Heatherington v The Queen

[1994] HCA 19

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

HEATHERINGTON v THE QUEEN

(1994) 179 CLR 370

20 April 1994

Criminal Law

Criminal Law—Evidence—Confession—Questioning of accused in custody—Confession made where recording facilities available inadmissible unless recorded—Two periods of questioning—Only second period recorded—Whether confession made during recorded period admissible—Crimes Act 1958 (Vict.), s. 464H(1)(d).

Orders

Special leave to appeal refused.

Decisions

MASON CJ, DEANE AND McHUGH JJ This is an application for special leave to appeal from an order of the Court of Criminal Appeal of Victoria (Marks, Southwell and Harper JJ) dismissing an application for leave to appeal against a conviction for murder ((1) (1993) 1 VR 649.). The application raises for consideration a question of construction of s.464H of the Crimes Act 1958 (Vict.) ("the Act"), which deals with the tape-recording of confessions and admissions. That section was recently considered by this Court in Pollard v. The Queen ((2) (1992) 176 CLR 177.).

2. At 9.36 p.m. on 30 August 1990, a telephone call was received by an officer of the Metropolitan Ambulance Service in Melbourne. The caller, who did not identify himself but who was undoubtedly the applicant, requested that an ambulance attend at a stated address in Hallam which is a Melbourne suburb. He went on to say that he had "hit" his "mate on the head with an iron bar" and that he thought that the other person was dead.

3. Shortly afterwards, police and an ambulance attended at the address which was a residence in which the applicant had been lodging with a Mr Edwin Simpson. The applicant was present. Simpson was found with severe head injuries, from which he subsequently died. The applicant apparently repeated to Senior Constable Watson the statement that he had hit the injured man on the head with an iron bar. The material before the Court does not disclose whether the statement was repeated in response to questions asked by Senior Constable Watson.
The applicant was cautioned and taken into custody. He was transported in a police van to the Dandenong Police Station where he was held in an interview room.

4. The applicant was interviewed at 10.35 p.m. that night by Detective Senior Constable Steendam, in the presence of Detective Senior Constable Ziemann and Senior Constable Watson. Of this interview, which lasted about five and certainly no more than ten minutes, Steendam made approximately one page of handwritten notes. In the interview, the applicant gave details of his name, address and occupation, an account of the events leading up to the assault, details of the assault itself and his conduct after the assault. Referring to this interview, the trial judge found that "Steendam asked enough questions to lead to the accused providing much more than a bare outline of what had happened earlier that night". Steendam and Ziemann then departed for approximately 40 minutes. In that time they made further inquiries. On returning, they commenced an interview which lasted almost two hours. A total of 601 questions was asked. That interview was taped. In the course of it, the applicant made a full confession. The trial judge allowed evidence of the second interview to go before the jury, which subsequently found the applicant guilty of murder.

5. The application for leave to appeal to the Court of Criminal Appeal and the application for special leave to appeal to this Court were grounded on the contention that the evidence of that confession was inadmissible. It was not suggested that the confession was not made voluntarily or in circumstances that were other than fair. Instead, argument was directed to s.464H of the Act, which, so far as is relevant, provides:

"(1) Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who -

(a) was suspected; or (b) ought reasonably to have been suspected - of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless - (c) if the confession or admission was made before the commencement of questioning, the confession or admission was tape-recorded, or the substance of the confession or admission was confirmed by the person and the confirmation was tape-recorded; or (d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded; or (e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was tape-recorded -

and the tape-recording is available to be tendered in evidence. (2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub-section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances - (a) are exceptional; and (b) justify the reception of the evidence."

It is common ground that Dandenong Police Station was, for the purposes of the section, a "place where facilities were available to
conduct an interview".

