Foster v The Queen

[1992] HCATrans 348

~

~ -.~·;$'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl0l of 1992

B e t w e e n -

STEPHEN EDWARD FOSTER

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

MCHUGH J

Foster(2) 1 2/12/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 DECEMBER 1992, AT 11.35 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:  May it please the Court in that matter I

appear for the appellant with my learned friend,

MR S.J. ODGERS.	(instructed by Craddock Murray &
Neumann)

MR K. MASON, QC, Solicitor-General for the State of New

South Wales:  I appear for the respondent with my

learned friend, MR G. D. BARR, QC, who, as from

yesterday, became one of Her Majesty's counsel.

(instructed by R.O. Blanch, QC, Director of Public

Prosecutions (New South Wales)

MASON CJ: Yes, Mr Solicitor. Mr James.

MR JAMES:  May it please the Court. In the present appeal

there have been extensive written submission filed

on behalf of the appellant. They contain some

errors to which I should take the Court, and there

are certain minor additional mattern to which I

should take the Court.

The first of those errors is a purely typing

error at page 12, paragraph 21, line 2, the third

word should be 'Magna'

MASON CJ: Are the other alterations as important as that?

MR JAMES:  Only in one sense, Your Honour, that at page 40,

paragraph 77, what is expressed by reason of the

use of the inverted commas is the text of the
document, the material in inverted commas is not

the text of the document, it is the expression of

its effect in 38 and 39 in the statute.

MASON CJ:  Mr James, before you leave that written

submission, I should say I find the style of it

unacceptable. It refers to judges by surname, it

refers to an approach just using the judges surname

particular judge expTessed a view or came to a	and it makes remarks like "It is surprising that" a
particular decision. Now, that is not acceptable
in terms of submissions that are lodged in the
Court.

MR JAMES:  I accept what Your Honour says.

MASON CJ: It may be acceptable for an academic article, and

I express no view about that, but it is not acceptable here.

MR JAMES:  We accept what Your Honour says. Your Honour,

leaving aside the style of the submission, as to

its content, what we had sought to do by the

submission is to furnish to the Court the maximum

assistance we could in relation to the concepts of

voluntariness, the fairness discretion and the

Foster(2) 2 2/12/92

public policy discretion, not only as they were

employed in the present case, but as to how they

have been employed and reviewed both in Australia,

in the United Kingdom and in the United States.

In that sense, what we have sought to do is to

afford to the Court the maximum assistance we
could, not only in relation to the traditional
views of those concepts in Australia, but also as

to the problems that have been seen with them

elsewhere from the point of view of rejection.

Your Honours, we should add to what appears in the submission concerning the decisions of the

trial judge and the Court of Criminal Appeal, the

matter that was adverted to by His Honour

Mr Justice Deane on the application for special

leave where he raised the question of whether or

not the Court of Criminal Appeal had misunderstood

what the learned trial judge had said in his

conclusion:

"If I am wrong I would nonetheless, in the

absence of other factors, exercise my

discretion to admit the evidence (the

confessional material)."

That appears, Your Honours, in the judgment of the

trial judge at page 11 in the passage which

commences at line 9:

In this case I am not of the view that the

accused Stephen Foster was arrested merely for

the purpose of questioning him. And it

appears to me that it was not unreasonable

that in the interval, between arrest and being

charged before a Magistrate, he should be

questioned -

and His Honour goes on to question the timing:

On the day in question the accused

Stephen Foster was arrested at about 12.30 pm

and he was charged with the present offence at

the Narooma Police Station at about 2.20 pm.

The interrogation as I understand it continued

for about an hour, up to the time of the

accused being charged. I take the view that

the interrogation of the accused was not
unlawful, having regard to these authorities,

which I have just mentioned -

they being, Your Honour, Hough and Ah Sam and

Williams v Reg.

If I am wrong in taking that view I would

nonetheless in the absence of other factors

Foster(2) 3 2/12/92

exercise my discretion to admit the evidence.

Now there were other matters upon which

Mr Terry relied.

The Court of Criminal Appeal in the passage

that commences at page 596 line 10, reviewed the

was - finding of the learned trial judge that the accused

not arrested merely for the purposes of

questioning -

and then turned at the bottom of that page in the

last paragraph there appearing to further evidence

which had not been referred to by the trial judge,

to conclude at line 9 on page 597, that:

His Honour's stated view was therefore

incorrect and the arrest was unlawful -

and referred to Iorlano and Williams.

Their Honours continued by saying:

In addition to saying that in his view the

arrest was not merely for the purpose of

questioning his Honour also said this

however:-

"If I am wrong I would nonetheless, in the

absence of other factors, exercise my

discretion to admit the evidence (the

confessional material)."

As later appeared the other factors to which

he was referring were factors of public policy

and whether the confession could be said to

have been vo~untary, that is made freely.

And it does appear, and on an examination of it,

that what His Honour had said dealt with two

things: that the arrest was not for the purpose of
questioning and, secondly, I also hold that the
questioning was not unlawful because he had not
been taken before a Magistrate. If I am wrong on

the second point and the Court of Appeal had

attributed to him being wrong on the first point,

which was pointed out to us by Mr Justice Deane, he

had never said and that dissection played no part

in the Court of Criminal Appeal's decision. In

effect, the Court of Criminal Appeal had taken the

view that His Honour had reached the conclusion

that, if he was wrong on the question of arrest for

the purpose of questioning, it in effect did not matter because His Honour had formed the view in

relation to all other factors, ie, public policy

and voluntariness.

Foster(2) 4 2/12/92

BRENNAN J: That view expressed by His Honour was expressed

on the evidence that was then before him?

MR JAMES:	Yes, that is so, Your Honour.
BRENNAN J:	And the evidence to which the Court of Criminal

Appeal refers is evidence given subsequently in the

trial?

MR JAMES:  Your Honour, the proceedings took a somewhat

unusual course. There was a voir dire at the
outset of the trial on the question of the exercise

of discretion based on the committal depositions.

Subsequent to that voir dire there was another voir

dire at the commencement of the trial on evidence
dealing with voluntariness and, to a certain

extent, with discretion. The Court of Criminal Appeal dealt with the two, as it were, globally when they came to deal with their conclusions and,

of course, that may well be the explanation for the

trial judge having confined his remarks as he did,

but, in our submission, the Court of Criminal

Appeal was clearly in error in attaching to that

statement the significance that the trial judge

had, as it were, at that time or indeed overall,

rejected the totality of matters that he had to

consider.

BRENNAN J:  I appreciate that. All I want to be clear about

was that the evidence to which the Court of

Criminal Appeal referred was evidence which was given at the trial after the confession had been

ruled admissible.

MR JAMES:  No, Your Honour. They refer to evidence given on

the first voir dire - - -

BRENNAN J:	On the first voir dire?
MR JAMES:

- - - by way of committal depositions, and

evidence given on the second voir dire given

orally, and evidence later given at the trial

including the dock statement of the accused.

BRENNAN J: Just answer this question for me, if you could.

The words that appear at the top of 597 lines 1 to

7, where does one find those in the transcript?

MR JAMES:  Yes, I think I can, Your Honour.

BRENNAN J: Perhaps your junior can look it up?

MR JAMES:  This may make some matters of reference to fact a

little of assistance·. We have provided to the

Court a schedule setting out whereabouts the various passages came from. That schedule did not

include a correct reference to the appeal book

Foster(2) 2/12/92

numbers but only to the committal numbers because

at that stage the committal depositions had not

been included in an appeal book. They have now
been included in a supplementary appeal book, and

might we therefore hand to Your Honours nine copies

of that schedule, which sets out the various

passages complete with a code that appears at the

bottom, explaining the nature of the references and

from which each passage comes.

BRENNAN J:  By reference to this, can you answer my

question?

MR JAMES: 

Yes, page 38 of the appeal book, Your Honour, which is the oral evidence on the second voir dire,

commencing at line 10 through to line 23.

BRENNAN J: 

Thank you.

MR JAMES: 

Your Honours, it is the skeleton of our

submission that in this case the oral statements
made by the accused admitting complicity in the

offence, the document that was thereafter brought
into existence and signed by him, the signature to

that document, and the answers to the questions

thereafter recorded by him, should have been

rejected; whether on the basis of voluntariness or

on the basis of a proper exercise of the

discretion, whether based on the fairness principle

or the public policy principle, may be a matter of

some debate in terms of the definition of those

principles, but that in the upshot, no matter which
route was taken, there should have been an
exclusion.

As far as the trial judge was concerned and as

far as the Court of Criminal Appeal was concerned,

at both points, that is in the first voir dire and

the second voir dire, what appears to have been

looked at was the simple lawfulness of the showing

to the appellant of the confessions of the

co-accused - and they appear in the appeal book at

the commencement of volume I, immediately following the confession of the accused - and the question so
tended to narrow, when both the trial judge and the

Court of Criminal Appeal came to examine '

voluntariness and the exercise of discretion, that the lawfulness of that showing seems to overshadow the relevance to the other concepts; that is,

voluntariness, fairness and that public policy

discretion.

Of all the other facts that were involved in

the unlawful arrest: -the taking away from Wallaga

Lake; the taking away from support and access to

assistance and advice; the taking to the police

station and the detention there at; the

Foster(2) 6 2/12/92

interrogation at the police station; the refusal to

accept the denials and what amounted to a course of

cross-examination of sustained importunity, we

would submit - albeit it was not sustained for much

longer than an hour, it none the less was sustained importunity casting his denials, in effect, back in his face; and that thereby what occurred was a

compartmentalization of the functions of the trial

judge and a compartmentalization of the functions

of the Court of Criminal Appeal which led to a
concentration on one aspect. In the trial judge's

decisions, that being, in effect, a last operating

cause taken out of context; and in the Court of

Criminal Appeal's decision an, as it were,

all-embracing finding, being that finding to which

had found against those other matters of discretion	I had taken the Court at 597 that the trial judge
and voluntariness.
Coupled with that, in relation to the question of voluntariness, the Court of Criminal Appeal, at
597 to 598, fell into two substantive errors, in
our submission. Firstly, voluntariness was equated
entirely with overbearingness. At 597, line 21:

In relation to the question of voluntariness

he considered whether as he claimed the

appellant was overborne by the manner of

questioning and the threats and said that he

did not accept that he was overborne. His

Honour decided on the balance of probabilities

that it was the production of the confessional

statements of Keiron McLeod and Timothy

Parsons not threats or inducements that brought the accused's confessional statement

into existence. He found that the confession

was made voluntarily.

And the second error, in our submission, appears at

598, line 1, where the court followed its previous

decisions in Kyriakou and Merritt and Roso and

held:

Whether the statement was voluntary was

peculiarly a matter for the trial judge. His

Honour considered the evidence and found that it was. There were facts that entitled him so

to find and there was no error in principle in

relation his approach to the problem. This

Court is not a fact finding tribunal and it is

not for this Court to consider whether it

would have found differently on the same

facts.

Your Honours, if one might turn to the decisions of the trial judge, the first being in the appeal book at page 9 - and this, Your Honours,

Foster(2) 7 2/12/92

concerned the application in respect of discretion.

For the purposes of the exercise of discretion, at

line 20, His Honour says:

For the purpose of the argument only it was

conceded that I should treat the alleged

confession of Stephen Foster as being a

voluntary statement by him and the argument

was confined then to the subject of the

exercise of my discretion to exclude that

confessional statement.

And thereafter appears His Honour's review of the

facts and His Honour turns to Hussein v Chong and

Williams, and Bales v Parmeter and Rogerson and, in

due course, Hough and Ah Sam, and then His Honour

turns, at page 11, to the conclusion which appears

in lines 9 and 10:

In this case I am not of the view that the

accused Stephen Foster was arrested merely for

the purpose of questioning him.

And that was the conclusion that the Court of

Criminal Appeal did not uphold.

And it appears to me that it was not

unreasonable that in the interval between

arrest and being charged before a Magistrate,

he should be questioned. On the day in

question the accused Stephen Foster was

arrested -

and His Honour then goes on to reach a conclusion

that the interrogation was not unlawful, having

regard to Hough and Ah Sam and Williams, and then

follows that passage to which I have already taken

the Court. Then His Honour continues:

Now there were other matters upon which

<4	Mr Terry relied, and upon which he relied to
request me to exercise my discretion to
exclude the confession -

and there is a combination of factors referred to

and an argument concerning unfairness to the

accused and, in particular, Clelland. At line 34:

Mr Terry submits that when one has regard to a

series of factors and accumulation of factors
which must properly be taken into account they

taken together would justify the exercise of

my discretion to exclude the alleged

confessional st~tement of the accused.

The factors are thereafter se.t out, from line 39

onwards - his age:

Foster(2) 2/12/92

a young man of twenty one, was removed from

his residence ..... taken to Narooma Police

Station where he lacked the support of friends

and relatives ..... lacked also legal

advice ..... the interrogating of the

investigating police officers relied upon an

informant who has remained

anonymous ..... improper ..... to continue to

interrogate the accused Stephen Foster after
his initial denials ..... misleading

statements -

which were put as part of the matter going to

general discretion. The question of the inaccuracy

or not of those statements did not loom large and,

indeed, His Honour the trial judge was of the view

that the inaccuracy was disposed of by the handing

to him and the reading by him, at least prior to

the ultimate admission, of the statements of the

co-accuseds, and His Honour sets out, at page 12,

the reference to that reading. At line 22, he

says:

What may well have been unfair if it had been

left merely at the statement as to "both

Keiron McLeod and Tim Parsons", was in my view

sufficiently cleared up when the accused

Stephen Foster was shown both of those

statements and could satisfy himself to what

extent he had been named as a person involved

in the commission of the alleged offence. It
has also been put to me that the questioning
by Detective Sergeant Liversidge was in some

respects overbearing and amounted to cross

examination. I don't accept that submission

and I do not regard those matters whether

taken in conjunction or taken separately with
other matters put to me by Mr Terry warrant
the exercise of my discretion to exclude the

alleged confessional statement -

and His Honour declined to exercise his discretion.

There is very little there by way of fact finding

as to what, in fact, did occur. When His Honour

turns to the question of the voluntariness of the

confessions - the judgment appears at page 62 -

His Honour, at line 22, confines himself for the

moment to the interrogation that occurred.

His Honour confines those matters to what occurred

at the Narooma Police Station and the course of the

interview itself.

TOOHEY J: Mr James, just before you go on, what had

happened between the decision on the voir dire

based on unfairness ~nd the decision on the voir

dire based on voluntariness? There had been

evidence adduced in the meantime?

Foster(2) 9 2/12/92

MR JAMES:  Yes, Your Honour, evidence had been called and

the submissions are not recorded but, at page 13,

Mr Terry, in line 36 and onwards, asked His Honour

to hear evidence on the question of voluntariness.

There appears a cryptic reference at page 14:

That's a matter for you, do you wish to

cross-examine the police officers again?

MR TERRY: I don't wish to your Honour, I've

put all that I require to put, there is this

however your Honour, it's this issue requires

your Honour to make decisions of fact.

HIS HONOUR:  Yes.

And the question of demeanour. And what ends up as

the position is it appears that what has occurred

previously is tendered and supplemented by the oral

evidence thereafter given and the tender of

statements prepared by the police officers for the

committal depositio~s.

TOOHEY J: Should I take it that for the purpose of the

attack based on unfairness there was no evidence

from the accused?

MR JAMES:  No, Your Honour, that is right.

