Forrest v The Queen

[1989] HCATrans 176

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A37 of 1988

B e t w e e n -

GORDON RONALD FORREST

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

Forrest

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON :,J.ONDA Y, 2 J. AUGUST 198 9, AT 11 . 31 AM

Copyright in the High Court of Australia

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MR	S.W. TILMOUTH:	May it please the Court, I appear mv

learned friend, MR C. KOURAKIS, for th applicant.

(instructed by Zacharoy,annis Luppino & Eckermann)

MR J.J. DOYLE, QC:  If the Court pleases, I appear with

mv learned frien<l, MRS.A. MILLSTEAD, for

the respondent. (instructed by Crown Solicitor

for South Australia)

MASON CJ: 

Yes, Mr Tilmouth.

MR TILMOUTH: 

May it please Your Honours, I hand up the written

outline and I also hand up a one page chronology of
maior events.

MASON CJ:  Thank you. Mr Tilmouth, which of these points

are special leave points?

MR TILMOUTH:  We submit the SERVICE AND EXECUTION OF PROCESS

ACT point is a special leave point. To a lesser extent
we acknowledge that the questioning of Alexander,

or the cross-examination, is really a trial matter,

but the single issue, we would submit, on that is

that it is for police officers to heed what the courts

say in relation to matters of procedure and, in our

submission, there is in that point the semblance of a

special leave point, but the main one is the first

one I have iust mentioned.

MASON CJ:  Yes. Would you proceed to the first of those

points.

MR TILMOUTH:  If the Court pleases. Your Honours, as a

preliminary matter, may I mention that section 78B

JUDICIARY ACT notices were served, there are no

interveners and my instructing solicitor and my junior

counsel have filed an affidavit to that effect in the Court Registry. Your Honours, the Crown case

was dependent upon a confession which was allegedly	on the armed robberies in this matter substantially
made. by the applicant. That confession appears at
page 147 and the 11 pages which follow in the appeal
book. Now, Your Honours, before making one or two
submissions about that document on its face, could I
simply summarize the chronology and remind Your Honours
of this background. Number 3 on the chronologv
shows that there was an arrest at 4 am, the apolicant was in custody - that is on the Sunday morning - for
the whole of the Sundav, as appears in the following
numbers on the chronology. He had been before an
out-of-court sessions hearing· before a iustice of
the peace which apparently in Victoria is simplv an appearance at the watchhouse window, where he was
remanded to the following morning, which is the Monday,
of course.

On the Monday morning after warrants were endorsed and

served on him, point number 11, there was a remand in

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custody solely for the purposes of question and

what I am taking to Your Honours now at page 147 is

the questioning which followed between 11.30 am at
the armed hold up squad at St Kilda Road, which
questioning continued until 1.15 pm, point 12 in
our chronology, after the remand in custody for the

purposes of questioning.

It is that period which we say, after the

appearance before Mr Dugan, which was a period in custody which was illegal or unauthorized. Your

Honours, as to the confession itself - - -

BRENNAN J:	Why do you say it was illegal?
MR TILMOUTH:	Because it was not authorized by the SERVICE

AND EXECUTION OF PROCESS ACT.

BRENNAN J:  It was authorized by an order of the magistrate,

was it not?

MR TILMOUTH:  That is true·, but under the Victorian provision

which we say is inconsistent with the Commonwealth Act.

BRENNAN J:  Do you say that no power was purportedly, though

wrongly, exercised under the Commonwealth provision?

MR TILMOUTH:  Yes, we do. We say there was no power at all

purportedly exercised under the Commonwealth Act.

At all times the proceedings were purportedly exercised

under State provisions. The whole application was on

a State form, it was couched in terms of the State

section and, in fact, the extradition proceeding was

held over pending the question.

BRENNAN J:  I would iust like to understand the basis on which

you are putting this. Are you saying that the court

order was a-nullity in every sense?

MR TILMOUTH:  Yes, we are, because it was in conflict with the

Commonwealth Act, simply no power to remand in custody

for questioning at all, and what we do say is -

BRENNAN J:	Was there power to remand in custody?
MR TILMOUTH:	There was, but for purposes limited to the Act

itself, namely - - -

BRENNAN J:	How do you say it is a nullity merely because the purpose for which the power was exercised was not an
appropriate purpose?
MR TILMOUTH:	Because the only valid remand in custody would be

to ad~ourn the proceedings in order, for example, to

ascertain whether there should be return at all under

section 18(6), or for some other legitimate purpose

attached to or incidental to the primary purpose under

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very quickly.

the Act which is either to return or to release.

BRENNAN J:  Yes, very well. Thank you.

MR TILMOUTH:	Your Honours, my point in taking you to page 147 was simply to make a few points about the importance
of the record of interview itself in the Crown case
and point to some matters which we say were relevant
to the defence case.  At all events this all
occurred after the remand in custody which, we say,
was the sole purpose of that remand. Now, Your Honours
can see at once that it is a hand-written record
of interview, it occurred at St Kilda Road, it was taken in the presence of Detective Chamberlain and,
if Your Honours please, Detective Alexander was the
questioner and the writer.  Now, Your Honours can
see the first question on page 147 is a preliminary
one:

As you know my name is Alexander and

this is Det Chamberlain. We are from

the Armed Holdup Sqd in Adelaide -

and the letters "CTN" appear, and we were told in

evidence that that was a shorthand form for a caution:

Do you understand that?---Yes.

Then there were questions about his name which he

answered. He was asked whether he wanted a solicitor,

friend or relative present and he said, "No", and I

skip over to page 148, the second question where the

applicant was asked, at about point 3:

We would like to speak to you about a number of bank holdups which have occurred in Adelaide over the past

few months?---I could do without all this.

We believe that you have done a number	of bank holdups in Adelaide?---Yes, so.
Shane Osten spoke to members of the S.A.
AHS -

that means South Australian Armed Holdup Squad - 1n Sydney yesterday?---What did he say.

He has implicated you in armed robbery offences and said that he assisted you to escape?

Over on to page 149 there is an answer and then

Alexander said:

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Are you prepared to tell us about

the banks you did in Adelaide?---Alright,

but where am I going to be tonight?

We intend to fly you back tonight?---Where

is young Mark?

He is in another room?---Will I be able to speak to him before we leave?

Yes we will arrange that.

Now, Your Honours, could I interpolate there to say

this; the accused's case and the applicant's case

was that there was no such questioning at all. He

agrees that he went back to the armed hold-up squad

and he agrees that he consented to do so before

Mr Dugan that morning at about 10.50. What he says,

however, was that his consent was conditioned upon

him being able to see this person referred to as

Mark Osten in the passages to which I have just referred, and could I mention to Your Honours that

there was evidence that Mark Osten was outside the

city watchhouse area or the courtroom from about

10 o'clock that morning and he was also present, as

this interview conveys, at the St Kilda Road squad

office and he was able to see the applicant only after

this record of interview had concluded.

It was obviously a matter of concern, we would

submit, to the applicant, and it is inherent in the record of interview, the parts I just read, that he

wanted to see him. Now, the other feature of the

record of interview, Your Honours, is this, and could

I demonstrate it by going to the bottom of page 4.

After some other preliminary questions, Alexander put

th~ first count, in effect, to the applicant:

On Tuesday the 25th of March this year

the State Bank at Belair Rd, Mitcham

was held up by an armed male offender

who escaped with approximately $10,000,

the offender left the scene in a blue

Camira Sedan UMG 146. Shane has said

that he obtained that car for you and

picked you up in it on the afternoon of
the holdup. Is that correct?---Yes.

What have you done with the money from

that holdup?

Alexander launches straight into that -

Look, I don't intend to go into any

details about the money or anything else

at this stage. I did it, Shane has told

you that. I may speak to you later about

the details but not now.

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I wish to speak to you about other offences committed on banks in S.A.

Are you prepared to answer those questions?

---Yes, I will tell you if I did them or

not, but at this stage I will not go into

any details.

Then, YourHonours, to cut a short story even shorter,

what follows on the following pages are a series of
bland allegations virtually reading a draft

information as to the remaining five counts, and the

answers to them are simply, "Yes"; "Did you commit

that offence?---Yes.", "Will you give details?---Not

at this stage.", "Not at this time.", "Yes, but

no details", and so on and so forth.

Now, the point about that, if Your Honours please,

is that the record of interview contained nothing at
all that the police did not already ~now. It contained

no esoteric knowledge in the applicant which could be,

in some way, independently verified and therefore
support the confession and~ more than that, it
contained merely a bald affirmation, "Yes", "No"

details, to each of the principle counts without any

other embellishment or detail whatsoever. Finally,

Your Honours, the interview which concluded at about

1.15 - this is page 157 - it occupied but 11 of these

pages which Your Honours have before you, one-and-

three-quarter hours of questioning which Alexander

and Chamberlain both said was an exhaustive

interview, word for word except of the few shorthand

references such as CTN for caution, and at page 11

Your Honours will see the question:

Are you prepared to read the notes I have made of our conversation and sign them if you agree they are correct?---Not at this

time .

When will you give us more details about

the holdups?---I may speak to you again

back in Adelaide.

The evidence was, Your Honours, that some weeks later

both detectives went to see the applicant when he was in custody in gaol and he told them he did not want

to answer questions. That was some weeks later. I

cannot bring the exact date to mind at this stage.

So, if the Court pleases, that was substantially the

Crown case. There were other confirming details, it

was said, in particular poor alibis, lifestyle

consistent with a bank robber, association with the

lad Shane Osten, who was suoposed to have been an accomplice

andone or two other matters, but there is no doubt that

the Crown case depended substar.tially on this 11-page

document which was said to be the confessional

material.

