Kelly v The Queen

[2003] HCATrans 615

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H1 of 2002

B e t w e e n -

SHANE LESLIE KELLY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 MARCH 2003, AT 9.36 AM

Copyright in the High Court of Australia

MR R. RICHTER, QC:   May it please the Court, I appear with my learned friend, MR D.R. WALLACE, for the applicant.  (instructed by Wallace Wilkinson & Webster)

MR D.G. COATES:  May it please the Court, I appear with my learned friend, MS C.J. GEASON, for the respondent.  (instructed by Director of Public Prosecutions)

McHUGH J:   Yes, Mr Richter.

MR RICHTER:   If the Court pleases, the application in this matter concerns the interpretation of section 8(1) of the Criminal Law (Detention and Interrogation) Act 1995. It is a matter of general importance to the administration of justice not just in Tasmania but also in New South Wales in the sense that the New South Wales legislation is identical for all intents and purposes. There is similar legislation governing the issue of tape recordings and videotaping of interviews in other jurisdictions. The prohibitions against admissibility in those jurisdictions are expressed somewhat differently. So this issue does not directly impact upon that legislation, but the concepts involved in this matter do in the sense that the limitations on the admissibility of admissions which are not taped or subsequently confirmed on tape of one kind or another is a matter of general significance.

The application and the reading to be given to the words “in the course of official questioning” in subsection (1)(b) of the Act, and, in particular, whether the word “questioning” and the words “in the course of questioning” within that phrase, as Justice Slicer says, are to be restricted linguistically, that is, to a simple definition of what is question and answer in defining what is a course of questioning as against a temporal interpretation, that is, to describe a period during which a police officer who is investigating a crime is in the company of the person who subsequently is the accused person, “in connection with the investigation”.

KIRBY J:   I do not think there is any doubt that you have an arguable - indeed, possibly strongly arguable - point on the interpretation of the Act. After all, you have Justice Slicer dissenting on the construction and you point out that not only is it relevant for the New South Wales legislation but it is also, on one view, very relevant for carrying into effect what this Court said in McKinney and Judge and also for the proper and effective operation of the Act, so that you really, I would not think, have to spend a lot of time on that part of the argument.  But it is what follows that really is the somewhat troubling point because even Justice Slicer felt that it did not have any effect in the end because of the application of the proviso.  Now, you point out that that was not argued by the Crown.

MR RICHTER:   That is right.

KIRBY J:   There would not be much use in our bringing it up and dealing with it if the net result were that we were convinced that the proviso or the exempting provisions of the Act applied because then we would just be wasting your time, your client’s hopes and public funds.

MR RICHTER:   Not his money though.  He has already paid for the 20 minutes.  But with respect to what your Honour says, if what is obvious is obvious, that is, that the question is arguable, highly arguable in fact, and is of significance, then I will ‑ ‑ ‑

McHUGH J:   Speaking for myself, I am not persuaded that it is at the moment, unless you can demonstrate that, given a purpose of construction, it has an intelligible meaning.  It is one thing to say that a section should be given purpose of instructions but, as Lord Diplock pointed out in Jones v ….., the task of the Court is interpretation, not legislation.  So, you have to suggest what is the purpose of construction that you put on it.  What do you say it means?

MR RICHTER:   I say the purpose of construction and the purpose of these provisions is, in effect, to give a legislative basis for the concerns expressed by this Court in Carr, McKinney and Judge and by various other courts.  In other words, to use the vernacular, it is designed to stop verbals.

McHUGH J:   Yes, but, Mr Richter, that is of no assistance whatever.  It only tells you what the rationale of the section was.

MR RICHTER:   Yes, your Honour.

McHUGH J:   What is the construction?  What words?  How would you interpret it purposively?

MR RICHTER:   Yes.  I would construe the words “questioning” and “in the course of questioning” to mean exchanges uttered as between a person who is suspected of crime and the police officer who is investigating that crime.  Now, the reason I say that it must have that meaning is because it is obvious, for example, that questioning is not limited to a situation where you have questions and answers.  I will give two examples which must be covered or else the legislation fails to achieve its object.