6. As Pollard and the judgments in the Court below in the present
case make clear, the construction of s.464H is not free from difficulty. Despite what was said in the Minister's speech during the second reading of the Bill ((3) Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 22 April 1988 at 1821.), the legislation does not provide that a confession is inadmissible unless the entire interrogation is tape-recorded and the tape-recording is available to be tendered in evidence. Instead, the section expressly allows for the admissibility of evidence of a confession which was not tape-recorded when there are no facilities for recording and the confession is subsequently confirmed (par.(e)) or when the confession occurs before the questioning begins and it is subsequently confirmed (par.(c)). It also allows a court to admit evidence of an otherwise inadmissible confession if the court is satisfied on the balance of probabilities that exceptional circumstances justify the reception of
the evidence (s.464H(2)). On the other hand, even where the requirements of s.464H are satisfied, a court retains the ordinary discretion to exclude unfairly or improperly obtained evidence ((4) s.464J(c) and (d) and see, generally, Pollard (1992) 176 CLR at 183 per Mason CJ, 197-198 per Deane J, 219 per Toohey J, 227-228 per McHugh J). Clearly enough, the primary object of s.464H, like that of other provisions of Sub-div.(30A) of the Act, is not to protect the guilty from acknowledging guilt but to ensure that alleged confessions or admissions are genuine and voluntary and not unfairly obtained.

7. In Pollard, a majority of this Court accepted that, for the purposes of the tape-recording requirements in par.(d) of s.464H, there could be distinct periods or episodes of questioning, at least when the interrogation occurs at more than one place. In that case, interrogation occurred at the C.I.B. office at Frankston and the St Kilda Road police complex - facilities for conducting an interview being available at both places - and some additional questions were asked while the accused was being taken by car to the St Kilda Road complex. Only that part of the interrogation which was carried out at St Kilda Road was tape-recorded. One question posed in Pollard was whether s.464H rendered the evidence of the confession at St Kilda Road inadmissible for the reason that the earlier questioning at Frankston had not been recorded. The majority answered that question in the negative on the ground that "the questioning" referred to in s.464H(d) was, in the circumstances of that case, the questioning at the St Kilda Road complex which had been recorded.

8. Toohey J, in a judgment with which Mason CJ agreed generally,
stated ((5) (1992) 176 CLR at 219.):

"It is obvious that in some circumstances questioning may properly take place on a number of occasions and, it may be, at a number of places. But if the Crown seeks to lead evidence of a confession or admission made on any of those occasions, its admissibility will be determined by the operation of the section. And even if the Crown chooses, as here, not to rely upon something said on an earlier occasion, the earlier occasion may be treated by the Court as part of the same questioning if circumstances, in particular proximity of time and place, so dictate.

Questions of degree are necessarily involved ((6) As to "place", it is true that s.37(c) of the Interpretation of Legislation

Act 1984 (Vict.) provides that, unless the contrary intention appears, "words in the singular include the plural". But the issue still is
whether the same questioning is involved at each place.).

While the Court of Criminal Appeal did not refer to the precise timing of the events that took place, it is clear that they regarded the intervals of time and place and the difference between the more informal exchange at Frankston and the long and detailed interview at St. Kilda Road as sufficient to treat the questioning at St. Kilda Road as not the same questioning as that which took place at Frankston. ... But the issue is still whether the questioning at St. Kilda Road was the same questioning as that which took place at Frankston. It is necessary to focus on the questioning which produced the answers sought to be adduced in evidence. Is that questioning, in terms of s.464H(1), affected by what took place earlier?"

9. Mason CJ expressed the view that ((7) (1992) 176 CLR at 183.):

"the interpretation which I have given to s.464H(1) produces some unsatisfactory consequences, especially because it enables the recorded interrogation to be admitted in circumstances in which it is preceded by an unrecorded interrogation. The existence of an antecedent unrecorded interrogation can give rise to the very sort of problem against which the relevant provisions provide some safeguard. However, in my view, the language and structure of the provisions dictate the interpretation which I favour."

