Frugtniet v The Queen

[1999] HCATrans 458

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M60 of 1999

B e t w e e n -

BRIAN OWEN REGINALD WORRELL FRUGTNIET

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 9.31 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant. (instructed by Keith W. Allen & Associates)

MR A.J. HOWARD:   If the Court pleases, I appear with my learned friend, MR P.M. TAFT, on behalf of the Queen. (instructed by Director of Public Prosecutions (Commonwealth))

McHUGH J:   Yes, Mr Grace.

MR GRACE:   Thank you, your Honour.  Your Honours, this matter concerns the admissibility of a record of interview held in circumstances where the applicant complains he was unlawfully detained.  The unlawful detention occurred after an Australian Federal Police officer chose to arrest and interview the applicant in respect of a breach of Victorian State laws.  Whilst the arrest was permissible pursuant to section 458(1) of the Victorian Crimes Act, it is submitted that the detention or interview was not.  It was incumbent, it is submitted, upon the Australian Federal Police officer, in this situation, to have brought or caused to have brought the applicant before a bail justice or a Magistrates Court, within a reasonable time, pursuant to this Court’s decision in Williams.

The statutory schemes concerning the power to detain and interview of other States and Territories are the subject of a comparative table that I have provided to your Honours.  They are all of similar effect to Victoria’s scheme.  Do your Honours have that table.

McHUGH J:   Yes.

MR GRACE:   It is only the Commonwealth scheme which is significantly different in that both the Australian Federal Police and a State or Territory police officer are defined as “investigating officials for the purposes of interviews in respect of Commonwealth offences and the arrest, detention of those suspects”.   There is no reason to suspect that the provisions outlined in this case, which are replicated in other States and Territories, will not give rise to problems in other jurisdictions in Australia.

McHUGH J:   Yes, but it is a question of simply applying the statutory provisions to the facts of individual cases.

MR GRACE:   Yes, that is true, your Honour.

McHUGH J:   So where is the special leave question?

MR GRACE:   It is submitted that special leave should be granted for three related reasons: firstly, the question whether section 9(1) of the Australian Federal Police Act could be applied in the circumstances of this case.

McHUGH J:   Well, that is a question of fact.  You seek to confine it.

MR GRACE:   Well, the result that was produced, as a result of the use of that section, was to effectively deem Sergeant McLeod, the Australian Federal Police officer concerned, to be an investigating official for the purposes of the Victorian legislation.  I will enlarge upon that shortly if I may.  The second special leave point we say this case gives rise to is that, accepting for the purposes of argument that Sergeant McLeod was an investigating official, was there a breach of Subdivision 30A of the Act and principally section 464H, and if so, whether the principles of Heatherington and other cases, have been properly applied by the Court of Appeal; and thirdly, if Sergeant McLeod ‑ ‑ ‑

McHUGH J:   Mr Grace, few counsel are as experienced as you in the criminal jurisdiction, if I can call it that, of the High Court, but really, to say that there is a special leave point involved because you say that the judge did not apply the principles of a particular decision hardly warrants a grant of special leave, does it?  It would turn this Court into some form of super court of criminal appeal, reviewing the criminal convictions around the States.

MR GRACE:   Except if it falls within that second limb of section 35A of the Judiciary Act, your Honour.

McHUGH J:   If one was going to look at a miscarriage of justice, this is not a very good vehicle given the admissions of the accused.

MR GRACE:   Could I turn to the first question then, your Honour, and that is this, that in finding that the phrase “the safe-guarding of Commonwealth interests” should be interpreted widely to cover the factual situation presented in this case, namely the counterfeiting of foreign currency travellers’ cheques, which primarily were to be passed overseas, particularly taking into account the second reading speech of the Minister, which is set out at application book page 600 to 601.

McHUGH J:   Well, I appreciate that, but you know that in Beane v Bolton this Court said that the plain words of statutes cannot be read down by reason of what ministers say that they mean and, in this particular case, the Minister said what was what he obviously contemplated was the primary object of it, but the words “safe-guarding of Commonwealth interests” are very wide; they must cover more than protecting ministers and so on, which were the sort of matters that were mentioned by the Minister in his reading speech, protecting judges and foreign dignitaries and so on.

MR GRACE:   I appreciate that, your Honour, but could I take your Honours to the actual section, and particularly the fact that the section is to be read in a conjunctive way in that if one reads paragraph (c), it applies firstly to the laws of the Commonwealth.  So, if there is a safe-guarding of Commonwealth interests, it must be in relation to the laws of the Commonwealth.  Here one was concerned with the laws of a State.  So that the premise upon which the Court of Appeal acted, namely that the Australian Federal Police officer had the additional powers and duties, could only have extended to those powers and duties that any State officer would have in relation to the laws of the Commonwealth.

McHUGH J: But the Court of Appeal took the view, did it not, that the Commonwealth police were entitled to determine whether there had been breaches of foreign exchange controls and whether there had been any breach of the regulations under the Banking Foreign Exchange Regulations?

MR GRACE:   But at the time of arrest and initial detention, the police officer concerned received advice from a member of the Office of the Commonwealth Director of Public Prosecutions.

McHUGH J:   Yes.

MR GRACE:   And that advice was particularly geared to the issue as to, given the circumstance that the applicant was arrested for an offence against the laws of the State of Victoria and not the Commonwealth, what was ‑ ‑ ‑

McHUGH J:   It was common ground that he was arrested under section 458 of the Crimes Act of Victoria.

MR GRACE:   Yes.  So therefore, what was the investigative regime that would apply to that person?  The advice, well, we say, was in error, and that is in issue between us.

McHUGH J:   Yes.

