Foster v The Queen

[1992] HCATrans 216

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl51 of 1991

B e t w e e n -

STEPHEN EDWARD FOSTER

Applicant

and

THE OUEE~

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

McHUGH J

Foster 1 4/8/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 4 AUGUST 1992, AT 11.09 AM

Copyright in the High Court of Australia

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

I appear for the applicant with my learned friend,

MR S.J. ODGERS. (instructed by Craddock, Murray &

Neumann)

MR K. MASON, OC, Solicitor-General for New South Wales: I

appear with my learned friend, MR G.R. BARR, for

the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

MASON CJ: Mr James?

MR JAMES:  May it please the Court, in that matter there is

an application for extension of time based on

material disclosed in the affidavit.	I am informed
that it is not opposed.

MASON CJ: There is no occasion to concern yourself about

that.

MR JAMES:	Bearing in mind the observations that fell from Your Honour the Chief Justice in the last matter,
we have prepared some short written material which
I propose to hand up with the consent of my learned
friend.

DEANE J: That is an extraordinarily prompt reaction.

MR JAMES:  We were very prompt, Your Honour. Might I hand

to Your Honours, firstly, the exhibits at the trial

being the respective confessions of Messrs Parsons,
McLeod and the applicant, they are very, very

short, together with, firstly, a copy of the Crimes

Investigation of Commonwealth Offences Amendment

which inserted into the Commonwealth Crimes Act,

section 23S and subsequent, dealing with the

concepts of voluntariness, unfairness and public

policy, and a copy of the proposed Commonwealth

Evidence Bill dealing with the same matters,

together with an analysis by Justice of the various

recent decisions in this Court set out as a

spreadsheet -

MASON CJ:	An analysis by who?
MR JAMES:	Individual Justice of the High Court of

Australia, set out as a spreadsheet of what

Your Honours have said in each of the cases we have

referred to as being the content of the three

concepts of voluntariness, fairness and public

policy, and with the consent also of the Crown the

evidence which - - -

MASON CJ:  I think we ought to exclude that last document,

Mr James.

Foster 2 4/8/92

MR JAMES: That is my special leave point, Your Honour. That

is to say that the Court of Criminal Appeal, in

this case, and the trial judge appear to have

confused the true nature of the three concepts in

their application, and in that regard, with the

consent of the Crown, we have prepared a summary of

the "improprieties" evidence that was before the

trial judge and on which he gave the two rulings

set out in the application book, and to which the
Court of Criminal Appeal had regard in the judgment
of that court, and we have set out two proposals

for reform as they have been debated, annexed to

that document.

Your Honours will see that the application

concerns an examination by the trial judge of

evidence which, in effect, was the totality of evidence against the accused of his guilt, his

involvement in the offence of burning down a high

school. The way in which the evidence came to be

admitted was that there was initially an objection

based on the depositions before the trial judge, he

ruled adversely to that objection, there was a

subsequent voir dire, the trial judge ruled

adversely to that objection.

In the Court of Criminal Appeal, the Court of

Criminal Appeal held that it did not have any role

to review the fact finding function of a trial

judge on admissibility of evidence in line with its

earlier decision in Kyriakou, which was a decision

that did come to this Court and in which the Court,

in refusing special leave, made a short statement

that did not approve, but did not expressly reject,

the role of the Court of Criminal Appeal so

adopted. That was a case in which the trial judge

had found that there had been a punch to the

accused before the confession, and it appeared sub

silentio that there must have been a finding that

he was satisfied that punch did not operate on the

mind of the accused when speaking.

MASON CJ: Only on his jaw?
MR JAMES:	No, his jaw sometime before. But, Your Honours,

in the Court of Criminal Appeal there is discussion of the three concepts of voluntariness, unfairness,

Mr Justice Dawson's criteria for the unfairness discretion and, in particular, the criterion of

reliability and the public policy discretion.

MASON CJ: What did this Court say in refusing the

application in Kyriakou?

MR JAMES:  We had photocopied, Your Honour, and we have

apparently lost, in the attempt to shorten things

Foster 4/8/92

by producing written material, the relevant

reference from the 19 -

MASON CJ:  I have the transcript of the special leave

application, Mr James.

MR JAMES:	I can hand up to Your Honour what the court said, regrettably in only one copy, it is quite short.
Your Honours will see from the application book
that the Court of Criminal Appeal for itself held,
after reviewing the evidence, part of which was
expressed in their judgment and part of which is contained in the document headed Foster, that the applicant had been arrested for the purpose of
interrogation, and in that sense his arrest, his
subsequent conveyance to the police station, and
his detention at the police station was unlawful.