10. The passages quoted above from the judgments of Mason CJ and Toohey J support the proposition that, in a case where there have been different and distinct periods of interrogation, the expressions
"if the confession ... was made during questioning" and "the questioning and anything said by the person questioned" in s.464H(d) refer not to the overall interrogation or to the overall interrogation at a particular place, but to the particular period or episode of questioning in which the confession sought to be tendered was made. While the judgments of Deane J and McHugh J, the other members of the majority in Pollard, are consistent with that proposition, they do not expressly adopt it but rest upon a narrower proposition which was sufficient for the purposes of that case. That narrower proposition is that, when one has different periods or stages of questioning at different places, a confession made at one place is not rendered inadmissible because an earlier period or stage of questioning at the other place was not recorded ((8) ibid. at 197-198 per Deane J, 227 per McHugh J). That narrower proposition should, in our view, be seen as a particular instance of the more general proposition accepted by Mason CJ and Toohey J in Pollard, namely, that in a case where there have been different periods or episodes of interrogation, the requirement that "the questioning" which yields a confession be recorded relates to the particular period or episode during which the confession was made.

11. As a matter of language, the reference in s.464H(d) to questioning "during" which a confession or admission was made can readily be construed, in a case where there have been two or more different periods or episodes of questioning, as designating the relevant period or episode of questioning. That construction of the words of par.(d) is strongly supported by the consideration that curious and obviously unintended results would flow from a
construction of the reference to questioning in par.(d) as designating, in such a case, not only the period of questioning during which the confession or admission was made but every material question which has earlier been asked or which is subsequently asked of the suspect at the particular place. For example, the operation of par.(c) to make admissible a confession or admission made before the commencement of questioning if it is subsequently confirmed by the suspect and the confirmation is tape-recorded would be precluded if any material question or questions, however unprejudicial, had been asked before the original confession or admission was made. Again, evidence of a confession or admission made in a completed interview with respect to which the requirements of s.464H(d) had been fully satisfied would be retrospectively rendered inadmissible if any material question or questions were subsequently asked of the suspect at the relevant place. Yet again, the asking of any material question or questions, however unprejudicial, at a particular place would make it necessary that the suspect be taken to some other place so that evidence of any subsequent confession or admission could be admissible.

12. It cannot be supposed that the legislature intended to bring about such results. Much to be preferred is a construction according to which the admissibility of a confession turns on a question of substance: whether the earlier questioning was part of the same questioning which produced the confession. If it was not, the fact that the earlier questioning was not recorded will not of itself preclude the reception of evidence of the questioning in the course of which the confession was made. The existence and circumstances of the earlier unrecorded questioning could, of course, be relevant to, and possibly decisive of, the question whether evidence of the confession should be rejected on unfairness or public policy grounds ((9) See Pollard ibid. at 183, 219.).

13. The issue here then is whether the initial period of questioning and the second period should be characterized as the same questioning. The resolution of such an issue involves questions of degree ((10) ibid. at 219.) and may require a weighing of a variety of factors including the proximity of time and venue, the relationship between the occasions on which questioning took place and the relationship between the interrogations which took place on those occasions. Thus, it may transpire that, on the second occasion, the questioning is largely influenced by what was said on the earlier occasion, in which event one might the more readily conclude that a confession made on the second occasion was made in the same or the one period of questioning which began on the first occasion and ended on the second occasion.

14. The present case may approach the borderline. On balance, however, we consider that the Court of Criminal Appeal was not in error in concluding that the two occasions gave rise to separate periods rather than the same period of questioning. The two periods were separated by a significant interval of time during which the police made further inquiries. The first period was extremely short; the second was very comprehensive. The second was self-contained in the sense that the questions and answers did not on their face relate back to or refer to the questions and answers on the first occasion. As Marks J observed in the Court of Criminal Appeal, the confession adduced in evidence emerged from a period of questioning which was separate and distinct from the prior unrecorded interview ((11) (1993) 1 VR at 654.). And, as Southwell J noted, the second interview was not, and did not purport to be, a resumption of the first interview ((12) ibid. at 657.).