TOOHEY J: That only came into being as part of the attack

on the confession based upon voluntariness?

MR JAMES:	In so far as the issue was closed at the time of the first judgment, yes, Your Honour, the accused
had not given evidence at that stage but, on one
view of it, the issue was certainly not closed and
never would be closed throughout the trial. If it appeared to the trial judge that the admission of
the statements would be unfair, the objection
having been taken and there being additional
evidence given, or if it appeared to the trial
judge on the totality of the material that in balancing the public policy considerations the material should be rejected, on the evidence that
has come before him during the trial, it is clear
enough, in our submission, that he should have, in
fact, rejected it. The issues were never closed
off by the defence, they were always open and
continuing.

TOOHEY J: But for'the purposes of the second voir dire, was

argument renewed based upon unfairness or upon any

consideration other than voluntariness?

MR JAMES:  Yes, Your Honour. One of the most important

points, in our submission, in this appeal, is that

both amongst the trial courts and the Court of

Foster(2) 10 2/12/92

Criminal Appeal in New South Wales and its counsel,

the lines between voluntariness, unfairness and

public policy discretion have become entirely
blurred, that voluntariness in the traditional

sense referred to by Chief Justice Dixon in

McDermott has become narrowed on the basis that

matters which are thought to go to either the

fairness or the public policy discretion, such as

unlawful arrest, unlawful interrogation, unlawful

detention, are seen somewhat myopically as applying

only to the exercise of the discretion.

So that these questions come to be raised in

ways that makes it very difficult to give Your

Honour a precise and direct answer, yes or no, in

accordance with the legal principles as we see

them.

MASON CJ: Are you going to demonstrate that there has been

this narrowing of voluntariness?

MR JAMES:  I am going to seek to, Your Honour. We do not

accept that it is a narrowing, Your Honour, we
accept that - it is our submission that

voluntariness is wide and that what has happened is

that certain factual considerations which may

exemplify matters that go to the discretion have

been, as it were taken out of the calculus. And

indeed, in this case the matters raised in the very

first voir dire judgment which are not seen as

relevant to voluntariness in the second judgment, are themselves matters which classically would go

to voluntariness. I should add - - -

TOOHEY J: Are we to infer from what you have said,

Mr James, that the purpose of the argument on the

second voir dire, the issue of unfairness and

issues other than voluntariness, were not expressly

canvassed before the trial judge?

MR JAMES:  Your Honour, it is canvassed in the reasons, but only under the rubric of voluntariness.

DAWSON J:  Mr James, I do not understand how the Court went

about it in this way, because once some question is

raised regarding the confession, then the Crown

have to prove that it was made voluntarily in order

for it to be admissible. And then the natural
progression is to go on to unfairness and, if
necessary, public policy. But if you start with
unfairness, you are starting with the wrong

question first.

MR JAMES: 

And indeed, Your Honour, if you start with public

policy, it may be that the other matters never have
the attention focused upon them that they should.

Foster(2) 11 2/12/92

DAWSON J: But how did it happen that this came about?

MR JAMES:  Because of that confusion, Your Honour,

concerning the delimitation between the

proposition. If one turns to the Court of Criminal

Appeal's judgment, one can see that in this case

these very questions tend to merge.

BRENNAN J: But if it is all a porridge, you would think it

is strange that it is divided into two meals. I

mean, why was it not all dealt with at once so that

whichever basis of exclusion was sought to be

relied on could be relied on.

MR JAMES:  I am only able to say to Your Honour that in the

supplementary appeal book at page 1, it records the

agreement of the Crown prosecutor and counsel that because of the exigencies of the trial as it were,

the lengthy transcript of the committal proceedings

would be tendered and then if any further witnesses

are required, that can be arranged. And apparently

under the heading "Discussion as to Voir Dire

Material", some form of agrGement was reached that

the matter was to proceed in that way, by all

parties.

Now I accept that it is not satisfactory and

there are cases that say that it is not

satisfactory for a trial judge to determine

voir dire on depositions, at least as a general

proposition. There are, however, questions of

common fact or accepted fact which can conveniently

by circuit courts be dealt with that way, and they

customarily are. In this case, it seems that what

happened was the initial submission was one

relating to the unlawfulness of the arrest and

detention, and it appears to have been thought that

that bespoke the exercise of the discretion, and
the exercise of t.he discretion only.

TOOHEY J: But it rather looks as if, from the accused's

point of view, it might have been hoped to get a

ruling favourable on the voir dire without the

accused having to give evidence on that aspect.

MR JAMES:  That would be a bizarre thought to have,

Your Honour, because - - -

TOOHEY J:	Maybe.
MR JAMES:	- - - the one thing that does seem to be clear,

is that,on an exercise of discretion, whether on

fairness grounds or on public policy grounds, it is

for the accused to bear the onus and indeed the
question of onus on the public policy is really to

point to such an overweeing matter of public policy

Foster(2) 12 2/12/92

which was reliable. as would require the rejection of a confession

TOOHEY J: And yet you tell us that the accused gave no

evidence on the first voir dire, but gave evidence

on the second voir dire.

MR JAMES:	What seems to have been the case is that the depositions were tendered on the basis that
His Honour might be minded to dispose of the whole
issue there and then, and it was only necessary to
go to voluntariness if His Honour was not of that
view.

McHUGH J: But that was because counsel who appeared for the

accused said there were no disputed facts on the

discretionary issues. That appears at page 6, does

it not, at line 15?

MR JAMES:  Yes, he does say:

Your Honour, given that the question that I

first asked Your Honour to decide involves no

dispute as to facts -

but I think by that what he is saying, in effect,
is the evidence for both sides is in the committal
depositions, not that there is no dispute as to the

facts amongst the committal depositions, because

when one looks at that there are differences

between the two police officers. But what he does

appear to be saying is that he shoulders the onus

as to why the discretion should be exercised, and

that there appears to be at least common ground
that he is arrested for the purposes of
interrogation.

Of course, His Honour decides a disputed question of fact in his judgment when he holds that

he was not arrested for the purposes of
interrogation.	I cannot, Your Honours, claim that

this is the most polished procedurally ept

exercise, but often trials on circuit and at that

level of the judicial hierarchy are not.	It can be
seen - - -

McHUGH J: But it may indicate that this is not really a

suitable vehicle to decide these cases.	The whole
question is now academic, is it not?

MR JAMES:  No, Your Honour, not at all.

McHUGH J: Well, has not the accused served his sentence?

MR JAMES:  He has been wrongfully convicted, Your Honour, in

his assertion, and that is a most material matter.

He has served his sentence certainly, but it is

Foster(2) 13 2/12/92

cases of confusion, at least initially, from which

principles can properly be extracted. Those that

are run perfectly according to the dictates of the

time present nothing new that enables the court to

extract a proper principle.

Indeed, in one sense this is nothing new

because since Williams and Carr the same things

have been occurring. Indeed, I have been assisted

by the Crown supplying me with a set of examples of
exercise of the discretion in New South Wales in

the years 1988 and 1989 to support the proposition

that the discretion is alive and well in New South

Wales. But when one looks at those examples, and

in particular looks at the last of those examples,

being the judgment of His Honour Justice Ducker, on

14 November 1988, exactly the same problems seem to arise. Would it be of assistance if I handed these

to Your Honours, since the question of suitable

vehicle has been raised?

Judge Ducker's decision is the last decision

in that volume, and there the judgment commences

with a plea to the legislature to give the police

more precise guidelines in the light of the

decision in Williams' case, refers to Blundell's

case which permitted the admission of material

whilst the police were ignorant - - -

MASON CJ: What page is this?

MR JAMES:  It is the last judgment, Your Honour, page 41.

MASON CJ: What, is this designed to enrage us?

MR JAMES:  No, Your Honour, it improves. But at the bottom

of the page there is reference to the absence of rejection in cases of ignorance of the effect of

Willia.ms' case, and the consideration·that -

in the public interest cogent evidence

relating to the commission of a serious
offence should not be withheld from the jury

and that this over-rode the public interest in

ensuring that police officers do not

themselves break the law -

where the breach is u~witting. But His Honour goes

on to point out - the ~olice officers are giving

evidence -

that in order to justify his official raison

,.::_ d'etre -

or his police duty -

he must break the law.

Foster(2) 14 2/12/92

His Honour contends that is an intolerable

situation because otherwise the police officer -

will be pilloried for failure to carry out his

duties effectively. On the other hand, if he

does those things, he is breaking the law as

it stands -

and he reaches the view that that is unfair to

police officers.

His Honour, at page 43, says that, in effect,

unless guidelines are produced, society is going to

suffer; criminal cases will not be properly

investigated; people will not be able to be
interviewed; evidence will not be obtained and
criminals will know that they are encouraged to

commit breaches in the knowledge the law will

protect them with extraordinary solicitude. Then

His Honour concludes that he is bound to hold, in

the light of Williams, that the detention was

unlawful and that he:

must take into account that these officers, in
common with all other detectives in New South

Wales, were aware it was unlawful to hold persons for longer that reasonably

practicable, to take them before a Justice,
and that they held the accused for a longer

period than -

was reasonably practicable. All of this,

Your Honours, is in relation to the exercise of the

discretion and His Honour continues to weigh, on

the one hand, the community's interest in seeking
the police officers themselves obey the law, and

the interest in seeing that offenders are

apprehended, prosecuted, convicted and sentenced.

Neither here, nor in the trial judge in the present case, is there reference to the possibility of the	effect being to create unreliability, the effect on	the mind of the confessionalist as to the making of
the statement or its contents, or as to the countervailing presumption that care must be taken with evidence that, in effect, is indirect testimonial evidence from the accused in its devastating effect on a trial, to ensure that the
traditional protections against the right to
self-incrimination, are achieved having in mind its underlying rationale which is that the innocent
should not be unjustly convicted, or that a person
should not be unjustly convicted by a trial which
is rendered unfair by evidence which is, of its
nature, potentially ~nreliable such that there
might be a real and substantial chance of an untrue
verdict.

Foster(2) 15 2/12/92

His Honour goes on to hold that he should

reject the confession so that the court's stamp of

approval would not be placed upon police officers

knowingly breaking the law. There is evidence in

the present case also that the police officers knew

of Williams' case, but confined the question,

adverted to by this Court and by other courts and

exemplified in Williams' case, of whether they

should simply take people to justices quickly or

slowly, without considering the effect of the detention on the mind of the confessionalist.

His Honour goes on, after dealing with that

question, albeit he does so referring to freedom

from arbitrary arrest and detention, all in

relation to questions of public policy rather than effect on the confession, to turn to voluntariness

right at the end of His Honour's judgment and, on a

balancing, has regard to the accused's version and

then the police version, and the accused alleged,

in effect, an inducement which had effect on him

because he was in custody, and the police, in

effect, rebutted that.

His Honour was of the view that he was in

doubt as to whether the confessions were voluntary,

but did hold that quite frankly by a relatively

narrow margin on the probabilities this record of

interview was voluntary. The custody, the

detention, the unlawfulness do not figure in the

voluntariness calculus here either, as they did not

figure in the present case. I might point out that

as to the matters going to discretion on the first

judgment in the voir dire, the matters that were

eventually successful in the Court of Criminal

Appeal, it was not necessary to call the accused on

those questions because the police officers - the
matters peculiarly related to the actions of the

police officers and their own state of mind and

that evidence itself had been given. Now, Your Honours, I raised that because it

was put that this may not be a suitable vehicle.

There are cases, and the Crown has generously supplied us with them, in which for public policy

or fairness reasons, and sometimes it is a little

hard to work out what is being talked about,

confessions have been excluded on occasions by

trial courts in New South Wales. But those
occasions, as can be gathered from the volume to
which my friend has referred and the dates, are not

of frequent occurrence, notwithstanding that there

[email protected] seem to be a view held by some police

officers, and a substantial number of police

officers, according to those cases, that Williams'

case is confined in its operation and is continuing

to be so confined by police officers.

Foster(2) 16 2/12/92

DAWSON J: Sorry, I do not understand that: Williams is

confined in its operation?

MR JAMES:	That is to say, that the function of Williams' case is really directing the police officer to take
someone before a justice as soon as reasonably
practicable, not to have regard to the question of
what is to happen in the interim period, because it
is the detention - the arrest, the interrogation, the detention which has the traditional effect of sapping the will of the confessionalist.

Your Honours, there is an example of this,

even under the recent English ..... legislation, in

the decision in Smith v Director of Serious Fraud

Office, (1992) 3 All ER 456 which appears on my

learned friend's list of authorities. That

decision deals with the so-called right to silence

and examines its manifestations or, more correctly,

seeks to define what it is in terms of, in effect,

almost Hohfeldian analysis and reminiscent of what

has been put in this Court in Jago by Your Honour

Mr Justice Deane, and in Dietrich recently as to

whether one is dealing with rights or immunities.

It does so in the speech of Lord Mustill. The

short facts were that there was a right for the

Serious Fraud Office to compulsorily interrogate

persons; the question arose as to whether that

right could be exercised after charge and whether a

caution was required or not. Without going to

those aspects of fact, could I point out that the

answers to the questions at the compulsory

interrogation were inadmissible at the accused's

subsequent trial as evidence. That did not mean,

of course, that the intelligence thereby gained
could not be used.

The provisions are set out in the judgment and

at the bottom of page 460, just below J, appears

the Police and Criminal Evidence Act relevant

passages, and the code, code C - - -

DAWSON J: What page is that, Mr James?

MR JAMES: Sorry, Your Honour.

DAWSON J:  We have the Weekly Law Reports, I am afraid, can

you identify the passage?

MR JAMES:  I am sorry, Your Honour. Your Honours will see

the heading "Codes of practice", which appears at

71 just above D of the Weekly Law Reports. The

statute follows thereafter; then appears the code

commencing on 72B, and at 74 under the heading "The

right of silence" appears the passage which

continues through to 76 point 5 immediately above

"A v HM Treasury" and B v HM Treasury.

Foster(2) 17 2/12/92

In the passage commencing under the heading

"The right of silence", Lord Mustill expresses the

proposition that that is not so much a right:

single right, but rather ..... a disparate group

of immunities, which differ in nature, origin,

incidence and importance, and also ..... they

have already been encroached upon by statute.

His Honour says:

Amongst these may be identified:

(1) A general immunity, possessed by all
persons and bodies, from being compelled on

pain of punishment to answer questions posed

by other persons or bodies.

And, of course, to continue to detain someone for the purpose of interrogation is a form of breach of

that right or immunity.

(2) A general immunity, possessed by all

persons and bodies, from being compelled

on pain of punishment to answer questions

the answers to which may incriminate them.

And similarly, to arrest, unlawfully carry off,

detain and continue to interrogate, they will

breach that specific immunity.

(3)	A specific immunity possessed by all
persons under suspicion of criminal
responsibility whilst being interviewed by police officers or others in similar positions of authority, from being
compelled on pain of punishment to answer
questions of any kind.

Which appears to be the traditional free choice to

...	speak or remain silent, as referred to by
Sir Owen Dixon in McDermott at, I think, page 551.

(4)	A specific immunity, possessed by accused
persons undergoing trial, from being
compelled to give evidence, and from being compelled to answer questions put
to them in the dock.
( 5)	A specific immunity, possessed by persons
who have been charged with a criminal
offence, from having questions material
to the offence addressed to them by police officers or persons in a similar position of authority.

