Heatherington v The Queen

[1994] HCATrans 195

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M95 of 1993

B e t w e e n -

DAVID PIRI HEATHERINGTON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

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

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 FEBRUARY 1994, AT 10.15 AM

Copyright in the High Court of Australia

Heatherington 1 8/2/94

MR M.S. WEINBERG, QC:  If the Court pleases, in this matter

I appear together with my learned friend,

MR P.A. COGHLAN, on behalf of the applicant.

(instructed by A.I Crockett, Director of Legal Aid

(Victoria))

MR C.N. JESSUP, QC:  If the Court pleases, I appear with my

learned friend, MS K.E. JUDD, for the respondent.

(instructed by J.M. Buckley, Solicitor to the

Director of Public Prosecutions (Victoria))

MASON CJ: Yes. Mr Weinberg.

MR WEINBERG:  If the Court pleases, the applicant contends

that the decison of this Court in Pollard v Reg did
decide that there is no obligation on the part of
the police to tape record every question asked and
every answer given from the time questioning
commenced within the meaning of section 464A(2) of
the Crimes Act of Victoria. The applicant further

contends that Pollard's case did decide that the

word "questioning" in section 464H(l) did not have

the same meaning as the word "questioning" in

section 464A(2) and section 464A(3).

The applicant contends that Pollard did decide

that there should be rejected the suggestion that

if a question be asked by the police of a suspect,
which is not recorded, it follows automatically
that all questions and answers which are recorded
are inadmissible, and the applicant contends
fourthly that Pollard did decide that it was
possible to have periods of questioning, that the

period of questioning referred to in

section 464A(l) may be made up of separate periods

of questioning and that there may be separate

questionings for the purpose of section 464H(l),

subject to time, place and other factors.

Those matters, we contend, were in effect

up, what can be described as, a notional majority	decided by the four members of the Court who made
of the Court. What Pollard did not decide, in our
respectful submission, was whether those separate
questions could occur if the entire process of questioning occurred at one place, over a
relatively short period of time, involving the one
investigating official questioning the one suspect
in order to determine his involvement, if any, in
the offence.
In other words, we say, as did the Court of Criminal Appeal, that Pollard left open one very
vexed question which has perennially troubled the
criminal law, and that is how to deal adequately with the problem of what has been called, over the

Heatherington 2 8/2/94

years, the lead-up interview, the lead-up
questioning, in this case described as dry run
questioning, and in this case euphemistically

described by the police as the informal interview,

as distinct from the formal interview which was

recorded.

That perennial problem was, in the past,

before compulsory tape recording was introduced,

that we had a lead-up interview which was, of

course, not recorded. We then had a formal

interview, and it was the requirement in Victoria

and in other places that the so-called formal

interview at least be read back so that you had a

read back and, therefore, some evidence of what was

actually said during the course of the so-called

formal interview, and then there was often a

debate - - -

DAWSON J:  The read back being taped?

MR WEINBERG:  The read back was taped, yes, Your Honour. So

that you at least had a tape recording of the read

back. That was the practice in Victoria before
these provisions were introduced, and you then had
the problem, which arose in many cases, of the
admissions being contained in the lead-up

interview, and a debate about what was said at the

so-called verbal appearing, not in the read back

which was tape recorded, but in the lead-up

interview.

That problem has been resolved to the extent

that the law now makes it plain that save for

exceptional circumstances, the lead-up which is

unrecorded cannot be introduced into evidence. But

it does not begin to attack or address the problem

of lead-up interviews. The reason that it does not

do so is because, although one no longer has the

problem of a verbal in the lead-up, one does have

three new problems.

These are the fact that by conducting a

lead-up interview in the knowledge that the police

are not going to seek to tender in evidence what

was said in that lead-up interview, the police have
what is described as a dry run. They gain the

advantage of knowing what the suspect will say in

answer to questions about the offence and can

therefore use that information when questioning the

suspect in what they call the formal interview.

DAWSON J: It is more than that, is it not? They can place

pressure on him.

MR WEINBERG:  Indeed, Your Honour. We do not know what was

said in the lead-up; it is not recorded. We do not

Heatherington 8/2/94

know what pressure, what inducements, what

allegations can be made about what occurred during

that lead-up. We do not know whether it was the

product of cross-examination, for example, which is

an improper method of interrogating or questioning

an accused person. That is the second problem that

is not attacked.

The third problem that is not attacked is what

is called in the United States the "cat out of the

bag" syndrome; that is, that the accused, having

made admissions during the course of the lead-up,

is then unaware of the fact that what he has said

in the lead-up is not admissible against him

because it is not recorded and therefore is

inclined presumptively, say at least three members

of the United States Supreme Court, to repeat the

admissions that were made just shortly before the

formal interview commences.

In this case those problems associated with the lead-up as it applies under section 464H(l)

were compounded by the fact that there were

breaches of section 464C of the Crimes Ace as well

in that the accused was not informed of his

statutory rights to contact a friend or relative

and was not informed of his statutory right to
contact a lawyer before the commencement of the
questioning, which is of course a mandatory
requirement under section 464C. We say on the
material the questioning which occurred in the
lead-up was not deferred for a reasonable time to

enable those rights to be exercised.

So there are aggravating circumstances in this

case above and beyond even our argument that lead-

up interviews conducted at the one place, one

police officer, one suspect, same subject-matter,

ought to be recorded and if they are not recorded

then we say the so-called formal interview

conducted shortly thereafter should be inadmissible

and we say that is the proper construction of

section 464H.

TOOHEY J: What troubles me, Mr Weinberg, is that the use of

the expression, "lead-up interview", in a sense

tends to beg the question, and in the absence of

knowledge as to what took place during the lead-up

interview it is very difficult to make a judgment unless one is going to exclude all questioning of

any sort that took place prior to questions and

answers being recorded.

MR WEINBERG: Well, they are excluded by the statute itself.

464H excludes all questions and all answers	given
prior to the commencement of the recording.	They
are inadmissible - - -

Heatherington 4 8/2/94

TOOHEY J: I appreciate that. Perhaps I put it badly.

Unless one excludes even the recorded material, so

long as there is some prior questioning which you
describe as a lead-up interview but which might
take the form, I suppose, of a volunteered

statement by the applicant - - -

MR WEINBERG:	If it is a volunteered statement it is not questioning, Your Honour. That is the first point.
Secondly, it is not every question which is asked
which gives rise to our submission that if there is
questioning in the form of a lead-up interview
which is not recorded it should then follow that
the subsequent recorded interview is not admitted.

There are questions asked by the police from

time to time in the course of interviewing suspects

which have nothing to do with determining whether

the suspect was involved in the commission of an

offence. "Do you want a cup of tea?", "Are you

feeling well?", et cetera. Those questions, we say, are not questions asked for the purpose of determining the involvement of the suspect in the

offence.

That was not the submission that was put before this Court in Pollard's case. In Pollard's

case a more ambitious submission was put which was

that all questioning by the police of a suspect

from the moment of the commencement of questioning

within the same terms as section 464A(2) carried

over and had the effect that any subsequent

recorded conversation had to be excluded.

That found favour, we say, with three members

of the Court.	It did not find favour with four
members of the Court.	The submission that is

advanced here is one variant of the submission that

was advanced before the trial judge in this case,

namely that the questioning which is attracted by

section 464H in its exclusionary operation is

questioning of a suspect in order to determine the

involvement of the suspect in the offence.

We say when that questioning takes place at

one place, one time, one investigating official,

one suspect, when that occurs, if the lead-up
interview, as I call it, or the preliminary
questioning or the informal questioning is not tape
recorded, if the police have chosen deliberately,
as they did in this case, not to switch on the
recorder, though they were asking questions about
this offence, the consequence based upon the
statute is that, when they thereafter do switch on

the recorder, what occurs thereafter is, by the

statute, upon its proper construction,

inadmissible.

Heatherington 8/2/94

TOOHEY J: It follows then, does it, that your description

or your use of the term "lead-up interview" refers

to any questioning aimed at determining the

involvement of the accused and the offence with

which he is charged?

MR WEINBERG:  It does, Your Honour, and it is used in that

sense. I was separating that from questions of

another kind, of a kind that I indicated, "Would

you like a cup of tea?". We do not say that every

question that is asked of a suspect whilst he is in
custody at a place where tape-recording facilities

are available must be recorded with the consequence

that if there is one question, which is not of the

kind that I am describing, asked and not recorded,

everything else goes out.	We do not put that
broader argument.

DAWSON J: It is a curious aspect of that submission, as I

understand it, that the if lead-up interview takes

place in a different place or is conducted by a

different person, that is all right.

MR WEINBERG: 

It is a curious aspect of that submission that

that is so. It does not trouble us for the purpose
of this application.

DAWSON J: 

No, but it might trouble you in other cases.

MR WEINBERG:  But could we say this, Your Honour: in a

sense that is what Pollard decided, in a sense.

The four members of the Court who were dealing with

the position in Pollard - and the Court will recall that in Pollard the lead-up conversation took place at the Frankston police station, whereas here it

took place at the same police station - the lead-up

conversation in Pollard took place, I think,

something of the order of about two or three hours

or some period, prior to the commencement of the

formal record of interview.

In the judgments of Your Honour Justice McHugh

and Your Honour Justice Deane we see much to

commend the proposition that Your Honours were in

that particular situation greatly influenced by the

fact that we were talking about two separate

places.

DAWSON J: But it is an odd circumstance that that should be

so. I mean, the police, if they were wishing to do

so, could easily overcome the effect of your

submissions if accepted - - -

MR WEINBERG:  It might be, Your Honour, that the only way

to - - -

Heatherington 6 8/2/94

DAWSON J:  - - - by just.conducting the interview at two

places or by different people. I know you are not

concerned to argue that, but really, it does lead

you to ask the question which no doubt we all asked

in Pollard: what is the underlying objective of

the legislation?

MR WEINBERG:  Your Honour, we would like to be able to say

that Your Honour was correct in Pollard, and that
the rationale of what the three members of the

Court who decided as they did was absolutely

correct, and the consequence of that would be that

Mr Heatherington should succeed as well.

DAWSON J: But you cannot say that.

MR WEINBERG:	We cannot say that.
DAWSON J:	So what do you say?

MR WEINBERG:  So we say something less than that. We say

that at least -

DAWSON J: But that does not say what the objective of the

Act is. What is it?

MR WEINBERG: Well, the objective of the Act, in our

submission, is that when the police have a person

at a place where tape recording facilities are

available and they are going to question him about

the commission of the offence, they should switch

on the tape recorder. If they do not switch on the

tape recorder, they should know that the

consequence will be that if they thereafter switch

on the tape recorder they will not get the answers

to their questions into evidence. The object of

the Act is to prevent disputes about what occurred,

what occurred before what is recorded what

occurred, to shorten trials, to protect the police

from false allegations of impropriety. They are

all the objects of the Act.

DAWSON J: Certainly it does not solve disputes about what

occurred before the tape recorder is switched on?

MR WEINBERG: Well, it does to this extent, Your Honour,

that the earlier the tape recorder is switched on,

and the more that is recorded, and particularly if

it is video-recorded, the less room there is for

such disputes. In this case there was a 140 page

voir dire which extended over a period of in excess

of a day in which four witnesses were called, three

of them called on two occasions. That is not, in

our submission, what section 464H set out to

achieve or to do.

DAWSON J: It set out to achieve the opposite.

Heatherington	7	8/2/94
MR WEINBERG:	It set out to achieve the opposite. reason that that occurred was because the police found it inconvenient to press the switch on a tape recorder which was sitting in the very room, at	The

their fingers, before they began deliberately

questioning this suspect about the commission of
this offence, and in order to save ten cents worth

of tape or in order to save the inconvenience of

switching on a tape recorder which was there and

available, we find ourselves with an appeal to the

Court of Criminal Appeal and an application to this

Court.

We found the Court of Criminal Appeal saying

if the kinds of arguments that we are presently

putting forward were to be accepted, it would be

inconvenient, it would be inflexible, there would

some kind of problem which we cannot assume the

legislature intended to create. We, with respect,

challenge that assertion.	We challenge that
assumption fundamentally.	It may be true that if

the wider proposition were put that every question

asked had to be tape recorded and, if it were not,

everything thereafter recorded goes out, one could
find some force in that argument of expense,
inconvenience, possibility of misuse, but when the

proposition is predicated in the way that we put it

now in this Court, and the way in which it was put

to the trial judge, that what we say 464H
contemplates is that before you question the

suspect about the offence, before you set out to do

that, you switch the machine on if you are at a

place where recording facilities are available, we
say those arguments have no force whatever. They

are not compelling, and they should be rejected by

this Court.

MASON CJ: The proposition you put forward is a purposive

proposition. It focuses on what was the object of

the question; what is it aimed at.

MR WEINBERG: Yes, Your Honour.

MASON CJ:  That strikes me as curious in one sense. I

would have thought myself it would be more

understandable if your proposition was focused in

relation to the relationship between the question

and the involvement of the suspect in the offence.

MR WEINBERG:  Your Honour, we have gone for purpose because,

in fact, the statute has purpose certainly in

464A(2). If I can invite the Court to look at

464A(2)(b) of the Act, the Court will see that

embedded in that paragraph is purpose, and we have

used exactly the words that appear therein.

Section 464A(2) provides:

Heatherington 8 8/2/94

If a person suspected of having committed an

offence is in custody for that offence, an

investigating official may, within the

reasonable time referred to in

subsection (1) .....

(b) question the person -

which are the words we focus upon. Ignore the next

few words -

in order to determine the involvement (if any)

of the person in that offence.

Now, this Court held that there is not an identical

meaning to be ascribed to the word "questioning" in

464H(l), to that which appears in section 464A(2),

and we accept that that is so, but when one

construes the word "questioning" in the context of

section 464H(l), we submit that one must look at

the context in which that word appears and one must

examine the purpose or rationale - the evident

purpose or rationale of that section. What was it

designed to achieve? What is the ordinary meaning

to be given to the word, "questioning", there? We

say the ordinary meaning to be given to the word

"questioning" in section 464 is questioning about

the offence.

Your Honour says that may be little different to the purposive gloss that we have placed upon it.

For the purpose of this application it does not

matter, because this was either questioning in
order to determine involvement as to the commission
of the offence, or it was questioning about the

offence, and we say it matters not, although the

Court ultimately accepts that special leave should

be granted or writes a judgment in this matter,

plainly that is a matter that would need to be

addressed, but for the purpose of our application

it matters not.

TOOHEY J:  Mr Weinberg, if the police have no particular

reason subjectively or objectively to suspect the

involvement of a person in the commission of an

offence and they are carrying out some sort of

routine inquiry and questioning in the course of

which it starts to appear that the person may have

been involved, how do you then apply section 464H?

Does the questioning have to stop at that point?

MR WEINBERG:	You do not, Your Honour, because (l)(a) and (b) solve the problem. 464H(l)(a) says that H only
comes into operation if the person "was suspected"
or "ought reasonably to have been suspected".

Heatherington 9 8/2/94

TOOHEY J: Yes, I appreciate that, but you may have a time

of questioning in the course of which the suspicion

develops.

MR WEINBERG:  And once it does or once the person ought

reasonably to have been suspected and you then
propose to question the suspect. Given that those
preconditions now exist, the obligation is to turn
the recorder on at that point. If you do not turn
the recorder on, then not only do you not get in
the rest of your unrecorded questioning, in our

submission you do not get in the formal interview

which follows shortly thereafter. It is an
obligation which rests upon the police to do no

more than historically what they were obliged to do

under the judges' rules, that is at a particular

point utter words of caution. In this case the

obligation is not to utter words of caution,

although that is separately required; it is to

switch on a tape recorder which is there and

available to be used.	We say what is wrong with
that?

Your Honours, that is an overview of what we

are going to say to the Court but we want to now
take the Court to a little bit of the history and

the way in which this matter has been dealt with,

because it is a little unusual. The trial was

conducted before Mr Justice Teague in the supreme
court and at the time that Mr Justice Teague ruled
upon the objection to the admissibility of the tape

recorded interview, he did not have the advantage

of the judgment of this Court. He did have the

decision of the Court of Criminal Appeal below
which of course was in some respects significantly

overturned by this Court thereafter, particularly

in relation to 464C.

What Mr Justice Teague held in the course of

his ruling appears in the application book. Might

I ask the Court to turn to the relevant pages which

are pages 85 and 86 of the application book.

Your Honours will see that at about line 23

His Honour said this:

The words of the statute are ambiguous.

They could be construed as establishing,

as a pre-requisite for admitting any part of

what was tape-recorded, that every part of
what was said by the person questioned -

that is the wider proposition which was advanced

before this Court in Pollard, unsuccessfully.	Then
Your Honours will note words in brackets:

Heatherington 10 8/2/94

(or at least every part of what was said in

response to questioning to determine his

involvement in the commission of an offence) -

that is the narrower proposition which is advanced

in this Court

and that failure to do so means that anything

which is tape-recorded is not admissible.

But they could also be construed on the

basis that what is to be excluded is only

those parts of what was said that were not
tape-recorded, as to which s 464H(2) may be

invoked.

I am satisfied that, when all of the

provisions of the 1988 amendments are read
together, the preferable construction is that

what was intended was that whatever was not

tape-recorded was not admissible unless exceptional circumstances warranted its

admission, but that whatever was tape-recorded

was admissible, unless there was a basis for

not admitting it on the grounds of unfairness,
involuntariness etc.

Now, it is our submission that particularly

that last sentence would command the support of no
member of this Court and is directly at odds with
the decision of every member of this Court in
Pollard. If that proposition be correct then what

His Honour is, in effect, saying is that where you have recorded questions and answers, they go into evidence, and those which are not recorded do not

go into evidence, and that is the way in which one

effectively deals with section 464H. That, with respect, cannot be the construction of 464H. It

simply cannot be. If that was so -

BRENNAN J:  Does it matter for this purpose? We are

concerned with the Court of Appeal, are we not?

