Kamm v The Queen; Heiss v The Queen

[1993] HCATrans 150

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Darwin No D8 of 1992

B e t w e e n -

PETER MICHAEL KAMM

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Darwin No D9 of 1992

B e t w e e n -

DANIEL LOTHAR HEISS

Applicant

and

Kamm 1 11/6/93

THE QUEEN

Respondent

Applications for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 JUNE 1993, AT 12.01 PM

Copyright in the High Court of Australia

MR D.J. ROSS, QC:  May it please the Court, I appear with my

learned friend, MS E.J. MORRIS, for each applicant.

(instructed by the Northern Territory Legal Aid

Commission)

MR T.I. PAULING, OC, Solicitor-General for the Northern

Territory:  I appear with my learned friend,

MR R.J. WALLACE, for the respondent in each case.

(instructed by the Director of Public Prosecutions.

May I hand up to the Court four copies of a document I have discussed with my learned friend?

It sets out, in comparable form, some provisions of

the Police Administration Act, which is the Act

which is relevant to the application, showing it as

it was at the time of the trial and as it is now.

It will assist Your Honours to do that.

BRENNAN J: Thank you. Yes, Mr Ross.

MR ROSS:  Your Honour, I have got an outline of submissions

out and they only occupy half a page now.

and with your leave I would hand it up to the

BRENNAN J: You ought to be commended, Mr Ross.

MR ROSS:  Thank you. If the Court pleases, in

Willia.ms v Reg, that is the Willia.ms v Reg that is

the decision of this Court in 1986, reference was

made to the fact that any changes to the balance

between personal liberty and criminal investigation

was a function of the legislature and not the

Court's, stated by both sets of Justices in the

majority.

1t was shortly after that that the Northern

Territory Parliament passed section 137(2) and 138

of the Police Administration Act and it may well

have been an invitation that was, by this Court,

accepted by the Northern Territory Parliament. It

seems so because at page 28 of the application book

the Court of Criminal Appeal seems to suggest that

Kamm 2 11/6/93

that was so. From about half the page, what they

say is:

It was against that background that the

Parliament of the Northern Territory, and others in Australia, enacted legislation

empowering the police to detain a person in

custody for prescribed purposes and within proscribed time limits notwithstanding the

requirement that that person be taken before a

justice or court as soon as practicable after

arrest.

MR ROSS:  They went on to say this, Your Honours:

Confessions made whilst a person is held in

the exercise of such a power and during such a

period would thus not be obtained unlawfully

and therefore not attract consideration of the

exercise of a discretion to exclude such

statements, if voluntarily made.

And they go on to set out the sections. And we

say, Your Honours, that it is clear that the appeal

court got off on totally the wrong footing there to

start off with, because the section itself - even

if that were the law, which it is not - neither of

the sections say that; all they say is, "When you

determine what a reasonable period it, you take

various of these things into account", and the "reasonable period" only has a relevance as to

whether or not there should be a time limit in

taking a person before a justice for bail

purposes. So we say that the appeal court got off

on that wrong footing.

It is clear enough from the affidavits of

Mr Coates that the applicants, while they were in

the company of the police, made various confessions

and various statements amounting to confessions,

and they were spoken to, each of them, by the

police on a number of occasions. There was,

clearly enough - at the trial on behalf of each
applicant there was a challenge to the

admissibility of those confessions and the learned

trial judge held a voir dire on each occasion.

It was about that exercise of what would

appear now to be properly an exercise of the

learned trial judge's discretion that the appeal

court said this, at pages 53 and 54 of the

application book:

His Honour adopted a submission made by

counsel for the Crown that one relevant
consideration in determining a reasonable

period is the time it takes to put together a

Kamm

prima facie case, ~t that the police were

entitled to keep a person in custody simply :o

see if "they could brush up the case and make

it a little bit stronger". What was to be

taken into account was how the police

perceived the evidence they had, what was

available and what was likely to be available,

"to make it not just a matter of strong

suspicion but a reasonable prima facie case".

His Honour said, "It could not have been the

intention of parliament to permit a reasonable

period of detention for questioning and

investigation for the limited purpose of

converting an existing suspicion of guilt into

a stronger suspicion of guilt. In my opinion

the ~plicit requirements of the section are

the investigators work diligently, without	that :he initial suspicion be justified, that
delay and with due skill by means of
questioning and investigation to elevate the
initial suspicion into a prima facie case. I
think that the prima facie case must appear to the police to be reasonably achievable because it would not otherwise be reasonable to hold a person under s 137(2) in the mere hope that
"something may turn up".

