought was a sensible thing which is to hive off issues of reliability. Just because their issues of reliability are put to one side, there are very important principles at stake here which the courts have to protect and that is what we are talking about when we are talking about fairness in this case, protecting his right to silence and whether or not the police impugned that right. We say they did and this Court should act to conclude that in all the circumstances it was unfair, even accepting what your Honour has put to me about the other matters, for the reasons we have put, and that therefore the trial judge was wrong, the Court of Criminal Appeal was wrong and there was a miscarriage of justice because he did not receive a fair trial.
Just returning briefly to the final ground, I have said that the defence case was he implied he was involved because he wanted to help his friends and believed what he said could not be used in evidence against him. That was his case. The Crown said that his defence was absurd and said that the fact that he thought it could not be used against him increased the reliability of what he said. In my submission, it was essential in those circumstances for the judge to say to a jury, “Bear in mind that in circumstances where he believed it could not be used in evidence against him, that may mean that his admission is unreliable”.
GLEESON CJ: If you are right about your proposition that the main evidence against him was evidence of this conversation, then that tends to suggest, does it not, that the central issue in the case was the reliability of what he said in that conversation?
MR ODGERS: Yes.
GLEESON CJ: There was no issue about what he said in that conversation?
MR ODGERS: No.
GLEESON CJ: So the central issue in the case was whether the jury should accept beyond reasonable doubt that what he said in that conversation was true.
MR ODGERS: Correct.
KIRBY J: Is that quite so? I mean, are there not two issues here? One, whether what he said was true or is flawed or may be flawed, but, two, whether he had a fair trial in that this evidence was admitted, although it was unfair to him to admit it at all.
MR ODGERS: I am sorry. I do not understand the Chief Justice. He is talking as I understood it ‑ ‑ ‑
GLEESON CJ: I was asking what the jury had to decide. The jury did not have to decide whether he had fair trial or not.
MR ODGERS: Yes, that is right. So, yes, the issue for the jury at the end of the day since this was the key evidence and said to be the key evidence by the Crown, was – I know that the Crown was, I think, submitting, and you will hear from them in a moment, that in some respects what he said was exculpatory. Looked at in total, what he said on 15 May indicated that he was present at the scene of the Logozzo offences, even though he was reluctant to come out and say so explicitly.
GLEESON CJ: It is not as though he made any unequivocal admission of anything.
MR ODGERS: No, certainly not.
KIRBY J: His reason for not wanting to talk on recording was so he would not look a “dickhead,” which is a very peculiar and odd and unconvincing reason. That is why ultimately I get to a Knudd type point.
MR ODGERS: I am sorry, your Honour?
KIRBY J: Nudd v The Queen, Queensland appeal, that even if one came to a view that there was unfairness in the way the evidence was gathered, in the end it is so powerful and inculpatory that one would not think this is a case where a new trial is required by the application of the proviso.
MR ODGERS: With respect, I do not understand that. If it was unfair within the terms of section 90, it cannot be used against him. Whether or not it is excluded or some direction is given to the jury under section 90 is a separate question, but neither of those things were done here. The question is whether or not on the remainder of the prosecution case that this Court is satisfied of his guilt beyond reasonable doubt. That is the question and as I understand it from Weiss ‑ ‑ ‑
KIRBY J: I thought Weiss asserts an obligation of the appellate court to have regard to whether in the particular circumstances, be it that there is mistake of law or unfairness, that you do not necessarily get a quashing of the conviction and new trial if the case is so overwhelming.
MR ODGERS: Your Honour, I had understood the principle was that, let it be assumed in a case where evidence was wrongly admitted and should have been excluded, the proviso could be applied if on the other evidence in the trial the Court was satisfied of guilt beyond reasonable doubt that it would apply the proviso. That is the proper approach. It is not a case of saying, “Even though we think it should have been excluded, we will nonetheless take it into account and say he was guilty.” I am not sure that Weiss would say that. I cannot imagine it would or could.
