Knight v The Queen

[1992] HCATrans 160

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl0l of 1991

B e t w e e n -

PAUL ANTHONY KNIGHT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

DAWSON J

Knight.PA 1 29/5/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 29 MAY 1992, AT 10.22 AM

Copyright in the High Court of Australia

MR T.A. GAME: If the Court pleases, I appear for the

applicant with my learned friend,

MR P.A.J, BRAZIER. (instructed by Paul K. Bell &

Co)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear for the respondent with my learned friend,

MR W.G. ROSER. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

MASON CJ: Yes, Mr Game?

MR GAME:  If the Court pleases, this is an application for

special leave to appeal and an application for

extension of time from a judgment of the New South

Wales Court of Criminal Appeal of 28 March 1991, in
which it dismissed an appeal against conviction

from a conviction of 2 December 1988, arising out

of the Bathurst riots of April 1985, which makes

this case rather long in the tooth, to say the

least.

There is only one ground from the decision of the Court of Criminal Appeal which is raised in the

application for special leave, and that is the

ground which concerns the admission into evidence

of confessional material, a short confessional

statement to an Inspector Schmidt at Bathurst

police station at about 5.30 pm on 7 April.

Very shortly, the factual background is this:

the applicant was arrested at 4.00 pm at the

Mount Panorama race track by certain police

officers. The allegation was made in the evidence

to those officers in cross-examination that they

had assaulted the applicant. That was some time

after 4.00 pm. The names of those officers in

particular were Spooner and Smith.

Now, some time later in the trial

Inspector Schmidt gave evidence. The admissions

made to Inspector Schmidt were admissions made, as

I said, at about 5.30 pm at the Bathurst police

station which is some five kilometres or more from

the Mount Panorama race track. It was put to

Schmidt that the admissions were not made. Certain

allegations were put to Schmidt, including an

allegation that a threat was made that the

applicant would be charged with attempted murder,

but nothing was put to Schmidt concerning the

physical state of the applicant. No objection was

taken to the admission of the confessional

material.

In his unsworn statement the applicant made

allegations that he was assaulted by a number of

Knight.PA 2 29/5/92

officers, and those allegations, if accepted,

amounted to a pretty severe beating. He then said

in his unsworn statement that he was taken to the

police station and a considerable time later he was

spoken to by Inspector Schmidt, and he denied the

allegations made by Inspector Schmidt.

Now, immediately after the giving of his

unsworn statement, tendered into evidence over

objection was some medical notes from the Bathurst

gaol. Those medical notes showed - - -

DAWSON J:	Who tendered them?
MR GAME:	The applicant's counsel tendered them, and he

tendered them over objection. That appears at

page 693. Sorry, it says:

Yes, I have no objection -

then objection to tender, 693, marked exhibit "2".

MASON CJ: For what purpose were they tendered?

MR GAME:  It appears from the observations made in the

summing up that the trial judge and counsel thought

that they were tendered for the purpose of

discrediting the detectives who had arrested the

applicant. Now, that appears in the summing up at

page 94, from line 15 and then at line 23:

But it's got nothing to do with what he did

beforehand -

this is a reference to the evidence concerning the

assaults. Then at line 29:

Your duty is to discover what happened before

he was arrested, form your views about that.

Then it is suggested in the next line that the

material concerning the injuries sustained was	relevant to the credit of the police officers about
that subject, that subject either being the
assaults or what they had to say about the
observations of the applicant's involvement in the
riot.

And then at the top of page 95:

As I said that does not constitute a ground

upon which you should take any course other

than your appropriate duty to decide whether the case has been made out or not. If proof can be given of who did than then appropriate

proceedings can be, would've been brought

about it. Evidently no such thing has

Knight.PA 29/5/92

occurred as we haven't heard anything about

it.

Now that direction is, in my submission, plainly

erroneous. But that direction explains the basis

upon which the parties thought that the material

was going in. Now the material was admissible, in

my submission, but it was admissible for a

different purpose. It was admissible, first of

all, because it touched upon the voluntariness of

the confession, but secondly, it was admissible

because it threw doubt on the weight to be given to

the confessional material and it is established

from a long line of cases referred to in

Your Honour the Chief Justice's judgement in

Macpherson's case, that that is a proper use of

such material.