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Your Honours, before going to the SERVICE

AND EXECUTION OF PROCESS ACT point itself, may we

make three other important points. The first is,

Your Honours, that, as the chronology reveals, the

Adelaide police had been in Melbourne since midday

on the day of the applicant's arrest and our point

was and is that there was a perfect opportunity for

them then to serve or execute the original warrant

which they brought with them.- he was in custody on

the provisional warrant at this stage - and to question

him during the Sunday afternoon or the Sunday evening.

Now, in effect, Your Honours, they said that they

dQd riot do so, even though they could have, and we

submit that that was an important omission on their

part to ensure that the proceedings under the Act

were dealt with expeditiously rather than delayed.

Alexander's evidence on that, Your Honours, is at pages· 77 and 78 in its critical respects - this is

the voir dire evidence - and at line 23 Alexander

acknowledged that he arrived about midday on

the Sunday, line 25 he was Ln possession of the

original warrant, and line 32 that he was over in

Melbourne for the purposes of extradition, and then

he went on to speak about a short conversation he had

with the applicant on the Sunday evening at the city

watchhouse. That occurred, Your Honours, at 6.30 pm

page 77, line 2 - and occurred about ten minutes -

line 5. This is what Alexander said about that at

line 33:

Q. You indicated that to him -

that

lS the applicant -

on the Sunday evening.

A. That lS correct -

that

1s, his purpose was to be there for extradition -

with him then, didn't you. Q. And you had the opportunity to speak

A. Yes.

Q. And you could have spoken with him about the robbery matters at that stage.

A.	Could have.
Q.	But your conversation with him was

relatively short, about ten minutes or so.

A.	That is correct.
Q.	Were you on duty for the remainder of

that evening or some part of it.

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A. Yes.

At the bottom of page 78, to summari?.e it, Your Honours,

Alexander also held open airline tickets for the

extradition of the applicant back to Adelaide.

Re had no definite time fixed for that purpose.

So our point is here, Your Honours, there was

every opportunity for the two detectives coming from

Adelaide and plenty of time for them to question

him lawfully, provided they went through the

correct procedures at the city watchhouse - and

there was really no explanation as to why they did

not avail themselves of that opportunity that day -
when, of course, the applicant had not been in

custody for any near the length of 30 hours that he

was by the time that Mr Dugan made his order.

The second matter, Your Honours, is - and this is

in further answer to Your Honour Justice Brennan - that

the remand in custody was solely for the purpose of

questioning, and that appears from Detective

Kapetanovski at page 47. He is the Victorian police

office~ and at page 47, Your Honours, at line 31,

Kapetancvski refers to the extradition proceeding.

He prosecuted it, in effect:

I explained to Mr Dugan that Mr Forrest

appeared on a provisional warrant before

him and that there would be an application

for extradition proceedings to be conducted

later on on that day. I asked that the

extradition matters be stood down

temporarily.

Now, there are two points to be made out of that;

the first is that the original warrant had been executed

but apparently, although it is partly ambiguous, what

was before Dugan was still the provisional warrant.

Secondly, it is clear, in my submission, that

Kapetanovski sought the remand in custody for	questioning and asked that "the extradition matter be
held over" are the words he used. Your Honours,
that seems to be clear enough from the actual
documentation which is at page 141 and again this
is in further answer to Your Honour Justice Brennan.
At page 141 Your Honours can see that Kapetanovski
went to the court seeking a remand in his custody, not the State police custody - and that could be important, in our submission, when it comes to the
Commonwealth Act - at page 141:

for a period not exceeding six hours,
for the purpose of enabling the said
person to be questioned.

It is true that the proforma form talks about other inquiries or investigations, but there is no doubt

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on the evidence the sole purpose was the purpose

of questioning and Mr Dugan endorsed that application

on the next page at the bottom, where Your Honours

can see, in effect, he is accepting the application

in the written form by Kapetanovski and it is clear,

if the Court pleases, obviously, that that is an

application under the State law.

(Continued on page 10)

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:MR TILMOUTH (continuing):  Now, the third matter and perhaps

the most significant, in our submission, Your Honours,

is this: one of the purposes for the remand in

Kapetanovski's custody was to enable facilities to

be used at St Kilda Road which were not apparently

available at the city watchhouse and this was i~portant

as the case developed. This appears at page 158,

Your Honours, and the few pages which follow·

Your Honours will see at page 158 line 19, under cross-examination Kapetanovski said this: he

acknowledged that Forrest was taken to St Kilda Road

for questioning, which is the armed hold-up squad office

apparently. L~ne 22:

Wasn't questioned in the City Watchhouse area

itself.

A. There is no provision in the City Watchhouse

for interviewing prisoners.

Q. There ar~ holding cells there, are there not,

where people can be interviewed.

A. The holding cells are there merely for the

prisoner to be conveyed out of the cell and
placed in the dock immediately into the main
Magistrates Court.

And I skip the next few lines and I go to line 35:

There is provision for duty solicitors to speak

to accused, but certainly there are no

provisions made there for police interviews to

be conducted.

Q. But it is by no means an improbability -

-

that possibly should be impossibility -

to conduct interviews in the City Watchhouse

area,is it.

A. No, you could do an interview there but it

is never done. It is totally impractical.

Q. But the fact -

at line 159 -

is that he was taken to St Kilda Road, wasn't he.

A. As usual practice, yes.

Now, as appears from line 159 and later, Your Honours,

the significance of going to St Kilda Road was the

facilitieswhich were available. Now, Kapetanovski

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said that typewriters were available, line 19 through

to 21.	They were not in all rooms apparently, but
they could be moved around.	I then asked him about
video recordings to which he responded at line 27: Video recordings are a totally new concept.	I

think they have been put into practice on two

occasions and that has only been done by the

Homicide Squad in relation to murder~.

Q. Tape recordings are being used more

frequently in Victoria to record interviews.

A. Record the read back of records of

interviews, yes.

Q. And that is becoming more and more standard

practice.

A.	That is the practice in Victoria.
Q.	And those facilities were available at this

time in that office to tape record interviews.

A. Yes.

Q. There is no law against South Australian Police using your tape recorders, is there.

A. Not that I am aware of. I am also aware that

tape recordings are not used in Adelaide courts.

And I skip one or two lines:

HIS HONOUR

Q. When did it start in Victoria. What was the

situation in August 1986.	Was it novel or well
established.
A. It was well established.

Q. And there are,provisions, are there not, for the purposes of obtaining copy tapes, doing

integrity checks and the like.

A. I am sorry. I don't understand.

And there is further questioning about that - lines

26-7. The conclusion is:

In any event, to your knowledge none of those facilities were availed of in this case.

A. No, they weren't.

And on page 161, Your Honours, I asked Kapetanovski

here about an interviewing register and his answers

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were to the effect that, to summarize them, lines 19

and those following, that an interview register

was kept; it was kept as a matter of practice,

lines 26-28; line 31-32:

become a matter of firm practice in recent

years, has it not.

A. It has.

Q. The idea being to record as and when they

happen the fact that an interview has taken

place, is that right.

A. That is correct.

There is further questioning about that and in

re-examination, over on to page 162, Kapetanovski

said that he believed, line 12, that there was a
note or a record in the interview register related

to this matter but, can I mention to Your Honours

the first time that was ever raised was by me in

cross-examination. It was never, as one might expect,

raised and proved as part of the Crown case, bearing

in mind that it was obvious to everybody that the

confession was being denied.

Now, my point about reading all that material,

Your Honours, is this that part of the reason for the

remand in custody was to use better facilities;

clearly better facilities were available - either

a typewriter or a tape recorder; it was Victorian

practice at the time to use them; the remand had
been in the custody of the Victorian police officer
but, strangely,none of those facilities were ever

availed of even though it was implicit in the

remand for questioning that they wanted to take the

opportunity to use the better facilities.

Your Honours, to get to the special leave point then, our submission is that a point of

construction arises under the Commonwealth Act and

it arises from what the Chief Justice said at

pages 249 and 250, with whom Justice Von Doussa

agreed. At trial, Your Honours, we had argued that

there was no power to remand under the Victorian

provision; the trial judge said that there was and

that he could see no unfairness; the Full Court

disagreed but went on to make the comments which we

complain of now.

The Chief Justice said, with the concurrence

of Justice Von Doussa at page 249, as follows -

it is about line 8, Your Honours:

The power to arrest in Victoria a person

againstwhan a warrant has been issued in

another State or part of the Commonwealth,

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has its source in the SERVICE AND EXECUTION

OF PROCESS ACT which is an Act of the

Conrrnonwealth parliament. That Act makes

appropriate provisions for the management and

custody of persons so arrested. They are to be

brought forthwith before a magistrate or justice
of the peace who may order that the person be

returned to the State or part of the Conrrnonwealth

in which the original warrant was issued and may

order that he be delivered into appropriate

custody or admitted to bail for that purpose.

The provisions of the Act constitute a code,

in my opinion, for the apprehension and

management of such persons and leave no room

for the intervention of State law.

We agree with the Chief Justice to that point.

His Honour then refers to the Victorian provision and over on to page 250, Your Honours, His Honour

continues in the same vein.	May I read simply from
line 10:

There is no reference in the section -

that is, in the State section -

to persons apprehended under the authority of
the COMMONWEALTH SERVICE AND EXECUTION OF

PROCESS ACT and I see no reason to construe

the section as an attempt to intervene in the

procedures prescribed by that Act. I would

construe section 460 of the Victoria Act as

having no application to persons apprehended

under the COMMONWEALTH SERVICE AND EXECUTION

OF PROCESS ACT. It follows that the order

made by the Chief Magistrate, so far as it

purported to be an exercise of the power

conferred by section 460, is a nullity.