MR WEINBERG:  We are, Your Honour, and I am going to move to

the Court of Appeal immediately, but I simply wish
to make the point that at the trial level - because

I want to submit that, at least, in the Court of

Appeal it can be discerned that two members of the

Court of Appeal have, as one of their bases for

judgment, in effect, adopted exactly that approach,

although they do have an alternative basis which is

much closer to the reasoning put forward by

Your Honour Justice Toohey in the case of Pollard,
and to a significant degree supported by

Your Honour the Chief Justice in that case. So,

that is the passage that sets out His Honour's

Heatherington 11 8/2/94

preferred construction of section 464H, without the

benefit of the judgment of this Court.

If I can then take the Court to the Court of

Criminal Appeal itself.	We have put in our list of
authorities the reported judgment.	I hope the

Court has that. It is Reg v Heatherington,

(1993) 1 VR 649.	If we could work from that rather
than from the application book.	The Court of

Criminal Appeal comprised Their Honours

Justices Marks, Southwell and Harper, and after setting out facts and background at page 650 and at page 651 - including findings made by the trial

judge which, for these purposes, are usefully set

out at the top of page 651:

The application was based on the admitted fact

that before the recorded interview there was a
discussion between the police and the
applicant in which he answered a number of

questions.

That is a finding that His Honour made.

Your Honours will find that finding in the

ruling of the learned trial judge. At page 82 of the application book that is set out at line 3 of

His Honour's ruling. The finding therefore was

that the notes which are set out in the application

book, and perhaps I can take the Court to those, as

well at this time - the notes made by Mr Steendam

appear at pages 6 and 7 of the application book,

and Your Honours will see in the left-hand column

the figure 10.35, and the evidence was that that
was the time at which these part of the notes, or
these part of the conversations occurred.

Your Honours will see that Mr Heatherington, the applicant, states his full name, his status,

occupation is recorded, something of his age,

background, address, something about the lodger,

Mr Eddie Simpson, who was the deceased, something

about his mother, her telephone number. Then it

moves into a short but, we say, quite significant

and substantial account of the events that occurred

on the evening in question and somebody has counted the words as being about 200 words on that subject.

It sets out what had occurred. It goes down to

about line 20 on page 7 and they are the essential

incidents involving the commission of the offence

and they contain certain damaging admissions and

then one moves to 11.20 which is when the so-called

formal record of interview occurs and the machine

is actually switched on.

His Honour found as a fact that what appeared

in those notes was the product of questioning and

Heatherington 12 8/2/94

questioning about the subject-matter of the

offence. At a slightly later point in the argument

I will be handing to the Court a couple of pages of

the actual voir dire debate between His Honour and the Crown in which His Honour debated or discussed with the Crown what finding of fact he should make on that issue of whether there was questioning.

It became an issue because both Mr Steendam and the other police officer who was involved in the questioning, Mr Ziemann, denied on oath that

there had been any questioning at all designed to

produce these sorts of answers. They said, in

effect, that the applicant had simply gushed forth, blurted out, this story in a continuous stream and

they had simply taken notes. There was no

questioning at all which had produced that

information which appears in those notes. However,

a third police officer who was present,

Senior Constable Watson, said in effect that there

had been questions and answers. The accused had

answered responsively questions about the

commission of the offence, and the accused gave
evidence and said this had been a question and

answer session.

His Honour then invited the Crown to make

submissions to him as to how he should deal with

the conflict in the evidence and the Crown said, in
effect, it was proper for His Honour to accept the

version given by Miss Watson and the accused on the

basis that that was a more favourable version so

far as the accused was concerned. His Honour was,

in any event, we say, disposed to that view and His

Honour made that finding of fact. These were

questions. What is contained here was not the

product of a blurted out, long statement by the

applicant. It was responsive to questions that

were asked. That is the finding and that is the

finding upon which the Court of Criminal Appeal

proceeded.

So we start with the fact that we have these

questions and they are asked by Steendam and there
enough questions to lead to the accused provided
much more than a bare outline of what happened
earlier that night as they plainly as, in our

respectful submission.

Then, in Mr Justice Marks' judgment,

His Honour turns to section 464H. He deals with

that at page 652, and he says this at line 10:

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.

Heatherington 13 8/2/94

Nevertheless, some distance towards a

resolution of the problem was travelled in

Pollard which raised for determination the interpretation of s 464H for the purposes of

that case.

His Honour then went on later on that page to

state, about four lines from the bottom that:

Pollard, for example, is authority that the

"questioning" permitted under s 464A(2) and

referred to as such under s 464A(3) is not

co-terminus with the "questioning" referred to

in s 4 6 4 H ( 1 ) ( d) •

That is a submission we accept if coterminus means

identical. We accept that it does not have and

does not carry the identical meaning. But it is a

far cry, in our submission, from saying that it

does not have the identical meaning to saying that

the word "questioning" in 464H(l)(d) includes, for

the purpose of the analysis of that section any

question asked at all such as, "Would you like a

cup of tea?". We say it does not carry that

meaning. It carries the meaning: questioning

about the offence or questioning to determine the

suspect's involvement in the offence. It carries

that as a matter of ordinary construction.

His Honour then, at the next page, 653 line 5, noted that there were what His Honour described as:

dicta of some members of the High Court
majority in Pollard which suggest that

nevertheless the questioning to which

s 464H(l)(d) relates must be either all of it

which occurred at "a place" or all of it which

has a sufficient integrity or separateness

from other questioning. However I do not

understand that the ratio of the majority in

Pollard includes any determination or opinion

only all the questions and responses must be	that where "questioning" occurs at one place	recorded as a precondition of admissibility of
a fully recorded confession.

Part of the problem with this judgment in the Court

of Criminal Appeal is that it is never clear what

the members of the court mean when they refer to

"questioning". It is never clear whether they have

in mind the broader proposition of questioning

which is every question asked and every answer

given or whether they have in mind the narrower

meaning of the word "questioning" which is

questioning about the offence. Many of the

propositions that the Court of Criminal Appeal

adumbrates can be readily accepted if they are, in

Heatherington 14 8/2/94

fact, using the term "questioning" in its wider

sense rather than its narrower sense. But we say

that point is just never made clear. His Honour

then went on to say that there are dicta - - -

BRENNAN J:  But they must be using it in the narrower sense,

must they not, because they are focusing on

something which, in the circumstances of this case,

was material questioning?

MR WEINBERG:  No, Your Honour. I will take Your Honour to

passages in the judgment of Mr Justice Marks which

indicate plainly that His Honour was dealing with

it in the wider sense, at least, in those passages.

I will come to that in just a moment if Your Honour

will bear with me.

His Honour then went on to say:

There are dicta, if anything to the

contrary.

His Honour referred to the passages in the judgment

of Your Honour the Chief Justice at page 388. That

reference is not to the Commonwealth Law Report of

the case because it was not then reported in the

Commonwealth Law Reports.	The passage in question
reads:

I acknowledge that the interpretation which I

have given to s 464H(l) 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.

His Honour took that passage and said Your Honour

the learned Chief Justice had in Pollard expressly

contemplated that lead-up interviews could be

conducted at the one place, not recorded, then a

formal interview conducted which is recorded and

the consequence is not that the later interview is

inadmissible.

We say that is not a fair interpretation of

which Your Honour actually said in context and we

will come to Your Honour's judgment in just a

little while. The passage in question is actually

at page 183 of the Commonwealth Law Reports.

His Honour then went on to say:

It must be conceded however that it is unclear

whether the Chief Justice merely had in mind

that the preceding unrecorded interrogation

must occur at another "place".

Heatherington 15 8/2/94

The reason His Honour said that - if we may now

take the Court to the judgment of this Court in

Pollard v Reg, 176 CLR 177 - is simply this:

His Honour noted that Your Honour the Chief Justice

at page 183, after having dealt with the

construction point in what might be regarded as

general terms, then went on to say:

The one question so far not clearly

resolved in my mind is whether par (d) is

capable of being read as a requirement that,

where confessions are made at two places at
which the requisite facilities are available,
the interrogation at both places must be
tape-recorded if the later confession is to be

admissible.

It was Your Honour's attention to the problem of

two places, after having dealt with the general

argument of construction which, in our submission,

caused His Honour Mr Justice Marks to have doubts

about whether Your Honour in context was addressing

Your Honour's observations about the construction

of section 464H to a two place scenario and that
everything that Your Honour said, including the

observation about earlier unreported conversations,

contemplated what was in fact the position in

Pollard, namely the earlier unrecorded conversation occurred at another place.

We may or may not be right about that and

Mr Justice Marks may or may not be right about that

but the fact of the matter is that Your Honour did

go on to deal with the two place argument which, if

Your Honour had accepted the strongest version of

the argument that Mr Justice Marks endorses, and if

Your Honour had accepted that and taken that

construction as being the correct construction,

there would have been no need whatever for

Your Honour either to deal with the two places

argument or to say that the matter was not so far

clearly resolved in Your Honour's mind.

In our submission, the fact that Your Honour

went on to deal with that problem indicates that
Your Honour was in context concerned with the two

places problem. Your Honour, in fact, made that clear, in our submission, half-way down page 183

when Your Honour formulated the critical question

for decision in Pollard:

The critical question then is whether the applicant made separate confessions at

Frankston and at St Kilda Road or whether he

made one confession in the course of

questioning at both places. In my view, the

correct answer is that the applicant made two

Heatherington 16 8/2/94

confessions, each made at a different time and

place.

The question is: how important was the fact that

there were two places in Pollard to Your Honour's

reasoning? We endeavoured in Pollard to persuade

the Court through an argument that found no support

at all that place and places were interchangeable

as a matter of construction. Every member of the

Court that dealt with that particular argument

found that it was deficient, and accordingly, we

lost that particular point. We had to lose that

particular point unless the views of the minority

three members of the Court were accepted.

But there is a real problem, in our

submission, upon reading Pollard as to whether

Your Honour the Chief Justice can properly be taken

to have intended to confine Your Honour's remarks

to a two place scenario, or whether Your Honour

intended a broader construction which was

recognized by Mr Justice Marks.

Moving beyond Your Honour's judgment as one of

the four members of the notional majority, could we
pass over the views of the three members of the

Court from whom I can get very little comfort in

the course of this application except to say that

we wish that their view had prevailed, but it did

not.

So we move to the next member of the notional majority and that is Justice Deane, and

Justice Deane, at page 197 dealt with the matter

somewhat briefly, if we may say so with respect, in relation to 464H, because Your Honour's judgment on

that point occupies only some lines at the bottom

of 197 and the top of 198. Your Honour agreed with

Their Honours Brennan, Dawson and Gaudron to the extent to the word "questioning" or"investigation"

was to be -

encompass different periods of questioning or understood ..... as an entire process which may investigation at different places -

for the purpose of section 464C. We can understand

how Your Honour came to that conclusion because, of

course, there is a direct link between section 464C

and section 464A(2). The direct link is plain at

the beginning of section 464C.	The very first
words are:

Before any questioning or investigation under

section 464A(2) commences -

Heatherington 17 8/2/94

so the concept of questioning in 464A(2) is

directly transported by the statute itself into

section 464C, and every member of the Court found

that that was so for the purpose of section 464C.

But Your Honour then had to deal with the question

of whether that meaning could be similarly

transported when one dealt with section 464H, and

what Your Honour said on that question is:

Nonetheless, it appears to me that, in a case such as the present where questioning under

s 464A encompassed different periods of

questioning at different places -

and again, we do not know whether Your Honour was

using that expression "different places" there as

an integral part of Your Honour's reasoning, or

simply because those were the facts of Pollard -

the phrases "questioning at a place" and "the

questioning" ins 464H(d) and (e) must be
construed as referring not to the whole of the

overall questioning but to the particular

period of questioning in which the relevant

confession or admission was made. It follows

that I agree with Mason CJ, Toohey J and

McHugh J that the videotape at St Kilda Road

..... was not rendered inadmissible.

And that is all Your Honour said.

If one then turns to the third member of the notional majority - if I can say that without

disrespect to those four members of the Court -

Justice Toohey. Your Honour's judgment commences,

of course, in the Commonwealth Law Reports at

page 211, and Your Honour seemed to us to take a

somewhat different approach, whereby Your Honour

said that the problem should be attacked in this

way; one must look at the questions that were

asked, temporarily, obviously not identical in

time, because some are asked earlier and some are

asked later, and one must consider the relationship

between them, and if the relationship between them

is such that it is proper to described what has

occurred as the same questioning, or one process of

questioning - if one can put it that way - on the

facts of the particular case, then the failure to

record some of that questioning will lead to the

exclusion of the rest of that questioning.

If the relationship between the two

questionings - if I can put it that way - is such

that it is proper to describe them as separate and

distinct, and they are not related in a relevant

manner, then, Your Honour said, "The failure to

record part of that questioning, which is separate

Heatherington 18 8/2/94

distinct and discrete will not lead to the
exclusion of what is, in truth, separate and

distinct questioning thereafter". So that

Your Honour, if we understand Your Honour

correctly, approached the matter in that way, as

involving questions of fact, questions of degree,

and Your Honour postulated some tests to assist in

determining whether it was relevantly the same

questioning, and the main test that Your Honour

propounded, we say, was the test which, in effect,

appears at page 219 - there are two passages we

would draw the Court's attention to - about

half-way down the page, the last few lines of the

first main paragraph on page 219:

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.

And then, a little later on the page Your Honour

said this, a few lines from the bottom:

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(l), affected by what took place earlier?

It is not directly to the point that what took place earlier may itself not be adduced in

evidence.

So the test was whether the questioning which

occurred after the initial questioning was affected

by what took place earlier.

Your Honour did not in terms deal with the

two-places doctrine, and it seems to us, with

respect, that Your Honour really did not endorse

it. What Your Honour was looking to was a broader

question of the relationship between the two

questionings, whether they took place at one place

or two places, and approaching the matter in the

way that we have submitted Your Honour appears to

have done.

The difficulty is, of course, that Your Honour

Justice Deane did not approach the matter in that

way and nor, we say, did Justice McHugh.

His Honour Justice McHugh, in Your Honour's

judgment, when they take Your Honour as the fourth

member of the notional majority, Your Honour's

Heatherington 19 8/2/94

judgment on section 464H commences at 225, and the

passages in question appear at pages 226 to 228

inclusive.

Now, we say, as the Court of Criminal Appeal

correctly noted, there are some passages in

Your Honour's judgment which are of a more general

character and might be regarded as having general

application irrespective of whether or not what has

occurred has occurred over two places. But, there

are many other passages in Your Honour's judgment

which are plainly predicated upon the fact that we
are dealing with two places, and that is the end of

the argument on section 464H.

Those passages - firstly, at the bottom of

page 226 a general passage appears, about 10 lines

from the bottom:

Accordingly, s 464H permits the

admissions into evidence of a confession or admission if it was made during questioning

and was tape-recorded.

And then, the last two lines on the page, again a general passage:

However, contrary to the applicant's

contention, a tape-recorded interview does not

become inadmissible because no tape-recording

was made of earlier questioning which had been

conducted at a place where facilities were

available to conduct an interview.

Your Honour did not there differentiate "place" in

the sense of another place from what might be

regarded as the same place. So, that is a general

passage which could be regarded as supporting a

broader interpretation of Your Honour's judgment as
being against our submission.

On the other hand, if I can just read on from

that:

Both sub-s (l)(d) and sub-s (l)(e) of s 464H make a confession or admission admissible if it was "made during questioning" and the

questioning and anything said by the person
were tape-recorded at the place where the
questioning was conducted. Grammatically, the
words "the questioning" where they appear for

the second time in -

both those paragraphs -

refer to the "questioning at a place" etc

which appears earlier in those paragraphs.

Heatherington 20 8/2/94

The ordinary grammatical meaning of both

paragraphs is that a confession or admission

is admissible if it was made during
questioning and the questioning and anything

said by the person questioned at that place -

we emphasize the word "that" -

were tape-recorded. Accordingly, it is not a

condition of the admissibility of a confession

or admission under those paragraphs that any

earlier or later questioning of the person at

another place -

and we emphasize the words "at another place" -

must also have been tape-recorded if

facilities to conduct an interview were

available at that place. Moreover, it seems

unlikely that the legislature could have

intended that a tape-recorded confession or

admission made during questioning should

become inadmissible because some later stage

of the questioning at some other place -

and we emphasize the words "at some other place" - was not recorded. If that is so, there is no

reason to suppose that a confession or

admission, made during questioning at a

particular place, is inadmissible because some

earlier stage of the questioning at some other

place was not recorded.

Your Honour then dealt with the "place"

argument which we advanced in Pollard and

Your Honour rejected that resoundingly. Then

Your Honour went on to say about five lines from

the bottom of 227:

Section 464H(l)(d) is concerned with a confession or admission made during

questioning at a place where facilities were

available to conduct an interview. It is a

condition of the admissibility of a confession

or admission made at that place that the

questioning and anything said by the person in

custody were tape-recorded. To read the

paragraph as if the words "a place" included

"places" would introduce a new and different

category concerning the admissibility of
confessions and admissions.

So Your Honour is still focusing upon "a place" as distinct from "some other place", and we say using

that as a major part of Your Honour's reasoning in

relation to section 464H. Then if one goes on

Heatherington 21 8/2/94

throughout the rest of page 228, Your Honour will
find again that Your Honour used the words about a

third of the way down the page:

Even if the words "a place" include the

plural, the natural reading of the paragraph

on that hypothesis would be that the word

"questioning" where it secondly appears in

s 464H(l)(d) referred to questioning at the place where the confession or admission was

made -

again supporting our construction that Your Honour

was very much influenced in Your Honour's reasoning

on section 464H(l)(d) by the rejection of the

proposition that Pollard could ever have won

because it involved two places. We simply could

not have won Pollard if we failed on our plural

argument.

So we say it is very difficult to create a

real majority out of the four members of the Court

and if anyone were going to be adding people to

people, then we would say Your Honour

Justice McHugh could, from our point of view, be happily added to the three members of the Court who dissented, all of whom we say would have rejected the reasoning of the Court of Criminal Appeal and

of the trial judge on that aspect. We say that

Your Honour Justice Deane has left that question

very much open, although Your Honour did refer to

some other place. We say that Your Honour

Justice Toohey dealt with the matter on a different

basis. and plainly did not address the question of

place or other place.

