JAH v The Queen

[1993] HCATrans 294

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SlS of 1993

B e t w e e n -

JAH

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

JAH 1 8/10/93

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 2.03 PM

Copyright in the High Court of Australia

MR T.A. GAME: If the Court pleases, I appear for the

applicant, together with my learned friend,

MR S.J. ODGERS. (instructed by C.R.M. Neave,

Managing Director, Legal Aid Commission (New South

Wales))

MR R.O. BLANCH, QC:  May it please the Court, I appear for

the Crown, with my learned friend, MR P.J.P. POWER.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

MASON CJ: Yes, Mr Game.

MR GAME:  If the Court pleases, this is an application for

special leave to appeal from a - - -

MASON CJ:  You can proceed straight to the matters you want

to argue.

MR GAME:  In the Court of Criminal Appeal, four groups of

submissions were put, and they went broadly to

section 410, voluntariness, unfairness and Bunning

v Cross discretion. The first of those issues was

resolved favourably by Justice Priestley in

dissent. Justice Badgery-Parker, with whom

Justice Mcinerney agreed, resolved the first

unfavourably and proceeded to determine the

remaining three unfavourably.

It is our submission that matters of general

importance and particular importance in relation to

this case arise in relation to each of those

issues. But the first and central point concerns

what was said to the applicant by Detective Griffin

at about 9.30 pm on 17 January, and this appears on

page 57 of the application book. At line 25 he

said:

'I will tell you now that specimens taken from

that little girl have been analysed and

compared with a blood sample that you gave.'

That sample had been given on 3 January.

'These tests have found that you are of the

same blood group as that of the offender.	Do
you understand that?'	The defendant lowered
his head and said, 'Yes.'	I said, 'I want you

to think about this matter and I will be back

shortly to tal·k to you. '	We then left the
cell area."

These tests were, in fact, not blood tests as such.

They were enzymatical tests of a kind called

phosphoglucomutase, and they showed that the

2   8/10/93

applicant was 1 plus, which is common to 37 or

38 per cent of the population.

At the time this information was relayed, the applicant had been in illegal police custody for

some two weeks. The evidence established that at

the time this information was imparted, the police

knew that the blood results could not be broken

down any further. The police knew that the next

day they would have to take the applicant to

Long Bay because they could not keep him there any

further, and the detective concerned - - -

DAWSON J: Why? They seem to have kept him there for long

enough.

MR GAME:  They just felt they could not keep him there any

longer.

DAWSON J:	I see.
MASON CJ:
MR GAME:	That illegality was found by the Court of Criminal

Appeal to be deliberate and no other finding would be possible on the evidence. This material which

was put to the applicant was, what is described as

"subject to confirmation". It was information

which could not be used until it was found to be
reportable, and this information was found not to
be reportable, and the forensic biologist involved,

Mr Goetz, said that he knew on the 17th or after, possibly on the 17th, that it was not reportable.

The material which Justice Priestley relied

upon in coming to the conclusion that this was an

untrue representation - - -

TOOHEY J: Before you take us to that, Mr Game, could you

tell us what, in your submission, the test is of an
untrue representation?	I mean, is it objective?

Is it what is in the mind of the person making it,

what is in the mind of the person to whom it is

made?

MR GAME:	Your Honour, in order to determine whether a representation is true, you have to determine
TOOHEY J:	The question is whether it was untrue.
MR GAME:	To determine whether or not a representation is

untrue, you have to determine what the meaning of
the representation is. That is the first step. In
order to determine the meaning of the

representation you have to look at the entire

context, including the knowledge and intention and

the states of mind of both the representer and the

JAH 8/10/93

representee. True or untruth can only be

understood when one ascertains what meaning is for

both the representer and the representee, and that

can be seen in many instances in ordinary life.

For example, people tell lies by telling the true,

and visa versa, or by withholding some of the

truth. So there is no such thing as objective

truth in some literal or positivistic sense. Truth

or untruth has to be ascertained by reference to

what was communicated between the parties. That is

the argument that we put to the court, and that is
the line of reasoning that Justice Priestley

followed, and we submit that it is unassailable in

its logic.

DAWSON J:	And you would say it encompassed innuendo?
MR GAME:	Yes, Your Honour, but very importantly it

encompasses in this case - the critical thing is

that the police knew that all this evidence did was

not exclude the applicant. It had no forensic

significance. They had no case against him; they

had no evidence against him. It was not even a

piece of circumstantial evidence which they could use. It is as if they walked up to him and said,

Australians and you just happen to be one of them." "We've narrowed this down to seven million been withheld.