One takes an example of the police officer.  We all know about interviews and how interviews proceed.  If one takes the example of a police officer who does not want to proceed in the usual way of asking questions but has in fact made up his mind to charge the suspect and all that happens is that the suspect is brought into custody, the police officer gives him the caution which is – does not even say, “I intend to ask you questions”; he simply gives them the caution.  Having given them the caution, “You don’t have to say anything”, et cetera, he then proceeds to say, “I am charging you with the murder” or “the theft” or whatever.  The man then says, “Goodness.  Man is an animal.  I did it”, et cetera, et cetera and it is not tape recorded in any way, shape or form.

It would be very difficult to argue that that was not part of questioning, although it is not posed in the form of question and answer because the word “interview” is used in subsection (2) in a way that suggests that the word “questioning” must bear a broader meaning.

KIRBY J:   Apart from that, given the history that there was 15 years of decisions in this Court as it gradually moved towards the position it adopted in McKinney and Judge, this was quite a common problem; no answers, no incriminating answers on official question and answer and then the so‑called verbal in a police car.

MR RICHTER:   That is exactly right, with respect, your Honour, and the problem is this, that given that it was such an easily recognised problem and with the introduction of compulsory taping and videotaping, et cetera, what this Court ought to be aware of is that if a narrow construction is put on the word “questioning” or on the phrase “in the course of questioning”, that in fact invites a complete flouting.  For example, the example that I just gave, from the moment of arrest there is a volunteered confession not immediately in response to a question such as, “What do you say?”

McHUGH J:   Yes, but the problem with your illustration and the problem from your point of view with the statement in this case is subsection (3)(a), the:

“reasonable explanation” includes but is not limited to the following:

(a) the confession or admission was made when it was not practicable to videotape it -

Now, on any view, if you accept what the detective said - and the jury did - it was not practicable to videotape it, unless police officers have to carry a videotape with them whenever they are in the company of a suspect.

MR RICHTER:   It may or may not have been.  That was not the issue that was raised or argued.

McHUGH J:   I know it was not but how could any court rationally come to any other conclusion than that the explanation in (3) applied?

MR RICHTER:   No, because the answer to that, with respect, your Honour, is given in subsection (2).  The fact is it was practicable and was not said to be otherwise to resume an interview which was recorded in the form of putting to the man what he said and asking for confirmation.  So it is practicable for all intents and purposes, and in this case obviously so.  No one said it was not.

KIRBY J:   Was that issue litigated at all?  That is an issue pregnant with facts.  Was it litigated at all at the trial?

MR RICHTER:   That was not litigated because it was not an issue.  The ruling that his Honour the learned trial judge gave had nothing to do with whether or not there could have been confirmation on tape.  It was simply, “questioning is over, that’s it”.  So, to that extent, the answer to his Honour Justice McHugh’s question is in the legislation.  The legislation deals with that.  Without having to go to subsection (3), it deals with what happens when someone makes an utterance which can be taken as an admission either in a situation which cannot strictly be defined as question and answer or, alternatively, the second example that I have is the post situation where an accused maintains denials all the way through an interview, he is still in the interview room, the tape recording is switched off and, having verified that the tape recording is switched off, he says to the investigating officer who has said to him, “The interview is over.  I have no more questions”, he says to him, “By the way, chum, that was all a load of you know what”.

Now, it would be inconceivable that that kind of evidence, if it falls within the traditional classification of the vernacular “verbal”, that that would not be covered by the legislation, by the notion of the course of questioning and the notion in connection with the investigation, even though the ‑ ‑ ‑

KIRBY J:   Mr Richter, as far as I am concerned the Bible is Kingston v Keprose and Justice McHugh’s reasons in that case.  You had better leave a little bit of time for the issue of the proviso because that is ‑ ‑ ‑

MR RICHTER:   Yes, your Honour.

KIRBY J:   I do not want to stop you because Justice McHugh is obviously concerned about the purposive construction but as far as I am concerned you had better deal with the proviso.