KIRBY J: Have a look at Nudd.
MR ODGERS: I would submit, respectfully, that if the Court accepts that it was unfair, then the only proviso question is whether or not there was other evidence which establishes guilt beyond reasonable doubt.
GLEESON CJ: We only get to the proviso on the assumption that this evidence was inadmissible.
MR ODGERS: Yes, of course.
HEYDON J: The trouble is that there is nothing in your written submissions and nothing in the respondent’s written submissions that tends to analyse the other evidence.
MR ODGERS: We have just simply said the other evidence could not ‑ ‑ ‑
HEYDON J: In other words, we have to read 1100 or so pages for ourselves, apparently.
MR ODGERS: Really, your Honour, that is not my fault. That is the matter for the Crown. I have never understood at any stage that the Crown is going to contend that if the evidence should have been excluded, that the proviso could nonetheless be applied. I cannot imagine that they are going to contend that but it is a matter for them if they are and I will respond to it.
HEYDON J: You do not ask for an acquittal?
MR ODGERS: No.
GLEESON CJ: On the other hand, as I understood your argument on the first or the main point, you agree that if a view were taken that the inculpatory effect of this evidence that is the subject of the dispute were held to be powerful, that would be a reason for concluding that it was not unfair to admit it.
MR ODGERS: I did concede, I think, that if the Court formed a view that it was highly probative of guilt, and maybe reliability is another way of saying it, it was reliable evidence of guilt, that is, likely to be true, then that would be a factor bearing on the question of fairness but would not preclude a conclusion of unfairness and that, as was said in the cases, that it does not end the debate.
GLEESON CJ: No, it would be just a relevant factor.
MR ODGERS: Yes. I am just troubled, your Honour. I am hesitating because I am not sure – it is not case of throwing it into the balance. It is rather a case of saying, well, there is no unfairness on the basis of unreliability, right? Yes. Put that to one side. I am not sure, with respect, that it would be appropriate to say, well, there are other factors which point to unfairness, but they are somehow balanced out by views about reliability.
GLEESON CJ: I thought what you said this morning was that it is not merely a case of unreliability being a ground of unfairness. If in a particular case you find that the confession is reliable, that may be a reason for concluding that it is not unfair to admit it.
MR ODGERS: I think I said that and I am now questioning whether that concession was rightly made for the reason I have just explained, and certainly there are some statements in Lee and Swaffield and Pavic which are consistent with what your Honour just put to me and probably explain why I conceded it. But I am now minded, your Honour, to step back a little and contend that if there are reasons which support a conclusion of unfairness, that should not be balanced against the reliability or probative value of the evidence tending towards guilt, because ‑ ‑ ‑
KIRBY J: I do not think it is a matter of his Honour stepping back a little. I am now completely confused. It is a question of whether you step back a little from your concession. Do you make the concession or do you withdraw the concession?
MR ODGERS: I withdraw it.
HEYDON J: We are talking about a common law discretion. Before Bunning v Cross the exclusion of illegally‑obtained evidence was subject to a common law discretion very like Lee, was it not? It was a question of unfairness.
MR ODGERS: It was never clearly articulated, but that seems to be correct, yes.
HEYDON J: Bunning v Cross identified a lot of factors which were relevant. It, as it were, gave detail to a discretionary power.
MR ODGERS: And separated out public policy considerations.
HEYDON J: Section 138(3) is, speaking very loosely, a sort of codification of matters of that kind.
MR ODGERS: Yes.
HEYDON J: Given that the explanatory memorandum tells us that section 90 is “the common law discretion”, why would one not apply a similar list of factors in relation to section 90 and you take into account the probative value of the evidence which might be high, the importance of the evidence in the proceeding – you say it is crucial – the nature of the relevant offence – murder – the gravity of the impropriety or contravention – you were a little critical of it but one has seen a lot worse – whether it was deliberate or reckless – one has to do something about that – why does one not go through that sort of analysis? It might have been done at common law.