The Court of Criminal Appeal related that

matter to the question of the public policy

discretion. It did so because it was of the view,

based on the finding of the trial judge, that the

event that produced the confession was the reading by the applicant of the two confessions, being the

documents of Timothy James Parsons and

Keiron John McLeod that we have handed to the

Court.

The Court of Criminal Appeal examined that

question of the unlawful detention in the light of

those statements that have been made in this Court

and in Collins, that to exclude a confession, a

voluntary confession, the tender of which would not
be unfair or the extraction of which would not be

unfair to the applicant in the exercise of a public

policy discretion, would be most exceptional. It

really did not review at all whether or not this

was just such an exceptional case or,

alternatively, whether the wide breadth of

voluntariness as suggested by Mr Justice Dixon

would have encompassed exactly these matters or,	alternatively, whether the unfairness discretion
would have encompassed exactly these matters.

In our submission the various judgments in

this Court set out in the document we have handed

up by way of extracts from each of the Justices

and, in particular, the judgments of this Court in

Cleland, Duke, Van der Meer and Williams, indicate

that there is within this Court differing opinions

as to the ambit of the discretion and the criteria

under which the discretion should be exercised. In our submission, this case before the trial

judge and in the Court of Criminal Appeal clearly

illustrates that at first instance, and on appeal

in New South Wales at least, there is an

Foster 4 4/8/92

interpretation of the decisions of this Court which
is such as to convert any public policy discretion
into almost a dead letter, and that the

voluntariness legal requirement seems now to be

couched, although the words "exercise free choice

to speak or remain silent" are used often, to be

couched in terms that the will of the accused must

be seen to be overborne - thrown over - in the

sense of that will suborned for the admission to be

rejected.

Now, Your Honours, in this particular case it

is our submission that it is clear that the

admission was extracted unfairly, unfairly by the

process of rejecting the denials of the applicant
on a number of occasions by confronting him with an

untrue statement, that is, that both of the

co-accused had put him in, and then by a process

when he persisted in his denial of confronting him

with the two documents. On the police account his

concern at the point of time at which he was
confronted with the two documents was for his

brother Warren. On his account he had been

threatened and threatened that Warren would come to

harm unless he confessed.

The trial judge, Your Honours, does not expressly reject the defence evidence of threats

and violence on the voir dire. He does, however,

find that it was the triggering factor of the
showing of the two confessions that produced the

confession. It appears that His Honour has not

related that fact to the surrounding evidence nor

made any decision as to whether or not the

confession was itself involuntary and, indeed, it·

is almost as though the trial judge had followed a

rule of thumb that if it is the mere showing of

other confessions which produced the result then

that has been supported by earlier decisions and,

therefore, he can move to the next stage of the

process - the exercise of the discretion.

Might I take Your Honours quickly to the trial

judge's reasoning in the first decision which is to

be found in the application book at page 22. I

should indicate that the question of unlawfulness

of the interrogation is raised at line 45 and

His Honour adverts to the decision in Williams v Reg, and this citation by Your Honour

Mr Justice Mason at line 40. He proceeds, on

page 23, through the examination of Bales

v Parmeter and Hough v Ah Sam and Williams case,

and proceeding from the proposition that it is not

improper for a police officer to make such

inquiries as are reasonably necessary, either to

confirm or dispel the suspicion, that is it would

not be improper to question per se, proceeds to

Foster 4/8/92

hold at page 24 that he was not of the view that

the accused Stephen Foster was arrested merely for

the purpose of questioning him.

The Court of Criminal Appeal later reached a

contrary view and had regard to the evidence of the

police officers which was that he was arrested for

that precise purpose, and His Honour goes on to say

that it was not unreasonable to ask him questions;
that the interrogation continued finally about an

hour; he took the view that the interrogation was

not unlawful and then said, at that point, based on
the material on the depositions in this his first

decision - - -

MASON CJ: Whereabouts is this?

MR JAMES: Line 20, Your Honour:

If I am wrong in taking that view I would

nonetheless in the absence of other factors

exercise my discretion to admit the evidence.

Now there were other matters upon which

Mr Terry relied -

and at line 27:

He referred to, that is Mr Terry referred to a

combination of factors which he submitted made

it unfair to the accused that the confessional

statement should be relied upon in evidence

against him. Mr Terry referred to both lines

of authority dealing with discretion.