15. The judgment of the members of the Court of Criminal Appeal discloses that their Honours appreciated that the issue was not to be determined by reference to any one factor as an exclusive consideration. Thus, the fact that there was no causal relationship between, on the one hand, the second period of questioning and the confession it generated and, on the other hand, the first period of questioning was not treated as an exclusive matter for consideration. It was taken into account along with separation in time, the fact that the second interview did not purport to be a continuation of the first and the difference in character of the two interviews.

16. We do not agree with the suggestion that, because Southwell J characterized the first interview as a "lead-up conversation", the two interviews necessarily constituted the same or the one
questioning ((13) ibid. at 656.). The expression "lead-up conversation" signifies in the present context no more than that the conversation was a preliminary conversation to be followed by a substantive interrogation. That does not make the two periods of questioning the same or the one questioning; nor does it demonstrate that the relationship between the two periods of questioning is such as to require or even suggest that conclusion.

17. In the result, we are not persuaded that the members of the Court of Criminal Appeal misdirected themselves in deciding what was essentially a question of fact. Nor are we persuaded that the conclusion which their Honours reached was one which was not open to them. To the contrary, as we have indicated, we consider that, on balance, that conclusion was the correct one in all the circumstances of this case. It follows that evidence of the recorded interview was not rendered inadmissible by s.464H. It has not been, and could not reasonably be, argued that evidence of the confession should have been excluded on either public policy or unfairness grounds.

18. The application for special leave to appeal should be refused.

BRENNAN, DAWSON AND GAUDRON JJ The applicant was convicted of the murder of Edwin Simpson after a trial in the Supreme Court of Victoria. Simpson, the applicant's landlord, died more than 4 months after he sustained his fatal injuries on the evening of 30 August
1990. The applicant applied for leave to appeal against his conviction on the ground that the trial judge "erred in admitting into evidence the tape-recorded record of interview between the informant and the accused". In that record of interview the applicant confessed that he had inflicted the injuries on Simpson. The applicant's objection to the admission of his confession in evidence was founded on s.464H(1)(d) of the Crimes Act 1958 (Vic.) which reads:

" Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who -

(a) was suspected; or (b) ought reasonably to have been suspected - of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless -

(c)... (d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded; or (e)... and the tape-recording is available to be tendered in
evidence."

To consider the applicability of this provision, it is necessary to refer to the circumstances leading up to the taping of the applicant's
record of interview.

2. At about 9.36pm on 30 August 1990, the applicant telephoned the Metropolitan Ambulance Service saying that he had hit a mate on the head with an iron bar and that he thought the mate was dead. He wanted an ambulance to attend at an address which he gave. At about 9.45pm, Senior Constable Denise Watson went to the address, a residence occupied by Simpson and the applicant. The applicant told Senior Constable Watson that he had hit Simpson over the head with an iron bar. She cautioned the applicant and escorted him to the

Dandenong Police Station. The Dandenong Police Station had "facilities ... available to conduct an interview", so that any confession or admission made during questioning to an investigating official by a suspect at the Dandenong Police Station attracted the operation of s.464H(1)(d).

3. At 10.35pm on 30 August Detective Senior Constable Michael Steendam spoke to the applicant in an interview room at the police station and made written notes of the subsequent conversation. Detective Senior Constable Mark Ziemann and Senior Constable Watson were present. The trial judge evidently thought this conversation took only about 5 minutes ((14) The judge's finding that the time between the end of the first conversation and the commencing of the taped record of interview between Steendam and the applicant was "about 40 minutes" attributes about 5 minutes to the first conversation.). In this conversation, the applicant provided details of his age and occupation, the identity of his victim, the events leading up to the assault upon Simpson and specific particulars of that assault, the applicant's conduct after the assault up to the time when the ambulance arrived and, finally, the fact that he had (to quote Steendam's notes) "thought about it once. 2-3 weeks ago." The learned trial judge found that "Steendam asked enough questions to lead to the accused providing much more than a bare outline of what had happened earlier that night".