MR ODGERS: There is a statutory reason which is that section 90 has not attempted to ‑ ‑ ‑
HEYDON J: What it is doing is picking up a common law rule. Can we not look back at the common law rule?
MR ODGERS: But, your Honour, the common law rule has, so far as I apprehend it, never attempted to spell out factors like your Honour – spelt out for 138 in respect of public policy in respect of issues of fairness.
HEYDON J: Bunning v Cross did.
MR ODGERS: But Bunning v Cross was not about fairness. That is the whole point. It was not about fairness. It was about public policy.
HEYDON J: It was giving content to a vague discretion that began with Lord Sumner in Ibrahim’s Case.
MR ODGERS: I can only strongly submit to your Honour that that is not correct and that Bunning v Cross is not about fairness. Bunning v Cross is about public policy reasons for excluding evidence and had little or nothing ‑ ‑ ‑
HEYDON J: You say Bunning v Cross had nothing to do with fairness?
MR ODGERS: Little or nothing to do with fairness.
KIRBY J: What is being suggested to you sub silentio is that exclusionary rule is concerned with the fairness of the trial. This is the answer to my question of what the law is doing here. It is trying to ensure an overall fairness in the trial – fair to the accused, fair to society.
MR ODGERS: Section 90 is talking about fairness to the defendant. It does not incorporate fairness to anybody else. It is specifically limited to fairness to the defendant.
HEYDON J: Just one moment. I thought section 90 was to be read in the light of what the explanatory memorandum said about it.
MR ODGERS: Yes.
HEYDON J: So read, it casts us back as a matter of history into the common law.
MR ODGERS: I have conceded that the common law position on fairness is very relevant to the proper application of section 90 but I am challenging your Honour’s submission that fairness has ever been seen in terms of the kinds of balancing of factors that are now spelt out in section 138. I would submit, as I have, that Bunning v Cross is not about fairness. Indeed, this Court in Swaffield and Pavic and this Court in many judgments has drawn a bright line division between issues of fairness on the one hand and public policy on the other. If you are going to be incorporating circumstances relevant to public policy into fairness, you are negating both the structure of the Evidence Act and the whole approach of the common law since Bunning v Cross at least.
GLEESON CJ: Mr Odgers, have you covered what you wanted to say about what I called the second ground?
MR ODGERS: I think I have, your Honour. I rely on the written submissions and I will not ‑ ‑ ‑
KIRBY J: There was no request for redirection?
MR ODGERS: No, that is correct, and there is an affidavit from trial counsel as to that in which she said she had no tactical reasons for not seeking it. It is one of those cases where I say there was a duty on the trial judge because of what had happened to say something to balance out what the Crown had said, but as I say, I am not going to say any more in respect of that and what is in the written submissions. I have dealt with the ruling of 24 April. I am not going to say any more about the proviso until I hear from the Crown. Is there anything else, your Honours?
GLEESON CJ: Thank you, Mr Odgers. Yes, Mr Frearson.
MR FREARSON: Thank you, your Honour. I propose to be reasonably succinct in the light of the discussion today, but the thrust of the submission is this – and I will call it the unfairness discretion for ease of reference ‑ ‑ ‑
KIRBY J: Could I ask you – I know you do not want to get too close to Mr Odgers, but could you go to the middle because I am a little hard of hearing and I need to hear every word of this.
MR FREARSON: Thank you, your Honour. The unfairness discretion was born of considerations analogous to voluntariness, so the concepts that were relevant to that were things like compulsion, oppression and torture, things that are now replicated in, to some extent, section 84 of the Evidence Act. Now, it was an adjunct to voluntariness. What was voluntariness concerned with? It was concerned with the effect or the mental strain on a person that caused him to speak not in accordance with his will, for his will to be overborne, to speak when he did not want to speak.
It is true that you can equate, to some extent, voluntariness with compulsion, but obviously the unfairness discretion is not dealing with that threshold of influence or pressure because compulsion would be involuntariness. What section 90 deals with is something less than that, something analogous to the considerations of voluntariness but something less in terms of influence or pressure.