Foster(2) 18 2/12/92

Australian law has not, so far, gone so far as

to suggest that it is unlawful to question a person

after they have been charged at all, and in all

circumstances.

DAWSON J:  The position in England was that the judges'

rules cautioned against questioning people in

custody.

MR JAM.ES:  Yes. And His Honour comes to that precisely,

Your Honour.

DAWSON J:  The contrary was the case here: Hough and other

cases.

MR JAMES: Precisely. And:

(6)	A specific immunity (at least in certain
circumstances, which it is unnecessary to
explore), possessed by accused persons undergoing trial, from having adverse
comment made on any failure (a) to answer
questions before the trial, or (b) to
give evidence at the trial.

That immunity was in fact considered by this Court in McKinney v Judge. His Honour goes on to

say:

Each of these immunities is of great importance, but the fact that they are all

important and that they are all concerned with

the protection of citizens against the abuse

of powers by those investigating crimes makes

it easy to assume that they are all different

ways of expressing the same principle, whereas

in fact they are not. In particular it is

necessary to keep distinct the motives which

have caused them to become embedded in English

law; otherwise objections to the curtailment

of one immunity may draw a spurious	reinforcement from association with other, and
different, immunities commonly grouped under
the title of a "right to silence". Thus, for
example, it is clear that the fourth and sixth
of the "rights of silence" -

that is, the right not to give testimony and the

right to avoid adverse comment -

which are the subject of much current

controversy, are wholly unconnected with the

present·appeal.

We must look briefly at these various

motives. The first is a simple reflection of

the common view that one person should so far

Foster(2) 19 2/12/92

as possible be entitled to tell another person

to mind his own business. All civilized

states recognize this assertion of personal

liberty and privacy. Equally, although there

may be pronounced disagreements between

states, and between individual citizens within
states, about where the line should be drawn,

few would dispute that some curtailment of the

liberty is indispensable to the stability of

society; and indeed in the United Kingdom

today our lives are permeated by enforceable

duties to provide information on demand,

created by Parliament and tolerated by the

majority, albeit in some cases with

reluctance.

His Honour then turns to reviewing the history, and

in particular the history of those tribunals which

required persons to take an oath and to testify before them, on oath, as to matters which might tend to incriminate. In that regard, of course,
part of the United States' traditional objection to

the admission of incriminating statements was

founded on that very history concerning the

tenderness with which both the oath was viewed and
also the necessity that the accused incriminate
himself or commit perjury if he was guilty.

The immunity against judicial interrogation of

course has been considerably whittled down by
statute and His Honour points that out and points
out further that the abolition by the Criminal
Evidence Act 1898 of the incompetence of the

accused to give evidence none the less has carried

with it a right to cross-examine him. But

His Honour goes on to say that following his

discussion of the history and in the paragraph

dealing with fair play that:

Finally there is the desire to minimize the

risk that an accused will be convicted on the

strength of an untrue extra-judicial

confession, to which the law gives effect by
refusing to admit confessions in evidence
except upon proof that they are "voluntary".

This motive, which became prominent when

inquisitorial methods waned and extra-judicial

confessions became an important, and in many
instances by far the most important, weapon in
the prosecution's armoury, was particularly

weighty at a time when the accused could not

rebut or explain away the confession by giving

evidence on his own behalf. Even now, nearly

100 years after that disability has been

removed, the imprint.of the old law is still

clearly to be seen.

Foster(2) 20 2/12/92

Pausing there, the discussion by His Honour

appears to recognize the proposition that, of course, the right not to be compelled to give testimony is not much of a right if one can be

compelled prior to trial to provide an unsworn account which is then introduced into evidence

against one.

His Honour goes on to say that it is necessary

to examine the particular statutes which might

abrogate the right to see what particular effect is

required and he concludes, in the passage - before

turning to the instant case - that appears at

page 81 in the last paragraph on that page:

Before examining these propositions I

must make good the comment that the

concentration on the moment of charging has

tended to lead the inquiry in the wrong

direction. I say this because, of the several

versions of the "right of silence" contained in the list previously given, only the fifth

hinges upon the fact of the suspect having

been charged; and that is an immunity against
being asked questions of any kind. Yet this

appears of no practical importance here, for

there is no reason to suppose that the

applicant has the least objection to the

Director asking him questions so long as (in

line with the cautions already administered)

he does not have to answer. The immunities

which he does say the Director is wrongfully seeking to infringe are the second and third

in the list, which protect the citizen from

being compelled to answer questions on pain of

punishment; and these are not -

dependent, His Honour says, on the accused being

charged.

And lastly, I would take Your Honours to the

passages that commence on the last two pages of

that judgment, commencing with the words

"Secondly", at page 85 in the paragraph commencing

on that page. His Honour is dealing with the

question of charging:

Secondly, this particular immunity is

much less ancient than others grouped under

the rubric of the right of silence. It

appears to reflect a course of practice,

developed during the latter part of the 19th

century, to abstain from questioning, not

after charge, but after the suspect had been

taken into custody; and it appears that in

general any evidence obtained from such

questioning was regarded as inadmissible -

Foster(2) 21 2/12/92

and His Honour refers to Archbold, 28th edition.

The practice does not, however, appear to have

been universal, as witness the embarrassing

conflict of judicial opinion recorded in the

brief history of the Judges' Rules which forms

the introduction to the 1964 revision of the

rules -

and His Honour refers to the practice note.

Moreover, although the Rules sprang from this

conflict, they did not in terms go further

than saying that persons in custody should not

be questioned without first being cautioned. the controversy, as witness the account given in 1929 in the-Report of the Royal Commission

on Police Powers and Procedure.

As already noticed, the debate on this

issue seems to have been concentrated on the

position of the person in custody, and

successive editions of Archbold continued

until as late as 1959 (34th ed) to express the

inhibition against questioning· in terms of

such a person.

So also did Reg v Brown and Reg v Bruce.

The Royal Commission did, however, recognise

that custody and charge would not necessarily

coincide, and that there might be intervals of

time whilst the suspect was under arrest but

not yet charged, and whilst he was on bail

after being charged; and the recommendation

was made that the prohibition of questioning

should also apply to these periods.

And His Honour points out that the rules were

revised in 1964 and now Code Chas come into effect

and that the official circular from the

Home Office, which is referred to in the next paragraph, is an intent to,apparently relate the inhibition from asking questions, save for the

purpose of clarification, neither to charging, nor

to the time when he is in custody, but to the

moment when he is cautioned which, Your Honours, in

passing, seems to echo the position in the United

States in Miranda.

His Honour sketches those matters because, as

he says, Code C:

paragraph 16.5 of Code c ..... is not directly

linked to the ancient and deep-rooted

privilege against self-incrimination. That

Foster(2) 22 2/12/92

privilege aims to protect all citizens against

being compelled to condemn themselves. But

the law has never set out to protect a subject

who condemns himself whilst acting of his own

free will. Its only concern has been to

ensure that he really does so act, by the

general rule which excludes from evidence any

confession which is not proved to have been

voluntary.

And he refers to the Home Office circular -

that it is in order to secure this aim, and in

recognition of the fact that a person in

custody is in a specially vulnerable position,

and hence particularly at a disadvantage in

responding to questions in a balanced and

measured way, that it has been thought safer

both to prohibit questioning after a certain

point, and to exclude from evidence answers

given to such questioning. Thus, although the

rule is now expressed in terms of a

prohibition directed towards investigating

police officers, it is in essence a

development of the law relating to the

admissibility of confessions.

His Honour later turns to the question of fairness in the conduct of the trial at the conclusion of the second paragraph thereafter by invoking the

power of the trial judge, in a peremptory manner,

to ensure that the conduct of the trial is fair and

invoking, as it were, the fairness discretion known

in Australia.

We would add those citations, Your Honours, to

what we have said in the written submissions,

though it seems to us that, really, on the

questions of principle, if one looks at the

traditional cases, Cornelius, McDermott and Lee and

the ambit of the voluntariness rule, there is no

reason why one should not take into account on the question of voluntariness all the circumstances in which an accused person is placed in order to

decide whether what was said was said in the

exercise of a free choice to speak or be silent.

DAWSON J: Stopping there, we are concerned here with

answers given while a person is in custody?

MR JAMES:	Yes, Your Honour.
DAWSON J:	Now, there are difficulties about that. Does it

make any difference if custody is illegal?

MR JAMES:  Yes, Your Honour.

Foster(2) 23 2/12/92

DAWSON J:  I understand your proposition to be that the

person in custody - you adopt what is said by

Lord Mustill - is in a position of special

vulnerability. Then it should not matter that the

detention is illegal.

MR JAMES: It may not matter in some cases. In some cases

it clearly would.

DAWSON J: Rather it is a question of the length of

detention, perhaps?

MR JAMES:  Not just the length of detention either,

Your Honour, the circumstances of it. This man was

taken from the support at Wallaga Lake in

circumstances in which there was a protest about

the fact of the arrest and an acceptance by the
police officers that they were taking him for the
very purpose of producing evidence, in effect, to

tender at his trial and that was, in effect, made

known.

DAWSON J:  I know that Williams' case says that you cannot

do that and the common law says that you cannot do

that, but, of course, that has been found in many

places to be quite impracticable, has it net?

MR JAY.ES:  Your Honour, it depends upon - - -

DAWSON J: And in many places, now, by legislation the

police are given a period of time during which they

can question a person whilst in custody.

MR JAMES:  Yes, Your Honour, but I am not aware that they

have been given the right to arrest for the purpose

of producing eviaence at the trial. They have been given the right, once they have a basis for arrest, to question and, using the terminology of the old

cases, to dispel doubt or prove the case or

ascertain whether there is exculpatory material,

all of that, but arrest for the purpose of

interrogation - - -

DAWSON J:· That goes to the right to freedo~, rather than

the right to silence because if, in fact, it is

acceptable that questions asked whilst a person is

in custody and the answers given should be

admissible in evidence, it really cannot go to

voluntariness, except for other circumstances.

MR JAMES: Well, if you are aware that your right to freedom

is circumscribed, it is a matter that may well

operate upon your mind when you realize you are in

the hands of those who have the ability to

circumscribe your freedom to come and go when it

comes to that question of making answer or

remaining silent. In this case there was actual

Foster(2) 24 2/12/92

evidence that the police officers were minded to

interrogate; one at least giving evidence that he

intended to interrogate until he got at the truth,

as, in effect, he saw it; that he was able - he

prided himself on his ability to break down a

confessionalist to tell the truth and that the

process that was conducted was not simply to get

the accused's account, but was then to deny that

account; put to him it was incorrect, to

cross-examine him about it and the very showing of

the statements and the detention were all part and

parcel of a procedure designed to weaken his

ability to -

DAWSON J: But what I am putting to you is the mere fact

that a person - this is just a proposition - is

questioned while in custody cannot be accepted in

Australia as going to the question of voluntariness

in any event.

MR JAMES:  On its own we accept that, Your Honour.

DAWSON J: But in England the contrary was the

position - - -

MR JAMES:	Yes, Your Honour.
DAWSON J:	- - - we have seen, on one view.
MR JAMES:	Unless Hough v Ah Sam is to be overruled, we

accept what Your Honour says, as to the mere fact

of custody. But the very thrust of this appeal is

not that there was merely custody or merely

unlawful custody. The thrust of this appeal is

that the opportunity was taken of a deliberately

created unlawful custody to do that which should

not have been done, which must have impacted upon

the mind of the confessionalist. Putting aside,

for the moment, what he said about the threats that

were made to him which were not, in our submission,

rejected by the trial judge at all, there was

simply a concentration on the last operating cause

being - - -

DAWSON J:  It follows from what you are saying that the mere

fact that he was arrested for the purposes of

questioning does not go to voluntariness.

MR JAMES:  No, Your Honour, with respect, because the way in

which the arrest was carried out in this case -

perhaps I am only debating the meaning of the word

"mere" with Your Honour, but what happened in this
case was an arrest, a removal from family and

supporters and access to advice and assistance, a

carrying away which, ·if it was for advantage in

New South Wales would amount to the statutory crime

of kidnapping which is a rather serious crime, and

Foster(2) 25 2/12/92

carrying away or detaining for advantage. And the taking to the police station, the isolation in the police station.

DAWSON J:  Let me be clear of what you are saying. You are

saying the arrest here was illegal?

MR JAMES:  Yes, Your Honour.

DAWSON J: There was no basis on which the arrest could be

made?

MR JAMES:  No. There was a basis. They had a reasonable

suspicion but that reasonable suspicion merely gave

the entitlement to arrest.

DAWSON J: And they did arrest him.

MR JAMES:  But the purpose for which they wished to arrest

was a purpose that they knew was a foreign purpose,

or at least was declared in law to be a foreign

purpose to the arrest.

DAWSON J: That confuses at least me. If they are entitled

to arrest, and did arrest, then they arrested.

MR JAMES: Yes, Your Honour, but it -

DAWSON J:  But you say they were not then entitled to ask

questions whilst he was under arrest, do you?

MR JAMES:  If one has an entitlement, but you are using it

for a purpose other than the purpose for which it

is conferred, and you are determined to arrest for

the purpose of interrogation, even if you have the-

entitlement, the arrest is unlawful, as the

Court of Criminal Appeal correctly held. And my

point about that is when one comes to take the

facts of the arrest and what happened to him, all

those facts relate to sapping his will to speak.

And to seize upon the very last matter and say that

that is lawful -

DAWSON J:  I know you say that, and we will come to that, no

doubt, in due course, but why is not a pol_ceman

able to say, "Look, I want to question this person.

Can I get him in for questioning? Well, there is

sufficient grounds on which to arrest him so I will

arrest him and we will take him in for

questioning" .

MR JAMES: Right. Firstly, because it has been held often

that an arrest for the purpose of interrogation is

not a valid arrest, or a lawful arrest, and if one
has an entitlement to arrest because one reasonably

suspects that the person has committed the offence,

then there is nothing, of course, to prevent the

Foster(2) 26 2/12/92

policeman arresting him, and during such periods as may be necessary embarking on such inquiries as may

be necessary to dispel or prove guilt, or assist in

the proof of guilt, or even asking questions,

Hough v Ah Sam. But it is only where that is done

with the purpose of making up one's mind whether to

charge or not charge. But, if one starts with the

proposition, I am going to charge this man, I do

not have the evidence for it, I only have a
reasonable suspicion, I will arrest him and

interrogate him until he gives me the answers that

in effect I want, and thereafter charge him.

The whole process becomes permeated by that

improper purpose. It is really a sort of a fraud

on the power argument I am putting to Your Honour.

DAWSON J: Yes, I appreciate that.

BRENNAN J:	Mr James, could I just understand the basis on which we are to approach this case? There was the
deposition evidence, followed ultimately by some
voir dire evidence, and then there was a second
ruling by the trial judge and that was directed to
voluntariness.  So the trial judge then had all the
material before him on which the finding of voluntariness is to turn. That is all the evidence
we need to look at?
MR JAMES:	The Court of Criminal Appeal went further,

Your Honour.

BRENNAN J: Well, do you say that we have to look at other

evidence apart from the depositions plus the voir

dire evidence?

MR JAMES:  No, Your Honour.

BRENNAN J: Well now, are there findings of fact that are

being challenged in respect of a voluntariness

finding?

MR JAMES:  Yes, Your Honour. The finding of fact as to that

is really - in a sense no, Your Honour. There is

really an ultimate finding.

