Kyriakou v The Queen

[1988] HCATrans 89

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S99 of 1987

B e t w e e n -

JACK KYRIAKOU

Applicant

and

THE QUEEN

Respondent

Application for special

leave

MASON CJ

WILSON J

DEANE J
DAWSON J

Kyriakou

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 MAY 1988, ATl0.18 AM

Copyright in the High Court of Australia

C2Tl/l/HS	1	11/5/88
MR G. R.	JAMES.	nr. ·

- -· May it please the Court, I appear with

my ielrned	friend, MR A. RADOJEV, and my learned
friend, MR	R. KELLER. (instructed by Yvonne Swift
& Company)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR P. BERMAN, for the Crown.

(instructed by the Solicitor for Public Prosecutions

for New South Wales)

MASON CJ:	Yes, Mr James.
MR JAMES:	Might I hand to the Court the applicant's outline

of argument.

MASON CJ:	Thank you. Yes.
MR JAMES:	Might I take the Court to page 436 of volume II

of the appeal book.	There is to be found the judgment
of the Court of Criminal Appeal.	The judgment of

the court was delivered by Mr Justice Yeldham and the

passage to which I would seek to take the Court appears

at lines 10 to 18 on that page.	The passage, shortly,
Your Honours, is:

His Honour held that the confession was

voluntary. That was a finding of fact

which it was open to him to make, and I am

quite unable to conclude that he erred in

that conclusion. This court does not sit

in judgment from factual findings made by trial judges on the voir dire. If there is no evidence to support a finding, or if

a judge has applied wrong principles, or if

the evidence is all one way, then this

court, in order to prevent injustice, will

intervene, but I am far from satisfied that

the present situation is a case of this nature.

Your Honours, the way in which His Honour came to

express himself as he did in that paragraph was by

turning to the case for the appellant Kyriakou at

page 429 of the appeal book where His Honour, in very

general terms, reviews the material against the

applicant, and that that case was, in essence, a

signed record of interview and an oral admission.

(Continued on page 3)

C2Tl/2/HS 2 11/5/88

Kyriakou
MR JAMES (continuing): In very short terms, at about 5.30

in the morning Kyriakou had been arrested and had

at that point of time denied any complicity in

the instant offence.	He had admitted complicity
in another or other matters.	The admission and

record of interview occurred after he was detained

in custody in the Newtown Police Station, next door

to the Newtown Court which, on the evidence, was

sitting until about 10 to 10.30 th~r night. His Honour

turns to consideration directly of the .ppeal of the applicant at

page 430, line 4 and, at that point notes that the substantive

aspect of the.appeal - the first eight grounds ·which were basically

rephrasir..g the sam:: proposition:  ·

relate to the admission of the record , of interview

and the oral conversations.

In essence the contentions were that either

because of the voluntariness rule or, alternatively,

indiscretion, the material should not have been

admitted. His Honour, to examine the question of
the admissibility of that material, turns to the

decision of the trial judge and the reasons he gave

at the conclusion of the voir dire. That can be

found set out from line 24 on that page to and

including the further judgment which connnences at

line 2 on page 432. The trial judge had declined

to reconsider his findings after the evidence at the trial

of the police officers differed in what we would

submit is a material aspect from the evidence given

on the voir dire,and delivered a short further

judgment which is set out in the judgment of the

Court of Criminal Appeal at page 434, line 39, to

435 line 13.

At page 435, after simply setting forth the

reasons of the trial judge, His Honour Mr Justice Yeldham

continued:

As is apparent from the reasons given by

the trial judge His Honour rejected the

claims of the appellant Kyriakou.

In our submission, that statement goes beyond what

the trial judg~ had, in fact, done~

and accepted the substance of the evidence
of witnesses called upon the voir dire by

the Crown, subject only to the qualification

concerning the allegation that Detective Bown

had struck the appellant a blow across the face.

C2T2/l/VH	3	11/5/88
Kyriakou

MR JAMES (continuing): I should indicate, Your ~ono~rs, ,	that that portion of His Honour the trial Judges
reasoning can be found at page 432, lines 20 to 34:

Now on the voir dire examination I took

the view that the evidence of Detective Kuziow
should be accepted in preference to that of

the accused Kyriakou where they were in

conflict. I had a similar view in regard to

the evidence of Detective Brown subject only
to one qualification, namely that I found

myself unable to determine who was telling

the truth about the alleged incident when

according to the accused Kyriakou Brown struck

him a blow across the face and caused him to
have an injury inside his mouth which involved,

amongst other things, symptons of bleeding.

His Honour the trial judge had continued,

after dealing with that qualification, to say:

Being a matter which is part of the facts

which have gone into contention and become

issues on the issue of voluntariness, I must

therefore put into the scale in favour of

Kyriakou that factual issue. However, even

putting that into the scale in favour of the

accused I remain satisfied on the balance of

probabilities that the record of interview

was made voluntarily within the meaning of

the authorities and I found accordingly and ruled in that fashion on the day previously
referred to, namely 2 June 1986.

His Honour had also continued to deal with those

specific matters in the evidence and the applicant

gave sworn evidence on the voir dire and His Honour

went on to deal with those particular matters arising

from that sworn evidence which His Honour rejected.

(Continued on page 5)

C2T3/l/SH	4	11/5/88
Kyriakou
MR JAMES (continuing):

In particular I was unable to accept the accused's evidence as to prolonged

questioning on the afternoon before the record

of interview. I accept the events or the

narrative event, of events given by Detectives

Bown and Kuziow so far as the questioning

of the accused Kyriakou is concerned. Not

only have they given evidence about that, but their evidence is supported in a very

marked manner by the records of the Newtown

Police Station and the evidence of the sergeants,

Sgt. Gorman and Sgt. Overton -

I should indicate to Your Honours that the essence

of the sergeants' evidence were that some two or

three occasions calls had been made on the applicant

in the cells and he made no complaint of discomfort

and appeared, to the sergeants, to be all right

and at the conclusion of the record of interview

he answered the usual questions and in addition

made no complaint.

As I have indicate~ I reject the accused's

version of the sustained questioning in the

afternoon and early evening and I reject the

accused's evidence of the offer and supply
of heroin.

I accept the Crown's version of his being in the cells continuously from about 3.50 p.m.

when he was lodged in the cells after being

charged on the shortened firearm matter until

he was taken out for the purposes of the record

of interview at or shortly after 10 p.m.

As to the earlier matter of conflict,

namely, as to whether Kyriakou was taken from

the station around 11 o'clock by Det. Bown, I find on the balance of probabilities that

he was taken away and in my opinion the inference

is available and ought to be drawn that at

this stage he was prepared to adopt a co-operative

attitude with the police and that this co-operation

extended to a willingnesE to provide information
as to the whereabouts of D'Agosto.

WILSON J: Is the 11 o'clock referred to there in the morning?

MR JAMES: In the morning, Your Honour. In fact, in short

sequence: the arrest is at about 5.30 am; he is
taken to the Newtown Police Station; he there admits -
having on his arrest denied the commission of this
offence he there. has a short conversation with

the police about the other matter and admits his

complicity in that.

C2T4/l/AC	5	11/5/88
Kyriakou

MR JAMES (continuing): He is detained for a period of time

in handcuffs.	How long, the evidence does not
really enable one to say.	And he is detained in

the detective room at the Newtown Police Station.

He is taken from the Newtown Police Statio~ on

the evidence of the police, to premises in Earlwood

at which it is said he indicated that Dagosto,

at l~ast, if not others, could be located in those

premises.

He had said to the police, prior to this

occurring, that the shortened firearm found in the boot of his car, which was not the firearm

involved in this offence, and various other matters

found in the boot of his car, were there at the

instigation of Lombardo and Dagosto who would come

and get them and use them for such purposes as

they were using them. And in that sense the police

account indicated a co-operation by him with the

police to locate Dagosto and Lombardo on the

investigation of the matters arising from the boot

of the car rather than the specific offence with

which he was convicted, now the subject of this

application.

He denied that any such trip had occurred and, indeed, what we would submit is the material

difference between the evidence given by the police

at trial and the evidence given by the police on
the voir dire was that for some reason, whether
as a result of counsel's decision or otherwise,

the evidence of that trip was not elicited in-chief

by the Crown before the jury and nor was there

cross-examination from the defence on that issue.

The following events, within the police station,

were the subject of a number of specific allegations

by the accused. Those allegations went beyond

the matters that His Honour had indicated he

specifically rejected. As to what His Honour said

concerning conflict between the applicant's evidence

and the police evidence on many of those matters	the recollection of the police officer was such
that the most one got in cross-examination was,
"I don't remember", or at best, "I don't think
that happened", or, "Not me, it may have been someone
else."

(Continued on page 7)

C2T5/l/ND	6	11/5/88
Kyriakou

MR JAMES (continuing):  The evidence was thus left in the

prosecution case in what, we would submit, was

an unsatisfactory state overall.

