Kelly v The Queen

The appellant, Kelly, appealed to the High Court of Australia against the dismissal by the Court of Criminal Appeal of Tasmania of his appeal against conviction for murder. The central dispute concerned the admissibility of a statement made by Kelly to police officers after a video-recorded interview had concluded and no further questions had been asked.

The legal issue before the High Court was whether this statement, made to police officers between half an hour to an hour after the video recording of an interview had ceased and no further questions had been asked, constituted a "confession or admission" that should have been excluded from evidence due to non-compliance with the video-taping requirements of section 8(2)(a) of the *Criminal Law (Detention and Interrogation) Act 1995* (Tas). Specifically, the court had to determine if the statement was "made in the course of official questioning" as contemplated by section 8(1)(b) of the Act.

The High Court, applying a functional approach to the construction of the Act, concluded that the impugned statement was not admissible. The court reasoned that the statement was not made in response to any police question and therefore was not made "in the course of official questioning" within the meaning of the Act. Consequently, the trial judge and the majority of the Court of Appeal erred in admitting the statement.

Despite finding that the statement should have been excluded, the High Court dismissed the appeal. This outcome was based on the application of the proviso, meaning that the court was satisfied that no substantial miscarriage of justice had occurred.