And we say, Your Honours, that that is quite wrong.

Neither of the sections in the Police
Administration Act contemplated any question of

police proof or any question of police standards. And if the intention were to be the attraction of the common law principles, those are already set

out by this Court in Williams' case, and what

His Honour Justice Mason and His Honour

Justice Brennan said at page 299 in that case, referring to an English case of Holgate-Mohammed v

Duke, they said:

it was held that an arrest on reasonable

suspicion of guilt of an arrestable offence

may be lawfully made for the purpose of using

the ensuing period of detention to dispel or

confirm the suspicion by questioning of the

suspect or seeking further evidence with his

assistance. That proposition is opposed to the view which has been taken of the common

lat,; in this country. The jealous protection
of ?ersonal liberty accorded by the common law

of Australia requires police so to conduct their investigation as not to infringe the arrested person's right to seek to regain his

personal liberty as soon as practicable.

Practicability is not assessed by reference to

the exigencies of criminal investigation; the

right to personal liberty is not what is left

Kamm 4

over after the police investigation is

finished.

And what we say, Your Honours, is this, that

further on when Your Honour Mr Justice Dawson,

together with His Honour Mr Justice Wilson, was

contemplating the question of a particular time

limit that applied to the consideration in Williams

that you were dealing with, but you said this at

page 311:

To countenance a period of detention in police

custody after arrest, without specific limits,

for such time as might be reasonably necessary

to enable the police to obtain the evidence

upon which to charge the suspect, is
unacceptably open-ended and quite contrary to

what was (and in Australia, in our view, still

is) the law.

BRENNAN J: That is the common law, Mr Ross, and here we are

dealing with a statute, are we not?

MR ROSS:  Yes, we are, Your Honour, but what we say about

the statute is that the plain words of the statute

do not say anything about the purpose of the

statute, except that the matters that are set out

in section 138 are matters to be taken into

account; they do not say anything else.

BRENNAN J: Well, what about 137(2)?

MR ROSS:  137(2) says that it is open to the police to

interrogate the suspect and interrogate or make an

inquiry about other matters as well, and we say

that - - -

BRENNAN J: That is inconsistent with Williams, is it not?

MR ROSS: Well, that is a distinct departure, but that is

all, and we cannot argue with that and we cannot

argue with their power to do that and the power

that they purport to alter the common law of

Australia as set out in Williams' case, and we

cannot complain about the fact that they may have

induced one confession. We do complain about the

fact that there were a number of confessions that

were courted by the police during the course of the

time when each accused was in the company of

police, because we say that the principles in

Willia.ms must still apply to this extent, that they

cannot say that a person can be held in custody and
questioned and questioned, until the police are

satisfied that they have got - - -

DAWSON J:  The period would become unreasonable, would it

not?

Kamm	11/6/93
MR ROSS: Exactly.

DAWSON J: And, indeed, the trial judge found that the

reasonable period was exceeded in the case of

Heiss.

MR ROSS:  Yes, that is right.

DAWSON J: But nevertheless, said he would exercise his

discretion against the accused on the

Bunning v Cross basis.

MR ROSS: Yes.

DAWSON J:	Now, do you contest his finding that the confessions were, in each case, voluntary?
MR ROSS:	No.

DAWSON J: So, it becomes a question of the Bunning v Cross

discretion, does it?

MR ROSS:  Not just that, Your Honour, because what we say is

that there are certain things that he took into

account that he should not have taken into account

during the course of that, because what he said,

amongst other things, was this, that a matter that

he had to take into account in the exercise of his
discretion was the organic integrity of the

investigation; this was the learned trial judge.

Now, we say that in so far as the trial judge had

that as a factor in exercising his discretion

whether to admit or exclude, first of all it was an

irrelevant consideration -

DAWSON J: First of all, who are we talking about now, Heiss

or Kamm?

MR ROSS:	Oh no, we are talking about both of them.
DAWSON J: Because in the case of Kamm the judge found there

was no period of illegal detention, is that not

right?

MR ROSS: Yes, that is so but - -

DAWSON J: But you say apart from any question of illegal

detention?