Moreover, if you look at the statement it is a

very strong statement:

"I will tell you now -

and the person who is being told this is an

18 year old who had just turned 18, who failed

school at the age of 14, virtually illiterate, and

he says:

"These tests have found that you are of the

same blood group -

He has been approached every couple of days and asked if he will participate in a record of

interview and he said, "No, they are waiting for

the blood tests".	They come and tell him this, and
they are telling him something significant.	He
says:

"Do you understand that?"	The defendant
lowered his head -

So he has appreciated it was something significant.
So to the representee it is something significant.

They say:

4   8/10/93

'I want you to think about this matter -

Well, he has got something to think about. It is not nothing; it is something significant. That,

in my submission, is a very strong statement in

these circumstances.

If one comes back to the particular portions

relied upon by Justice Priestley, at page 53

line 20, he says the only reason he was there as at

3 January was because they wanted to speak to him

in relation to the blood tests. Page 54 line 6:

Q. He was approached a number of times by

police?

A. At least by one and perhaps more police to

ask if he would be prepared to talk to me

about this matter, yes.

Q. The sole reason you know of why he was in

gaol -

I think that must mean police cells -

was he was awaiting blood tests?

A. Yes.

Then at page 55 line 18 to 20:

A. Oh no, that could have been very sparse.

The blood group doesn't take it very far.

Line 28, "wide spectrum". Page 56 line 9:

Q. You left him there to ponder what you had

told him?

A. Yes.

Q. With the hope he would come forward and

give an interview?

A. Certainly I hoped that would be the case,

yes.

So he was hoping for a confession. And he said:

if positive, was not exclusionary, but that is

as far as it went?

A. That's right.

And as I have said, they had no other evidence

against him upon which they could charge him. Then

at page 56 line 23 in relation to the connection

with him and the crime:

That may be so. If you had a fingerprint or

something that connected one particular person

with one crime. In this case, a blood

grouping didn't do that.

JAH 8/10/93

Then at page 57 line 3:

Q. Because this blood group of the accused is

that held by 37 or 38 per cent of the

population?

A. Whatever it is, I know it is a fair amount,

yes.

So the starting point is that the most significant piece of information has been withheld, and the

information has been conveyed in such a way as to

put such that this statement means that the police

have significant evidence of the accused's guilt.

In fact, it would be my submission that when the

police officer says, "I want you to think about

this matter", he is saying, "We have evidence by

which we can prove you are guilty. It is now a

matter for you to decide if you want to make a

confession". That is the meaning of that

statement, in my submission.

The way in which Justice Priestley approached

the question appears at pages 60 to 61. At page 60

line 16, statements -

did not however state the complete truth; in

the circumstances they suggested that the fact

stated was more dangerous to the appellant

than in fact it was.

We would submit that it was actually rather more

than simply more dangerous, that the police had

evidence which established his guilt is the meaning

of those statements.

MASON CJ:	You do not have to go that far, do you?
MR GAME:	No, I do not, but we would submit that that is

the - - -

MASON CJ: Well, "assists in establishing your guilt"?

MR GAME:  Yes, assists in establishing his guilt. Then the

critical part of Justice Priestley's judgment

appears at page 61, the whole of the page. It
examines what these statements meant in their

totality having regard to, as I have said, context,

knowledge and intent, and the question of truth and
meaning cannot be identified abstractedly.

Justice Badgery-Parker sought to answer these conclusions, and at page 66 he observed, as

Justice Priestley had said, that the statements:

"did not however state the complete truth".

6   8/10/93

but he said it did not follow that the

representation was untrue.

The words did not mean - "We are in possession

of forensic evidence that identifies you -

We would submit that they do, but then he gives

three examples to support the line of argument

which he pursues. One is a case where a person is

told that the offender has red hair. Another is a

case about a model of a motor car, and another is a

case about shoe prints. That appears on page 67.

Those are all cases in which the other information

which the representer has can be taken to be known by the representee because it is common knowledge.

DAWSON J: Perhaps it is of significance that

Justice Badgery-Parker keeps talking of untrue

statements, and that is, of course, not what the

subsection says - a representation may be different

from a statement.

