Kelly v The Queen
[2003] HCATrans 448
[2003] HCATrans 448
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Hobart No H1 of 2003
B e t w e e n -
SHANE LESLIE KELLY
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT HOBART ON MONDAY, 3 NOVEMBER 2003, AT 11.03 AM
Copyright in the High Court of Australia
MR K.B. PROCTER, SC: If it please the Court, I appear with my learned friend, MR D.R. WALLACE, for the appellant. (instructed by Wallace Wilkinson & Webster)
MR T.J. ELLIS, SC: May it please, your Honours, I appear with my learned friend, MRS C.J. RHEINBERGER, for the respondent. (instructed by the Director of Public Prosecutions (Tasmania))
GLEESON CJ: Yes, Mr Procter.
MR PROCTER: I am sorry, your Honours, for the delay.
GLEESON CJ: That is all right; the last counsel who did not turn up in time was from Tasmania also, in Perth last week.
MR PROCTER: Thank you, your Honours. Your Honours, special leave was granted in this matter to argue the question of whether an admission that was made in the course of official questioning – those words appearing in section 8(1)(b) of the Tasmanian Criminal Law (Detention and Interrogation) Act 1995 and that subsection is reproduced.
KIRBY J: Could I just ask a question? We received the submissions from the respondent with a significant written submission on the issue of the proviso, but I do not seem myself to have received a submission in reply. Has there been a submission in reply filed?
MR PROCTER: No, your Honour, that is not filed; in fact ‑ ‑ ‑
KIRBY J: Is there one available, because I think we will need something that refers to the evidence in respect of any matters that you want to say in response to that.
MR PROCTER: Yes, your Honour, unfortunately I did not receive ‑ ‑ ‑
KIRBY J: I am not trying to throw you off course, because obviously we will have to deal with the matter of legal significance that you want to argue, but ultimately we are going to have to come to the proviso question.
MR PROCTER: Yes.
GLEESON CJ: All right, thank you, Mr Procter.
KIRBY J: Yes, I feel happier now that I have that in my possession.
MR PROCTER: Your Honours, the relevant subsection appears as Annexure A to the outline of submissions.
KIRBY J: Was this the first such statute in Australia or what was the history of the introduction of legislation of this kind?
MR PROCTER: I understand, your Honour, that there was identical legislation in New South Wales ‑ ‑ ‑
KIRBY J: I think we were told on the special leave hearing that there were two patterns. There was, I think, a New South Wales, Tasmanian, Western Australian pattern and some other pattern. It might be helpful at some stage for us to have some indication of what that difference was in case it might be significant for the legal issue.
MR PROCTER: Yes, I understand, your Honour, that the New South Wales provision was identical to this one. In Western Australia - I think my learned friend has put the relevant section in with his submission. From memory it is section 570D and it simply prohibits the admission of evidence obtained from a person, or admissions obtained from a person, in custody if those have not been videorecorded or treated in one of the other ways.
KIRBY J: I did not want to take you off the course. The first step will be to analyse the statutory language, but at some stage we will have to come to the pattern of legislation dealing as it is with the common mischief.
MR PROCTER: Yes, your Honour. Now, this section begins with a number of definitions, and “confession or admission” is:
a confession or an admission –
(a) that was made by an accused person who . . . ought reasonably to have been suspected by a police officer of having committed an offence; and
(b) that was made in the course of official questioning;
“official questioning” means questioning by a police officer in connection with the investigation of the commission or the possible commission of an offence ‑
and, of course, “serious offence” is defined and there can be no doubt that murder falls within that definition.
Subsection (2) prohibits the reception of such a confession or admission unless, in summary, there is a videotape or it is proved “that there was a reasonable explanation” for the absence of such a recording and ‑ ‑ ‑
KIRBY J: It is a reasonable excuse.
MR PROCTER: ‑ ‑ ‑ “there is available . . . a videotape” of an adoption of the previously made confession or admission or, thirdly:
the prosecution proves . . . that there was a reasonable explanation as to why the videotape referred to in paragraphs (a) and (b) could not be made; or
(d) . . . there are exceptional circumstances –
Now, of course, in this case, there was no reliance by the Crown on any falling within subsection (2). The Crown’s case was simply that the confession or admission in question was not made in the course of official questioning and therefore the Crown argued it did not need to rely on any of the exceptions.
KIRBY J: Is it your understanding that in this Court any reliance is placed upon the “reasonable explanation”?
MR PROCTER: No, there is certainly nothing in the submissions that would suggest that, your Honour.
KIRBY J: Well, if you are concentrating on why a videotape could not be made, why would it not be a reasonable explanation that words were volunteered after the videotaping was concluded and in a circumstance and environment where videotape was not immediately available? Is the answer to that because you could always go and put the person in front of the videotape as soon as practicable thereafter?
MR PROCTER: Yes, your Honour. The evidence was quite clear that there was no attempt made by the police officers concerned to have this admission repeated in the circumstances outlined in subparagraph (b).
KIRBY J: I am just concentrating on the word “explanation”. The Western Australia legislation says “excuse”, which might arguably focus on not taking the person to the police station and proceeding with a videotaping of what was alleged to have been said, or at least confronting the person with that excuse, but where it is a reasonable explanation as to why a videotape could not be made, is the explanation somewhat softer than excuse and is simply looking at why, in the way it fell out, the confession or statement was not recorded by videotape.
MR PROCTER: I could not argue, in the circumstances, that the evidence shows the statement was made. There was not a reasonable explanation for its not having been videorecorded at that time. The evidence was that the remarks were made in a car park near a police car, when the police and the appellant were en route to the hospital for the taking of forensic samples. But it would be my submission that the prosecution made no evidence to prove that there was a reasonable explanation for the absence of a videotape of an interview with the accused person about the making and terms of the contrition or admission or the substance of the confession or admission in the course of which the accused person states that he or she made a confession or an admission in those terms or confirms the substance of it.
It is submitted that the evidence was clear that the police made no effort to obtain any recording such as that and, in the absence of any such effort, given that the evidence was quite clear that there had just been three hours odd of videorecorded interview with the accused, then it is my submission there is no reasonable excuse for not at least attempting that ‑ ‑ ‑
KIRBY J: “Explanation” is the word in this statute.
MR PROCTER: Sorry, explanation. Indeed, there was no explanation at all proffered by the prosecution as to what prevented the taking of this second video.
HAYNE J: But questions of reasonable explanation, which, at least as far as I can see, are not raised against you, are questions which arise if, but only if, we are dealing with a confession or admission. Is that right?
MR PROCTER: Yes, your Honour.
HAYNE J: How do you say section 8(1) applied in this case to make what was said a confession or admission?
MR PROCTER: I submit that what was said – perhaps I should go to the facts before endeavouring to say how they constitute that. There was a video‑recorded interview that occupied some 3 hours 20 minutes and concluded at 9.17 pm on 4 March 2000. There was then a delay, while the appellant made phone calls and was charged and processed. He was then, as I said, taken to the police car for transport to the hospital.
Detective Sergeant Lopes alleges that the appellant disputes that the appellant said, before getting into the car:
‘sorry about the interview – no hard feelings, I was just playing the game’ and then he just laughed –
and added:
‘I shouldn’t have said that, I suppose you will make notes of that as well’.
That evidence appears at page 1504 of the appeal books. During the video‑recorded interview, the appellant had offered two explanations for a confessional statement he agreed he had made on 25 November 1999 to one of the interviewing officers, Detective Sergeant Lopes. That explanation was – and it appears at appeal book pages 114 to 117 – that Detective Sergeant Lopes had ‑ ‑ ‑
HAYNE J: Sorry, what was the page?
MR PROCTER: 114 to 117, your Honour.
GLEESON CJ: Am I right in thinking that this was something that had been said before the body had been discovered and while the police were investigating the disappearance, and this was in the context of a possible indemnity being negotiated?
MR PROCTER: The Crown’s evidence was, yes, that it was – it is the conversation on the rooftop of police headquarters in Hobart.
GLEESON CJ: The significance of what your client said on the occasion with which we are concerned can only be understood, I think, in the light not only of what he had said in his record of interview on the videotape, but also in the light of some earlier communications that he and his wife had had with the police before the discovery of the body.
MR PROCTER: Yes, your Honour.
McHUGH J: I do not think the point is raised against you, but is it not a difficulty with your submission that, at best, this statement could only be some sort of implied admission, because on its face it does not really say anything about the offence as such? It is an explanation of a statement made during the video interview in which your client claimed that the police had made threats to him. Strictly speaking, it was a statement which sought to contradict or explain an exculpatory statement, so how do you make it out that it was an admission?
MR PROCTER: Your Honour, it is my submission that it falls within that category because, on 25 November 1999, on the rooftop, the accused had admitted that he and Marlow, one of the co‑accused, were involved in the murder of the deceased, Tony Tanner. Now, at the trial and in March 2000 the appellant has sought to explain that admission.
He said it was false and he said it was prompted by two things. One was the threats to stitch him up and to stop his bail, and the other was the raising of the imminent release of another criminal, one Jarvis, and the proposition that Jarvis was annoyed with the appellant. The appellant gave evidence of his reaction to that and stated his reaction during the course of the 4 March 2000 interview.
GLEESON CJ: How did the evidence of the rooftop confession get in, in the light of section 8? Was it admissible only because he was interviewed about that admission in the video‑recorded interview?
MR PROCTER: I do not recall – I was not at the trial – if there was any argument about that, but given that the circumstances on that occasion were that the appellant had sought the discussion, had insisted that Detective Sergeant Lopes come without any recording facility at all and, indeed, had insisted even that he divest himself of his mobile telephone, one imagines that the defence would readily concede that in those circumstances there was a reasonable explanation for the failure to video record, and the discussion went no further than that.
GLEESON CJ: At all events, in terms of admissions and confessions, that was the big one, was it not?
MR PROCTER: Yes.
GLEESON CJ: And the evidence of that confession, or confessional statement, was admitted without objection?
MR PROCTER: I cannot say with certainty as to that, your Honour, but if it was I would guess that it was for the reason I have just advanced.
GLEESON CJ: There was certainly no videotape of it.
MR PROCTER: No, your Honour.
GLEESON CJ: Does section 8 only apply to confessions or admissions made by people who are in custody?
MR PROCTER: No, it applies once you are a person who is reasonably suspected.
GLEESON CJ: At all events, nobody ever suggested that section 8 applied to that confession.
MR PROCTER: It appears not, your Honour. Of course, it may be that the view was taken that he was not, at that time, a suspect.
McHUGH J: But, Mr Procter, I still have great difficulty in seeing how this is an admission, this statement that is set out at page 1504. If you look at the judgment of Justice Slicer, for instance, in paragraph 125, at 2444, he said:
The import of the evidence was significant. If its making was believed by the jury, it destroyed much of the credibility which might be attached to the answers given in the recorded interview.
It really does not seem to have been treated as an admission in any way whatever. It is, in effect, saying, well, if you accept he said that, then you reject the various allegations that he made in the record of interview. So how does it constitute an admission?
MR PROCTER: It is my submission it constitutes an admission ‑ ‑ ‑
McHUGH J: An admission of what, first of all? Let us be precise. An admission of what?
MR PROCTER: The appellant had made the admission on the rooftop of involvement in the murder. He had, on 4 March, said that that admission was not correct:
I made it, under duress from you . . . Because I wanted to get out to protect my family.
So what he is doing in the car park afterwards is, in my submission, admitting that his denial of the truth of the 25 November admission is true, and that is very much an admission which is against his interests.