We note that Your Honour the Chief Justice

commenced Your Honour's reasons for judgment by

saying, at the very beginning of Your Honour's

judgment at page 180:

Subject to the comments which follow, I

am in general agreement with the reasons given

by Toohey J for concluding thats 464H(l)(d)

of the Crimes Act 1958 (Viet) did not render
inadmissible the evidence of the videotaped

interview -

but that is subject to the comments which follow.

Of course, we have Your Honour at page 183

addressing the "two places" argument and saying

that was an issue that was still left open after

Your Honour had dealt with the construction point.

So we say that the Court of Criminal Appeal was absolutely correct to say that this Court in Pollard did not definitively resolve the question of construction which had to be resolved by both

Heatherington 22 8/2/94

the trial judge·and the Court of Criminal Appeal in

resolving this application.

If one then returns to Justice Marks having

gone through that excursus - - -

BRENNAN J: Just before you leave Pollard, if one looks at

464H(l)(d) is Pollard not an authority for the

proposition that the questioning which is referred

to in 464H(l)(d) may consist of questions which are

but some of the questions which are asked of a

suspect by an investigating officer?

MR WEINBERG:  During the course of investigating him for the

that extraneous questions fall within the ambit.

offence. In other words, they may some of the proposition

questions which are questions about the offence.

BRENNAN J:	No, some of the questions about an offence.
MR WEINBERG:	Yes, that is so, Your Honour.

BRENNAN J: Well now, if that is so, then the words, "at a

place where facilities were available to conduct an

interview", is to be construed as a phrase or

clause qualifying questioning?

MR WEINBERG:  Yes, Your Honour.

BRENNAN J: Well then, to determine any other question, any

other issue relating to questioning, why do we not

simply say, "Was this, in fact, having regard to

content, time and place, a different questioning"?

MR WEINBERG:  Your Honour, that is certainly to endorse the

approach adopted by Justice Toohey in terms, and

also to the extent that Your Honour the

Chief Justice embraced that approach, to adopt that

as being, in effect, the appropriate way to resolve

this case. We have no difficulty, I might say,

with that being the correct approach because we say

that the Court of Criminal Appeal completely

misapplied that test if they did, in fact, purport

to apply it, as they appear to have done, they have

completely misapplied it. We have no difficulty

with that. All that we are saying is that does not

seem to have been what can be properly be described

as a majority ratio in Pollard, and the

Court of Criminal Appeal was correct in saying that

there was not a majority ratio in support of

Mr Justice Toohey's approach because

Mr Justice McHugh, we say, did not endorse that

approach. There is nothing in His Honour's

reasoning to indicate that that approach commended

itself to Mr Justice McHugh. It might very well

Heatherington 23 8/2/94

commend itself now, and it might very well be the

correct approach, with respect, but it was not the

approach that His Honour Mr Justice McHugh, in

fact, adopted in the course of his reasoning. And

it was not, we say, the approach that was adopted

by Mr Justice Deane, at least there is nothing to

indicate that it was His Honour's short reasons for

judgment, and we have some difficulty in seeing how

the views of two members of the Court in a Court of

seven could constitute ratio or the judgment of the

Court unless and until this Court says that is the

correct approach.	We say that has not yet
occurred.

But we accept that there is a good deal of force, with great respect, in that being the

appropriate approach and we are happy to embrace

that approach because we say that approach properly

applied will lead to the correct result in this and

almost every other case, properly applied. But

what we say the Court of Criminal Appeal could not

do is say that there were dicta in the four members

of the notional majority which tended to support

the construction advanced by Justice Teague, or
tended to support the construction that it is

proper to conduct lead-up interview, as I have

called it, or preliminary questioning followed shortly thereafter by a recorded interview, et cetera, and to admit the recorded interview.

We say there is nothing in the four members of the Court who constituted the notional majority

which either dictated or pointed to that result

unless one takes one or two passages from

Your Honour the Chief Justice Sir Anthony Mason as

indicating that that was Your Honour's view, and it

may be that that was Your Honour's view and, if so,

then we are wrong about Your Honour.

All we say is there was nothing in the

judgment which in fact acted as a signpost in that

direction as Mr Justice Marks thought it did. It

produces a result which we say is abhorrent. If I

can then return to the judgment of Justice Marks.

His Honour says at the bottom of page 653 -

DEANE J:  Mr Weinberg, can I take you for one moment back,

and I do not want to reargue Pollard, but in

Pollard in 464H(l)(d) what was your contention as

to the meaning of "the questioning"?

MR WEINBERG: It meant every question.

DEANE J:  In other words it meant questioning both at a

place where facilities were available and at a

place where they were not.

Heatherington 24 8/2/94

MR WEINBERG:  No, it meant every question at a place where

facilities were available. Every kind of question.

DEANE J:  So your submission was "the questioning meant

every question at such a place"?

MR WEINBERG:  Yes. Once questioning within the meaning of

section 464A(2) has commenced, was the submission

that I put, the meaning to be attributed to

questioning was the same in 464.

DEANE J: Well, you have answered my question. The other

view which was expressly adopted by Justice McHugh,

or it seemed to have been, is that "the

questioning" there means the questioning at that

place.

MR WEINBERG:  Yes, Your Honour. On Justice McHugh's

analysis, we could not hope to win Pollard because

the unrecorded questioning had occurred at another

place. We simply could not hope to win it on that

aspect, on that point.

Coming back to Justice Marks at page 653, if

we may briefly, His Honour said at line 37:

In the present case, the recorded

interview was in my opinion admissible.

McHUGH J: Well, have you not skipped the key passage in

His Honour's judgment - - -

MR WEINBERG:	I hope not, Your Honour.
McHUGH J:	- - - and that is at line 32 where His Honour

says:

The statutory requirements may be simply

stated. Confessions or admissions must be

recorded in order to be admissible.

That is not accurate, is it?

MR WEINBERG:  No, it is not, Your Honour. It is the same as

Mr Justice Teague, in effect.

McHUGH J: The whole weight of the draftsman's concern in

(d) seems to me to be on the questioning. If it was on confession or admission the section would

have to be reframed. It would be "if the

confession or admission was made at a place where

facilities were available, the confession and

anything said - - -

MR WEINBERG:  Yes, His Honour took the view that the words

"questioning or anything said" were merely a

compendious way of describing a broader

Heatherington 25 8/2/94

conversation. What His Honour did was to set up,

with respect, a straw man as I shall endeavour to

show the Court in a moment, and then knocked it

down, and knocked it down fairly effectively, but

it was not, in fact, the argument that His Honour

should have been directing his attention to. But,

we take Your Honour's point. His Honour then said,

this is line 33:

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.

So, what His Honour has done is to move to the test adumbrated by Your Honour Justice Toohey and said,

"If it is necessary to apply that test I say, with

absolute certainty, these are separate
questionings," for relevant purposes. His Honour

then goes on to say:

The material does not indicate that as a

matter of fairness or otherwise there is some

necessity to refer to anything which

transpired between the police and the

applicant outside the recorded interview.

The Court will note the criteria that His Honour is

applying - the test to determine whether it is a

separate questioning. One of the indicia is, is it

necessary to refer to anything earlier said in the

recorded interview, or does it stand alone as a

logical, coherent whole?

We say, that is not the test that Your Honour

Justice Toohey adumbrated, it is nothing like that

test, and it is a test that will almost always be

failed so far as the applicant is concerned,

because all the police have to do is conduct a

coherent, logical whole recorded interview. All

the police have to do is not refer to the earlier

lead-up or unrecorded interview in the course of

their record of interview. They satisfy this test

and, accordingly, although there is an unrecorded

lead-up, with all the advantages that the police

get through not switching the machine on during the

earlier questioning, they get the advantage of this

recorded material going into evidence. His Honour

said:

The proper conclusion is that in substance

what was said, admitted and confessed by the

applicant at the earlier unrecorded short

interview was said, admitted and confessed

Heatherington 26 8/2/94

again in elaborated form during the recorded

questioning and answers.

That is not the test. The fact that he has

repeated it, in substance, twice does not mean that it is not the same questioning. If it did then you

would have the perverse situation that if you could

show a difference between an answer given by the

accused at the earlier lead-up and the answer given

by the accused in the recorded interview, you

exclude the recorded interview because they are

not, in substance, the same. But, because they are
in substance the same, they are not the same
questioning. That cannot be the test. His Honour

then said:

It is therefore likely to be unnecessary

to say more about the meaning of "questioning"

ins 464H(l)(d). Nevertheless it seems to me

that once it is accepted that "questioning" in

that sub-section is not co-terminus with the

total "questioning" in the permitted period -

and, if I can stop there, that is another

illustration of ambiguity. Is His Honour talking

about total questioning or is His Honour talking

about total questioning about the offence with

which the suspect, or in relation to which, the

suspect is suspected. We say His Honour is using

the term in its wider sense there.

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.

That is the key line, in our submission, in the

whole judgment. Because in that line what

His Honour is, in effect, doing is embracing, in a

somewhat opaque way, with respect, the precise

conclusion reached by Justice Teague, which we said

right at the outset was not the law.

What His Honour is saying is that the test in

question, what section 464H embraces, is simply

those questions which are relevant to the
production of the confession or admission, meaning
the answers which are incriminating. So it is the

questions directly leading to those or at least

temporarily related to. I do not know what that

means but it plainly means that it is those

questions which surround the actual questions, the

actual admissions or confession which is made.

What His Honour is saying is if those are recorded,

those go in and if they are not recorded, they do

not go in.

Heatherington 27 8/2/94

That, with respect, is not what section 464H

says at all.	We concede that His Honour put the
argument in the alternative.	He said that but he

also said if it is necessary to go on and consider

whether these are separate questions, then plainly

they are. His Honour applied what we say are the

wrong tests but His Honour put the case both ways.

His Honour put the case, we say, on the same basis

in effect as Mr Justice Teague did and it is a

wrong basis and it was wrong and was rejected, we

say, by this Court in Pollard. His Honour then

goes on to say:

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 -

could we draw the Court's attention again to the

logical entirety being the test laid down by

His Honour -

comprising as it did some 600 or more

questions -

that cannot be the test. It cannot depend upon

whether there are 600 questions or 6000 questions.

It cannot depend upon whether the earlier

unrecorded interview contains 10 questions or 200 questions because the statute says "questioning".

If there is questioning, there is questioning. It

is not "a little bit of questioning"; it is

"questioning" -

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.

The fact that the second interview was conducted

fairly cannot be relevant. That does not matter in

terms of determining whether it is or is not a

separate questioning for the purpose of the test

adumbrated by His Honour Justice Toohey. The

problem arose in a sense as encapsulated in the

next sentence which summarizes Mr McDermott's

submission:

Heatherington 28 8/2/94

It was submitted by Mr McDermott that the

policy of Div 30A is to ensure that everything

asked by investigating police is recorded -

that is the submission that I tried in this Court.

It had been rejected and it was properly rejected by this Court. It is too wide a submission.

"Everything asked by investigating police"; that is

not the law, it cannot be the law, said the members
of the Court of Criminal Appeal and they said it
for a series of reasons. They said that would make

a nonsense of it. If you did not record the fact

that the police asked him if he wanted a cup of
tea, then it follows that a perfectly valid

recorded int~rview goes out. That would be

ridiculous, it is not what Parliament or the public would expect. We accept that. That is not the way the submission is put before this Court and it is

not the way the submission was put before the trial

judge because before the trial judge it was put on

two bases, either that wider basis or the narrower

basis.

His Honour then dealt with the policy to be

found in the Act, and stated it correctly, to:

reduce, if not to eliminate, as in fact

effectively is the case, disputes concerning

the content and voluntariness of confessions -

His Honour then tells us about the experience of

the courts and calls for reform of the division and

he says that the administration would be:

unworkable ..... if the submission of

Mr McDermott prevailed.

We deny that it would be unworkable. Even if the rule were that you switch the machine on when you

are asking any questions, that would not be

unworkable. But that is not the rule which we

contend for. The rule is you switch the machine on

when you are about to question the suspect about

the offence. You have made that deliberate choice

and you are at a place where a recording facility

is available. What is unworkable about that? The

straw man is set up and the straw man is knocked

down. The court then went on - and I will stop in

relation to section 464H at that point, because
there is another aspect of the judgment I want to

come back to later, but it is separate.

If one goes to the judgment of

Mr Justice Southwell, there is an error in

His Honour judgment. His Honour refers constantly

to "video tape"; there is no video tape in this

case, it was an audio tape. The reason was that

Heatherington 29 8/2/94

when the applicant was first arrested it was for an

assault of a sort. Video taping requirement are

compulsory in Victorian homicide cases, but in

August of 1990 the applicant was initially suspected only of a serious assault, rather than

murder. The deceased did not die for some four

months after the assault.

His Honour approached the matter in this way. His Honour dealt with section 464H. His Honour

said, at line 37 or 37:

I would apprehend that most members of the Parliament which enacted s 464H (and

certainly most members of the public) would be

surprised to hear it said that Parliament

intended to render inadmissible a confession

or admission which fits the description given

above.

And the description that His Honour gave was that

confession was not unfair and it is not claimed

that he was overborne, not involuntary, and

His Honour said, "If that is the kind of confession
we are dealing with, Parliament and the public
would be surprised to hear it said that it is not

admissible".

We challenge that. 464H has nothing to do

with whether the confession is involuntary,

unfairly obtained. It has only to do with whether

it was recorded during questioning at a place where

tape recording facilities were available. And

Parliament has spoken on that and that is what

Parliament intended for very sound reasons, in our

respectful submission; nothing to do with

unfairness or involuntariness, at all. It
surprised no one, we say, that Parliament had
decided to put a stop to lengthy disputes about

verbals and matters of that kind and wanted

substantial, if not universal, tape recording of

questioning in the relevant sense.

His Honour then dealt with the judgment of

Your Honour Justice Toohey, at page 656.
Your Honour will see that the degree proximity

approach is summarized in His Honour's judgment -

passages from Your Honour that I read to the Court

earlier are set out at page 656 and then, half-way

down the page His Honour says:

It would seem to me to be quite

unrealistic to say in the present case that

the content or nature of the later recorded

interview was "affected by what took place

earlier" (that is the earlier interview).

Heatherington 30 8/2/94

His Honour then goes on to give reasons for that.

The investigating police already knew

that the applicant had twice admitted (to the

ambulance officer, and to Senior Constable

Watson) that he had struck the blows which had

so seriously injured the victim and which

caused his death some four months later.	The
recorded interview -

and His Honour then said that they are now getting

longer because they are recorded -

does not appear to contain any questions which

would not have been asked had there been no

"lead up" conversation.

So His Honour asks the question, "Can you find, in

this recorded interview, a question which would not

have been asked if there had not been a lead-up

conversation. We say that is not the test, because

all that means is that you can had your lead-up

conversation, unrecorded; anything can happen. We

do not know what occurred in it at all, because it

is not recorded. All we have are some notes. Then

you have a coherent record of interview, which

stands alone. You cannot point to a question and

say "Aha, that was plainly asked because of the

answer given 15 minutes earlier when he was asked

the same questions and gave that answer". You

cannot point to that and therefore it cannot be

shown that what was said was affected by what

occurred earlier. That cannot be, we say, the

test.

We will come to what we say Your Honour did

mean by the word "affected" in the course of our

submissions, in a little while. We say it has a

more subtle meaning than that, and more intelligent

meaning, with respect.

Doubtless if the applicant had in the recorded

interview denied that he was the assailant,

his three earlier admissions would have been

put to him. But he made no such denial.

So what His Honour is saying is that if there was a

difference between what he admitted to the police

in response to their questioning a few minutes

earlier and what he said later, that would be

different, then we would exclude the lot. That

makes no sense at all, with great respect, if that

is the construction of section 464H. That only

encourages the police not to take up differences.

That is the ratio of Heatherington in the Court of

Criminal Appeal: do not take up differences, do

not refer to what was said 15 minutes earlier,

Heatherington 31 8/2/94

otherwise you will find that there will be a link

or a connection between the two questionings and

the second will go out. That makes mockery, we

say, of section 464H. Then His Honour says:

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 -

In fact, no caution was given in the lead up

conversation·. His Honour's "probably" is simply an error. There was a caution given at the scene
of the arrest. At 9.45 the general caution of the

right to remain silent was given by Watson, but no

caution of any kind under section 464A(3). The

right to remain silent was given by these police

officers who then set out to question the applicant

about the offence without caution, and without the

statutory rights being given, being informed of the

statutory rights before that questioning commenced.

So His Honour says:

(probably) no caution was given -

we say certainly -

and no attempt made to go through the formal

requirements of s 464H and 464C, whereas those

requirements were meticulously met in the

recorded interview.

In other words, what His Honour is saying is that

because the police breached the requirements of the
statute, they breached section 464A(3), they

breached the requirements of section 464C, they

breached the requirements of section 464G which

requires that the information that is given must be

recorded at the time that it is given under

section 464 - they breached all those things.

Obviously, in the mind of the police these were separate questionings, otherwise why would they

have breached all these things and meticulously

complied with them in the second questioning?

We ask rhetorically:  how can the breaches of

the statute, serious breaches of statutory rights by the police, possibly be taken into account and

treated as relevant to the question of whether

these are separate questionings or not? How can

the applicant be worse off because he was not given

what he was entitled to, whereas under this

reasoning if he had been given his statutory

rights, 464A(3) warning, 464C warning, 464G, taping

Heatherington 32 8/2/94

and so forth of.those matters, then it would follow

that it would be much more likely, according to

Mr Justice Southwell, that they would be the one

questioning. But because the police approached the

matter in that way they are not the one

questioning. We simply say that is not what

Your Honour Mr Justice Toohey decided in Pollard's

case. His Honour went on to say:

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.

Upon this application -

et cetera. His Honour did say at the bottom of 656

an interesting matter:

No doubt if questioning is interrupted for a

cup of tea, or for a trip to the toilet, the

fact that questioning ceases would not lead to

a finding that there are separate
questionings.

Some people spend 30 minutes having a cup of tea or a pizza. I will not say that some people go to the

toilet for a fair while also, but the fact of the

matter is that it cannot be that His Honour

recognizes that you can have the one questioning

with an interruption of a temporal period for some

time and it can still be the one questioning. But
there is something about this case that makes it

not the one questioning. What is it? It is the

fact that the earlier questioning was not recorded.