MR GAME:  Yes, Your Honour, the word "representation" is

clearly critical and that which Justice Priestley

directed his attention to. And the connection

between the representation and intent is meaning

because meaning could only be established by

reference to intent and knowledge.

Justice Badgery-Parker concluded his line of reasoning at page 68, and without reading it, it

starts at line 5 and goes down to line 25. We

would submit that Justice Badgery-Parker makes the

mistake of thinking that you can identify the

objective truth or falsehood of a statement without

reference to context and without reference to

intention and knowledge, and for the reasons I have

already given that line of reasoning is, in our

submission, unsustainable.

MASON CJ: There may be a distinction between context and

intention.

MR GAME:  Yes, Your Honour, but context includes intention.

It may be that in this case one could establish

that these representations were untrue by reference

to context alone without reference to intention. But having regard to intention, it is clear that

the representations are untrue. Having regard to

context the representations are untrue even if one

puts intention to one side, and that is for the

reason that the circumstances in which the

representation was made, the duration, the fact

that they went to him and spoke to him in the

cells, and so forth.

8/10/93

MASON CJ:	The curious thing, it seems to me, is that on page 66 the judge seems to have acknowledged the
context was relevant in determining what a
representation was, but when it comes to 67, all
the examples he gives are cases in which objectively there is a statement, the meaning of
which cannot be influenced by context.

MR GAME:  Yes, Your Honour. The view of context, in so far

as there is a view of context, is far too narrow.

MASON CJ:  It may be that when I speak of context at 66, all

that His Honour is doing is talking about

implication rather than context.

MR GAME:  My submission is that when it comes down to it,

Justice Badgery-Parker has put aside both context

and intention, and in so far as he makes any
acknowledgement of the relevance of context at

page 68 lines 20 to 23:

no evidence of anything done by him at the

time of his conversation which can have

converted the statement made by him into a

representation.

The final words, even on that very narrow view of

context, would convert the statement into an untrue

representation.

That is really the starting point of the case, the section 410 point.	The trial judge did not
deal with the representation at all.	He mistook

the issue as being solely related to this question

about confirmation and reportability. He never

dealt with the untrue or misleading nature of the

representation at all. He never dealt with it

either there or on voluntariness or on unfairness

and, in our submission, that flows through to each
of those other considerations.

In relation to confirmability and

reportability, we do not put that at the forefront

of our argument, but we would submit that that is

clearly a relevant consideration when determining

whether or not the representation was true or

untrue.

DAWSON J:  I am not sure I understand what

confirmability - - -?

MR GAME: Well, Your Honour, when the information was

imparted, it was at least known by the police that

it was subject to confirmation and that it was

possibly known at that time that it was not even

reportable, that is to say, they could not use it.

JAH 8/10/93

DAWSON J: Reportable to whom?

MR GAME:  It had not been confirmed by further photographic

tests, so it was not something that could be used as evidence. The evidence is that Goetz actually

knew of these blood results on 8 January. By the

17th, it was clear that they could not be broken

down any further. They may have known at that time

that they were not reportable, but they certainly knew that they were subject to confirmation. So, as I said, the trial judge treated the whole issue

as relating to that confirmation issue and failed

to address this issue at all, and it is clear that

it was raised.

So in relation to the section 410 point, we

would submit that it raises an important question

in relation to interpretation of section 410. It

raises an important question in relation to the

determining the meaning itself in the context of
conversation, and it is an important issue in the
context of this trial itself which was a very
serious case, and the consequences of that finding

are this particular applicant is serving a 20 year

gaol sentence. That is the section 410 point.

MASON CJ: Is there another 410 point in relation to the

statement made that he was observed going through

the park roaring like a wild animal?

MR GAME:  Yes, I beg your pardon, Your Honour. I was going

to come back to that. At page 14 of the

application book, police officer Diggins said to

the applicant:

Q. I have been told that you have been

identified as the person who was seen running

through the Lake Illawarra Village Caravan

Park screaming and making animal noises.

What do you have to say about that?

A. I wasn't there.

That was an untrue representation

MASON CJ:	Made by way of mistake, was it?
MR GAME:	The trial judge made no finding on that issue, and

the reason he made no finding was because he said

it did not influence the first record of interview

which was exculpatory. He was asked to make a

finding that it was still relevant in relation to
the second record of interview and he did not

consider that issue at all.