McHUGH J: How did the trial judge put it to the jury, can you tell us? That is, that particular statement. How did he put it?
MR PROCTER: I am sorry, your Honour, I cannot ‑ ‑ ‑
McHUGH J: Is it at 2383, where the trial judge says:
Now there is no doubt here that a confession was made – no dispute about that – Mr Kelly admits it. But there is a dispute about the circumstances in which it was made and the alleged bringing of pressure on him, by Lopes to induce that confession. There is also dispute about three very relevant conversations by which the reliability of that concession can be gauged.
GLEESON CJ: Mr Procter, is not your best way of putting it to say this, that in 1999 there was a confession that he was involved in the murder. Then he was interviewed on video in 2000. In the course of that interview, he sought to exculpate himself by giving an explanation of his earlier confession, and the conversation with which we are concerned was a denial of the exculpatory matter that he had put forward in the video. So it was capable of being part of a chain of reasoning, if accepted, that would, as it were, resuscitate the original confession that he had made.
MR PROCTER: Yes, that was the point I was trying to make, your Honour.
GLEESON CJ: That is the only sense in which it was an admission of anything, is it not?
MR PROCTER: Yes.
GLEESON CJ: It was an admission that an exculpatory explanation of an earlier confessional statement was false.
MR PROCTER: Yes, or, to put it another way, a retraction of a denial of the truth of that earlier confession. That is a double negative, I accept.
McHUGH J: So you have to put it by way of implied admission, but the judge never left it to the jury by way of an implied admission. In fact, I am not even sure he dealt with it at all, did he?
MR PROCTER: He did say, at 2383, the page to which your Honour just referred, at line 38:
And the third disputed conversation is the one in the car park in which Kelly, in effect, said he had been play acting for the camera when he made his allegations on the video taped interview. In effect mocking them, I suppose you could say.
McHUGH J: I know, but that is as close as it gets. It does not seem as if it was treated as any form of implied admission. It must be a matter that goes to the proviso.
GLEESON CJ: Where do we find the trial judge’s ruling on the admissibility of this evidence? There was a ruling on the admissibility of this evidence, was not there?
MR PROCTER: Yes, sorry, it was argued.
HEYDON J: There is a ruling on page 1500 in volume 7.
GLEESON CJ: On page 1500 at line 22, the trial judge said he entertained “some doubt as to whether” this was an admission, but in any event, it was not in the course of questioning?
MR PROCTER: Yes.
GLEESON CJ: I think you are now being invited to address the matter about which the trial judge entertained “some doubt”.
MR PROCTER: Yes, I accept that. My submission as to that is as I have just put, that it is a retraction of a denial of the truth of an earlier confession. So, in other words, it is adopting the earlier confession, and certainly 1500 to 1502 where ‑ ‑ ‑
KIRBY J: It could also be understood by a jury, I think, as indicating that, or at least arguably, that this is a person who is prone to lie and to switch his stories and change his stories for his own advantage, and that therefore he is an unreliable person?
MR PROCTER: Certainly, your Honour. It would be my submission ‑ ‑ ‑
KIRBY J: The jury might think, as is often revealed by cases, “Well, why wouldn’t I?” – why would he change his story if he was not guilty.
MR PROCTER: Yes, and certainly it reflects on his credit. I do not have anything further to put on the question of why that is an admission or confession. As I say, it is my submission that it is an adoption of 25 March confession, at the very least.
GLEESON CJ: Now, your point is that it was made in the course of questioning?
MR PROCTER: Yes, that is ‑ ‑ ‑
GLEESON CJ: When, in your submission, did the course of questioning begin and when did it end?
MR PROCTER: It is my submission that the course of questioning began at or just before 5.57 pm on that afternoon.
GLEESON CJ: So that if he had said something in the car on the way to the place where he was interviewed, that would not have been part of the course of questioning?
MR PROCTER: There would be room for debate about that, depending upon the circumstances ‑ ‑ ‑
GLEESON CJ: We had better have the debate now. Now, is the time to have the debate because the problem you raise about things that are said after questioning, I should have thought, could arise in exactly the same form in relation to things said before questioning. So the question of defining when the questioning begins and when the questioning ends has to be addressed, does not it?
MR PROCTER: Yes, it does, your Honour. To the best of my recollection, there is just no evidence of any discussions between the police and the appellant on this day prior to the commencement of the interview ‑ ‑ ‑
GLEESON CJ: I understand that, but when, in your submission, did the course of questioning begin? That might throw some light on the question of when it ended?
MR PROCTER: The only evidence of any discussion begins at 5.57 pm on that day when the formal interview begins.
KIRBY J: So you say “formal interview”, but later on you want to stretch it to “informal interview on the rooftop”. You see, you are interested to win the case. We have to look at this from the point of view of the meaning of the statute and the theory of its operation, and you are putting up a proposition which we have to test, because on one view, using different language from the Western Australian statute, we just have to focus on the period of official questioning, and then the question is, where do you draw the barrier, the line, of the beginning and the end of that. Now, what is your submission?
MR PROCTER: Well, as to ‑ ‑ ‑
KIRBY J: I mean, at least, theoretically, going to, say, a committal, he could be accompanied by the arresting police officer and say something at that stage or when he is going home in the police car before he is formally arrested. I mean, there is a whole range of possibilities of informal discussion. Now, is all of that out or is all of that governed by the language of the statute, in your submission?
MR PROCTER: In my submission, your Honour, the statute should be interpreted widely enough to cover discussions between the police and a person suspected of involvement in a serious crime while that person is in the custody of those police officers.
HAYNE J: That seems to lead – and I do not say this is wrong – but it seems to lead to the view that “made in the course of official questioning” is to be understood as “made in the course of investigation”, so it would include what is said to the police officer who arrives at a scene of a crime and says, “What’s happened here?”. Somebody to whom he has not specifically addressed that question bowls up to him and says, “I did it. I’m responsible for what happened here” and makes whatever colourful additions you want to add to embroider the example.
Now, that is a view of what “in the course of official questioning” means. Another view would be that it is confined to what happens when the police officer says, “I am now about to question you about a murder which occurred on date X at place Y, what do you have to say to it?” Now, how do you say we grapple with the words, “that was made in the course of official questioning”?
MR PROCTER: In this case, your Honour, I say that the admission that was made was made at a time close to the formal questioning, and it arose out of the formal questioning, in the sense that it was an admission which modified what had been said during the formal interview procedure which was videorecorded, and ‑ ‑ ‑
KIRBY J: Take Justice Hayne’s example of arriving at the scene of the accident – you see, section 8(1)(a) says:
was or ought reasonably to have been suspected by a police officer of having committed an offence -
Now, at that point of time, does the police officer suspect the person of having committed the offence or not?
MR PROCTER: At the point postulated by Justice Hayne, it would be my submission not. He has arrived on the scene ‑ ‑ ‑
KIRBY J: Does it fit within “ought reasonably to have been suspected”? Answer, probably not, because at that stage he does not know any ‑ ‑ ‑
MR PROCTER: Mere presence at the scene is not enough.
KIRBY J: So on your theory of the section, that could lead to the reception of a confession which was inculpatory of the accused, but which nonetheless fell outside the obligations of video recording of this Act?
MR PROCTER: Yes, your Honour, I would have to concede that.
KIRBY J: So we already have an exception then?
GLEESON CJ: The most obvious exception is the policeman picks up a telephone and the voice on the other end says, “I’ve killed somebody”?
MR PROCTER: Yes.
GLEESON CJ: In your submission, is there any practical correlation between the beginning of the course of questioning and the obligation to caution? Is that a practical way of deciding when the course of questioning at least begins?
MR PROCTER: The obligation to caution arises at the time you want to have a discussion with somebody – the police officer does – whom he suspects of having committed an offence.
GLEESON CJ: In Tasmania, what is the foundation of the obligation to caution?
MR PROCTER: Police Standing Orders, in my recollection.
GLEESON CJ: I see.
KIRBY J: Is that section 8(1)(a) a rough statement of when that obligation arises, that is to say, where the police officer believes that the person or:
was or ought reasonably to have been suspected . . . of having committed an offence ‑ ‑ ‑
MR PROCTER: Yes.
KIRBY J: It sounds like the formula?
MR PROCTER: Yes.
KIRBY J: And, of course, it is a little bit malleable or porous because you get debates about when the police officer ought reasonably to have suspected?
MR PROCTER: Yes.
KIRBY J: Then you get cross‑examination in the local court as to when the police officer ought reasonably to have suspected, so that they gave the warning, and under this Act, commenced the videotaping. You are not going to be able to escape some commencing point?
MR PROCTER: No, I accept that.
KIRBY J: Section 8(1)(a) does the best of expressing that point, and I think what the Chief Justice says seems to be the trigger?
MR PROCTER: Yes.
KIRBY J: That the moment the police officer suspects or ought reasonably to have suspected, that is when you have to start the videotape rolling?
MR PROCTER: Yes.
KIRBY J: Now, the question then is that means that there are some confessional admissions that will not be caught, so we have to work on the assumption this statute operates with an exception at that end, but the question is where does the exception begin at the other end? You say wherever that question is, in this case, this was close in point of time, it related to what was said in the videotaped recording and it was the duty of the police officer to take the person back and confront him there and then with what he had said otherwise than on video?
MR PROCTER: That is my submission in a nutshell. Yes, your Honour.
HAYNE J: What meaning are you giving to the words “official questioning”? If you take the definition of “official questioning” and insert it into 8(1)(b), was the statement made in the course of questioning by a police officer in connection with the investigation of the commission of the offence? What meaning are you giving to the word “questioning”? Is it confined simply to the posing of interrogative statements? Does it extend beyond that, how?
MR PROCTER: It is my submission that it extends beyond that. If it is connected with questioning ‑ ‑ ‑
KIRBY J: It must, one would think, extend beyond interrogation because we all know that some of the best cross‑examinations we have ever seen are of counsel who are silent and leave that space to be filled.
MR PROCTER: Yes.
KIRBY J: And that is a well‑known technique of interrogation by police officers. People have a great need to fill the space. That is often most vulnerable for them. So that one would think a statute addressed to this issue, in the context of official interrogation, is not going to be limited purely to “did you”, “when did you” or words of that kind, otherwise it misses its target obviously.
MR PROCTER: Yes. Certainly it would be my submission that official questioning does not require - or that what he said, the confession or admission, is said directly in response to a question.
KIRBY J: We cannot make the words go away, and you still have to answer Justice Hayne’s question. How do we make it operate in this context but given the nature of questioning in a police context? After all it has been enacted by the Tasmanian Parliament and has to be respected.
MR PROCTER: Indeed, your Honour. The connection, in my submission, with questioning here is the links, the two links I have already put; the temporal link and the fact that what was said arose directly out of the formal interview situation and ‑ ‑ ‑
KIRBY J: Why did it use the word “official” when in the previous paragraph it used the word “police”? Was that to cover the point of some non‑police officer who nonetheless was working on the prosecution interest?
MR PROCTER: I am sorry, your Honour. The police officer is included in both definitions.
GLEESON CJ: Do you want to read section 8 as though paragraph (b) of subsection (1) means “that was made to a police officer”?
MR PROCTER: In view of the definition of “official questioning”, meaning questioning by a police officer, it is difficult to avoid that conclusion, your Honour. I am conscious of the fact that in other States, I think Western Australia, it certainly goes wider than police, and I think in fact the new Evidence Act in Tasmania, the section which is now section 85A, “official questioning” now means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. That of course is the common section in the uniform Evidence Act.