His Honour then referred to Lee and Cleland, and

then at line 33:

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

statement of the accused. These factors
include the following, that the accused, a

young man of twenty one, was removed from his

residence at Wallaga Lake and taken to Narooma
Police Station where he lacked the support of

friends and relatives and others who may have
given him moral support and of course he

lacked also legal advice -

my discretion to exclude the confessional

The interrogation -

relied upon an informant who has remained

anonymous and -

whose evidence was not called -

Foster 6 4/8/92

it was improper ..... to continue to

interrogate ..... after his initial

denials ..... misleading statements had been put

to -

him -

as to the source of information about the

motive for the alleged offence, the commission

of the alleged offence and also as to the name
of the co-accused ..... as being persons who had

named -

him, and His Honour then held:

So·far as I can see Detective Sergeant

Liversidge was in error or was inaccurate when

he said to the accused -

and this appears at page 3 of his statement -

"Both Keiron McLeod and Tim Parsons say that you were with them when you burnt the school down".

It is common ground in the Court of Criminal Appeal

that that statement of the police officer was

inaccurate, and he said:

"They wouldn't dob me in" -

and he was then handed one of the two statements.

His Honour finds at line 22 on page 25:

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 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.

At page 26 His Honour moves to the second judgment and commences with voluntariness, and there appears at page 26 a resume in which His Honour deals with

the various matters that he finds concerning the

Foster 4/8/92

way in which the interrogation was conducted. That

is to say, at line 23:

various allegations were put to the accused to

the effect that he was a participant in the

crime of burning the school.

And an example is thereafter set out, together with

the denial:

"I wouldn't burn the school down it just

wrecks the kids' education", and following

that further questions were put to the effect
that the accused had in fact participated in

burning down the school. There were other

questions as to a possible motive for burning
the school, the suggested motive being anger
because of an incident that had happened on

the previous Friday night, and to all these

allegations that were put or assertions that

were put by the interrogator, the accused

denied any involvement saying "I wouldn't burn

the school down". And even when it was put to

him that the co-accused Keiron McLeod and Tim

Parsons had told the officer that he was

involved with them in burning the school, he

still resisted the suggestion that he was a

participant in the crime, he replied "They wouldn't dob me in". The accused has said

here in evidence that when he was interviewed

by the police officer, he doesn't say it was

necessarily Detective Sergeant Liversidge as I

understand him -

and at page 27 is set out the two accounts as to

why - and His Honour examines the question at

line 11 as to why did the accused sign the

document; sets out the accused's evidence of

threats from line 15 and through to line 45. That

is threats that "the police would go and pick up

would be taken down the back or into the bush",	his young brother, Warren"; "that he the accused
presumably to get a hiding; that his feelings were "that he was conscious of the possibility of
getting bashed and also he said of being "hung"; his reference was to publicity concerning deaths of
young Aboriginals in custody.

I thought if I didn't sign the statement they

would bash me and drag my baby brother,

Warren, into it.

Reference made to two other relatives, Sidney and

Phillip, in terms of the threat that they would be

charged. And His Honour says at line 40:

Foster 4/8/92

Now if those threats were made they would

certainly be threats that would be likely to

overbear the will of the accused, and to

induce him to make a false confession -

the reference to overbearing there is somewhat

significant -

and that would be so even though those threats

if they were made may have been empty threats

in a sense that it was never intended that

they would be put into effect. Now the other reason, as it seems to me why the accused may have ceased denying his participation in the

crime is that there were produced to him two

statements, one of Keiron McLeod and the other
of Timothy Parsons.

His Honour thereafter goes on to deal with what he would do as a trial judge if those statements were

themselves rejected in evidence. At page 28

line 4:

It is my view that the production of the

statements may well have had a.telling effect

upon the accused Stephen Foster, when they

were produced to him. Now it is true that in

evidence he said that he doesn't read well.

He says that he read only part of the statement -

But His Honour reached the view that he

was satisfied that Stephen Foster appreciated the

gist of the statements, and at line 22:

Now it has been put to me that, this is by

Mr. Terry, that the accused's appreciation of

what Keiron had said would hardly influence

him and surely it would not influence him to
sign a confession of his own and that for the

reason that he would derive no benefit

whatever from making an admission or a	confession. But as I see it what may well
have occurred is that the accused realized
that Keiron McLeod had made a confession in his own handwritten saying in effect that
Stephen Foster was one of his accomplices in
the commission of the crime. Having been
informed upon in effect by his friend he felt
that any further resistance to telling the
truth was pointless -

Your Honours, there is no suggestion at any stage

that there was any explanation given to him at any

stage about whether the statements of the co-

accused would be admissible in evidence, whether

they might be called or not in this judgment. It

Foster 9 4/8/92

is simply the effect of showing the statements that

His Honour was referring to. At line 37:

Now if the accused did sign his own confession
in consequence of seeing these two

confessional statements of his co-accused then

I have no hesitation in saying that he

confessed and signed his own confessional
statement voluntarily. The question is, of
course, whether I consider that the causation
of the confessional statement by Stephen

Foster was due to the production of the other

confessions, or whether it was due to threats
of violence at the hands of the detectives. If they are of equal degrees of probability

the-Crown has not discharged the onus of

proof. But I consider that on the balance of
probabilities it is more likely than not that

it was the production of the confessional

statements of Keiron McLeod and Timothy

Parsons that brought the accused's own

confessional statement into existence. And in
my view the Crown has discharged the onus of
proof, that the confessional statement here

was free and voluntary.

It is our submission that His Honour has fallen

into grievous error. He has not found that the

threats and so forth did not exist. He has not

placed the making of the confession as a

consequence of being shown the statements in the

evidentiary context and that, indeed, in the

circumstances, it would be our submission that it

was not open to His Honour, on that material, even
with the finding the Court of Criminal Appeal said
was mistaken, that is that he had not been

unlawfully arrested and detained, to conclude that

it was solely the showing of the two statements and
nothing else. Indeed, on the police account, the

very matter that the accused raises when shown the

statements is their possible inculpation of his

brother, not of himself.

The Court of Criminal Appeal came to deal with

the matter and the judgment commences at page 30 of

the application book and commences to deal with

this aspect at page 32. There it deals with the

question of untrue representation and at page 33

the court refers to an initial difficulty at

line 6:

A difficulty that learned counsel for the appellant faces in relation to this submission

is that it does not appear that Detective

Liversidge's words, even if they amounted to

an untrue representation induced the appellant

to sign his statement.

Foster 10 4/8/92

That is in reliance on the trial judge's finding

that it was the showing of the two written

documents that produced the confession. The court

refers at line 15 to that showing. At line 23 the

court concludes that by dint of that finding the

Crown had a finding in its favour that the contrary

had been shown within the meaning of section 410 of

the New South Wales Crimes Act, that is to say the

threat, promise or undue representation provision,

which would deem any such statement to be

inadmissible unless the Crown was able to show that

it had not operated on the mind of the accused.

The Court of Criminal go on to say, the top of

page 34:

This finding is confirmed by other evidence.

The appellant both in his statement from the dock and his evidence on the voir dire did not claim that his statement was induced by misrepresentation but by threats to his person

and by threatened action against his younger

brother.

Now, Your Honours, if I might stop there. The

major thrust of the applicant's case on the voir
dire was that he had been induced by fear

engendered in him by threats in an interrogation

process which included the putting to him of these

accounts. What has been done so far - and in our

submission it is clear is done subsequently - is to

subdivide what went on in the police station on and

after the arrest, and to extract therefrom one

limited aspect with a view to adhering that to any

· of the recognized formulae. In that sense, there

has been no true examination of whether this

confession was voluntary, was unfair, was unfair

and unreliable, or should be excluded on public

policy grounds, no matter which of the content views of this court as to the various of those

criteria be adopted. At page 35 Their Honours

consider this question of whether the detention and

the arrest was for the very purpose of seeking to
obtain the evidence to be tendered at the trial

unlawfully and conclude that the police officer,

from the police officer's own evidence, that he was

arrested and taken to Narooma Police Station for

the sole purpose of seeking to interview him.

Your Honours, indeed, as can be seen, that was

in the further context of the police officer giving

evidence - this can be found in the document headed

"FOSTER - IMPROPRIETIES" at the bottom of page 1:

Det Liversidge never thought about what Foster

might say which would cause Liversidge to

release him. He testified: "My personal

Foster 11 4/8/92

intention is when I interview somebody who I

am aware of or believe has committed a crime I

feel that the interview, I would like to think

that I would be able to break a person down to

tell the truth •. " It never occurred to

Liversidge that Foster might have been telling the truth when denying the offence Foster would only have been released when Liversidge

was "satisfied that he had no involvement"

if he had come up with an "air tight alibi".

There "was never anything that he could say"

which "would convince" Liversidge that his

alibi (at home) was true.

That was the context of that statement by the

police officer which is noted at the top of

page 35. The Court of Criminal Appeal does not

advert to that but does go on, at line 12, to say:

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)."