What happened was Diggins, who is this officer

who conducted the first record of interview, said

he got that information from Griffin. Griffin said

JAH 9 8/10/93

that he did not impart that information to Diggins,

and he knew that that information was false.

Griffin is the officer who conducted the second

record of interview and that false representation

was never withdrawn, and Griffin was aware of the

fact of the first record of interview plainly

enough at the time of the conduct of the second.

TOOHEY J:  I am not sure what use you make of question 62 in

relation to the only record of interview that is

under the attack, namely, the second record of

interview.

MR GAME:  Your Honour, the section says that a confession

made after an untrue representation shall be deemed

thereby to - perhaps I had better get the precise

words - - -

DAWSON J: It has to be induced.

TOOHEY J: But your grounds of appeal only touch the second

record of interview, do they not?

MR GAME:  Yes, the situation was that I had proposed to

argue the relevance of this really in the context of the unfairness discretion and involuntariness, but we do make the submission that the Crown,

whether it be by way of voluntariness or unfairness

or section 410, had to, in effect, exclude the

continuing relevance of that. What is significant

is that Griffin never withdrew that false

information, so that by the time the confession of
the 17th was made, two highly critical false
representations had been made, one of a

forensic -

MASON CJ: There is no need to recover ground already

covered, Mr Game.

MR GAME:  I am sorry, I was just attempting to explain to

Justice Toohey what the reason was why it was

addressed in relation to the other issues on the

application.

In relation to the voluntariness point,

Justice Badgery-Parker said that this issue was raised only in relation to - and this appears in

the application book at page 69 - the question of

violence or threat of violence and the untrue

representation. As it turned out, no specific

allegation of violence was made, although

allegations of implicit violence were made or the

threat of violence. As I have said, the trial

judge did not continue the question of the untrue

representation at all in any context in relation to

the trial. It is clear that counsel raised

JAH 10 8/10/93

voluntariness in the full sense, and that is clear

from counsel's written submissions.

At page 71 at the top of the page, His Honour

said the disposal of the 410 issue disposed of the

untrue representation question on voluntariness,

and we would dispute that, because that then raises

the question if it is not disposed on 410, then one

has a literally true but intentionally misleading

representation, that is to say, a trick, and in our

submission, that goes to voluntariness, and we

would submit there is a special leave point there

which is the role of trickery in relation to

voluntariness. Connors, in New South Wales is an

authority to the effect that trickery does not go

to voluntariness. There are cases in the Northern

Territory and South Australia that suggest that it
does, and we would submit that McDermott and

Collins are cases that would make it plain that matters such as trickery go to voluntariness.

Cleland, we would submit, is another case that supports - - -

DAWSON J:  It may be a threat of disadvantage too, may it

not?

MR GAME:  Yes. So we would submit that it does go to

voluntariness and the disposal of it did not

dispose of it on voluntariness.

His Honour at page 71 line 23 - it appears

that he has excluded illegality on voluntariness.

In our submission, that is itself an error because

of the implicit threat of continued detention, and

his remand warrant was to 8 March, and he was given

no information that he would ever be taken from the

police cells.

At page 72 His Honour appears to have

concluded that this was a case in which there was

no evidence to cast out on the question of
voluntariness.	The trial judge did not consider

any of the matters touching on voluntariness, and

if I could take the Court to the application book

at page 93, we would submit this was a very extreme

case on voluntariness. This applicant, as I have

said, had been kept in illegal custody for two

weeks; he was suffering from drug withdrawal; he

was receiving treatment for it; he threatened self

harm on the 16th; he harmed himself on the 7th; he had chicken pox; he was taken to hospital for it; he was never given any choice in relation to

the record of interview; he was taken from the

cell at 11 o'clock at night until 5 o'clock in the

morning when an interview was conducted; he was

repeatedly visited and asked if he would

participate in interviews.

11   8/10/93

In our submission, all those matters went to

voluntariness. According to the police, the
conversation before the interviews commenced with

him saying, "Are you going to hurt me? Are you

going to kill me?" All of those matters went to

voluntariness, and in our submission, the Court of

Criminal Appeal clearly erred in concluding that

there was no evidence that went to voluntariness.

The question of voluntariness is, in our

submission: did the trial judge perform his duties

to consider it? And the answer is, no. Is there

evidence upon which it could be concluded it was

involuntary? In our submission, the answer is,
yes. In our submission, in those circumstances the
court should have upheld the appeal on the
voluntariness point.