Most importantly, for the purpose of the

trial judge's findings, the police officers did

expressly deny those matters which His Honour

found he had rejected, or he expressly rejected,

in the evidence of the applicant. Those matters

were expressly put and expressly denied. And

there was the additional matter which was the

blow, or two blows, to the face and mouth which

the applicant gave evidence, "Caused his mouth

to bleed and he spat blood upon a locker door".

As to that there was an express denial by the

police officers and no other evidence whatsoever

one way or the other. There was no more or less

evidence in relation to that matter, in our submission,

than there was in relation to the other specific

matters.

Of course, the applicant's case on the voir

dire and in the Court of Criminal Appeal, was

not that it was any specific matter but a conjury
of events set in the context of the detention

of the applicant in the Newtown Police S~ation

and what happened to him whilst there, coupled

with his heroin addiction and his withdrawal,

increasing withdrawal, as the day went on.

Your Honours, we have, for the purposes of trying to summarize the evidence and to set

out the various matters - and I have supplied

my learned friend with a copy of this - tried

to set out a chronology indicating the police

account and the applicant's account as to what

had occurred in the police station. If that would

be of assistance to the Court, we could hand that

up.

MASON CJ:  Yes, thank you.

MR JAMES:  Perhaps before I take the Court to the detail

of that chronology, I should conclude with what

happened in the Court of Criminal Appeal very

shortly.

(Continued on page 8)

C2T6/l/SDL	7	11/5/88
Kyriakou

MR JAMES (continuing): At 435, as I have said to the Court,

Mr Justice Yeldham said:

As is apparent from the reasons given by

the trial judge liis Honour rejected the

claims of the appellant Kyriakou and

accepted the substance of the evidence of

witnesses called upon the voir dire by the

Crown, subject only to the qualification

concerning the allegation that Det. Bown had

struck the appellant a blow across the face. Counsel for the appellant Kyriakou, who said

all that can be said on his behalf, referred

the court, on the question of voluntariness -

and then there is reference to the various cases.
At the bottom of the page:

Counsel relied on what was said to be the

unjustified and prolonged delay in taking

this appellant before a court as bearing
not only upon the question of discretion,

but upon the question of voluntariness

itself. But the learned trial judge was

well aware of the time during which the

appellant had been in custody. Whether

or not his Honour was correct in concluding,

as he did, that the detention was not

unlawful, he did pay regard in what he said

to the fact that the appellant had been in

police custody from the morning of the day

in question until late in the evening, and

had not been taken before a court.

And there is reference to what Your Honour

Mr Justice Deane said in CLELAND and in WILLIAMS.

And then His Honour Mr Justice Yeldham turned to

the passage with which I opened my argument and

posed there what we would submit is the central

point to be found in the judgment and what we

would submit is the wrong test, a far too stringent

test to apply for an appella.te court when reviewing

the admissibility of evidence, that is, the

Court - -

That was.a finding of fact which it was open

to .him to make, and I am quite unable to

conclude that he erred in that conclusion.

This court does not sit in judgment from factual findings made by trial judges on the

voir dire. If there is no evidence to support

a finding, or if a judge has applied wrong

principles, or if the evidence is all one way,

then this court, in order to prevent injustice,

will intervene, but I am far from satisified that the present situation is a case of this

nature.

C2T7/l/JM	8	11/5/88
Kyriakou

MR JAMES (continuing): And, at that point, the Court of

Criminal Appeal followed the approach to the

matter that the trial judge had taken at the
conclusion of the voir dire and turned separately
to the question of the exercise of discretion.

In that regard, it appears that the heroin addiction of the applicant and the evidence of

Dr Dingle, whose evidence really only went to the

general proposition of what heroin addicts may

suffer in the process of withdrawal rather than

to anything specific with this case, was looked

at and His Honour at page 12, in dealing with

discretion, says that vJhich he did not say when dealing

with voluntariness:

In,my view His Honour has not been shown to

have erred in any way in the findings of primary

fact which he made upon the voir dire, or in

exercising the discretion, which he undoubtedly

had, to admit the relevant material. This

court will interfere with the exercise of a

discretion such as this but in an exceptional

case. In this regard reference might be made

to HOUSE V THE KING, 55 CLR 449 at o 505.

Counsel further argued that the application

of principles enunciated in CLELAND's case

required that here the confessions be

rejected, having regard to the prolonged

and illegal detention. To this I referred

earlier in relation to voluntariness, but it

is relied on separately and independently as

a basis for submitting that the judge's

discretion should have been exercised against

the admission of the material.

And His Honour then turned to what was said by

this Court in CLELAND and, at the bottom of page 437:

Here the trial judge, as I have earlier said,

considered and took into account the time of

detention, whether that be lawful or unlawful.

His Honur found that no unfairness flowed to

the appellant from the admission of the document,

and that there was no unfairness in relation

to his custody, or the obtaining of the

confession. That having been held as a fact,

His Honour was entitled to exercise his

discretion in the manner which he did, and

this court in my view should not interfere.

(Continued on page 10)

C2T8/l/SH	9	11/5/88
Kyriakou

MR JAMES (continuing):  That, Your Honours, is really the

review made by the Court of Criminal Appeal of what

had transpired at the trial.	If I might take
Your Honours to the - - -

MASON CJ:  Does not the sentence that you have directed our

attention to at the top of page 437, following the

repetition of what the trial judge said, detract from	the criticism that you make of His Honourrs statement
of the role of a court of criminal a.ppeal in
reviewing a finding made on a voir dire?

MR JAMES:	It would, Your Honour.
MASON CJ:	In other words,  it indicates that His Honour did

have regard to the question whether there was an

error in the finding of fact.

MR JAMES:  Your Honour, we would not submit that His Honour

did not have regard to the question of whether there

was an error. We would submit, however, that the way

in which His Honour had regard to the question of

whether there was an error was not by reviewing the

evidence available to the trial judge and

such findings and inferences as might be appropriate
for a court of appeal to draw, but what His Honour
simply did, and indeed the court simply did, was to
examine the reasons of the trial judge for the purpose

of seeing whether or not there was evidence to support

a finding, wrong principle, or the evidence being all

one way in his reasoning, and indeed, the sentence,

"This court does not sit in judgment from factual
findings made by trial judges on the voir dire."

exemplifies the approach.

Similarly, as the Chief Justice puts to me, there

is the sentence at line 11 on page 436, "That was a

finding of fact which it was open to him to make,"

in relation to what was really the ultimate finding,

the finding of voluntariness. If it were the position

that the finding of voluntariness was such a finding

of fact that if it was open to the trial judge to make

it no appellate review were open, then wherever there

is some material going towards voluntariness, or even
where the question of involuntariness has been raised,

and yet the accused has not succeeded, an appellate

court could hardly intervene without an egregious

statement of error by way of principle in what the

trial judge says by dint of his reasons.

(Continued on page 11)

C2T9/l/HS 10 11/5/88

Kyriakou
MR JAMES (continuing): In our submission, it may be enough,

in a particular case, where the trial judge has

set out findings of fact and sufficient findings

of fact for one to see that there is no error but

in this case there were two very clear matters

which warranted a proper scrutiny of the material.

They were:  the length of time of the detention,

an~ as Your Honours might see from the chronology,
an absence of any real reason why the applicant
should be detained for much of the time rather

than taken before the Newtown Court charged, if

bail refused brought back, to permit the inquiries

to proceed. There was nothing material in his presence in the Newtown Police Station for the inquiries to proceed and the fact that the trial

judge was left in doubt as to whether the applicant

had been struck in the face.

Now, a doubt on the question of whether the

police officer had struck the accuse~ prior to

a confession made after the accused has denied

his complicity in the offence, is a signpost at

the very least to a trial judge, in our submission,

that he is not accepting fully the credit of the
police officers on whose evidence the Crown relied

to sustain the positive burden of satisfying the

trial judge. And I should indicate to Your Honours

that where that doubt is there really, in our submission,

whether the test be on balance of probabilities

or beyond reasonable doubt as may have once been

thought in some places, a trial judge who is in

doubt about a mattet of that nature is really,

we would submit, not satisfied to the sort of standard

one would require for judicial satisfaction.

I accept that the two standards are matters

of genuine difference and difference in substance

but when examining a critical question such as

this, if you cannot be satisfied that the police

did not beat him, or strike him, before the confession - he having originally denied his guilt - then,in	our submission, to reach the further conclusion	that the record of interview was voluntary requires
positive satisfaction that that could not have
operated on his mind in the factual context in
which a sufficient explanation has been given.

(Continued on page 12)

C2Tl0/l/AC	11	11/5/88
Kyriakou

WILSON J:  Does it appear, Mr James, at what time of the

day the alleged assault by being struck across

the mouth occurred?

MR JAMES: Approximately, if Your Honour pleases. In the

chronology Your Honours will see at 10 am to 11 am,

on page 3.

