K B Procter SC with D R Wallace for the appellant (instructed by Wallace Wilkinson & Webster)
T J Ellis SC with C J Rheinberger for the respondent (instructed by Director of Public Prosecutions (Tasmania))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Kelly v The Queen
Criminal Law - Evidence - Admissibility of statement made to police after video-recorded interview was completed - Where statement was not made in response to any police question - Whether the statement was "made in the course of official questioning" within the meaning of s 8(1)(b) of the Criminal Law(Detention and Interrogation) Act 1995 (Tas).
Evidence - Admissibility - Statement made to police after video-recorded interview completed - Where statement was not made in response to any police question - Whether the statement was "made in the course of official questioning" within the meaning of s 8(1)(b) of the Criminal Law (Detention andInterrogation) Act 1995 (Tas).
Criminal Law - Appeal - Proviso - No substantial miscarriage of justice.
Statutes - Construction - Purposive construction - Use of definition sections to aid statutory construction.
Words and Phrases: "made in the course of official questioning", "confession or admission".
GLEESON CJ, HAYNE AND HEYDON JJ. The appellant appeals against the dismissal by the Court of Criminal Appeal of Tasmania of his appeal against conviction by a jury sitting in the Supreme Court of Tasmania[1]. The appellant was charged with murdering Tony George Tanner on or about 23 November 1990. He was tried with Michael John Marlow ("Marlow"), whom the jury also convicted of murder, and Gary Hilton Williams ("Williams"), whom the jury acquitted both of murder and of being an accessory after the fact.
[1]Marlow and Kelly (2001) 129 A Crim R 51.
The background
The jury verdicts against the appellant and Marlow reflect substantial acceptance of the following Crown case.
The Crown contended that Marlow disliked the victim for giving the police information about an incident of bungled stealing in 1987. As a result, Marlow was sentenced to eight months imprisonment after pleading guilty to being an accessory after the fact. The Crown also contended that the appellant hated the victim for being a police informant.
On the afternoon of 23 November 1990, the victim made an arrangement to meet the appellant and set out to fulfil it. There is no evidence that he was ever seen alive again except by the person or persons who murdered him. Paul Paget ("Paget") gave evidence that that evening he was present at a meeting between the appellant, Marlow and Williams,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Kelly v The Queen [2004] HCA 12
Case
[2004] HCA 12
Decision Date
CaseChat Overview and Summary
The appellant, Kelly, appealed to the High Court of Australia against the dismissal by the Court of Criminal Appeal of Tasmania of his appeal against conviction for murder. The central dispute concerned the admissibility of a statement made by Kelly to police officers after a video-recorded interview had concluded and no further questions had been asked.
The legal issue before the High Court was whether this statement, made to police officers between half an hour to an hour after the video recording of an interview had ceased and no further questions had been asked, constituted a "confession or admission" that should have been excluded from evidence due to non-compliance with the video-taping requirements of section 8(2)(a) of the *Criminal Law (Detention and Interrogation) Act 1995* (Tas). Specifically, the court had to determine if the statement was "made in the course of official questioning" as contemplated by section 8(1)(b) of the Act.
The High Court, applying a functional approach to the construction of the Act, concluded that the impugned statement was not admissible. The court reasoned that the statement was not made in response to any police question and therefore was not made "in the course of official questioning" within the meaning of the Act. Consequently, the trial judge and the majority of the Court of Appeal erred in admitting the statement.
Despite finding that the statement should have been excluded, the High Court dismissed the appeal. This outcome was based on the application of the proviso, meaning that the court was satisfied that no substantial miscarriage of justice had occurred.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
GLEESON The appellant appeals against the dismissal by the Court of Criminal Appeal of Tasmania of his appeal against conviction by a jury sitting in the Supreme Court of Tasmania[1]. The appellant was charged with murdering Tony George Tanner on or about 23 November 1990. He was tried with Michael John Marlow ("Marlow"), whom the jury also convicted of murder, and Gary Hilton Williams ("Williams"), whom the jury acquitted both of murder and of being an accessory after the fact. [1]Marlow and Kelly (2001) 129 A Crim R 51.The background The jury verdicts against the appellant and Marlow reflect substantial acceptance of the following Crown case. The Crown contended that Marlow disliked the victim for giving the police information about an incident of bungled stealing in 1987. As a result, Marlow was sentenced to eight months imprisonment after pleading guilty to being an accessory after the fact. The Crown also contended that the appellant hated the victim for being a police informant. On the afternoon of 23 November 1990, the victim made an arrangement to meet the appellant and set out to fulfil it. There is no evidence that he was ever seen alive again except by the person or persons who murdered him. Paul Paget ("Paget") gave evidence that that evening he was present at a meeting between the appellant, Marlow and Williams, at which it was agreed that the appellant would lure the victim to a logging site where the appellant had been working. The plan was for Marlow to murder the victim at that place. The role of Williams, according to the evidence of Paget about which the jury must have experienced a reasonable doubt, was to drive the victim's car to the airport and leave it there, so as to suggest that the victim had departed from Tasmania. Later, in the early hours of the morning, according to Paget, Marlow said that he had killed the victim with a shotgun for informing on him, and that the victim had been buried in a deep hole dug by the appellant with an excavator. On 25 November 1999 the appellant said to the police that he and Marlow had murdered the victim. On 4 March 2000 during a video-recorded interview, although he accepted that he had confessed in this way, the appellant said that the confession was false and offered certain explanations for having made it. While Marlow made no admissions to the police, he did make statements to other people in the years between 1990-2000 which could be treated as admissions. In March 2000 the victim's body was found with shotgun wounds in a hole which could only have been dug by a skilled excavator operator in a log landing site where the appellant used to work. The appellant was a skilled excavator operator. Found with the body was a considerable quantity of builder's lime, which was not a natural part of the soil at that place. The special leave point The appellant and Marlow appealed to the Court of Criminal Appeal of Tasmania. The appeals were dismissed. Both the appellant and Marlow applied to this Court for special leave to appeal. Only the appellant succeeded, and only on one point: whether a statement by the appellant to police officers on 4 March 2000 ("the impugned statement") was a "confession or admission" which should not have been received by the trial judge in view of its non-compliance with the requirement of video-taping contained in s 8(2)(a) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) ("the Act"). The impugned statement was made between half an hour to an hour after the video recording of an interview of the appellant by police officers had ceased and no further questions had been asked.The legislation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ, HAYNE AND HEYDON JJ
HUGH J
(dissent)
On the basis of this functional approach to the meaning of the Act, and on the assumption about the meaning of "confession or admission" in this context described above, the impugned statement, attributed to the appellant by Detective Sergeant Lopes and Detective Pretyman, was not admissible at his trial. It ought to have been excluded from the evidence before the jury. The trial judge, and the majority of the Court of Appeal, erred in deciding otherwise.Conclusion and order For the reasons already stated, this conclusion, concerning the admissibility of the impugned statement, does not require that the appeal be allowed. The prosecution is entitled to succeed in this Court upon the basis of the "proviso"[179]. On that footing alone, the appeal should be dismissed.[179]Criminal Code, s 402(2).