Although voluntariness itself afforded quite extensive protection, as Chief Justice Latham said in McDermott, the discretionary exclusion was acknowledged as an extension of the common law rule. There was some debate about the actual ambit of voluntariness, particularly I think in England where it had a different ambit to Australia, but because of the confusion about the actual ambit of voluntariness this unfairness discretion was invoked.
Now, it was invoked when there were substantial reasons for rejecting what was otherwise relevant and admissible evidence, and that is why the onus was on the accused. I interrupt here and say that in relation to the legislative matrix that we now have we have a complication because in section 138 the onus is in fact on the Crown. Once the impropriety is there the Crown has to demonstrate the desirability.
So in response to what Justice Hayne said earlier when he posed those questions to Mr Odgers, really once you get past 138 you have already passed that hurdle, and you have passed other hurdles of the Evidence Act, 84 and 85. According to Jeffries which was approved in Lee, what was of concern was the mental condition of the person who made the confession. That was always considered to be the decisive factor, and it had particular significance when someone was confined, because confinement of itself imposes a certain type of pressure. Where pressure leads to things like exhaustion or lack of comprehension, where it leads to those matters you can invoke this discretion of unfairness.
What I wanted to say was that historically somehow voluntariness was linked with the integrity of the evidence and my submission is that, just as voluntariness was originally at least linked with the integrity of the evidence, so should the unfairness discretion. It seemed to wander off by the time of Foster when they introduced other considerations rather than reliability and the actual integrity of their evidence. But the rationale originally for rejecting non‑voluntary confessions was the risk of injustice. I put it as the risk of an untrue confession, the risk of an untrustworthy confession, Swaffield paragraph 77.
KIRBY J: May there not be another reason behind it, namely preventing torture? The courts, as temples of justice, do not permit their process to be debased by allowing involuntary confessions that have been bashed out of people to be received.
MR FREARSON: That could be true, your Honour, but that would be a secondary reason. The main reason would be because the confession of itself produced in those circumstances would be inherently untrustworthy.
KIRBY J: I just think that you are trying to impose on both the involuntariness and fairness test too facile an explanation for the rationale.
MR FREARSON: I am trying to link them, your Honour, but I did not know I was quite going that ‑ ‑ ‑
GUMMOW J: You referred to Pavic paragraph 77, but you did not read 78.
MR FREARSON: No, I did not read that, your Honour, because I realised that after Foster the court got away from the unreliability test. They moved on to consider other things that, in my submission, are more appropriate for the public policy discretion. Perhaps if I can just continue where I left off. Whilst there is no presumption of falsity in relation to non‑voluntary confessions, the point is that the evidence is at risk of being untrustworthy, as Justice Dawson said in Cleland at page 28. Now, similarly, when you are dealing with the adjunct to voluntariness, again the rationale must be, in my submission, potential untrustworthiness, as Justice Dawson said at page 30 in Cleland.
Now, what needs to be looked at is the impact of the circumstances upon the mental state of the person making the confession to arrive at a position where he will risk penal consequences because of inappropriate influence or pressures.
GLEESON CJ: Is not the significance of paragraph 78 of Swaffield that the examples that it gives from McDermott and Amad are examples of specific or concrete kinds of procedural unfairness? Sometimes people talk about unfairness in a kind of cosmic sense, but the unfairness that is being spoken of in paragraph 78 of Swaffield is a quite specific procedural unfairness that would produce the result that the trial is not fair.
MR FREARSON: Yes, your Honour, but what I was trying to do, and the Court may not accept this, but I was actually trying to link the original rationale for involuntariness with the rationale for the adjunct to involuntariness, namely the unfairness discretion, and suggest that they are all dealing with really the trustworthiness and the integrity of the evidence. That is what I have been attempting to do. Whilst they do not require compulsion for the adjunct, you require something less than that such as improper influence or pressure and something such as a trick will not satisfy the requirement. Now, in Swaffield Justice Brennan favoured remitting considerations of improper conduct to the public policy discretion in all circumstances other than where it impacted on reliability.