Now, Your Honours, the Court of Criminal Appeal

categorizes those other factors as being factors of

public policy, without looking at the unfairness

discretion itself. But when one examines those
other factors, that is questions of public policy,

it appears, at the bottom of page 35, that the

Court of Criminal Appeal considered those factors

to be these:  ·

In relation to the question of voluntariness -

so voluntariness is dealt with as though it were a

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 •.•.. not threats of

inducements that brought the accused's

confessional statement into existence. He

found that the confession was made

voluntarily.

Whether the statement was voluntary was

peculiarly a matter for the trial judge.

discretionary matter of public policy -

Foster 12 4/8/92

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 to 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.

In our submission, the Court of Criminal Appeals

falls into error there as to its own role when

embarking on the examination of the admissibility

of evidence such as this.

MASON CJ:  I understand that you are now challenging this

finding of voluntariness and its affirmation by the

Court of Criminal Appeal, but I had not understood

the application papers to present a challenge to

that.

MR JAMES:  No, Your Honour, what we are seeking to do is to

show that the Court of Criminal Appeal has

apparently mistaken the content of the three

relevant matters: voluntariness, unfairness,

public policy. And in the process has narrowed

voluntariness, we say, to a point where it really

diverges from all authority so far. It has

narrowed unfairness in purported reliance on some

of the statements of this Court and it has taken

what this Court has said about the public policy

ground only being available in exceptional
circumstances such that the totality of the

mechanisms for avoiding the admission of such

evidence as this have failed in a case where, on

its face, it would seem that on the police evidence

and on the totality of the factual material the

confession should have been rejected.

Now, we have to challenge their view of

voluntariness because it seems as though

voluntariness, unfairness and public policy become

shifting fields to embrace part - or overlapping
fields, if I can put it that way.	When the court

embarks on the exercise of saying, we are satisfied

with the trial judge's finding as to voluntariness,
it does not put paid to that factual material for
the purposes of the exercise of the unfairness or

public policy discretions. In essence, what

happens in this case is that excluding

voluntariness, accepting that it was merely the

showing of the other two confessions to the
accused, puts paid to any area of operation of the
unfairness or public policy discretion, even though

the entire interview would not have occurred, on

the evidence, unless he was arrested and detained

unlawfully, that the confession would not have been

made at all, much less in the form in which it was

Foster 13 4/8/92

made, unless that illegality, that unlawfulness,

had occurred and unless the process, the entire

process of resistance had reached the point where

his resistance and denials were overcome.

It can be seen on page 36 that the unlawful

arrest and the unlawful interrogation are limited

to the public interest aspect of the discretion.

The passage from Cleland from Chief Justice Gibbs

citing Mr Justice Brennan is set out, together with

the reference to the exceptional case.

Mr Justice Dawson's judgment is referred to and

Mr Justice Wilson's judgment. Mr Justice Samuels

in Walsh is referred to and, at page 37, it makes

the further statement and then appears the

conclusion and the conclusion is:

His Honour properly exercised his discretion

so as to admit the confessional material. I

see no error by him in so doing.

Now, on one view of it, up to this point at least,

there are no reasons to show why this is not an

exceptional case or why it is, bearing in mind that

that very arrest and interrogation was calculated

to produce the evidence it was intended to tender.

The court does go on to deal with other

objections to admitting the confessional

evidence - - -

MASON CJ:  Just stopping you there. What support do you

have for the proposition that the illegality of the

interrogation should result in an exercise of the

discretion favourable to the applicant?

MR JAMES:  Firstly, the illegality in this case was itself

created by an attempt to secure evidence to be

tendered in the case. In that sense, the police

officers are deliberately embarking upon an abuse

of process.

Secondly, there is, of course, in Cleland and

in the earlier decisions, relying in particular

on ..... in the United States, the proposition that

the courts have a role in preventing the law being

abused by the authorities for the purpose of buying

a conviction at too high a price, to cite

Mr Justice Barwick in - - -

MASON CJ: But you have got the statements in Cleland which

are against you on that point to the extent that
they say it is only in a very exceptional case that

this question will be exercised in favour of the

applicant. On the other hand, you would be able to

rely on my statement in Van der Meer - - -

Foster 14 4/8/92

MR JAMES:  And Mr Justice Deane and also Mr Justice Brennan

in Cleland and Collins himself and also, as I am

reminded, Mr Justice Brennan in Duke. But the

point is, what is the exceptional case? The

exceptional case clearly enough, in our submission,

is the case in which it has been deliberately

sought in the instant case to break the precise law

concerning the obtaining of evidence for the

purpose of getting it in in the relevant case.