In relation to the unfairness discretion, Justice Badgery-Parker accepted at pages 74 to 76

that the trial judge had restricted the unfairness

discretion to the question of reliability, that is

to say, once he was satisfied the confession was

reliable he was of the view that the fairness

discretion had no further work to do.

Justice Badgery-Parker proceeded from there to say

at page 76 towards the bottom of the page over to

77, in effect, that the circumstances in which the

unfairness discretion applies are restricted to

circumstances where there is nothing apparent in

the quality of the evidence on either side to allow
the court to choose between them; and that since,
on his view, the accused's evidence failed

conviction of its own, therefore the discretion had

no further work to do. In our submission, that is

wrong in principle.

This is in relation to what was identified in

Foster as the danger of fabrication: that the

danger of fabrication is clearly only one of the

issues that went to the unfairness discretion, and

on the unfairness discretion there would have been	all the features of the case that I have already
referred to as being relevant to the unfairness discretion, coupled with the matters identified in
Foster, that he was in an environment from which he
could not withdraw; there was an active dispute as
to voluntariness; he claimed fabrication; he had
been questioned on and off for two weeks; he had
no opportunity to contact a lawyer; he was given
no choice at all about whether he would participate
in this record of interview. He said that the
police brought in a typewriter and commenced to type, and that he made denials and that they then
took the typewriter away. That, in our submission,
obviously is a situation where he is clearly
disadvantaged by his - - -

JAH 12 8/10/93

DAWSON J: There still is some area of doubt as to the

overlap of the unfairness discretion of Bunning v

Cross, is there not?

MR GAME:  Yes, Your Honour. Then, without repeating them,

there is the trickery and question 62 go to the
fairness question, and none of that was considered
either by the trial judge or the Court of Criminal

Appeal. Then there is the question of illegality.

The Court of Criminal Appeal found that the

illegality was deliberate, and that is in the

application book at page 78.

However, the trial judge had found that the illegality was not relevant to the making of the confession and he made that finding, in our

submission, erroneously. He made it on the basis that the information concerning the blood was the

cause of the making of the confession. That was

the last operating cause, but there were certainly

other operating causes and one only needs to

reflect on the circumstances, namely, Griffin's

evidence, that he said that he was concerned that

the person would be out of immediate control if he

went to Long Bay. If he was at Long Bay gaol,

which was where the warrant said, firstly he would

have been in a hospital; he was in hospital for

three months; he can refuse to see the police; he would not be seeing the police in the middle of the
night; he could not be taken on a run around,

which is where he was taken in the middle of the

night; he would have access to legal advice;

access to other prisoners; he would not be in

isolation in a cell; he would have a proper daily

routine, and so forth. All those matters would be

clearly relevant. So we would submit that that

finding is a finding that simply could not be made

on the facts. So the finding of deliberate

illegality, in our submission, is also important to

the unfairness discretion.

In relation to Bunning v Cross, there was some

doubt as to whether or not the trial judge

considered Bunning v Cross at all, and

Justice Badgery-Parker accepted that he had not

considered Bunning v Cross, and that appears at
page 77.

Justice Badgery-Parker, in determining the

question in relation to Bunning v Cross, found at
page 79 that since the admissions were cogent, that

that was a matter that affected the question of its

admissibility under the Bunning v Cross discretion.

In our submission, Bunning v Cross is direct

authority to the contrary on that question.

JAH 13 8/10/93

DAWSON J:  What was the trial judge asked to consider in

Bunning v Cross?

MR GAME:	It appears that he was, Your Honour.
DAWSON J:	Well, it does not ..... it appears that he was not.

It was by no means clear that he was asked to do

so.

MR GAME: Well, the last passage in the written submissions

which is quoted by Justice Badgery-Parker says:

if not accepted, then for the reasons above

bearing in mind previous submissions -

and then reference is made to Williams v Reg. It

is not entirely clear but, in our submission, in

any event, the trial judge in circumstances such as

these was obliged to consider Bunning v Cross as

well as the unfairness discretion.

DAWSON J: It has always seemed to me that once you had

decided that it was not unfair, it is	very
difficult to invoke Bunning v Cross.	There may be
two views about it though.

MR GAME:  Yes, Your Honour, except that in circumstances

such as these where the illegality is deliberate,
continuing, and factors such as the seriousness of
the crime really fall away because the seriousness

of the crime is the very reason why they are doing

this.