MR RICHTER:   Indeed, your Honour.  So far as construction is concerned, we are in fact happy to reside with the written submissions with

the addition that in terms of defining the questioning session, we would say that the course of questioning and the issue of questioning has to be construed having regard to a number of things:  whether the person is with the police officer throughout the period, the police officer who is investigating, whether the discussion takes place at a time when it is still in connection with the investigation, and in this case it certainly was because they were on their way to hospital to obtain forensic samples for the purposes of the investigation, whether much time has elapsed, whether the alleged utterance can make no sense other than when taken together with the interview, the formal interview, which was recorded, as was the case in this case.  That is all I want say about that.

So far as the proviso is concerned we would say this, that Justice Slicer was wrong, in our respectful submission, when he said that the proviso applied, quite apart from the fact that it really was not raised or was not argued and that in itself raises an issue of procedural fairness.  There was no time at which the applicant had the opportunity to meet the question of the proviso.  In terms of the actual substance, can I take your Honours to the following.  As the case was put, the admission was central and highly significant, albeit it was in terms rather vague.  The case was put, if one goes to application book page ‑ ‑ ‑

McHUGH J:   Mr Richter, we do not want to hear you any further.  We will call on your opponent.

MR RICHTER:   Thank you, your Honour.

MR COATES:   If it please the Court, it is the respondent’s submissions that if the legislature wished to change the common law to such an extent that no admissions to police officers were to be given unless they were video recorded, it would have said so.

KIRBY J:   That is the question.  The question is if it did.

MR COATES:   Yes.

KIRBY J:   That is the issue.  The problem with your construction, or the construction of the majority, is it just puts a team of camels through the section.  I mean, this was a well‑known problem of the formal interview that no admissions, total denials and then the statement, “It’s a fair cop” in the privacy of a conversation with the police officer.  I mean, if this legislation was not intended to cover that and if the words do not cover it, it was a futility because that was the major problem.

MR COATES:   I accept that that was a problem, your Honour, but they only limited it to being inadmissible where admissions made by – where firstly the police officer reasonably believed that they committed the offence, or suspected they committed the offence, so the onus is on the police officer, and where he questioned the suspect.  That is what it is limited to.

McHUGH J:   But there are a number of possible constructions of the words “in the course of official questioning”.  It may mean from the moment the suspicion is raised in the mind of the police officer until the formal charge.  It may have the meaning that Mr Richter said, namely, it covers any exchange between the police officer and the suspect after the suspicion has been raised.  If you give it a purposive construction instead of a literal temporal construction you may get a different result.  It is a very important question, particularly since the section in New South Wales is in identical terms.  You may be right, but why is it not a case for special leave, particularly when you look at subsection (3), the “reasonable explanation”, and then it takes you back to subsection (2)(b).  Not only must there be a reasonable explanation but there was available a videotape that confirms the confession.

MR COATES:   Our submission in respect to that, though, is that is limited to a reasonable explanation when the police did question them about videotape, for example, where they suspect somebody has committed an offence but there is no video equipment available because they turn up at the scene of the offence and then they subsequently go back and confirm it on videotape.  Alternatively, on occasions when ‑ ‑ ‑

McHUGH J:   But, Mr Coates, the very fact that the legislature has enacted (2)(b) in the terms it did seems to suggest it wanted to deal with the problem that you are dealing with in this case, that it wanted to stop all sorts of verbals, and that strengthens the purposive construction of the section.

MR COATES:   No.  In my submission, if that was the intention they would have simply said, “No admissions are admissible unless on videotape unless in these circumstances”, which is exactly what we have done in Western Australia.

KIRBY J:   I think that is a strength of your argument, that there was a model that could be used and there was language that could be used that would have solved this problem.  Now, can you tell me what was the time sequence of the Tasmanian legislation as against, say, the New South Wales and Western Australian legislation?  Was the Tasmanian Parliament an early entrant on this field or did it have before it the Western Australian model at that time?

MR COATES:   No, your Honour.  On my note, the Western Australia’s model came in in 1999 and ‑ ‑ ‑

McHUGH J:   No, 570D in the Western Australian model was inserted in 1992 and it was amended in 1999.