GLEESON CJ: What is the section of the Evidence Act that would cover a case where a person is secretly administered drugs that lower his inhibitions?
MR FREARSON: That would be improper conduct, section 138 and the Crown would have the onus.
GLEESON CJ: What is the section that would cover a case where a person is being given medical treatment that would reduce his inhibitions, not by police but by a doctor?
MR FREARSON: That could be 90. If the police interrogated a person and his condition was such that he was likely to say anything that could attract the unfairness discretion of section 90.
HEYDON J: It could be 85(3)(a).
MR FREARSON: Theoretically at least it could attract 90.
GLEESON CJ: The example I have given would not necessarily involve any kind of improper conduct, or even knowing conduct on the part of the police.
MR FREARSON: That would not involve improper conduct, your Honour. That is why I said 90.
GLEESON CJ: It might touch on what you call voluntariness because of the medical condition or medical treatment that the person is receiving. I am just suggesting to you for your consideration that matters like that and the cases referred to in paragraph 78 of Swaffield are a little difficult to reconcile with the proposition that there is a single rubric such as voluntariness under which you can test or apply section 90.
MR FREARSON: Yes, your Honour, I do not say you have get to the threshold of the voluntariness consideration but I am saying that these are lesser pressures that do not reach the threshold of voluntariness, but nevertheless impact upon the person making the confession. It is an improper influence or pressure. I am saying that is what this section 90 discretion should be limited to.
The Evidence Act has its own scheme designed to protect the integrity of evidence and we have heard about it today – sections 84, 85 and 138. The scheme is already there. If you are talking about “mere” improper conduct that does not actually do anything in terms of the integrity of the evidence, my submission is that that should be remitted to the public policy discretion as Justice Brennan said in Swaffield. For example, in paragraph 91 of Swaffield what tended to happen when looking at the common law and looking at the overlapping discretions is the courts would lump in together the two discretions and when you are talking about obtaining evidence, for example, at too high a price, that is a public policy consideration. That is a 138 consideration, if you obtain things at too high a price because of some impropriety.
The unfairness discretion should go back to its home where it was born back in the considerations analogous to voluntariness and the integrity of the evidence produced. Looking at the question of unfairness here, the facts do not indicate any unfairness in terms of using the evidence against the appellant. You have a situation where he was not in custody, that is a very significant consideration and it seems to run through a lot of the cases on voluntariness and unfairness, people are mistreated in custody.
We do not have that situation here. We have somebody who knowingly and willingly spoke to the police. He knew they were police. He knew they were investigating a murder. He gave a version of events and ultimately he claimed he planned to give that version. He wanted his account to be accepted by the investigating police in relation to the murder. He possessed no independent right not to be recorded. That is a matter for the statute and the statute was complied with here. This had the sanction of a listening device warrant. Unfairness is always a question of evaluation and a question of degree.
KIRBY J: It is, but if public officers take an accused person off for a private little conversation on a park bench, or parked in a park, the vibes, if I can use that word, that are sent out are quite different from if they are discharging their public duties in the normal way of a policeman. It alters the relationship of the State and the individual.
MR FREARSON: The other vibe is this. When he is at the police station he is asked about a murder and he says, “I’m not going to deny it”, what are the police supposed to do? They pursue him ‑ ‑ ‑
KIRBY J: Whose suggestion was it to go to the park? Was it the accused or the police?
MR FREARSON: No, your Honour, the police officer. They were pursuing him ‑ ‑ ‑
KIRBY J: I do not like it. It sounds like a way in which you will drive a camel and horses through the ERISP system which was hard‑fought for by a series of decisions of this Court and, ultimately, by McKinney and Judge and by Law Reform reports. It will be destructive of that whole system, very bad.