DAWSON J: It does not work against you because, in fact,

having decided the unfairness issue against you

that may be a reason why he did not go on.

MR GAME:  Yes. He was remanded in custody for quite a

trivial matter involving - when I say trivial,

relatively speaking, trivial - failing to report to

a rehabilitation centre following assaulting his

mother. This illegality was of a high order and	Justice Badgery-Parker thought that the seriousness
of the crime was highly relevant. In our
submission, the seriousness of the crime really
falls away in a case such as this, and it falls
away because that is the very reason for the
illegality, so that questions of public policy
begin to loom large in circumstances such as these
because otherwise the court is giving curial
approval to this type of conduct. In our submission, Foster itself and Justice Deane's
judgment in Pollard are authorities which would
support the conclusion that the seriousness of the
crime in relation to deliberate or reckless breaches is of less importance.

JAH 14 8/10/93

So we make submissions then both in relation

to each of the four issues, and we submit that each

of them raise separate questions of general

importance and specific importance in relation to

the case. Those in brief are my submissions, if

the Court pleases.

MASON CJ:  Thank you Mr Game. What do you say about this,

Mr Blanc.h?

MR BLANCH: If the Court pleases, if I might first just

clarify one question of fact. My friend read out

from page 54 a question and answer in

cross-examination of the police officer:

Q. The sole reason you knew of why he was in

gaol, he was awaiting blood tests?

A. Yes.

I am not sure how that question was interpreted,

but it appears abundantly clear from the rest of

the material that he was not in custody just

awaiting blood tests. He has actually been

arrested on another offence.

MASON CJ: Yes.

MR BLANCH:  As to the 410 point, I have referred the Court

to the decision of Sailor v Reg which I noted in my

argument as being unreported, but it has been

conveyed to the Court. That was a decision of this	reported in (1992) ALJR 268, and I think that was application on the basis that the interpretation of
section 410 in the case of Davidson in the
19th century to the effect that the representation
had to be wilfully false for the purpose of
inducing a confession was correct and to be
followed.

MASON CJ: But that does not bear on this case, does it?

MR BLANCH: Tangentially, Your Honour.

MASON CJ: Very tangentially.

MR BLANCH: Section 410 is a matter that my friend relies on

in terms of interpretation of the section. In our

submission, the interpretation of section 410 is

clear as a result of a decision of this Court on

that basis. The question then arises in this case

as to whether as a matter of fact there was a

misrepresentation which was known to be a
misrepresentation which induced a confession.

15   8/10/93

In the context of that, the Crown would of

course adopt the reasoning of Justice Badgery-

Parker as to what had occurred in the circumstances

of this case.	The police officer knew that the
blood test had been obtained.	He told the result
of that to the accused.	He made no other

representation than the fact that the test had been

done and that the blood sample showed it was of the

same type as the accused's blood. He did not

suggest that that was conclusive proof against the

accused - - -

MASON CJ:  He said, "I want you to think about it".

MR BLANCH:  Yes, Your Honour, he did. In our submission, it

is appropriate for him to have done that. It was a

piece of evidence, as though he had said, "Someone

saw a man who looked a bit like you somewhere near

the scene of the crime."

DAWSON J: But it was put in such a way, it would seem, that

it was a significant piece of evidence against him.

It really would not be any point in saying it to

him if it was not.

MR BLANCH: That is certainly true. There is no getting

away from the fact that he was putting it as a

piece of evidence which had emerged that he wanted

him to think of that may be of some connection

between the accused and then the offence. I think the policeman, in cross-examination, was perfectly

frank in saying that, that that was what his

intention was. I appreciate that, of course - - -

DAWSON J:  The statement may be true, but the representation

which lay behind it was untrue, on one view.

MR BLANCH:  Your Honour, on one interpretation of it. That

is the question. But, the first submission that we

would make about that is that is a question of fact

which has been looked at by the Court of Criminal

Appeal and by the trial judge and, in our

submission -

DAWSON J:  Mr Justice Badgery-Parker seems to confuse the

two. He talks about the true or untruth of the statement which is only - - -

MR BLANCH: Certainly he used those words, Your Honour, but

by the same token, at page 68 when he is talking

about that, it is clear that he is talking about

the statement being a statement which can be

converted into a representation. So he clearly has

in mind that it needs to be a representation and

not a statement, so he has that distinction in mind

when he made his judgment or gave his judgment

about these matters. I take his judgment to simply

JAH 16 8/10/93

indicate that he was looking precisely at that
question, as to the words that were said, the fact

that it is possible that someone might misinterpret

what those words were, what the meaning of it all

was, in the same way as a number of the sorts of

examples that he gave or, as I have indicated, if

the police had said, "Someone that looked something

like you was seen near the scene of the offence".