WILSON J:  I see. Had he been questioned before that time

about the offence that is the subject of this

application?

MR JAMES:  That is one of the strangest features of this

case, Your Honour. It appears that he was not

and that the questioningin relation to the instant

matter of substance comes at 10 to 10.30 pm that

night. He had been initially spoken to and denied

his complicity and then, as Your Honour.swill see,

if Your Honours turn down the Crown case in the

chronology, there are many activities but it appears

that what the police officers did was to make other

inquiries and inquiries about other armed robberies

at 8 am to 11 am, take him of~ on their account,

to Earlwood and then left in the Newtown police

cells. He admits, at roughly 2.20 to 2.55

possession of the large shortened firearm. He

is not charged with that. 'And 4 o'clock, Newtown

Court, . magistrate rises_ he is put in the ce 11 s

after bail was.refused for that offence and it
is about 7.30 to 8 that the decision is taken to

the cells to speak to him and it is between 10 and 10.15 that he makes the oral admission.

inverview the applicant about the Marrickville

And, Your Honours - I should take Y()11r Honours

to the oral admission. If I might take Your Honours,

firstly, to page 9 of the appeal book, volume I,

where at lines 20 to 32 appears the initial police

conversation with the applicant and the relevant

portion:

"We are making inquiries concerning an armed
robbery at Marrickville Road Dulwich Hill
on 17th May, where a man was shot in the leg?"
He said "I don't know anything about that." I said "Earlier this morning police carried
out a search of the garage here and we located
a shortened firearm and some clothing in the
boot of a red Torana, are you grepared to
tell me who owns that vehicle?' He said "I II
d	o.

He said that he had the key and a spare one 1n his bedroom. Hewas cautioned and arrested and

taken to Newtown Police Station.

C2Tll/l/ND	12	11/5/88
Kyriakou

Your Honours will find that at page 10 he

1s spoken to, at lines 15 to 21:

"What can you tell me about this clothing

and this shortened firearm that was located

in your garage earlier this morning?"	He
said "Well Vince and Ziggy have been staying	11
I said Who put the gun and balaclavas in in the ·8arage and they know all about it.
they asked me to look after it for them. 11	the boot of the Torana?" He said "I did,

I said "Who is Ziggy and Vince?" He said

"Vince Lombardo and Angelo D1 Agosto. 11	I said
"Where are they now?"	He said "I don't know."

And later, there was some further conversation

in relation to a stolen Holden Kingswood vehicle

which appears at page 11 and he does not wish to

say anything about that and he says he had walked

home from a friend's place. There, was other

conversation in relation to the whereabouts of

Dagosto and Lombardo, as appears from page 12,

taking about 20 minutes to half an hour:

"What were Vince and Ziggy doing with the

gun and balaclava", I think he said "I don't

know, they come and go as they please".	I
said "Do they take the gun and balaclavas	11
with them when come and 80	, he said "Probably,
it's none of my_ business .	I said "What do

you think they use the gun and balaclavas

for", he said "I don't know" -

and then there were further inquiries.

(Continued on page 14)

C2Tll/2/ND	13	11/5/88
Kyriakou

MR JAMES (continuing): The police officer does not recall his

· position but it was within the detective's office.

At page 13 Your Honours will see set out the evidence

concerning the trip to Burwood and he was taken back

to the Newtown Police Station, page 14:

Q. And when did you next see him? A. I

don't think it was until about 10.00 p.m.

that evening.

Q. And at that time were you present with Detective Kuziow at the Newtown police station

when you saw the accused? A. Yes.

Q. Where did you see him? A. In the cell area

of the police station.

Q.	Could you relate the conversation .... .
A	..... "Would you come back upstairs ..... " -

He was taken upstairs -

"I'm now going to ask you further questions

about the armed robbery at the coffee shop at

Marrickville Road, Dulwich Hill on 17th May 1985.

You're not obliged to answer unless you wish to

do so but whatever you say may later be used

in evidence. Do you understand that?" He said,

"Yes." I said, "We have located the shortened

.22 rifle and I have been informed that you were

present during the commission of the robbery."

He said, "Yes, but I didn't shoot anyone." I

said, "Do you know who did?" He said, "Ziggy." I
said, "What were you wearing during the robbery?"

He said, "Those overalls." And he indicated to me

a pair of white coloured overalls with the words

Perry Perstin on the front of them.

And he was then formally spoken to and the record of

interview occurred. There was thereafter the conversation

with Sergeant Clark and then the accused was spoken

to by Sergeant Clark in the presence of the police

officer the accused asserted was the one who struck him

and was party to the conduct of which he complained.

1he cross-examination went on for a considerable period

of time and I would not seek to take the Court through

that in great detail, but if Your Honours would have

regard to pages 357 to 358, in the evidence at

trial, line 37, the same detective giving evidence.

Q. Now, when you spoke to the Accused Kuriacou

at 10 p.m. on the evening of 22nd you hadn't

spoken to him, according to your own evidence,

since about 5.30 that morning in respect to the

armed robbery at Marrickville Road?

And there is the reference that it was about 10 pm that

he was brought there and he was shown the shortened

C2Tl2/l/VH	14	11/5/88
Kyriakou

.22 calibre rifle and that there was no conversation

downstairs in the cells; the conversation took

place upstairs.	The whole of that page deals
with what had happened.	Now, Your Honours, this,

in our submission does not raise the sort of

problem that was considered by the trial judge and

the Court of Criminal Appeal in Tasmania in WILLIAMS.

This is not a matter, in our submission, that goes

so much to the question of discretion. This is a

matter which is a factual matter to be evaluated
in the context of whether the Crown has shouldered
the affirmative burden of innocence, meeting the

condition precedent to the admissibility of the

admissions.

I put to Your Honours that that question of

satisfaction, judicial satisfaction, in the context

of these matters, is one where, when there was a doubt
concerning the striking, would signpost at least
a judge to the necessity to properly scrutinize

the evidence. But, indeed, in New South Wales the

position is somewhat different to the position that

was examined by this Court in CORNELIUS, because

section 410 of the New South Wales CRIMES ACT which, as the then Chief Justice, Sir Harry Gibbs, pointed

out in McPHERSON, not only expresses the common law

but in this respect extends it, provides that:

No confession, admission, or statement shall

be received in evidence against an accused

person if it has been induced -

(a) by any untrue representation made to

him by the prosecutor, or some person in

authority; or

(b) by any threat or promise, held out to

him by the prosecutor, or some person in

authority.

And by (2) is provided:

Every confession, admission, or statement

made after any such representation or threat

or promise shall be deemed to have been

induced thereby, unless the contrary be shown.

The Victorian position reviewed in CORNELIUS, of course,

is somewhere different, and where there is that doubt,

I cannot go so far as to say that I have proved a

threat, promise or inducement, but if the trial judge

is not satisfied that there has not been such an action

then, in our submission, he does not get to the

point of saying that inducement has been removed from

the mind of the applicant.

C2T12/2/VH	15	11/5/88
Kyriakou

DEANE J:  I am sorry, I do not understand what you have just said.

MR JAMES: If the trial judge was not satisfied that there

was not a blow struck to the mouth beforehand

then, in our submission, he cannot be satisfied
that there was not a threat, promise or inducement

and he cannot be satisfied that that threat, promise
or inducement did not operate particularly in

the context of subsection (2).

DEANE J:	I now understand what you say.	I do not read
the section that way.

WILSON J:	I take it 12 hours elapsed between the blow and
the interrogation concerning this matter. Do

we know what the context of the blow, according

to your client, was?

MR JAMES:	An attempt, Your Honour, to induce him to confess.
WILSON J:	But I take it it was not administered expressly
with that object.  How did he come to be struck,
according to your client? If you could just point
up the evidence that he gave on the voir dire
about it, perhaps?
MR JAMES:	Your Honour, that went on for some considerable
time but he gave it again in short form in his
statement and that is set out in the appeal book in some two pages which fairly accurately summarizes
it.

WILSON J: This was an unsworn statement from the dock,

was it?

MR JAMES:	An unsworn statement before the jury; evidence
before the judge. That appears, Your Honours, in the appeal book and it is indicated to me that
it appears on the voir dire at page 223 to 224.
WILSON J: That may be sufficient if you are having difficulty

finding it in the unsworn statement.

MR JAMES:	I am only having difficulty finding the unsworn
statement which is some two pages long in the
size of the appeal books, Your Honour, rather
than the material in the unsworn statement.
Page 223, line 14 to the bottom of the page, and as to the express statement, Your Honour,
that appears at line 11 on page 224:

A. No, just would have been going on about the photos and like, 'you've had something

to do with it', you know, I denied it and

he just hit me a few times.