BRENNAN J: Ultimate finding, the complexion that is to be

put upon the facts?

MR JAMES:  Yes. Now, as to findings of fact to be

challenged, what His Honour does is fail to make a

number of findings, fail to refer to a number of

passages of evidence that are unchallenged, in

particular the police officers' evidence, and fails

to make a finding that the threats were not made.

Foster(2) 27 2/12/92

BRENNAN J:  I can understand all of that. Now, once we have

the findings made by the trial judge plus the

uncontested evidence, the question then is: on

those facts was the confession voluntary or not?

MR JAMES:  No, Your Honour. The question was: had the

Crown on that material shown that the confession was involuntary? So that the question becomes on

appeal: was it open to the trial judge to hold

that the Crown had satisfied him that the

confession was voluntary upon that material? Did

he have regard to all relevant material? Did he so

narrow his view·as to have erred in principle in
that he had regard to the last operating cause out

of context, such as improperly to have weighed the

facts in the evidence?

BRENNAN J:  I understand that argument. Now, if that should

go against you, you then wish to raise the question

of the discretion.

MR JAMES:	Yes, Your Honour.
BRENNAN J:	Now has the trial judge ever exercised his

discretion upon the material that is relevant to be

taken into account in exercising a discretion?

MR JAMES:  I appreciate what Your Honour says. Such

material as he has exercised his discretion on

seems to have been his finding that the arrest was

lawful and the Court of Criminal Appeal seems to

have been of the view that there were other matters

that he had taken into account, although on a

proper analysis of that cryptic passage with which

I opened my submissions to the Court, that does not

seem to be the case .

So, on what Your Honours put to me, the answer would be that the exercise of discretion has

entirely miscarried but.His Honour has not had

...	regard to relevant material or has erred in
principle.

BRENNAN J: Well now, that also I understand, but it makes

me wonder whether the case, so far as it relates to

the discretion, is a suitable"'vehicle, or whether

your argument is basically that the discretion has

never been considered; the trial has miscarried and

there should be a retrial on that account

simpliciter.

MR JAMES: 

Your Honour, it is a suitable vehicle because the

reason why the discretion appears to have
miscarried is because the matters relevant to

discretion, voluntariness - or the discretion as

split into unfairness, public policy and

voluntariness, have become so confused that it is

Foster(2) 28 2/12/92

difficult for trial judges to put them in proper

context. Thus, for instance, the finding that the

arrest was lawful seems to have been treated as

though that were the end of it for the purposes of

discretion and that the rest of the context did not

matter.

BRENNAN J: Well, I appreciate that, but what does this

Court do at the end of the day? Do we look at the

material that the trial judge looked at and say yea or nay to the exercise of the discretion, or are we to re-examine for ourselves the whole of the

material that is relevant and say whether or not
the trial judge's exercise of discretion

miscarried?

MR JAMES: If the trial judge's discretion miscarried, this

Court should say so in statements of principle

which, in our submission, would be such as to

assist the trial judges to carry out their

function.

BRENNAN J: But on what facts?

MR JAMES:  Your Honour, one does have the facts that were

uncontested; that is the arrest, the place of

arrest, the arrest on reasonable suspicion, the

taking to Narooma from Wallaga Lake, the removal

from access of assistance, the detention at Wallaga

Lake and the manner of the interrogation.

BRENNAN J: 

You also add, I take it, the sole improper

purpose of the arrest? That is the key to your
argument.

MR JAMES: 

Yes, Your Honour.

BRENNAN J: Here we have the trial judge making a finding in

the exercise of his discretion which is

inconsistent with the evidence subsequently given

on the voir dire.

MR JAMES:	Yes, and not just subsequently given but was, in fact, contained or referred to in the committal
material, in any event. There seems to have been a
failure on the trial judge's part properly to
appreciate the effect of the totality of the police
evidence.

BRENNAN J: Did anybody ever ask the judge to re-exercise

his discretion after making the finding on

voluntariness?

MR JAMES:  No, I cannot say they did, Your Honour.

DEANE J: Is that quite accurate? Was he not effectively

asked to re-examine his exercise of that discretion

Foster(2) 29 2/12/92

in the light of the evidence given as to the

purpose of the arrest?

MR JAMES: 

He was, Your Honour, but I cannot take

consolation from the proposition that it was
expressly and clearly put in the way in which

His Honour has put it to me.

DEANE J: 

I thought what you referred us to earlier was

clear enough.

MR JAMES: That is Mr Terry's argument, Your Honours, at

pages 13 to 16.

DEANE J:	I thought at page 13.
MR JAMES:	And indeed, what Mr Terry says is that he is

calling the accused on the issue of voluntariness
because that is the one matter on which he can give

evidence of any real significance to the question

of rejection.	And the police officer's evidence
goes in again.

Indeed, the very question of importunity, as

is raised, raises both matters. The very matters

raised at pages 62 and onwards, that is the

judgment on the voir dire, as relevant to

voluntariness also go as relevant to police

conduct, putting aside the very question of the

threats. And, of course, the trial judge fell into

error, in our submission, in failing to make a

decision on the matter as important as whether the

threats did or did not occur. He did decide that

the threats were not the causative or the last

operating cause of the confession. That is not

inconsistent - the existence of the threats is not

inconsistent with that fact, yet if the threats had

occurred then it is inconceivable that, without

error of law, a finding of voluntariness could have

been made or, if so, then the question of the

discretion was squarely raised. The Court of Criminal Appeal, in its

examination of the trial judge's function, also

embarked on this more or less compartm~ntalized

exercise and also, in our submission, fell into

error in holding that, in effect, the trial judge's

conclusion was unreviewable-in that court.

That is the matter that had been argued before

this Court in Kyriakou in which the Court refused

special leave on the basis that it appeared, from

that trial judge's reasons, that the effect of the

blow to the jaw had been dissipated and thus the

New South Wales

proviso to section 410 of the confession.

Foster(2) 30 2/12/92

But, in our submission, Kyriakou, Merritt and Roso and the subsequent cases which concern the

unreviewability of a trial judge's findings of fact, or findings of mixed fact and law, as to

support admissibility of evidence, are not correct,

and that there is nothing in the Criminal Appeal

Act which would justify the proposition that the question of whether the trial judge fell into error of law, or whether his conclusions of fact are supportable with regard to the evidence, should be

treated in any different way to any other factual

conclusion of a judge, though the New South Wales
Court of Criminal Appeal has developed a practice

of doing exactly that, which is why that court has

not gone into this function, and, in a sense, why

we are placed here in the position that Your Honour

Mr Justice Brennan had adverted to, in so far as we are.

Now, in those circumstances, in our

submission, that it is only in this Court that
these matters can be dealt with in such a way as to
produce a decision which will define principle as

to how the appellate court is to perform its

function, and at least provide guidance to trial

judges and police officers as to how they are to

perform or not to perform certain functions, and to

define or redefine what is voluntariness so that
the problem with the discretions which are
predicated on there being a voluntary confession,

and thus have, in effect, come to overtake the

field on certain factual matters, since unlawful

arrest and so forth goes to discretion, it cannot

be seen as ever relevant to voluntariness, that

sort of line of thinking has meant that the

discretions are continuing to encroach on the
original concept of voluntariness, perhaps because

the concept of voluntariness is ill-understood, and

it is because of that reason that we have set out

in our written submissions the proposition that

voluntariness is not limited to an accused's will

being overborne totally or overborne, voluntariness

relates to the sapping of that will, the depriving
of the free choice.

Your Honours, the free choice question has

been examined in the New South Wales Court of
Criminal Appeal in Azar's case, and free choice

there seems to be the sort of free choice

Lord Mustill was speaking about, that is to say, a choice made in the absence or an election made in

the absence of compulsion, whether one knows or not

of one's legal right. That passage does seem to

have limited again in New South Wales the

proposition. Now, we do not quarrel with Azar

directly in this case; we do not quarrel with

Connors, which limits the effect of section 410;

Foster(2) 31 2/12/92

but the combined effect of those decisions, of this

manner of approach, has meant that the

voluntariness criterion in New South Wales is being
very narrowed and the discretionary criterion is,

in effect, so ill-specified as to make it very

difficult for the trial judges. Would now be a convenient time?

MASON CJ:  Yes, Mr James. How long will the balance of your

case take?

MR JAMES:	Your Honour, we have put almost all our submissions in the written document, including as
to fact, and really that speaks for itself in
substance.  I again apologize as to those matters
to which Your Honour had drawn attention.

MASON CJ: Yes, but I should myself, I think, qualify what I

said in the first instance, and that is - there are

two things that I noticed, that is, the reference

to my approach stated in a way that did not excite

my approbation; and the other was the reference to
the surprising conclusion reached by a judge. Now,

I think with those exceptions there is nothing else

that would merit any kind of criticism. That is my

impression. Therefore, they are the two things

that I had in mind and I would not want my remark
to be, as it were, taken as too strong a reflection

of criticism of the document:

MR JAMES:  Your Honours, I should perhaps add to it some

short general observations, one of them being that

Lord Hailsham, for instance, in Wong Kam-Ming,

talks about conduct to be reprobated under the

rubric of voluntariness. Van der Meer, in this

Court, represents a dramatic division of opinion on

questions which go to the very substance of the
voluntariness and fairness and public policy

questions.

As.a result one finds the position to be that

the trial judges and counsel are in some

considerable doubt about what is meant by fairness,
what is meant by public policy and the suggestion

seems to be as His Honour Judge Ducker suggested,

and as the present trial judge suggested in

guilty, so that if the trial judge thinks that the confession was made and is

referring to the words of Chief Justice Stephen in conviction of the

likely to be correct, he usurps th~ position of the

jury, in effect, by letting it in.

Now, they are flamboyant words I have just

used, but the trial does tend to proceed in that

fashion.

Foster(2) 32 2/12/92

MASON CJ:	I take it you are not going to be very long.
MR JAMES:	No, Your Honour.
MASON CJ:	We will adjourn until 2.15 pm.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

MASON CJ: Yes, Mr James.

MR JAMES:  Might I take the Court to page 66 of the appeal

book. The trial judge apparently considered, as

appears from page 66 lines 21 to 23 inclusive, that

what he had dealt with was one application on the

voir dire for the exclusion of the confession.

His Honour seems to have set that out in the

context of his judgment in relation to the
applications by the co-accused.

His Honour had said during his examination of the admissibility of Stephen Foster's statement,

that is the present appellant, at page 63 lines 50

to 57, that he would have excluded the confession

of Stephen Foster if he had excluded the
confessions of Keiron McLeod and Timothy Parsons

because -

there would remain no basis whatsoever for the
admission of the confessional statement of

Stephen Foster.

This appears to have been linked to His Honour's

view concerning the showing of the two statements,

and perhaps to a view that if those statements were

inadmissible in the trial as against McLeod and

Parsons they would have been inadmissible in the

voir dire as against Foster.

But for whatever reason His Honour did it, it

does seem that His Honour had reached a sort of shorthand and compendious view that what he had

heard had not been two separate voir dires with

precisely delimited questions but an application to

reject the confession which had been dealt with by

reasons of convenience in evidentiary compartments,

that is, simply dealt with that way in order that

the evidence might be considered as it came

forward.

Foster(2) 33 2/12/92

That, Your Honours, is all that we have been

able to find to suggest that the admissibility of
the confession or to shed any light on the question

of whether the admissibility of the confession

remained a live issue through the trial; though

there is not the slightest doubt that even as late

as the summing up His Honour was concerned with

questions of reliability and voluntariness in so

far as the jury were concerned with them on the Basto test.

So that the factual issues remained live as to

discretion and voluntariness. Indeed, His Honour

even directed the jury concerning the taint that
might apply to the confession arising by reason of

the police having used what the jury might have considered improper method as a matter for them

when they came to consider the question of the

truth of the confession.

So that the matter remained alive, at least in

a factual context, continuously, throughout the

trial and all the evidence on the voir dire appears

to have been at least as at the time of the

judgment concerning the statements of the

co-accused to His Honour's mind, albeit that mind,

as it applied to the matters, had been

compartmentalized by looking at the specific

criteria of voluntariness and fairne&s and public

policy.

TOOHEY J:  Mr James, I am not clear from something you said

this morning whether there is a practice in New

South Wales of splitting the voir dire as between

voluntariness and fairness and other considerations

or whether in that respect this was an unusual

procedure.

MR JAMES:  Your Honour, to call it a practice would be

putting it too high. Because of the difference in

onus and the perceived difference of effect that

the difference in onus would have, there are
occasions in which customarily voluntariness is

dealt with first and then discretion dealt with

second, which is logical at least.

TOOHEY J: Yes.

MR JAMES:  The practice, more generally, appears to be that

of an examination of the admissibility of the
confession, raising voluntariness and all m~tters

of discretion on the evidentiary material provided

at the one pretrial voir dire. I must concede that

I have never previou~ly seen voluntariness dealt

with after discretion, that is chronologically

after, as is the case here.

Foster(2) 34 2/12/92

TOOHEY J:	And is it the practice to deal with questions of fairness by reference only to the material tendered
at committal?
MR JAMES:	No, Your Honour, and in fact the committal

material is sometimes resorted to for the shorthand

purpose of the voir dire and supplemented by oral

testimony; sometimes the whole voir dire is

conducted orally together with the tender of

exhibits, but the more usual practice, in recent

times, seems to have been to utilize as much of the
committal material as is available, subject to the

consent of the parties, in order to shorten the

time burden on judges particularly on circuit.

TOOHEY J: Yes, thank you.

MR JAMES: 

Your Honours, when one looks at the totality of

the material concerning discretion and
voluntariness, in our submission, neither before
the trial judge nor before the Court of Criminal

Appeal was there any tactical or lawful advantage

sought to be gained by the trial counsel from

dealing with the matter that way.

I raise that because in so far as it was put

to me to start by an attack on discretion, or an

attack leading to an exercise of discretion may

well lead to the accused, in effect, not giving

evidence, yet on voluntariness he would have to.

In fact, bearing in mind the provisions of

section 410 of the New South Wales Crimes Act, it

would appear in contrast to the Victorian Evidence

Act provision section, I think 141, it is the other

way around, the onus being on the accused on

discretion and the necessity for the Crown to

satisfy on balance of probabilities of

voluntariness creating the onus on the Crown on

that aspect.

So that, in our submission, if there are

errors of principle, there is nothing that should

disqualify this appeal from being a suitable

vehicle to decide those matters. And further, of
course, on any question of the inadequacy of the
findings of fact by the trial judge on

voluntariness, in our submission, there is

sufficient there so that one can say that an

absence of findings redounds to the advantage of

the accused, it being necessary that the Court be

affirmatively satisfied by the Crown, and as to the

matters of discretion, on the Police accounts
alone, putting aside the accounts of the accused,
there are such matte+s and of such weight as we

would say, if the trial judge had correctly applied

principle and applied correct principle, he would

have been required to reject in line with the

Foster(2) 35 2/12/92

decisions of this Court, unless there was some

other matter that he found.

The closest we get to that some other matter

being found, is that same passage, that is to say,

the passage that appears at page 11, line 21:

If I am wrong in taking that view I would

nonetheless in the absence of other factors

exercise my discretion to admit the evidence.