It may well have been, in the circumstances of this case, the question to be answered was whether feelings of guilt weighing on the accused's mind

had brought him to a stage where the fact that that

statement was made and that he interpreted it as

meaning nothing more than it said, that the blood

grouping was the same. That that was the fact that

induced him to make a confession.

It is clear that the further information given

to the accused was the trigger that caused the

accused to confess, and there is no getting away

from that. It is our submission that, on the facts

of this case, it was perfectly appropriate for the

Court of Criminal Appeal to come to the conclusion

that the words were not said deliberately, in that

sense, for the purposes of inducing a confession.

The way that was put in Davidson, which is the

19th century case that was the case that was

subsequently approved:

"untrue" representation means wilfully

untrue - untrue, that is, to the knowledge of
the person making it, and made with the object
of extorting a confession.

That being the interpretation of the words in section 410, it is our submission that "wilfully untrue for the purposes of extorting a confession",

is a somewhat higher test than the policeman

imparting a piece of information, hoping that that

information would trigger a reaction in the accused

who would then be prepared to talk to them about

the commission of the offence.

TOOHEY J: But inducement is presumed by the statute, is it

not?

MR BLANCH:  Yes, Your Honour, if made in those

circumstances.

TOOHEY J: What do you mean? If made in circumstances that

it is made with intent to extort the confession?

You would not need a presumption in that case,

would you?

MR BLANCH:  Your Honour, the wording "renders inadmissible

in evidence confessions against an accused person

JAH 17 8/10/93

where induced by any untrue representation", et

cetera. The words of the section, "by any untrue

representation made to him by the

prosecutor" - those were the words that were

interpreted in Davidson's case. The section then

goes on to say that if that occurs, there is a

presumption that the confession has been induced by

them.

TOOHEY J: Yes, but if there is no evidence as to whether a

statement had been induced or not, the statute

would presume inducement. In other words, it would

not be necessary for the accused to show that a

statement had been made with the intention of

extorting a confession from him.

MR BLANCH:  The statute does not create the presumption

until such stage as it is shown that, in the words

of Davidson, "the untrue representation was
wilfully untrue", although I think what is being
said there is, "untrue", that is, to the knowledge

of a person making it and wilfully in that sense,

deliberately untrue.

TOOHEY J: That is a different consideration altogether. I

~hought you were suggesting that in order to be an

untrue representation, it had to be made with the

intention of extorting a confession.

MR BLANCH:  And made with the object of extorting a

confession which is the rest -

TOOHEY J: That is not what the statute says.

MR BLANCH: That is what Davidson says, Your Honour, and

that is what the Court of Criminal Appeal held in

Connors, and that is what was approved by this

Court in Sailor.	In Sailor's case this Court did
not repeat the full phraseology in Davidson.	What
this Court said:

In accordance with New South Wales

authority, the Court of Criminal Appeal held

that the relevant part of s 410 ..... only

operated upon a representation that was untrue

to the knowledge of the person making it.

This has long been a construction placed on

the words "untrue representation" in the
context of s 410 or its equivalent. This has

been the view held, at least since R v

Davidson, and recently affirmed in

Connors - - -

TOOHEY J: That is a different point altogether, Mr Blanch.

MR BLANCH:  Yes, Your Honour, but I am simply pointing out

that the phrase in Davidson, as to what section 410

JAH 18 8/10/93

means, is "means an untrue representation, wilfully

untrue, that is to the knowledge of the person

making it, and made with the object of extorting a

confession". That is the phrase.

TOOHEY J:  What I am suggesting to you, or perhaps putting

endorsement? to you, is, does that last aspect have any judicial

MR BLANCH:  It does have judicial endorsement in the sense

that it is - - -

TOOHEY J: Judicial endorsement in terms of section 410?