C2Tl3/l/SDL	16	11/5/88
Kyriakou

Q.	And how many times did he elbow you?
A.	Once or twice.

Then it continues about the lockers and, at the bottom of the page, at line 32:

Did you do anything in respect to behind

the door of the locker room? A. Yes, I

was spitting blood behind the door on the

wall.

Q. Why was that? A. My mouth was bleeding.

Q.	Now, how long were you in the locker
room for? A.	Two hours may be more.

He says he was then examined to see if he was

in fact a heroin addict.

Your Honours, at page 418 in the appeal book,

his statement commences and he commences at page 419

with the circumstances of his arrest which he

says were "violent circumstances" and he was taken,

at line 23, to the Newtown Police Station, handcuffed

with his hands behind his back, was seated, asked

questions in relation to the armed robbery at

the coffee shop:

I denied them ..... Detective Bown had walked

in holding a large silver torch. One detective

said to him; "Listen, he's denying any

involvement.", Detective Bown jumped up and

down and struck me across the knees with

his torch. I was questioned on and off for

a little while longer and then at one stage

Detective Bown elbowed me to the side of

the face and hit me over the back of the

head a couple of times. I was then put into

a locker room, handcuffed to a chair by

Detective Kuziow and Bown, I was asked to

roll up my sleeves by Detective Bown,

and he was looking for track marks at the

time. I was in that locker room for about

two hours. In that two hours about an hour

later Detective Kuz:iow came in and aske-t

me to roll up my sleeves again. A little

while after he had left another detective

came in, one who I've never seen before,

or I don't know who it is, asked me the same

thing. I was bleeding from the mouth at

the time from when Detective Bown had elbowed

me earlier and I was flicking the blood on

the back of the door in the locker room.

At about 1.00 o'clock I was pulled out of

the locker room and I was charged with the

other matter ..... and placed into a cell and
Detettive Kuziow said to me that he was going

.to arrange bail.

C2Tl3/2/SDL	17	11/5/88
Kyriakou
MR JAMES (continuing):

About an hour later some sergeant came in and said to me that bail was refused .....

and took me back upstairs and handcuffed

me to a table in the detectives room.

They asked me some questions about the
armed robbery at Dulwich Hill and I told
them I had nothing to do with it and denied

it. They left me there for a while and they

told me they'd give me five or ten minutes to

think it over and when they'd come back they'd

wanted me to change me mind. This went on

for hours. At 10.00 o'clock that night they

came back and they said, "Your mate Ziggy wants

to see you down the cells".

I should indicate, Your Honours, that both in the

Crown case and in the defence case, he apparently

was permitted conversation with Dagosta although

there was certainly considerable conflict as to the
content of that.

I went down the cells with them and the two detectives - one stood up either end of the corridor and let me talk to Ziggy in private -

I said, "Ziggy ... " - before that when I was
still upstairs getting questioned in the

detectives room they came back and tl1.e;y showed

me a bit of paper saying that Ziggy had said

that I was in the armed robbery at the coffee

shop. I said, "No that's not true, that's lies"

and they said to me, "Well why would he say

something like that if you weren't there?" I

said "I don't know, he might be dirty on me".

I went down and seen Ziggy in the cells and

he said to me - I said to him, "listen, what's

this bit of paper they're showing me about you

saying that I was in the armed robbery?" and

he said, "No that's not true, they're trying

to lie to you". At that time he called

Detective Kuziow and Bown and he asked them

he said "What's this bit of paper you just

shown him that I was suppose to have said he

was in the armed robbery". and both detectives

started laughing and Ziggy said to me, "Listen

are you hanging out"?

A reference to withdrawing from heroin.

I said "Yes".	He said "Give me a look at your
eyes".	He said "Listen these coppers have been

all right to me, they've been giving me heroin

all day, if you do the right thing, they'll fix

you up". Then he said to the two detectives

"Listen boss, he's hanging out, if he does the

.right thing will you fix him up?" and then

C2Tl4/l/SH	18	11/5/88
Kyriakou

Kuziow said "Okay". I was taken back

upstairs, sat down at the table in the

detectives room, Detective Kuziow started

getting the typewriter ready and Detective

Bown went off, he came back about three or

four minutes later and he pulled out a foil
out of his top left hand shirt pocket, he

opened the foil up and he showed me. I said to him "No that's sugar" as I seen

some large crystals of sugar in it, he

said "No it's not, taste it" so I tasted it
and it was heroin, he said to me "You'll

get that when you sign the record of

interview." I said "No I want it before I

sign the record of interview." He said "Okay". And, Your Honours, perhaps I should not continue

reading the whole of it. There is reference to

being shown the overalls and being given the heroin

and snorted it with a five dollar note. Now,

Your Honours, he had a five dollar note because

apparently it was not until well after 10 o'clock

that he was even searched. He had been arrested.

DEANE J: But, Mr James, what is the relevance of all this.

I mean, are you suggesting that we should go back

and say that the trial judge who saw them should

have believed your client that these things happened

because if your client is believed you need to say

no more. We approach it on the basis that he is

not believed by the judge who saw them. Well, now,

can I just take a moment longer because I think I

am a little bit behind you. I do not follow exactly

the basis on which you say the detention was unlawful,

at what stage became unlawful and I also do not follow,

if your client's evidence is rejected, the precise

relevance of his drug addiction?

:t1R JAMES:  Your Honour, firstly we do not say that the detention

was unlawful as part of our argument on the

volunnariness question.

DEANE J: There is no applicable statutory provision?

:t1R JAMES:  There is provision that he should be taken as soon

as may be reasonably practicable before a justice,

referred to in BALES V PARMETER but, for the purpose

of the argument on voluntariness, what we are asserting

is not so much any inpropriety on the part of the

police or any unlawfulness on their part in detaining

him, as that the manner of detention and the period of

time of the detention was such as to require scrutiny

to see if his will was overborne when it came to the

voluntariness question.

C2T4/2/SH	19	11/5/88
Kyriakou

MR JAMES (continuing): Really, in this case, it is probably -

we would say, an inquiry into the lawfulness of

the period of detention is not of real assistance

when coming to look at voluntariness. There is

almost no room for discretion really, we say

in this, because if the material is there, a

trial - or is not discounted by t,he Crown, then a trial judge should not have CXllEto the conclusion

that he was affirmatively sacisfied of the voluntariness

and would not have got to the discretion aspect.

DEANE J:  I am sorry, if what material?

MR JAMES: If the circumstances of the detention, that

is, the length of time; the lack of interrogation

about the instant matter; the handcuffing; the

blow to the mouth. If the trial judge could not

be satisified that those matters would not have

operated on his mind then,in those circumstances, he

could not properly, we submit, have held that the
record of interview was voluntary, even if he
disbelieved everything that the applicant said,

which is not what the trial judge said he did.

He only rejected him on some specific matters.

They were the more prominent of his allegations,

but it is not simply a matter, in our submission,

of saying, "Well, I do not believe the accused, so

in those circumstances I can go ahead and admit

the confession." In this case there was enough

in the police material to warrant the Court's

examination of that material, in our submission, to

a great deal better extent than His Honour embarked

on, and His Honour did not expressly reject very

much of what the appicant put in his evidence.

In particular, the one matter that the applicant

put in his evidence of great prominence for our

argument is the striking to the mouth, which was

expressly denied by the police, which goes directly

to credit - expressly denied by Detective Bown,

I should say - as well as to substance and on which

there is absolutely nothing to support the applicant

e~cept his own sworn word.

Now, that is why, Your Honours, that we see

it as necessary in those circumstances to look at the total context, the circumstances surrounding, as the cases refer to it, before deciding whether to admit or reject the record of interview as

voluntary. And one cannot fall back, and we submit

this is an area into which the trial judge and the

Court of Criminal Appeal had fallen, on the basis

of "I can look at the lawfulness of the detention"
solely on the question of discretion.

Your Honours will see in each of the reasons

of the trial judge and the judgment of the Court of compartmentalized. Voluntariness is looked at

C2T15/l/JM	20	11/5/88
Kyriakou

with certain specific matters dealt with and only

those, and discretion looked at with others, ~hough,

in the reasons of the Court of Criminal Appeal
the lawfulness and the period of detention is permitted

to have a cross-over effect.

MASON J:  How do you make use of the lack of interrogation?

MR JAMES: Well, Your Honour, what was he held there for

when he should have been charged, and should have

been taken into the Newtown Cour4 and could well

have been, and brought straight back again while

inquiries were going on, if he was not under

suspicion at least, and what was the purpose of

detaining him in thore circumstances, to be charged

and dealt with for the other matter? In our

submission, the detaining of him without interrogation

until 10 o'clock is susceptible of at least one

probable explanation and that is an intent to allow

the fact of that detention to work upon his mind

whether or not in combination with knowledge that

he was a heroin addict withdrawing from the effects

of the drug.