It is a bootstraps argument. It is the fact that

none of the cautions were given. It is the fact

that the police regarded it as an informal

interview in so far as they conceded that it was an

interview at all, which they did not. They said it

was a spontaneous blurting out of what occurred on

that evening, the finding of fact that His Honour

rejected.

McHUGH J: Supposing the accused in this case had been

questioned and the interview had not been recorded,
but that the following day the police had again

questioned him and then recorded the interview,

would paragraph (d) be breached in those

circumstances?

MR WEINBERG: Possibly not, Your Honour. There comes a

point - and Pollard accepts that, we say, on

certainly the view of Mr Justice Toohey and

Mr Justice Mason. Certainly the three members of

the minority might have a different view in

Pollard, but we talking about the same police

Heatherington 33 8/2/94

officer, the same investigating official, in

questioning the same suspect about the same
matters. There comes a point at which one can
sensibly say, "These are not the same questionings,
they are separate and distinct". Or, to take

another example, assume that the first questioning

was by these CIB detectives, and then the homicide

squad came along and conducted their own, separate

interview. Different investigating officials. It

might be logically and defensible; defensibly

tenable to say, "That is a separate questioning

and, therefore, the earlier breach does not, in

these circumstances, lead to exclusion".

But we say, Your Honour, realistically; we are

talking about a gap of something of the order of

30 minutes between the conclusion of the informal

questioning and the commencement of the formal

questioning. The informal questioning on the

evidence began at 10.35 pm and it went for five or ten minutes, depending on who one accepts, but one

can work out that it went for some time by virtue

of the information that was communicated and

handwritten contemporaneously by Mr Steendam. So

it ends at around, say, 10.45 and then it sort of

recommences at around 11.20 or 11.25, depending on

who - we are talking about half an hour. And we

are not only talking about half an hour, we are

talking about half an hour during which things are

happening. During that period the applicant is

making a telephone call to a friend. He cannot be

questioned while he is making a telephone to a

friend.

During that period, at some stage in that

period, he is being given his right to consult a

lawyer, after he has begun to be questioned, of

course, after the questioning under section 464C

has been breached.	He is never told about that
before questioning commences as is required.	He is

then at some point given, on his version, volume

one of the "yellow pages" at about 11 o'clock at	night and invited to look at it and call a lawyer.
The police version, I do not think, was limited to
volume one but, in any event, he is given the
"yellow pages" and invited to call a lawyer, and he
says, "Not at this stage", and has some problem in knowing who to call. But things are happening.

McHUGH J:  I am sorry, having regard to your answer to my

question, I am not sure that I understood what you

were saying about my judgment in Pollard. Is it

your contention that my judgment is inconsistent
with Mr Justice Toohey's judgment?

MR WEINBERG:  No, we are saying that Your Honour did not, in

terms, address the problem that Mr Justice Toohey

Heatherington 34 8/2/94

dealt with. We are saying that what Your Honour

did was to say, "Mr Weinberg, you lose because

there are two places", and that is all Your Honour

said.

McHUGH J: Yes, my judgment was directed at your argument.

MR WEINBERG:  Yes, of course, and not unreasonably, and I

lost and I am not complaining about that, but the

fact is that is what your judgment held and we find

it difficult to see how one can then attribute to

Your Honour's judgment a position in a notional

majority, if I can put it that say, when

Your Honour decided, what Your Honour was being

asked to decide, and addressed an argument that was

being addressed to Your Honour. We are not saying

that Your Honour's judgment was inconsistent with

Mr Justice Toohey.	We do not say that at all.
What we say is - - -

McHUGH J:  I understand. I thought you were saying that.

MR WEINBERG:	No, Your Honour.
McHUGH J:	No.
MR WEINBERG:	We accept that time as well as place may be

significant, and the greater the time the easier it

is to say these are separate questions, but there

are many factors that may be important. They may

be whether the investigating official has changed.

All sorts of things may be important.

MCHUGH J: Yes.

MR WEINBERG:  His Honour then went on to say at line 3:

Here the earlier interview lasted about

5 minutes, perhaps 10 minutes, ending at about

10.40 - 10.45 pm. The impugned interview

commenced at 11.25 pm; its nature and content

show that it was not, and did not purport to

be, a resumption of the earlier interview - it

was not as if the interrogators were resuming

where they had earlier left off.

That cannot be the test because then the counsel

that you give police is, "For God's sake do not

commence the recorded interview by saying we are

just going to resume the questioning that occurred

20 minutes ago.	Now I want to do this on tape,
et cetera, because then you will be in strife.	You
will be resuming earlier questions.	So do not use
that formulation.	Do not make it seem as though
you are resuming."

Heatherington 35 8/2/94

We say the Court must accept that the

judgments of the court and the judgments in

Heatherington are read by the police and they are

given advice as to what they can do and what they
cannot do under those judgments. They may not read

them themselves, but they are given some synopses

of what these cases stand for and this is very

important, in our respectful submission.

McHUGH J:  I can understand why you want to spend time

criticizing the Full Court but having regard to the majority judgments in Pollard, the question here is

a very simple one, is it not? It simply is whether

this earlier unrecorded questioning was part of the

same questioning at the particular place.

MR WEINBERG:  Your Honour, we want to spend time criticizing

the judgment of the Court of Criminal Appeal

because we do not have special leave, and we need

special leave and we need to say there is an

important question to be resolved and that is

whether the court approached the problem in the

right manner and applied the right tests. But
Your Honour is right, at the end of the day we will

be saying this is a simple problem with a simple

solution. The solution, we say, is blindingly

obvious and conclusive, and we are just as

confident as Mr Justice Marks was the other way,

that this was the same questioning within the ambit

of what Your Honour Mr Justice Toohey had in mind.

There is every reason, we say, to so interpret this

earlier questioning. Considerations of identity,

time, subject-matter, everything, leads to the

conclusion, upon a proper construction of section

464H, this is relevantly the same questioning. It

cannot be the same questioning in the sense that it

is identical questioning because it never is. It

is always later. It cannot be the same

questioning. There are always going to be

differences because, by definition, when these

problems arise one of them is unrecorded and the

other is recorded. There are always going to be	differences but that cannot be what the same
questioning means, it means - - -

McHUGH J: It is referring to a process, is it?

MR WEINBERG:  A process, yes, Your Honour. It is a process

which, if we are wrong in this case, if we have not

brought the right vehicle here, shall we come back

next month with one where there is a five minute

gap between the lead-up and the recorded interview?

At what point are we able to say to this Court that

realistically speaking, you are dealing with an

episode of very short, or relatively short

proximity. You are dealing with the same police

officer questioning the suspect about the same

Heatherington 36 8/2/94

subject; deliberately questioning, deliberately not

switching the machine on. At what point do we

reach the point - - -

DAWSON J: Is it just a matter of degree?

MR WEINBERG:  No, Your Honour, it is not just a matter of

degree because - - -

DAWSON J:	What is the test?
MR WEINBERG:	If I say it is just a matter of degree,

Your Honour will say, "Well, there is no special
leave point involved here." It is not just a

matter of degree. It is a matter of the approach

adopted by the Court of Criminal Appeal to that

question.

DAWSON J: But what is the test you say to determine whether

a questioning is a separate questioning or part of

the same questioning?

MR WEINBERG:  The test is whether, by reason of

circumstances: time, place, proximity, all of the

matters that I have been adumbrating, it should

properly be said that there is a process of

questioning going on. A single process of

questioning which was interrupted certainly - - -

DAWSON J: That sounds to me very close to a question of

degree.

MR WEINBERG:  But we say, Your Honour, that is a question of

degree but it has not been approached in the

correct manner.

BRENNAN J: That is your special leave point.

MR WEINBERG: That is our special leave point, Your Honour.

BRENNAN J:  If you get special leave, then you say it is a

question of degree.

MR WEINBERG:  Yes, Your Honour. If we get special leave, we

say it is a question of degree.	I am grateful for
that, Your Honour.	I have long since learned that

when the Court asks, "Is it just a question of

degree?", one immediately says no. It is an

instinctive response but perhaps a more thoughtful

answer would have been, "Yes, it is a question of

degree once we get special leave."

I will not press on any further with that

analysis.	The Court can read the judgment for
itself.	Mr Justice Harper's judgment is in the

same vein, we say. There are aspects of

Mr Justice Harper's judgment which we say indicate

Heatherington 37 8/2/94

that His Honour was receptive to the Teague

approach, if I can call it that. That appears at

page 662 at about line 25 where His Honour

formulates the problem in a way which indicates

that His Honour is receptive, if I can put it that

way, to the Teague approach.	I will read from
line 21:

These considerations point strongly, in

my opinion, to the conclusion that the phrases

"if the confession or admission was made

during questioning" and "the questioning and

anything said by the person questioned" in

para (d) of s 464H(l) must be construed as

referring not to the whole of the overall

questioning but to the particular period of

questioning in which the relevant confession

or admission was made.

If that is correct, then His Honour has in effect,

we say, embraced Mr Justice Teague's, we say,

incorrect approach. But His Honour goes on to deal

with the matter in the alternative and applies the

approach adopted by Your Honour Justice Toohey. found nothing in the judgment of Your Honour

Justice McHugh which indicates that you disagree with Justice Mason, Justice Deane and

Justice Toohey. We accept that. There is nothing

which says you disagree with them, nor is there

anything which says that you agree with them. That

matter was left open. His Honour then says:

Commonsense indicates the same

conclusion. The legislature cannot have

intended to make confessional material

inadmissible merely because not every question

asked of a suspect by an investigating officer

was tape-recorded.

Again, His Honour is using the widest sense of

questioning there, setting up the straw man and

knocking it down. Then the test which His Honour

thought was appropriate is set out at 663. After

again quoting extensively from Your Honour

Justice Toohey, His Honour said at line 29:

I turn now to apply these tests to the

facts which were before the learned trial

judge. The confession was made after the

applicant was informed, pursuant to s 464A(2),
of the circumstances of the offence for which

he was then in custody. He was also informed

that he did not have to say or do anything - may I say that is not accurate. He was informed of

that at the scene of the arrest some half an hour

Heatherington 38 8/2/94

or so - in fact it was at 9.45 pm that he was

informed of the general right to remain silent by

Watson. He was not further cautioned by Steendarn

or the other police officer or Watson prior to the
commencement of this informal questioning or

interview at the police station.

It is very much analogous to what happened in

Pollard because the Court will recall that in
Pollard itself, when he was arrested he was given

the general caution and an hour later when

Mr Minisini commenced to question him at Frankston,

he gave him no caution. That was a factor that was
regarded as very significant by the three members

of the minority who found that that breach was one

that was relevant to the exercise of the discretion
in that case. But pressing on:

He was also informed he did not have to do say or do anything, but anything he did say or do

might be given in evidence. There is an issue

whether that information was given before any

questioning commenced. Otherwise, s 464A(3)

was complied with. All this was

tape-recorded -

et cetera.

Although, as his Honour found, the applicant

had earlier provided Steendarn 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.

So the test His Honour applies is, "Does one need

to refer to extraneous material to understand the

recorded interview?". If the answer to that is

"No" then, prima facie, it would seem it is a
separate and distinct questioning.	We say, that
cannot be the test.

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 or loses

anything by reason of the earlier interview.

That we reject utterly. We submit that when a

person has already answered questions about the

commission of the offence to the police, in

Heatherington 39 8/2/94

circumstances where he is given no caution

immediately prior to that occurring, as required by

the Act, in circumstances where he is not told of

his statutory rights to contact a friend or a

lawyer, he then makes admissions and then he is

given his statutory rights, in other words, he is
allowed to contact a lawyer or a family friend

after he has already made admissions, the

overwhelming probability, as a matter of common

sense is that the recitation of his rights is

lip-service, perfunctory and regarded as too late

by him. The overwhelming probability, ordinary

common sense dictates, that is almost inevitable

that he is going to repeat the admissions that he

made half an hour before to that very same police

officer questioning him about that very same

offence.

I took the Court, and I will not do it again,

to the judgment of Justice Brennan in the United

States Supreme Court decision in Oregon v Elstad,

(1985) 470 US, at page 298. Three members of the

United States Supreme Court, in dissent, adopted

and reinforced exactly the view that I have just

put the Court now, that the failure to give Miranda

warnings, as occurred in that case, could not be

cured in circumstances where a confession or

admission was made after no Miranda warnings were

given. Then the Miranda warnings were given and

the suspect then repeated the confession. Three
members of the court referred to all of the police

manuals, saying the technique is, first of all, get

your admission. It does not matter how you get it,

get your admission. When you have got your

admission you can then given him his rights.	The
manuals are referred, the extracts are there.
Because, as a matter of common sense,
ordinary - - -

BRENNAN J: Just give us the page reference.

MR WEINBERG: Yes, Your Honour. It is the judgment of

Justice Brennan dissenting, commencing at page 318

with Justice Marshall joining in the dissent and

Justice Stephen separating dissenting. The other

six members of the Court overturned a long line of

authority which had previously held, including

several United States Supreme Court decisions which

had held, in effect, the line that Justice Brennan

favoured. Particular passages that we invite the

Court to look at are, firstly, at the bottom of 319

and the top of 320, the whole of 321, 324, 325,
326, then 329 which talks about the techniques in

manuals, and the State and Federal Courts'

experience, 330, 335, 336.

Heatherington 40 8/2/94

DEANE J: But the "cat out of the bag" theory really

presupposes that all these rules are directed to
protecting the guilty and what is said here is

undoubtedly true in the case where the confession was of the true facts. But it does not strike me

as self-evident that what you say is true if the

confession be not accurate and if it not be put,

"Half-an-hour ago you said this", that there is

questioning which again elicits a confession made

beforehand, I fully understand the force of what

you say in terms of its application to a guilty

person but it is not at all self-evident in the

case of an innocent person.

MR WEINBERG:  What it does, Your Honour, in our submission

is it defeats the protections that are accorded to

all persons whether guilty or innocent by - - -

DEANE J:  You put it that way but those protections extend

to the guilty because they are necessary to protect

the innocent.

MR WEINBERG:  Yes, they do, they extend to the guilty

because they are necessary to protect the rights of

even persons who are guilty.

DEANE J:  If you are dealing with matters such as whether a

confession has to be tape recorded or not you do

not get very far with me if you say part of the

rationale of that is to protect the guilty as if it

is some sort of game of tennis.

MR WEINBERG:	No, Your Honour, it is not a game of tennis but it is a matter of insuring that these rights
which have been accorded by statute to all persons
have meaning and content. If the police are able - - -

DEANE J: But the purpose of their being accorded in this

context, as distinct from physical violence and the

like, is to protect the innocent and, as I say,

these "cat out of the bag" approaches in this

context seem to me to have little to do with this

legislation.

MR WEINBERG:  Your Honour is troubled by the fact that if

there is a cat in the bag then the cat exists and

we understand that. But we say that the rationale,

if we may say so with respect, of these provisions

in section 464C, section 464A(3), is to accord to

every person suspected of an offence, irrespective

of whether guilty or not guilty, certain

fundamental statutory rights, not just to protect

the innocent, because if they were just to protect

the innocent then once it was clear from other

material that the person was guilty we would in

Heatherington 41 8/2/94

some way interpret these rights differently so far

as this person is concerned.

The rules excluding involuntary confessions are not just to protect the innocent, they are to

protect all persons from being subjected to

improper police treatment. It does not matter
whether the confession in question is shown to be

the most reliable confession of all, corroborated

by any number of pieces of evidence, if it is

involuntary in the relevant sense it is
inadmissible; it is inadmissible because the law
seeks not just to protect the innocent but also to
ensure that the police respect the law, treat

suspects, whether guilty or innocent, in a proper

manner in accordance with the law and here we have

statutory rights.

DEANE J:  Do not take further time but it seems to me that

in determining what this statute means the policy
was partly administration of justice in terms of
practical administration and partly in terms of

protecting the innocent and protecting unreliable

confessions.

MR WEINBERG:  We accept that also, Your Honour. We accept

all that Your Honour has said but we also say that
there is truth in the observations of

Justice Brennan and the two other members of the

Court that once a person has confessed - and it

might be the world's most reliable confession -

there is no point then giving him his Miranda

warnings because the overwhelming probability is

that having confessed he is going to regard the cat

as being out of the bag and he is going to repeat

his confession.

In other words, the warning is a waste of time, it is lip service; it is no more than that.

He is not getting what he, in the United States, is

constitutionally entitled to; in this country, what he is statutorily entitled to; that is information	about his statutory rights in a form in which it
can be used. What he is getting is, after the cat
is out of the bag, something which then says,
"Well, you can now contact a lawyer.". That is terrific, he has made his admission.
It is also - we might say, these statutory rights that are accorded should not be regarded in
isolation. The Court will recall this is part of a
trade off against vastly increased powers being
given to the police in Victoria. For the first time this statute allows the police to do what the
common law did not allow them to do and that is to
detain a person who has been arrested for and
during the period that he is questioned about the

Heatherington 42 8/2/94

offence without having to take that person before a

justice or magistrate as soon as practical.

It is a new power, a very wide power. It

allows ~he police to keep someone and to

investigate and to question that person, something they never had the right to do previously. And it

is a trade off. It serves many purposes, in our

respectful submission, one of which - and a very

important one, as Your Honour correctly points

out - is to protect the innocent; the

administration of justice, protect the police from

false accusations, but also, we say, to accord

these rights to all persons, whether innocent,

differently according to whether one thinks the

guilty, however one uses those particular terms.

confession is true or not or whether one thinks the

accused is guilty or not.

DEANE J:  I was not suggesting that.

MR WEINBERG:  I was not suggesting that Your Honour was. I

was just saying as a general proposition that is

not the way we say that section could ever be
construed.

DEANE J: All I was suggesting was that your arguments in so far as they are directed to the proposition that it

was a statutory or a legislative intent to protect

guilty people from letting the cat out of the bag,

or to ensure that guilty people did not make

reliable confessions unless some procedural steps

were first taken, it is a legislative intent that I

simply do not discern.