MR ROSS:  Yes, that is right, because as far as I can tell

Your Honours, the position that presently obtains

is this, that this Court takes the view as

expressed in Foster's case that essentially it is a

matter of discretion that if a confession is

voluntary, then it should be excluded if it is

unfair in the exercise of the trial judge's

discretion. If there has been some illegality

Kamm 6 11/6/93

involved in it and the question is still voluntary,

that will be another matter to take into account

again in the exercise of discretion and of a

particular sort.

DAWSON J: What particular aspects of the conduct of the

police do you complain about? I can understand you

saying in relation to Heiss, "Well, at a certain
point of time his detention became illegal", on the

finding of the judge.

MR ROSS:	Yes.
DAWSON J:	Now, is there anything else in either case that

you rely on as being unacceptable conduct on the

part of the police which, since involuntariness is

not relied on, would demonstrate that it was unfair

to admit the confessions or that the discretion in

Bunning v Cross should be exercised in their favour?

MR ROSS:  Yes, Your Honour. They were kept too long and

there was a stage in Heiss's case that was accepted

by His Honour as being a point where the detention

became unlawful and we say that that point

certainly was reached with Kamm as well.

DAWSON J:  So you really say in both cases there was a

period of illegal detention.

MR ROSS: Certainly.

DAWSON J: Reasonableness had been exceeded.

MR ROSS: Yes.

DAWSON J: Yes, I see.

MR ROSS:  Certainly. We cannot point exactly to the time

when it occurred but we say that there are certain

periods as set out in the affidavit of Mr Coates,

there must have been certain periods at which we

can say the line has been crossed.

DAWSON J: And of course the trial judge says you are right

in relation to Heiss and pinpoints the time when

the detention became illegal.

MR ROSS:  Yes, he does.

DAWSON J: That was the point at which he was said to be

arrested for murder. It is an identifiable point

at 3.50 PM on Sunday, 6 August.

MR ROSS:  Yes.

Kamm 7 11/6/93

DAWSON J: And thereafter the detention was legal. Now

why - perhaps one can test it this way, the judge

nevertheless admitted evidence of confessional
material which was obtained after that time in the

case of Heiss but said that it was not unfair to

admit it and he was not going to exercise a
discretion under Bunning v Cross in favour of the

accused.

MR ROSS:	Yes.
DAWSON J:	Why was the trial judge wrong?
MR ROSS:	Why was he wrong? Because he took, we say, two

irrelevant considerations into account in the

exercise of his discretion.	The first one was
this - - -

DAWSON J:	Of either discretion that we are talking about.
MR ROSS:	I beg your pardon?

DAWSON J: Of either of the two discretions we are talking

about?

MR ROSS:  Yes, of either of the two Foster discretions I

suppose. The first irrelevant consideration was

that he said that the police were entitled to, in

effect, establish some form of prima facie case and

I have taken the Court to that. The second thing

he said was that the police were entitled to

maintain the organic integrity of the investigation

and that was a relevant consideration.

DAWSON J:  I am not sure what is meant by that, but does

that mean continuity or - - -

MR ROSS:  We confess that we are not too sure about it

either, Your Honour, but it certainly appears in

the judgment of the Court of Criminal Appeal at

pages 83 to 84 from about line 17 on. They are

quoting the learned trial judge there. If we take

it from 14, it might be best:

"the extended attention (sic) -

that should be "detention"# I should imagine -

was reasonable or not, having regard to s 137
of the Police Administration Act, I was

particularly impressed in this case with what

you might call the organic integrity of the

investigation, between the - that is the

unity, if you like, between the

interrogation - the first recorded

interrogation and the subsequent

investigations."

Kamm	11/6/93
DAWSON J:	He seems to be referring to a logical

progression.

MR ROSS:  I think that might be right, Your Honour, but the

court went on to say:

His Honour said that the subsequent

investigations, referring no doubt to the visit to the crime scene, cried out to be carried out straight away, and formed "an

urgent integral investigation that really

should have been completed, as it was, as soon

as possible at the one time." He also

observed that it would have been "quite

artificial to break up that investigation at
some stage to return to Darwin or Tennant

Creek or somewhere like that", presumably to

take the applicant before a justice.

We say that it was common ground at the trial that

there were justices at various points that would
have caused no real difficulty to the
investigators. Certainly there was a justice at

Borroloola, there was certainly a justice at

Katherine, and each accused was lodged in the cells

at Katherine during the time between the first part

of the search for the body and re-enactment and the

second part of it.