KIRBY J: How does that relate to this specific statute? Is the specific statute still in force?
MR PROCTER: No, your Honour, it is not.
KIRBY J: So the Evidence Act has taken its place?
MR PROCTER: Yes. That is set out in my submission, your Honour.
KIRBY J: This is part of the uniform Evidence Act, is it not?
MR PROCTER: Yes.
KIRBY J: It is modelled on the same pattern.
MR PROCTER: Except that in Tasmania we have inserted section 85A which seems plainly to be designed to cover the ground that was previously covered by section 8 of the Criminal Law (Detention and Interrogation) Act, and that section has been repealed.
KIRBY J: And would the new section cover the situation in this trial? Does the new section repair the problem you bring to this Court?
MR PROCTER: No, I do not think it does, your Honour. It is virtually identical terms.
GLEESON CJ: So section 85A of the Evidence Act 2001 is the statute that would apply today?
MR PROCTER: Yes, your Honour, and I have set out on page 8 of the written submission the fact that that took effect on 1 July 2002. I have put in the material attached to the submission the relevant parts of the interpretation section, section 3, because now “admission” is defined ‑ ‑ ‑
KIRBY J: So “official questioning” is still the formula there. Do you know is this the same as in the Evidence Act elsewhere in Australia?
MR PROCTER: I think it is, your Honour, yes. It is just that we have included 85A specifically in the Evidence Act.
KIRBY J: It is the “A” that makes me suspicious. Justice Heydon does not think it is in other Evidence Acts.
MR PROCTER: Section 85A? No it is not, no.
HAYNE J: Section 86 of the uniform Act talks about “oral admission was made . . . in response to a question put or representation made”.
MR PROCTER: Yes.
HAYNE J: Which is a narrower connection than the connection “in the course of official questioning”, whatever that may mean.
GLEESON CJ: And the expression “in the course of” in subsection (3) is to be compared with the expression “during” in subsection (1). Is there a difference?
MR PROCTER: Well, the two sections seem to be using them as interchangeable terms.
HAYNE J: Do you accept then that in 8(1)(b) of the 1995 Act, that is the Act that was in force at the time, the expression “in the course of” is a temporal expression and only a temporal expression? Is it meaning “during”, or does it carry with it some greater meaning than a temporal connection, because it seems to me your submission verges on a submission that “in the course of” might have some causal relation – provoked by, evoked by, responsive to. Some notion of that seems to be hovering in the background of your submission. I just want to understand whether that is right.
MR PROCTER: Yes, my submission would be that it does go further than temporal. I suppose the best way I can put it is “arising out of”.
KIRBY J: The respondent says that it is well known in Tasmanian legislation that in the workers compensation legislation that you have “arising out of”, and “in the course of” and that these are two different concepts, and in this State apparently conjunctive. So that one would draw an inference that it means more than, or that it has a different meaning to “in the course of”.
McHUGH J: And in Kavanagh v The Commonwealth, I think it is in 103 CLR, this Court said that “in the course of” has a temporal meaning in that workers compensation legislation.
MR PROCTER: Yes. I think that is one of the cases my learned friend sent me this morning.
McHUGH J: In some context “in the course of” can mean in furtherance of, but that also comes very close to giving it a causal connection and it does not really fit in with the language. It does not make much sense to say it was made in furtherance of official questioning, because you are looking at it from the point of view of the accused, not what the police officer has done.
MR PROCTER: Yes.
HAYNE J: It seems to me you have to say it is something like “as a result of” or some variant on that theme to go beyond a purely temporal connection.
MR PROCTER: Yes, I would accept that, your Honour.
GLEESON CJ: Well, when do you say the course of questioning ended in this case, when they put him back in the cell and shut the door?
MR PROCTER: That is when I would submit. Yes, your Honour.
KIRBY J: But what if the police officer then turns up to take him upstairs to the magistrate for bail and he says something at that point, or in a friendly way he says, “I’m going to drive you home because you’ve had a rough day” and he gets bail, and he says something at that time, or he says, “I’ll see you later tonight because you’ve got to come back and complete your bail documents.” I mean we have to have a theory. I think you are using the technique of silence on us that I was talking about earlier. You want us to fill the space, give you the theory. We are looking to you to help us.
MR PROCTER: Yes, I understand that, your Honour. Your Honour, on the facts of this case the accused was simply put back in the cells. Therefore, it is my submission that the course of official questioning ended then. It is my submission that when it ends, just as when it begins, depends upon the circumstances and that in the circumstances that you postulated if the police officer is driving the accused home shortly after a formal interview and an admission is made, then if it does touch upon something that arose during the course of the formal interview, it would be my submission that it would be in the course of official questioning, and the circumstances are infinitely variable ‑ ‑ ‑
KIRBY J: But the statute is not. The statute has its words.
MR PROCTER: Yes.
KIRBY J: They have to be given effect. See, running against your argument is this statute has chosen those words “in the course of official questioning”. That is a concept of time, and it limits and therefore postulates the possibility of post-official questioning, uses the word “question” and it does not use the approach that the legislation in other States have adopted of questioning whilst in custody.
MR PROCTER: No.
KIRBY J: Which is a nice broad concept. That would include the cells, it would include the police car going home; it would include any form of custody. So presumably this is a different and narrower concept of protection and, on your own submission, there is a period before and a period after where there is no obligation to videotape questioning.
MR PROCTER: To videotape discussions. Sorry, to videotape admissions.
KIRBY J: What if he has not formed any view of the guilt of the accused?
MR PROCTER: Sorry, in the before period, yes. I suppose by definition that would apply afterwards too. If the formal questioning has produced simply denials, if the officer did not suspect beforehand he would have no reason to suspect afterwards.
GLEESON CJ: Have you said everything you want to say about the issue of police questioning?
MR PROCTER: I have set out in the submission ‑ ‑ ‑
KIRBY J: Is there anything in particular in the second reading speech that you want to draw our attention to?
MR PROCTER: I think I have pointed to what we submit are the significant parts in the written submission, where the Minister said there is no excuse for police using written statements in preference to electronic recording. I have referred to cases – in the confusion of my arrival, I did not produce those, but I should do so now. I have copies of Julin’s Case and McKenzie’s Case, your Honours, and also there was a New South Wales case, Kingston v Keprose, to which I have referred in the submission, which I can produce copies of as well. Of course, I summarised at some length in the written submission the considerations that prompted the decision in McKinney.
KIRBY J: The trial judge gave some instructions about the dangers, did he not, of confessional evidence to police?
MR PROCTER: Yes, he did, your Honour.
McHUGH J: Pages 2383 and 2384.
MR PROCTER: I think it begins at the bottom of 2383 and it goes over to 2385 at about line 16.
McHUGH J: It is not easy to fit the words, even on a purposive construction, into Justice Slicer’s theory, is it? He spoke about it meaning, while a person is in custody. It must go beyond that. There may be bouts of questioning where a person is not in custody.
MR PROCTER: Yes. I do not take my submissions so far as to say that it applies whenever somebody is in custody.
KIRBY J: Were the statutes that provided for custody in force at the time of the enactment of the Tasmanian Act, or not? In other words, was the other model in front of the drafter?
MR PROCTER: I believe the Western Australian provision was.
KIRBY J: We had better have details after lunch of what the State statutes were, when they came into force and, insofar as there was a different model, when they applied.
MR PROCTER: Yes, your Honour.
GLEESON CJ: Does that cover what you want to say about the course of questioning?
MR PROCTER: Yes, your Honour.
GLEESON CJ: Now, as far as the proviso is concerned, you failed on that point before Justice Slicer. We had better hear what you have to say about that.
MR PROCTER: Yes, your Honour. I would begin by submitting that there was no request by the Crown before the Court of Criminal Appeal for the application of the proviso in the appellant’s case.
KIRBY J: I am sorry, I did not hear that.
MR PROCTER: There was no request by the Crown for the application of the proviso. Of course, it is accepted that, as your Honour Justice Kirby said at the special leave application, the proviso hovers in every criminal appeal.
GLEESON CJ: What is the error in the reasoning of Justice Slicer on that point?
MR PROCTER: The error, in my submission, is his failure at this point in his reasoning to recognise the importance of this evidence to the case of the appellant. It is my submission that, following Festa’s Case (2001) 185 ALR 394, the question that his Honour Justice Slicer should have been considering, even if it be conceded that this arises even when the Crown has not asked for the application of the proviso, was “Was it inevitable that the appellant would have been convicted by this jury, even if the admission that is the subject of this appeal had been excluded?”
His Honour Justice Slicer did not consider that question at all, in my submission. He began by pointing out that the Crown had not sought its application. He criticised the appellant’s conduct during the 4 March interview. He went on to say that that analysis, combined with the admitted events occurring on 2 and 4 November 1999, leave little doubt that the disputed evidence received did little to enhance the prosecution’s case.
It is my submission that there are no admitted events which occurred on 2 and 4 November 1999. There are admitted facts set out in the appeal book at 2025 to 2029. The appellant gave lengthy evidence. My examination of that reveals no admission by him as to any events which occurred on either of the dates mentioned by his Honour Justice Slicer. His Honour, at paragraph 125 of his reasons, which is at appeal book 2444, said this:
The import of the evidence was significant –
that is, the admission –
If its making was believed by the jury, it destroyed much of the credibility which might be attached to the answers given in the recorded interview. Many of those responses could be regarded as a game played by one wise to the “tricks of the trade”. The statement “I shouldn’t have said that”, because notes would be taken, is one which is impossible to assail since its internal structure permits no commencing point. Its meaning that “I have said something which destroys my earlier denials, I know its significance and it was unwise to say it because it will be recorded in note form and used against me” is a completely self-contained construct. Whether it was said or not is not a matter for this Court. Whether it should have been received by the jury is a different question.
Now, having said “The import of the evidence was significant” and explaining why, in that it destroyed the credibility of the explanations offered in the recorded interview, his Honour went on, at paragraph 152, to say:
Isolated, the significance of the evidence can be seen to be great. In the context of this case, the identified evidence does little to suggest a ‘miscarriage of justice’. In my opinion, the learned trial judge ought to have taken a different approach . . . He could have excluded the evidence on the basis of an exercise of discretion, but was not asked to do so. Had he been asked, my decision to uphold this ground of appeal might have been different.
I have puzzled over that at length. His Honour, in fact, has proceeded to reject this ground of appeal. He goes on to say:
But, for the reasons stated by Underwood J in his reasons for judgment, the failure to seek an exercise of discretion impacts on the application of the proviso.
HAYNE J: Why?
MR PROCTER: I find that difficult to follow, your Honour. In fact, of course, Justice Underwood did discuss the failure to seek an exercise of discretion, but not in the context of the proviso at all, because Justice Underwood ‑ ‑ ‑
HAYNE J: The hypothesis for consideration is that there has been a wrong reception of evidence. One never gets to proviso territory unless you have first arrived at that hypothesis. If there has been the wrong reception of evidence, what is the relevant test that is to be applied in deciding whether the proviso is engaged?
MR PROCTER: My submission is that it is the test enunciated in Festa’s Case, that is, that even if the evidence had been excluded, conviction was inevitable.
KIRBY J: I think that is what the Crown says in this case, that the case is so overwhelming, that there are so many things that are brought to the door of your client that only he could have known that his conviction was inevitable.
MR PROCTER: Well, I assume that is their argument because on the authorities that is what they have to argue.
KIRBY J: We have to master the facts to the extent of dealing with this. It does seem to me that there is a very substantial case for the proviso in this appeal.
GLEESON CJ: What was the defence case at trial?
