Heaney v The Queen

[1993] HCATrans 75

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M32 of 1992

B e t w e e n -

RHONA HEANEY

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

GAUDRON J

Heaney 1 12/3/93

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 MARCH 1993, AT 2.30 PM

Copyright in the High Court of Australia

MR L. LASRY, OC: If the Court pleases, I appear with my

learned friend, MR I.L. READ, for the applicant.

(instructed by Galbally & O'Bryan)

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

my learned friend, MR N. PAPAS, for the Crown.

(instructed by the Director of Public Prosecutions)

MASON CJ:	Mr Lasry?
MR LASRY:	Your Honours, the special leave point in this case I think can be very shortly stated, and we
have endeavoured to do it in the most recent of the
two outlines that were filed in this matter. The
special leave point is now restricted by this
application to the ground of appeal which is
originally ground (3), at page 88 of the
application book, and in particular
subparagraph (ii) of ground (3), which appears on page 89 ~f the application book.

Your Honours, at the time of this trial and

subsequent appeal, the judgment of this Court in

Pollard obviously had not been delivered. In

essence, this application is based on this

submission that, as a result of the judgment of

this Court in Pollard, the learned trial judge and the Court of Criminal Appeal in this case ought to

have approached differently the application to have

excluded what was the re-enactment by the applicant

on 11 January 1990.

GAUDRON J: That assumes, of course, that section 464C

applies?

MR LASRY:  Yes, Your Honour, it does.

GAUDRON J: Is that certain? It applies to a questioning

under 464A - - -

MR LASRY:	Yes, Your Honour, it does.
GAUDRON J:	- - - which looks very much as though it is a

questioning before a person is charged and brought

before a bail magistrate or a magistrate.

MR LASRY:  Your Honour, I accept that that is an argument

that is open to be put against me and the

submission simply is - first of all, perhaps I

should say this. The applicant was in the custody

of the police, under section 464B, which was the

wrong section for her circumstances. She was taken

under section 464B and she was questioned about the

offence for which she was in custody. That is not

the purpose of that section.

Heaney 2 12/3/93

As I follow it, the Crown have never taken

Your Honour's point against me in this discussion,

in effect, by saying, well, 464C has already been

complied with, because it was complied with on
9 January - she was warned on 9 January that she

could have access to a legal practitioner - and the

effect of that section is continuing; in other

words, the fact that it is two days later really

does not make any difference.

Our submission is that the warning that was

given under section 464C on 9 January was given

during a record of interview. At the conclusion of

the record of interview she was charged with murder

and she was placed in custody. On 11 January she

was then taken from Fairlie for a totally different

purpose and, indeed, unlawfully in the sense that
she was taken under section 464B, the purpose on
11 January being to locate the body, as she had

indicate_d to the police she was willing to do.

At the end of that day, none of the

proceedings on that day having in any way recorded,

a re-enactment takes place with a video tape, in

the course of which she makes, in effect,

admissions which are very powerful admissions used

against her at the subsequent murder trial.

Now, in answer to the question from Your

Honour, we would submit that that was an entirely

separate exercise. She was in custody in entirely

different circumstances -

GAUDRON J: But whether or not she was entitled to the

benefit of 464C in those circumstances, even

assuming your premise, is open to question, is it

not?

MR LASRY:	Yes, I accept that it is open to question, Your Honour, and indeed, were that to be a submission	that were put against us by our learned friends,
then that in itself might well justify a grant of
special leave, because it is an uncertainty.

GAUDRON J:  And in any event, the trial judge approached the

issue on the basis that she should have been told

of her rights to contact a lawyer at that stage.

MR LASRY:  He did. I think a reading of the debate before

the learned trial judge, which is a lengthy debate

because it canvassed an enormous number of issues,

but a reading of that debate makes it clear that it

was accepted, for the purpose of that debate, the

section had been breached, and that in other words

she was really entitled to a warning under section

464C and it was not given.	We submit, in effect,
that the - - -

Heaney 3 12/3/93

GAUDRON J:  And the trial judge went on to hold, having

referred to all the circumstances, that he did not
regard it as unfair or one which ought to attract

the exercise of the discretion based upon

illegality.

MR LASRY:  Yes, Your Honour, he did say that.

GAUDRON J: Yes. Having referred to all the circumstances.

MR LASRY: Well, it is not clear, we would submit, that he

did refer to all the circumstances. He certainly

referred to the circumstances which he concentrated

by saying, "This woman acted voluntarily, she

offered herself to the police. You only need to

view the video tape to see that she was speaking

voluntarily to the police. She had previously been

made aware of her legal rights and therefore she

was acting voluntarily."	Now, of course, for
the - ---

GAUDRON J:  When she came before the magistrate, albeit

improperly under 464B, she was asked did she want a

solicitor.

MR LASRY:  Yes, Your Honour, she was and, indeed, we would

submit that the evidence is not clear as to whether

that offer was being made in relation to whether

she needed or wanted legal advice for that

application or whether she wanted legal advice or

thought she should take up some legal advice, as to

how she should conduct herself for the rest of the

day. But that is not clear. She could have asked

the duty lawyer, of course, at the magistrates

court to act for her on the application, and no

doubt it would have then become obvious that that

was the wrong section under which she should have

been placed in police custody.

But that does not solve the problem, we would

submit, because the point is, on the one previous

occasion when she was told, under section 464C -

this is two days earlier - "You may consult a legal

practitioner." The consequence of that was that

she then made a record of interview, in the course

of which she declined to answer questions until she

had spoken to a solicitor.