DAWSON J: Well, once of course the confession had gone in,

the question of voluntariness disappeared, did it

not?

MR GAME:  Yes, Your Honour, but it still remained for the

trial judge to give -

DAWSON J:  The question of the weight to be given it,

whether it was made or not at all, that was still

open, yes, it would go to that.

MR GAME:  Yes, it still remained for the trial judge· to give

appropriate directions on all of the material

touching the confession including those medical

notes. But if one considers this case at the

moment those medical notes had gone in, then what

had happened was: early in the trial police

officers in the witness box; allegations put to

them; later in the trial and towards the end of the

Crown case confessional material, no objection;

accused makes dock statement; then medical material

tendered, and we know, with the benefit of

hindsight, that the trial judge was satisfied that

the accused had in fact been assaulted violently by

the police officers who arrested him.

Now, my submission is that at that time, at

the very latest, the trial judge had a duty to

raise the question of voluntariness. The material

abundantly gave rise to such a question. Here was

a man with - we know from the material that he had

had no prior convictions and can infer that he had

not been in custody before; he had been in custody

this time for under an hour and a half; he had been

very violently assaulted; he had one arm; he was

five foot three inches, eight and a half stone; on his evidence, a substantial number of officers had

assaulted him. Now, regardless of what the accused

had to say about that in his dock statement, there

Knight.PA 4 29/5/92

would be a very high likelihood that he would still

be a person in a very high level of fear at the

time he was spoken to by Inspector Schmidt.

MASON CJ:  When you say that the trial judge had a duty in

those circumstances to raise the question of

voluntariness, what do you say that the trial judge

should have done?

MR GAME:  Your Honour, I take as my starting point a passage

from Your Honour's judgment in Macpherson's case,

where Your Honour said that in circumstances which

require clarification - and this is at page 533,

that:

it is for the trial judge to resolve -

the issue, raise it with the parties and clarify

the position.

MASON CJ: But that was a case of an accused in person, was

it not?

MR GAME:  Yes, Your Honour said at about point 4:

especially cases in which the accused is

unrepresented.

Now, in this case - and it is raised in the

Court of Criminal Appeal judgment - it is suggested

that there may have been tactical reasons for not

objecting to the material but, really, there could
not have been any tactical reasons for not

objecting, given the mistaken view that the parties

had as to the basis upon which the medical material

went in.

DEANE J: What were the maximum penalties for the four

offences with which your client was charged?

MR GAME:  I am not absolutely certain, but count 2, which

was by far the most serious, carried, I think,
25 years or life.	I am sorry, Your Honour, I am

not certain, but I think that count 2 on which he

was acquitted, the Solicitor-General tells me life,

but if it is not life, it is 25 years.

DEANE J:  If that is so, that really hits you in the eye as

a tactical reason for not fighting too much about

the alleged confession, does it not? Was it used

that way at the trial, that on the basis of what he

is alleged to have said immediately afterwards, he

was not guilty on 2?

MR GAME:  No, Your Honour. It was put to the jury that it

was a straight verbal and that none of these

Knight.PA 29/5/92

statements were made.	So it was never suggested
that - - -

DEANE J: It was not put, "Even if you accept - - -

MR GAME:  No, Your Honour.

DEANE J: Counsel must have had a rather strange approach to

final submissions if he did not make that point,

because on one approach it suggested that that was

why the jury acquitted on that charge.

MR GAME:  Your Honour, to put that in its inverse, there was

a very substantial dispute in relation to the

identification evidence, and it all centred around

a video which turned up at the committal

proceedings which showed the applicant wearing a

leather coat some time in the middle of these

events. As I said, to put that in the inverse, the

jury may have been satisfied, but not beyond a

reasonable doubt on the identification evidence,

and then turned to this evidence to satisfy them
beyond a reasonable doubt on counts 1, 3 and 4, and

that would be the most logical explanation for

their verdicts.

DAWSON J: What do you say the trial judge ought to have

done which he did not do?

MR GAME:  Your Honour, in my submission - and I am now

taking this submission from Ajodha's case - the

trial judge -

DAWSON J: What is the citation for Ajodha?