MR PROCTER: The defence case was simply that the appellant was not involved.
KIRBY J: Did it suggest that somebody else was involved?
MR PROCTER: No, your Honour.
KIRBY J: Did not identify ‑ ‑ ‑
MR PROCTER: Well, there were vague suggestions of other people with a grudge but ‑ ‑ ‑
GLEESON CJ: You would be looking harder, would you not, for other people with a backhoe, or whatever was the digging implement, that your client was using.
KIRBY J: It was under the control of his father‑in‑law in the area that his father‑in‑law was working in, and that he had the key to unlock and gain access to.
MR PROCTER: My submission is that the evidence does not go that far, your Honour. The evidence was that ‑ ‑ ‑
KIRBY J: Well, I am just relying on what the Crown has said in its submissions.
MR PROCTER: Yes.
KIRBY J: If you challenge those facts you have to ‑ ‑ ‑
MR PROCTER: Yes, I propose to, your Honour. That is the second part of the submission I have handed up, a discussion of the matters put by the Crown. Perhaps I could just finish with Justice Slicer’s decision by pointing out that Justice Underwood rejected a different ground of appeal, that is the admissibility of the telephone conversation recording made between the appellant and his wife while the appellant was in prison, and I refer to appeal book pages 2440 to 2441 in paragraphs 104 to 108, where his Honour deals with that ground and discusses the various authorities relating to the authority of counsel to conduct a trial in such a way as counsel thinks fit, and of course given that he rejected that ground his Honour did not go on to consider it at all in the context of the proviso.
The submission which I make is that the evidence was of extreme significance insofar as the appellant’s case was concerned. There is evidence of only one straightforward admission by the appellant of involvement in the murder, and that is his admission to Detective Lopes on the rooftop. Detective Lopes’ evidence as to that appears at appeal book 6, pages 1446 line 30 to 1447 line 25. The appellant’s evidence on that point appears at appeal book 8 1851 to 1852. In essence, he did not dispute the proposition that he had told Detective Lopes that he and Marlow were involved in the murder. He said that he had not written, “Marlow and me” on a piece of paper, that in fact on the piece of paper - which Detective Lopes mentions - he had written the names of two supposedly corrupt police officers.
The essential point is, in my submission, that he did agree that he had said that he and Marlow were involved. His explanation for having said that is set out in the appeal book, and I have given references - it is in appeal book 1 - to a number of passages at page 2 of the written outline which I handed up this morning. So that is the explanation, and of course that explanation was repeated, in essence, in his evidence before the jury, and particularly I would refer to appeal book 8 pages 1843 line 14 to 1846 line 18. Of course the jury, in the light of his Honour’s ruling, heard from the appellant’s own mouth evidence which showed that that explanation was false. It is my submission that hearing that evidence robbed the explanation of any credibility at all. If that were so the jury was, in my submission, left with a confession to involvement in the crime with no possible reason for its making other than that it was true.
Now, at point 5 on page 3 of the outline I have conceded that there was a full direction concerning the dangers of relying on unrecorded incriminating statements, and I have referred to the passages which were identified a few moments ago. But it is my submission that that could not counteract the prejudice caused by the wrongful reception of the evidence in the first place, given that it basically confirmed the only straightforward confession that the appellant had made to his involvement in the crime.
Now, at page 4 of the outline I have responded in summary form to the submission made by the respondent on the question of the proviso, and probably more easily observed in the second document filed by the respondent containing the appeal book references which sets out the submissions with the references in the adjacent column. Of course there is no dispute as to the location of the body, and the jury must have been satisfied that it was the body of Tony Tanner. That is point 1 of the Crown’s submission. The Crown goes on at point 2 to refer to the telephone call made to Mr Tanner’s residence on 23 November 1990, the day that he was last seen by his de facto.
KIRBY J: She said, “Who are you going to see?” and he named your client.
MR PROCTER: He did say that - her evidence was that he said he was meeting Ned, yes.
KIRBY J: That is the name by which your client ‑ ‑ ‑
MR PROCTER: Yes, your Honour.
KIRBY J: See, the respondent’s submission says you take each of these pieces together, they come together in a natural mosaic which is overwhelming and convincing, inevitable. Anyway, you keep going through the elements because we have unfortunately got to master all this.
MR PROCTER: Yes. Of course, Ms Mansell’s evidence appears at page 730 of appeal book 4, at the top of the page, where she does say that Mr Tanner referred to Mr Kelly as Ned, and she says:
Over the twelve months or so that you knew Mr Tanner, do you know of him referring to any other person by the name of Ned?...No ‑
which does not go quite as far as what the Crown suggests that the only person the deceased called “Ned” was the appellant.
KIRBY J: As I understand it, the Crown’s point is that taken on its own if this were all, well it would fall short, but it is an ingredient, it is an element.
MR PROCTER: Yes. And I have referred in the submission to the summing up at page 2322 where this aspect was dealt with, where his Honour emphasises at line 40 that the de facto “did not recognise the voice” of the man calling. He then goes on at 2323 to refer to the second telephone conversation, at lines 10 to 22. Then at 2326 his Honour gave directions about that evidence. He said at line 24:
This evidence is evidence on the trial of all three accused, but it is of limited value. There is evidence of two phone calls by a male caller who asked to speak to Tanner. There is no evidence from Jodie as to who made either telephone call. There is evidence that Tanner said to Jodie at the supermarket that he had to be back at about 5pm for a call from Ned. That is not evidence that whoever did ring at 2 and/or later at 5pm was somebody called Ned, but merely some circumstantial evidence of Tanner’s expectation that he would get a telephone call from Ned. It is common experience of human behaviour that people tend to express their intentions or states of mind, hence what he said is some evidence of what he was thinking. That was his intention or expectation.
On Jodie’s evidence, we don’t know who it was who phoned at either time other than it was, according to Jodie, a male. The evidence that Tanner said to her immediately after the second phone call that he was going to meet Ned at the K‑mart between 5.30 and a quarter to six is not evidence that it was Ned Kelly on the telephone, or that he did, in fact, meet Kelly at the K‑mart. It is merely some circumstantial evidence from which you may conclude that Tanner’s intention when he left was to meet Kelly at the K‑mart. It does not mean that he did. Tanner told Jodie that morning he was going to meet Stephen Gordon, but according to Gordon he didn’t meet him. Now, whether Tanner was lying about his intentions that morning or not or whether his expectations for some reason or other were not fulfilled the fact of the matter is that although he expressed the intention it wasn’t carried out. And so, too, his expressed intention at 5pm may not have been fulfilled ‑
and so on.
HEYDON J: Did you say that the only person whom Jodie knew as “Ned” was the Ned we are talking about?
MR PROCTER: Her evidence was that, in the twelve months that she had been living with the deceased, he was the only person she had heard him call Ned.
HEYDON J: Well, if he said to her, “I am going to meet Ned”, that would be a statement, “I am going to meet the person you know as Ned and the only such person”. I mean, the Crown submission may not be strictly correct, but the underlying evidence is equally forceful, is it not?
MR PROCTER: Certainly, I do not quarrel with the proposition it is open to the jury to conclude that, yes.
KIRBY J: It would be the common understanding of those two that “Ned” means your client, because that was the Ned they both knew.
MR PROCTER: I would have to accept that, your Honour, yes.
KIRBY J: That is a pretty strong direction from the judge on the point, is it not? I mean, it is warning of the limits of the evidence, limited value, 326.
MR PROCTER: Yes, your Honour, it is.
KIRBY J: See, it may not have been a person named Ned who made the phone call. It may have been some other male who made arrangements with the deceased to meet the person whom he and his partner knew as Ned, namely, your client.
MR PROCTER: Certainly, his Honour leaves that open to the jury, but I suppose the reason ‑ ‑ ‑
GLEESON CJ: But if the evidence was that the last thing that the deceased ever said to his de facto wife was, “I am off to see Shane Leslie Kelly”, and he was never seen again, that would be something the jury would be able to regard as significant, would it not?
MR PROCTER: Of some significance, yes, but his Honour has pointed out that there are a host of other possibilities.
KIRBY J: So long as there is that pointing out, that warning, then it is relevant evidence, it has to go before the jury, and it is one ingredient.
MR PROCTER: I am not arguing against that, your Honour, but the reason for pointing out what his Honour the Chief Justice had said about it was to demonstrate that perhaps it is not as significant, in the overall picture, as the Crown contends it is, and that had there not been the evidence of an unrecanted confession before the jury, the decision might well have been different.
GLEESON CJ: But the Crown case, as I understand it, is that the last thing he ever said to her was, “I am off to see Shane Leslie Kelly” or “Ned”, the backhoe driver, and he was some years later found in the bottom of a grave that could only have been dug by a skilled backhoe driver.
KIRBY J: In a place to which the accused had the key, which was under the control of his father‑in‑law, with a backhoe instrument.
MR PROCTER: It is my submission, your Honour – and I think we got to this point a moment ago – that the evidence is not that the accused had the key to either the excavator or the boom gate, as at 23 November 1990. The evidence is quite clear that the appellant had not worked on this site since 29 October 1990, and that was because his friend, Williams, Mr Williams’ son, had been killed – within his vision – on that night in a road accident on the way back from that site.
KIRBY J: Yes, but he knew the site, he had access to it, he knew it had a backhoe driver on it, he had a key that unlocked a boom gate that was otherwise locked against the world.
MR PROCTER: It is my submission that there was no evidence that he had access to the key to the boom gate on that date.
KIRBY J: Well, we will have to come to that in due course. That is 7.8, I think.
MR PROCTER: Yes.
KIRBY J: We still have to get through the other elements. I think you have belaboured the phone call; I do not think there is much on your side in that point, except that there can be many Neds and people who get phone calls, they can go there and then go on to some other engagement. And the judge warned the jury about that.
MR PROCTER: Yes. Well, the Crown then submits at 3 that Marlow “had a grudge against the deceased”, because of his informing on him and that “the Appellant had a strong dislike of police informants”.
KIRBY J: Where does Marlow fit into this?
MR PROCTER: Marlow is the co‑accused, who was convicted and who, on the evidence, was the one who actually did the shooting.
KIRBY J: Yes.
MR PROCTER: The Crown sets out a number of passages, and obviously I do not stay to read through all of those, but it is submitted that there was nothing that Mr Marlow said, in those passages, that revealed a grudge. He did say he was surprised that Tanner did the crime, when they had only been doing “homework”.
KIRBY J: What does that mean?
MR PROCTER: That was explained in the evidence as meaning that he and Tanner had gone – I think it was 1987 when this occurred – to – I think the other vernacular way of putting it is – “case” a supermarket with a view to determining where the alarms were and things like that, in order to go back on another occasion and perform a burglary on the premises. Marlow had driven up to the supermarket with Tanner in Marlow’s car. I should make that clear. Tanner had got out, Marlow had got himself parked in by a truck and suddenly, to his horror, saw Tanner running towards him with an attaché case which, on the evidence, Marlow thought contained about $60,000. That was what was put at the trial which inevitably followed this matter.
So what Marlow says, in the passages to which the Crown refers, is that he was surprised that Tanner had gone ahead and done the crime when all they had done was to go there to do some preparation. He also said that he was surprised and disappointed when he found out that Tanner had put his name up to the Victorian Major Crime Squad, which had interviewed him after he had gone to that State, presumably running away, because, of course, Marlow had been arrested on the day all these events occurred.