MR WEINBERG:  Nor do I contend that such a legislative

intent is to be discerned, and if I have conveyed

the impression that that was my submission then,

Your Honour, that was wrong.

If the Court pleases, that is the analysis of

Heatherington, and that is the analysis of the

judgment of the Court in Pollard v Reg. It leaves

us with several matters that we now wish to address

on a different footing. One of them is, of course, the question of section 464C in the context of this case, and the Court will see that one of our

grounds of appeal contends that there was

relevantly a breach of section 464C which should

have led to the exclusion of this recorded record

of interview and it is, in fact, I think,

ground (e) in our draft grounds of appeal which

says:

The Judgment of the Court of Criminal Appeal was wrong in law in failing to hold that the

Heatherington 43 8/2/94

taped confession should have been excluded on
the basis of the principle laid down by this

Honourable Court in Bunning v Cross, having

regard to the deliberate or reckless disregard
of the applicant's rights resulting from the
failure to give him the statutory cautions
required by section 464C prior to the lead up

interview, the failure to record such cautions

as were given -

464G -

and the failure to record what was said in its

entirety during the course of the lead up

interview.

We face, of course, an immediate problem in terms

of special leave, and I draw the Court's attention

to it in the judgment of Mr Justice Marks. It is a

matter that I said I would come back to, and it

appears at the bottom of page 654.	What His Honour
said was:

In his ruling, the trial judge indicated

that there had been a breach of s 464C -

and indeed, that is correct.	The trial judge did
so find -

but that nevertheless he exercised his

discretion favourably to the prosecution

because there had been no unfairness. There

was no material before us which suggested any

unfairness and Mr McDermott expressly

abandoned any argument based on s 464C, save

in one respect. In addition, Mr McDermott

conceded that he was unable to submit that in

fact there had been any breach of s 464C or

what were the breaches which his Honour had in

mind and which he did not identify.	We have
the investigating police did breach s 464C in	not been given any reason which suggests that
this case. The applicant was in fact provided
with the required information -

and may I say that the evidence, we say - and we

are going to be handing to the Court some passages

of transcript and some submissions in relation to

that to support that proposition - is clear and

unequivocal that the applicant was not given his

statutory rights in the sense of being informed of

his right to contact a friend or relative, or to

contact a lawyer prior to the commencement of the

questioning, the informal questioning, and that

that much was established and, I think is common

ground between myself and my learned friend.

Furthermore, the evidence, we say, is clear that

Heatherington 44 8/2/94

the applicant was not given what he was entitled to

under the statute which is a deferment of the

questioning for such reasonable time as would

enable him to exercise ~hose rights because, in

fact, the opportunity afforded to him to make the

telephone call to his friend did not occur until

after the preliminary questioning was in substance

complete.

BRENNAN J: There are two points: first of all, was not 464C

given away in the Full Court -

MR WEINBERG:	Yes.
BRENNAN J:	- - - and is it not a question of fact as to

whether or not 464C is breached?

MR WEINBERG:  No, because His Honour found that section 464C

was breached. The trial judge found, as he had to

find, that it was breached, because it was common

ground that it was breached. The evidence was that

it was breached, and the difficulty arises from

the fact that counsel, who abandoned the argument,
not the ground, but the argument, felt, for some

reason which we cannot understand, that he was

unable to submit that, in fact, there had been any

breach of section 464C, when His Honour found in

his ruling that there had been, and could not

identify the breaches which His Honour had in mind

when we say they were obvious, clear to everyone;

clear to His Honour, clear to counsel, who argued

the point before His Honour at the trial.

BRENNAN J: Where is the finding by the trial judge?

MR WEINBERG: It is in the ruling, Your Honour. It appears

in the application book and the finding in question

is at page 9 of the ruling, page 88 of the

application book:

police did not comply with the requirements of I accept that Steendam and the other

s.464C at the start of the preliminary

discussion with the accused, in the terms

contemplated by that section.

If I can remind the Court, that section requires in mandatory terms that:

Before any questioning ..... commences, an investigating official must inform the person

in custody that he or she -

(a) may communicate with or attempt to

communicate with a friend or relative to

inform that person of his or her whereabouts;

and

Heatherington 45 8/2/94

(b) may communicate with or attempt to

communicate with a legal practitioner -

MASON CJ: But had he not earlier be~n given a caution, as a

result of which he had been given the telephone so

as to enable him to have an opportunity of ringing

a friend?

MR WEINBERG:  No, Your Honour. The caution that was given -

if I use the term "caution" - was the caution under

464A(3), which was given at the point of arrest,

and he was told, at some point, and it is a little

unclear exactly when, but not before the

commencement of questioning, that he had the right

to ring a friend. Not before the commencement of

questioning, which is the requirement of the

statute, and very sensibly so because there is no

questioning.

point given that right unless it is to be capable
of being exercised before questioning begins.

BRENNAN J: Well, does it come to this; that the breaches of

464C are those which this Court will have to find

for itself by reference to the evidence, if that

passage on page 88 is to be given any meaningful

content upon which this Court might act?

MR WEINBERG: 

No, Your Honour, not that this Court must find

for itself, because we say that the evidence in
question is clear and unequivocal.

BRENNAN J: Well, must find it, if need be, on clear and

unequivocal evidence.

MR WEINBERG: It is there. There is evidence from both

Mr Steendam and the other police officer, whose

name continues to escape me, that he did not

caution. Neither of them cautioned the applicant

before the commencement of this interview. That

evidence is clear and unequivocal. There is

nothing to find. That was the evidence. That was

the evidence that grounded this finding. There are

passages in the transcript which indicate clearly

and beyond doubt that those points were taken

before the trial judge.	The trial judge has
condensed his finding.

BRENNAN J: If this Court is to make the order, which the

court below ought to have made, ought the court

below to have made an order based on 464C in the

light of the conduct of the appeal?

MR WEINBERG:  Having regard to the judgment of this Court in

Pollard which was available to the Court of

Criminal Appeal, we say, "Yes," because the

breaches that occurred in Pollard are the same

Heatherington 46 8/2/94

breaches that occurred here, exactly the same, and

they were held sufficient in Pollard to vitiate the

admissibility of the record of interview based on

section 464C. Pollard is - - -

BRENNAN J: When counsel conducts a case is the party not

bound by the conduct, or is that an antiquated

notion?

MR WEINBERG:  Not at all, Your Honour, it is not an

antiquated notion and, ordinarily, a party is bound

by the conduct of his counsel. Where, however, his

counsel has fallen into serious error in the manner

in which he has presented his case - and, we say,

that serious error is demonstrated, is

demonstrable, from counsel's own inability to say

that there had been a breach when His Honour found

that there had been a breach. The breach is

clearly identified. It is not as though one has to

search for it. We do not even have to go to the

evidence to find the breach. It is common ground

between our friend and ourselves that no

section 464C warnings were given before the

preliminary questioning commenced. I will not take

it any further than that because there are all

sorts of elaborations about when he was afforded

the opportunity, and what occurred, and when he was

told, but he was not told before the questioning

commenced, and that is exactly what happened in

Pollard because, as the Court will recall, he was not told before the questioning commenced for the

purpose of section 464C at Frankston, and for the

purpose of section 464C questioning meant the

process of questioning commencing at Frankston.

Could I just draw the Court's attention to one

paragraph of a judgment of this Court which is not
on our list of authorities, but we say it

encapsulates the principle to be adopted. It is

the judgment in Mickelberg v Reg, and the passage

in question appears at page 272. It is in the

judgment of Your Honour the Chief Justice

Sir Anthony Mason. Mickelberg is reported

167 CLR 259, and we apologize for not having put it

in our list of authorities. It is a short passage,

and what Your Honour said was this:

Whether or not the reluctance of this

Court to grant special leave to appeal on the

basis of argument presented for the first time
in a case before this Court is found upon the

nature of its appellate jurisdiction or, as I

am inclined to think, the exercise of

discretion, is a question which was not argued

before us. But it would be surprising if

there was a want of jurisdiction when the

Court has made many statements dealing with

Heatherington 47 8/2/94

the way in which a discretion may be exercised
to allow a point not argued in the courts

below to be raised within this Court fo~ the

first time. It is clear that only in

exceptional circumstances is special leave to appeal granted when the point relied upon was not taken at trial or in a Court of Criminal

Appeal.

Your Honour then referred to Millard v R, (1906)

3 CLR 827 and Giannarelli v Reg,

(1983) 153 CLR 212:

Equally, a point cannot be raised for the first time on appeal when it could possibly

have been met by calling evidence below.

And, Your Honour cited authority for that:

However, that is not the case in relation to

the points which Peter Mickelberg now seeks to

raise. They are points of law based

necessarily upon the facts as proved in

evidence in the courts below, and as such may

be entertained in this Court in the interests

of justice.

Now, this was a point that was agitated before the trial judge. Section 464C was expressly raised

and argued in the way that we are seeking to argue

it before this Court before the trial judge. The

Bunning v Cross discretion was relied upon, the

absence of statutory cautions relied upon before

the trial judge. In fact, in the written

submissions presented to the Court of Criminal

Appeal, the same point appeared -

MASON CJ: But it was expressly abandoned.

MR WEINBERG: Yes, it was.

MASON CJ:  If it was expressly abandoned I do not see how it

becomes an exceptional circumstance.

MR WEINBERG:  Your Honour, it was expressly abandoned, in

our submission, because of a fundamental error, an

error by learned counsel who appeared below. That

error being that there was no breach of

section 464C when His Honour had expressly found

that there was and identified it.

DAWSON J: What is the consequence of the breach of

section 464C?

MR WEINBERG: That a discretion arises - - -

DAWSON J: But where does the discretion arise?

Heatherington 48 8/2/94

MR WEINBERG:	The discretion arises pursuant to the fact that under 464J the ordinary discretions are
preserved - - -
DAWSON J:	I see.

MR WEINBERG:  - - - under the statute. So that both the

unfairness discretion and the Bunning v Cross
discretion, if I may so describe it, are expressly
preserved.

In this Court, in relation to section 464C, Your Honour Justice Deane on that occasion said

that if the police have acted with a deliberate or
reckless disregard of the suspect's rights, that

would ordinarily give rise to a basis for the

exclusion of the discretion on public policy

grounds.

Your Honour, the Chief Justice in

Pollard's case said that you agreed with that but with the reservation that it might not even have to

be shown that there was a reckless disregard of the

suspect's rights in relation to a statue.

Your Honour Mr Justice McHugh went even further and

said, if I recall Your Honour's judgment correctly,

that there was a prima facie presumption that once

a breach of those rights was demonstrated,

ordinarily one would exclude the evidence in the

exercise of discretion. And the three members of

the minority in that case all held there had been a

breach because there had not been the statutory

warnings given at Frankston. Your Honours did not

deal, the three members of the minority, if I can
so describe you, with the case at all on the basis

that there had not been a deferment of questioning.

Your Honours found that he had not been told what

his rights were before he was questioned at

Frankston and that meant that the exercise of

discretion was vitiated and a new trial should be

ordered. So we had, in effect, at least six

members of the Court saying that the breaches that

occurred in Pollard were sufficient. Your Honour

Mr Justice Toohey identified a different breach.

It was the failure to defer the questioning but also held that the discretion should have been exercised.

We face a very great hurdle because the point

was expressly abandoned below, but it was expressly

abandoned based upon a complete misconception, we

say, of what this Court held. How could anyone

acting properly in the interests of a person

convicted of murder get up and abandon a

section 464C argument when the judges found there

has been a breach and when the members of this

Court, in not dissimilar circumstances, had held

Heatherington 49 8/2/94

that the consequences of that breach were that the

discretion had miscarried in that trial and that,

as a matter of discretion - and at least three

members of the Court said there had to be a new

trial because the discretion had not been exercised
properly, and the other members of the Court said

that ordinarily, or something close to that, the

discretion should be exercised adversely to the

Crown in those circumstances.

I take Your Honour's point. Your Honour

Justice Brennan is quite right. It is asking a lot

of this Court to forgive an express abandonment of

an argument below but, in our respectful

submission, if this Court does grant special leave

in relation to the 464H point, this Court should

also deal with the section 464C point upon the

alternative basis for special leave being granted

if necessary: miscarriage of justice.

If I can remind the Court, the breaches are

that although he was given the general caution at

9.45, when he was questioned at 10.35 no general

caution was given. That was a breach which was

unforgivable in Pollard's case, said to be a breach

by the minority of the Court in that case which was

very significant. He should have been given the

caution, the general right to remain silent, before

he was questioned by these police officers, again

at 10.35. That is his right under A(3).

BRENNAN J: But the trial judge found that Watson had given

the accused a caution, the accused had been given a

telephone book to ring a friend.

MR WEINBERG: After he had been questioned, Your Honour.

BRENNAN J:	The judge does not say that.
MR WEINBERG:	No, but that is what the transcript shows,

Your Honour.

BRENNAN J: That is what you want to prove by reference to

the transcript?

MR WEINBERG: Yes, that is what we want to prove by

reference to the transcript. We do not dispute

that he was told at some stage but not before

questioning commenced that he had a right to ring a

access that was given to the telephone was given after the questioning had commenced and we say

friend but at some stage impermissibly, too late.

concluded. That is terrific; that is when he is

given the opportunity. That is supposed to be the

deferment of the questioning required under the

statute. If we are right about that - - -

Heatherington 50 8/2/94

BRENNAN J:  Was this point taken in the notice of appeal to

the Full Court?

MR WEINBERG:  Yes, it was, Your Honour. There was one

ground before the Full Court and it was a very

general ground and the ground was not abandoned.

May I just hand to the Court the written

submissions that were provided to the Court of
Criminal Appeal by counsel below and invite the

Court to look at one of them which is the last of the written submissions. These are the written

submissions provided to the Court of Criminal

Appeal in the matter below.

DAWSON J: Precisely when was the caution given?

MR WEINBERG: At 9.45 pm Watson, at the point of arrest when

she arrested the applicant at the house, gave him

the general caution, "You have to right to remain

silent"; at that point. It was not then given

again until the tape recorded interview.

DAWSON J: True enough, but you say the real questioning

commenced at 10.35.

MR WEINBERG:  The judge found questioning commenced at

10.35, yes; questioning about the offence commenced

at 10.35.

DAWSON J: But not the tape-recorded interview.

MR WEINBERG:  Not the tape-recorded interview which

commenced at 11.20.

DAWSON J:	So there was an interval of 50 minutes?
MR WEINBERG:	Yes, about the same time as in Pollard.

Pollard was arrested at 6.40, given the cursory general right to silence warning and the questioning by - - -

DAWSON J:  It was never clear in Pollard what the warning

was.

MR WEINBERG:  It was said to be a cursory warning,

Your Honour. We accepted, for the purpose of

argument, that it was the general warning, "You

have the right to remain silent", but it was

described as a cursory warning. In this case,

there is evidence that it was the A(3) warning and

we accept that. It was given at the house at 9.45.

I will not take very much time on this point but may we just demonstrate that on the last page

the written grounds plainly encompass this argument

and put it correctly. There was nothing wrong with

what was said in that. In fact, it is a winning

Heatherington 51 8/2/94

point, if I can put it that way, in the Court of

Criminal Appeal. We would expect, upon a proper

application of Pollard's case to the facts of this case that the Court of Criminal Appeal should have

set aside this conviction if this ground had been

argued and correctly decided. That is the

difficulty that we face. It is no less a winning

point than the Giannarelli point was which was also

not taken in the Court of Criminal Appeal. We do

not know why counsel expressly abandoned the ground

but we do know that he did so upon a completely

wrong basis.

GAUDRON J: But your difficulty, surely, is that the trial

judge as a matter of discretion said there had been

no unfairness, that he would not exclude it.

MR WEINBERG:	His Honour did not have the advantage of the reasoning of this Court when he so held in
circumstances not greatly dissimilar at all - in fact, very similar to those which were said by this Court to give rise to an unfairness and a
miscarriage of justice by reason of the discretion
having not been properly exercised. Your Honour is
right, of course. If Mr Justice McHugh is correct
in his analysis of the way to approach breaches of
section 464C, then we did not start with the onus
under section 464J at all, which is the onus that it rests upon us under ordinary common law
principles.

It is the Crown which had to face a

presumption that the breach having been shown, the consequence should be exclusionary discretion. If

we are right in saying that these facts show a

disregard, reckless disregard, but certainly a

disregard of this suspect's rights, then that

should have triggered the operation of this

discretion.

The final document that I want to hand to the

Court, with the Court's leave, is just a document

which summarizes what we say are the facts and

appends the pages from the voir dire, the witness's

evidence to support each of those contentions. We say, for the most part, they cannot be regarded as
controversial. They are facts and the evidence is

there, and either the evidence bears them out or it

does not. Could I ask that those documents be

supplied to the Court and just explain them to the

Court very briefly, and that will conclude my submissions.

BRENNAN J:  Mr Weinberg, I do not know whether this is

relevant, but in the notes which you have handed up

from the Full Court, the only reference to Pollard

is in the Full Court of Victoria. Is the court

Heatherington 52 8/2/94

left to find for itself, do you know, the judgment

of this Court - - -

MR WEINBERG:  I am sorry, I did not catch the last part of

what Your Honour s~id to me.

BRENNAN J: There is a reference to Pollard in the Full

Court of Victoria.	Do you know whether the Full
of this Court?	Court was then left to find for itself the judgment

MR WEINBERG:  I do not know, but I would imagine not,

Your Honour, because there are so many extensive

references to the judgment of the High court in the

judgment of the Court of Criminal Appeal that it is

inconceivable, we say, that the case - - -

DEANE J: Well, had the judgment of this Court been

delivered at the time of the hearing - - -

MR WEINBERG:	Yes.
DEANE J:	- - - as distinct from the time of judgment?
MR WEINBERG:	Your Honour, I am sorry, I had not checked

that point.

BRENNAN J: It seems that the date of hearing is 4 and

5 March.

MR WEINBERG:  4 and 5 March 1993, and this Court handed down

its judgment in December - December 24 1992. We

are instructed specifically that it had been. handed

down and that it was known to counsel for the

applicant. But the Court will accept, in my

submission, the point was properly taken in the

written grounds and expressly abandoned. And

expressly abandoned on the basis that counsel said,

"I cannot see that there has been a breach of

section 464C", the judge having found that there

was and it being demonstrably the case, and common

ground, that there was.