MR GRACE:   So there was no question that the detention in custody was for the purposes of interview in relation to offences against the laws of the State of Victoria. So, it is submitted that section 9(1)(c) can have no application, in any event, because any powers and duties of a State police officer in respect of the interviewing of suspects for offences against the laws of the Commonwealth, are governed by the regime contained within the Commonwealth Crimes Act.  So the premise upon which the Court of Appeal acted, it is said, is in error. 

Furthermore, the Court of Appeal rejected an argument put on behalf of the applicant that there was no evidentiary foundation to establish the actual equivalence in rank or the existence by declaration of equivalence in rank, of the Federal Police constable.  The need for such evidence was emphasised by Justice Dowsett in the Court of Appeal in Queensland in the case of Shaw v Coco.  It would have been a simple matter indeed for the Commonwealth legislature to have made an amendment to clause 9(3) of the Australian Federal Police Act to include in the definition of “constable” paragraph (1)(c), but it chose not to do so.  So there must be an evidentiary foundation, it is submitted, for the conclusion to be reached, that there is an equivalence of rank.

Now if Sergeant McLeod was not an investigating official and if the interviewing regime in Victoria was not applicable to him, then the admission of the interview is dependent upon the application of the principles contained in Williams’ Case and in cases such as Swaffield and Pavic, and the issue that arises at the end of the day is whether, in the exercise of discretion on fairness or public policy grounds, the interview should be admitted.

Section 458(1) of the Victorian Crimes Act refers to the delivery to a Victorian police officer for the purposes to be so taken to a bail justice or Magistrates Court.  Now, I draw particular attention to that provision because one of the bases for rejecting the premise that no interview would have occurred, which was an argument ‑ ‑ ‑

McHUGH J:   Well, I know you put that argument, but the Court of Appeal answered it by saying that they had no doubt that if he had been advised in accordance with what you submit, then he would have delivered your client then and there to the Victorian police.

MR GRACE:   Yes.  To be taken, pursuant to section 458(1), before a bail justice or a Magistrates Court, and that is the significant point that it is submitted the Court of Appeal missed.  Furthermore, there was no evidentiary basis for the court making that conclusion, that that would have occurred.  It was not the subject of evidence on the voir dire as to what Sergeant McLeod would have done if ‑ ‑ ‑

McHUGH J:   All right, but surely the Court of Appeal, as a matter of fact, were entitled to draw that inference, given the connection between the two police forces, and you have got an investigation going on in New South Wales at the same time; they are trying to coincide the arrests; they are looking for the printer; looking for various other people.

MR GRACE:   Well, it is submitted that that is speculative and I cannot say any more about that.

McHUGH J:   No.

MR GRACE:   But in relation to the issues of public policy considerations, the Court of Appeal did not consider the importance of the statutory scheme in place in Victoria, it did not consider the issue of the safe-guarding of civil liberties of persons who are arrested and detained, it did not consider, at any real length, the question as to whether the admission of the evidence and subsequent conviction was bought at a price, which is unacceptable, having regard to “contemporary community standards”, which is the phrase that was used by the majority Judges in this Court in the matter of Swaffield and Pavic.

McHUGH J:   But this is, as I pointed out to you earlier, not a good vehicle for arguing that sort of point and your client not only made a fairly full admission, but a cross-examining or the questioning was anything but aggressive, and your client was quite responsive.  I think he was cautioned 11 times, was he not, during the course of the interview?  There was no question of unfairness.  So even if there was a technical breach in one of these statutory provisions, it does not seem a case where the Court of Appeal would have been wrong to say public policy did not require the exclusion of this confession.

MR GRACE:   Well, the unlawful detention, if there was unlawful detention, was for a period of 14 hours, it is submitted that this case crosses that borderline.

CALLINAN J:   He was in no way overborne, Mr Grace; there was not the slightest suggestion that he was overborne or that anything occurred during those 14 hours that might have made him say things that he would not otherwise.  It strikes me as an overwhelmingly strong prosecution case, I must say.

MR GRACE:   Yes, I appreciate what your Honour says, but compare back to the case against Williams in Tasmania, in 1986, and no overbearing, no untoward police behaviour, and yet 26 of the 29 charges effectively directed acquittals because of the refusal by the trial judge to admit the record of interview in circumstances where there was an unlawful detention of a few hours, perhaps 4 or 5, overwhelming case, one would have thought, if one accepted what the contents of the record of interview were.  So that one should not be swayed, in my submission, as to the contents of the admissions and what it reveals in terms of the overwhelming case, if that be the situation.  One should look at the overall policy considerations and consider whether, if Australian Federal Police officers are interviewing

suspects for State offences, wherever that it may occur in Australia, that they may be given some comfort if their behaviour is exemplary in having admitted into evidence those interviews in the face of a statutory scheme, which prevents the accused’s attention.

McHUGH J:   Well, Detective McLeod sought legal advice at every stage as to what he should do, and so on.  If he has erred it is because he got some erroneous legal advice, but he certainly seems to have gone out of his way to comply with the statute law of both of the Commonwealth and of Victoria.

MR GRACE:   We do not take issue with that fact.  What we submit is this, that the detention was unlawful, it was unlawful for a lengthy period of time, and if not for the unlawful detention, it is submitted, there would have been no interview.  Those are our submissions.

McHUGH J:   Thank you.  No, we need not hear from you, Mr Howard.

This application for special leave to appeal is concerned with the application of a number of statutory provisions, State and Federal, to the facts of the case.  There is nothing about the case or the reasons of the Court of Appeal which calls for the grant of special leave to appeal.  The application is dismissed.

AT 9.49 AM THE MATTER WAS CONCLUDED