MR GAME·:  It is ( 1982) AC 204 at 223. I take the Court to

that passage. In Ajodha's case, there is a long

passage commencing at about part-way through D:

Though the case for the defence raises an

issue as to the voluntariness ..... defending

counsel may for tactical reasons prefer that

the evidence ..... be heard before the jury -

Then a little bit further down:

If the defence adopts this tactic -

of not objecting -

it will be open to defending counsel to submit

at the close of the evidence that, if the

judge doubts the voluntariness of the

statement ..... Even in the absence of such a

submission, if the judge himself forms the

view that the voluntariness of the statement

is in doubt, he should take the like action

Knight.PA 6 29/5/92

proprio motu. It may sometimes happen that

the accused himself will raise for the first
time when giving evidence an issue as to the

voluntariness of a statement already put in

evidence by the prosecution. Here it will be

a matter in the discretion of the trial judge

whether to require relevant prosecution

witnesses to be recalled for further

cross-examination.

Your Honour, in this case, what was missing was

evidence as to the state of mind of the accused

person, but the problem ultimately is - - -

DAWSON J: But really that is not the only thing. There was

no issue about the voluntariness of the statement.

It was never made the way your client - - -

MR GAME:  There was no issue as to the voluntariness of the

statement on the accused's case because he denied
the making of the statement. But that does not

answer the question from the trial judge's point of

view which is - - -

DAWSON J: But the question so far as he is concerned really

arises at an earlier stage, does it not? Once it

is in it is in.

MR GAME: Well no, Your Honour, once it is in circumstances

may change just as they changed in -

DAWSON J:  The issue of its voluntariness may be raised not

on the voir dire, but in the course of the case.

MR GAME:  Yes, Your Honour.

DAWSON J: But it has to be raised, does it not, and it was

not here?

MR GAME:	My submission is that it is squarely raised
DAWSON J: The evidence itself raises it; whether or

not - yes, I see.

MR GAME:  Your Honour, if the language of section 410 can be

stretched to include assaults as a threat, then it

would be deemed to be involuntary. But in any

event, in my submission, that evidence having been

raised, the question of voluntariness was squarely
an issue that the trial judge had to resolve and

could not resile from it.

MASON CJ: Before you leave Ajodha, there is only one

sentence that gives you any assistance in Ajodha,

is there not, and that is the sentence that

commences immediately above the letter F:

Knight.PA 7 29/5/92

Even in the absence of such a submission, if

the judge himself forms the view that the
voluntariness of the statement is in doubt, he

should take the like action proprio motu.

MR GAME:  Yes, Your Honour. Well, on the facts of this case

the judge would have been confronted with the

certain knowledge that there was a young man who

had suffered quite severe injuries at the hands of

police within an hour and a half in an unusual

environment.

In the Court of Criminal Appeal - - -

DAWSON J:  What would happen if the judge says, "No

suggestion is made by counsel for the defence", and

the judge says, "Well, I think I might now exclude

this statement", and they say, "No, we do not want

you to do that. We say it was not made, but we

would still rather have it there in case the jury

decides that it was made", because that may have

been the real situation.

MR GAME: Well that, in my submission, is very doubtful

since the accused's counsel went to such extremes

to establish that those admissions were not made.

He cross-examined the police officer up hill and

down dale about the making of notes; where was

Detective Simms? The usual stock in trade of

cross-examination on this sort of issue. Why was

it not recorded for another three hours? Why was

no verification sought, and so on? So that it is

doubtful that defence counsel could have had any good reason for wanting this material before the jury.

DEANE J:  We have to speculate, but I can think of many good

reasons. I mean, it surely, in the context of this

case, was in the interests of the accused to have

the confession in relation to the most serious

charge, and also to attack the confession not on

any suggestion that it was not voluntary, but on a

basis it just showed how unreliable all the police

evidence was, because it was the other police

evidence which was still there. I mean, it is not

apparent to me that counsel has made the terrible

mess of conducting a defence that is implicit in

all your submissions, and I am not trying to

embarrass you by saying you should make it

explicit, but from this distance it is not at all

apparent to me that counsel has made a terrible

blunder in the way this has all panned out.

MR GAME:  Your Honour, I can only say, though, they were all

serious charges. Count 2 was by - - -

Knight.PA 29/5/92

DEANE J: That is something I have been wondering about.

Looking at count 1, it is very hard to see why

count 2 is more serious than count 1. On the face

of it, you would think that count 1 was more

serious than count 2.