The Court of Criminal Appeal should have said

at least that much, and not said, "We agree that

there had been no breach shown of section" -

perhaps they did not say that at all.	If I go back
to Mr Justice Marks, he left it sitting.

In addition, Mr McDermott conceded he was

unable to submit that in fact there had been

any breach of section 464C or what the

breaches which His Honour had in mind and

which he did not identify. Wwe have not been

given any reason which suggests that the

investigating police did breach s.464C -

Heatherington 53 8/2/94

That seems to suggest that Mr Justice Marks does

not think there was a breach either. But there

was. Fact undeniable, irrefutable.

The folder that we have handed to the Court

contains a statement of facts on voir dire; three

pages and two paragraphs that probably require a

little elaboration or explanation. The rest of it is the extracts from the voir dire, the witnesses,

and we have taken the liberty of actually

underlining or highlighting, I think in perhaps not

all of the copies, the relevant passages. The

reason for that is that the highlighter ran out at

about 3 o'clock in the morning. So we apologize to

those members of the Court who do not have

highlighted passages and perhaps we should say that

the highlighting should be disregarded so that all

members of the Court treat the material in the same

way.

But, what we say is that the passages in

question are all extracts from witnesses who gave

evidence on the voir dire, including the accused. There are then passages at page 84 and 85, which

consist of a concession being extracted from the

Crown as to the basis upon which His Honour should

deal with the conflict between the police evidence:
two police officers saying that there was no

questioning of any kind and one saying that there

was, and His Honour did say, at page 85 - this

comes back to our first ground:

On that basis, I think it is appropriate to

say, in broad terms that I would have to say

in the light of the way the evidence came out

that I would be disposed to draw the

conclusion that Mr Steendam asked some
questions which were designed to get the broad

picture and that they were answered by

Mr Heatherinton in such a way as to provide

the broad picture.

And the Crown accepted that and thought that was an

entirely appropriate finding of fact to be made.

DEANE J: What was Mr Steendam's evidence about the notes

set out on pages 6 and 7?

MR WEINBERG:  They were his notes. He took them during the

course of the conversation, and he said - - -

DEANE J: And, it was simply blurted out?

MR WEINBERG:  Yes. That appears at page 18.

DEANE J: Well, in that context the material you referred to

in this submission does not seem to me to disprove

Heatherington 54 8/2/94

the validity of the trial judge's ruling at

page 81, which - - -

MR WEINBERG:  81 of the application book?

DEANE J: Yes, which was really to the effect that the

reference to telephoning a friend, and telephoning

a lawyer did not come after the questioning had

been completed.

MR WEINBERG:	His Honour certainly describes it as "the discussion", and His Honour said that it touched on
those subjects - - -

DEANE J: And, he puts those as the first things that he

mentions.

MR WEINBERG: Yes, Your Honour. What I said was common

ground was that those things were not said before

questioning commenced.

DEANE J: His Honour seems to think they were said at the

commencement, and - - -

MR WEINBERG:  No, with respect.

DEANE J: Well, "the discussion touched on".:. - -

MR WEINBERG:	Yes, "How the accused was, how Mr Simpson was, whether the accused wanted a cup of coffee, whether
he wanted to telephone a friend, whether he wanted
to telephone a lawyer. Touched on subjects."

DEANE J: Well, it does not seem to me to disprove that and

to say these matters were only adverted to after

the questioning.

MR WEINBERG: After the questioning commenced, Your Honour.

DEANE J:  I am sorry, I misread, or I must have misread

what - - -

MR WEINBERG:  What we say - I said to Your Honours that I

would want to - - -

DEANE J:  No, paragraph 8 said:

It was only after the preliminary conversation (i.e. the first set of questions

had been asked, and answered) that the

Applicant was given an opportunity to telephone a friend.

MR WEINBERG:  Yes, Your Honour, that is one of the matters

that I was going to say that the Court needed to be

qualified because what we are saying, and what we

intended to say, was that was when he was given the

Heatherington 55 8/2/94

opportunity. That is when he was given the

telephone and told - - -

DEANE J: All I was suggesting to you is that what is said

there is contrary to the trial judge's ruling, and

when one looks at the evidence which is relied upon

to support it, it does not support it at all

because it is evidence given in the context of a

denial that there was any questioning of that type.

MR WEINBERG:  We understand that, although there was also

evidence that there was questioning of that type

and that evidence was accepted, but not by

Steendam. I understand Your Honour's point.

DEANE J:  The point I am making is that I really do not see

the ground for departing from or going any further

than what the trial judge said at page 81.

MR WEINBERG:  The only point we make about that,

Your Honour, is that Steendam's evidence was that

the telephone was made available to the applicant.

He was given the telephone and the number was

dialled by him at a particular point in time, and

that was the time at which Steendam left the room.

That had to be after the questioning because

Steendam took the notes.

DEANE J: That does not seem to me to follow necessarily in

the context where there is a denial that there was

any questioning.

MR WEINBERG:  But it had to be after the things that led to

the notes were said, if I can put it that way,

Your Honour.

DEANE J:	I can see the force of that.
MR WEINBERG:	And that is what pages 19 and 98 disclose.

There is a timing set out in those which indicates, we say, quite clearly that the sequence of events

to call a friend, and that is during the	is at some point he is told that he has the right
discussion. It may be early in the discussion, but
not before questioning commenced.

DEANE J:  I have not read the evidence because it is not

before us, but I thought that what was said by

Steendam was "all these things were blurted out".

there was not a discussion or questioning -

MR WEINBERG;	Yes, that is what he said.
DEANE J:	- - - and then these things happened.
MR WEINBERG:	And His Honour found that Steendam had

endeavoured to colour his evidence and on that

Heatherington 56 8/2/94

aspect was not-credible. His Honour made that

finding. But putting that to one side, the

evidence we say as to when he was given the

telephone book, which was after he had made the
call to his friend, the telephone book being the
telephone book for the purpose of contacting the

lawyer, and the fact that the telephone was made

available to him just before Steendarn left the room

point - - -

DEANE J: What you say may be right, but if we take what the

trial judge said at page 81, it does not seem to

me, apart from the lack of a recording, to be all

that much to complain about.

MR WEINBERG:  Your Honour, it depends because the

statute -

DEANE J: If you are saying that the trial judge's statement

there is incomplete and misleading - - -

MR WEINBERG:	We say that.
DEANE J:	- - - then I can follow that it may well be if one

looked at all the evidence on the voir dire, one

might· accept that.

MR WEINBERG:  We say that, Your Honour, but could we just

say this. It is not just a requirement of 464C

that you give the applicant the information. It is

also a mandatory requirement that you defer the

questioning for a time that is reasonable in the

circumstances to enable him to make the

communication.	We say that is the breach; that was
not done.

DEANE J: What communication? To the lawyer?

MR WEINBERG:  To his friend and to the lawyer. It is both

communications.

DEANE J: Except the trial judge's finding said:

The discussion certainly included the subject of the accused contacting a friend,

and he was able to speak by telephone to a

friend, Brian Renard.

MR WEINBERG:	He was and did, but he did so
DEANE J:	I follow you are saying after the questioning.

The trial judge is not saying that.

MR WEINBERG:  The trial judge is saying there was discussion

about that during the questioning, but the trial

judge is not saying that he was afforded the

opportunity to make the call or that the

Heatherington 57 8/2/94

questioning was deferred to enable him to make the

call; in fact quite the contrary. It plainly was

not.	Your Honours, I cannot improve that
submission.	We have set ouL what we have to say.

We hope that we have done it fairly in relation to

the statement of facts. We ask the Court - we also

have a full copy of the 140 pages of the voir dire

in case the Court is minded to think that the pages

that we have chosen do not present a complete

picture.

MASON CJ:  Mr Weinberg, we will give some consideration to

whether we will proceed with this material during

the course of the adjournment.

MR WEINBERG: If the Court pleases.

MASON CJ:  We will take the matter up further after the

adjournment. That may involve hearing what

Dr Jessup has to say.

MR WEINBERG: If the Court pleases.

MASON CJ:	Does that conclude your argument?
MR WEINBERG:	Your Honour, there was one other matter that I

had neglected to put on the 464H argument. If I

could just finish that, and that will conclude my

submissions subject to anything else that the Court

wanted to say.

It struck us, with respect, that there is

something peculiar about a construction of

section 464H which leads to this conclusion.

Section 464G requires that the statutory warnings

given under section 464C be tape recorded. It is a

mandatory requirement. If that be the case, and if

questioning is about to commence, as it was found

to have occurred at 10.35 pm, then it followed that
there was a mandatory requirement, not just that
the statutory rights be given to the applicant

under section 464C, but also that they be recorded.

It follows therefore that there was, in effect, a

double breach. Not only were they not given, they

were not recorded.

If the judgment of the Court of Criminal

Appeal is correct in Heatherington, it produces

this bizarre result. By virtue of

section 464C and G, before a lead-up interview

occurs, the suspect is required to be told his

statutory rights and they must be recorded.	One
can then switch the machine off, one can then

question the accused in the lead-up interview, and

one can then switch the machine on again. The

parts that have been recorded go into evidence, and

the parts that have not do not go into evidence.

Heatherington 58 8/2/94

If the judgment of the Court of Criminal Appeal is

correct in its construction of section 464H, that

is what occurs. That cannot be the law. If that

is not to fragment questioning, then we say there

is just no other way of approaching the problem.

In other words, what we are saying is we gain

comfort in our argument about section 464H from the

requirement of section 464G that the machine must
be turned on before the statutory cautions are

given, and they must be given before questioning

commences. That was the only matter that I wanted

to add to our submission on 464H.	If the Court
pleases.

MASON CJ: Yes. Dr Jessup.

MR JESSUP: If the Court pleases, we have prepared an

outline of the argument which we propose to advance

this morning.

MASON CJ: Yes, we have those.

MR JESSUP:  May we deal first with section 464H. I do not

think there is any argument from my learned friends but that the ratio decidendi in Pollard's case was,

as we have set out in paragraph 1, namely that

subsection (l)(d) does not require that for any
confession or admission made by a person in custody
within the meaning of section 464(1) and properly
tape-recorded under that paragraph to satisfy the
conditions set out therein, that the whole of the
questions and responses of, and given by, the

suspect while so in custody at any and every place

where facilities were available, had to be tape

recorded.

Neither did Pollard decide that all

questioning at the same place, being a place where

facilities were available, had to be tape recorded,

or that in all cases questions asked at a different

place from that at which the confession or

admission was made would not have to be tape

recorded. My learned friend says that this case

case decides the matter for all other cases that might come before the Court, and the facts of this case are different from those in Pollard's case

involves a number of things that were left open by

and, of course, one cannot determine this case

simply by an automatic application of the approach

which the Court took in Pollard's case.

In our submission, the true rule is that the questioning which must be recorded under

paragraph (d) is the same questioning as is first mentioned in that paragraph. Two of Your Honours

Heatherington 59 8/2/94

made observations to that effect, and we would

submit that it is implicit in the judgments of the

other members of the Court who did not diss~nt on

that occasion. Your Honour the Chief Justice at

page 181 at about point 7 on the page, refe~ring to

the subsection, said:

As it is drawn, the sub-section gives rise to

the question: what is meant by the words
"confession ... made during questioning" where

they appear in pars (d) and (e)?

And at the start of the next paragraph:

In resolving that question, the first

point to be made is that the later words "the

questioning and anything said by the person"

appear to relate naturally back to the earlier

words and appear to take their meaning from

those earlier words.

Your Honour Justice McHugh, at page 227 at about

point 2 on the page, said:

The ordinary grammatical meaning of both

paragraphs is that a confession or admission

is admissible if it was made during
questioning and the questioning and anything

said by the person questioned at that place

were tape-recorded.

In the sentence prior to that Your Honour said:

Grammatically, the words "the questioning"

where they appear for the second time in

s 464H(l)(d) ands 464H(l)(e) refer to the

"questioning at a place" etc which appears

earlier in those paragraphs.

Then, at 228 to 229, commencing at the foot of 228,

Your Honour said:

These considerations simply reinforce the

point that, grammatically, the term

"questioning" where it secondly appears in s 464H(l)(d) and (e) refers to the earlier

words "questioning at a place ... to conduct
an interview" in those two paragraphs.

In our submission, the issue is whether the questioning which was not tape recorded was the same questioning or the particular period of questioning as that in which the confession or

admission was made. Your Honour the Chief Justice

earlier today referred my learned friend to the

relationship between the two questionings in

paragraph (d) and what the legislature, in our

Heatherington 60 8/2/94

submission, was concerned about was to ensure that

the questioning dµring which the confession or

admission was made and everything said in response

to those questions was tape recorded. In our

submission, Your Honours, it is a question of fact

as to whether that criterion is established or that

test is satisfied in any case.

That gained support, as we have indicated in

paragraph 4, from passages in Your Honours'

judgments, the judgments of Your Honours

Mr Justice Toohey and Mr Justice Deane.

Why then do we find the reference to "a place"

in paragraph (d)? In our submission, that

reference does no more than to set up a criterion

to distinguish the two situations dealt with by

paragraph (d) and paragraph (e). So that if you

have a place at which facilities are available, you

take your guide from paragraph (d). If you are in

a place where facilities are not available, you

take your guide from paragraph (e). But, in either

event, the issue remains: was the confession or admission made during this questioning? If not, then it is not necessary to tape record that

questioning in order to secure the admission of

questioning during which the confession or

admission was made into evidence.

We do not pretend that the construction of the

legislation along those lines points automatically
or readily in every c'ase to a simple solution to
practical problems. But, with respect, that is the
charter which the legislature has laid down and it
is not for Your Honours to provide such solutions

where the legislature has chosen to leave the
matter as one of fact and degree. In a sense, my

learned friends would need, and they seek

Your Honours to impose upon the legislation, a

gloss by way of construction which simply is not

there.

They seek that Your Honours should go further

than Pollard and to make certain rulings about how
the legislation ought to be construed when really
the legislation is tolerably clear as a matter of

construction. What is difficult is its application

in any particular fact situation.

In essence, what we have said - if I could take Your Honours forward to paragraph 6 in our

outline, as a matter of special leave and for that

point as a matter of appeal at this level,

Your Honours will really only be concerned with the

construction of the section, as you were in

Pollard's case. As a matter of construction there

Heatherington 61 8/2/94

are really only three possible approaches that can

be taken.

The first one is the approach which was

rejected in Pollard's case. The second one is the

approach that everything done at a particular place

must be tape recorded, whether it was the day

before at that place or two days before at that

place, whereas things not done at the place do not

have to be tape recorded, even if they are in

substantive respects connected with the questioning

in which the confession or admission was elicited.

We will come back to that in a moment and we say

that approach is also unsound.

The third approach is that it is a question of

fact in each case, and Your Honour Justice Toohey

so held, in our submission, and we would take

Your Honours to page 217 of the report in

Pollard's case. At the foot of page 217

Your Honour said this:

If (i) a confession or admission is made

to an investigating official (ii) at a place

where facilities are available to conduct an

interview and (iii) the questioning and

anything said by the person questioned is

tape-recorded and (iv) the tape-recording is

available to be tendered in evidence, nothing

ins 464H operates to render evidence of that
confession or admission inadmissible. It is a
question of fact in each case whether the

requirements mentioned above have been met. In some circumstances it will be clear that

they have been met; in other circumstances it

will be clear that they have not. Sometimes,

especially when the questioning of a person

has taken place on more than one occasion or
at more than one place, it may not be easy for

the trial judge to determine, as a question of

fact, whether the requirements of s 464H(l)

have been met. But the sub-section itself,

with its division into pars (c), (d) and (e)

seems to recognize that there may be more than

one "questioning".

MASON CJ:  Dr Jessup, we will adjourn now and resume at

2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

Heatherington	62	8/2/94
UPON RESUMING AT 2.18 PM:
MASON CJ: Yes, Dr Jessup.

MR JESSUP: If the Court pleases. Returning to

paragraph 5.4 of the outline, it is our submission

that "place" cannot be the criterion by reference
to which to determine where the particular

questioning ought to be tape recorded along with
other questioning which was tape recorded and

contained a confession or admission. If "place"

were the criterion, one would have some unusual and

curious results, in our submission.

One of them was given by His Honour Mr Justice Southwell at page 109 of the application

book. That was the example of an interview

commencing at a particular police station when it

was found that the tape recorder was faulty and

going to the next police station. Indeed, in that

example it would not only be possible to move to

the other police station in order to have a

recorder which was working, but indeed necessary to

do so. One would have the police saying, "Well,

since we have asked some questions at police

station A which haven't been recorded, we can go

anywhere else to deal with the matter on tape but

we can't do it here because the Act says this is

the one place in the world where we are not

entitled to ask any further questions."

Secondly, the admissibility of a taped confession would turn on the chance and apparently

irrelevant circumstance of whether an earlier

period of questioning was held at the same place

rather than, as we would contend, on whether the

earlier questioning was, in substance, part of the

same questioning as that in which the confession

was made.

Thirdly, a confession m ade before

commencement of questioning could be confirmed on

tape at the same place, under paragraph (c),

whereas the asking of any questions, even without

eliciting any confession, would effectively act as

a bar to the admissibility of a confession or

admission made in the course of taped questions

subsequently asked at that place.

Now, once one sets aside "place" as the

criterion, then one comes, inevitably, we would

submit, to it being a question of fact and degree.

I think my learned friend, this morning, came down

to articulating the test in something like these terms, "whether by reason of circumstance, time,

Heatherington 8/2/94

place and proximity, it should properly be said

that there is a single process of questioning".

Now, if he comes to that point, he really does come

to the point of saying, "Well, it is a question of

fact in all cases". The only difficulty about that particular formulation is that it diverts attention

from what the legislature has chosen to say. It

may be that in a particular case, circumstances or

time or place or proximity all aid the

investigation as to whether it is the one

questioning or different questionings but it would

not, in our submission, be helpful to divert

attention from what the legislature has said by

setting up criteria to which the legislature has

not made reference.