Now, that was overruling the trial judge to

that point. What follows, however, Your Honours, is

what we complain about here and what we say contains

the genesis of the special leave point. His Honour

continued:

It does not follow, however, that the

appellant's detention following that order was

unlawful. The magistrate undoubtedly had

power to remand the appellant in custody for

a proper purpose which was not repugnant to

the purposes of the SERVICE AND EXECUTION OF

PROCESS ACT; section 18(5). Quite apart from

section 460 of the Victoria Act, the magistrate
was entitled, in my opinion, to accede to the
police request, consented to by the appellant,

to remand the appellant in police custody to

enable him to be questioned, and to adjourn

the hearing of the application for extradition

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for that purpose. The purported reliance

upon section 460 was ineffectual

this is 251, obviously -

but there was no need to resort to section 460
for the power to remand. I think that the

appellant was validly remanded into police

custody and that he was properly and lawfully

in police custody until brought back to the

magistrate at 4 p.m.

DAWSON J:  Mr Tilmouth, the order was made on a provisional

warrant, was it?

MR TILMOUTH:  Apparently so, Your Honour. I read the evidence

from Kapetanovski and it is not entirely clear but

that appears to be the case.

DAWSON J: And you proceed on that basis?

MR TILMOUTH:  We did, if the Court pleases, although, as I

pointed out, if there was evidence that the original

warrant had been served immediately before the

appearance before Mr Dugan and it had been endorsed

appropriately at about 9.30 that morning. Now, it

may be that that was also before Mr Dugan but the

evidence does not make that clear. The evidence

only goes as far as the passage I read at page 47.

BRENNAN J: The fact of the matter was that the application

before Mr Dugan was not an application under

section 18(3) of the SERVICE AND EXECUTION OF PROCESS

ACT?

MR TILMOUTH:  No. Under any view of the facts, that seems to

be plain, if the Court pleases.

BRENNAN J:  So he did not purport to exercise any jurisdiction

under that section?

MR TILMOUTH:  No, or subsection (5) for that matter, as well.

I come to those provisions immediately now,

Your Honours. Chronologically, Your Honours, they

actually commence with section 19A - - -

BRENNAN J: Can I just say, before you go on, Mr Tilmouth, that

at the moment you have passed by the proposition

in the Full Court's judgment that the order made by

Mr Dugan was a nullity - - -

MR TILMOUTH:  Yes.

BRENNAN J:  - - - as though that is self-evident. I am not

sure that it is self-evident. I just thought I

would mention that to you for the purposes of your

argument.

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MR TILMOUTH: If the Court pleases, the obvious point there is

that we would say that if there was a remand which was

repugnant to the Commonwealth Act it would be

inconsistent and invalid to the extent that there is

the inconsistency. No doubt that may be where the

Chief Justice obtained the word "repugnant" from.

But, in any event, we would submit, if there was no

appeal to the Commonwealth Act then it cannot be of

any avail now. But, if the Court pleases, perhaps

I might come back to that later.

Your Honours, in point of time, section 19A

comes before section 18 and I go straight to it.

Ind section 19A, Your Honours, is the provisional

warrant provision. I do not read it to save time, Your Honours, but I point out that the provisional warrant was issued in Adelaide and there was an

arrest on that provisional warrant at about 4.00 pm.

There is no doubt about that.	Now, section 19A(2)
required that:

Where -

such a person as the applicant was -

apprehended in pursuance of a provisional

warrant, he shall be brought forthwith before

a Police, Stipendiary or Special Magistrate

or Justice of the Peace -

et cetera. And that person, that judicial officer,

has the power to: "discharge"; "admit to bail"; or:

authorize his detention for a reasonable time
pending the endorsement of the original warrant.

Now, Your Honours, we concede, and we always

did, that the appearance before Mr Hose, I think it

was, in the out -of -court appearance at about 11. 30

to 11.50 that morning, was a canpliance with that

provision and moreover he was authorized under

next morning. But, we say, that by the next morning	subsection (2)(c) to remand as he did in custody the
when the appearance before Mr Dugan had come around
that that was the end of any valid reasons to remand in this case. Subsection (3), Your Honours - - -

DEANE J:	What should Mr Dugan have done?
MR TILMOUTH:	He should have either made an order for return

or considered whether there were any reasons why
the applicant should not have been returned under

subsection (6) and, of course, there were not any.

He should have made an immediate order.

DEANE J:	What if the police had said, "We are still checking
on his identity.  We would like a few minutes or
another hour", and your client had said, "Yes, I am

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quite agreeable to that'', rather than just being

sent back to South Australia forthwith?

MR TILMOUTH: Well, with respect, Mr Dugan should have said,

"But you have had 30 hours already to check identity,

you have been here since midday yesterday, I think

that is unreasonable."

DEANE J:  Even if your client said he wanted it?

1':IR TILMOUTH: Well, of course, consent is an issue which tends to

vitiate against any unlawfulness or unfairness but
the problem here, Your Honours, was the issue of

the consent was bound up in the issue of whether there

was a confession or not. I acknowledge, of course,

that does not take us very far in view of the findings

on the voir dire application but we would still say

that there was no power to waive the requirements.

Our argument on that is based on an analogy of

the old and common form statutes: the requirement
to bring persons as soon as practicable or forthwith

before a court, under the old arrest provisions here

and elsewhere which the courts have regularly

construed as being mandatory and which cannot be

waived. Our authority for that is the case of

CONLEY and the case of MILLER on our list of authorities which were approved by this Court in WILLIAMS case.

So the consent could not be a waiver to the mandatory

requirements would be my next answer, may it please

Your Honour.

Your Honours, section 19A(3) says, partly

paraphrasing and partly reading, that:

Where a person has been apprehended under a

provisional warrant -

where -

the orginal warrant is not, within a reasonable

time, endorsed -

the the judicial officer -

may discharge the person or release him from

bail, as the case requires.

Now, the policy, we argue out of that, is that time

is of the essence under these provisions. What

that section is saying is you have a reasonable
time after serving the provisional warrant to get

your original warrant over and if you do not do

that within a reasonable time then the court may

discharge the person who is subject to the warrant

or may place him on bail. So, we submit, the whole

policy of this legislation, partly gathered from

that provision, is that time is of the essence. Only

AlTS/7/DR	16	21/8/89
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a reasonable time is allowed under the Act and, we

submit, it should be construed compatibly with the

common law in embodying such phrases as "soon as

reasonably practicable" and "forthwith" as construed

by this Court in WILLIAMS case.

Now, the next provision, Your Honours, is

section 18 and subsection (1), to summarize it,

provides that a warrant may be endorsed where the

judicial officer is satisfied that a warrant has

been issued and the endorsement is the second to

last line in section 18(1), "authorizing its

execution".

Now, that all happened at about 9.30 on

Monday morning here.	Then subsection (2) provides
the next procedure:

A warrant so endorsed is sufficient authority to the person bringing the warrant, to all constables

and persons to whom the warrant is directed

and to all constables and peace officers in that

other State or part of the Commonwealth to
execute the warrant in that other State of part
of the Commonwealth, to apprehend the person
against whom the warrant was issued and to
bring that person before a Police, Stipendiary

or Special Magistrate or a Justice of the Peace

who has power to issue warrants for the

apprehension of persons under the law.

What that means, in a word, we submit, is once

the warrant is endorsed it should be executed, as it

was at about 9.50, and the only step that is then

available is to bring the person before a court, in

effect, forthwith. Now, once brought before the

court, as this applicant was before Mr Dugan at

about 11 o'clock - we do not complain about the hour's

delay, that was clearly an administrative listing

difficulty - the procedures and only procedures

are available under subsection (3). Subsection (a)

of that section provides that the magistrate may:

order the person to be returned -

and -

to be delivered into the custody of the person
bringing the warrant or of a constable or
other person to whom the warrant was originally

directed.

Now, I make two points out of that provision,

if the Court pleases: the primary duty of the

Court is the consider the issue of return and it

is required to do that, bearing in mind the time

of the essence as I have already developed the

argument. The second is that the only power, even

if there be a power to remand in custody and even if

AlTS/8/DR	17	21/8/89
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that power necessarily includes as a proper

incident, the power to remand for questioning or

further investigation such as Your Honour Justice Deane

put to me, the only power is to remand in the custody:

of the person bringing the warrant or of a

constable or other person to whom the warrant

was originally directed.

Now, on any view of the facts, even if the court says that there is the power to remand for a

proper incidental purpose which may include

questioning or further investigations, there can
only be a remand if there is to be delivery into

the custody of any person of the specified persons

in that subsection and, clearly, Kapetanovski was

not such a person.

DAWSON J:  Who backed the warrant?

MR TILMOUTH:  The warrant was backed, Your Honours, I think,

by another justice of the peace and the police

officer, from recollection, was Alexander. That is

at the back of page 143 and 144. The justice of the peace was Hodges; . which is in the middle of the page, and Your Honour will see if you are

asking about which detective at the top of each of
those pages - at the back of 143 and the top of 144:

The within named Gordon Ronald Forrest was arrested this date at -

city watchhouse -

by Detective Peter John Alexander.

So, it was backed by the Victorian JP and by -

if this includes the term "backing" - the State

police officer.

(Continued on page 19)

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DAWSON J:  When did that happen?

MR TILMOUTH:  That happened at about 9.50, Your Honours, and

that is point 10 on our chronology. I am sorry, the

endorsement was at 9.30, point 9 of our

chronology, and that warrant was served, or executed,

rather, at about 9.50 on the applicant himself, again

by Alexander. So, if the Court pleases, we submit

that the answer to what the Chief Justice has said is
twofold. One,it is genera~ the primary purpose of the

Act is return and only a remand incidental to the

inquiry of return is authorized but, in any event,
if there is to be any remand in custody at all,

subsection (3)(a) is a complete code as to the

class of persons who in tl-iat custody may be, and

whatever else may be said, that was not Kapetanovski.