Now, she knew then, on 9 January, that she had

that right. She exercised that right, adversely,

to the police in the sense that she was not

prepared to answer their questions until she had

spoken to the solicitor. And she told the police

in that record of interview that her solicitor had

told her not to answer questions.

Heaney 4 12/3/93

So the police must have been aware, simply

from taking part in the record of interview, that

there was a prospect that if on 11 January they had

again offered her legal advice and she had taken up

the offer, and she had contacted the same

solicitor, she would have been given the same

advice. There would then have been no confession,

potentially.

BRENNAN J: But at the end of the day it is a question of

whether or not, on the materials before the trial

judge, his exercise of a discretion miscarried.

MR LASRY:  Yes, Your Honour. I agree with that, but we

would say this about that, that this Court in

Pollard really provides a stronger formula as to

the way in which a trial judge should approach this

issue.

It~ if I may say so generally, elevates those

aspects ·of public policy considerations and
unfairness to a point where, for example,

His Honour Mr Justice Deane said in the course of

his judgment, that a judge might well go straight
to the question of public policy, and what you have

to do is you have to consider all the

circumstances.

Now, the events of 9 January, that is the

events that occurred when she was given the warning

and exercised her right, or exercised her

discretion, if you like, not to answer questions

until she had spoken to the solicitor were one

circumstance that the learned trial judge might

have taken into account in deciding what the effect

of a breach on 11 January was.

But that was not taken into account, and what

this Court, in effect, says in Pollard is, you look

at all the circumstances, you look at the entire

conduct of the police because these are important

mandatory sections. They give directions to police

as to how they are to interrogate and deal with

people in custody, not just the circumstances in

which those people come to be in custody, but the
circumstances in which they are to be questioned

and the fairness of that questioning.

And as Your Honours will be aware, His Honour

Mr Justice McHugh, in his judgement, said, in

effect, these sections exist to protect the

fairness with which the police interrogate people
in custody for offences. Prima facie, if the

section is breached, it is, prima facie, unfair and

that what you do then is you impose on the Crown

some responsibility to displace that presumption.

Heaney 12/3/93

MASON CJ: But he was the only member of the Court who

expressed that.

MR LASRY:  Yes, Your Honour, that is so, he was. The second

limb of our application for special leave really

proceeds on, among other things, that issue, as to

whether in fact that is a proper analysis of the

way the question of fairness should be applied in

these circumstances.

The other limb of that is this, that

Mr Justice Deane, with whom Your Honour

the Chief Justice agreed, referred back to the

words of this Court in Bunning v Cross and referred

to deliberate or reckless disregard for the

section. Your Honour the Chief Justice, in your

judgment, wondered, at least it appeared to me,

with respect, whether the test might be something

less than that; whether in fact you have to

establish a reckless disregard or a deliberate

disregard for the section before you can have these

kinds of confessions excluded.

MASON CJ: Yes, well, I thought it may have been a question

of the magnitude of the breach.

MR LASRY:	Yes, and that then means, with respect, that you would look at all the circumstances of the conduct
of the police from the time they first come into contact with someone in the position of this applicant through until the time the confession is made because the whole point of it is, I would submit, to examine the totality of the circumstances to make sure that at each point where
someone in her position is making an admission, it
is an admission that is made in compliance with the
rules and, of course, is an admission that is fair.

So, we say, in effect, two things in support

of our application. Firstly, the emphasis of this Court in Pollard means that the trial judge in this	case, had this Court decided Pollard by the time he
was considering the matter, would have approached
it differently, the emphasis would have been
different, he would have specifically, pursuant to
the judgment of the Court in Pollard's case, have balanced, for the purpose both of public policy and unfairness, the circumstances and looked at all the circumstances.

What we submit about what His Honour did at

the time was that he essentially hinged his ruling

to this concept of voluntariness. He made the

point frequently during the course of his ruling

that it was obvious that she was speaking

voluntarily. Of course, that is a test, but it is

not the only test and we would submit that the law

Heaney 6 12/3/93

now is clear enough, that even a voluntary and,

perhaps, reliable confession might be excluded in

the exercise of discretion if there is a

substantial breach of the rules.

And we would, I suspect, would want to submit

to this Court on the appeal, were there to be one,

in other words, if this Court were to grant special
leave, that this Court ought to examine again the
circumstances under which this applicant was
questioned by the police for the purpose of
rearguing, I suppose, the conclusions that the

learned trial judge came to.

The other aspect of the application to which I

have already referred really encompasses the two

points, both of which I have referred to; the

question of whether the test is something less than

a deliberate or reckless disregard and how you

resolve-~he possibility that it is and, secondly,
when dealing with unfairness, is it correct to say,

is it the law that when these sections are

breached, then, prima facie, it is unfair and the

Crown have a responsibility to displace that

presumption.

Now, if the test is lower and that last

formulation is correct, then that is an alteration

in the law as it has been applied in this State to

these rules, which we would submit would justify a

grant of special leave.

As simply and as straightforwardly as I can

put the point, those are the submissions that we

would seek to make. If Your Honours please.

MASON CJ: Yes, thank you, Mr Lasry. The Court need not

trouble you, Mr Bongiorno.

Even assuming that section 464C applies to the circumstances of this case, we are not persuaded

that the prospect of the applicant establishing on

appeal that the exercise of discretion by the trial

judge to admit the evidence miscarried is

sufficiently strong to justify the grant of special

leave to appeal.	The application is therefore
refused.

AT 2.46 PM THE MATTER WAS ADJOURNED SINE DIE

Heaney 7 12/3/93