His Honour does find other factors and the

Court of Criminal Appeal takes the view that he is

in error of that view. In so far as that goes we

would say that is a finding in our favour and, in
any event, the Court of Criminal Appeal has not
performed the function that it should have, in our
submission, to review the decision of the trial

judge properly, so as to enable a dissection of

findings of fact, a dissection of matters of law

and an examination of whether there has been errors

in principle. But that should. not stand in the way

of this appeal, particularly in the light of the
observation that if it were to, in effect, a

licence to continue the line of authority which

would prevent such proper examination as would

found a successful appeal for this Court would be

continued.

Now, Your Honours, except for the matters

contained in our written submissions which I would
not seek to supplement at all in chief, the matters

contained in my friend's submissions about which

there is little comment we would make where at

issue on those matters directly in the written

submissions and one observation that we would make

in relation to the fairness discretion that the

test seems to be, particularly in the light of what

has fallen from this Court in Dietrich, that if a

mode of interrogation or a mode of procuring a

confession is used, which mode is in itself some

such thing as would attack the reliability of the confession, then the admitting of that confession in the light of that mode of interrogation or the

way in which the confession is brought into

existence, would create a real and substantial ·

chance of an unjust verdict, and we apprehend that

the fair trial is a trial in which there is no such

real and substantial chance of an unjus·t verdict
arising by the admission of material that is in

that sense potentially unreliable or unreliable.

MASON CJ:	How do you get Dietrich to work for you?
MR JAMES:	Because in Dietrich this Court actually discusses

what is a fair trial, a trial according to law, and

the reason for getting Dietrich to work in that

Foster(2) 36 2/12/92

sense is simply that this Court does articulate it

in those terms of a fair chance of the trial

miscarrying in that way. That is as far as we pray

Dietrich in aid.

BRENNAN J:  But what is it that creates this chance of it

miscarrying?

MR JAMES:  The admission into evidence of material obtained

by a process which potentially affects the

reliability of that evidence, reliability in the

sense of likelihood to create an unjust verdict.

BRENNAN J: Well, that is circular. If the mode is likely

to create an unjust verdict, to admit it creates a
situation which is likely to create an unjust

verdict.

MR JAMES:  Yes, Your Honour.

BRENNAN J: Well, what is likely to create an unjust

verdict?

MR JAMES:  The mode of interrogation or mode of obtaining.

BRENNAN J: Well, what is it?

MR JAMES: Well, for instance, exactly those matters of

importuning, harassment, detention, creating an

apprehension in the mind of the confessionalist.

Now, if voluntariness is as narrow as it has

sometimes been interpreted, relating purely to an

actual overbearing of the will, then in our

submission the fairness discretion takes up the

matters that would otherwise have created an

automatic exclusion. If voluntariness is as wide

as Sir Owen Dixon seemed to suggest, then the fairness discretion narrows to those modes of

police conduct which, absent their effect on the

confessionalist, in general terms might go to the

question of reliability. And one gets then to such

things as trickery rather than direct oppression or

matters going more closely to voluntariness.

BRENNAN J:  You are using "reliability" in different terms

all the time. Are you speaking of reliability in

terms of whether the subject-matter of the

confession is true?

MR JAMES:  No, Your Honour, that is a question for the jury.

BRENNAN J: Well, what do you mean by "reliability"?

Perhaps I should ask you this: you want us to

discriminate between these various concepts; do

you not think it appropriate to articulate what the

discrimination should be?

Foster(2) 37 2/12/92

MR JAMES:  In this case, Your Honour, I opened by saying

that on any test, in our submission, this material

should have been rejected; that error occurred

because the mode of discrimination that has

hitherto been adopted has come to confine

voluntariness; that the language used to describe
the fairness discretion, in particular reliability,
has led trial judges to, in effect, make a decision

of whether they think the confession is true for

themselves or likely to be true, particularly when

one takes into account the countervailing concept,

that is, under the public policy head that guilty

persons may be acquitted and the community has an

interest in the conviction of the guilty.

But in terms of seeking to discriminate

between the different concepts, what we do is seek

in our submissions, under the headings on the table

of contents, to do that. It is not necessarily an

easy task, but - - -

BRENNAN J:  It is not a question of being an easy task.

Looking at your written submissions I am not sure

that I understand precisely how the various tests

are articulated. Perhaps you can show me where

they are articulated.

MR JAMES:	Your Honour, the articulation that we have for the concept of voluntariness, we take up the Lee
articulation at paragraph 61, we take up the International Covenant on Civil and Political
Rights - - -

BRENNAN J: But it is not a question of taking up, it is a

question of giving us the formula. Are-you able to

do so?

MR JAMES:  I will try, Your Honour. I might say that if my

argument is correct, for some hundreds of years

people have been grappling with different formulae

...

and they have still created problems: that no one

shall be subject to compulsion to speak such as to

sap their free choice to remain silent. I have

attempted to combine in that the convenant and the

formulation by His Honour Mr Justice Dixon.

The traditional free choice to speak or remain

silent has to, in the light of the decision of the

Court of Criminal Appeal in New South Wales in Azar

relate to something which is not a matter of

ignorance or waiver; that is to say Lord Mustill

put it, indeed, in Director of Serious Fraud

Office; Ex parte Smith in these terms: the

privilege aims to protect all citizens against
being compelled to condemn themselves but the law

has never set out to protect a subject who condemns

himself whilst acting of his own free will. Its

Foster(2) 38 2/12/92

only concern has been to ensure that he really does

so act by the general rule which excludes for

evidence any confession which is not proved to have

been voluntary. The culmination of the onus and

the word "voluntary" suggests that a confession

made in the exercise of free will, rather than free

choice, a knowing choice, removes some of the

ambiguity.

We point out in the submissions from paragraph

62 to 63 in relation to the overbearing of the free

will, or the overbearing test, that often enough

the classic formulation from Lord Sumner in

Ibrahim, in the sense that the will has not been

overborne, is also matched in other decisions and

in particular in McDermott, where the overbearing

of the will is only one illustration of an

involuntary statement.

Your Honours, we conclude by making a

submission that if waiver or election, I should add_

election to the test at page 35, is to be the case,

that is there is an election to speak not subject

to compulsion - perhaps I should add, election to

speak not subject to compulsion to the waiver

concept that we there refer to - if that is a

formula which can be used by trial judges and
understood by them, then we do not run into any
such problems as trial judges mistaking the idea

that because somebody speaks it is voluntary, at

least in the Ryan sense, or not involuntary, that

would avoid a considerable degree of distraction

from the last operating cause problem that existed

in this case.

We point out at paragraph 68 that there are

problems with the traditional view of voluntariness
because, as Mr Justice Dawson pointed out to me,

there are certain sorts of factors which we do

accept, which react upon the will of a person who

is in custody, and Lord Mustill points that out
also.	And the voluntariness test in the United

Kingdom which was expressed, of course, on the

basis of a necessity to be satisfied beyond

reasonable doubt of the voluntariness of a

confession, was a great protection in the United

Kingdom. We do not have the onus to that extent

here.

We put some options as to formulas at

paragraph 70, and at paragraph 71 we put the option

that was selected by the Australian Law Reform

Commission in its Draft Evidence Bill, that is were

not:

Foster(2) 39 2/12/92

influenced by violent, oppressive, inhuman or

degrading conduct ..... or by a threat of

conduct of that kind.

That echoes, in fact, the pace Act formulae which

was considered in Brophy subsequent to

Wong Kam-Ming. Brophy is not on our list of

authorities, but in Brophy's case the trial judge

was not satisfied beyond reasonable doubt that the

conduct had not been so influenced. The case is

reported on the issue of whether the admissions on

the voir dire were admissible once the statement

was rejected.

The unfairness discretion we seek to deal with

at paragraph 73 and onwards, and we would accept

for that purpose the discretion as to fairness of

trial adopted by Mr Justice Dawson in Cleland, and

that is to say if the police conduct is likely to

impair the reliability of subsequent

admissions - - -

GAUDRON J: Well, you say that is the unfairness in this

case, as well?

MR JAMES: Well, yes, we do.

GAUDRON J: All right.

MR JAMES:	At least in one aspect, because the confessions of the co-accused were put to him after his
manifold denials.  In effect, what was being put to
him and what the police officers had determined to
put to him was, "Agree with these". Now, there is no external support for the truth of the confession of the present appeilant·-. The only support for it woulq lie in s~eing or looking at the truth of the confessions of the co-accused, but really, whether those confessions were otherwise true or not, if
the accused is being asked in effect to simply
adopt those matters, then the mode of interrogation
goes to defeating the jury's ability to make real
assessments of reliability in a trial in which the
three go to trial together, the three confessions
go together, and instruction is given to the jury
that they are not to take one into account against the other but, of necessity, the jury knows that the three are there.
GAUDRON J:	Now, do you say that is the sole criterion for unfairness under the unfairness concept?
MR JAMES:	No, Your Honour, certainly not, but in so far as

we are dealing here with a reliability question, as

Mr Justice Dawson raised in Cleland, we say it is a

jury example of a mode of interrogation considered

overall in which the result has a real and

Foster(2) 2/12/92

substantial risk of being unreliable; a concoction,

to use language from Hough's case.

GAUDRON J:  Can I ask you something about that. I know it

is always referred to as a discretion, an

unfairness discretion, but if you base it on

reliability, as such, it seems to come very close

to the ordinary what is also said to be discretion

relating to probative and prejudicial material.

What I want to ask is: is there really a discretion

at all in such circumstances?

MR JAMES:  Your Honour, we would go so far as to say that a

discretion in real terms does not arise here at

all, and we have referred, in our written

submissions, to Gronow v Gronow and so forth.

Things called discretion sometimes mean that there

is an ambit of judicial conduct that certain

findings will allow as a range within which a

selection can be made. Alternatively, where there

is one choice or another, and certain findings

would lead one to that choice, we see no basis for

a discretionary refusal to reject if satisfied that

the public policy would require rejection.	We see
no basis, when it comes to the public policy

weighing criterion on the other head of discretion.

DAWSON J:	I am not following you, Mr James.
MR JAMES:	I am sorry, I will start again.

DAWSON J: What Justice Gaudron is asking you, I think, is:

if you concluded that it was unfair, the confession

was unfairly obtained, you have no discretion, do

you, as a trial judge, you must exclude it?

MR JAMES:  Yes, Your Honour, precisely.

DAWSON J: It is referred to as the "so-called discretion",

that is all.

MR JAMES:  And if the accused is able to point to matters

which indicate unfairness, and a trial judge

accepts those matters, then there is no reason why

the confession should be admitted into evidence any

more than real evidence, which after all, in terms
of reliability one really does not need to weigh,

would have to be admitted under the traditional

Ireland/Bunning v Cross discretion.

DEANE J: But is the question whether the confession was

unfairly obtained? Is it not whether it would be

unfair to the accused to admit it in evidence?

MR JAMES:  Your Honour, it has been put three different

ways: whether it is unfairly obtained - - -

Foster(2) 41 2/12/92

DEANE J: There is support currently for the view that the

relevant question is, "Was the confession unfairly

obtained?", is there?

MR JAMES: Well, indeed in the very judgments that the Crown

has referred to, the formula that is sometimes used

is unfairly obtained as though one was looking at a

sort·of instinctive feeling, intuitive feeling of

the trial judge. But it is unfairly obtained,

unfairly admitted into evidence, unfair to be used

against him at his trial - bearing in mind how it

was obtained.

DEANE J: Those two are the same, are they not?

MR JAMES:  Not necessarily, Your Honour, because the other

concept'that seems to come out is the admission

would make the trial unfair, as though the jury

were not able to gauge effectively the confession.

That links back to what Justice Gaudron put to me in terms of probative prejudicial, and in that

sense this concept does have some link with the

probative prejudicial discretion. '

DAWSON J: Which do you say? Because I know it is used in a

confusing number of ways, but before the Bunning v

Cross discretion was identified, undoubtedly

questions of policy came into the unfairness

discretion. I said in Bunning v Cross that perhaps

they should be shifted across - in Cleland, that

they should all be shifted across to policy

considerations to Bunning v Cross. I am not sure

that I was right, and anyway it did not command

general acceptance. So that you are left with the

unfairness discretion with evidence which may be
unreliable and therefore it would be unfair to

admit it, because it would result in an unfair

trial. But you also have evidence which was

unfairly obtained, and for that reason ought to be

excluded in the exercise of that discretion. Is

that right?

MR JAMES: Well, yes. Perhaps the division between public

policy in relation to evidence unfairly,

improperly, or unlawfully obtained.

DAWSON J:	If that is so then it is correct to talk about evidence unfairly obtained in relation to the
unfairness discretion.
MR JAMES:	It may be that the - one of the matters we are

trying to submit is that the compartmentalization

of it has resulted in these problems.

DAWSON J: What do you say we -should say?

Foster(2) 42 MR.JAMES, 2/12/92

MR JAMES:  That in the event that methods were used to

obtain the admission which would make it unfair to

use it against him at his trial - - -

DAWSON J: Unfair in what sense?

MR JAMES: Unfair in the reliability sense.

DAWSON J:	Any other sense?
MR JAMES:	Unfair in the sense of approval of the course of

conduct of the police, unfair in the sense of the

imprimatur of the courts being given to matters of

serious - - -

DAWSON J:  You seem to be sliding off into the

Bunning v Cross discretion.

MR JAMES:  No, Your Honour, the widest example of unfairness

or the widest and most dramatic example of an

unfair means to obtain a confession has to be

serious criminality or the serious breach of a high public policy. The fact that it is also the breach of a high public policy does not mean that it does

not have individual impact on the accused, and that
he is not entitled to complain because of his

special interest, more so than members of the

public generally. It is not just a matter of the

court enforcing or being seen to enforce its own

laws - - -

DAWSON J: And if that is right you will never get to

Bunning v Cross where you have decided in favour of

the accused, or at least to put it this way, that

if it is unfair in that sense, Bunning v Cross does

not enter into the confessional field, it must be

restricted to real evidence.

MR JAMES:  No, Your Honour, because there could be a

confession which is reliable.

DAWSON J: But we are not talking about reliability, I

thought you were talking about confessions which

were obtained by unfair means.

MR JAMES:  Yes, Your Honour.

DAWSON J: And saying that the unfair means have a

particular impact on the accused, and for that

reason, when talking about the unfairness

discretion, you are entitled to have regard to

them. Now, if that is so, you would never get to

Bunning v Cross in relation to confessions.

MR JAMES:  But the way in which they have impact on the

accused, Your Honour, is to affect his position in

terms of making a reliable - what used to be called

Foster(2) 43 2/12/92

"doing himself justice", making a reliable

statement, giving consideration to the way in which

he would put it. Now it may be that all we have

got is trickery - - -

DAWSON J:  I just want to see what you are saying. Are you

saying it depends entirely upon whether the

confession is unreliable or not, whether the

exercise of discretion depends entirely on whether

the confession is likely to be unreliable or not.

MR JAMES. No, Your Honour. It also depends on the -

DAWSON J:  You are saying that even though it may be

reliable, you may exercise the discretion to

exclude it beca~se of the means used to obtain it.

MR JAMES:  Yes. And because of the use that is sought to be

made of it, bearing in mind those means. They are

related concepts and there may be a sliding scale

of degree, as it were, in which case you do not

have to go to fairness. You may get a less serious

means of obtaining in which you do have to go to

fairness in greater or lesser degree, but these are

not hard lines between the concepts, and it is the

fact that they are not hard lines which have led,

not only me, to slide backwards and forwards in my

argument, but trial judges to slide backwards and

forwards when trying to apply the concepts.