Most of the time voluntariness would overcome

the problem. Voluntariness, properly understood,

as the exercise of a free choice to speak or remain

silent. But where you have a finding against

voluntariness and you have that the authorities

through their investigators have deliberately

sought to obtain evidence unlawfully in the very

instant case, it is, in our submission, a classic

exceptional case. And indeed, to leave the rule

expressed as it is in Cleland is to invite the

circumstance that there never will be an

exceptional case, that no court will ever hold that

there is such an exceptional case.

And that is why, in our outline of argument,

we point out, at page 16 of the application book,

that there appears to be in practice in the

implementation of the decisions of this Court at

trial judge level and in the Court of Criminal

Appeal level considerable uncertainty as to whether

there is any room at all for a public interest

exclusion and as to what is the ambit of the

fairness discretion. Further, that it has just

about reached the point, we point out on page 17

paragraph 9, that the discretion, where the

confession has been voluntarily made, if one

interprets voluntariness in the way in which it has

been interpreted, and unfairness in the way in

which it has been interpreted, has almost become a

dead letter.

Is "exceptional" to be regarded as an

observation of what will usually happen, that is to
say it is only an exceptional case if it happens

with limited frequency or a statement of law, some

sort of presumption? Mr Justice Dawson in Cleland

adverted to this, and indeed, when he added to the

fairness discretion the reliability test, has

produced the further complication that as has been

remarked by judges for many years, one body of

judicial thought seems to consider that the fact

that it is a confession, a statement against interest, is likely to make it reliable, and

another that the fact of its extraction in a

particular way is likely to make it unreliable.

Foster 15 4/8/92

At our statement of comparable expressions, if

I can call it that, on page 2 in the lower

right-hand corner appears Mr Justice Dawson's

expression:

"No doubt" it will be "rare" to exclude on

this basis.

What he in effect is saying is an observation that it would be very rare that such cases would come

forward, given the full ambit of the rule as to

voluntariness, and also the factual presumption

that one does not presume that the police are going

to act in such a way as to require the discretion

to be exercised as a general rule or except in very

rare cases.

But the way in which it has been interpreted,

as can be seen by the judgment of the Court of

Criminal Appeal, is that to simply, at the bottom

of page 37, rely on a factual finding by the trial

judge without any examination, from lines 20 to 25.

I should indicate to Your Honours that the Crown

case in this case was substantially based upon the

confessional material - in fact almost entirely.

Without seeking to turn to the case law in any

detail, our argument as to that is set out in our

written submissions in the application book at

pages 16 and 17. In our submission, this is
plainly a case which would justify the grant of

special leave to make clear for the trial judges

and Courts of Criminal Appeal the operation of the

rules.

These problems will not go away in the context of new legislation and in the context of justified four hour rules for detention or in the context of the Commonwealth Evidence Bill or the amendments to

the Crimes Act. Indeed, the very same words are

used in those statutes and often enough in the

statutes of other States and Territories to express

concepts which do not appear to be the same

concepts when one examines the differing judgments

in this Court.

In our submission, this case squarely raises

the issue of what the role is of the Court of

Criminal Appeal on reviewing the trial judge's

exercise of discretion. we should indicate, the

idea that the facts cannot be examined appears to

be contrary to House and Cranssen, even if Warren v

Coombes does not apply.

Further, in our submission, the Court should

precisely as best might be done indicate the

operation of the public policy discretion and its

Foster 16 4/8/92

interrelationship with voluntariness and

unfairness. In our submission, Cleland does not

overcome the problem; it merely states the problem

and states it in terms which are being

misinterpreted. They are the submissions we would

seek to make.

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

MR MASON:	Your Honours, at the trial, the question of discretionary exclusion preceded the issue of voluntariness. If the Court sees page 22, line 15,
it will be shown that in fact the assumption of
voluntariness was made and the unfairness issue was
first debated.

My friend has sought to get special leave on

two grounds: involuntariness and discretion. As

to the first, I must say I am taken really quite by

surprise, because there is nothing in the

application book that would indicate that he was

seeking to challenge that aspect of the judgment.

If one looks at page 12, paragraph 3:

The specific questions ..... are:

a) the scope of the discretion to exclude a

voluntary admission -

page 17, paragraph 9, about line 16, where

voluntariness seems to be not in issue - - -

MASON CJ: And the notice of appeal.

MR MASON:  Yes. I do not wish to cut my friend short, but I

do not wish to be deprived of an opportunity of

putting before the Court - and I have not had it

copied for this reason - the grounds of appeal to

the Court of Criminal Appeal, where the challenge

to the admission of the confession, as I read my

learned friend's written submissions, turned upon

the untrue representation aspects, not upon any

issue about the alleged threats having been the

cause of the confession having been made.