DAWSON J:	He was, of course, detained on the other charge as well.
MR JAMES:	Yes, but, Your Honour, he had only be detained for a period of time on the other charge. In fact,
Your Honours will see, and the chronology has that
set out, that it is at 2.20 to 2.55 pm that he
had made the handwritten statement admitting
possession.  He, having admitted that possession
at about 5.30 in the morning for the first time
orally and he was not charged with that matter until
3.30 to 4.00 pm, and bail was refused, that being
police station bail,at 4.10 pm.  Thereafter, he
is further detained -

(Continued on page 22)

C2Tl5/2/JM	21	11/5/88
Kyriakou

DEANE J: Is that handwritten statement admitting possession

in the appeal books?

MR JAMES:  No, it is not, Your Honour. That was admitting

possession of the shortened firearm, the other

gun.

DEANE J:	Yes, I follow that.
MR JAMES:	No, that is not in the appeal book but I think

I can identify it at the bar table if that would

be of assistance to Your Honour.

DEANE J:	Does it go further than what he had orally said,
namely, that they were the property of the people
who had been occupying his garage?

MR JAMES: It goes considerably less, Your Honour. Perhaps,

if I hand it up, Your Honour will see what I mean.

DEANE J: Well, no, you have answered my question.

MR JAMES:  It merely says that, "Some people came over and

asked could I mind some stuff for them - some

clothing and a cut-down gun- so I unlocked the boot

of my car, I have not been driving the car since

but I put the bag in the car. I did not lock the

boot back up because I wanted them to get access

to the bag whenever they wanted":

Your Honours, of course, there is another circumstance which couples with the matter the Chief Justice has raised with me concerning how

do we make use of the absence of interrogation.

There is the original denial of complicity and
then nothing which, we would submit, would produce

anything more adverse to him except the statement

to the police officer, "We have been informed that

you were involved and we have located the 22",

which would in any way change the state of mind

except the detention and what went on in the detention.

Now, Your Honours, we are not asking this

Court to draw for itself conclusions of fact arising

from the evidence except as may be necessitated

by the course this case took at trial and in the submission, of the intermediate appellate court

to review the facts and the evidence for itself.

We submit that it is necessary for the intermediate

appellate court to do that for the purpose of

considering the jury's verdict and this Court has

laid that down in MORRIS. It is necessary for

an appellate court to do that when considering

the adequacy and appropriateness of the facts on

a fact finding on plea,for sentence purposes.

C2Tl6/l/AC	22	11/5/88
Kyriakou

It is necessary, we submit, for any condition precedent

to admissibility such as the question of the competence

of a child witness or an expert witness and, indeed,

in the cases that Your Honours will see referred

to in our list of authorites, CLARK V RYAN and

REG V GILMORE are examples of the Court embarking

on a review of the facts for the purpose of

ascertaining whether the condition precedent has

been met. The intermediate appellate court in

this case, we submit, simply did not do that.

WILSON J: Your:notice of appeal does not ask us to refer

it back, Mr James - - -

MR JAMES: It does not, Your Honour.

WILSON J: It looks, very much, as if you are asking this

Court to examine the evidence in detail.

MR JAMES:	Well, we may be forced to is what I am coming
to,· Your-Honour, simply because, in our submission,
neither the trial judge nor the Court of Criminal
Appeal performed properly its role and it would
be a question, we submit, that either this Court
should look at the facts that may properly be found, bearing in mind the principles in, particularly,
PATERSON V PATERSON and WARREN V COOMBES and,
alternatively, remit it to the Court of Criminal
Appeal to properly fulfill its role.

In our submission, on the reasons as expressed

by the trial judge in the Court of Criminal Appeal,

one cannot be of the view that they properly performed

their role in a difficult matter of this nature.

Because the difficulty arose from the fact that

it was quite clear this was the whole substance

of the evidence against the applicant at trial.

DAWSON J:	What more should they have done?
MR JAMES: Well, in the trial judge's case one
DAWSON J:	No, in the case of the Court of Criminal Appeal.
MR JAMES:	Review the factual material for itself, Your Honour,

bearing in mind what the trial judge's findings

were as to credit, to what he rejected and what

he accepted.

(Continued on page 24)

C2Tl6/2/AC	23	11/5/88
Kyriakou

DAWSON J:  But they did that, did they not?

MR JAMES:  In our submission, no, Your Honour. What they

have done is simply to rely upon the trial judge's	statement of reasons, rather than to see whether he
had fallen into error. In our submission, it is
only the matters that the Chief Justice has raised with
me that indicate in any way that the Court of Criminal
Appeal went any further than simply looking at what
the trial judge's reasons were, rather than the evidentiary basis for those reasons.

WILSON J:  But they would have been taken to the evidence,

of course, by counsel in the course of the appeal.

MR JAMES:  They were, but, Your Honour, that does not seem to

be the way in which the Court of Criminal Appeal went

about its function. At page 435, as is apparent

from the reasons given by the trial judge, His Honour

rejected the claims of the appellant Kyriakou and

the qualification as to the blow is expressly raised,

and then at page 436, the passage to which I took

the Court:

His Honour held that the confession was

voluntary. That was a finding of fact

which it was open to him to make, and I

am quite unable to conclude that he erred

in that conclusion.

His Honour appears to be looking at the question of

whether it was open or not:

This court does not sit in judgment from

factual findings made by trial judges on

the voir dire. If there is no evidence to support a finding, or if a judge has applied wrong principles, or if the

evidence is all one way, then this court,

in order to prevent injustice, will

intervene, but I am far from satisfied

that the present situation is a case of

this nature.

In our respectful submission, the court is clearly

enough indicating that it will not look at the

facts for itself to see whether a trial judge has

fallen into error and it is restricting the role that

it will perform to those functions that it sets out.

WILSON J:  Earlier at page 427 and page 428 it seems to give

a fairly detailed -well, evidence in their reasons

of having an understanding of the case for the

defence, the strong attack that was made upon the

police and upon their credit and how they had induced

the appellant with the aid of heroin and promises of

heroin to falsely confess, et cetera.

C2Tl7/l/HS	24	11/5/88
Kyriakou

MR JAMES:  That is the co-accused, Your Honour. That is not

my client.

WILSON J:	That is not your client?
MR JAMES:	No, that is Dagosto, page 427 and page 428.

The Kyriakou material - - -

WILSON J:	They deal with Dagosto first.
MR JAMES:	Yes, and then moves to Kyriakou on page 429, from

line 5 to line 22, and then the consideration of

the appeal of the appellant Kyriakou commences at

line 6 on page 430 and concludes, after dealing with

the discretionary aspect, on these aspects, rather
than the admission of prejudicial material, at

page 438, line 5.

DAWSON J:  No doubt the same matters as you are now putting to

us were put to the Court of Criminal Appeal.

MR JAMES:  That the trial judge had fallen into error, yes,

Your Honour.

DAWSON J:  Yes, and that would have necessitated the

Court of Criminal Appeal considering the facts.

MR JAMES:  Your Honour, if they had and if they did in fact

deal with those matters one would have expected to

find some reference to it in the reasons.

I appreciac·e - - -

DAWSON J:  You do find them saying that it was open to the

trial judge to take the view that he did on the facts.

MR JAMES:  Yes. Your Honour, we do not contend that it was not

open, but we are submitting that the test when an

intermediate appellate court is reviewing the decision

of the trial judge goes beyond - even when it is a

discretionary decision - goes beyond simply a decision

that it was open on the facts, and open on the facts

as found, rather than open on the evidence, appears to

be what the court is referring to. Your Honour, we

are not seeking to be hypocritical, but if the court

had, for itself, looked at the evidence to see whether

the findings were supported, whether that critical

matter of the blow to the mouth cast at least a doubt

on what the trial judge had done, then we obviously

could not be here, but they have not done that,

and indeed, it is left - - -

C2Tl7/2/HS	25	11/5/88
Kyriakou

DAWSON J:	Have not done what?
MR JAMES:	They have not examined for themselves the question

of whether that - even that matter cast some doubt

upon the findings of the trial judge.

DAWSON J:  I do not understand that because if they conclude

that it was open to the trial judge they must have

looked at the facts in order to come to that

conclusion. I mean, theX° do not have to say, "We

have read the transcript', in their judgment, do

they?

MR JAMES:  Noi I. am not sugge~ting that one does but when

one - - -

DAWSON J:  And the facts upon which you now rely were

presumably put to the court, and they must have

considered them.

MR JAMES:  Yes, the matter was argued but, Your Honour, 1n

our submission, that paragraph does not mean,. "We

have for ourselves considered the facts.", it

means -

DAWSON J: Unless they closed their ears during argument

they must have.