GAUDRON J: Well now, does unfairness, as you understand it,

to the accused include the situation where the

statement would not have been made in all

probability but for what happened, even though it

is perfectly reliable, it is - - -

MR JAMES:  Not have.been made, or not have been made in that

form, or both?

DAWSON J: Well, if there is just a failure to caution, for

instance, and the accused says, "Well, if I had

known that I.didn't have to say anything I wouldn't

have said it." And yet the statement is entirely

reliable.	Does the fairness discretion apply
there?	·

MR JAMES:  Your Honour, if the accused speaks of his free

will there has simply been a failure to caution in

circumstances that are not, to use Lord Hailsham's

term, "to be reprobated", then it is a weighing

question that is involved given that it is highly

reliable and given that there is a public policy in

favour of cautioning at particular points of time.

DAWSON J: Well then, you are.saying that reliability may

have nothing to do with it.

Foster(2)	44	2/12/92
MR JAMES:	That is right.	Indeed, at some point you may

well get this situation: that if you have a person

who has been convicted on a number of occasions or

has been interviewed on a number of occasions, has
been cautioned on a number of occasions, the only

relevance of the absence of the caution would be to insist the policemen obey the rules. That falls to the public policy end of the spectrum.

But on the other hand, if you have a person

who is entirely naive like, for instance, the

individual in Azar who comes from a different

ethnic background and does not understand the

existence of a right to remain silent, then that

fact is a fact that needs to be taken into account

in the light of the police conduct, the impact on

him.

DAWSON J: If you get an accused who says, "If I had been

cautioned I wouldn't have said anything.	I didn't
realize that I could've remained silent.	I

would've wished to have done so, but nevertheless,
what I said was true, but I wouldn't have said it."

Now, can that confession be excluded in that

situation under the unfairness discretion?

MR JAMES:  If that is all it is, I would not have thought it

would be excluded, particularly - - -

DAWSON J: Well then, what you are saying is reliability may have nothing to do with the matter and it is solely

related to the method which was used to obtain the

confession.

MR JAMES:  No, Your Honour. I am saying that if the method

that is used to obtain the confession is one which

affects reliability - - -

DAWSON J: But it does not in that situation.

MR JAMES:  It does not in that situation, but I am trying to

widen the situation, Your Honour, to - - -

DAWSON J: No, just restrict yourself to that example. If

that is right, then you can apply the unfairness

discretion in a situation where reliability is not

an issue.

MR JAMES: Well, the application would be very swift,

Your Honour, and indeed, the New South Wales Full

Court in Azar in that very situation has held that

you do not have to know of your right to remain

silent to exercise your choice to speak or be

silent. In that sense the voluntariness test has

been whittled down. The fairness test, on what

Your Honour is putting to me, does not apply, and

Foster(2) 2/12/92

the only question we are then left with is: what

is forgiveable in police conduct and what is not?

What I am trying to submit is there is a

public policy that the police should treat one

fairly and a public policy that at trial the trial

should be fair, and really in a sense when we are

talking about the fairness discretion, we are doing

that sort of analysis which requires us to look at

what the police did and the effect of what they

did. In some cases what they did may be so serious

that the prospect of little or no effect may have

to be the basis of a decision. In other cases if

what they did is otherwise trifling or acceptable,

none the less, if it had a direct impact on the

individual accused then the fairness discretion

would allow rejection.

It is not an easy question for us,

Your Honour, and I appreciate that Your Honour is

asking us to formulate the formula. Reliability

might have a lot to do with the latter of the two

propositions I just put up, but gaining a

conviction on a reliable confession but at too high

a price in terms of the failure to disapprove of

the actions of police, when those actions are

serious -

DAWSON J:	You are now talking in Bunning v Cross terms.
MR JAMES:	Yes, I am doing so deliberately, Your Honour. But it depends on what the mode of obtaining and
the use to be made of it from that mode of
obtaining is.

I know I have not satisfied Your Honour and I

find it very difficult, in grappling with this concept, to do so, because the word "fairness"

becomes protean and adopts different characters

depending on how different trial judges use it; so

does the term "fair trial", which is why I had resort to Dietrich as one attempt to define it.

GAUDRON J:  But that is not right at all. I mean, it may be

protean in the sense that some people do not know

exactly what is involved, but if you look to the

probative prejudicial area, for example, just to

limit yourself there, there is no difficulty in

equating fairness of the trial to fairness or

unfairness in that .discretion. The next question

is, if you get another one where it results in

fairness of the trial, or unfairness in the trial,

you have got what I would have thought was a quite

crystal-clear situation. The next question is, is

there then a true discretion, for example, in a

situation where the material is reliable, involves

no risk of a wrong verdict or deprival of a chance

Foster(2) 46 2/12/92

of acquittal, but the statement would not have been

made otherwise. Do we find what really is a

separate discretion there where you focus on the

individual?

MR JAMES:	Your Honour, my answer to that would be yes.
GAUDRON J:	And is that a true discretion in the sense that

one might say, "Well, it really was unfair to the

accused to get the information this way but none

the less I will admit it".

MR JAMES:  The traditional answer is yes; we would opt for

no. If the conduct is serious enough for the

judicial officer to categorize it as unfairly

producing the confession, he should reject it or,

at least - and we put the submission in our written

submissions - call on the prosecution for some

justification of it. I am going very far on that

but once one starts with the term "fair", if one reaches a conclusion that the modes employed are not to be countenanced as fair in the investigatory

process, one is accepting, of course, that it is
not a game and police are entitled to utilize all

manner of means of obtaining evidence, but once you

draw the line in terms of, "This goes over the

line", then, yes, it mandates in favour of

exclusion.

GAUDRON J: Except that you are talking about something

which goes beyond, presumably, illegality.	We are
assuming for this purpose that it is legally
obtained.	We will say not in breach of police

instructions, so not to involve any impropriety in

that sense.

MR JAMES:  Yes, Your Honour. When the judge says it is

unfair he is really saying it is improper in a

wider sense than Your Honour is talking about. If

it is that, then there is an argument in favour of

the proposition it should be excluded unless there	is some matter to be put to the contrary, such as
that he knew what was going on or something of that
order. we do opt for that in the submissions. we
put the proposition, as did the Australian Law prosecution should justify the admission.
We turn from fairness to confessions unlawfully or improperly obtained, which is the public policy exercise at paragraphs 77 and onwards
and we make the point, in answer to what
Your Honour Justice Gaudron put and Your Honour
Justice Dawson has put at the bottom of page 41, in the event that this Court concludes that fairness
is limited to issues of reliability, it should make

Foster(2) 47 2/12/92

it clear that it would not be most exceptional to

exclude a confession-on Bunning v Cross principles.

What we are there referring to is that where

there is impropriety or illegality, particularly

serious impropriety or illegality, if the fairness

discretion is intimately concerned with

reliability, then the serious illegality or

impropriety might have to be dealt with under the

Bunning v Cross head.

We point out that the Commonwealth Crimes Act

already contains provision in section 23V(S)

relating to insufficient evidence of compliance

with requirements in relation to tape recording and

the residual discretion arising from a finding:

that in the special circumstance of the case

admission of the evidence would not be

contrary to the ~nterests of justice. ,

We point out that others have opted for other than

this general balancing approach and that, indeed,

in the case of serious crime, kidnapping, wrongful

detention, the use of violent means and so forth

and unlawful arrest, it is necessary to maintain

the integrity of the courts as not being seen to

approve of that conduct, particularly where the

very conduct is embarked upon to procure the

evidence that will itself be tendered at trial;

that is where the State resorts through its

officers to the expectation of an indemnity in

order to go out and procure the very evidence
unlawfully which they will then seek to tender at

the trial and that the courts should not

countenance under the public policy balancing

criteria such an act.

So it may be that there comes a point at which

a line should be drawn and that line has been drawn

elsewhere and where the line is drawn may be a moot	point. But if there is serious criminality done
for the very purpose of getting the evidence into
evidence the Court should not permit that to occur. That is the way we try to describe the
criteria. We also make the submission that it may
be much better, as to the so-called discretionary criteria, to produce a cohesive body of rules
rather than to· leave a balancing test which is said
to apply at both ends of the spectrum as well as in
the middle.
Your Honours, in so far as I have been of assistanc.e, unless there is anything further that I
can put, they are the submissions that we would
make. We accept that this is not easy, from our

Foster(2) 48 2/12/92

viewpoint, because of the complications at first

instance and on appeal.	The concepts are difficult
to apply.	The trial judges appear to be having

difficulty applying them. In those circumstances

we invite the Court to consider whether or not a

precise articulation of them could lead to the

avoidance of such problems as have been experienced

at first instance, in this case, and on appeal.

BRENNAN J: There is only one question I would like to ask

you first and that is in relation to voluntariness and your offering for consideration the Law Reform Commission's suggestions in your paragraph 71.

They seem to focus more on the conduct of the

interrogator than on the state of mind of the

confessionalist.

MR JAMES:	Yes, Your Honour.
BRENNAN J:	Is that a proposition which you wish to advance?

MR JAMES: Traditional voluntariness focused on those

matters which might affect the state of mind of the

confessionalist because of the onus. That is to

say, certain kinds of threats and promises, the

confessionalist did not have to give any evidence

because if you said, "Unless you confess I am going

to beat you up", the normal presumption that a

reasonable man might accede to that threat would

carry the day.

BRENNAN J: Yes, I appreciate that. All I want to know is

whether or not you wish to endorse the approach

which focuses on the conduct of the interrogator

rather than on the state of mind of the

confessionalist?

MR JAMES:  Under the voluntariness head, no, Your Honour, we

would go to the state of mind of the

confessionalist. That does not mean that we would

distract from the conduct of the interrogator on

the other criteria.

BRENNAN J:  I appreciate that.

MASON CJ: Yes, thank you, Mr James. Mr Solicitor?

MR MASON:  Did Your Honours receive copies of our outline of

submissions?

MASON CJ: Yes, we have.

MR MASON:	Your Honours, what my learned friend has just said has gone a long.way to retrieving, in our
submission, the clarity of the law which he would otherwise, in our respectful submission, cloud.
The concepts of voluntariness, the public policy

Foster(2) 49 2/12/92

rule, and the fairness rule, are really protecting

separate interests, and whilst the facts relevant

to each may overlap, it is important, in our

submission, that the ~ltimate goal of the judicial

function with respect to each of the three

exclusionary bases be kept in mind. Otherwise the

whole thing colla9ses into a morass of subjective

discretion on the part of the trial judge.

With respect to voluntariness, the ultimate search is in part for a factor that will exclude

evidence from going to the jui;y, hence the

obligation on the Crown to satisfy the judge of the
voluntariness, and the test must, in our

submission, always be subjective to the

confessionalist. But it must also have regard to

notions of the externality of a relevant pressure.

A confessionalist who for reasons best known to

himself or herself wants to confess out of what may

be a very compelling self-imposed sense of

obligation should not by some rule 0f law be

impeded from doing that, and without in any way

wanting to reduce the onus or the need for the

court to be satisfied, the search is ultimately for

whether there was some external pressure which,

operating on the particular confessionalist, meant

that the confession as a means of evidence, because

after all that is all it is, is robbed of the

probative value which it must have before it can go

to the jury.

In relation to voluntariness, questions of

lawfulness are misleading. A threat obviously can

be critical to negate voluntariness, and again I am

eliding over the onus, but it may be entirely

irrelevant. The accused person and, indeed, the

police may be ignorant of the factor that creates a

situation of unlawfulness in a particular arrest

situation, and that cannot, in our submission,

ultimately bear upon the voluntariness of the

confession. Your Honours, may I just briefly go to the

factual context in which this case will ultimately

have to be decided and ask Your Honours to turn to

the supplementary appeal book, page 126. What is

there is Detective Sergeant Liversidge's statement

at committal which became exhibit A on the

voir dire, the one where there were live witness

called, the second one, and it is admitted at

page 17 of the original appeal books.

The relevant time frame is that, as he says on page 126, he and others got to Wallaga Lake at

about 12.30 pm. We know from page 285 of the

appeal book that they were there for about 15

minutes. We know that the distance from Wallaga

Foster(2) 50 2/12/92

Lake to the police station at Narooma was about

30 minutes, pages 382 and 385, and we know that it

was at about 2.15 that the written confession was

presented to Senior Constable Mulhall who went

through what one might call the independent check

list of voluntariness.

His evidence is at page 406. It was shortly

after that that this young man was charged. So in

paragraph 2 of the statement at 126 is the events

at Wallaga Lake, including the material from about

line 20 to line 30 that go to explain, but not to

justify, the decision to bring Mr Foster back away

from Wallaga Lake. I will come back to that later,

at line 8, then there is a denial at

if I may. At 127 there is the interrogation at the caution

police station in the presence of a Liversidge and

line 11. The very fact that there were denials, we

would rely upon as indicating that the mere fact of

custody did not create an overbearing of the will

of this particular accused person.

He was asked questions about where he lived

and who else lived there. The purpose of that

appears about line 18, going to the question of, in

effect, an alibi issue that was perceived perhaps

as likely to arise. Then at line 24 there is, in

effect, the accusation:

I have been informed that you were one of the

persons responsible for setting fire to the

Narooma High School. .... What do you say ..... "I

wouldn't burn the school down. It just wrecks

the kids education." ..... "! have been informed

that the reason you burnt the school down was

because you were involved in a fight" - And at line 32, he says he was home. And then he

was asked questions about the incident the

preceding Friday where there was a fight and there

was, on his version of events, he and a number of other Aboriginal young men were picked on and yet

it was the Aboriginal men who ended up being locked

up for offensive behaviour. That goes over to 128,

line 10. Then it is put to him at line 11 about,

in effect, motive, which he denies again.	Then at
14:

Both Kieron McLeod and Tim Parsons say that you were with them when you burnt the school

down. And also your brother Warren was with

you." ..... "They wouldn't deb me in."

Then he is shown the statement by McLeod.	He is
then cautioned again at line 17 or 18.	He is then

shown the statement and, Your Honours, that

Foster(2) 51 2/12/92

statement is at the beginning of appeal book 1. It
is quite a short statement. In the course of

reading it himself he makes a comment:

"Warren didn't do it.	He stayed in the car."
"Is what's in that statement true?"	"Yes, but
Warren had nothing to do with it."

He was then asked, in effect, follow-up questions

relating to that. At 9.35 he was shown the

statement by Parsons. Again, he was cautioned at

line 36. He appeared to read it. As~ed was there

anything he wished to say in relation to that he

said "No". He was then asked a question about

"Chook" who was referred to in that statement and

he identified that as a woman called Desiree

Parsons, I think her name was. She was called as a

witness in the trial. Then he was cautioned again

at line 11, and then at line 15 the written

statement was typed up at the defendant's

dictation. He was then asked:

"Well that's what happened." ..... Will you sign

your statement?"

Then he was asked to fill out in his own

handwriting the follow-up questions that appear at

the bottom of the statement which is at page 1 of
the appeal book. Then Senior Constable Mulhall

comes in at the bottom of page 129 and he asked

further questions. Mulhall was not called in the

voir dire on the voluntariness issue.

Your Honours, the question was asked earlier:

how did it happen that the discretion argument

preceded the voluntariness argument.

In our submission, it was done partly for

reasons of mutual convenience that the witnesses

who were wanted to be called were not there at that

stage and it was, we suggest, perceived to be

convenient to the appellant that he not enter the

,.;box at that stage.