4. After that discussion, Watson remained with the applicant while Steendam and Ziemann made further enquiries including enquiries of the hospital to which Simpson had been taken. Then, as his Honour found:

" About 40 minutes later, at around 11.20pm., Steendam and Ziemann re-entered the interview room and, in the presence of Watson, embarked on a question and answer session with the accused, which continued until 1.18 a.m."

The questions and answers during this period were taped. The confession made during this period is the confession which the
applicant contends was inadmissible.

5. In Pollard v. The Queen ((15) (1992) 176 CLR 177.) a majority of the Court accepted that, for the purposes of s.464H, there may be a "questioning" during which one confession is made followed by another and separate questioning during which a second confession is made and that the second confession is not inadmissible merely because the first questioning was not tape-recorded ((16) See ibid. at 183, 197-198, 219, 226-227.). In that case, a majority found that there were two interrogations and that s.464H(1)(d) did not make inadmissible evidence of the confession made during the second interrogation, although a prior interrogation had elicited an earlier confession. Toohey J ((17) ibid. at 219.), with whom Mason CJ ((18) ibid. at 180.) agreed on this point, said:

"It is obvious that in some circumstances questioning may properly take place on a number of occasions and, it may be, at a number of places. But if the Crown seeks to lead evidence of a confession or admission made on any of those occasions, its admissibility will be determined by the operation of the section. And even if the Crown chooses, as here, not to rely upon something said on an earlier occasion, the earlier occasion may be treated by the Court as part of the same questioning if circumstances, in particular proximity of time and place, so dictate. Questions of degree are necessarily involved".

6. It follows that, in determining the admissibility of a particular confession made by a suspect, it is necessary to identify the relevant questioning of the suspect and to find whether, if that questioning occurred "at a place where facilities were available to conduct an interview", that questioning was tape-recorded. The connection between the confession and the questioning is purely temporal, for the operation of s.464H(1)(d) is attracted when the confession has been made "during questioning". It is immaterial that the confession was not made in response to the questions asked or even that the questioning cannot be shown to be the cause of the making of the confession ((19) Although s.464H(1)(d) postulates no test of causal relationship, in practice the relevant questioning will ordinarily contain the questions "which produced the answers sought to be adduced in evidence", as Toohey J noted in Pollard (1992) 176 CLR at 219.). Both the making of the confession and the period of questioning during which the confession is made are objective facts to be found (albeit oftentimes with difficulty) by the trial judge. Admissibility depends on whether the relevant questioning was tape-recorded throughout its duration.

7. In the present case, the learned trial judge understood
Sub-div.(30A) of the Crimes Act to provide that -

"whatever was not tape-recorded was not admissible unless exceptional circumstances warranted its admission, but ... whatever was tape-recorded was admissible, unless there was a basis for not admitting it on the grounds of unfairness, involuntariness etc."

In the Court of Criminal Appeal this view was not adopted. Their Honours appreciated, correctly in our respectful opinion, the necessity to identify the relevant period of questioning. Thus, Marks J said ((20) (1993) 1 VR 649 at 653.):

"If it is necessary to say whether the confession or confessions contained in it emerged from a questioning which was separate and distinct from the prior unrecorded questioning it may with confidence be said that it undoubtedly did."

However, the criteria to which their Honours referred in identifying the period of questioning warrant consideration. Marks J said ((21)
ibid. at 653-654.):

"once it is accepted that 'questioning' in that sub-section (s.464H(1)(d)) is not co-terminus with the total 'questioning' in the permitted period, the 'questioning' meant in (d) can only be sensibly identified to be that which is relevant to the production of, or at least temporally related to, the making of the confession or admission. In a particular case there may be an issue of fact whether such circumstances have been established. In other words, there may be an issue whether the recorded questioning is only part of other unrecorded questioning which is in some relevant way connected. But no such issue can sensibly be said to have arisen here. The record admitted in evidence was that of a discrete questioning properly to be considered to have a logical entirety, comprising as it did some 600 or more questions, answers to which contained a full confession and pertinent admissions. The questions included full opportunity being accorded to the applicant to qualify or explain damaging answers."