So the issues as they appear from the written

submissions were that the untrue confession point

was raised, and of course the difficulty with that
was it was not shown that the statement was untrue

to the knowledge of the maker, that being a

proposition of law established as being part of

section 410 in Connor's case, 48 A Crim R, but

there was also of course the factual finding

that - - -

DEANE J:  Mr Solicitor, was it shown to be untrue? I know

that one of the statements did not include "Steve",

Foster 17 4/8/92

but was it shown that nothing had been said orally

to identify the people who were not named in the

statements?

MR MASON:  When you say was it shown at the trial, my

understanding is that the initial statement, in so

far as it is suggested that both other persons had

implicated the applicant, was untrue but not

deliberately so, but it was found that that was not

the cause - - -

DEANE J: That is what I was asking you, because the Court

of Criminal Appeal seems to have acted on the basis

that the other accused said nothing apart from what

was written in their written records of interview.

That is a most unlikely scenario, and what I was

asking you was:  did it appear at the trial that in

fact the accused who referred to "other blokes" or

something had not orally identified the applicant

as one of them?

MR MASON:  I do not know the answer to that. My

understanding is it proceeded solely on the written

statements of the other two and that it was

incorrect to attribute to both of them the

implication of the applicant.

DEANE J:  It was assumed that they had said nothing other

than - - -

MR MASON:  One of them had said nothing and one of them had

implicated the - - -

DEANE J:  It was assumed that they had said nothing other

than what was expressly recorded in their written

statements?

MR MASON:  Yes. So on that issue there are really two

points: one, that it was not deliberate, but the
point that it really seemed to turn upon was the

fact that it was not causative. The finding made

by the trial judge that he had read the two

statements and therefore, even if the policeman's

oral description was incorrect, by the time the

confession was made, he knew that only one of them

had implicated him. So for that reason I would

oppose my friend being able to raise a challenge on the basis of voluntariness. The statement which he

criticizes at page 36, where the court says in

effect that "We are not a fact-finding tribunal", appears to relate to the voluntariness issue, not to the discretion issue.

Turning then to the discretion issue, the

Court of Criminal Appeal found error below and

proceeded on the basis, contrary to the trial

judge, that the arrest was unlawful. So that was a

Foster 18 4/8/92

factor clearly before the court. But having done

that, the court looked at the discretion and the way the trial judge had exercised it, because he

had in effect given an alternative judgment on the

basis that there was involuntariness. What my

learned friend is really seeking to do - - -

DEANE J:  Did not the Court of Criminal Appeal misunderstand

what the learned trial judge had said? Look at
page 35. They say:

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)."

His Honour had not said that at all. What he had

said is, "I find that the arrest was not for the

purpose of questioning. I also hold that the

questioning was not unlawful because he hadn't been

taken before a magistrate. If I am wrong on the

second point" - the Court of Criminal Appeal has

attributed to him, saying, "If I am wrong in

relation to the first point", which he never said.

MR MASON:  Yes, Your Honour is correct.

DEANE J: But it does not seem to have played all that much

part in the Court of Criminal Appeal's decision.

MR MASON:  No. My learned friend says that there is

uncertainty in the cases and that the High Court's

statements have been reduced to a dead letter.

That is disputed. The cases that he has referred

to but not taken the Court to are all cases where

Cleland and Bunning v Cross are referred to and

great slabs in the judgments are stated, and I am

unaware, having read them, and he has not referred

the Court to any passages where the Court has been

confused about what the principle emerging from

Cleland's case is.

What my friend is seeking to persuade the

Court to do is to reverse the onus on the discretion to say that the public policy factors

call for the Crown to make out as a matter of law
the case for the inclusion of the unlawfully

obtained material. In my submission, the

authorities are clearly against that proposition.

Your Honours, the trial judge and the Court of

Criminal Appeal had regard to the reliability of

Foster 19 4/8/92

the material which was encompassed very much in the

voluntariness finding; in the illegality, because

they had found that there was an unlawful arrest;

and my friend seeks to say that there is, as it

were, a third category as a hard and fast category
based on public policy. In my submission, the

passage from Cleland indicates the correct

principle where, as in this case, there was no

finding that there had been a deliberate

illegality.

It is just not correct to say, as my friend

does, in my submission, that this was tantamount to

an abuse of process. Like any illegality

situation, it can either be deliberate or reckless

or mistaken. The state of mind in the police who

were involved was just, it appears, not explored at

all.