Subsection (b), Your Honours, of subsection (3)

is the power to admit to bail and I pass over that subsection apart from mentioning that, only to add

that as has already passed, this section was not

resorted to in the proceedings before Dugan at all.
Subsection (4) is merely a procedural provision and

subsection (5) is really the section that the

Chief Justice, we would submit, if at all, relied

upon for his argument that this was authorized by

consent. That provision reads:

The Magistrate or Justice of the Peace
before whom the person is brought has, for the

purpose of this section, the same power to

remand the person and admit him to bail for

that purpose as he has in the case of persons

apprehended under warrants issued by him.

Now, our submission about that provision is simply

and directly that it is facultative. It means that

you pick up State provisions enabling remands in
custody which is implicit in the remand in (3)(a)

in so far as they are consistent and not inconsistent with the Cormnonwealth provision. We submit it is not

a substantive provision giving a wide power of remand.

We submit it must be viewed simply as an administrative

provision, as it were, giving the faculty to pick up the Cormnonwealth Act.

DEANE J:  Why would it not include power to remand in custody

for the purposes of a consent adjournment for a

nominated period?

MR TILMOUTH:  Because, we submit, Your Honour, firstly, that the

only power is to consider the application to return,

and secondly, that the provisions are mandatory and

they cannot be waived.

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DEANE J:  But surely it would include a power to grant a

consent adjournment of the consideration of extradition.

MR TILMOUTH:	It would, but only in so far as - - -
DEANE J:	To allow negotiation for example, or an offer - - -

MR TILMOUTH:  Yes, I agree with that. If there is a purpose -

if an adjournment is sought for the purposes of

investigating or getting up the inquiry under

subsection (6), namely whether there should not be a

return for any of the reasons, and that is a proper

application in relation to that, then the adjournment

is authorized.

DEANE J:	But if it consented to, and is for, say, four hours,	why should
the magistrate even ask what it is for?

MR TILMOUTH: 

With respect, because his primary purpose is to

order that the person be returned, and that it be done
without undue delay within a reasonable time or
forthwith, and without subjecting the person to whom
the warrant is directed any undue harassment.

DEANE J: 

But if he is told the person consents, it is not going

to be undue delay if it is a matter of hours.

MR TILMOUTH: Well, with respect, what if the consent was several

days after the original arrest. There must be a point,

if the Court pleases, where a magistrate would rightly

say, enough is enough. Moreover, the policy of the

Victorian provision was simply to allow six hours, and

this man had been in custody five times that, and

surely a magistrate, in deciding whether he should

properly exercise the extension of power would have regard to

the period of time already in custody.

DEANE J: But, Mr Tilmouth, the point I am asking you about is

power, not whether there are grounds for being

indignant about the way the power was exercised.

All I am trying to convey to you is that it is not

apparent to me that subsection (5) would not clearly
pick up the power to grant a consent adjournment

before an order of extradition with all its possibly

onerous consequences is made.

MR TILMOUTH: Well, with respect, Your Honour, my answer is it

clearly does convey the power to adjourn for a

reasonable period, but only for reasons associated
with the court's primary inquiry of whether there
should be an order for return, and not, to put the

other side of the argument, sole~y for the

purposes of questioning at all. That latter could
never be authorized under this provision, in my
submission, even with the consent of the person

concerned.

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DEANE J: Well, is that what we finally come to, that - - -

MR TILMOUTH:	Yes it does.
DEANE J:	- even if both sides say look, before you make an

extradition order here, we want the opportunity to
ask some questions and give some answers, the

magistrate has not got power to do that.

MR TILMOUTH:	No, although he has power to adjourn for further inquiries for the parties to negotiate, as Your Honour
put it to me, and for other proper incidental purposes
attached to the return power, and, of course, many cases are adjourned because if there is to be a contest under subsection (6) they are invariably not ready to go irmnediately, but, of course, subsection (6) was never a real consideration here.
DEANE J:	And what if they say, "The prisoner's wife is sick in

hospital and we both agree that he should be held in

custody for a couple of days till we see what happens?"

The magistrate has to say, "No, extradite him."?

MR TILMOUTH:	I would submit so, yes, unless some harshness or oppressiveness or injustice could be made out, perhaps
one of the placita, as an interim measure, under
subsection (6). But, Your Honour, I agree, of course,
that the consent of the person concerned is an element
in whether the power is properly exercised and I
cannot shy away from that factor, but in the end result it must be a proper purpose on any view. But our main point is, and what it comes to is
there is no power under this provision to remand solely for the purposes of questioning. That would
be extraneous to the Act.
BRENNAN J:	Mr Tilmouth, have you completed your argument then
on section 18 ( 5)?
MR TILMOUTH:	On the Act I have, Your Honour& I do have some

authorities that support -

BRENNAN J: Could I take you back to the problem that is concerning

me, because I can take the force of your argument
that the power conferred by subsection (5), or for
that matter by subsection (3), is not a power which is
properly to be exercised for ~he purpose of questioning,
but what I do not understand relevantly to the issue
in this case, is why the order that was made by the

magistrate, purportedly under section 460 of the

Victorian Act, being an order which is made by

consent is a nullity, and even if it is a nullity

how it is that that order being made by consent and

being carried out pursuant to that consent, gives rise

to such unfairness as justifies or requires the

rejection of the evidence which was taken during the

interview?

AlT6/3/FK	21	21/8/89
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MR TILMOUTH. Yes. Well, Your Honours, as to the nullity

issue, perhaps I have really put all I can on that,

albeit shortly. Our point is that the only powers

to remand are those in the provisions I have just
read. In so far as they are inconsistent with the

Victorian provisions, the Victorian provisions are

invalid to that extent.

BRENNAN J:  Here the whole proceeding was put before the magistrate,

not as under the SERVICE AND EXECUTION OF PROCESS ACT

at all but as an application to the magistrate, an

inappropriate application on your argument under

section 460 of the Victorian Act and, it was' said here, is

an offence which enlivens your jurisdiction under

section 460.	The accused was asked, "Do you consent?"
He said, "Yes".	An order is made under section 460.

Is such an order a nullity?

MR TILMOUTH: Well, in our submission it is because there was never

any jurisdiction at all to make the order, because the
matter was a Commonwealth matter and the State provisions

simply did not apply to it despite the general

words of section 460(1' which refer to other

matters,of course. The whole proceeding before

Mr Dugan was an extradition proceeding under the

Commonwealth Act.

BRENNAN J:	But it was not a::that stage.
MR TILMOUTH:	With respect, what was before him was at least

the provision warrant and the only matters he could have

before him were that, together with the proforma

application which I have already shown Your Honours

at page 141, I think.

BRENNAN J: But the extradition matter was stood down until later

in the day.

MR TILMOUTH:  Yes it was.

BRENNAN J:	And this was a substantive application under the
Victorian Act.  You may be quite right about it, but it
seems to me to be a large step to say that when a mistake of law is made by both parties to a consent order that the resulting order is necessarily a
nullity.
MR TILMOUTH:	If the Court pleases, I really cannot add to what

I have already said to Your Honours on that issue.

BRENNAN J:	No.
MR TILMOUTH:	But the other thing is this, assuming for the

moment that all that was before Mr Dugan in the formal

sense was the application under section 460, then there

would not have been a compliance with the

provisions of section 8(2) of the Commonwealth Act,

because the obligation, once it was executed, was to

bring him before the court immediately.

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BRENNAN J: Quite, quite.

MR TILMOUTH:  And so there would be an illegality on that

front.

BRENNAN J:  Be it so. We then come to the question of

unfairness.

MR TILMOUTH: Yes. Well unfairness, Your Honours, of course

is something perhaps I was intending to address later,

but what unfairness comes down to, in the end result,
is what Your Honour Justice Deane said in CLELAND,

perhaps to a lesser extent what Your Honour Justice Dawson

said in the same case and Your Honours Justice Brennan

and Deane in DUK.E's case, and, of course, that begs
the difficult question, which I conceive the Court

has generally been against us, and that is that sheer

custody alone over a period of time is not necessarily

enough to give rise to the exclusion, unless there can

be som2 resultant or connected unfairness, or something

that when in that situation of custody which renders

the record of interview unreliable.

But what we would say about that in the end result

is, Your Honours, that this man should have been

returned at 11 o'clock or thereabouts on Monday

morning. He had been in custody for more than enough

time for the police to do everything that was

necessary to investigate and question him, and he

should, in all probability, have been either in

custody at the watchhouse waiting to be returned, or

on a plane going back, and, if the Court pleases, in

the - - -

DAWSON J:  And during that time there is no reason why the
detective should not have interviewed him.

MR TILMOUTH: Well,that may be true, but with the - - -

DAWSON J;	I mean, if he had had to wait for a plane to get
back to Adelaide for a day it might have been the
same situation.

MR TILMOUTH: If the Court please, that, of course, is always

our problem. That is what the trial judge found

against us on unfairness, and that was picked up by

the Chief Justice. But, if the Court pleases, that

comment, with respect, is always available to any

person who is in a custody situation or arrest. they are always available for police provided
pre -conditions '3.re satisfied to be questioned.

And, likewise, persons who are released on bail

can be questioned provided the pre-conditions are there.

DAWSON J: You say that he was illegally in custody at this

time?

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MR TILMOUTH:	We do, but what - - -
DAWSON J:	At least, that. is your starting point, and you say
that ordinarily when a person is illegally in custody a
confession obtained in those circumstances is obtained unfairly.
MR TILMOUTH:	Bearing in mind, in this case, the period of time

he had already been in custody, and bearing in mind

that the police had the opportunity to question him

on the Sunday or the Sunday evening, and bearing in mind

the other matter I put to Your Honours about the

facilities issued at St Kilda Road.

DAWSON J:	Andthe other side of the balance is, of course, he
consented to - - -

MR TILMOUTH: Yes, I acknowledge that. But, if Your Honours

please, what is always important in these cases, is the initial period of unbroken custody, effectively

under the control of the original officers who have

charge of the investigation of the case. Now what

normally happens where a person has been to court and

been remanded in custody and can be questioned, or

been bailed and been questioned, is that that

continuous control by the original police officers,

here, Kapetanovski, Alexander and Chamberlain, is

broken. There is a nexus here, and what - - -

DEANE J:  Mr Tilmouth, what did Mr Hose do?