He told the court in his evidence that Mr Tanner had told him that he had been verballed by the Tasmanian police officers, who had interviewed him in relation to the supermarket robbery. That evidence appears at appeal book 7, 1662, line 37, to 1663, line 10. He also said that he would have been surprised if Tanner had given evidence for the Crown against him – again at appeal book 7, 1666, lines 15 to 16 and 1667, lines 41 to 45.
GLEESON CJ: Now, what is the point that you are making about this?
MR PROCTER: The point I am making, your Honour, is that there is not insufficient evidence there to warrant the Crown’s assertion that Marlow had a grudge against the deceased, because the deceased had previously informed the police on a crime he and Marlow had committed together. The Crown goes on to say that Kelly had a strong dislike of police informants and, of course, Kelly, the appellant, at the passages cited by the Crown, did give evidence of that, but even in those passages he denied that he was annoyed with Tanner himself and said that this had nothing to do with him.
The Crown’s points, 4, 5 and 6, all relate to the evidence of one Paul Paget, a Crown witness, who gave evidence of three matters of significance. The first was a meeting, which he said took place at Goosegreen Place in Longford. That was the accused Williams’ residence, he being the person who was acquitted, having been charged with the appellant and Mr Marlow. He said that there were the four of them involved in this meeting. Basically, it is set out, in the passage to which the Crown refers, the details of a plan for the appellant to lure Tanner to the logging site at Bellevue Tier, on the pretext of drugs being available there, and that, once they arrived there, Marlow would shoot him and the appellant would dig the hole.
That passage appears there, where the Crown says. But I would refer your Honours to appeal book 5, lines 1043 to 1046 ‑ ‑ ‑
KIRBY J: The problem for you is that you are beginning to accumulate a number of coincidences, are you not? I mean, you are beginning to accumulate quite a significant number and that is the difficulty from the point of view of the proviso, as far as I am concerned. Your answer to that is, yes, but it still has to be an inevitable conviction, but – anyway, press on. I am just indicating how I am thinking.
MR PROCTER: It is my submission that the jury would be unlikely to rely on the evidence of Mr Paget, given the evidence which appears in the passages to which I have referred and, in particular, the directions which they were given by his Honour concerning Mr Paget, who was, of course, a police informant and one who, on the evidence, had been charged with a quite serious crime involving firearms, and altered his plea on that charge. He avoided imprisonment, on the face of it, on the basis of documents handed by the Crown to the trial judge.
GLEESON CJ: Mr Procter, how long do you think you will require to complete your submissions?
MR PROCTER: I would say probably about 20 minutes, your Honour.
GLEESON CJ: All right. We will adjourn now until 2.00 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.03 PM:
GLEESON CJ: Yes, Mr Procter.
MR PROCTER: Yes, thank you, your Honours. If I could begin by repeating what we have discovered in relation to the history of the comparable sections. The Western Australian section, section 570D, is, in fact, attached to the respondent’s submissions which were filed on 27 October. The section began in 1992, it was amended in 1999, but I am instructed that the only amendment which was made was to add the alternative “or an Anti‑Corruption Commission official” to those to whom an admission could be made. So, in essence, it has remained the same since 1992.
The New South Wales section was section 108 of the Criminal Procedure Act 1986, and I understand that there is a comparable section in the New South Wales Crimes Act, which my learned friend has just shown me a copy of. I understand that that was introduced in 1995, during the course of discussions concerning the uniform Evidence Act. That section has very recently been renumbered within the Criminal Procedure Act, and it is now section 281. My learned friend, Mr Wallace, during the luncheon break, has obtained five copies of that and I can hand those to your Honours. Your Honours will see that it is almost in terms of the section under discussion in this matter.
GLEESON CJ: Now, what, if any, authorities are there on the meaning of this expression “in the course of questioning” or “in the course of official questioning”, apart from the cases we have already been referred to?
MR PROCTER: I have not found any from New South Wales, your Honour, which I found surprising at the time. It seems that it has not fallen to be interpreted in this way previously.
GLEESON CJ: That New South Wales provision has been overtaken by the Evidence Act, I presume, has it?
MR PROCTER: No, it is still in the Criminal Procedure Act 1986, your Honour, but it has been renumbered as section 281, instead of 108 as it was originally.
GLEESON CJ: So it exists alongside the Evidence Act?
MR PROCTER: Yes, your Honour, and also alongside a similar provision in the Crimes Act.
KIRBY J: What is the section of the Crimes Act, do you know?
MR PROCTER: Section 424A, I am advised, your Honour.
KIRBY J: Then there is the Tasmanian provision, which we are looking at, but what about the other States? Do they have any other schemes in other States of Australia or Territories?
MR PROCTER: I think there is a similar section in Victoria, 464G.
KIRBY J: It is usual to have the help of counsel on these comparative provisions. Justice Heydon has just drawn my notice to the footnote in Cross on Evidence, the latest issue, paragraph 33780, and it is footnote 1, to 33775, which has a series of comparable sections. We will just have to have these provided to us, because, you see, we have to deal with the Tasmanian issue, but we have to keep in mind how it operates in other States.
MR PROCTER: Yes. I will certainly ensure that those are provided, hopefully, later this afternoon.
GLEESON CJ: Thank you.
MR PROCTER: I was, before the adjournment, addressing the question of the evidence of Mr Paget. It was submitted that he was totally discredited. I would refer your Honours to the appeal book 5, page 1043, line 34, to page 1056, line 20, and I do not stay to read through that. It is a very long passage of cross‑examination of Mr Paget by counsel for the appellant at the trial. It suffices to say, in my submission, that it reveals that his evidence was riddled with contradictions, with errors and with doubts.
His Honour, the learned trial judge, at appeal book 10, page 2300, gave the warning to the jury that, on the face of his own evidence, Mr Paget could be characterised as an accomplice, because he had given evidence at Goosegreen Place of encouraging the commission of the offence. That is at line 24 on page 2300. Then, specifically, the question of Paget is addressed, beginning at line 39 on that page and continuing to line 26 on the next page, where his Honour, in the paragraph that begins at line 15, points out:
So quite apart from the many failings of Paget as a witness due to his poor character and the many inconsistencies and self‑contradictions in his evidence – even if he presented as, on the face of it, a fairly plausible witness, the law requires me to tell you that by reason of his possible status as an accomplice, if you think there is some truth in his evidence or part of it, it would be dangerous for you to base a conviction on his evidence unless it is corroborated in a material respect –
So his Honour not only gives the warning, but also comments on the many failings of Paget as a witness.
His Honour returned to this theme at appeal book page 2341, where he reminded the jury of the accomplice warning. He then, from line 26 on that page through to page 2345, line 30, drew attention to a number of the contradictions and errors which had been identified in the evidence of Mr Paget. He then concluded his review of Mr Paget’s evidence by referring in some great detail – indeed, it occupies from line 32 on page 2345 through to line 1 on page 2354. He reminds the jury of the cross‑examination by counsel for the appellant, which I have already identified, in appeal book 5, at page 1043 to 1056.
It is submitted that not only was Paget an accomplice, he was also an informant who had everything to gain by cooperating with the police in their obvious desire to see Marlow and the appellant convicted on the charge of murder. He had the incentive of avoiding prison. His Honour, in the passages from 2341 to 2345, discusses a number of those matters. He has, as I said this morning, apparently obtained the benefit of a lenient sentence on the basis of information submitted by the Crown. In addition, he has not been prosecuted for a number of “criminal episodes”, as his Honour the learned trial judge characterises them on 2343, and sets those out over the next few pages.
It is submitted that it is significant, in assessing the weight which this jury attributed to the evidence of Mr Paget, to note that the co‑accused, Williams, was acquitted not just of murder, but of being an accessory after the fact. The verdict appears in appeal book 10 ‑ ‑ ‑
KIRBY J: His Honour had to interrogate them, though, did he not?
MR PROCTER: Yes, he did. At page 2415, it is recorded:
THE JURY RETURNED A UNANIMOUS VERDICT OF NOT GUILTY OF MURDER
HIS HONOUR: Do you have any alternative verdict, or is it a verdict of not guilty, full stop?
JURY FOREMAN: It is a verdict of not guilty, full stop.
And just to make sure:
HIS HONOUR: Not guilty of being an accessory after the fact?
JURY FOREMAN: That’s right.
Now, the case against Williams for being an accessory after the fact was that it was alleged that he had driven Mr Tanner’s car to the airport in an effort to create the impression that Mr Tanner had fled the State and left it parked there. At appeal book 4, page 901, Paget refers to a discussion – this discussion at Goosegreen Place. He was asked:
Now, was there any discussion about Mr Tanner’s car?....Yeah, it was going to be taken to the airport.
And was it discussed who was going to take it to the airport?....Yes, it was.
And what was discussed?....Yeah, Williams, Mr Williams was going to take the car to the airport.
And, what was Mr Williams’ reaction to that?....Yeah, fine.
At any stage, did Mr Williams or Mr Kelly say that this plan wasn’t a very good idea?....No.
Or that they didn’t agree with the plan?....Yeah, they agreed with it.
So the evidence is clear and unequivocal that Mr Williams participated in this conversation, during which the plan was hatched. Then at page 904, line 35, he was asked:
Now, did you speak to the accused, Mr Williams, after the meeting?....Possibly, I would have talked to him, yeah.
And when was that?....Couple of weeks after, I don’t know, I can’t really remember when.
You can’t remember exactly when and what did he say about it?....He took Tanner’s car to the airport, that was about it.
So it is submitted that it can be inferred from the fact that Mr Paget gave that evidence, and that Mr Williams was acquitted even of being an accessory after the fact, that the jury did not accept Mr Paget’s evidence in the passages to which I have just referred. Of course, it does not follow that they have rejected all his evidence, but it certainly points to the fact that the members of the jury must have had difficulty in accepting it. It is submitted that that is a situation which very much weakens the effect of the evidence upon which the Crown relies, insofar as Mr Paget is concerned, relating to Kelly.
Now, at points 7 and 8, the Crown refers to the nature of the site and the nature of the appellant’s access to it. The Crown’s submission is that
the Appellant’s father‑in‑law –
that is, Mr Williams, who gave evidence –
was operating on the log landing where the deceased’s body was found. The boom gate would be locked at night, few people had access to the site and there was an excavator on site.
The Crown goes on at 8:
the Appellant worked on the site up until a month prior to Mr Tanner’s disappearance –
and certainly the evidence would suggest that –
At the time of Mr Tanner’s disappearance he had access to the keys to the boom gate and he was an experienced excavator driver.
It is submitted that the evidence does not support the proposition that the boom gate would always be locked. I refer to appeal book 3, page 476, lines 16 to 30, where Mr Williams, the proprietor, as it were, of this logging site, talks about the boom gate. He said that:
If there was no trucks still in there when they went out, it would be the crew, bush crew –
who would lock it, and “whoever was in there first” would unlock it. He said:
Most of the time I would think –
the boom gate was locked –
but I know that it had been left open.
The next response was that it was:
Supposed to be locked all the time.
He was asked:
And where was the key to the boom gate kept?......Well I can’t recall, I thought we all had keys to it but some said that it was – under a burnt out tree at the boom gate.
He goes on:
I always thought that all the trees – like the truckies had their own keys, I can’t really remember that, whether it was true or not, but someone says the key was left at the gate in a hollow tree.
So you can’t remember where the keys were left?.......Not the gate key, no.
He said that the “bush people” had a key to the gate:
plus there might have been an extra key or it could have been the same key, I don’t know.
Now, on the same point of keys, he goes on to say that the excavator key was kept “In the vehicle”, and it is submitted that it is later shown that what he is talking about there is not the excavator but the four‑wheel drive vehicle in which the bush crew went to and from the work site. That is brought out in the question by his Honour at line 30:
HIS HONOUR: They keep it in this four wheel drive?