MR FREARSON: Your Honour, it is not a thing that is done casually, it is a thing you do when you get the sanction of a judge and you get a listening device warrant. You cannot just go and tape people in parks, you have to go through a process and, on one view of it, the police officers in investigating a murder have a public obligation to pursue it, to try and get the account on tape. That is their job.
KIRBY J: By tricks.
MR FREARSON: No, your Honour, they are investigating a home invasion murder. Their job is to pursue it and to ferret out the information. That is their obligation.
KIRBY J: In a fair way.
MR FREARSON: In a fair way and what impacts on fairness here is that they went to a Supreme Court judge and got a warrant and he said, “Go ahead”.
KIRBY J: Yes, but the Supreme Court judge did not know what was going to be said, what warning was going to be said and what questions were going to be asked, “We’re not going to take you back to put the shackles on you now,” and all of this. I could well understand a warrant being issued. Did the Supreme Court judge know it was going to happen in a park?
MR FREARSON: No, your Honour, but he would have known that the police had a hopeful expectation of getting an admission.
KIRBY J: In a park? I am sorry, 20 years it took us to change things. Now this is going to undo it.
MR FREARSON: No, your Honour, it has been changed. We had an example of the situation being changed here when Justice James excluded that conversation at the police station.
KIRBY J: Well, there is a question then as to the discrimen that his Honour chose. Why exclude the latter part but not the earlier? Is that a viable discrimen?
MR FREARSON: Arguably, the latter part should have gone in as well but it is not necessary to consider that ‑ ‑ ‑
KIRBY J: Spoken like a true Crown Prosecutor.
MR FREARSON: Your Honour, was it that transparent? I did not mean to be that transparent.
KIRBY J: It was meant as a compliment.
MR FREARSON: Thank you, your Honour. Arguably, it should have gone in but it did not go in and there is not very much point in talking about it but, obviously, if we treat this in terms of a trick, there was an escalation of the trick there. If we factor in to the circumstances in which the admission was made all the circumstances including the state of mind of the police, you can look at all these things objectively at the end of the day. If you factor all that in and when they said to Mr Em, “It is not as if we’re going to lock you up”, that did escalate things and one could well understand why the judge thought, “That’s got to go out”.
I just want to say something very briefly about – I do not know if I need to – about this question Justice Gummow raised, the problematic question about what is this section 90? Is it actually a discretion? What is it? In one sense here we do not need to go there because after the evaluation and the Court concluded it was not unfair to use it, you do not get to do anything at that point because it is a discretion to exclude. You do not need to do anything. But on the more basic question, where a power is conferred upon a judicial body by permissive language, it is often used not to confer an actual discretion but, rather, in recognition of the validity of the fact that the judicial Tribunal makes the evaluation.
Now, much depends here on what is meant by the word “discretion” where there is a choice for good reasons for doing things. In one sense that can be a process of evaluation that is so analogous to a discretion it is often described as a discretion. Now, it is probably here what they call a concealed discretion. But it does not really matter at the end of the day because we know that a judge can look at it, form an evaluation of it for good reason and make a conclusion about it at the end of the day. So what you actually call that process does not really matter. I was talking about ‑ ‑ ‑
GUMMOW J: You would not say, would you, that if the Court answers yes to (a) and (b) it may then decide to admit the evidence?
MR FREARSON: No, I do not say that, your Honour.
GUMMOW J: So it has got a choice of refusing to admit it or refusing to admit it on a particular fact basis?
MR FREARSON: Yes, your Honour. But there is an onus question here. If you do not find the threshold facts, you do not do anything.
GUMMOW J: Of course.
MR FREARSON: Yes, your Honour. I think the case I was talking about was Ward v Williams which is (1954) 92 CLR 496, particularly at 506, but there is a lot of academic writings on this point which, you know, discretionary powers, illegal ‑ ‑ ‑
GUMMOW J: We had an appeal from the Northern Territory, Leach, I think, last year.
MR FREARSON: There is a lot of academic writings on ‑ ‑ ‑
GUMMOW J: Leach v The Queen.