MR TILMOUTH: Apparently, Your Honours, he simply saw the

applicant at a remand window, and there was an out-of-
court sessions, as it is described, which is apparently

acparently very informal and very short.

And under 19A(2) - I am just looking tor the

page number, Your Honours, it is about - yes, it is 43,

Your Honours, and this was Kapetanovski, and at

this stage the State police were probably at Tullamarine.

Kapetanovski said:

A. I had made arrangements to conduct an

out of sessions hearing with the Justice of

the Peace.	I prosecuted the matter.
Q.	Who was the Justice of the Peace.
A.	Mr Hose.
Q.	Where did the out of court hearing take

place.

A.	At the City Watch House itself.
Q.	What time did it commence.
A.	Roughly about quarter to 12.

AlT6/6/FK	24	21/8/89
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Q.	What happened at the hearing.
A.	I asked that Mr Forrest be remanded in custody

until the next sitting of the Melbourne Magistrates

Court, being Monday, 1 September. I asked that

bail be refused, and that there was an original

warrant in relation to the escape matters from

Adelaide in the process of being brought down and that extradition proceedings would be conducted

on the Monday.

DEANE J:	So, you would say that Mr Hose's order ran its course
when he was brought before Mr Dugan.

MR TILMOUTH:  Yes. Now, I should mention, Your Honours, that

the applicant's case was that he could never recall
that short proceeding, but there was a finding

adversely in the courts on that on the voir dire.

Now, Your Honours, on the point about the Act itself,

its construction, as to the policy of the Act, which

I have submitted is one of time being of the essence,

can I quickly take Your Honours to three authorities,

and only a few lines from each to distil the main

part of them ?

The first is O'DONNEL V ~LSLOP (1910) VLR 162,

a decision of the Full Court of the Supreme Court of Victoria

presided over by Chief Justice Hadden, and it relates to the

old provisions under the Act which are not materially

different in our submission. We do have a copy of the

old provisions if they are required, and the only

passage I read to Your Honours is at 169, and it isa

passage which generally supports us on the overall

construction of the Act in general terms, and at

169, Your Honours, at line 6, Chief Justice Madden

says this:

The purpose of the whole section -

and he is dealing with section 18, or its

predecessor -	is to ensure that a person who is charged
e.g., in Sydney, but is resident in Victoria, shall be got back to the place where the charge was laid, but at the same time to prevent a person from being unjustly harassed.
In 18(4) the word "return" has not got any
definite special meaning, as it may be
contended it has in 18(3) -

and so on. Now, a different point of construction was

under issue there and I do not bother Your Honours

with it, but although those expressions are in general

terms we submit they support our contention about

the general purpose of the Act. And O'DONNEL V HESLOP

of course has been a case which is often cited in

years since, albeit mainly on other points, but it is

AlT6/7/FK	25	21/8/89
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an old authority on this Act which has endured.

The second authority, Your Honours, is a decision

of our Full Court, that is the South Australian

Full Court, in REG V KELLY EX PARTE HARVEY - that

is in my learned friend Mr Doyle's authorities,

Your Honour, the green book materials.	The
case is arranged alphabetically. This
is under "K", Your Honours.

MR DOYLE:	Your Honours, we arranged these books with the
cases, as I mentioned, alphabetically in the name of the person other than the Crown, so it is towards the end of the book, sorry it is not
page numbered.

DEANE J: It is number 9 in my volume.

MR DOYLE:  You have got a number in your volume? That must

have been by your staff, Your Honour, it was not
numbered by us, I am sorry.

MR TILMOUTH:  If Your Honours please, it is not in our volume,

simply to save Your Honours having two copies of all

the same cases. REG V KELLY EX PARTE HARVEY,

Your Honours - the same Act was under review

and the order which was in question is referred to

at page 94 at about point five to six, where His Honour

a magistrate in that case who was considering whether

he should return at all under subsection (6), adjourned

a matter for a period of 12 months to give the

respondent· a chance to show that he was now fully

decided upon his law-abiding wa~ and the Full Court

held that that was an extraneous purpose for

remand, but in so doing the court made some comments

which, we submit, apply here and support our argument

and they are at the bottom of 95 to 96, per the

Chief Justice with the concurrence of the other

members of the court, and at 95, right at the bottom,

Your Honours, the paragraph commencing there, the

Chief Justice said this after referring to the

provisions I have read to Your Honours:

A magistrate before whom a·person is brought

pursuant to s. 18 does not sit as a court
but exercises a function which is non-judicial

in character:  ASTON V IRVINE. If he were sitting

as a court, he would have inherent power to
adjourn the proceedings ~or a reasonable time upon

reasonable grounds (BOETTCHER V BOETTCHER), but

an adjournment for an unreasonable time or upon

extraneous grounds would be treated as a neglect

to exercise the jurisdiction and might result in

mandamus:  MATHESON V MATHESON; LEE V SAINT.

Although a magistrate exercising his "ministerial"

functions under s. 18 is ·:ot a court, I consider

that he must possess the power to adjourn the

proceedings in the same way and subject to the

same limitations as a court. Power to adjourn

AlT6/8/FK	26	21/8/89
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proceedings for a reasonable time and upon

reasonable grounds, is a necessary incident of the

power to make decisions of the kind required

bys. 18. But the incidental power to adjourn

proceedings is circumscribed by the purpose for

which it exists. It exists for procedural purposes

to facilitate the fair disposal of the proceedings. If the matter is adjourned for extraneous purposes, or on unreasonable grounus, or for an unreasonable

time, it may amount to a refusal or neglect to
perform the function conferred by law and may

result in mandamus. The same observations apply to the power conferred bys. 18(5) to remand and

admit to bail.

Section 18, in my opinion, casts upon the magistrate before whom a person, apprehended

pursuant to a warrant issued under the section,

is brought, a duty to deal with the person in
one or other of the ways stipulated in the section.
He may, pursuant to sub-s. (3), order the
return of the apprehended person to the State or
part of the Commonwealth in which the original
warrant was issued, admit him to bail to answer
the charge in that place, or pursuant to
sub-s. (6), discharge him or order his return
after the expiration of a specified period.
Paragraph (f) of sub-s. (6) empowers the magistrate
to "make such other order as he thinks just",

but I think that such orders must be merely

ancillary to the orders authorized by paragraphs

(d) and (e).

And His Honour goes on to say it is unreasonable to make

orders under subsection 6(f) which authorizes

substantial orders specified :i..n the earlier

paragraph.

(Continued on page 28)

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11R TILMOUTH (continuing):  So we submit that all of that,

Your Honours, supports entirely what we say about the

Act itself. Your Honours, on the issue of waiver,

could I mention the cases and the page numbers

without reading them because there are only one or

two lines which are relevant? These cases,

Your Honours, are cases like that considered by

this Court in WILLIAMS' s case regarding the power to

arrest and, therefore, it is only an argument by

analogy, but the courts have always ruled that: an

accused person or an arrested person could not

waive the mandatory requirement that he be brought

forthwith, or as soon as reasonably practicable,

before a court.

We say, by analogy, the same applies. The

cases of REG V CONLEY, Q98~ 30 SASR 226, at 241 -

I do not read it Your Honours, but there the

Chief Justice says that those requirements are

mandatory and cannot be waived. Also REG V MILLER, (1980)25 SASR 170, at 203. Could I mention as well, Your Honours, that those passages were cited with

approval, at least in general terms, by this Court

in WILLIAMS - WILLIAMS is case 11 on our list - I

do not give the reference - and the relevant

pages are page 297 for the approval of CONLEY and

301 for the approval of MILLER, at the pages I

have given Your Honours.

Now, Your Honours, I turn then to the other issue which is obviously of concern, that is the issue of unfairness. If the Court pleases, on

unfairness, we submit this - picking up the various
matters that the Chief Justice referred to in the

Full Court, I leave aside the trial judge,

Your Honours, for two reasons: firstly, he ruled

and, as the Full Court found wrongly, that there

was an illegality in the remand for questioning;

and, secondly, because otherwise the particulars of

unfairness which he said were non-existent, or

did not compel the exercise of the discretion to

exclude it - virtually the same as the Chief Justice.

Now, at pages 251-2, Your Honours, the

Chief Justice deals with unfairness and he isolates

a number of factors which he says indicates that

there was nothing unfair in the issue. First of

all, Your Honours, he says, at page 251 line 20,

that:

The police obviously deliberately refrained from

questioning the appellant on the Sunday so

that he could be first brought before the

magistrate.

Now, I have already read the passage of

Alexander where he said that there was no reason

why he could not question and, in my submission,

A1T7/l/DR	28	21/8/89
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since the applicant had already been before Mr Hose

at about midday, there was no justification provided

other formal requirements were kept, why he could
not have been questioned then. Since the directive
of the Act is to deal with him by way of return, as
quickly as possible, that would have been the
preferable course. Secondly, His Honour then goes

on to talk about the issue of public consent and that has been a matter, obviously, of concern by

questions directed to me by the Bench.

But, if the Court pleases, Your Honours will

recall that the applicant was told the day before that

they wanted to question him and that they were going
to do that and then apply for his extradition. Now,

so far as the applicant was concerned, the only

question was not whether they would be questioning

him - he was still going to be in Melbourne - the

only question for him was: which place would he be

kept in custody? In other words, the public consent

to refer the remand is of little consequence when
the applicant has already been told, "We are going to

apply to question you and you are still going to be

in Melbourne in any event.". The consent is only a
consent to the different place where he might be

questioned, it is not a real consen~ in our

respectful submission.

Your Honours may recall, in the passage I read

from the record of interview: the applicant was

clearly concerned about whether he could see

Mark Osten and he did say, "Where will I be tonight?".