(Emphasis added.) As to the passage first italicized, if his Honour adopts as a criterion a causal relationship between the questions asked and the confession, the criterion is too restrictive to be used in ascertaining the full duration of the questioning. The criterion of temporal relationship does not assist in ascertaining the period of the relevant questioning: the difficult issue of fact to be addressed under s.464H(1)(d) is not so much whether a confession is made during a period of questioning but rather the period of questioning during which the relevant confession was made. And, as to the next passage italicized, it would not be right to conclude that a series of questions and answers is "discrete" merely because that series can be considered as a logical entirety. It is necessary to examine the questions and answers in the context of the antecedent or subsequent circumstances.

8. Southwell J said ((22) ibid. at 656.):

"The recorded interview ... does not appear to contain any questions which would not have been asked had there been no 'lead up' conversation. ... When one studies the contents of the 'lead up' conversation and that of the recorded interview, they are of a very different nature. That they were so regarded by the police is obvious from the fact that in the lead up conversation (probably) no caution was given, and no attempt made to go through the formal requirements of s.464H and s.464C, whereas those requirements were meticulously met in the recorded interview. Giving the words of the test posed by Toohey J their ordinary meaning, the recorded interview was not the 'same questioning' as the lead up conversation." (Emphasis

added.) With respect, the fact that the police did not go through formal requirements during the asking of some questions but did go through those requirements during the asking of other questions is of little, if any, significance. More telling - and tending to a conclusion opposite to that at which his Honour arrived - is the characterization of the earlier stage as a "lead up conversation". Clearly enough, if the information given by the applicant in the first conversation was given in response to questions asked by Steendam, those questions focused on the principal matters to which the later questions were directed. The "lead-up" conversation thus led into the tape-recorded questioning and might have been regarded as a part of the whole relevant questioning.

9. Harper J said ((23) ibid. at 663.):

" Although ... the applicant had earlier provided Steendam with 'much more than a bare outline of what had happened earlier that night', the questioning recorded on tape was self-contained. It covered all the events surrounding the commission of the crime. One need not refer to extraneous material in order to understand it. It contains no suggestion that by earlier, unrecorded, actions the investigating police had done anything which might render the confession involuntary or unfair. When placed in proper context against the evidence of the earlier interview which was not tape-recorded, it will be seen that the tape-recorded questioning neither gains anything nor loses anything by reason of the earlier interview."

(Emphasis added.) The fact that tape-recorded questions and answers are self-explanatory or self-contained is not conclusive to show that that questioning is separate from other questioning. Perhaps Harper J was concerned merely to examine the questioning during the taped record of interview in the context of the earlier interview: that would be an appropriate approach. But his Honour's further reference to "gaining or losing" suggests that he found the interviews to be separate because the questions in the latter interview were not framed by reference to what had been said in the prior interview. If that was his Honour's approach, it was in error.

10. When there is a series of questions, including questions and answers that have been tape-recorded, and the confession is made during the tape-recorded questioning, the whole series of questions must be considered. By reference to the whole series, the court
ascertains whether, as a matter of objective fact in all the circumstances - including time, place, content and the participating persons - the tape-recorded questioning and the questioning in the remainder of the series are part of the same questioning or are different questionings. When s.464H(1)(d) is applicable, evidence of a confession made by a suspect during questioning is admissible only if it is made during a questioning the whole of which has been tape-recorded. When s.464H(1)(d) is applicable and an investigating
official has questioned a suspect in order to determine the involvement of the suspect in the relevant offence, but has failed to tape-record some of those questions, a confession made during questioning that is tape-recorded is not admissible if the questions which were not tape-recorded were part of the same questioning - unless, of course, the court exercises its "exceptional circumstances" discretion under s.464H(2).