WITNESS: In the four wheel drive, yes.
And Mr Williams has said at line 23:
the key to the excavator, the bush crew would have took that key home with them.
It is that that has prompted his Honour’s question about the four wheel drive. Now, of course, Mr Paget had, on the evidence at appeal book 3 – I am sorry, in my typed submission, the page reference has been omitted – it is 642 ‑ ‑ ‑
GLEESON CJ: What line?
MR PROCTER: It is appeal book 3, page 641, lines 28 to 44.
GLEESON CJ: Are you actually in the process of taking us through those further written submissions that you sent up this morning?
MR PROCTER: Yes, your Honour.
GLEESON CJ: And you have got to 7.8, at the moment?
MR PROCTER: Or 7 and 8, yes.
GLEESON CJ: 7 and 8, and you are continuing through to 18?
KIRBY J: All of these are in response to the paragraphs in the respondent’s submissions?
MR PROCTER: In the Crown’s submissions, yes, your Honour. I would add to the submission as to the fact that the appellant was not working at the site at that time a reference to page 642, lines 1 to 2. The thrust of the passage at 641, 642, is that after the accident in which Mr Williams’ son was killed, everybody had a week off work, but that Mr Kelly, the appellant, did not return at all. He went back after Christmas when the crew moved on to Granville Harbour, and that, of course, is the evidence of Mr Williams, the employer.
HAYNE J: Now, Mr Procter, you can take us through all of this detail but, at the end of it, does it not come to this? The deceased was last seen and heard of when he said he was going to meet the appellant. The deceased is later found in a machine‑dug grave at a point to which the appellant, until soon before the date of disappearance, the deceased had had access through a locked gate to which he had had access, where there was machinery which he had operated and to which he had access and which was suitable for digging the grave.
He later confesses to being involved in the murder, together with associates of his, one of whom had a motive to exact revenge on the deceased. Not only does he confess to it, he later engages in conversations which can be understood as him seeking indemnity from prosecution. At the trial, he accepts that he has confessed, and he gives two explanations for why: one, to get bail, and two, because the detective had threatened to “stitch him up”. That is what it comes to, is not it?
MR PROCTER: Yes, your Honour, but ‑ ‑ ‑
HAYNE J: Why do we need to go through the detail?
MR PROCTER: Because the Crown’s submission is that without the confession, a conviction would be inevitable.
HAYNE J: The confession to which I refer is the rooftop confession, which he accepts he made and which we assume remains part of the evidence, do we not?
MR PROCTER: Certainly, your Honour, but ‑ ‑ ‑
HAYNE J: Yes, so he has confessed to the crime, and he says he did it for one of two reasons. Why do we need to go through all this detail in considering the application of the proviso?
MR PROCTER: It is my submission that the only way to determine whether a conviction is inevitable without the evidence that, it is submitted, ought not to have been in is to look at the evidence that was there, apart from it.
HAYNE J: The only evidence that, by hypothesis, is being excluded is this evidence which may – it may not – be subject to the relevant provisions of section 8, that is, the evidence which purports to withdraw his explanations.
MR PROCTER: Yes.
HAYNE J: Let it be assumed you can shoot holes in Paget’s evidence. Where does it get you? The strength of the Crown case – it seems to me, at least – lies in the four elements that I have identified to you. Now, that is either strong enough to invite the proviso, or it is not. Why do we get into the detail?
MR PROCTER: Certainly, I do not want to detain the Court ‑ ‑ ‑
HAYNE J: No, I just want to understand why we need to focus on the detail. I mean, if there is a good reason, I need to know it.
McHUGH J: The jury has accepted all this evidence against your client, or it would appear to have. What you have to demonstrate, on the proviso issue, where you have to negative, is the notion that if they had not had this statement, it would have made all the difference to the case, and the jury would not have accepted – or, to put it properly, the Crown has not established that the jury would still have convicted.
MR PROCTER: The evidence upon which the Crown relies for that proposition is the evidence which I am seeking to analyse.
McHUGH J: But it is not a question of analysing. You have to characterise it sooner or later, have you not, and what Justice Hayne has put to you is the characterisation of the evidence. They are the essential points. They either make an overpowering case against your client, or they do not, but does it advance the matter to go and look at every line of evidence? Because the evidence only amounts to what Justice Hayne put to you.
MR PROCTER: Those points are certainly the main points of the Crown’s case.
KIRBY J: As I understand it, what you are trying to do, good or bad, is to take a pot shot at each of the ingredients which the Crown has put up as combining to indicate an overwhelming case that leaves the result that conviction was inevitable. You say you want to knock away the supports for that proposition.
MR PROCTER: Yes, your Honour.
KIRBY J: Well, you have given us all the references to ‑ ‑ ‑
MR PROCTER: Yes, I certainly have, your Honour, and ‑ ‑ ‑
KIRBY J: ‑ ‑ ‑ the transcript. Normally, counsel pick on the main points that are their killer blows. I am still waiting for a killer blow from you.
MR PROCTER: It is my submission, your Honour, that the killer blow, if it can be characterised in that way, in this case is the fact that this jury had before it a confession which, given the evidence which was admitted, was unexplained, because the evidence which was admitted totally negated the explanation which was given on 4 March and which was repeated in the evidence that Mr Kelly gave to the court at trial. Now, a forthright admission to involvement in the murder, unexplained by anything other than it was true, is damning evidence, and that in itself would have been sufficient to enable this jury to convict Mr Kelly.
McHUGH J: But it is not unexplained. The jury had before it your client’s denial in the record of interview and also his sworn evidence. What you have to say is that the fact that Detective Lopes said he had made this statement would have caused the jury either to believe your client’s statement in his record of interview or his sworn evidence or, at all events, created some doubt about the validity of what was put against him.
MR PROCTER: It is my submission that allowing in the evidence that is under challenge robbed his explanation of all its faults, because here it is, he has immediately recanted the explanation within 40 minutes of having given it on 4 March.
McHUGH J: But that assumes that you accept Detective Lopes’ evidence. You still had your denial on the videotape before the jury, you still had your sworn evidence in denial before. The only thing that could have made a difference is that the jury would not have had Lopes’ evidence that afterwards your client said, “Well, it’s just a game’.
MR PROCTER: Yes, I accept that, your Honour, but it is the force of that that I wish to stress, that really in the light of that evidence any chance of the appellant’s explanation of his rooftop confession being accepted by the jury went out the window.
McHUGH J: But why would you say that? After all, on the video your client has denied it to the detective’s face and in fact he has accused the detective of a criminal offence. There is no denial from the detective, is there, on the recording? I would have thought that was strong material in favour of you; that the jury would not have accepted that your client made this statement that the police alleged he made. But there is all this other evidence. Your client on the video tells the detective to his face, “You threatened me, and the only reason I made this confession was because you threatened me”. The detective does not deny it, does he?
MR PROCTER: I think he does, your Honour, and he says, “I never said that”.
McHUGH J: Did he?
HAYNE J: You have the difficulty at 1852, volume 8, where you have the rooftop confession, where there is dispute about exactly what is said and who says what:
you concede to the jury, ‘yes’ you nominated yourself and Michael Marlow?....Yes, I did.
Now, was it true the implication that you gave to them?....No.
He then says “Why?” He has got his explanation out.
MR PROCTER: I do not dispute that, your Honour, at all. He has given his explanation in evidence and he has given it in the videorecorded interview, but the words alleged to have been said in the car park, in my submission, deprive it of most of its force. It is on that basis that it is submitted that there was sufficient in the confession on page 1852 unexplained to enable the jury to convict Mr Kelly of murder. If the explanation is minimised in the way that it was by the evidence that was admitted, then it is my submission that his chances of having those explanations accepted became minimal indeed.
GLEESON CJ: I think we understand that.
MR PROCTER: Thank you, I have nothing further, your Honours.
GLEESON CJ: Yes, Mr Ellis.
MR ELLIS: Thank you, your Honours. At this stage the respondent does not seek to argue that what was admitted in evidence, or what is the contentious evidence, was an admission. That is particularly so because it would be in the state that the Evidence Act is today in which an admission is defined as anything against the accused’s interest. So, although there was no enthusiasm to embrace the dual propositions that it was an admission and made in the course of official questioning in the trial and there was no enthusiasm for it in his Honour the trial judge’s ruling, I am not trying at this late stage to persuade the Court that it was not an admission.
The question though of the interpretation of section 8 of the Criminal Law (Detention and Interrogation) Act is one which, in my submission, can be addressed in a variety of ways. Firstly, to say what it is not, to say what that Act does not purport to provide, is a reasonable starting point. In my submission, the Act does not – or did not; it has gone now – purport to provide that so‑called police verbals, that is admissions or confessions attributed to accused persons but not otherwise recorded, would never be admitted. If it was an Act of that type, you would think that it would be better drawn than to admit an exception to the electronic recording apparently just on the word of the police, that is, that the accused did not consent to the videotaping of an interview. So there was a clear recognition, in my submission, in the Act that there would be circumstances in which verbal confessions would be admitted, and they would be admitted by a process of verbal attribution to an accused.
His Honour Justice Evans in Julin’s Case, to which you have been referred in the written submissions of my learned friend, put a gloss on that to the effect that he would need to be persuaded that there was some effort to get the accused on video before he would see that as a reasonable explanation for the non‑recording, but that seems to have gone really to him as a fact finder. Other fact finders may well have been satisfied on police evidence that the accused did not consent to the interview being videotaped.
Nor is it, in my submission, an Act which purports to exclude from evidence, unless it is recorded, all conversation between accused and police, all important conversation. For instance, it does not exclude a lie proffered by the accused. That can still be attributed without being recorded. It does not exclude other important conversations such as an accused’s refusal to go in a police line‑up, again not a matter of admission but capable very much of affecting the course of a criminal trial.
Nor does it in Tasmanian legislation purport to do what the Western Australian legislation, which was available as a model, sets out to do, which was to exclude admissions from persons in custody, whether that was the product of questioning or not. It is my submission that a good key to the meaning and purpose of the Tasmanian legislation is found in the use of the word “interview”.
McHUGH J: That is the most powerful indication. It appears in paragraphs (2)(a), (2)(b), (3)(c) and (3)(d). The term “in the course of official questioning” seems to be synonymous with interview by a police officer.
MR ELLIS: Yes, your Honour. His Honour Mr Justice Slicer in his dissenting judgment makes a curious mistake – no way round it – at page 2450, line 45, paragraph 144 of his Honour’s reasons, the very last paragraph on that page.
McHUGH J: His Honour is just wrong.
MR ELLIS: Quite wrong, yes.
McHUGH J: It appears four times.
MR ELLIS: It is an interesting mistake and it is one that alerts – me at least – to the second reading speech delivered, which I hope I can tell the Court, by a former policeman. Mr Cornish, the then Attorney, was a policeman. In the course of the second reading speech, which is attached to my learned friend’s submissions, in particular at the very bottom of page 30 of that speech, he uses the word “interviews”. I am sorry, I should have started at the start. He introduced the Bill as introducing a reform. This is in the final dot point at page 29 of the Hansard:
“the mandatory videotape recording of the interview during which a confession or admission is made.
He returns to the use of the word “interviews” at the bottom of the next page and it is used throughout the next page about seven times on my quick count. In the middle of the page, your Honours, in the fourth paragraph that appears, the Attorney‑General said:
In addition, there is strong evidence that tape recorded interviews take far less time to conduct than those recorded by the traditional method of two‑finger typing.