So, it was clearly an issue which was important to

the applicant but of not of much substance so far as

a public consent was concerned. The night before

the police had said to him, "We want to question you

tomorrow". They did not caution him; they did not

caution him, Your Honours, until 11.30 the next day.

So far as the applicant is concerned he has got a

statement by the police: they want to question him.

only difference, as I said, is the place where it all	He got a court sanction that he be questioned and the
happens.

His Honour also went on to say, at the bottom

of page 251, that:

There is no reason to suppose that his position

was any more exposed or vulnerable than it

would have been at the City Watchhouse.

And my point is, and always has been, Your Honour

Justice Deane in CLELAND's case and DUKE's case and,

to a lesser extent, Your Honour Justice Brennan,

but, more than that, if the Court pleases, as I

mentioned in answer to Your Honour Justice Dawson,

it is the unbroken period in custody of the original

AlT7/2/DR	29	21/8/89
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investigating officers that is the important thing.

By 11.30 and, indeed, 1.15, it was well over 30 hours

when all this is still being going on and, in my

submission, he should have been on a plane or waiting

to come back to Adelaide.

DEANE J:	But, is not your problem this: that the only point
about the magistrate's order is where your client
was held in custody? Now, that being so, it does
not add greatly to whether the confessional statement
should have been rejected on the grounds of
unfairness.  Now, once you take that factor out of
consideration you can enthusiastically refer to
remarks I have made but, upon analysis, they tend to be found largely in dissenting judgments on that
aspect of the matter.
1:1R TILMOUTH:	Yes, well I have conceded that, if the Court

pleases. With some minor exceptions, I agree that

Your Honour is in a minority in CLELAND and through DUKE. But, Your Honour, I acknowledge that, in one

sense, there may seem to be an inconsistency in

saying that the consent was of no real consequence,

but my point in that was the unfairness goes back
to 6.30 the night before when, in ten minutes, the

police are saying to him, "Look, we want to question

you tomorrow. We are not cautioning you now and we

are going to a court to get the court's imprimatur

to do it.

By the time that the applicant comes to court

at 11 o'clock the next day for all he knows and, indeed, what he knows and what he is told by the

police is that they are simply applying for the

remand to question him and that after that the

application for extradition will be made.

DEANE J: Let us assume against you that the facts were

different and that the applicant was given the

opportunity of seeing the young man who was the

son of the woman he had been associated with, would

he then have any complaint at all about the questioning

having taken in place in Melbourne instead of being

shoved on a plane and delivered to Adelaide where

the questioning took place?

1:1R TILMOUTH:	I suppose he had no further complaint subjectively, putting aside legal considerations, and his concern
about where he would be that night apart from the
concern he expresses about Mark - excuse me. And,
of course, my learned junior points ou½ the type of
custody at St Kilda is quite different from the custody under the control of the city watchhouse
sergeant, or his equivalent. That is, Your Honour, in CLELAND's case, amongst others.
DAWSON J:	If the order had not been made and he had had to

wait for some hours for a plane in Melbourne and

AlT7/3/DR	30	21/8/89
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finally got on a plane and been taken back in

execution of the warrant, but during the time he

was waiting around he had been questioned and

given the same answers, would you have the same

objection?

MR TILMOUTH:  I do not think we could have. if the Court

pleases.

DAWSON J:  But he would have been in custody for the same

length of time.

MR TILMOUTH:	Yes, he would have but, if the Court pleases - I endeavoured to make the point earlier - the nexus
in the continuing original situation has been
broken.

DAWSON J:  But why has it? So far as he is concerned he has

not been free to go during all those hours.

HR TILMOUTH: 

That is true, but he is still directly in the

control of the investigating police by and large and
the very effect of Mr Dugan's order is to place him
back in control of those very people; not just to

put him in the watchhouse where he is left alona It
is remanding him back into the custody of the

investigating police.

DAWSON J: But he would have done that if it was to return him

to South Australia.

MR TILMOUTH:  Well, he would have done it with Alexander and

Chamberlain, that is true. But, in my submission,
the proper order was the order for return and, of

course, the opportunity thereafter for the police - - -

DAWSON J:  I would have thought you would have said, "Well,

they shouldn't have questioned him in those

circumstances.".

MR TILMOUTH: Well, they should not have but the opportunity

after he is remanded in custody with them to fabricate,

of course, is much less because he is either in the

watchhouse, where there are apparently no facilities,
or he is on a plane in view of the public and when

he is taken back to Adelaide, immediately he is

placed in the custody of the city watchhouse sergean4

where he has certain rights such as making phone

calls and the like - duty solicitors available and

all the rest of it. If the Court pleases, the fact

of the matter is, the best opportunity for the

police to fabricate is that opportunity, that

continuous period when the original officers still

have control over him.

I acknowledge the opportunity is there but it

is much less realistic to them once they are out

on planes and the like.

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DAWSON J: Is it a ground for saying that it was unfair that

the police officers had an increased opportunity to

fabricate?

MR TILMOUTH: Well, if the Court pleases, it could be because

the fact is, out at St Kilda, he is only in the

control of these original police officers or other

investigating officers, There is no protective

mechanism for him there at all, and there is no

means by which he can obtain an independent basis

to deny the record of interview. That really has

been one of our points all through, as well. Again,

that comes back, when it reduces, to Justice Deane

and the cases that have already been mentioned.

Your Honours, can I add this: at page 252 His Honour the Chief Justice said the interrogation

was conducted in the normal manner in an interview

room and my point about that was that it was not

conducted in a normal manner. Indeed, as the

evidence of Kapetanovski goes, it was conducted in

a manner not in accordance with Victorian practice

at the time. I have already made my points about

the infirmities, so far as they go, of the written

record itself - the handwritten record. Finally,

Your Honours, the Chief Justice says, at about points

9, 10 and 11 on page 252, that:

The appellant consented to being interviewed.

He showed every indication of willingness to

answer.

And, as Your Honours will remember from the record

of interview, there were statements: "I could do

without that"; "What did Shane say"; "No particulars,

no details". In our respectful submission, he was

not, even on the face of things, that willing to

answer the record of interview at all.

Now, if the Court pleases, that all comes down

or emphasis by Your Honours in DUKE's and CLELAND's	to, as I conceded, the differences perhaps in policy
cases. Your Honours, I will not read from those
passages but may I summarize what my submissions
would be at this point and give Your Honours the page
references? Your Honour Justice Brennan, in DUKE's
case, which is on our list - case No. 7 - talked,
at pages 141-2, of procedures which may lead to an
unreliable confession or to the inference that no
confession might have been made.

I notice Your Honours have gone to them -

pages 141-2, Your Honours.

MASON CJ:  Do not let that induce you to read if you did not

think it was necessary to read - - -

A1T7/5/DR	32	21/8/89
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:MR TILMOUTH: Well, I am afraid it has, may it please

Your Honour. The passages I had in mind were -

I presume Your Honours have the Australian Law

Journal Reports reference?

MASON CJ: Yes.

MR TILMOUTH: It was Your Honour Mr Just.ice Brennan, on the first colurm, in

reference to Justice- Dawson in CI.,t,,7.AND, at page 141 - 63 AI.JR 139

at 141. Yrrt.1r Honour said at the top of page 141, l:L.1e 6 at the

top of page 141, second ~olurm, that it was:

in my respectful opiniQn too confined a view to
regard the unfairness discretion as applicable only

to tµo,se cases where unreliability in the confession

might have been produced by impropriety or

unlawfulness on the part of the investigating

police. RV LEE attributes a broader scope

to that discretion. The unfairness against
which an exercise of the discretion is intended
to protect an accused may arise not only because

the conduct of the preceding investigation

has produced a confession which is unreliable

but because no confession might have been made

if the investigation had been properly conducted.

And it is those last three lines, in particular,

is what we seize on and my whole point about the

opportunity on the Sunday to question him and so

on has those statements in mind. Your Honour did

go on, however, to say - over on the page, that it

was substantially not for the judges but for the

juries to determine these issues and, to that extent,

Your Honour departs from Justice Deane in CLELLAND -

that is at the top of page 142, first column.

Your Honour, Justice Deane, at page 144 - and

it is the top of the first column of page 144 where

Your Honour said:

To those reasons, there must be added others.

In particular, the isolation of such an

accused from ordinary contacts in an environment

which is effectively controlled by the police

renders him peculiarly vulnerable to police

fabrication of evidence of oral admissions

by effectively precluding any corroboration

of a denial that they were made.

And you referred to CARR and you go on in,

Your Honour, in our submission, in an important

passage right through to the bottom of page 144

which I do not read for brevity's sake. But the

consid~rations there are exactly the points we
make here on the issue of unfairness.

His Honour Justice Toohey, at page 147 second column, just after his reference to VAN DER MEER's

case, appears, with respect, perhaps to be more

consistent with Your Honour Justice Deane than

AlT7/6/DR	33	21/8/89
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perhaps the balance of the Court. His Honour said

after the reference to VAN DER MEER:

The notion of unfairness underlies the

discretion to reject a confession made

voluntarily. At the same time, while

doubts about the reliability of a confession

may provide a basis for concern and in turn
for the exercise of the discretion, the

methods by which a confession is obtained

may themselves warrant a conclusion that it

would be unfair to admit the material though

there may be no room for its reliability.

His Honour then goes on to discuss the present

case. Now, that is, in our submission, more

consistent with Your Honour Justice Deane than

perhaps the balance of the Court. Your Honours, this

time I will not read because CLELAND's case is quite

well-known but the passages we would urge on

Your Honours are:  Your Honour Justice Deane at

pages 25-6 where you have echoed much the same as

you said in DUKE and in CARR's case; and

Your Honour Justice Dawson at page 35 talked about

the length of custod½ whether it was lawful or

unlawful - although, of course, Your Honour

Justice Dawson did say in CLELAND that where there

is unlawfulness without unfairness it would be

rare or an exceptionable exercise for the

discretion to exclude, but you did not exclude that

particular basis simply because there was no

unfairness, but Your Honour was minded to say that

it would be rare.