So there would not have been.any difficulty in

finding justices. My learned junior, who practises

in the jurisdiction, assures me that there are

justices scattered all the way through the

Territory - my friend will know that, too. But we

say that that caused a special problem in the

learned trial judge's assessment of whether or not

his discretion should be exercised to exclude. It

was compounded by the fact that the Court of

Criminal Appeal itself made no independent assessment of the evidence, because what we say

they should have done was that they - - -

DAWSON J: What do you say was unfair in the admission of

the confessions in these circumstances?

MR ROSS:  I have been told it is not right, Your Honour, to

quote a person's words against himself, but it has

been done before. Your Honour Mr Justice Dawson

said in Cleland's case that a confession made
whilst in custody would not of itself entitle its
conclusion, but a confession made whilst in

custody, particularly unlawful custody, would take

very little more to induce a trial judge to reject

it in the exercise of his discretion.

DAWSON J:  I had in mind the judge's - - -

Kamm 9 11/6/93

MR ROSS:  I have not quot~d you exactly, but it is pretty

right and it is right towards the end of your

judgment in Cleland's case.

DAWSON J: Yes, I remember that.

TOOHEY J:  Mr Ross, what is it that you complain about in

that passage on page 28 where you said the Court of

Appeal got off on the wrong foot?

MR ROSS:  What we say about that, Your Honour, is that they

were concerned with the application of these two

sections of the Police Administration Act. What
they said was in effect that if those sections are
complied with, then a confession obtained while the
sections are complied with will remove any question

of unlawfulness, that is that confessions obtained

in that circumstance will be lawful. We say they

got off on the wrong foot because what then

hafpened was that they went on to examine what the

learned trial judge did.

They then said, in assessing the compliance of

the police with section 138, His Honour was making

a decision on matters of fact. We say that because

they were matters of fact, we do not further have

to investigate those. In effect, that is what they

said.

TOOHEY J: But is that what they said?

MR ROSS:  They went on to say that at a later part of the

judgment. What they said about that, Your Honours,

was at 58 and 59 and at page 86. At 58 and 59 they

said this - this is about line 21:

What is a reasonable period within the meaning

of s 137(2) is a question of fact and cannot

be assessed other than in the circumstances of

the particular case, taking into account any

factor which is relevant, not just those

enumerated ins 138. It is a measure of a

period of time and is obviously not a definite

and fixed period of time.

They went on to make some observations primarily

taken from English cases.

BRENNAN J: But you appear to be saying that in that passage on page 28, the Court of Appeal was approaching the

matter on the footing that so long as the relevant sections of the Police Administration Act were not

infringed, there was no room for the exercise of a

discretion, either based on unfairness or based on

Bunning v Cross. Is that - - -?

Kamm 10 11/6/93

MR ROSS:  It seems as if that is what they were saying,

Your Honour.

BRENNAN J:  I can see how you might construe it in that way.

The the word "thus", I would have thought, is

saying no more than that, by virtue of that fact,

that is if your Act is being complied with, then

you cannot rely upon non-compliance provisions to

bring down the statement. You might reply to that,

"Well, it is hardly a statement that needs to be

made, it is self-evident".

MR ROSS: There are difficulties in its application,

Your Honour, because if you have a look at 138(g),

for instance, which is referred to on page 30 of
the decision of the Court, there is no reference,
for instance, as to whether or not the police were

entitled to take the accused along to the scene, or

whether that is simply a reference to the police

themselves examining the scene.

It is not a big point, Your Honour, and we do

not say that it ought to be a big point, but all we say is that it demonstrates that the only intention of the legislature was to say, "Look, the question
of the examination of the scene is something for a

court to take into account in working out whether

there was a reasonable period or not".

It is not a question of lawfulness or

unlawfulness if someone has been taken to the
scene. It is not a question of lawfulness or unlawfulness if the police say, "We could not

proceed until we had gone to the scene ourselves

and left the accused in custody". There could be a

variety of circumstances that ·applied, but it is
something for a court to take into account. If
they took into account that it was not a reasonable
period, they might still admit the confession, they

might still refuse to exercise the discretion.

Our complaint, however, is that what appears

to have happened is that the learned trial judge
took into account a number of, what we say are,
irrelevant considerations, failed to exercise his

discretion so as to exclude the confessions, and

then when it came to the Court of Criminal Appeal,

that Court, the Appeal Court, said, "Yes, but this

was just a matter of fact and we do not have to go

any further than the learned trial judge did

because when he decided these things as a matter of

fact, we do not have to go on".