MR JAMES:  That was the error into which the Court of Criminal

Appeal fell into in MORRIS and, in our submission,

MORRIS is both on the special leave point and - indeed, really when one examines it the jury verdict

was always traditionally inscrutable. There is

far more reason for an intermediate appellate court

examining the material for itself on a condition

precedent to admissibility of a judge sitting alone

than there is to intervene in a jury matter and,

Your Honours, perhaps - - -

DEANE J:	But it seems to me it is still a bit confused.
I mean, there are the findings of primary fact
by a judge in a case such as this which depends
on his assessment of the credibility of competing
witnesses. Now, are we talking about those or are we talking about the conclusion of fact as
to voluntariness based on those primary findings of fact?
MR JAMES:	Your Honour, what the court said at 436
DEANE J:	I am sorry, I am asking you what are you talking
about? Should they have reviewed all his primary findings of fact or were they entitled to say, "Well, there was evidence there, he saw the witnesses,
he was entitled to prefer A to B"?

C2Tl8/l/ND	26	11/5/88
Kyriakou

MR JAMES:  They should, Your Honour, have reviewed the

primary facts in so far as he had not expressed

a view as to what essential primary facts he

accepted or rejected and what they did instead,

in our submission, was to deal with the ultimate

fact in so far as it is solely a question of fact

that the confession was voluntary, that was a

finding of fact which was open to him to make.

When it came to discretion, later on in the judgment,

His Honour says, at 437, line 6:

In my view his Honour has not been shown to have erred in any way in the findings of primary fact which he made upon the voir dire,

or in exercising the discretion, which he

undoubtedly had, to admit the relevant material.

Your Honour, as to statements of what the primary

facts were, we are not seeking that there be a

catalogue from a trial judge or from the intermediate

appel.late court but where there is material which

is certainly not referred to, in our submission,
and not directly ruled out by the way in which

the trial judge referred to the applicant's evidence -

it was not a case of, "I don't believe a word he

said.", it was, "He has raised enough with me to

have doubt about the striking to the mouth. I

reject him on propositions A, Band C and I say

nothing about D, E and F~ which are matter that,

in our submission, should have been examine before
it could be said that the Crown had satisfied the

judge.

So that it is primary fact that, 1n our

submission, should be examined - those primary

facts should be examined. We have got to accept

PATERSON V PATERSON for the proposition that where

demeanour and credit are a questio~ that is peculiarly

for the trial judg~.on those matters the appellate

court will be effectively restricted to the view

of the trial judge, but this is not a case where

all the matters necessary to be looked at were	disposed of, in our submission, by the reasons
of the trial judge.

(Continued on page 28)

C2Tl8/l/ND	27	11/5/88
Kyriakou

DAWSON J:  Do you really say that - I do not want to put the

words into your mouth - that you cannot decide the

question of voluntariness until you decide whether

or not the accused was struck in the mouth?	Do you
put it as high as that?	Because that is a crucial
fact.

MR JAMES:  Yes. I think, in this case, Your Honour, I do,

because if he cannot be rejected on that and the

police cannot be accepted on that, where there is

definite evidence in collision, it presents such a

problem, bearing in mind that the lack of explanation,

we submit, or the lack of adequate explanation for

the circumstances and duration of the detention and the original denial, to say that how can you accept that, at the end of the day, that confession was

voluntary?

DAWSON J:  Yes, I follow that.

DEANE J: Well, that does not bring it in the words of

section 410, though, does it?

MR JAMES:	No. no, it does not.
DEANE J:	I mean, His Honour, on the findings he made, could
accurately have said, "I am not persuaded that this confession comes within the description of section 410 of the CRIMES ACT."
MR JAMES:	Yes, Your Honour, as the law stands, we would submit, in

New South Wales, it is firstly necessary for the trial judge

to look at the cmrnon law and to be affirmatively satisfied

that the confession is voluntary.

DEANE J:	My question was just directed at 410.
MR JAMES:	But as far as 410 is concerned, it may be that

His Honour is not reaching an affirmative finding

of a threat, promise or inducement because he is in

doubt about the blow, and in that sense, 410(2)

does not apply.

DEANE J: Well, not that he is in doubt about it that he, on the balance of probabilities, is not persuaded that the facts exist on which section 410(2) operates.

MR JAMES:  Your Honour, we would submit that what he said was

that he was in doubt about whether it happened, but

putting it in the scales, he remained satisfied of

the voluntariness of the confession.	Now, being in doubt
firstly, 410(1) is a prohibition:

No confession, admission or statement shall be

received in evidence ..... if it has been induced.

In essence, we submit, it supplements as well as

expounds the common law. It does not purport to

C2Tl9/l/VH	28	11/5/88
Kyriakou

change the onus; it does not require an accused

to prove the threat, promise or inducement. It

operates as a prohibition. But if you have some

threat, promise or inducement or if the prosecution,
in our submission, has not been able to discount
a raised threat, promise or inducement on the balance

of probabilities, then such threat,promise or

inducement shall be deemed to be operative unless

there is some other evidence to remove its operative

effect.

DEANE J; Well now, that brings us back to what I said to you

previously. I do not read section 410(2) that way.

Have you any authority which supports the proposition

that, even if the trial judge is not persuaded on the

balance that there was any confession, admission,

or statement, that none the less 410(2) will operate
to create a presumption that some confession, admission

or statement, which he is not persuaded was made,

induced the confession.

MR JAMES:	Your Honour, I have no authority for that proposition.
DEANE J:	I have used the wrong words, some representation or

threat or promise.

MR JAMES:  Yes. I have no authority for that proposition,

however, when one turns to the common law, the difficulty

would be one would never get to this position. The

way in which I reason that step out is, if there is no

affirmative satisfaction that there was not a threat,

promise or inducement, then one does not get to 410,

because at common law it had to be positively shown

to be voluntary by the Crown.

(Continued on page 30)

C2Tl9/2/VH	29	11/5/88
Kyriakou

DEANE J: I follow what you say. I have great difficulty in seeing

how a judge could say, "I am not persuaded there
was any representation, threat or promise but,

pursuant to section 410(2) I hold that the confession

was induced by the representation, threat or promise

which I am not persuaded occurred".

MR JAMES:  And I accept, Your Honour, he could not. The

problem is that he has to be persuaded it was

voluntary. It is not voluntary if the Crown has

not succeeded in showing the accused's contention

that a threat, promise or what-have-you, did not

oocur.

DEANE J:	Your proposition is that the section works within
the context of the common law.
MR JAMES:	Yes, Your Honour, and, indeed, all the authorities

have indicated that and, most recently, MACPHERSON,

which is on our list of authorities, where

there is a review in fairly short form summarizing
the materials. This is the extension of the common

law in that, in our submission, once there is

a threat, promise or inducement shown, at common

law the accused had to show - I will withdraw

that because I am falling into the same problem

of reversing the test. Once the threat, promise

or inducement has been raised, if in fact the

threat, promise or inducement at common law was

raised or shown or not discounted, it was still

incumbent on the accused to show that it was actually

operative on his mind and section 410(2) dealt

with a change in the law to provide that it was

deemed to have operative effect unless the Crown

showed to the contrary.

In CORNELIUS V R, (1936) 55 CLR 235, in the

judgment of Mr Justice Starke which commences

at page 236, at page 238 in the second paragraph

commencing on that page, the second sentence of

that paragraph:	According to English law, a confession is
inadmissible unless it be established that
it was made without any promise of favour, or menaces, to the person confessing, or
by reason of terror on his part. In Victoria,
the EVIDENCE ACT 1928, sec.141, has somewhat
modified the rule: "No confession which is
tendered in evidence shall be rejected on the ground that a promise or threat has been
held out to the person confessing, unless
the Judge or other presiding officer is of opinion that the inducement was really calculated to cause an untrue admission of guilt to
be made." All questions as to the  admissibility

C2T20/l/SDL	30	11/5/88
Kyriakou

of evidence are for the Judge. It frequently

happens that this depends on a disputed fact,

in which case all the evidence adduced both

to prove and to disprove that fact must be

received by the Judge, and - however complicated

the facts or conflicting the evidence - must

be adjudicated on by him alone. For example,

the Judge alone must decide a a question
of whether a confession should be excluded
on account of some previous threat or promise,
and, to do this, has to determine, first

whether the threat or promise was really

made; and secondly, whether, if made, it

was sufficient in law to warrant the exclusion

of the evidence." The Judge merely decides

whether there is prima facie any reason for presenting the evidence at all to the jury, and his decision on this point, if erroneous,

is open to review if appeal lies.

(Continued on page 32)

C2T 20/2/SDL	31	11/5/88
Kyriakou

MR JAMES (continuing): His Honour then refers to the judge's

task in dealing with such material. At page 240,

when dealing with the instant case, in the last

paragraph appearing on that page:

Further, it was contended that police

officers "hectored" and "bullied" the prisoner

in a manner calculated to induce an untrue

admission of guilt. The trial Judge himself

reported that the questioning of the prisoner

was "very drastic and far-reaching," and that

his statement seemed to have been obtained by

methods which might well have rendered it

inadmissible in an English Court. But he

added that there was nothing in the Victorian

statute law, or practice, which justified its

exclusion.