So, if the Court pleases, in our submission,

there was this illegality. The Act did not authorize

the further detention. That must be borne in mind

in the background in the 30 hours preceding it and

the opportunity the police ha~ and so on and so

forth which all, in our submission, led to the

unfairness I have attempted just to demonstrate only

a few moments ago. Finally, Your Honours, may I

mention that this cas~ of cours~ preceded CARR's

case but, in the summing up, His Honour said nothing

about the infirmities of police evidence and he only

referred to my long address to the jury, which

focussed on that issue, in passing. He simply said,

"You bear in mind what counsel had to say."

The relevant passages, where the confession is

dealt with, are at pages 218-9i·. Your Honours, I do not

need to read it because I comp ain about what is not

in it. His Honour simply said that, "The confession

you might think, when contrasted with the other

evidence which was a pointing circumstantial finger

was a touching finger." Obviously, it follows that

A1T7/7/DR	34	21/8/89
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the confession was important;	a substantial feature
of His Honour's sunnning up.	But His Honour did not

repeat any of the matters which I had put about

unreliability of confessions, practised police

officers and all the other type of considerations

that CARR's case has referred to. I mention that,

Your Honours, because, in my submission, if

Your Honours are with us on the main pain~ it would

not be a proviso case as the confession is too

important for it to be dismissed on the proviso.

Finally, Your Honours, all we would be asking

for, of course, is a retrial. We do not suggest, for one moment, that there should be an acquittal or anything like it - it is a retrial, if anything.

Your Honours, the other matter we wanted to argue was the cross-examination of Alexander.

MASON CJ: Yes, Mr Tilmouth.

MR TILMOUTH:  I did say to Your Honours, at the outset, the

only special leave component of that was the general

component of the police paying heed to pronouncements

of the court. I did concede it was largely an

admissibility issue, but we do submit it is an

important point But I am in Your Honours' hands as

to whether you want to hear me on that. It is

referred to in our written outline, of course.

MASON CJ: Yes, it is covered in your written outline.

MR TILMOUTH: It is, substantially, Your Honours, but without

wanting to extend these proceedings, could we simply

sunnnarize it this way: Alexander was involved in a

previous case which was heard by Mr Justice Walters -

MASON CJ: Yes.

MR TILMOUTH:	- - - in which Justice Walters had referred to the omission to make typewritten notes but in the
context of him saying, "Why isn:t·there. something
more verifiable here than just the handwritten note?"
Our purpose in cross-examining Alexander was to
test his credit as to why he still thought that
there was no difference between a handwritten or a typewritten note, or some verification mechanism.
Your Honours will recall~ I have read the passages,
where we elicited the fact that there were all
these other procedures at St Kilda Road: tape recorders, the confessions register and also a
place where written records can be made, typewriters
were available which were not availed. Our purpose
in bringing forward Mr Justice Walters' ruling was
not to obtain an imprimatur of another judge on
that issue. It was to test Alexander's veracity
when he said, "Well, I can't see any difference and I have not been told by anybody in authority that
there is one.".

AlT7/8/DR	35	21/8/89
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MASON CJ: Yes, well I think that is made plain in the

material.

MR TILMOUTH:	Yes it is, if the Court pleases. And, Your Honours, please, that cut off an important line of
our questioning. As Your Honour Justice Deane
pointed out in CARR's case, it is very hard in these situations to make any meaningful
cross-examination.  The only one of the few points
we had, apart from those I have actually mentioned,
was this point and we were precluded from it.
May it please Your Honours.

MASON CJ:  Thank you, Mr Tilmouth. The Court will now

adjourn until 2.15 pm.

AT 12.55 PM LUNCHEON ADJOURNMENT

AlT7/9/DR	36	21/8/89
Forrest
UPON RESUMING AT 2.17 PM:

MASON CJ:  Mr Solicitor, the Court would like to hear you

in the first instance on the question of unfairness.

MR DOYLE:  If the Court pleases. I hand up the outline of

submissions.

MASON CJ:  Thank you. Yes.

MR DOYLE:  If the Court pleases, could I perhaps begin with

three or four points arising out of my learned friend's
submissions and although most, if not all of them,

arose in connection with his submission in relation to the

SERVICE AND EXECUTION OF PROCESS ACT 1 think my

learned friend probably was calling them in aid,

or at least most of them, in relation to the question

of unfairness. So if I could deal with them first

just so 1 do not overlook them when 1 then go to

the question of fairness.	One point he made was the
question of delay.	He said that the police could

and, by inference, should have questioned Mr Forrest

on the Sunday if they were going to question him at

all and that in some way this delay was improper and,

arguably, it was an aspect of unfairness.

My submission as to that is that to begin with

it was never really put to the policemen in evidence

that they should have done that and, in fact, it

emerges from the evidence that the Victorian

policeman Kapetanovski had said to the South Australian
policemen that the right way to do things was to make

an application under the section of the Victorian

CRIMES ACT to tne magistrate the next morning. He said

that in evidence and when later the South Australian

policemen gave their evidence as to what had happened,

as I read the evidence, having gone over it again

fairly quickly, it was nP.ver put to them, "Either

this did not happen", or, alternatively, "Didn't you

realize tnat, notwithstanding what the Victorian

policeman said, you should have set to and done your

questioning on the Sunday?".

Your Honours, the evidence on that, which I

will 5ust touch on very briefly - and perhaps the main

evidence is that of Mr Kapetanovski which is

pages 44 to 45, and at the bottom of page 44

Mr Kapetanovski was asked:

Q:  Was there some discussion about what

procedure should be employed.

A.	Yes, there was.
Q.	What was said.

A. I suggested that seeing they intended to interview Forrest within the state of

Victoria that we should make application

AlT8/l/HS	37	21/8/89
Forrest

before the magistrates Court under
s.46O of the CRIMES ACT asking the court
that Forrest be remanded in my custody

for a period of six hours -

et cetera:

Q. ls that a procedure that you had

previously employed.

A. Yes, it is.

Now when the South Australian policemen came to give

their evidence - and page 65 is one of them. That is

actually examination in-chief, but he refers there to

the conversation on the Sunday afternoon. Now, the

rest of what 1 say is negative. but when one comes to

the cross-examination of the South Australian policemen

it was not put to them, as I have said a moment ago,

that Mr Kapetanovski had not made this

suggestion, nor was it out to them, that

even if he did that they should have got

on with the questioning come what may.

So, in my respectful submissio~ that is, or may

be, relevant on the question of delay. The other

point is, again as I recall the evidence, Forrest

himself never said that with the passage of time.

that in any way he became anxious, upset, or that

the passage of time had any effect on him and, in my submission, that would be a relevant matter in

relation tJ unfairness.	So that is the first point,
Your Honours.

Secondly, my learned· friend said, and this is

again a matter on the facts but perhaps relevant to

unfairness, that 1 think before Forrest went before

the magistrate on the Monday morning that he had said

to the policeman that he was anxious to see Mark

Osten, and in some way, without being critical, I did not really follow, that his desire to see

Mark Osten that morning was relevant to his consenting

to the adiournment and in some way possibly relevant
to what happened later. But, as 1 understand the

iudgment of the trial iudge on the voir dire, he

specifically reiected that evidence from the accused

and that appears at page 135. He is there giving

his ruling on the voir dire and along the way dealing

with matters of evidence and at line 18 he says:

1 divert for a moment to refer to the

accused's evidence that at some stage

in those conversations, that is, the

pre-court conversations, he asked to see

Mark Osten, who had been with his mother

in the premises at St Kilda from which

AlT8/2/HS	38	21/8/89
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the accused had been apprehended.

1 am satisfied that no such

conversation took place. However -

et cetera. So the learned judge appears to have

specifically rejected that evidence of Mr Forrest.

The third point, Your Honours, which again relates

partially to the order made by the magistrate but

again to the question of unfairness: in my

respectful submission, had the magistrate, in

obedience to the suggested injunctions to which my

friend argued the act laid upon him, dealt with the

matter there and then at 10 on the Monday morning,

the proper form of order would have been one which

remanded Forrest into the custody of the South

Australian policemen, one of them being the warrant

holder.

Now, my learned friend in his argument said in

passing that had the order been made that Forrest
would have been in the city watchhouse. ln my

respectful submission, that is not so. The remand

would have been into the custody of those policemen

and, in my respectful submission, if they had to wait

some hours to catch a plane, or even worse, a train,

keep him until it was appropriate to

they could quite legitimately have taken him to the secure place to

go to the airport or wherever they were going to return to

South Australia.

In other words, in my respectful submission, the underlying assumption that had the matter been dealt

with then and there at 10 am, that Forrest would have

been in a form of custody different from the form

of custody during the period of six hours is an

unsound assumption. The final point arising out of

my learned friend's submissions is that, in answer

to a question from one of Your Honours,he did assert

that once the order for the return of Forrest to

South Australia had been made any further questioning

would have been impermissible. Now again, in my

respectful submission, that is simply not so and it

would have been quite proper, obviously provided

no pressure were placed on Forrest and provided the

questioning were properly conducted -but quite

proper in itself to question qim while they were
waiting somewhere before they went to the airport,
or while they were at the airport, or while they

were in transit, and although I cannot find any case

dealing with questioning in the context of this

particular Act, this Court did hold in the case of

REG V SANTOS AND CARRION, (1987) 61 ALJR 668, at page page 670 column 2, letter C, dealing with a prisoner who was in the custody of the police, that there was
nothing improper whilst the prisoner was in the
watchhouse in custody pursuant to the statute with

the policeman questioning him if he so agreed.

AlT8/3/HS	39	21/8/89
Forrest

ln my respectful submission, by analogy,

there would be nothing improper with questioning

taking place after an order had been made that Forrest

be returned to South Australia.