Again, an actual policeman saying that.
In my submission, what the Attorney was referring to and what the Bill was directed to was what was the real vice of criminal trials at that time, that accused people were being confronted with elaborate purported records of interview which were typed. They would go over several pages, they would be unsigned and otherwise not independently corroborated. The criminal trials were becoming arguments about the making of these documents and it was the documentary form rather than the admission attributed at the scene or the “I did it but I’m not saying any more” which had become the real problem in criminal trials. That is how criminal trials used to be run.
GLEESON CJ: What do you say about the use of the word “any” in the second line of section 8(2)?
MR ELLIS: I am sorry, I just did not catch ‑ ‑ ‑
GLEESON CJ: Section 8(2) excludes “evidence of any confession or admission”. That is then qualified by reference to things that happen in the course of an interview. A possible point of view is that the exclusion is general and the repeated references to “interviews” are there to force the police to follow a procedure involving an interview if they want to get evidence of any confession or admission in.
MR ELLIS: Yes.
GLEESON CJ: That argument may be right or wrong but, as it seems to me, it is the argument against you. I am interested to hear your response.
MR ELLIS: Certainly, your Honour. “Confession or admission” is itself defined in section 8(1) as meaning one “made in the course of official questioning”. So it comes back to what my submission was to be, namely that the model to be avoided by this Act was the time when the police sat down and asked questions of the suspect. Also to be avoided was the time when at the scene they commenced questioning and noted it and so on.
GLEESON CJ: When do you say in the present case the course of questioning ended?
MR ELLIS: The course of questioning ended when the accused was told, “We’ve finished. We have no more questions”, the machine was turned down. In my submission, that is right in fact. It provides a ready test to trial judges to apply.
GLEESON CJ: Is part of your argument that whatever the expression “the course of questioning” means, it must involve some activity on the part of the police of an interrogative nature?
MR ELLIS: Yes, it is because the word “interview” suggests two participants. “In the course of” is certainly temporal, in my submission, and is different from “arising out of” somehow, and it is an activity of the police. It is sought to be defined as its starting point at about the time that a person ought to be cautioned, or if not at the precise time the suspect ought to have been cautioned, whether he was ‑ ‑ ‑
McHUGH J: Relevantly there can be no confession or admission until the time that the police officer forms a suspicion, or ought reasonably have formed a suspicion, but the course of official questioning may have started long before that.
MR ELLIS: It has to be vis-à-vis that suspect though, your Honour, in my submission.
McHUGH J: Yes, I know, but a police officer may have been interviewing somebody for hours and then suddenly he forms a view and from that moment on the section bites.
MR ELLIS: The section bites because it is cumulative in that section 8(1) test. That is where it starts. This is consistent with this Court’s interpretation of the words “in the course of” in workers compensation law. Your Honour knows that Kavanagh was mentioned in the court below. I have supplied copies of a later decision on the same topic of Hatzimanolis 173 CLR 473 – it is not in the written submissions – in which the majority joint judgment rejected a line of cases which had, in the words of the joint judgment, put a strained interpretation on the words “in the course of” when appearing in workers compensation legislation and brought it back to a temporal test.
The problems had arisen of the after hours injuries, the injuries playing cricket in lunchtimes and so on. This Court at 482 rejected the proposition that it was enough that the employer had encouraged the particular activity which gave rise to the injury, rejected that as too much of a strain on the words “in the course of” and at the top of page 483 said:
Thus, an employee who is encouraged by his or her employer to see a doctor after working hours is not ordinarily within the course of employment if injured while visiting the doctor, although the case would come within [another] formulation. The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.
Similarly, in my submission, such an approach yields a sensible result in the Criminal Law Interrogation ‑ ‑ ‑
KIRBY J: You say it is sensible but it does run into the problems which this Court elaborated in McKinney and Judge. You can walk a team of camels through this.
MR ELLIS: You can. That is why I said at the outset, your Honour, here is an Act that is so set up that it admits that it can be circumvented by the unscrupulous police officer who wants to say falsely, “He didn’t consent to a video but he went on and made these admissions”. Now, that is still possible.
McHUGH J: There is a safeguard for the accused which was not present in McKinney and that is that it is a judge who determines the admissibility of the evidence. It is the judge who has to be satisfied there was a reasonable explanation. It is the judge who has to be satisfied it was not practical also, or somebody, whereas under McKinney ‑ ‑ ‑
MR ELLIS: It would be just the jury.
McHUGH J: Just the jury.
MR ELLIS: Certainly, your Honour, and there is a positive ‑ ‑ ‑
KIRBY J: Have there been cases in this State where the judge has rejected evidence under this section?
MR ELLIS: No. There has been an admission in this State where uncorroborated, except by each other, evidence of police officers was to the effect that the accused made confessions but refused to be videotaped.
KIRBY J: The problem for a judge is that the evidence is often rather telling and the judge will generally defer to the jury and say, “Let the jury work all this out”.
McHUGH J: With great respect, I do not think a judge can do that because it is a question as to the admissibility of the evidence, and that is a question for the judge. The judge has to determine whether there was a reasonable explanation. He has to determine all the criteria of the section. It is the judge who has to determine it.
KIRBY J: It is by porous criteria such as “reasonable explanation” which is the problem for a judge.
McHUGH J: Well, they say you have to trust the people. Maybe you have to trust the judges.
GLEESON CJ: How did this interview that was videotaped come to an end? Do we see the conclusion of it?
MR ELLIS: Yes, your Honour. I think Lopes asks Detective Pretyman, “Have you got any more questions?” He says, “No”. “In that case that’s it”.
GLEESON CJ: Could we see that, please? Could you just give us a page reference? No need to read it.
HEYDON J: Page 173.
MR ELLIS: Thank you, your Honours, line 7. ML is Detective Lopes; AP is Detective Pretyman.
ML Is there anything else you want to ask?
AP No.
ML Are you happy about the way you’ve been treated today?
SK Yeah no complaints.
ML Right, in that case then we’ll conclude the interview ‑ ‑ ‑
KIRBY J: Justice McHugh says you have to trust someone, and that is true, but the fact is McKinney and Judge took the stance it did after, you will remember, 20 years of cases gradually edging their way – Duke and other cases – towards the resolution of a very serious and national problem. If your submission is correct and Justice Slicer is wrong, then this legislation does not address the problem which McKinney and Judge drew to notice.
MR ELLIS: It has had the practical effect of addressing that problem, your Honour, and certainly has worked to that end in that trials are no longer conducted on the basis of “Here’s a five page typed up and signed record of interview” and that is the case.
KIRBY J: I realise that, but in a big case and a serious and horrible case, the experience before McKinney and Judge was that you got a temptation to try to make it foolproof by adding the verbal evidence. That is the exact case where you need legislative protection such as the Parliament has enacted here. Speaking for myself, if the language will bear it, I will endeavour to construe it to meet the problem that McKinney and Judge identified. But it may be that the language does not permit it because it has been accepted by Mr Procter that there will be points at the beginning which fall outside the protection and the language seems to suggest that there are points at the end where it falls outside the protection. As far as it can, I think it ought to be construed to meet the problem which this Court sought to address in McKinney and Judge.
MR ELLIS: That is so, your Honour, but Parliament’s perception of that problem might not be exactly yours, with respect. Parliament not only has the perception that all verbal admissions attributed to accused are a problem; Parliament also deals with the police lobby in the formulation of legislation and police concerns. Police concerns are obviously encapsulated in the recognition of the possibility that the machinery will malfunction, machinery will not be available and accused will not consent to be videotaped. Parliament could have solved that problem by saying that accused will be videotaped or an inference will be had against them, but it has chosen not to.
It is a matter of the balance that Parliament has struck. In my submission, Parliament has struck that balance on a model of preventing the old unsigned records of interview and in that it has achieved; these are not produced are more. What Parliament was not preventing was the possibility beyond all possibility of admissions or confessions being led in evidence when they have been attributed to accused.
McHUGH J: There is one thing we can be quite clear about, and that is that Parliament left a gateway that the accused did not consent to the interview being videotaped. So, if you have a crooked police officer who is prepared to say, “He made that admission. I then asked him to go back and videotape. He said ‘No’”, if the police officer is believed on that, then the evidence is admissible.
MR ELLIS: Yes, your Honour. It is not as if Parliament did not have warning from this Court. One of the authorities to which I have referred, but not again, I am sorry, in the written submissions, is Pollard v The Queen 176 CLR 177 in which this Court wrestled with the forerunner of this type of legislation, Victorian legislation. In the judgment of his Honour Justice Toohey at page 216 at the very bottom of the page going on to the next paragraph, his Honour gave formulated examples, one of which is very close to the present situation, which would not be covered by that Act. In my submission, it is clear that the Tasmanian Parliament was not concerned to cover all those conceivable examples.
KIRBY J: What is your answer to the point that I raised earlier concerning the meaning of “in the course of official questioning”? What about the problem of silence in order to allow the accused to volunteer information, which is a very common technique of interrogation?
MR ELLIS: In this State we have had a ruling that the evidence still needs to be recorded even if it is not directly responsive to a question. As long as you are in a setting where there is questioning, it does not matter that the admission is volunteered without a prompt from the question. It is still in the course of questioning, and it is that temporal interpretation.
GLEESON CJ: Well, if there is something that is going on that can be described as “a course of questioning” ‑ ‑ ‑
KIRBY J: It is a question of characterising the activity as a course of questioning, not the particular responsive or unresponsive remark.
MR ELLIS: Yes, your Honour.
McHUGH J: One way of doing that is just to simply – could just be referring to an interview. That is what the section seems to be talking about. It regards a course of official questioning by a police officer as an interview.
GLEESON CJ: Well, a person in the course of questioning about a robbery could come out and admit having committed a murder that was completely unrelated to the robbery, but that would be covered by the section, would it not?
MR ELLIS: Yes, it would be, because they would have been suspected of committing “an offence” ‑ ‑ ‑
GLEESON CJ: Yes, not “the offence”.
MR ELLIS: I think there have been rulings, and it does not matter that it is the precise offence.
McHUGH J: Mr Ellis, the one doubt I have about your side’s submission is the background of Williams’ Case, a context of people being in custody and getting them to the ‑ ‑ ‑
MR ELLIS: Yes. Williams was the brother of the accused, Mr Williams, in this case and he is the person Honk Williams described as Mr Kelly’s friend. That was the Williams in Williams’ Case. The particular problem there was that our Justices Act did not provide – it is all very Tasmanian, your Honour – our Justices Act required persons to be brought before a justice as soon as practicable, upon arrest. There was no time in which they could be interviewed if a justice could be available or made available, and that is a part, which you do not have before you, of the Criminal Law (Detention and Interrogation) Act – it was to overcome that problem.
Now, about two years before the introduction of this Act, unsworn statements were abolished in this State by the same Attorney‑General. He promised in return – because there was some controversy about it – that we would have, as a tit for tat way, electronic recording of interviews, which was then being gradually introduced in an informal way. I do not know whether that is the concern you had.
McHUGH J: The problem I had was that it may be – against the background that this was a package in which Williams’ Case was watered down, police were given powers to hold – that the provisions of section 8 were intended to operate, once the suspicion had been formed, at least until the person had been formally charged.
MR ELLIS: I think what was really happening was that people were being arrested in the early hours of the night and held for a certain time until a magistrate could become available – they were held without bail – and it is in that time that it was suggested that they participated in interviews, and elaborate documents were produced, which did not bear signatures. So this is why these things came together, that if they were going to be held in custody for a longer time than the law permitted, then there would be the protection that any interview that then took place would be recorded.