Reliability was never an issue, at no stage in relation to voiuntariness or discretion with

respect to the confession, with this exception:

there was the material about the threats to bash

the witness which really was the whole heart and

sole of the voluntariness case that was run and,

without in any sense mistaking the onus, that was

rejected by the judge for reasons which have not
really been challenged here or in the Court of

Criminal Appeal. As my learned friend pointed

out - I think it was· Your Honour Justice Deane, at

page 6 of the appeal book, the court was told there

Foster(2) 52 2/12/92

was no dispute as to the relevant facts concerning

the fairness discretion.

TOOHEY J: We were told, Mr Solicitor, I thought, by

Mr James, that that meant that there was no dispute

as to the facts but that the facts themselves were

to be found in the committal material, but that in

that material there might well be some dispute

between the witnesses.

MR MASON: Well, clearly there was an issue as to whether

that material established that the arrest was

wrongful and, indeed, it did. The evidence that

was given in the second voir dire about the purpose

of the arrest was quite consistent with the

evidence given at committal that the arrest was for

questioning.

BRENNAN J:  The difference was that on the second voir dire

it was solely for questioning.

MR MASON:  I believe it was to that effect also in the

committal; I may be wrong.

BRENNAN J: If so, His Honour seems to have misunderstood

it.

MR MASON:  Yes. I accept that. I think the material

relevant to the purpose of the arrest at the

committal is in the supplementary appeal book at

page 31 near the top and 87, lines 22 to 35.	I
think that is the principal material there.

Your Honours, turning if I may to the written

submissions in relation to voluntariness - and I

certainly will not go through all of them - the

invitation by my learned friend to, in effect,

start afresh and for this Court to endeavour to

formulate principles that are well established in a

number of existing cases has not been made good in

the sense that my friend has not advanced any

persuasive reason why the principles need

reformulation or why a reformulation would

establish them in any clearer way than they are.

It is inevitable that one gets drawn into

almost metaphysical notions about free will and why

people confess and why they are moved to do things

and yet this must remain, in our respectful

submission, a workable rule that trial judges can

operate in respect of the admissibility of

evidence.

DAWSON J:  Mr Solicitor, why _are confessions not shown to be

voluntary excluded from evidence?

Foster(2) 53 2/12/92

MR MASON: Historically, it appeared that reliability was

the reason why they were excluded. But later

cases, and I think in Cleland's case - I think in

Justice Deane's judgment in MacPherson and I think

in Your Honour's judgment in Cleland, it is pointed

out that a second reason entered, namely a

revulsion at the use of the evidence when it had

been obtained, for example, under torture, that it

was a conviction obtained at too high a price.

So, in that sense, there is some of the material that triggers off the discretionary exclusion under the Bunning v Cross principle that

comes in. That having been acknowledged, the

voluntariness rule has - and we submit properly -

hardened into a rule which is a Crown threshold to

get material before the jury, which material again

can be challenged. That may be of some relevance

to the Court's decision whether to accede to my

friend's invitation to reformulate the test.

In the present case, at pages 542 to 545, and

559 and 560, are the directions to the jury in

relation to the confessional material. All of the

grounds for attacking the confession, except
perhaps the fact that it was obtained following an

unlawful arrest, were agitated before the jury when

the police officers were called before the jury to

prove the confession.

His Honour gave very strong directions to the jury that the confession was the heart and soul of,

in effect, the case against this and the other

accused persons and if the jury were left in any
reasonable doubt about the propriety of the

confessions - it really was put as broadly as

.~:./r. that - they were to chuck them out.

DAWSON J: Is that what the trial judge should tell the jury

or should he tell them it merely goes to the
. weight?	,

MR MASON:  When re speaks at 543 line 10 about:

improper, unacceptable threats of violence -

and when he speaks about, at page 545 line 15, a: confessional document was obtained by most

unfair and improper means -

it is verging on an invitation to the jury to

discipline the Crown.

DAWSON J: That is quite wrong, is it not?

MR MASON:  Yes .

Foster(2) 54 2/12/92

DAWSON J: Because once the evidence is admitted then these

considerations really only go to weight.	I mean,
the jury may give it no weight for that reason.	It
cannot exclude it from the evidence.

MR MASON:  No. But I am saying that the directions here

were very generous to the accused.

DAWSON J: Yes.

MR MASON:  But a proper direction still provides a relevant

and, as it were, defence mechanism, or second line
of defence as it were, because the jury will have

to be themselves satisfied that the confession was

reliable in every sense of the word before they can

act upon it, and they were clearly directed here.

DEANE J:  Mr Solicitor, I think the passage you had in mind

about torture was in the judgment of

Justices Stephen and Aickin in Bunning v Cross,

quoting Vice-Chancellor Knight Bruce in Pearse

v Pearse.

MR MASON:  Yes, thank you. There is a case called

Featherall or some name like that, in the mid-19th century.

Your Honours, in paragraph 1 we endeavoured to

summarize a number of reasons why the rule about

voluntariness should remain, and remain

conceptually distinct from the other rules. It is

perhaps also relevant to note that voluntariness is

given an extended statutory meaning in New South

Wales and elsewhere, section 410, extending it to

statements induced by promises or misleading

representations. That is discussed in Connor's

case, the citation of which is at paragraph 7 of

our outline. But since voluntariness is given this

extended meaning there is all the more difficulty,

in our submission, with descending into the

metaphysical revision that my learned friend is

inviting the Court to do with respect to this

Court's role in voluntariness.

The only other other point I would wish to add

to the factors in paragraph 1 of the outline is the

one which emerged in discussion this morning, that

the wrongfulness of an arrest may have no bearing

at all on the mind of the confessionalist, because

he or she like the police may be quite ignorant of

the relevant facts.

In paragraph 2 we put the submission that

Australian law has quite clearly accepted the

principle that the mere fact that a confession

follows an arrest, or is the result of an

appropriate level of cross-examination, does not

Foster(2) 55 2/12/92

render it inadmissible. And my learned friend

said, "Well, this ~ase wis special because of the

removal, the separation from the community". With

respect( that is common to any arrest.	I am not
saying that it was unlawful, but on the

voluntariness notion there is nothing peculiar or

special about the circumstances of this situation.

came about; that the will of the

But it is inappropriate to generalize. Here the confession

appellant remained quite firm and what caused him

to change was the confrontation with the statements

of the other two people.

If that is a proper course, and we submit it

is, then the finding that His Honour made that this

was the cause is highly probative in establishing

that there was no involuntariness in this

situation.

Your Honours, in paragraph 5 of the outline we

seek to adopt, with respect, the appropriate

standard 0f cross-examination being that which is
not sustained or undue insistence or pressure and,

with respect, there was no sustained or undue

insistence or pressure in the present case. We

have referred the Court to some authority about the

appropriate use of other statements.

There were none of the difficulties in this

case that there were in cases such as Driscoll

about the other statement being used against this

person. There is no complaint made about that

matter and here, of course, there was a written

confession whose reliability is not ultimately in

issue, and it was that which convicted the

8~pellant if he was properly convicted.

Your Honours may find it relevant to know what

the commissio~er's instructions are in New South

Wales with respec~ to showing a suspect another

person's statement, and could I give the Court a

copy of those instructions.

'

DEANE J:  I do not quite follow what you said about the

reliability was not ultimately in issue.

MR MASON: 

Because the reliability was fought on the basis

of the threats. That was clearly found against the
appellant on the basis of the judge's observation
of the witnesses.

DEANE J: 

I follow that, but the reliability of the

confession must have-remained in issue here - he

pleaded not guilty - surely.

Foster(2) 56 2/12/92

MR MASON:  When I mean reliability I am speaking in terms of

the reliability as a factor going to admissibility.

DEANE J: Well, the judge did not treat it as a self-evident

case in that he treated it as a real issue and

resolved it in favour of the Crown.

MR MASON:  Yes.

DEANE J: Well now, why then are we not directly in McKinney

territory in a situation where the disadvantage to

the accused has been brought about by illegality on

the part of the police?

MR MASON:  Are you now speaking in the Bunning v Cross area

rather than involuntariness?

DEANE J:  I am speaking now in the unfairness to the accused

area in that the Court has recognized the great

disadvantage in which an accused is placed when he

is held in police protection in terms of a

confessional statement. Now, where you add to the

McKinney factor the fact that the arrest was

deliberately and illegally made to put him in that

situation, have you not got the case, par

excellence, of unfairness to the accused?

MR MASON:  As to "deliberately", can I come back to it,

because it was not quite as deliberate as

Your Honour has suggested?

DEANE J:  No, I have deliberately put it at its highest

against you.

MR MASON:  As to unfairness, in my submission, it is

important to keep quite separate the Bunning v

Cross notion, which includes impropriety as well as

illegality, from unfairness in the sense that it

will bring about ~n unfair trial in that the person

is disadvantaged at the trial by, primarily,

reliability factors but not public policy factors.

If the confession was brought about by the factors that Your Honour has put to me - perhaps

can I go back. In McKinney's case the Court

certainly acknowledged the vulnerability of a

person in police custody but, as I read the

majority judgment, it was translated into a rule

that was directed at reliability because the Court

was saying, "Unless you have a taped confession the

jury need to be given a special direction as to how

they go about satisfying themselves that this

person was not verballed".

DEANE J:  I do not think the point I was trying to put to

you has come over, and that is: the basis of

McKinney was that because a person is perfectly

Foster(2) 57 2/12/92

legally being held in an environment where the

po1ice control the environment, where all but the

police are excluded, he or she is at a great

disadvantage when the issue of what happened in

relation to a confession arises for detennination

at the trial. ,

MR MASON:	Yes.
DEANE J:	Now, once you get that acknowledged, if that

position is brought about by illegality on the part

of the police directed towards having the person in
custody in those circumstances so he can be

questioned, why, as I put to you, have you not got
the case of unfairness to the accused par

excellence?

MR MASON:  Well, you may be well on the way to getting a

favourable exercise of the Bunning v Cross

discretion but you do not have any problem with
unfairness. On the facts of this case, because all

of the material which my learned friend relies upon

here was uncontested fact.

DEANE J: But you are still missing the point.

MR MASON:	I am sorry, Your Honour.
DEANE J:	Why can this accused not stand up and say, "Look,

there is a dispute between us about what happened;

I say I didn't confess, they say I did. I'm at

this tremendous disadvantage because I can't have

any witnesses; they've wheeled in three police

witnesses. And the reason I'm at this disadvantage

on my trial is that this position was brought about

by deliberate calculated police illegality".

Surely that goes to fairness.

MR MASON: Well, the disadvantage, the particular focus of

the disadvantage in the way the case continued to

be fought before the jury was whether he was

·· threatened with a beating vr not, because the other

factors which are really the ones my friend has

relied upon today are patent in the.undisputed

facts of the situation.

To elevate the rule the way Your Honour has

put, with respect, runs the risk that the rule

becomes exclusively or unduly focused upon

disciplining the police and the Bunning v Cross

discretion -

DEANE J: Well, I did not mean to convey that. What I meant

to convey is that it is relevant to fairness if the

position of disadvantage has been brought about by

a -each of his legal rights.

2/12/92

· Foster(2) 58

MR MASON: Well, I am not, with respect, sure that I would

agree with that. A person can be beaten whether in

lawful or unlawful custody and the proof of the

fact of whether or not he was beaten, or any other
factors going to the voluntariness of the

confession is, strictly speaking, not affected by

that. But where the factors Your Honour has put to

me are definitely relevant, is whether the court
should, accepting that the confession was made,
nevertheless reject it, because that is the proper

way of disciplining the police.

To take that into account, as it were, in

proving the thing, is really to speculate and -

DEANE J:  If there were no dispute about the reliability of

the confession, I do not think I would have any

quarrel with you, with what you are putting. But

it is in a context where the question of unfairness

goes to the dispute about reliability that the

problem seems to me to arise in this case.

MR MASON:  The question then arises whether, in resolving

that dispute and the factual and discretionary

factors which turn upon it, the court should hold

against the police the fact that they brought about

an unlawful situation. ·

DEANE J: 

No, not against the police, but in the balance of
working out fairness or unfairness to the accused.

MR MASON: 

I would submit that that does not bear upon the

evidentiary issue although it definitely bears upon
the question of whether to exclude or not. With
respect, this is not a very good vehicle for
debating all of those issues because the proof or

disproof of the allegations of threats were, in my

submission, not affected by the lawfulness or

unlawfulness of the original arrest. The facts

that were relied upon for the Bunning v Cross

discretion were facts which were not in dispute.

Your Honours, paragraph 7 of our outline I

think can go away because, as I understood my

friend this morning, he is not seeking to have

Connors reconsidered in this appeal. In relation

to the public interest discretion, the Bunning v

Cross principle which we take up at page 4 of the

outline, something was said this morning - perhaps

it was this afternoon - about whether it is truly a

discretion. In one sense it is not in that if the

judicial mind at the end of the day is persuaded

that the balance is in favour of rejection then

that must follow.

But it is nevertheless appropriately called a

discretion because one is really balancing two

Foster(2) 59 2/12/92

imponderables: the public interest in br~nging to

book people who have committed particularly serious

crimes and the public interest in ensuring that

convictions are not obtained at too high a price.

There is really no rational way in which those two

can be put, one against the other. Hence it is

appropriate to speak of it as a discretion.

DAWSON J: But it is really another sort of discretion in

relation to the fairness rule? It is not really a

discretion when you are speaking about the fairness

rule, I take it?

MR MASON:  No, the fairness may be different. But different

also is the discretion to which mention was made

this aftP.rnoon about prejudicial evidence. At

paragraph 16 of our outline, the reference to two

cases, and perhaps I could just go to one of them:

Scott, in the Privy Council, (1989) AC 1242, at

pages 1256 and 1257. There, in the speech of

Lord Griffiths, about the middle of 1256 over to

1257C, His Lordship - if I could endeavour to

paraphrase it - is saying that when the prejudicial

effect discretion is exercised you are really

dealing with evidence that is probative but it has

got somP-thing added in it that would not normally

go to a jury, such as evidence cf propensity which

the law is normally concerned to exclude.

MASON CJ:	Can you give us some indication where this is in the judgment, because I have the Weekly Law
Reports?

MR MASON: Right. It is about six pages in in the Appeal

Cases, after the paragraph:

- Two recent cases in the House of Lords

Reg v Selvey and Reg v Sang -

MASON CJ: Yes, and that is on line 30. ..

MR MASON:  Then about..:.·half a page on from that, the phrase

"prejudicial effect". It is that paragraph and the

one that follows that I am referring to. 30 what

His Lordship is saying, in effect, is that the

discretion that is exercised in that coutext is one

where there is admissible evidence but it contains

inevitably some material that would normally be

inadmissible and the court has the discretion to

exclude it if the prejudicial material outweighs

the other.

But in the next paragraph, commencing "In the

case of Barnes" et cetera, His Lordship in effect
says, "Well, you don;t exclude evidence of a person

holding a smoking gun over a body because it's

prejudicial. The mere fact that it's prejudicial

Foster(2) 60 MR MASON, QC 2/12/92

is not itself a ground of exclusion". That is,

perhaps, a truer form of discretion and while the

end result is the same, the evidence goes, it is

perhaps different to the discretions that we are

talking about in this case.