TOOHEY J: When you say the trial judge failed to exercise

his discretion, do you mean he failed to advert to
the existence of the discretion, or he failed to

exercise it favourably to the applicants?

Kamm 11 11/6/93

MR ROSS:  I am sorry. He failed to :cise it so as to

exclude the confessions, Ye rlonour, and our

complaint is as we have exp ~ssed. In the exercise

of his discretion he took into account what we say
are some irrelevant considerations which he ought
not to have taken into account and the complaint is
that, seeing that the appeal court said, "These are

matters of fact for a trial judge". If that

approach is allowed to go unaddressed, then we

would expect it to be followed by single judges and

magistrates through the Territory. If they say

that the compliance with section 138 in its then

form, or even in its present form, is simply a

matter of fact then we do not have to go any

further and make an independent assessment.

BRENNAN J: But that is not the proposition, is it? I mean,

the question of whether it is fair or unfair to

admit a confession has a number of aspects to it,

depending on upon the facts of the case. One

aspect is whether or not the custody in which the

person is at the time is lawful or unlawful, which

requires some consideration of 138. But once the

facts are assessed for the purpose of determining

unfairness, is that not the end of the matter? And

does it matter that some error has been made, for example, in the interpretation of section 138(g)?

MR ROSS:  No, that does not matter, and we do not say that

there was necessarily any error that can be shown

by His Honour the learned trial judge, but - - -

BRENNAN J: If the case came here, you would be --nviting

this Court to consider for itself the exercise of

discretion, would you?

MF ROSS:  Yes •

BaENNAN J: Looking at the facts of the case, could the

discretion have been exercised in any other way?

MR ROSS:	Yes •
BRENNAN J:	Why?
MR ROSS:	Because he did not take into account the fact - he

did take into account - - -

BRENNAN J: Forget what the judge took into account.

Looking at the facts of the case, should the

exercise of the judicial discretion have been other

than the way in which the judge exercised it?

MR ROSS:	Yes, Your Honour.
BRENNAN J:	Why?

Kamm 12 11/6/93

MR ROSS:  He should have excluded the confessions, because

what seems to be clear is this, that there must

come a stage where a person, against whom the

police have accumulated evidence or who has been charged, has to be brought before a justice, for

the reasons that were set out in Williams; there

has to be someone independent, some independent

judicial office holder or his nominee, depending on

the statutes; they have to exist.

BRENNAN J: Yes.

MR ROSS: That cannot be put off indefinitely, and simply

because there is a 137(2) and a 138 in the

Territory, does not mean to say that it can be put

off indefinitely. It does not mean to say, for
instance, that it would be relevant for this Court
to take into account the organic integrity of the

investigation and say, "Notwithstanding the fact

that it might on the surface of it have been too

long, it looks like it was too long, but we will not exclude the confession because we think that the organic integrity of the investigation is

something that ought to have been preserved."

BRENNAN J: That is not the way in which it is gone about,

is it? I mean, one would look at all the facts of

the case, perhaps come to the conclusion that the

accused was kept in custody for too long before

being brought before justices, and then say, "But

in all the circumstances, was it fair or unfair to

admit it against him".

MR ROSS:  Yes.

BRENNAN J: For my part, at the moment, it seems to me that

there was only one conclusion to which the trial

judge could have properly come, and that was to

admit it.

MR ROSS: Well, that does not sound too promising for me,

Your Honour.

BRENNAN J: No, it does not. That is why I want to put it

to you, as baldly as that, if I can, Mr Ross,

because I am looking to see what it is about the

facts of the case which make it unfair.

DAWSON J: Illegality of detention is a great help in

pointing to unf~irness, but it is not enough in

itself.

MR ROSS:  No, it is not enough in itself and it never has

been enough in itself, and whereas - - -

DAWSON J: And the very circumstances of the illegality are,

of course, significant.

Kamm 13 11/6/93

MR ROSS:  Yes, the circumstances of the illegality are

significant and a couple of days in one case - I

think in Banner's case it was nearly a week -

BRENNAN J: That was a very extreme case, was it not?

MR ROSS: That was an extreme case. In Foster's case it was

two hours. In Banner's case it was okay, in

Foster's case it was not okay.