Now, the construction for which our clients

contend, and I now return to paragraph 7 on page 4,

does not produce the result that the police may

have what my learned friend refers to as lead-up

interviews, or dry-runs or that the police may
artificially divide up periods of questioning in

order to secure for themselves an advantage in

relation to the period of questioning in which a

confession or admission is elicited. The

legislature has recognized in section 464J that the court will always retain that discretion to exclude

evidence which has been unfairly obtained, and that

is the place to which the Court should look when

dealing - - -

DAWSON J:	I do not understand that; what, to exclude the questioning which was not tape recorded?
MR JESSUP:	I am sorry, Your Honour.
DAWSON J:	You say there is always a discretion to exclude evidence which is unfairly obtained, but what if
the evidence which is unfairly obtained is the
evidence which is comprised in the interview which
was not recorded, which is separated by a period of
time from the recorded interview?
MR JESSUP:	Your Honour, the admissibility of that evidence

is not dealt with by the legislation at all. If it

does not contain an admission or confession, then

the legislation is not concerned with it - - -

DAWSON J: But it does. Let us assume it does.

MR JESSUP:  If it does contain an admission or confession then it is not admissible under H.

DAWSON J:  But no one is trying to put it in evidence. No

one is trying to put the - - -

MR JESSUP:  No, Your Honour.

Heatherington 64 8/2/94

DAWSON J: It is the recorded interview which succeeds - the

one that is objected to, which you try and put in

evidence.

MR JESSUP:	Your Honour, the question is whether the confession or admission and the interview in which
that has been obtained should be put into evidence.
DAWSON J:	But it may have been obtained in both and that is

the complaint. That having been obtained in an

inadmissible way in the first interview, it then is

recorded, with a reference to the period of time

between the two interviews, and it is the second

interview which contains the admission, again,

which is tendered in evidence.

MR JESSUP. Yes, Your Honour, and that -

DAWSON J: But the fault lies with the first one and no one

is trying to tender that in evidence.

MR JESSUP: That is so, Your Honour, but it is the second

one which can be excluded if unfairly obtained

under section 464J.

BRENNAN J: That means that if in the morning the detective

says to the suspect, "At 2 o'clock this afternoon I

am going to conduct a record of interview with you about this event, and if you do not confess in the
course of that record of interview, we will then

charge your wife and children with offences."	Now,
on your argument, it is no objection under 464H
that that first interview is not recorded.

MR JESSUP:  Your Honour, as you have put it to me, that

first interview would not come within 464H in any

event because it does not involve questioning. A

threat of that kind is obviously something which is

dealt with under J as being no more than an

expression of what the common law would have - the

approach it would have taken in any - - -

BRENNAN J:  The example I gave you was poorly constructed on

that basis.

DAWSON J:	Can I give you another one?
MR JESSUP:	I hope it is constructed in the same way,

Your Honour.

DAWSON J: There is genuine questioning but no caution is

administered and none of the requirements of the

Act are complied with, with respect to a relative

or a lawyer, and an admission is elicited and then

an hour later a recorded interview has begun and

all of the requirements of the Act are complied

with, but an admission has been made without the

Heatherington 65 8/2/94

protections in the first interview. No attempt is

made, of course, to tender evidence of the first

interview, only evidence of the recorded interview.

MR JESSUP: Yes, Your Honour.

DAWSON J:	And there would be no ground objection, on your submissions, to the recorded interview.
MR JESSUP:	Not under H, Your Honour.
DAWSON J:	No.
MR JESSUP:	Not unless on the facts it was in the same

questioning, but -

DAWSON J: Yes, so that you could commit all the faults

which the Act attempts to guard against in the

first interview and have secured your position and

then merely repeat the admission to the second

interview, having mouthed the protections which the

Act requires.

MR JESSUP: Well, Your Honour says "mouthed" in a way - - -

DAWSON J: Well, the cat is out of the bag.

MR JESSUP:	- - - which rather colours, but, with respect, for the purposes of Your Honour's example, it must
be assumed that the protections were genuinely
given, although given too late, as they were in
this case.

DAWSON J: Well, assume that had he known what the caution

conveys to him at the time the first interview is
conducted, he would not have confessed, but when he

comes to the second interview, well he has and he

knows that and he does not realize the difference,

so he sees no point in denying it.

MR JESSUP:  Your Honour, that may be so, and if it is unfair

case seeks to admit and can admit under H, then it	to admit the only evidence which the Crown in that	is excluded in the exercise of the Court's
discretion under J; that was the point I was seeking to make, Your Honour, that if in a
particular case the combination of recorded and
unrecorded periods of questioning is so engineered
by the police as to be unfair, then it is not as
though the court does not have the power to do
something about it, and the Act recognizes that the court ought to do something about it under
section 464J.

DAWSON J: Well, you go so far as to say, if there is an

unrecorded record of interview and the requirements

of C, is it, are not complied with in relation to

Heatherington 66 8/2/94

that unrecorded interview, then if the confessions

are repeated in a recorded interview, it ought to

be excluded on the ground of unfairness.

MR JESSUP:  No, Your Honour. I think Your Honour

Mr Justice McHugh rather thought that would be

properly regarded as the prima facie position in

the judgment in Pollard's case. In our submission,

no such prima facie position is discernable from

the legislation looked at as a whole. Rather, the

Hare not complied with, then it is inadmissible.	prima facie position is that if the requirements of unless it is unfair, or for other circumstances
under J, it ought to be excluded. So in that sense
something which passes muster under 464H prima
facie ought to be received in evidence.

DAWSON J: Is that not just flying in the face of reality?

I mean, once the police know that they can extract

a confession without having to obey the

requirements of the Act, provided they conduct the

interview at a different place and at a sufficient
length of time from the recorded interview, will

they not do it, and then the recorded interview

will be a formality?

MR JESSUP:  No, Your Honour, in our submission, not for a

number of reasons. If the warnings and the
cautions provided for in 464C are properly given
then inbetween the first time and the second time

the accused person will have a genuine opportunity

to be advised by a lawyer that he ought not to say

anything in the taped interview. Secondly,

Your Honour, there might be cases in which so to

proceed would be unfair. Your Honour puts it to me in a way which rather suggests that in all cases it

is to be assumed that that is an improper way of

proceeding.

DAWSON J: Well, I am perhaps suggesting that in most cases,

if not all, that it would be unfair. There is such

a thing known as the police station shuffle, is

there not?

MR JESSUP:	As what, Your Honour?
DAWSON J:	The police station shuffle.

MR JESSUP: Yes, Your Honour, but that is not, with respect,

Your Honour, the approach which the legislation

takes.

DAWSON J: Well, not on one view anyway.

MR JESSUP:	Yes. which it would not be unfair, and it can only be	Your Honour, there may be circumstances in
Heatherington	67	8/2/94

decided, we submit, on a case-by-case basis. At

the end of the day, Your Honour, one cannot

approach 464H other than by asking the questions

which we have submitted ought to be asked.	Is it
part of the one questioning?

Now, if it is not, that notwithstanding that

it is not part of the one questioning, there are

aspects of it which would make the reception of

that admission unfair, Your Honour, well, of

course, the Court can do something about it, and

that is the only submission which we make in that

regard. It is not as though it is the end of the

day for the accused once the prosecution satisfies

the test in 464H.

TOOHEY J: Could I just ask you this, Dr Jessup: where a

taped interview is challenged under section 464H by

reason of some earlier interview, on your

submission is it relevant and, if so, to what

extent to compare the contents of the earlier
interview with the contents of the recorded

interview?

MR JESSUP: Yes, Your Honour, it will be necessary to

compare those and to compare the circumstances.
One cannot say to what extent but, to give

Your Honour an example which I think was dealt with

this morning in my learned friend's argument, if in the recorded interview the accused declines to make the same confession that he made in the unrecorded

interview and if the police investigating officer

then cross-references back, as it were, or

cross-examines him by reference to the earlier one,

then that would be a very material circumstance, in

our submission, by reference to which one could say
that the two periods of questioning were in point

of fact linked in such a way as to make them the

one relevantly, Your Honour, to the confession or

admission which is what we would submit is the

touchstone for the relationship between the two

things. That is, it is the questioning during

which the confession or admission was elicited.

TOOHEY J:  I understand that illustration, but what if, just

on the face of the recorded interview, there is no
cross-examination or reference back, yet on

examination of the earlier interview matters are

asserted by the accused from which it might be

inferred that they are the jumping off point for

questions asked in the course of the recorded
interview? Is that a legitimate exercise for the

court to carry out in deciding whether to refuse to

admit the tape-recorded interview?

MR JESSUP: Yes, Your Honour, we would accept that. We

would not, a priori, exclude any exercise for the

Heatherington 68 8/2/94

court to determine whether there is one period of

questioning or two.

TOOHEY J: But I take it you would go on to say that, given

a sufficient distance in time and/or place, even if

the police relied upon some information garnered in

the course of the first interview, that that of

itself would not be a reason for refusing to admit

the tape-recorded interview, or would it?

MR JESSUP:	We would submit that under no circumstances could one say as an absolute proposition,
Your Honour, that that of itself would not be a
sufficient reason for excluding it, or would be a sufficient reason for excluding it. Your Honours
will be aware by now that it is really part of our
submission that one simply cannot lay down from the
legislation guidelines or rules or strictures which
simply are not there. That may not be
satisfactory, others may think it is very
satisfactory, but that is what the Act says.

BRENNAN J:  What is the point of difference of principle

between your argument and that of your opponent?

MR JESSUP:  I have been thinking about that over lunch-time,

Your Honour, with some difficulty.	I think what it
comes down to is this:	I think my learned friend

embarked upon a course of saying that all questions

with respect to the involvement of the suspect in
the offence, that is, questions other than cups of

tea and the like, at least at the same place, were

caught by 464H.

BRENNAN J:  I thought he was saying in answer to a question

from me time, place and content, all of them.

MR JESSUP: Indeed, Your Honour. He then came - I think it

was in response to that question - that you look at

the circumstances, the time, the place, the

proximity, and those are the things that come to

his mind because he is appearing in this case.	the legislation does not tell you to look at those But
things, and there may be other cases in which other
criteria could be quite intelligibly suggested by counsel for the accused.

BRENNAN J: If we take all relevant material circumstances, then the question for us to consider is whether or

not that was the approach that was taken by the

Full Court.

MR JESSUP: Yes, Your Honour, and I think what he came to

saying at the end of the day is that he should get

special leave because the Full Court, in effect,

misdirected itself by asking itself the wrong

questions in determining what is in essence a

Heatherington 69 8/2/94

question of fact and degree, and we will show

Your Honours as best we are able that that was not

so.

McHUGH J: I thought there was a more fundamental

distinction	between your position and that of the
applicant.	You seem to be saying that the issue is
whether the	confession or admission was made during
questioning	which was tape recorded, full stop.

MR JESSUP:  No, Your Honour, no. If that was all there was

to it, then I would not need to be in Canberra
today. What I am saying is, it is the question of:

was the questioning which the accused asserts ought

to have been tape recorded the questioning during

which the confession or admission was made? And

that must be the test, Your Honour, because that is

what the statute says. It says, if the confession

or admission was made during questioning, at a

place where facilities to conduct an interview were

available, the questioning - now once you accept,

grammatically, as I think Your Honour does, that
"questioning" second mentioned is the same

"questioning" as the "questioning" first mentioned,

then it is the questioning that - really just a

matter of identifying the questioning which must be

recorded. And it is the questioning during which

the confession or admission was made.

McHUGH J: Yes.

MR JESSUP:	And that will be, Your Honour, a matter for the court on the voir dire, and on the face of it - - -
DAWSON J:	I thought it was one of the aims of this

legislation to get rid of the expensive and

protracted voir dires which were gumming up

criminal trials.

MR JESSUP:  Of course, Your Honour, and to a large extent it

does that but, in so doing, it sets up thresholds

be dealt with on a voir dire. Whether I am right	and hurdles and barriers which themselves have to
or my learned friend is right, that is what comes
out of the legislation. My learned friend says
that if you do not grant leave here and uphold the
appeal, then someone will be here next week or
month with a five minute interval or a fifteen minute interval or something like that.

To the contrary, if you do grant leave and

uphold this appeal upon the basis that the

circumstances, the proximity and the bundle of

events in this case were such as to make it

inevitable that it was just the one period of

questioning, then other people will naturally try

and fit within the criteria that Your Honours have

Heatherington 70 8/2/94

adumbrated, and there will be a lot of

applications.

That may or may not be something proper for

Your Honours to take into account but at the end of
the day the legislation says what it says and

Your Honours can, in our respectful submission, do

little more than defer to that. It may be that

working under this legislation will keep the

Victorian courts very busy until the legislature fixes it up, as the Full Court suggested that they

should.

DEANE J:  The end of clause (e) of 464H(l) would seem to

make clear that the legislature was not concerned

about ttcat out of the bagtt or ttpolice station shufflett in that it expressly provides for it.

MR JESSUP: That is right, Your Honour, yes. I do not know

whether my learned friend went so far this morning

as to seek to persuade Your Honours that the

contentions which he advanced in fact had the

authority of the Court in Pollard's case, although

he did say that those of Your Honours who dissented

on that occasion could be taken together with, I

think he said Your Honour Justice McHugh, to make a

proposition for which the case as a whole does not

stand as authority. In paragraph 8 we have

referred to the well known cases in which it is

established that a case is authority for what it

decides and one cannot re-engineer the particular

reasons of some members of the majority with all or

some of a dissenting minority to make the case

authority for something else. We would not have

thought that there is anything controversial about

that.

So that then takes us to the facts of this

case and quite clearly the Full Court did consider
the facts and they held that the questioning during

which the confession or admission was made was not,

words of Your Honour Mr Justice Toohey in Pollard, which had been tape recorded nor was it, to use the nor was it part of, the same questioning as that ttaffected by that question.tt

Now, my learned friend has taken you to some

of these passages and he has said that that cannot

be the test. Well, Their Honours were not
purporting to adumbrate any test; Their Honours
were purporting to consider a question of fact by

reference to the surrounding circumstances and of

course no one or more surrounding circumstance will

be the test, in any case, but they will be the

things that, as it were, stand out from the facts

of this particular case and assist the tribunal of

fact or, in this case, the Full Court being asked

Heatherington 71 8/2/94

to deal with the question as a matter of fact, to

make that determination.

Now, can we take Your Honours to page 101. I

am afraid I am working from the appeal book

references to the Full Court, if that is not

inconvenient to Your Honours. At line 16,

Mr Justice Marks said:

It is therefore likely to be unnecessary

to say more about the meaning of "questioning"

in section 464H(l)(d). Nevertheless, it seems

to me that once it is accepted that

"questioning" in that sub-section 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.

Now, in our submission, that did not constitute a

misdirection by His Honour; he was doing no more

than saying, "Was this the questioning during which
the confession or admission was made, relevant to

the production of the confession or admission or at

least temporally related to it?"

BRENNAN J:  What does that mean though? I mean, the first

part of that "relevant to the production of" seems

to look to the question of cause and effect. The

second part, having regard to the practical

situation to which the Act is to apply, I simply do

not understand.

MR JESSUP: Temporally related to, Your Honour?

BRENNAN J: Yes.

MR JESSUP: Related in point of - - -

BRENNAN J:  Of course it is temporally related to it, but the question is, distantly or immediately?

MR JESSUP: With respect, His Honour must mean proximate in

point of time. I suppose everything is temporally

related to everything else in one sense.

BRENNAN J: That is right.

MR JESSUP: But one would have understood His Honour, on a

fair reading, to mean proximate in point of time.

That is to say that if you look at it simply and in

the sense of timing then you can say that the

confession or admission was made in this, "period

of questioning" and indeed, in Pollard's case, at

least one I think - a couple of Your Honours did

Heatherington 72 8/2/94

use the expression, "period of questioning" and it

is really no more.than that, Your Honour.

BRENNAN J: But if you look at (d) - - -

MR JESSUP: (d), Your Honour?

BRENNAN J: 464H(l)(d).

MR JESSUP: Yes, Your Honour.

BRENNAN J: 

The criterion specified by the statute is the

confession is made during a period which is defined
by reference, not to the making of the confession,
but to the asking of questions.

MR JESSUP: Yes.

BRENNAN J:  Now why should it be then that that period is to

be determined by reference to the answers given as

distinct from the questions being asked?

MR JESSUP:  No, Your Honour. A temporal or a connection in

point of proximity between the questions and the

confession or admission and that connection is

conveyed by the word, "during", in our submission.

It is not that one takes one's temporal discrimen from the confession or admission alone but, rather,

one looks at the time of questioning during which

the confession or admission occurred, and if one finds some break in point of time then that is a

factor by reference to what one may say, that was

the terminus of the relevant period of questioning.

Of course, one is not compelled to say that.

In other circumstances one may say, "Well there was

a break in point of time, but it was not a

substantive break, it was to change tapes, or to go

to the toilet or what have you", but none the less

it is a factor which is open to be available, in

our submission.

DAWSON J: But what if there are a number of questions which

are only peripheral to the making of the

confession? He might be asked about his movements

on a particular day and about other people and so

on, but really the only questions which relate to

the making of the confession are questions such as,

"Did you kill X?". Can you then excise that

portion of the questioning and say, "Well that is

the only part that related to the confession"? I

think you do say that, do you not?

MR JESSUP:  No, we do not, Your Honour. We do not say

"relates" at all, we say "during". We say that it

is the period of questioning during which the

confession is made. We do not say it is the

Heatherington 73 8/2/94

questions which related to the eliciting of the
confession or admission, we say it is the period of

questioning during which the confession or

admission was made. Now, in a case that

Your Honour puts to me, if there is a single period

of questioning in which lead-up questions about

what kind of car you had, and things like that were

asked, but an uninterrupted period in which the

confession or admission was elicited, then the

answer would be, "It is a single period of

questioning. " .

BRENNAN J:  But if you see the way in which Mr Justice Marks

applied his test in the following sentences, he

acknowledges that an issue may be whether the

recorded questioning is only part of other

unrecorded questioning which is, in some relevant

way, connected, then says:

But no such issue can sensibly be said to have

arisen here -

for a reason which he then attributes -

The record admitted in evidence was that of a

discrete questioning properly to be considered

to have a logical entirety -

MR JESSUP: Yes.