In Bunning v Cross, the question of whether or

not the matter was done intentionally to take

advantage of the wrong was said to be a critical

factor. The statement about the very exceptional

case that is referred to in the passage from

Cleland is really a way of adverting to that factor

but without establishing any hard and fast rules.

This ultimately turned upon an exercise of

discretion by the Court of Criminal Appeal and, in

my submission, the principles that they referred to

have not been shown to be in error and therefore

this is not an appropriate matter for special leave

to be granted.

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

MR JAMES:  Two matters: as to what my friend says

concerning voluntariness, we advert to

voluntariness because it appears to have carved out

the area available for the exercise of discretion
in this case.	The real thrust of this case is that

the evidence was or should have been inadmissible.

We particularly aim that thrust at the fairness discretion because of the finding that it was

voluntary to start with.

But if voluntariness only equals not

overborne, a simple reaction to the showing of the

two statements divorced from the factual context,

as opposed to the exercise of a free choice to

speak or remain silent, then the application of the

facts to the law and to the situation is different.

That is why we raise it.

But as to the point that the Court of Criminal

Appeal considered at page 36 that it had no role of

reviewing the facts is confined to its finding as

Foster 4/8/92

to voluntariness, at the bottom of page 37 the

Court of Criminal Appeal deals with the unfairness

discretion in one paragraph:

Counsel for the appellant also claims that

there was unfairness in that the appellant was

denied access to advice or to a witness during

the course of the investigation and it might

have been helpful to him to have had this.

The learned trial Judge found however that

there was no unfairness or oppression.

It seems to me that the appellant cannot

succeed on this ground for any of the reasons

advanced on is behalf.

What has happened before the learned trial judge

and in the Court of Criminal Appeal is that that

discretion and the matters of relevance for the

exercise of that discretion has been remarkably

narrowed because of the context of voluntariness

and the question of what is public policy.

Indeed, it could be said that when one looks

at the judgment at page 35, that public policy

seems to embrace voluntariness and a lot of matters

that would otherwise be applicable to unfairness.

It is the subdivision between the concepts and the

rigid lines which have occasioned much of the

problem.

It was put that the Court of Criminal Appeal had exercised its discretion for itself. In our

submission, if so, it has clearly erred in

principle, though it really seems as though it has

not exercised the discretion at all but simply

followed what was done at first instance

notwithstanding the error that it has noted.

Your Honours, I would not seek to take

Your Honours on an application of this nature into

the detail of the cases we have referred to in our

outline of argument as to the application of the

general statements in Cleland and Bunning v Cross.

We accept that the cases are cited, we accept that

the courts seek to apply them. The very gravamen

of this special leave application is that the

application of those rules, at least in New South

Wales, is inconsistent and that courts are finding

difficulty in applying them in a consistent and

rational fashion. They are the submissions we

would make on this application.

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

decision in this application at 2 o'clock.

Foster 21 4/8/92

MR JAMES: Prior to the Court rising, I have spoken to my

learned friend, and in the event that leave were granted, we might both give consideration to the

notice of appeal and whether we would seek to

amend to raise the voluntariness ground to make

sure the issue was squarely there.

MASON CJ: Quite clearly, if leave is granted, you would

have to give consideration to the notice of appeal.

MR JAMES:  I apprehend also that there is, bearing in mind

the nature of this application, before the Court
tomorrow, before a Full Court in Canberra, an

application from Victoria which would deal with

that statute in Victoria concerning - - -

MASON CJ: Yes.

MR JAMES:  It will raise some of the questions, but not all,

that are concerned in the present application.

MASON CJ: It is mainly a question of interpretation of the

Victorian statute, is it not?

MR JAMES: In that one, yes, because that is a strict ruling

as to inadmissibility.

MASON CJ:  Yes. The Court will adjourn until 2 o'clock.

AT 12.07 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.03 PM:

MASON CJ: There will be a grant of special leave to appeal

in this case. Mr James, are you going to do

something about the notice of appeal?

MR JAMES:  I am, Your Honour, and we would seek a week only

in which to amend the grounds of appeal. I merely

make it that long because I wish to consult my

friend on the precise drafting.

MASON CJ: Very well.

MR MASON:  As long as the amendment does not go materially

beyond voluntariness, I am content to allow general
leave to amend, with liberty to

apply, if that is appropriate to the Court.

Foster 22 4/8/92

MASON CJ: Perhaps we ought to make that order, because

under the rules or practice, you may be bound at

the moment to file a notice of appeal which

corresponds with the draft notice. So we will

grant general leave to amend the draft notice of

appeal.

AT 2.04 PM THE MATTER WAS ADJOURNED SINE DIE

Foster 23 4/8/92