In the joint judgment, which was that of

Mr Justice Dixon, Mr Justice Evatt and
Mr Justice McTiernan at page 241, appears at page 245, the

first paragraph commencing on that page:

The objection is that the confession was

not shown to be and was not in fact voluntary.

At common law no confession is admissible in

evidence unless it is a free and voluntary

statement. If it is made as a result of

voilence, intimidation, or of fear, it is not

voluntary. It is not voluntary if it is given

in consequence of a threat made, or a promise

of advantage given, in relation to the charge

by a person in authority, as, for instance, an

officer of police. The promise or threat might

be implied and need not be express.

Their Honours then set out the Victorian provision, section 141 of the VICTORIAN EVIDENCE ACT which had been referred to in the judgment of Mr Justice Starke

and then, a portion of the judgment of Mr Justice Stawell:

The Judge is, therefore, to decide in each case

whether the inducement was really calculated to

cause an untrue admission to be made. If, in

his opinion, it was so calculated, the evidence
should be rejected; if not so calculated, it

should be received.

There is discussion of the effect of that provision and then, at page 246, in the first paragraph of that

page:

This, no doubt, correctly states the

effect of the provision. When it appears that,

but for a particular promise or threat made by

C2T21/l/SH	32	11/5/88
Kyriakou

a person in authority, the prisoner's

confession would be voluntary, it becomes
necessary for the Judge at the trial to decide

whether the promise or threat in question was

really calculated.

And, then, further on down the page:

But a promise of advantage and a threat of harm

are not the only matters which may deprive a
statement of its voluntary character. For
instance, a confession which is extracted by
violence or force, or some other form of actual

coercion is clearly involuntary, and, therefore,

cannot be received in evidence. The enactment

does not relate to such cases. The position is

well stated by Brandeis J. in delivering the
judgment of the Supreme Court of the United States
in WAN V UNITED STATES: - "The requisite of

voluntariness is not satisfied by establishing

merely that the confession was not induced by

a promise or a threat. A confession is voluntary

in law if, and only if, it was in fact voluntarily

made. A confession may have been given voluntarily,

although it was made to police officers, while in

custody, and in answer to an examination conducted

by them. But a confession obtained by compulsion

must be excluded whatever may have been the

character of the compulsion.

Now, Your Honours, the court turns on to reviewing the question of compulsion and IBRAHIM and looks at the

discretion that was then arising. At page 248, in

the first paragraph cormnencing on that page:

When a confession is tendered in evidence,

its voluntary character must, apart from

section 141 of the EVIDENCE ACT 1928, appear

before it is admissible. Whether it is voluntary

must sometimes depend upon disp~ted facts.

promise, if one appears to have been made,	The further question, whether a threat or	is really calculated to cause an untrue admission of guilt, may also be influenced
by facts.

(Continued on page 34)

C2T21/2/SH	33	11/5/88
Kyriakou

MR JAMES (continuing): And then their Honours turn to

Lord Denman in DOE V DAVIES.

There are conditions precedent which are

required to be fulfilled before evidence

is admissible -

referring to "oath", "competency", "apprehension

of irmnediate death", "dying declarations" and "search

for secondary evidence of lost writings" -

If the proof is by witnesses, he must decide

on their credibility. If counter-evidence is

offered, he must receive it before he decides;

and he has no right to ask the opinion of the

jury -

Your Honour, in this case what was at issue

was not so much the credit of Kyriakou as the credit

of the police officers.	The question if they
satisfactorily establish	voluntariness in the light of Kyriakou

contentions, then that would be an end to the
voluntariness issue. And, of course, it is not
necessary to embark on the voir dire if no
substantive matter was raised, as MacPHERSON points
out. But there were clearly substantive matters raised

here and not disposed of.

MacPHERSON, Your Honours, can be found at

(1981) 147 CLR and in the joint judgment of the

Chief Justice Sir Harry Gibbs and Your Honour

Mr Justice Wilson. at page 519 there is a review

of the principles of admissibility and the respective

roles of a judge and jury, in the first paragraph

cormnencing on that page, which points out that:

The rule of the cormnon law, which in New

South Wales is in part embodied in, and

in one respect extended by, s.410 of the

CRIMES ACT 1900 (N.S.W.) as amended, and is

not derogated from by that section, is that	a confessional statement made out of court
by an accused person is not admissible in
evidence unless it was made voluntarily,
that is, in the exercise of a free choice to
speak or be silent. A confession will not
have been voluntary if it has been obtained
from the accused by fear of prejudice or
hope of advantage exercised or held out
by a person in authority, or as the result of
duress, intimidation, persistent importunity or sustained or undue insistence or pressure -
anything that has overborne the will of the accused.

C2T22/l/JM 3 L~ 11/5/88

Kyriakou

Stopping there, Your Honours, they are the matters

that it was asserted should have to be investigated

in this case. Moving on to the references to

discretion, where the judgment refers to McDERNOTT

and LEE:

Since it is a condition of the admissibility

of a confession that it was voluntarily made,

evidence of the confession cannot be admitted

until it has been shown that it was voluntary.

The burden of establishing that the condition

of admissibility has been satisified lies on

the party seeking to introduce the confession

into evidence, i.e. on the Crown. However, if

there is nothing to suggest that the confession

was involuntary, the presumption is that it was

voluntary -

and HOUGH V AH SAM is cited -

and the onus is discharged.

And there is discussion of the standard of proof.

Then the Court turns to the question of discretion

and at page 520, third line, discusses the duty

of the trial judge to take the evidence on a

voir dire for the purpose of his satisfaction that

the confession was voluntary and before headmits

it.

At page 522, in referring to the holding of

a voir dire, at approximately point 4:

The test stated by Chief Justice Bray that

the Crown must prove that there is no confession

improperly induced, is not the correct one.

The condition of the admissibility of a

confession is that it was voluntarily made,

and the judge must be satisfied on the

balance of probabilities that this condition was fulfilled before he admits the evidence.

And at page 523, again, that is reiterated in

relation to the positive judicial duty to:

exclude evidence tendered against the

accused which is not shown to be admissible.

(Continued on page 36)

C2T22/2/JM	35	11/5/88
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MR JAMES (continuing):  Your Honours, in the judgment of

Your Honour the Chief Justic~ at page 532,

Your Honour embarks on a review, also, of the

condition precedent to admissibility - this is

about point 3 on the page:

To focus attention on the applicant's

cross-examination and on his unsworn statement

is to divert attention away from the important

preliminary question:  Were the confessional

statements admissible? This was a question to

be determined by the judge, not by the jury -

and Your Honour turned to the classic statement in

IBRAHIM V R..

MASON CJ:	Do we need to go through all this, Mr James?
MR JAMES:	I was simply indicating ·what the basis was

of my contention to His Honour Mr Justice Deane
of the prospect that unless the judge is affirmatively

satisfied of the absence of matters going to

volutariness a real question arises as to a review

of the total context to ascertain whether the accused's

will has been overborne - or more precisely, has

been shown by the prosecution not to have been overborne.

WILSON J:  But the trial judge in this case did express himself

to be affirmatively satisfied tha½ allowing in
the scales against the Crown the blow on the face,

he nevertheless remained satisfied on the balance

of probabilities that the interview was made voluntarily.

MR JAMES:  Your Honour, we would submit that is a fundamental

error; that apparently what he has done is to say:

"Let me look at voluntariness on the one hand and

see how it is ·affected by my doubt about a blow

in the face", whereas, the doubt about the blow
in the face should be considered, really, as a

fundamental starting point.

WILSON J:  But assume that he found that there was a blow

on the face - that is what His Honour did.

MR JAMES:  No, he did not say that - I wish I could say that,

Your Honour, but he did not say that,he said that he was in doubt about it.

WILSON J:  Yes, but "being in doubt I must therefore put

into the scale in favour of your client that factual

issue". In other words he is accepting it for

the purpose of determing the question of voluntariness.

MR JAMES: Well, Your Honour, if he accepted that there

was a blow to the face, that was a "threat, promise

or inducement", in our submission, and we would

C2 T23/l/AC	36	11/5/88
Kyriakou

expect to have, in the light of section 410(2),

something in the reasoning to suggest why that

would not be accepted by His Honour as having been

deemed to be an inducement of an operative nature.

WILSON J: Well, it may have become apparent - the reasoning

underlying His Honour's conclusion - from the

circumstances; that he was not at that point in

time - there was no investigation with him at that

point about the instant charge. It was 12 hours
before that record of interview and the interrogation
commenced . · and the question of remoteness is
evident and section 410(2) the trial judge expressed

himself satisfied, not in terms of the section,

admittedly, that the contrary were shown.

MR JAMES:  But, Your Honour, with respect, he was hit 12 hours

before and kept in the police station for a further

12 hours - - -

WILSON J: In which he, apparently, had a good sleep.