BRENNAN J:  In other words he focused upon what was admitted

in evidence. Is that a logical entirety? Yes, it

is, ergo there is no relationship.	Now, is that
not a fallacy?

MR JESSUP: Well, no. That may not be the complete answer,

Your Honour, but that is an approach which is open

to the judge to take in determining the question of

fact. In our submission, he was not setting that

up as the test, but if they had not been a logical

entirety, if they had in some sense been open-

ended, one would immediately be thrown off to some

other period of questioning, but one is not. So,
it is proper for him, and not a misdirection, to
say, "Well, on the face of it, that is the

questioning. There is nothing in that questioning

which suggests there is something else". Now,

clearly His Honour did not close his mind to the

other period of questioning because the whole case

was about that, and he had the evidence before him,

including the notes of Mr Steendam that are before

Your Honours today.

In our submission, he was entitled to say that

a factor to be looked at, certainly one would have

thought a useful starting point, is to see if the

period of questioning which includes the confession

Heatherington 74 8/2/94

or admission is capable of standing on its own in point of timing, Your Honour, and in point of the

intelligibility of the questions and answers, and

things of that nature.

DAWSON J:  So that if you had a questioning which related to

a number of offences, only one of which is in
question in a particular case, it would not matter
if the questioning about the other offences was not
tape recorded, so long as that portion of the

question which related to the offence in question

was tape recorded?

MR JESSUP:  It might not matter, Your Honour. I am sorry

not to be -

DAWSON J: But then, you see, you say it is something other

than during the questioning. It must be a

questioning about something.

MR JESSUP: Yes, but there might be other circumstances, but

for this particular reason, yes, Your Honour, it

would not matter, but there might be other

circumstances which make some other period of

questioning in point of substance part of the

questioning in which that confession was made.

Then Mr Justice Southwell, at page 107 at the foot

of the page:

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 ands 464C,

whereas those requirements were meticulously

met in the recorded interview.

Of course, my learned friend says, "Well, that is
begging the question", and undoubtedly it is.	None

the less, it shows in point of fact nothing more

than what His Honour said, that the police did not

approach the matter as though it was one period of

questioning. If you are starting from the
proposition that the police are connivers and that

they are scheming to get round the legislation,

that probably will not get you very far. But why

start from that proposition? All they are saying

is that this was an interview between two people,

between the police and the accused, and the

police's own behaviour appeared to show that they

treated them as discrete.

DAWSON J:  I think one can say in reply to your comment the

whole legislation is based upon the fact that

Heatherington 75 8/2/94

confessions may be disputed and validly disputed,

so that you cannot start from the proposition one

way or the other that the police do or do not

fabricate confessions.

MR JESSUP:  I understand that, Your Honour, but none the

less, one is seeking to characterize certain events

which involve real people, and it is relevant to

look at the way those people saw themselves as

proceeding at the time from objective criteria, not

from self-serving statements made later, but from

objective criteria. His Honour continues:

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.

McHUGH J:  Why is that not a misdirection, Dr Jessup?

MR JESSUP: That was simply a finding of fact, Your Honour,

giving them their ordinary meaning. Without

wanting to be too sophisticated about it, what we

had was some relatively informal questions and then

there was a gap, and then they sat down 40 or 45

minutes later, put the tape recorder on and they

asked some formal questions. So he said, as a

tribunal of fact, "I just look at this and say it

is not the same questioning."

McHUGH J: But, surely "questioning" is refer to a process

there, and the questions might be quite different,

the subject-matter may be quite different, but you
are looking at a process, and although the Court
held that questioning in 464H is not the same

questioning as in 464A, 464A(2) must throw some

light on what subsection H(d) is directed to, must

it not? And, if you bring somebody to the police

station and you question that person, that person

is there over a number of hours, surely that is

within the section.

MR JESSUP: Well, it is within A, Your Honour, but whether

it is within His what this case is about and, with

respect, Your Honour, it may be accepted that

questioning is a process but, really, that is to

bring in another concept which the Act does not

really give you. I could just as easily respond by

saying that the process which commenced at 11.25

with the tape recorder on was a self-contained

complete process ~nd a different process from that

which occurred	=lier without the tape recorder
on.

MCHUGH J: But His dealing with three situations:

Heatherington 76 8/2/94

confession or admission made before the

commencement of questioning .....

the confession or admission was made during

questioning at a place where facilities were

available .....

and a -

confession or admission was made during
questioning at a place where facilities were

not available -

Now, does not that indicate that D, prime facie,

requires all the questioning at a particular place

to be tape recorded, and it may be that you can

say, "Well, there was questioning yesterday, and
there was questioning a week earlier, and there

were two separate lots of questioning at the

place." But, if you have got somebody in custody

for several hours at a particular place where

facilities are available, does it not seem as

though the legislature intended that all the

questions, and anything said by the person were to

be tape recorded? That was the purpose?

It is not hard to understand what the object of that requirement was. It was to ensure that no

unfair or improper questioning brought about a

confession or admission by a person.

MR JESSUP:  Your Honour's last observation we would not

disagree with, of course, that that is clearly an

object of the legislation. But section 464H is not

concerned with people who are in custody, it is

concerned with confessions or admissions. As

Your Honour rightly points out, (c), (d) and (e)

deal with three different circumstances. But under

(d) and (e) the first question one must always ask

oneself is whether the confession or admission was made during the questioning. To put it around the

other way, whether the questioning which you want

to have tape recorded or it is contended should be

tape recorded had during it the confession or

admission.

McHUGH J: But does not H seem to indicate that (c), (d) and

(e) exhaust the possibilities? It is either

dealing with a questioning made before or a

confession made in a place where facilities are

available or a confession made at a place where

facilities are not available, and it deals with

each of those three situations.

MR JESSUP: They exhaust the possibilities so far as the

statutes deal with it, Your Honour, but they say

Heatherington 77 8/2/94

nothing about the recording of a questioning in

which a confession or admission was not made.

McHUGH J: But (d) in particular emphasizes that it is the

questioning at a place that is important, otherwise

(d) would simply read:  "If the confession or

admission was made at a place where facilities were

available to conduct an interview and the

confession was tape recorded."

MR JESSUP: No, Your Honour. In our submission, (d) and (e)

would not be necessary if it were possible to

formulate a section that simply says, "any

confession or admission made during questioning

shall be tape recorded." In an ideal world, that

is no doubt what the legislature would have said,

but they cannot say that because sometimes they are

made during questioning where there is no

tape-recording facility available, and so they have

to take the approach of (d) and (e) and, in our

submission, it is a purely logistical problem with

which we find (d) and (e) dealt with in that way.

It really does not answer the question about

what you do about questioning in which no

confession or admission is made or what you do

about questioning in which a confession or

admission is made but which is never going to be

sought to be admitted because what section 464H

deals with is not custody but confessions or

admissions, and it deals with them only to the

extent of their admissibility in court.

Now, I was taking Your Honours to page 108 and

at line 10, Mr Justice Southwell said:

Upon this application, counsel for the

applicant conceded that while in ordinary
parlance the applicant was being "held for

questioning" during the whole of the time he

was at Dandenong police station, it could not

be said that "the questioning" continued

throughout - he was not, for example, being

"questioned" at 11 pm. No doubt if

questioning is interrupted for a cup of tea,

or for a trip to the toilet, the fact that

questioning ceases would not lead to a finding

that there are separate questionings. It is,

as Justice Toohey observed, a matter of
degree.

Now, all of that, we would submit, is

unobjectionable.

Here the earlier interview lasted about 5

minutes, perhaps 10 minutes, ending at about

10.40 - 10.45 pm. The impugned interview

Heatherington 78 8/2/94

commenced at 11.25 pm; its nature and content

show that it was not, and did not purport to

be, a resumption of the earlier interview - it

was not as if the interrogators were resuming

where they had earlier left off. In ordinary

parlance, it was, and appeared to be, a

separate interview.

Now, in our submission, there is no misdirection

there. If His Honour is dealing with a question of

fact and degree, then he has approached the

question in an unobjectionable way and likewise

Mr Justice Harper, at page 122 - it is the last

incomplete paragraph, the last 15 lines or so -

His Honour said:

Although, as his Honour found, the applicant

had earlier provided Steendarn 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.

And, again, it is not to the point, in our

submission, to say that these are not the tests set

up by the legislature. Of course, the legislature

does not set up any test, the legislature leaves it

to the tribunal of fact and, in our submission,

His Honour decided that matter of fact in an

unobjectionable way.

Now, we remind Your Honours, also, that the

preliminary discussion was informal, it lasted

about five minutes only, with an interval of about

40 minutes, and the taped interview was about two

hours duration of about 601 questions. Those are

matters with which Your Honour will, by now, be

well acquainted. Now, on page 89, in the ruling of

the trial judge, at line 12, His Honour said:

I do not think that the police deliberately

set up a "dry run" situation, with the aim of

framing their questions so as to obtain a
preponderance of answers unfavourable to the

accused.

Heatherington 8/2/94

Now, there had been a good deal of argument before him as to whether this was a·"dry run" or, on the

other hand, just.an occasion upon which the accused

told the police what had happened and the police
asked some questions along the way. At the end of
the day, that was a matter for His Honour to
determine. If one finds, in point of fact, that
the questioning is not the same, and one finds that
the police were not concerned themselves or did not

set out to use the original unrecorded questions as

a "dry run" for the taped interview, then, in our

submission, there can be no basis upon which it can

be said, at this level, against the findings which

have been made below that 464H ought to have

operated, or did operate, to exclude this

transcript of evidence from admission into

evidence.

BRENNAN J:  In regard to the approach taken in the

Full Court, would it make any difference if there

were a dry run?

MR JESSUP:	Yes, Your Honour.
BRENNAN J:	Why?
MR JESSUP:	For this reason, that one then might be able -

whether one would or not - but then one might be

able to say that it was the same questioning.

BRENNAN J: Say, for example, it was separated by precisely

the same time as in this case and in the same

circumstances and that the first lot of questioning

was in fact engaged in as a dry run.

MR JESSUP:  Your Honour, I was rather seeking to distinguish

the facts as found in this case from - - -

BRENNAN J: Well, I appreciate that

MR JESSUP:  the example that you are putting to me.

BRENNAN J:  In terms of principle of the approach taken by

the Full Court, would it have made the slightest

difference in this case if the finding of the trial

judge had been that this was a dry run?

MR JESSUP:  Yes, Your Honour.

BRENNAN J: Why?

MR JESSUP:  In our submission they could quite rightly have

been asked to regard that as a significant factor

by reference to which to say that there was the one
series of questions here, the one period of

questioning. Because all the later questions would

be framed with a view subjectively to eliciting the

Heatherington 80 8/2/94

responses that they knew would be given to them

because they had earlier been given that way.

BRENNAN J:  So that the relevant criterion in such a

situation is the subjective cast of mind of the

investigating officer?

MR JESSUP:  It is a powerful factor, Your Honour. I would

not say that it is something which must in every

case turn the scales, but it is clearly a powerful

factor.

BRENNAN J: Is there anything in paragraph (d) which

suggests that the mind of the investigating officer

is a relevant factor?

MR JESSUP:  No, there is not, Your Honour, and there is

nothing in that paragraph which points one to any

relevant factor, but by the same token, neither is

there anything which is excluded from investigation

as an irrelevant factor, and that is why we submit

that so long as the tribunal of fact approaches the

matter fairly to decide the question of whether in
point of fact there was one period of questioning

or two periods of questioning, then a court sitting

on appeal really cannot interfere because the

legislation does not, in point of construction,

tell you what must and must not be taken into

account in determining that fact.

Now, that is all we wish to say about

section 464H, Your Honours, and we will say

something now about 464C.

MASON CJ:  We need not trouble you about that aspect of the case, Dr Jessup. The Court has reached a

conclusion about it and I can express it in this

way.

So far as the application for special leave is

based on section 464C of the Crimes Act 1958, the

application is refused. The point was expressly

abandoned in the Court of Criminal Appeal and it

relies on a factual basis which is not completely

supported by the findings made by the trial judge

at the conclusion of the voir dire.

MR JESSUP:  If Your Honour pleases. Does that ruling,

Your Honour, apply also to the question - I think

my learned friend relied not only on 464C, but upon

the absence of a warning which, I think, is

required by 464A(3)?

MR WEINBERG:  I did not rely on it separately, Your Honour,

it is part of what - - -

Heatherington 81 8/2/94

MASON CJ: Yes, where it does apply. Now, Dr Jessup, there

is one point that still remains. It is not a point

that goes to the substance of the matter, but it
goes to the part of the transcript that the

applicants sought to place before the Court. Now, the applicants sought to place it before the Court on the 464C question, but the Court takes the view

that it may well be relevant to determining whether

or not there was an entire or single question.	Do
you have any objection to the Court having access
to that part of the transcript?

MR JESSUP: 

Your Honour, our position is that the Court should have access to the whole of the transcript,

and I think my learned friend wanted to hand up one

copy of that only.  I am afraid we cannot provide

the Court with more than one copy, but it would be

unsatisfactory if the Court had selected passages,

particularly passages which were selected with a

different point in mind.

MASON CJ: 

Were the parties in a position to arm the Court with the relevant transcript?

MR WEINBERG: 

I am in a position to arm the Court with one

copy of the relevant transcript but not with nine
copies of the relevant transcript. It is

140 pages.

MASON CJ:  One will be enough. If need be we can make

copies of it, if that proves to be necessary.

MR JESSUP:	Then that resolves that matter, Your Honour.
MASON CJ:	Is there anything beyond that that we should be

looking at on that question, Dr Jessup?

MR JESSUP:  I do not think so, Your Honour. If the Court

pleases.

MASON CJ: Thank you. Yes, Mr Weinberg.

MR WEINBERG: If the Court pleases. If I could deal with

paragraph 9.3 of our learned friend's written

submissions to the Court, the paragraph asserts

that:

The preliminary discussion was not a "dry run"

for the taped interview.

My learned friend took the Court to a passage which

appeared at page 89 of the application book which

does not quite say that, with respect. It says

that His Honour did not think:

that the police deliberately set up a "dry

run" situation, with the aim of framing their

Heatherington 82 8/2/94

questions so as to obtain a preponderance of

answers unfavourable to the accused.

On the previous page at 88 His Honour did say at

line 9:

I have no doubt that, in other

circumstances, the course which Steendam

appears to have followed of having a dry run

to cover the events to be the subject of

detailed questioning later could be found to

be unfair.

So that on one view His Honour was finding simply

that there was no intention to have a dry run but
that that may have been the effect of what in fact

occurred. It is also true, in our submission, to
say that there are subconscious, if not conscious,

advantages in knowing what the answers to

particular questions are going to be, having asked

them and received the answers. It is a very

difficult question then, in our respectful

submission, to make the question of whether this is

the same questioning or different questioning turn

upon the subjective intent of the police or,

alternatively, even the question of whether some
obvious advantage was gained. It is very difficult

to say in any given case.

The net result of the kind of argument my

friend was putting to the Court being accepted as

being the appropriate discriminating factor between

there being two questionings or one questioning, we

say is inevitably to lengthen trials and to involve

the Court in answering some very, very difficult

and very subtle questions when the simple answer is

to require the police to switch the recorder on

when they are questioning a suspect about the

offence; that puts an end to anything.

We still have not heard one argument from our

learned friend in support of the arguments advanced

by the Court of Criminal Appeal that that kind of

proposition is unwieldy, expensive and obviously

not what Parliament intended for that kind of

reason. We noted that our friend did not seek to

support those observations by the Court of Criminal

Appeal in the course of his submissions.

The next matter was 9.2. My learned friend

says in his submissions, "The preliminary

discussion was informal." What does that mean? It

may mean simply that the accused was not given the

statutory rights and cautions and that the recorder

was not switched on. If that is what he means by

"informal", then it was informal. But on the

findings of the learned trial judge questions were

Heatherington 83 8/2/94

asked about the offence which the accused was

suspected of having committed, and those questions

were answered.

Certainly the police adopt, as the Court will

see from the transcript, a distinction between what
they call an "informal" interview and a "formal"

interview. There is nothing in the legislation

which condones that kind of distinction or which

should encourage the police to apply their minds in

that particular way.

If one goes back to paragraph 7 of our learned

friend's contentions. He says that it is not

really such a dire problem because there is always

the discretion in relation to unfairness which an

applicant can invoke. We make two points about

that. There is an onus which rests upon an

applicant to satisfy a court affirmatively that

that particular discretion ought to be exercised,

and it is a very different position to put an

applicant in than to say that as a matter of

construction this statute requires, giving the

words their ordinary and natural meaning, that
there be recording of all questions at a place
where tape recording facilities are available, all
questions about the subject-matter of the offence
by an investigating official in circumstances of

the kind that occurred in this case.

Our learned friend submitted that the various

formulations adopted by the members of the Court of

Criminal Appeal really do not amount to tests or

criteria perhaps. They were indicia for applying

the test that Your Honour Justice Toohey put

forward. We say, in effect, they are going to be regarded as tests by other courts which will read Heatherington. We say they are tests. They are

the only tests that were put forward, and we say

each and every one of them was misconceived; each

and every one of them was wrong. They are not

appropriate criteria for determining whether or not

two periods, if I can use that neutral term, in

which questioning occurred were for the purpose of

section 464H(l)(d) questioning of a kind that

required that that questioning and the answers

given be recorded.

My learned friend submitted in paragraph 6 of his outline that there were really only three

logical possibilities. We say there are four. The

logical possibility that he puts forward as {ii)

contains within it the same ambiguity about the

meaning of the word "questioning" which we

addressed at the outset of our submissions. Does

he mean the wider concept of questioning, namely

all questions of whatever kind, or does he mean the

Heatherington 84 8/2/94

narrower concept of questioning which is

questioning about the subject-matter of the

offence?

Beyond that, if the Court pleases, we believe

that all of the matters that we wish to present to
the Court have been placed before the Court and we

have nothing further to add.

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

its decision in this matter.

AT 3.21 PM THE MATTER WAS ADJOURNED SINE DIE

Heatherington 85 8/2/94