MR GAME:  Yes. I am sorry, I am just not sure what the

penalty is for counts 1 - - -

MASON CJ:  Do you know, Mr Solicitor? Do you know what the

penalty - - -

MR MASON:	I am sorry, I do not, I will have some inquiries
MR GAME:	In the remarks on sentence, it may appear

that - - -

DEANE J: Is count 1, do you know, Mr Game, an offence in

those terms, that is, attempting to burn somebody?

MASON CJ: It sounds like something something out of the

15th century.

DEANE J:	I have never seen it before.
MR GAME:	The riot carried life, so there is not much

mileage to get rid of count 2 and hang on to your

conviction for riot.

DEANE J: But, factually, what was encompassed by count 2

was, undoubtedly, the most serious thing alleged

against your client.

MR GAME: Factually, it was the most serious because it

involved an ulterior intent to injure a police

officer.

DEANE J:	Who had been set on fire.
MR GAME:	Who had, in fact, been set on fire, yes. So that

is true; whether or not counts 1 and 3 also carried

life is not a matter of which I am certain, but

they were extremely serious offences in themselves.

In the Court of Criminal Appeal, the Court

effectively - this is at pages 131 to 134 -

disposed of this ground upon the basis which

appears at the top of page 134. Starting at

page 133 line 22:

The late Judge Denton was an experienced

trial judge, who was well aware of the rules

relating to the voluntariness of confessional

material, and of his power to remove such

material from the jury at any time. It is

Knight.PA 9 29/5/92

clear from the terms of his Honour's summing

up, and from his sentencing of the appellant,

that he accepted that the appellant had

probably been subjected to assaults from

police. It must be assumed that he considered

the confessional material in this context and

determined that there was insufficient link

between any assaults on the accused and the

subsequent alleged admissions. There being

nothing to indicate that he failed to do so,

and he having no obligation to raise it

himself, we can find no substance in this

ground of appeal.

Now, in my submission, what the Court of Criminal

Appeal thinks about what the trial judge may or may not have privately thought, is quite irrelevant to the task which the Court of Criminal Appeal must carry out. The Court of Criminal Appeal has got

two questions it must ask itself in these

circumstances. One is: what was the duty of the

trial judge, and did he satisfy it? Two: are we

satisfied that the confession was voluntarily

obtained?

Now, with respect to the first, I have already

made submissions as to what the proper duty of the

trial judge is, and that submission effectively

seeks to counter the conclusion drawn by the Court

of Criminal Appeal at page 133, referring to

Byfield, saying that the trial judge has no duty to raise that matter simply for the purpose of
rejecting it.

In my submission, circumstances may arise as I

have already outlined, but with respect to the

second question, the question of whether or not the

confessional material was voluntarily obtained, is

the question which the Court of Criminal Appeal

must consider for itself - cannot resolve that

question by making any assumptions about what the

trial judge may or may not have done, and that can

be demonstrated very shortly by saying: well, if
the trial judge had issued a one-line judgement

saying, "I find the confession was voluntary", the

duty of the Court of Criminal Appeal would be

exactly the same, just as it is in relation to

unsafe and unsatisfactory submissions, a la Morris

v Reg, or just as it is to consider all grounds of

appeal in the sense identified by this Court in

Jones v Reg.

It does not fulfill that function or carry out

its duty by making an assumption about what the

trial judge did, and the court simply does not

purport, in this judgement, to carry out that

exercise. If it had purported to do so then it

Knight.PA 10 29/5/92

would have been quite beside the point for it to

make this observation, and it does not address the

critical factual issues which were raised. Those,

in short, are the bases upon which a grant of

special leave is sought.

MASON CJ: Yes, thank you, Mr Game. The Court will take a

short adjournment to consider the course it will

take in this matter.

AT 10.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.55 AM:

MASON CJ:  The Court need not trouble you, Mr Solicitor.

In the light of the particular circumstances

of this case and the way in which the case for the

defence was conducted at the trial, this is not an

application in which it would be appropriate to

grant special leave to appeal to deal with the

~ issue of voluntariness. The application for

special leave to appeal is therefore refused.

The Court will now adjourn until 10.15 am on

Tuesday next.

AT 10.56 AM THE MATTER WAS ADJOURNED SINE DIE

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Knight.PA 11 29/5/92