BRENNAN J: There might have been a sea change of judicial

opinion between those two cases.

MR ROSS: That might be so. His Honour Mr Justice Beach

appeared for Banner I remember him telling me that

that decision in Banner would never be repeated,

but I do not know about that.	I think I have seen
it a few times myself.

The position is this: we say, Your Honours,

there has to come a stage where you have to draw

the line. If they had been kept for another couple

of days and there had been another series of

confessions, no doubt this Court, and perhaps even

Your Honour Justice Brennan, would have said, "That

series of confessions is just a couple of

confessions too many; we're going to have to stop

that there". So what do you say? When Heiss for

instance -

DAWSON J:  But that would be because the detention at that

stage would have become oppressive·, not merely

because it was illegal detention but it had an

effect which made it unfair to admit the

confessions.

MR ROSS: All right. You see, Your Honours, the position

that obtains here is that this- would seem to be the

first and possibly the only piece of legislation

that purports to alter the common law as expressed

in Williams' case.

DAWSON J:  No, that is not right. I mean Victoria had a

series of - - -

MR ROSS:  Yes, but it does not work quite the same way as

taking these things into account, the matters in

section 138. I do not think the Victorian

legislation is the same a·s that, Your Honour. But

certainly it was one of the early ones and while

there have been, for instance, changes throughout

Australia in the law that relates to the electronic

recording audio taping and video taping of
confessions, and picking up what this Court has

been saying for years that there should not be the

admissibility of confessions without those

Kamm 14 11/6/93

safeguards, that has been brought into effect by

the legislature.

But, if Your Honour Mr Justice Dawson said

there gets to be a stage where the confession is
oppressive, we say what is there about, for
instance, Heiss's detention that makes it worthy of

exclusion. Perhaps really I am responding to

Your Honour Mr Justice Brennan here by saying this:

if Heiss says, "I do not want to answer any

questions" and it seems common ground that he said

it at least three times and possibly even five

times, and the police go on to say, "But later on

we asked him to go to the scene and he did", that

is the very sort of thing that has caused, in the

past, this Court to intervene and say, "Look, that

sort of thing just should not happen", and I think

it was in Ireland's case that this Court struck

such a confession down and said, "It should not
happen. If he does not want to answer any

questions, not only should the police not persist, even that they should not just take no for a final

answer, but if it is maintained they should not

persist and in any event there should not be any

admission of a confession under those circumstances

because it is an admission of the questions rather
than the answers", and so on.

So do you then say, with Heiss, he said he did not want to answer any questions, he did not want

to have anything to do with the investigation.

That seems to be common ground. It seems to be
common ground that he was taken into custody at

9.30 on a Saturday morning on failing to give a

correct name, that he was charged with that 15 or

18 hours later, but no question is directed to

that.

So the question would obtain, we say, not that

he was, at the time when he was arrested,

improperly arrested but it became clear that the

purpose of his detention was not for the charge on
which he was arrested but either for the purpose of

getting to the bottom of why he had those bits and

pieces in his possession that seemed to be a bit

suspicious or whether he knew anything about the

disappearance of the victim or whether he had

anything to do with the death of the victim or some

other matter, whether he could cast any light on

it.

What you find is that during the course of

that day when he was in custody of police on the

failing to give name and address charge, that he

was asked a number of times about those separate

matters; that is, what he had in his possession,

Kamm 15 11/6/93

did he know anything about the victim. He was

asked a number of times by the detectives.

Now, technically speaking we can say that,

because of section 137(2), he is entitled to be

questioned when he is custody. Do we then say,

yes, but he was not in custody at that time on that

charge. He was in custody. We know that, in the

ordinary course of things, his detention would not

have been for that long on the false name and

address charge, because the police knew his name and address. There is no doubt about that; they knew it at the time when the arrested him, they
knew his exact name. He is arrested for what would

be one of the most minor charges imaginable; giving

a false name.

Anyway, ,1e say that those things ought to have

been taken into account by the learned trial judge

and, you see, we say that things were

Shakespearean, in this regard, that they were bad

begun and they made strong themselves by ill, that

he was detained and detained and detained. And you

say, well the original arrest of Heiss was all

right, because he had committed an offence, but
does it remain all right, does it lack oppression

because he is not actually lodged in the cells and

charged with that offence until shortly after

midnight the following day. It is eight or nine hours short of 24, and then he is kept there and

then he is questioned again. And then, later on, he is asked what sort of a flyer are you a: then he is taken out to the scene.