MR BLANCH: Davidson's case says it, Your Honour, and this Court does not say it in adopting Davidson. But,

the particular passage in Davidson, 16 LR(NSW) 149,

is at page 153. The other case dealing with it, of

course, Your Honour, is the case of Connors in New

South Wales, which is referred to in Sailor, which

was the case that this Court approved.

It is our submission that those were matters

that were recognized by the Court of Criminal

Appeal and they applied those tests to the facts of

this case. It is true that anyone else looking at
the facts could look at them in their context and

come to another interpretation of the facts, but

that was not the interpretation reached by the

trial judge, and it was not the interpretation

reached by the Court of Criminal Appeal. My

submission is that no error is demonstrated in the

judgment of the Court of Criminal Appeal, merely

what is said, is a disagreement with the conclusion

reached by the trial judge and the majority in the

Court of Criminal Appeal as to that point.

The dissent of Mr Justice Priestley is simply

illustrative of the fact that different people

looking at the circumstances surrounding the

statement that was made, may come to a different

conclusion, but it is our submission that it is not

a matter of special leave.

The second point raised by my friend relates to voluntariness, and it is asserted that the

question of voluntariness was not considered.	I
can only refer the Court from page 39 of the

application book onwards where the judge at first

instance looked through a number of matters. What

he did was to wrap everything up together without

dividing them out separately, but there is no

doubt, in our submission, that what he was looking

at was the questions of voluntariness including all

the circumstances, and his treatment of that goes

through to page 46 where he concluded that the

confession should be admitted.

JAH 19 8/10/93

In the course of dealing with that, His Honour

looked at all of the circumstances and he referred

to the fact of all of the circumstances including
those matters enumerated by my friend on the

question of voluntariness and it is our submission

that it is clear that all those matters, in fact,

were considered.

In so far as the question of discretion is

concerned, it is not clear that he was asked to

look at the Bunning v Cross discretion. On the

other hand, it is clear that the trial judge went

through all of these factors. He heard material

and in those pages that I have referred to between

pages 39 to 46, he went through all of those

circumstances and looked at all of those things and

came to the conclusion that the material should be

admitted. It is not as though none of those things

were considered at all. They all were considered

in some detail by him factually, and he reached a

conclusion about that.

It is not necessary for a judge, in those circumstances, although it would certainly be

helpful from an appellate court's point of view if

the judge went through each of the headings one by

one and pointed out where he had applied his mind

to a particular issue, none the less, a fair

reading of those pages - - -

DAWSON J: Well, at least he has to deal with voluntariness

separately, because he has no discretion there, and

when you get to page 46 he seems to think

everything, apart from section 410, was a matter of

discretion.

MR BLANCH:  I appreciate what Your Honour is saying about

that but it is our submission that that is not the

way he was looking at that.	He looked at
voluntariness in a general sense.	He was looking

at all the circumstances of the holding of the

person in custody. He was not looking at that in

the context of 410, he was looking at that in the
context of whether or not question 62 in the first
record of interview, the holding of him in the

cells for two weeks instead of sending him back to

Long Bay gaol, the fact that he had been sick, and

all those matters, none of those matters touch on

the question of 410.	They all must touch on the
question of voluntariness.	He must have been

applying his mind to the question of voluntariness

when doing that.

My friend refers to the question of

Bunning v Cross and in particular to

Justice Badgery-Parker's comment that it is

relevant to consider the cogency of the evidence,

20   8/10/93

and refers to Bunning v Cross, and what was said in

Bunning v Cross in that passage was that cogency

should generally be allowed to play no part where

obtained intentionally or recklessly, and one

assumes that that might well pick up the same sorts

of tests as were being applied to section 410, and
the trial judge had already been through that
exercise.

The fourth matter raised by my friend relates to question 62, and question 62 was some time

before in the earlier record of interview. It was

simply accepted that that had no relevance in the

context of the confession that was made.	The
further matter that he puts in 4(b) of his

submissions is that he talks about the availability

of the blood tests. In the circumstances, that
dispute of fact seems to be largely irrelevant in

the sense that the key attack on this is rather the

misrepresentation at the time that the confession

was made. It is our primary submission that, on

the section 410 point, the law is clear and the

Court of Criminal Appeal applied it correctly.

MASON CJ: We need not trouble you in reply, Mr Game. There

will be a grant of special leave to appeal in this

matter.

AT 2.56 PM THE MATTER WAS ADJOURNED SINE DIE

JAH 21 8/10/93