11. The self-explanatory or self-contained nature of a particular series of questions and answers or the fact that particular questions produced the confession is insufficient to establish that the questioning in that series or the productive questions constituted
a separate questioning. It may be that what was asked in a tape-recorded interrogation that was separated in time or place from an earlier series of questions was not affected by answers given during the earlier series, but that is not an exhaustive test to disprove the proposition that the earlier and later questions were part of the same questioning. The separation of time and place and the subject matter of the questions asked are material to determining whether the questioning in the tape-recorded interrogation and the earlier series of questions are part of the same questioning.

12. It may be that, if the Court of Criminal Appeal had had regard to the questions asked in the "lead up conversation", though they were temporally separated from the subsequent tape-recorded questioning by some brief enquiries, that Court may have concluded that the entirety of the questions asked were properly to be treated as the same questioning. Although this Court could decide the issue, it is preferable that the analysis of the facts be left to the Court of Criminal Appeal. That Court will dispose of the appeal in accordance with the judgment of this Court.

13. We would grant special leave to appeal to this Court, allow that appeal, set aside the judgment of the Court of Criminal Appeal and remit the matter to that Court to proceed therein in accordance with
the judgment of this Court.

TOOHEY J The circumstances giving rise to this application for special leave to appeal and the text of the relevant legislation appear in other judgments.

2. The point at issue is the admissibility into evidence of a
tape-recorded interview made at the Dandenong Police Station containing "a confession or admission" by the applicant within s.464H(1) of the Crimes Act 1958 (Vict.) ("the Act"). The applicant challenged the reception of the tape-recording on the ground that he had made earlier statements at the police station which were not tape-recorded and that in consequence s.464H(1)(d) operated to render inadmissible the tape-recorded interview.

3. A confession or admission made by a suspect during questioning which was tape-recorded is not rendered inadmissible merely because of earlier questioning which was not so recorded. As was accepted by the majority in Pollard v. The Queen ((24) (1992) 176 CLR 177 at 183 per Mason CJ, 197-198 per Deane J, 219 per Toohey J, 226-227 per McHugh J), there may be more than one "questioning" of a suspect for the purposes of s.464H(1)(d) of the Act.

4. In his judgment in the Court of Criminal Appeal ((25) Reg. v.
Heatherington (1993) 1 VR 649 at 652.), Marks J said:

" The issue in this appeal concerns an aspect of s.464H which was not decided by this court in Pollard v. R. ... nor by the High Court on appeal."

The aspect to which his Honour referred was questioning of a suspect on more than one occasion at the same place. However, within the views of the majority in Pollard in this Court may be found an approach to the legislation which enables a decision to be reached in cases such as the present when the questioning was at the same place. Pollard recognises that the questioning of a suspect may take place on more than one occasion and at more than one place. The Crown cannot determine the admissibility of questioning on a particular occasion and at a particular place by refraining from adducing evidence as to the questioning of the suspect on another occasion or at another place. If that other questioning is fairly to be regarded as part of the questioning under challenge, s.464H(1)(d) requires that the whole of the questioning be tape-recorded ((26) s.464(2) defines "tape-recording" to include "audio recording and video recording".) for any part to be admissible, assuming of course that tape recording facilities were available at each place. In other words, nothing in par.(d) requires, as a matter of law, that any confession or admission made by a person in custody which is tape-recorded is inadmissible unless all answers made by the suspect to all questions asked at any time and at any place are tape-recorded in accordance with the Act.

5. The Act has its difficulties as Pollard made clear. But, again as Pollard made clear, while the policy underlying the Act was that universal tape-recording of interviews with suspects would have substantial benefits for the administration of justice, the Act does not provide for universal tape-recording. Its scheme is to make a confession or admission inadmissible in evidence unless certain requirements are complied with ((27) Pollard (1992) 176 CLR at 180-181.).