MR FREARSON: That is right. It was mentioned in that as well. I wanted to say one thing about the facts in relation to what was the appellant’s belief when he left that police station on the first occasion and he was charged and arrested and he returned home. I am referring to appeal book 1, page 306, line 50. His state of mind was that he thought he would be charged and arrested after the unrecorded conversation at the police station. Now, I do not think it is terribly clear what his state of mind was. It has been assumed here that he had some belief about a recorded conversation but I am not quite sure that is actually borne out.
KIRBY J: What was that reference again, please?
MR FREARSON: Sorry, your Honour.
HEYDON J: Page 306, line 50.
MR FREARSON: Yes, page 306, line 50.
HEYDON J: That of course was something said during the trial. The evidence had been admitted before that point.
MR FREARSON: That is exactly right, your Honour.
HEYDON J: Can one take into account what was said during the trial in assessing the correctness of Justice James’ ruling at the end of the voir dire.
MR FREARSON: That is strictly correct, but in terms of whether after it got in it should have been back out again ‑ ‑ ‑
HEYDON J: But no one ever applied for that.
MR FREARSON: No, no, they did not apply for it, so there is no error of law there.
HEYDON J: I mean, it is a slightly difficult position where the accused did not give evidence on the voir dire. The judges below sort of grope around and try and draw inferences from circumstances as to what the state of mind might have been. Are you relying on this evidence to support your position as to the correctness of Justice James’ ruling?
MR FREARSON: Perhaps I should not. I think it is strictly not relevant to that. I think the Justice James decision has to stand or fall on the evidence on the voir dire. That is the strict condition of that. That is all I wanted to say about ground 1. On the other ground, the question of the warning ‑ ‑ ‑
KIRBY J: Can I ask, are you aware of any writing that analyses what the policy of the law is?
MR FREARSON: Look, I am not aware, and I think we did look but we did not find anything, but we can have another look, I am sure, your Honour.
KIRBY J: If you find anything I would be grateful for it. If you could read Pavic again, you do realise that these are things that are all searching for a common end and with different overlapping circles in a sense and I just do not quite understand the fundamental rationale of the law here.
MR FREARSON: That is true, your Honour, and when one looks at sections 84, 85 and 138, it is very difficult to see the actual scope of 90. For example, one scope of 90 could be in relation to 85 where there has to be a likelihood that the truth of the admission is not adversely affected, if you had something less than the likelihood, say, a risk of the truth being unfairly affected, arguably there would be some scope there for 90 to say it got in under 85 but we put it out again under 90. I am not trying to say that ‑ ‑ ‑
KIRBY J: You keep coming back to reliability, but there is another value and that is that a trial in our system in a very serious charge should be manifestly fair; that this is something the accused has a right and the public has a right to see the trial conducted in a manifestly fair way.
MR FREARSON: Yes, and obviously, your Honour ‑ and I think that that is largely accommodated by section 138, the public policy discretion. I do not think really that transgressions in that regard have much to do with section 90, not on the way that I am presenting my submissions. In relation to the ground about the warning, no warning was ever requested. It obviously was not beneficial in any way for somebody making a confession to police about a murder, and it was the pivotal question in the trial whether the story put up by the appellant had anything to it. That was a question…..If ever there was a case that did not require a warning, it was probably this one. Thank you, your Honour.
GLEESON CJ: Yes, Mr Odgers.
KIRBY J: You did not mention the proviso at all. Mr Odgers was sitting there, bated breath.
MR FREARSON: I did not. I do not think I can say anything about the proviso because we do not have the admissions in – the Crown does not really have a case with the other evidence, your Honour, so we are not in proviso territory.
KIRBY J: That is a proper concession.
HEYDON J: That points against not ordering a new trial.
MR FREARSON: Your Honour, what can I say?
GLEESON CJ: What happened to Mr Mao Vann?
MR FREARSON: I just cannot remember, your Honour.
GLEESON CJ: He was dealt with separately, was he?