BRENNAN J: We know what - - -

MR ROSS: Yes, you know that, Your Honours, yes, that is

right. What I say is this: he has been deprived of

the proper consideration of the exercise of the

exclusion discretion by the learned trial judge.

When it got to the appeal court, the appeal court

said, these are just matters of fact and we are not

going beyond what the learned trial judge says.

What Your Honour Mr Justice Brennan says is,

even if you were right, and he has had a bad run

from the learned trial judge and the appeal court,

would we do anything different? And I say that it

is likely that you would if you were to hear full

ventilation of the argument on the subject, and the

second thing is, it is a matter of public

importance, because it concerns day-to-day matters

of police procedure and the admissibility of

confessions throughout the Territory.

I can go on to the question of whether or not

the appeal court actually said, "This is a matter

Kamm 16 11/6/93

of fact whereby the trial judge determined what was

a reasonable period of not, and there is no need

for us to go any further into that", and we say

that there are two errors in that. First of all,

he was entitled to an independent assessment by the

appeal court to see whether the judge had exercised

his discretion correctly. Secondly, the appeal

court did not correct the learned trial judge for

taking into account irrelevant matters in the

exercise of his discretion, those matters that we

have referred to.

What we say is that they should have done what

this Court said should have been done in Foster's

case, that is, the learned trial judge went wrong,

the appeal court did not correct it and therefore

this Court said, "Therefore we have to make our own

assessment of how the discretion ought to have been

exercised". That was the procedure that seems to

have been gone through here.

It may be that most of the aspects of

section 138 are not inconsistent with the

declaration in Williams' case as to what was the

common law that relates to confessions. It may be

that. Certainly it seems pretty clear that there is

no trouble about reconciling section 138, and

possibly even 137(2), with what seems to be a

partly dissenting judgment of His Honour

Mr Justice Gibbs, the learned Chief Justice, in

Williams' case, but we say that that is a matter worthy of full debate in this Court_.

What I would have thought, Your Honours, my

biggest trouble, with respect, is the question of

Mr Kamm's caution. I was rather expecting real

problems with them because that is as I see one of

the problems, not because it was not argued; it is

just that I cannot show precisely where it fits in

the scheme of things.	From what I find out from
the Crown, they say that that was not argued before	the learned trial judge on the question of the voir
dire as to admissibility. If that was not argued
and it was not argued before the Court of Criminal
Appeal, Your Honours would be justified in
regarding me as perhaps a shade cheeky for raising
it here.

All I wanted to do in that regard was to have

the opportunity of doing this: that if Your Honours
are inclined to grant leave, then it may be that

you will want to re-examine section 138

particularly in the light of how Williams' case is

affected, that is the declaration of the common law
that relates to the admissibility of confessions
altered in that slight way, as it is by the

decision in Foster's case.

Kamm 17 11/6/93

What happened right at the very end of the

page 91, they delivered themselves of some	judgment of the Court of Criminal Appeal, at
observations as to what should happen when a person is detained under section 137(2) and we say that
that cannot be allowed to go on in its present form
because we say it is too risky and they deal with the question of caution.

A caution arose in this case, and I cannot put

it any stronger than that, and it might be an

opportunity for this Court to say, "While it arises

inferentially" and tangentially if you like, "we

cannot let what the Court of Criminal Appeal said, at page 91, go unchallenged, and seeing that they

referred to cautions, we might like to too."

There is another way of looking at it and

saying, "If you grant me leave in respect to Kamm,

you might say it is just one aspect of the exercise

of discretion to exclude. If we say that the

learned trial judge did not exercise his discretion

properly, and there was no independent assessment

by the Appeal Court, then in the exercise of our discretion in the way we did in Foster, we might take into account the question of what that course

should bore on." It seem to be, with respect,

appropriate then and in that circumstance.	May it
please the Court.

BRENNAN J:  We need not trouble you, Mr Solicitor.

Not finding any need to refer to the

Police
construction of ss. 137 and 138 of the that the decision of the Court of Criminal Appeal is not attended with sufficient doubt to warrant the grant of special leave in either case.

Accordingly, special leave is refused.

AT 12.52 PM THE MATER WAS ADJOURNED SINE DIE

Kamm 18 11/6/93