DAWSON J: But it is improper if he does not agree, is that the

corollary?

MR DOYLE:	I beg your pardon, Your Honour?
DAWSON J:	It is improper if he does not agree to question

a person who is in custody? I think it is not -

it does not go as far as saying improper, does it?

It is undesirable, would be about as far as you could go.

MR DOYLE:  Yes, and the undesirability would lie simply in the

persistent questioning when the man indicates that he

does not wish to be questioned, in my respectful
submission, that provided he is content to be
questioned, then, in my submission, there is nothing

wrong with questioning him, even though an order

has been made for his return to South Australia.

Having made those general points, could I then

go to the more general question of unfairness in
paragraph 6 of the outline. In our respectful

submission, the discretion to exclude admissions or

a confession on the grounds of unfairness is not

strictly confined to questions of reliability and we

have there given references to a passage from

Your Honour Justice Dawson where Your Honour held that it was confined to questions of unreliability and

then passages which I will not read from DUKE and

VAN DER MEER where other members of the Bench have
held, either expressly or in terms that appear, in

our respectful submission, to accept that the

discretion goes beyond matters of unreliability and

that it may extend to considerations such as the

point that while it was reliable it would not have

been made, but for the circumstances, or that it was

made in a form which makes it unfair to use it to

the accused even though, again, its contents are

reliable, perhaps in a situation like that
reliable as far as they go and unfair in that under

the circumstances or because of the circumstances

the accused did not add other things he might have
added.

So, Your Honours, we proceed on the basis in

these submissions that the question of unreliability
is not the sole concern of the Court in considering
the exercise of the discretion. We also proceed on

the basis which is set .out in paragraph 7 that it is

a question not so much of whether the police behaviour

can be characterized subiectively in terms of the

policemen as unfair, but whether it is unfair in
context to Forrest to use the material against him.

We rely there upon the iudgment of the majority of

AlT8/4/HS	40	21/8/89
Forrest

the Court again in VAN DER MEER. The passage is

cited there - 1 do not propose to read from them -

but the point is fairly clear.

We also submit, as we set out in paragraph 8,

that the exercise of the discretion does not involve

considering whether the confession was made, that one

is concerned with the reliability of the confession,

the circumstances which led up to it being made, but

not with the question of whether it was made and

again on that, differing views have been expressed

in this Court. We submit that the passage referred

to in the judgment of Your Honour Justice Brennan in

DUKE V REG correctly states the law where

Your Honour says that the question of whether the

confession was made is wholly and solely one for the

jury and that that is not a relevant factor in

relation to the exercise of the discretion.

Just to indicate the contrasting approac~ could

I refer briefly to the third passage referred to there,

that is the judgment of Justice Toohey, in the case

of DUKE V REG, (1989) 63 ALJR 139, and is in the boo~

of photocopies which we provided to the Court.

At page 147, column 1, letters F to G, Justice Toohey

referred there to a passage from the judgment of

Your Honour Justice Deane in CLELAND, which is one

of the other passages we cite, and in particular the concluding sentence of that passage dealing with the

topic of unfairness:

In discharging that task, it is

p~nmissible to take account of the

existence of any room for legitimate

doubt as to whether the alleged

confessional statement was made or was

voluntary.

Now, in our respectful submission, that is not the law

and to consider those matters, in our respectful

submission, would be to go into matters which are

properly the province of the jury and we would

further submit that it is difficult to draw a line

and say, "Well you do not consider whether in fact it

was made but you do consider whether you have doubts

about whether it was made". We would respectfully

submit that that sort of line is too difficult to hold

and in the end it would be very difficult then to

resist the pressure which would inevitably arise to
really start considering whether the confession had

been made.

So we also proceed on the basis that for purposes of unfairness we are not concerned with the question

of whether the confession was made. Turning then to

apply those principles to the facts of this r.ase we

first of all remind Your Honours that it is

AlT8/5/HS	41	21/8/89
Forrest

important to bear in mind that the trial judge

disbelieved Forrest and accepted the evidence of

the police generally wherever there was a conflict.

I will not read that passage of his ruling, but

that appears at page 132, line 5. Could I then go to apply those principles more

specifically. First of all, in our respectful

submission, it may be that the magistrate's order

was irregular. I will leave that for the moment, and

I do ~ot want to develop this point at this stage.

In our submission, it matters not whether it was merely irregular in the sense of an incorrect order or void. For the purposes of the exercise of this

discretion I would accept that it is sufficient for

my friend to show that it was irregular and I would

submit that his argument gains no strength from

showing that it was void, rather than merely irregular.

However, in our respectful submission, it is just

not possible in a case like this to find any link

between the irregularity and the circumstances leading

up to the making of the confession because, as I put to the Court a few moments in dealing with the points

arising from my learned friend's submissions, even

had an order for the return of Forrest been made then

and there at 10 am there is no reason to think that

the form of custody in which he was kept would have

been any different. He would have been in the custody

of the South Australian policemen and, in my

submission, they could properly have taken him

anywhere that seemed to them appropriate until they

caught the plane.

So, I would submit that the irregularity itself

cannot in any way be linked to the fact that the

confession was made, nor can the irregularity, I

would submit, in any conceivable way be seen to have

been productive of any unfairness to the accused

because, again, one would have to start searching

for some effect of that order upon him which would

not have occurred but for the irregular order being

made. In my respectful submission, as to the

irregularity, if I can call it that, if there is

anything in that it is a BUNNING V CROSS-type

argument and, in my respectful submission, perhaps encouraged by the fact that my friend did not even pursue that, the answer to an argument based on

BUNNING V CROSS arising out of the irregularity as

one which admits of a very clear and simple answer.

So I submit, first of all, nothing productive of

unfairne$ in the irregularity, if there was one,

in the order made.

Secondly, one can look at the question of delay,

because my friend did make something of this, but in

my respectful submission, there is a complete lack of

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Forrest

evidence to suggest, as I again said a little earlier, that the delay in any way put pressure on the accused, put him in a situation where he was likely to admit

things that he otherwise would not have admitted.

He was left very much to his own devices whilst

at the city watchhouse on the Sunday and nothing

other than the very short conversation on the

Sunday evening with the detectives from Adelaide and

again I submit that there is no hint in the evidence

that he himself felt under any pressure because of
the de lay, that he in any way felt disadvantaged by
the fact that he had not been questioned, if he were

to be questioned, sooner, not taken back to Adelaide

sooner, if that is the real complaint.

The third matter which, I submit, is relevant

to the question of unfairness is that on the judge's
findings the Court must proceed on the basis that

Forrest went out to these premises at St Kilda knowing

why he was going there, to be questioned, and one must

also accept that when he appeared before the magistrate

he knew the purpose of the proposed remand and that he

agreed to it knowing of its purpose. Again, in my

submission, it is very hard to say there is any
source of unfairness when the prisoner knows precisely

why he is going there. He obviously or presumably

would not have know exactly what he was going to be

asked but he went there knowing he was going to be

asked about armed robberies in Adelaide.

MASON CJ:  Mr Solicitor, the Court need not trouble you

further.

MR DOYLE:	If the Court pleases.
MASON CJ:	Mr Tilmouth, you have a right of reply on this

issue, the issue of unfairness.

MR TILMOUTH:  Yes, if the Court pleases. There are three brief

matters. The only additional factor in relation to

the propriety of questioning in the watchhouse

later related to the Judge's Rules. Your Honours

will note that the Judge's Rules are on our list of

authority, rule 3, and also an article by Brownlie.

It was, under the 1964 rules, the position that

where a person had been charged or was to be

prosecuted that it was only on exceptional

circumstances that he ought to be questioned.

This Court, of course, has dealt with the Judge's

Rules in VAN DER MEER.	T~e second matter is
on the - - -

DAWSON J:  What is the practice though about questioning a

person in custody?

MR TILMOUTH:  There is no real authority on the practice,

apart from CARRION AND SANTOS and a case of WARNER,

I think, but in so far as practice is evidenced

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Forrest

by trials in court it is not very often at all

that after the investigating police surrender a person

finally, after he has been charged, they actually go

back and ask questions. Now, whether that - - -

DAWSON J:	This led to the police being very artificial about when a person was or was not in custody, did it not?
MR TILMOUTH:	That could be so, but historically, Your Honours -

it was a rare case and is a rare case where once they

have finally questioned somebody and given them over

to the watchhouse sergeant that there would then be

another attempt later to question and ordinarily -

DAWSON J:	And that stems from the Judge's Rules largely, that reluctance.
MR TILMOUTH:	That is my submission, in so far as we know there is a causal link, but in so far as there were at times - there was a practice of police going back, it was usually to clarify some new matter which had arisen or, as in this case, Your Honours will recall, they
alleged Forrest had said, "I might want to speak to you later" and t'ley went out three or four weeks later and he refused to answer questions.
But generally t½e practice, in so far as
trials reflect practice, it wRs a fairly
rare t~in? after questioning was over
and  that probably stems from the Judge's
Rules and, as I said, Your Honours have dealt with
that in VAN DER MEER.

Finally, Your Honours - this is not on unfairness,

but Your Honour Justice Brennan asked us about the

nullity issue. My friend said it would not matter

if it was null or not but, in my submission, it could
be important because if it is merely avoidable then,

arguably, the case for the applicant's consent is

the stronger whereas, of course, if it was a nullity

it would enforce or underline our argument that it

cannot be waived. But the only case we could find

over lunch was CRANE V DIRECTOR OF PUBLIC PROSECUTIONS,

an old case, and I cannot add any further authority

to that proposition. May it please Your Honours.

MASON CJ:  The Court considers that the facts of this case

do not make it an appropriate vehicle for the

determination of any question of general principle.

Accordingly the application for special leave to appeal is refused.

AT 2.41 THE MATTER WAS ADJOURNED SINE DIE

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