MR FREARSON: He was dealt with separately and there was a question of parity on the sentence. I think he was sentenced but what for I am not
quite sure at the moment. I know that that came into the sentencing proceedings ‑ ‑ ‑
KIRBY J: Just before you sit down, I am now in a state of confusion, because Mr Odgers said he did not ask for acquittal. He asked for a retrial, and then you say, “We can’t make our case out if we don’t have this confessional evidence”, and, as Justice Heydon points out, that rather suggests that it is a matter for acquittal rather than a new trial. If you cannot make it out you should not have a second chance to do so.
HEYDON J: On the first three grounds, that is. Obviously, on the fourth ground there would be a new trial.
MR FREARSON: Yes, your Honour. I do not want to interfere with Mr Odgers’ concession but I would have thought that if ‑ ‑ ‑
KIRBY J: I do not know where it all stands now. He seems to be conceding and you are conceding.
MR FREARSON: If the admissions go out there is no case. That is the fact of it. There is no case.
KIRBY J: So you accept that apart from the confession, there is no case that the Crown could present against the appellant?
MR FREARSON: There is no case that could get to a jury. There is some evidence but it would not be sufficient to establish the charge beyond reasonable doubt. That is the fact of it.
GLEESON CJ: Yes, Mr Odgers.
MR ODGERS: Your Honours will not be surprised that I now submit that your Honours should not order a new trial if we are successful in respect of the first three grounds, fairly obviously, and I do not think we need to get into proviso discussions either. I am grateful to the concession made. It does highlight the importance of this evidence. Can I just say, so that there is no confusion, we have not conceded that the admissions were reliable. We have accepted that the judge ruled under 85 that he was not satisfied that they were likely to be, I think, unreliable. Obviously, the wording ‑ ‑ ‑
GLEESON CJ: We know that the jury thought beyond reasonable doubt that they were reliable. Is that relevant?
MR ODGERS: We know that. That is right, but we also know that the judge was not – I am sorry, it was a positive finding. I should go to the language.
GLEESON CJ: The reliability of these admissions was the main issue the jury had to decide.
MR ODGERS: Yes. I am dealing here with section 90 and section 85 – the question for the judge was, was the judge satisfied that:
the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
We have not challenged his finding.
HAYNE J: You never get to a section 90 question at trial without first confronting the section 85 question at trial.
MR ODGERS: Certainly.
HAYNE J: That requires you to conclude at trial that the circumstances were such as to make it unlikely that the truth was adversely affected.
MR ODGERS: Yes, and as my friend has said, that leaves open a situation where even though the judge has made that finding that there is still a risk – it may be a substantial risk – that what is said is unreliable or untrue.
HAYNE J: Or is still a real live issue for the jury about reliability. I understand that.
MR ODGERS: No, your Honour. I am saying to your Honour that that is a factor which can impact on section 90, as indeed all the authorities have repeatedly said and as the Chief Justice has been putting to me and I have been agreeing. Unreliability, or the possibility that it is unreliable, is a factor which may support exclusion under section 90. We contended in the Court of Criminal Appeal that there was a real risk that what he said was unreliable. That is, of course, the foundation of our fourth ground. That was also something put as a section 90 consideration. We are certainly not conceding when the Chief Justice asked me whether or not that it was reliable, absolutely not.
On the other question the Chief Justice asked me, we are not conceding that even if this Court took the view that what he said was reliable I withdrew my concession, if I had made one, that that could somehow be thrown into the section 90 equation because we are submitting that if it is unfair for other reasons to let it in a conclusion that it is likely to be reliable could not alter that conclusion.
All I am doing at this point is emphasising the point that was made by the Crown which I endorse which is that reliability issues can arise even though the section 85 threshold has been passed. That, I think, is all I can usefully say in reply.
GLEESON CJ: Thank you, Mr Odgers. We will reserve our decision in this matter and we will adjourn until 10 o’clock tomorrow morning.
AT 3.24 PM THE MATTER WAS ADJOURNED
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