MR COATES:   I am sorry, I misread my Act.  Yes, so that came in in 1992.  This came in in 1996.  So, it would have been a simple matter for the Parliament if they wanted no admissions to apply to enact the Western Australian legislation, but they did not.  They have enacted legislation which is similar to what occurs in New South Wales and ‑ ‑ ‑

KIRBY J:   So, effectively, parliamentary counsel picked up the New South Wales model and maybe the question is whether the purpose of doing that was to, as it were, take the more particular approach or if that was simply using somebody else’s model without considering this problem that has now arisen.

MR COATES:   My submission is that if you look at 8(a) and combine it with (b), what the legislature has done is put the emphasis on the police officer that if he wants to asks questions in connection with an offence, then he has to get it on video, but otherwise he is in no different position to every other person in the community that a person might make an admission to.

KIRBY J:   Yes, I appreciate the force of that but, as this Court said in McKinney and Judge, a police officer is not just like any other ordinary person.  I mean, some people criticised McKinney and Judge as, as it were, putting a special burden on police officers but why did it happen?  It happened because over 15 years this Court had a series of cases where this problem arose and ultimately it bit the bullet and this legislation, really – it just means a camel and horses can go through the section, I am afraid.  That may be the proper interpretation but it seems to me it is an important question.

MR COATES:   I accept that the legislation places a special burden on it if the police want to ask questions, but what it is stating is that the police officers are in no different position to anybody else if they are not asking questions, if it is not within the questions.  The question is, how do you cut it off?  This section is not just dealing with people in custody.  For example, perhaps there were some comments made when the police officer spoke to somebody in the town after he had questioned them and the very next day the suspect volunteers something when he sees him in town.

How do you cut it off?  In my submission, they cut it off here by the term:

questioning” means questioning by a police officer ‑ ‑ ‑

KIRBY J:   There is no doubt that that is an available construction.  I hope that it is clear to you that – I mean, you had two judges of the Court of Criminal Appeal on your side and a dissentient on the other side.  The issue is whether it is important enough and significant enough, not only for Tasmanian law but also for New South Wales with the same legislation, for this Court to rule on the matter.  What do you say about that?

MR COATES:   As far as special leave, I cannot put my argument any further than that, only, in my submission, that it would be futile in this case to grant special leave because of the proviso and the Crown says the proviso applies because of the following factors:  one, the comment that was made to was - the very police officer who gave the evidence was the very police officer’s credibility that was in question, so it did little more to enhance his credibility.  Secondly, as their Honours Mr Justice Slicer and Mr Justice Underwood said, the applicant’s reasons for making the rooftop confession were quite contradictory and bizarre, and, thirdly, after the rooftop confession some days later when - it was in a telephone conversation with his wife when this was raised and he was not going to get an indemnity - the applicant made no mention of the fact that this police officer had tricked him into making this confession.  So, in my submission, it is not a question where it would affect the jury’s decision.

McHUGH J:   The onus is on you to establish the proviso and apparently you did not even rely on the proviso in the Court of Criminal Appeal.

MR COATES:   No, that was not argued but, in my submission, that does not mean to say ‑ ‑ ‑

KIRBY J:   You have to say it is always hovering out there in the distance and it is always in every criminal appeal the proviso hovers, but here you have an instruction of Parliament to cure a significant problem and at least it is arguable that where you have such a clear instruction, if it applies, it is the will of Parliament that it be obeyed and that that is a very important matter of social legislative principle.  So that is the argument on the other side.

MR COATES:   Yes, I accept that.  The only other factor I would like to raise in respect of that is that if the Court thought that the police were being unfair by not putting him back on video or not giving him the opportunity to confirm it on video, as his Honour Mr Justice Slicer said in his judgment, they can always reject the evidence in exercise of the discretion.  But here that was not argued and in the Court of Criminal Appeal they were asked did they want to argue the discretion and the applicant said no, he did not.  So that is always a means to stop police from getting around the effects of the legislation.  I do not think I can put anything further, your Honours.

McHUGH J:   Yes, thank you.  We need not hear you in reply, Mr Richter.

There will be a grant of special leave in this case.

MR RICHTER:   Thank you, your Honour.

AT 9.58 AM THE MATTER WAS CONCLUDED