KIRBY J: So you say the problem in Tasmania was not “verbals”, it was “writies”?
MR ELLIS: There were both. There was certainly a problem with verbals. There was a late – if I could be permitted to keep going from the Bar table ‑ there was a late change of heart in the police opposing it, when they realised that they were not winning cases any more, such had been the turn in juries’ attitudes towards the unsigned records of interview.
GLEESON CJ: There were a whole lot of problems, and none of the legislation purports to address them all. The problem that was, for example, not even mentioned in McKinney and Judge was the problem of what the police said they saw people doing. So that, in drug offences, it was possible for police to make out a case against people on the basis of what they say they saw people doing in the street – handing over packets in exchange for money and so forth – and there would never be any record of that.
MR ELLIS: Yes.
KIRBY J: There was also the so‑called giving of presents, the planting of hard evidence on people.
GLEESON CJ: Snowdropping.
MR ELLIS: Certainly. It has to be borne in mind that this was legislation imposed on a police culture which, up until very recently, was very much against electronic recording, and it maybe represents some checks and balances along the way. It represents a first bite, rather than maybe the be‑all and end‑all. In my submission, it does not represent, as it could have, legislation which purports to say that any confession by an accused person which is not electronically recorded will not be admissible, any confession ‑ ‑ ‑
GLEESON CJ: There must be some degree of flexibility in the concept of “course of questioning”. If you go back to page 173 of the transcript, it cannot be the case, can it, that if, the video having been switched off and the policemen having said to the person being interviewed, you are perfectly happy, the policeman then ‑ ‑ ‑
MR ELLIS: Starts questioning.
GLEESON CJ: No, does not start questioning – the policeman then attributes to the accused, after the video machine has been switched off, a statement to the effect that that was a load of rubbish.
MR ELLIS: Apart from the time lapse and the fact that they were in a different place and so on, I suppose that could be said about this case.
GLEESON CJ: All I am saying is, there has to be some degree of flexibility about the concept “course of questioning”, has there not?
MR ELLIS: Yes.
KIRBY J: But there is. There are two elements of suspicion or concern in this case – at least, they are urged upon us. The first is that the police officers did not immediately take the accused back to put him in front of the video camera and assert what he had said and capture his response, which could have been very powerful. Secondly, they did not record it in their notebooks immediately. Now, both of those are matters for concern, at least to me.
MR ELLIS: Yes, they are. I was going to deal with those matters in relation to the proviso, because my response to it was that there was no real great joy for the Crown case in the admission of this evidence, in the end. It drew a McKinney direction and drew some powerful cross‑examination and submissions to the jury on just that matter.
McHUGH J: What is your explanation of the curious wording of 2(b), which seems to indicate that you cannot get the subsequent confession in, even when you have a reasonable explanation, unless there is a videotape confirming the out‑of‑videotape interview?
MR ELLIS: Yes.
McHUGH J: What is the answer?
MR ELLIS: The answer could well be that that is how the legislation was before someone persuaded the draftsman to put in (c) – that, indeed, it might have stopped there, were it not for (c).
McHUGH J: Well, (b) is certainly a powerful indicator that this sort of evidence is not admissible unless the accused subsequently confirms it on videotape.
MR ELLIS: Yes, but they seem to be, though, cumulative, your Honour, in point of time, (a), (b), (c) and (d). So (c) is the amelioration of (b), if the factual circumstances of (b) are such.
McHUGH J: But if (c) has the explanation for which you contend, (b) is redundant. It has no meaning whatever – no effect whatever.
MR ELLIS: No, it is not redundant. If the (b) situation is there and it stays that way and the reason there is no subsequent videotape is that the police were too lazy, then it would not be admitted.
McHUGH J: But why would you want the opening part a condition of paragraph (b)?
MR ELLIS: That is when you have a confession at the scene in the course of official questioning, or some other place where there is no videotape, or in the police car, where there is a bit of questioning started up on the way to the police station. Then they get to the police station and it is not recorded. Well, then, the earlier confession would be inadmissible. That is how (b) would operate, unless (c) applied, or (d).
HAYNE J: Have you not just inverted it, Mr Ellis? I think you may have just inverted it with (b). (b) enables you to give evidence, does it not, of the confession at the scene of the crime, or in the car, if you have the subsequent acknowledgement on tape.
MR ELLIS: Yes.
HAYNE J: So if they acknowledge it on tape, you do not have the unreal circumstance of confining the evidence to what is said on tape. You can go back and explain it: “He said in the car these things and later I put it to him on tape and he agreed that he had said it and ‘Yes, it was all true’”.
MR ELLIS: So (b), (c) and (d) all ameliorate (a).
McHUGH J: But, on your argument, the admission made at the scene would be admissible, because you had a reasonable explanation.
MR ELLIS: No, because you would not have got over (2)(a).
McHUGH J: Yes, but, on your argument, (c) would cover the case.
MR ELLIS: No, because then you would not get over (b). (c) needs to get over (a) and (b). (c) needs to get over no videotape in the first place and no…..in the second place.
McHUGH J: Yes, (a) and (b).
KIRBY J: You mentioned a case in this State about non‑responsive or extra‑responsive. Do you know the name of that case, or could you send a note of that?
MR ELLIS: I will send a note, certainly, your Honour. There is a case, and I will send a note of that. There is a case that I should tell you now in which it was held that a lie was not such a confession or admission as needed to be recorded. That is Carr [2002] TASSC 46 – another Carr.
HEYDON J: Mr Ellis, can I just ask this question, in the second reading speech, the Attorney‑General said the section we are concerned with was based on report No 64 of 1990 of the Law Reform Commissioner. Have you looked at that report, because I cannot find any reference in it to a scheme like that of section 8. Is there some other report that he may have had in mind?
MR ELLIS: No, there is no other report. Is that the second reading speech, or is it the Opposition Attorney‑General?
HEYDON J:
MR CORNISH (Braddon – Minister for Justice) –
at the top of page 30 of 55.
MR ELLIS: Yes. What I recall as the impetus, your Honour, is a report that a senior police officer did, and it was following an overseas trip in which he saw electronic recordings and so on. That report became of more influence than the Law Reform Commission Report, because then videotapes were introduced in Tasmania on a test basis in some stations.
HEYDON J: Yes. Thank you.
MR ELLIS: Your Honours, as I say, my submission is that it is a temporal interpretation called for. It is the occasion of an interview. The occasion can be relatively quickly factually seen, as it was in the court at first instance. There, with Mr Kelly, there was no questioning going on; the questioning had finished. He was in police company for an entirely different matter at that stage when he decided to volunteer something, and it was not rendered inadmissible by the Act.
McHUGH J: Can I just take you up on your submission that (a) and (b) are cumulative, which I think is right – at the moment, anyway. Did either the trial judge or the Court of Criminal Appeal determine whether (a) and (b) had been made out?
MR ELLIS: No, it did not. It never revolved on the question of the excuses, it revolved on a question of the factual situation, whether it came in the course of official questioning.
GLEESON CJ: Yes. Their decision turned entirely upon the proposition that this statement that the accused came out with, half an hour to 50 minutes after being questioned, was not in the course of questioning.
MR ELLIS: That is so, your Honour, yes.
KIRBY J: You put the time a little bit longer than the appellant does. I think you say it is an hour or ‑ ‑ ‑
MR ELLIS: I think my written submissions actually have the correct times. It is not quite an hour.
GLEESON CJ: I thought somebody said it was between 30 and 55 minutes.
KIRBY J: I think the appellant said that, but you put it a bit longer.
MR ELLIS: Yes, I put it a little bit shorter than an hour.
HAYNE J: Half an hour and 53 minutes – Part I of your submissions.
MR ELLIS: Yes, 53 minutes was the more precise evidence of Detective Pretyman. Half an hour was Detective Sergeant Lopes’ guess.
GLEESON CJ: Now, as far as the proviso is concerned, we have read your written submissions.
MR ELLIS: Thank you.
GLEESON CJ: It is really just a question of whether you want to add anything to those.
MR ELLIS: Could I add just a couple of things in reply. The acquittal of the accused Williams is not necessarily explicable on the basis that the jury rejected Paget’s evidence. It is explicable on the basis that the jury were instructed with Paget to look for corroboration, and such corroboration was there in the case against Marlow and Kelly, but was not there in the case against Williams. So it is, in my submission, facile to say that the direct evidence that Paget offered was rejected by this jury. That is not necessarily the case at all, simply that they may have well acted on the warnings concerning corroboration that Paget’s evidence drew.
Your Honour Justice Heydon, with respect, has, apart from the direct evidence, encapsulated very well the Crown case. It was a very strong case against Mr Kelly, a strong circumstantial case, but a reasonably strong direct case, because Paget in his evidence displayed esoteric knowledge that could have only have come from the murderers. There was an opportunity to re‑examine him on the basis of recent invention and it emerged ‑ ‑ ‑
GLEESON CJ: He gave evidence, did he not, about things concerning the location of the body before the body was discovered?
MR ELLIS: Yes, that is right, the location of the body, that it was buried deep, that it was buried with an excavator, that a shotgun was used. He was able to give evidence of telling the police these matters before the discovery of the body, and so his evidence was strong. There was also direct evidence against Kelly and Marlow, but not against Williams, from the witness Armstrong, who, although he drew a prison informer warning, was in fact an informer with very little to gain. He had been out of gaol, he was not apparently facing anything more and had not got any discount for his efforts up to that point. He gave direct evidence of admissions against Kelly.
Finally, as I foreshadowed, it was a mixed blessing for the Crown getting in the evidence. First, it did not really advance what the dispute already was before the jury between Lopes and Kelly, and that is, the appellant had nailed his colours to the mast in the interview that, “Yes, I confessed, but it is because you threatened me. You threatened me with this character Jarvis getting out and you said you would not give me bail”. He had already delineated an argument for the jury’s resolution between himself and Lopes.
What the impugned evidence did was no more than could have been done in address. Of course, it could have been suggested in address just as effectively, really, that here is Kelly in the video just playing a game, just seeking to explain his earlier confession. If that was done, there could be no objection to it. If it was put to him in cross‑examination, there could be no objection to it. But in terms of it being logically probative and able to assist the jury in the resolution of the dispute between Kelly and Lopes about what inspired the confession, it was not able to do so. It carried no independent force, independent of Lopes.
On the other hand, what it did to the Crown case was draw a quite elaborate McKinney direction, in which how easy it is for police to make things up was reminded to the jury. As I have said, it gave fairly fertile ground for the cross‑examination of Lopes, and, at the end of the addresses, was used to demonstrate the poverty of the Crown case – here it is, they did not note it, but they are bringing it out.
In my submission, when the proviso is being considered, it should also be considered, in the end, how little it advanced the Crown case to have that evidence admitted. If it please the Court.
GLEESON CJ: Yes. Thank you, Mr Ellis.
KIRBY J: What excuse did the police give for not having taken steps to video and confront the accused with having received this statement of “not recorded”?
MR ELLIS: I think they did not think it was admissible. That is right, they did not think it was admissible until they spoke to counsel just prior to the committal proceedings, and it was then decided to lead it. They did not think it had evidential status.
GLEESON CJ: Yes, Mr Procter.
MR PROCTER: I have nothing further, your Honour.
GLEESON CJ: Very well. We will reserve our decision in this matter and we will adjourn for a few minutes to reconstitute.
AT 3.22 PM THE MATTER WAS ADJOURNED
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