6. It is well accepted that the tape-recording of police interviews has done much to reduce the occasion for a lengthy voir dire which often takes place when a record of interview is challenged. In Pollard I said ((28) ibid. at 219.) that "a trial judge should be astute to ensure that investigating officials do not try to avoid the operation of s.464H(1) by fragmenting their questioning, as to both time and place". At the same time the operation of the Act would be seriously affected if any question asked of a suspect, whenever and wherever asked and however casual and even if in response to some remark initiated by the suspect, should lead inevitably to the exclusion of a later record of interview tape-recorded in accordance
with the Act. It is true that par.(d) requires not only the questioning but "anything said by the person questioned" to be tape-recorded. But the paragraph is concerned with a confession or admission made "during questioning" and the reference to "anything said" must mean during questioning otherwise every remark volunteered by a suspect, if not tape-recorded, would render a confession or admission inadmissible.

7. Focusing on par.(d) of s.464H(1), for it governs the situation with which we are presently concerned, the issue is whether any confession or admission made by the applicant during the interview which was tape-recorded was made during questioning which in truth was the same questioning as took place earlier at the same place. That much is implied in the judgment of Mason CJ, Deane J and myself in Pollard and it is not at odds with what was said by McHugh J ((29)
ibid. at 183, 197-198, 219 and 227 respectively.)

8. The issue is very much one of fact. A decision on such a matter made by a trial judge is one with which an appellate court would not ordinarily interfere unless the trial judge had misunderstood the legislation or had applied a test which was inconsistent with the legislation. Certainly the trial judge here was in error when he said that the intention of s.464H of the Act is that "whatever was tape-recorded was admissible, unless there was a basis for not admitting it on the grounds of unfairness, involuntariness etc." That is not the approach which s.464H(1)(d) requires. There are passages in the judgments of the Court of Criminal Appeal which were criticised by counsel for the applicant. But those passages must be read in context and it is the entirety of the approach taken below with which this Court is concerned in determining whether special leave to appeal is granted.

9. The applicant was taken into custody on the evening of 30 August 1990. At 10.35 p.m. Detective Senior Constable Steendam spoke to the applicant in an interview room at the police station. Two other police officers were present. The conversation, it appears, lasted about five minutes. Detective Steendam asked some questions and as a consequence the applicant gave details which, the trial judge found, provided "much more than a bare outline of what had happened earlier that night". One of the police officers remained with the applicant while Detective Steendam and the other officer made inquiries
elsewhere over the next 40 minutes. There followed, with the three officers present, a formal interview lasting nearly two hours which was tape-recorded and during which the applicant described in detail how he attacked the deceased.

10. The members of the Court of Criminal Appeal regarded as important considerations that the tape-recorded interview was "a discrete questioning properly to be considered to have a logical entirety" ((30) Heatherington (1993) 1 VR at 654 per Marks J); that the "lead up" conversation was of "a very different nature" to the recorded interview ((31) ibid. at 656 per Southwell J); and that the

tape-recorded interview was "self-contained" and required no "extraneous material in order to understand it" ((32) ibid. at 663 per Harper J).

11. In my view, while none of these considerations was conclusive of itself, each reflects an approach which is in conformity with the requirements of s.464H(1)(d) of the Act. None of their Honours lost sight of the fact that, in the end, the issue was whether the earlier questioning was part of the questioning that was tape-recorded. It was necessary to look at the content of the earlier conversation as well as the time interval. If, for instance, the tape-recorded questioning picked up statements that had been made earlier by the applicant and built on them, it would be hard to conclude otherwise than that it was the same questioning. On the other hand, the absence of any reference to what had been said earlier is not conclusive against a finding that it was the same questioning. It would be all too easy for an investigating official to obtain answers at an interview which was not tape-recorded, then, without direct reference to those answers, use them as the basis for further questioning. But these considerations simply point up that the trial judge (and in this case the Court of Criminal Appeal) has to make an assessment in the light of all the relevant circumstances.

12. A decision as to the admissibility of a confession or admission made by the applicant essentially involved a question of fact. Furthermore, "Questions of degree are necessarily involved" ((33) Pollard (1992) 176 CLR at 219.). In making that decision, the Court of Criminal Appeal has not been shown to have misapprehended the legislation or to have erred in the approach which they took. I would refuse the application for special leave to appeal.