Your Honours, paragraph 9 of our outline, I

really do not wish to develop at all there. The

question of intent has been held to be relevant for
the reasons that are set out at the bottom of

page 5 of our outline of submissions: good faith or

not and, in the present case, the relevant material

is summarized at paragraph 13 of the outline.

There was a reason for Liversidge wanting to bring the appellant back from Wallaga Lake that

does not bear all of the sinister overtones that my

friend's submission put it. Liversidge was

concerned that the situation was getting out of

hand because other people were saying, "Arrest me

too", and because of earlier incidents. He denied
that his purpose was to isolate the appellant but,

more importantly, he was unchallenged in his stated

but obviously mistaken belief that it was

permissible to arrest for this purpose.	And the
other senior officer present at the time,
Llewellyn, was not even asked about this.	So it

was not put to the police officers concerned that

this was a cynical exercise in which they - - -

GAUDRON J:  They knew, of course, the instructions, though;

you have just handed us instructions in which that

is made quite clear. One presumes that these

instructions go to the police officers.

MR MASON:  Yes. Well, one assumes that police officers are

briefed about Williams' case.

GAUDRON J: But the instructions are clear. And they were

the instructions at the time? You handed them up

just a little while ago.

MR MASON:  I do not know whether it was at the time, but if

Your Honour wished I could investigate that and

give the Court a note if Your Honour thought it was

a relevant matter. At page 34 of volume I there
was some cross-examination of Liversidge about

his - he was then really being questioned I think

not so much about the wrongfulness of the arrest

itself but other aspects of the interrogation which

were in issue. I do not submit other - this is a

very gross form of negligence; I would accept that.

GAUDRON J: Is it? Negligence is not a concept in this

area, is it? It might be ignorance but it is not

negligence.

Foster(2) 61 2/12/92

MR MASON~ No, it is the sort of thing I accept that every

'police otficer should know~ - -

GAUDRON J: Would ordinarily know. We would ordinarily

assume that a police officer would know this.

MR MASON:  Yes.

GAUDRON J: More particularly, would you not, if a police

officer was stationed in an area where he was

likely to come into contact with the Aboriginal

community.

MR ¥.iASON:  I am not sure what bearing that has to the

Christie v Leachinsky point.

GAUDRON J: Well, in this respect. There has of recent

times been considerable publicity through the

medium of the Royal Commission Into Black Deaths in

Custody, into the rather unsatisfactory nature of

the relationships between police forces and

Aboriginal people.

MR MASON:  Yes, yes.

GAUDRON J: Is that also a fact that we could take into

account in this area? It is an Aboriginal

defendant being taken away from his own community.

MR MASON: In my submission, no.

GAUDRON J: In circumstances where his community objects to

his being taken.	He objects to his being taken.
That much is clear.

MR MASON:  It was raised in the voluntariness context where

Mr Foster, in his own evidence, spoke about his own

fear based upon deaths in custody as a motivating

force in the confession. But if Your Honour is

puttin~ to me that in the exercise of the Bunning v	Cross discretion does one establish a separate rule
for wro~gful arrest of Aboriginal suspects to - - -

GAUDRON J: What I am sugges~ing is that i~ might weil be

that the fears and apprehensions, thus the

voluntariness aspect and the fairness aspect, may

take on a different complexion in a situation where

you are taking a young Aboriginal out of his own

community and you are doing it in circumstances

which are illegal and which you would expect that

the police officer would know to be illegal.

MR MASON:  With respect, I cannot accept that the law can

properly countenance-two standards in relation to

the Bunning v Cross cµscretion, with respect to

adult Aboriginal people.

F'oster(2) 62 2/12/92

GAUDRON J:  Twenty one.

MR MASON: Twenty one. Living - - -

GAUDRON J:  Young. A young person.

MR MASON:  Young, yes, but 21, adult, living not in a - - -

GAUDRON J: On a mission, it says. What is described as a

mission.

MR MASON:  He was soundly criticized for using that

expression. But it is not necessarily a very

remote area. This is a long distance from the sort

of factors that create the Anunga rules in the

Northern Territory, in my submission. The danger

is that one is creating two classes of people, with

a generalization based upon some racial

predisposition.

GAUDRON J: That is one way of putting it. The other is

that there may be a special vulnerability because

of the circumstances. A special fear, special subjective features going both to fairness and voluntariness.

MR MASON:	But if voluntariness is assumed as, at this stage the judge was asked to assume it, then in my
submission the fact that this was a wrongful arrest
of an Aboriginal person, rather than the wrongful arrest of another person, should not deserve any
special weighing in the scales of the discretion.

Any arrest involves, of necessity, the

isolation and removal of a person from the support

system of community. It may be that a wrongful

arrest is in a different nature to other forms of

illegality in the weight that the court gives

against it in the exercise of the Bunning_v Cross
discretion.	I would accept that, but not any

special weighting in Bunning v Cross for Aboriginal

people.

The first time the trial judge saw Mr Foster

as a witness was at the second voir dire, where

voluntariness alone was in issue, but at that stage

His Honour had the opportunity to see the witness,

a particular person.

Your Honours, as to unfairness, our submission

is that the focus of attention is exclusively upon the fairness of the trial process, and that whilst impropriety as well as illegality goes into the

Bunning v Cross balance, an impropriety that

results in no lack of reliability cannot create an

unfairness factor with reference to the fairness

discretion. At the bottom of page 6 we would

Foster(2) 63 2/12/92

respectfully adopt as the appropriate test of
unfairness is not whether the accused was treated
unfairly, but whether the reception of the

confession would be unfair to him, which is looking

at the process.

The only remaining thing I would wish to do in

connection with unfairness is to refer Your Honours

to a passage in Lee's case, 82 CLR. The particular

passage is at pages 151 and 152. In the judgment

of the Court, the Court is dealing with the

discretion factor and with reference to "improper"

or "unfair" methods, Their Honours, at the bottom

of page 151 say:

In the first place, it is said that it

will be unfair to allow the evidence to be

used if there is "some ground for thinking

that the improper conduct of the police may

have resulted in the accused failing to do

justice to his real position."

This really is what my learned friend was, in fact,

suggesting to the Court. He was saying, as I

understood him, that if something is said which

leads to your conviction that would not otherwise

have been said, then it is arguably unfair.

The expression "do justice to his real

position" seems to be taken from the judgment

of Davidson J -

and then there is reference to quotations -

No satisfactory meaning, in our opinion, can

be attached to the words "his real position"

and there is a highly rtangerous ambiguity about them. His real position~ one would

suppose, is to be assumed to be the position

which he takes up at the trial, which may be a

position·far removed from the truth, and which

may be unknown to the judge at the stage of

the trial at which evidence.of the statement

is ter.dered. The learned judges did not, of

course, mean that it was enough to exclude the

evidence that there should be ground for

thinking that the accused had had insufficient
opportunity to invent plausible falsehoods.

This is made plain by the example taken of a

case where the accused has been "badgered into
apparent contradictions or trapped or

surprised into making some ambiguous comment
which is suggestive of guilt". But another

example taken is the case of "an untrue
statement which· he believes to be wholly or

partly exculpatory but ~hich in fact goes to
establish some part of the Crown's case or is

Foster(2) 64 2/12/92

inconsistent with the defence set up at the

trial, eg, an alibitt. The selection of this

as an illustration suffices to show how

dangerous the test laid down could be. In so

on whether a statement should be admitted, far as it suggests that the judge, in ruling

should consider whether it is true or false, it cannot, in our opinion, be supported. It

cannot be that the exclusion of a ttstatementtt

from evidence is to depend on whether or not

it is prejudicial to the defence set up at the

trial.

Now, Your Honours, in one sense in those final

words of the passage I have just read there is its

own, perhaps, ambiguity, because unfairness, as I

have submitted, looks at unfairness in the trial

situation itself, but what the passage as a whole

is saying is that something is not unfair simply

because it leads to a conviction, or turns out to
be inconsistent with the tactical position very
properly taken, or sought to be taken by an accused

person at a trial. In our submission, the only

role for that sort of unfairness is in the context

of the Bunning v Cross discretion, where the
factors such as the seriousness of the crime, the

motive of the police, the extent of the

indiscretion or illegality come into a proper

balance in that context.

Your Honours, reference is made in our submissions to an article by William J. Stuntz

called The American Exclusionary Rule and

Defendants' Changing Rights. Can I give the Court

copies of that article. And while it has not been copied, may I simply draw the Court's attention to the fact that the New Zealand Law Commission has in

September of this year published a paper, Criminal

Evidence Police Questioning, which contains a review of the law and suggestions for its reform.

They have followed the Australian Law Reform

Commission in suggesting that the onus should be

reversed, should be put on the Crown in the

Bunning v Cross situation. We, of course, submit

that the present law is clear and should remain

clear, and this is not a proper case for a judicial

reform of that rule, but there is a useful

discussion of that and other matters in the report.

MASON CJ: Thank you, Mr Solicitor. Can I just ask the

Solicitor a question, Mr James, before you begin?

Can we borrow that report from you? We are not

sure that we have it. in the library, and we can

have copies made of the relevant parts.

MR MASON:  Yes.

Foster(2) 65 2/12/92

MASON CJ:	Thank you, - Yes, Mr James.
MR JAMES:	Very shortly, Your Honours, of course the statement of Detective Liversidge was not the only
material, even on the_first voir dire, and even in
that statement, and my learned friend took the in the interrogation, but unfortunately the
attitude of the accused was, to a certain extent,
exemplified when he said, and this was in terms of
whether he should put more in his confession, he
asked the police did they want him to put more in
by saying at page 129, "What else do you want me
to say?", which raised that very question that I
had averted to earlier. And of course, His Honour
did not expressly reject the threats, although that has been said consistently in the Crown case.

If His Honour was rejecting the making of

threats as serious as that, then one would expect more than one receives in the judgment, simply _by

being a choice couched in terms of causation.

It was put that there was no question of

reliability which arose on voluntariness or on

discretion, but the whole question of

unreliability, that is..,to say untruth, that the

confession could not be depended upon for the truth

of its contents at trial, underlay both voir dires

and the trial. And the question that arose was

whether the modes of interrogation were likely to

produce unreliability and that was directly
relevant to the first voir dire and that is why
there was reliance on the evidence of the police

officers.

As to that, and as to the question of the

ignorance of the police officers of Williams' case,

and their intent to carry out the function in

Williams' case, there is a passage commencing at

page 34 of the transcript in which it is put to the

police officer, Detective Liversidge, that he had

been lectured on Williams' case and the surrounding

matters at a lecture at Miranda - - -

MASON CJ: It was only a meeting!

MR JAMES: Well, he had said earlier - used the word

"lecture". It was then put by him that it was only

a meeting and he then, at page 35, was asked what

he understood from Williams' case; answer:

Q. Yes? A. Is that once a person's in

custody - -

WITNESS STOOD DOWN

Foster(2) 66 2/12/92

SHORT ADJOURNMENT

And then at page 36:

Q. Your understanding Detective Liversidge is

that it is proper that a person may be

detained for the purpose of questioning, is

that so? A.	Yes.
Q.	A person may be as it were picked up and

brought to a police station and then

questioned? A. Yes.

Q.	Without any intention of charging him? A.
Yes.

Q. That's your understanding that's proper to

do? A. Yes.

Q. And also your understanding is that he may

be interviewed for a reasonable amount of

time? A. Yes.

Q. Upon which you may then charge him or let

him go? A. That's right.

Q. When you received that information,

whether it is described as a lecture or

otherwise, that was done at Miranda, was it

also done in the presence of y~ur fellow

officers, that is to say Llewellyn, Shiels and

so on? A. I can't remember if they were

present, they may have been, it was done at

Miranda.

That was, apparently, a discussion by the

Police Prosecuting Advisory Branch of the effect of
Williams' case for the general edification of the

New South Wales Police. If what we are dealing

with is a matter of the individual ignorance it is

express the effect of Williams' case in those	one thing; if there is a calculated policy to	terms, then the public policy consideration receives much greater impact.
Your Honours, those remarks are made in relation to what is put at the bottom of page 5 of my learned friend's submission as to the presence
or absence of bad faith of the relevant official
and the top of page 6. We are not simply dealing
with the matter of promoting ignorance.

As to the matter raised by His Honour

Justice Deane, of course the fact of taking him

into custody and the fact of taking him into

de facto isolation, whether the police officer

intended by taking him to a police office away from

Foster(2) 67 2/12/92

his family and relatives to be isolation, clearly put him at a disadvantage on the very question of

whether the threats were made, both on the voir

dire and at the trial, and, in that sense, had an

effect on both reliability and the ability of the

accused to put his account.

They are, Your Honours, really, the only matters that I would put in response to what has

been put by my learned friend and, really, it is

our submission in closing that the very matters to

which he has drawn attention illustrate that the

questions of what is voluntariness, what is its

proper ambit; what is fairness, what is its proper

ambit; and the proper role of the public policy

considerations, have not been clearly determined.

Unless I can assist the Court further, they are the submissions in reply.

BRENNAN J: What do you say the appropriate order would be if it would seem that the principles which govern the exercise of the discretion have not been

applied?

MR JAMES:  In this case, Your Honour, since he has served

his term of imprisonment, and since it would be in
the individual impact of the c~se upon him, it is

very hard to send it back for retrial in those

circumstances. I am thinking of the principles in

such cases as Director of Public Prosecutions

(Nauru) v Fowler, and Cheatley and so forth. We

would submit the Court would not send it back for a

retrial on the facts as a matter of discretion.

But, it of course would be open to the court

looking at the evidence to draw the conclusions

that it felt it could. The question of discretion

would only arise if the court felt it could not draw appropriate conclusions. On the question of voluntariness the court would have to look at the	evidence to see whether it was reasonably open to	be satisfied bearing in mind the onus on the Crown
if the confession was voluntary.
On the question of public policy, the whole of the material is there. Who better to weigh the
questions of public policy and give guide as to how the questions of public policy should be applied both in the instant case and generally than this
Court?

On the question of fairness, the impact on him

and at his trial can be weighed in the light of the

evidence at the trial, and it can be seen that the

very matters were asserted at trial. Indeed, on

one view of it, if it is proper to leave to the

jury directions in the form in which they were

Foster(2) 68 2/12/92

left, at least that was in error bearing in mind

tl'}at iJ would only also be proper to direct the

jury that the arrest was, as .a matter of law,

unlawful, and the interrogation unlawful. How could the jury express its disapproval without being accorded that information as well if it is

ever proper to leaveato a jury that question?

But it is all there, in our submission, and

the Court could act on it.

DEANE J:  Of course, it would in that context if that were

reached,· be relevant to t~e appropriate order that

the trial judge had indicated that without the
confessional statement there would have been no

case.

MR JAMES:  Yes, Your Honour, and not only no case that he

did it, but it should be remembered that on his own

view he would have directed a verdict in favour of

the accused, even on the question of whether the

fire was deliberately lit without the confessional

statement.

This is really one of that quite rare category of case where the confessional statement not. only

proves the inculpation, but also the crime, and is

essential for both. In one sense, and in those
circumstances, the Briginshaw test in terms of the

trial judge's function concerning voluntariness

becomes very important, and also on the exercise of

discretion, at least on the fairness discretion.

MASON CJ:  Thank you, Mr James. The Court will consider its

decision in this matter.

AT 4.09 PM THE MATTER WAS ADJOURNED SINE DIE

:,

Foster(2) .69 2/12/92