MR JAMES: Well, that is a matter that was squarely at issue

and was not entirely disposed of by anybody's evidence

but he is detained for 12 hours - sorry - he denies

complicity; spoken to about other matters, struck

in the mouth; detained for 12 hours and then comes

the manner of this confession as it is said to

arise. Now, in our submission, there is nothing

in the prosecution case which could operate to

avoid the deeming provision as a factual matter

and that is one of the reasons, we would submit,

why it is necessary to examine, in the light of a set of reasons such as this, what the factual

material was.

DAWSON J: Mr James, can I just stop you there for a minute.

If His Honour put in the balance in favour of the

accused, he must then have applied section 410,

must he not? In other words, if he says: "Well,

I will assume that there was a blow" - that is

a threat or an inducement, I cannot see that it

is a promise - "then on that basis section 410(2)

would apply", and then it must lead him to a certain

conclusion, must it not?

(Continued on page 38)

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Kyriakou

MR JAMES:	There would have to be an unspoken step in the reasoning, Your Honour, to indicate further, but
it is inherent in the ultimate finding of
voluntariness that I was of the view that its operative effect was gone.
DAWSON J:	I am not following you.
MASON CJ:	That the operative effect of the blow was

exhausted, but why would you not infer that from the

judge's ultimate finding? It seems to me to be going

a long way to conclude that His Honour was unaware of

the onus or failed actually to give effect to the onus

in his speaking and in his review of the evidence.

We often find there are unspoken steps in judicial reasoning.

MR JAMES:  Your Honour, we would accept that, but in this

case we have little assistance to work out precisely

what His Honour did do and this is a matter of such significance when it comes to looking at credit and

the general task of fact finding that one would expect

to have more said about it. Indeed, Your Honour

has put it to me so precisely. If His Honour was of the view that the blow, if it was struck, the effect

of it was exhausted - that is one sentence and that

would have disposed of the problem, but what we are

being asked to do is to reason backwards, however, from

an ultimate finding of voluntariness to the proposition

that all matters necessary to have supported that

ultimate finding have, in fact, been found, and that

might be unexceptional in a general case where there

is a fast, short, general review of the important

matters and there had not been a substantive matter of doubt, but in this case, in our submission, that substantive matter of doubt is a signpost to the fact

that His Honour did not, in fact, embark on the

review in the way in which we would submit it should

be conducted and when he says, "I put it in the scales

but remain persuaded of voluntariness", in our submission,

that is indicative of some error, though the

reasoning is not sufficiently specific to allow us to

know what the error precisely was.

Your Honours, as to the question of, in this

case, special leave, we would submit that if the Court

were of the view that the Court of Criminal Appeal

has failed properly to perform its function, and this

would be a matter which, in itself, in the light of

the judgments in this Court in MORRIS, would warrant

the grant of special leave, I should indicate to the Court that there is, in almost every area now but this, a clear and authoritative statement of

the role of the intermediate appellate court reviewing the fact finding function of a trial judge on a matter

by way of a condition precedent to admissibility, and that, Your Honours, applies in relation to the West~rn Australian decision which is on our list of

C2T24/l/HS	38	11/5/88
Kyriakou

authorities of DOMONIC, concerning the taking of

evidence of a child; WHITTAKER is a fact-finding

function in which the courts have embarked on the

facts to support sentence, as is JERMYN;

MORRIS, of course, applies to jury verdicts, and
in Victoria there is the decision in HALDEN in which,

again, is fact finding on sentence.

In the modern decisions, in particular, JERMYN,

HALDEN and DOMONIC, the intermediate appellate courts

have expressly referred to WARREN V COOMBES and

PATERSON V PATERSON, as setting out the nature of

the functions that they should perform and, in our

submission, when it comes to a review by an

intermediate appellate court of the fact finding

function of the trial judge the appropriate principles

should be the same as have been adopted elsewhere

in New South Wales.

(Continued on page 40)

C2T24/2/HS	39	11/5/88
Kyriakou

MR JAMES (continuing); That is, itself, in our submission,

a matter which warrants the grant of special leave

in that it should be said, we would submit,

authoritatively, that it is the function of the

Court of Criminal Appeal in reviewing the fact-

finding role of the trial judge to adopt the

principles in PATERSON V PATERSON and WARREN V
COOMBES.

Your Honours, I understand that there may be reference to the proviso and to the recent decision

of this Court in WILDE and might I say simply as

to that that unless one could see, in the context of this case, that these admissions were properly

admitted into evidence, in our submission, no question

of the proviso could arise and, really, it means

that - - -

MASON CJ:  You do not have to deal with this at this stage,

do you?

MR JAMES:  They are the submissions we would seek to put

to the Court unless I can assist the Court any

further on the matter.

MASON CJ:	Thank you, Mr James.	Yes, Mr Blanch.
MR BLANCH:	May it please the Court.	I hand up an outline

of the Crown's submissions.

MASON CJ:  Thank you.

MR BLANCH:  May it please the Court. Youi Honciur; what

I would propose to do would be to devote my remarks

to the way the argumenthas developed rather than

specifically following through the outline of

submission. The first matter that I would wish

to make specific submissions about are as to the
argument put forward by my learned friend about

the blow to the mouth and the question of

voluntariness.

Most of the matters that I would wish to put

have been adverted to, I think, by the Court in

the course of argument but as to that particular

matter the finding of the judge as to the facts

appears at page 432 - I will not take the Court
to that because the Court has already been referred
to it but it is where the Court of Criminal Appeal

quoted the trial judge as saying that having heard

the evidence, where there was any conflict between

the two police officers and between the applicant,
then he accepted the police officers apart from
his finding as to the blow in the mouth.

As to that matter, if an appellant court ever did have the function of reviewing the judge's

C2T25/l/ND	40	11/5/88
Kyriakou

finding as to primary facts, it is worth noting

that His Honour's doubt about that is most

peculiar because His Honour had assessed the

witnesses, His Honour had believed the two police

officers about each statement that was made,

His Honour had disbelieved the applicant as to

each of those matters, except for the one particular

matter and as to that one particular matter there was no other evidence in support of the statement

made by the applicant that there had been a blow

to the mouth. There were medical records that

were tendered which showed nothing as to that.

There wasan. examination of a nurse from the hospital

and various other police officers about that.

There was a photograph in evidence that was taken the day after. There was a degree of material,

none of which would have supported the finding

or a doubt about that particular matter.

However, accepting the trial judge's finding

as to that, the other matters to be considered

in respect of that were, firstly, that the evidence

was that the blow had been between 10 and 11 o'clock

in the morning, the record of interview was at

10 o'clock at night, there had been many events

intervening and, more significantly, it was never suggested by the applicant that that blow had had

any effect upon his mind, at all. In fact, he

gave a degree of evidence that what caused him

to make the record of interview was the fact that

he was promised some heroin, a fact that was not

accepted by the judge.

(Continued on page 42)

C2T25/2/ND	41	11/5/88
Kyriakou

MR BLANCH (continuing):  I think,just as to that, in the

outline of submissions I have referred the Court

to the evidence as to that on page 2, the third

paragraph, in the Crown's outline. The page numbers

there are the page numbers of the evidence of the

applicant on the voir dire. In addition to that; there

was the page number that was referred to where,_ the applicant, in

his statement to the jury, once again raised the same

point, and that appears at page 420 of the appeal book.

All of those matters very clearly point to the fact

that any possible blow to the mouth had no signficance

at all so far as the confession was concerned and

would thus amply justify the trial judge in coming

to the conclusion that he came to_ that he should

not exclude the admission, even allowing for his
concern about the blow to the mouth.

The other general matter that I would wish to put

submissions is in respect of the matter raised by my
friend as to the way the Court of Criminal Appeal dealt

with the review of the case. In our submission, the

Court of Criminal Appeal did look at the evidence

again. It is quite clear, first of all, from the

general review of the material by the Court of Criminal

Appeal, and the large quotations of the findings by

the learned trial judge in a voir dire that apparently

lasted for some two weeks, that the Court of Criminal

Appeal was very concerned about what had happened

and considered it all .and although at the conclusion of

looking at that material the reasons given by the

Court of Criminal Appeal are brief, nevertheless it is quite apparent that the Court of Criminal Appeal

addressed an independent mind and an independent

assessment of the material before them, bearing in

mind, of course, that the trial judge was in the best

position to make the assessment since he had seen the

witnesses.

MASON CJ:  You do not support the statement in the middle of

436 as a correct statement of the Court of Criminal

Appeal in reviewing a finding of fact of this kind,

do you?

MR BLANCH:  Your Honour, I was going to refer to that statement.

There are two passages: there is the statement that

appears at page 10 - sorry, line 10, line 11: "That

was a finding of fact which it was open to him to make, and

I am quite unable to conclude that he erred in that

conclusion." When His Honour said:

I am quite unable to conclude that he erred -

in our submission, is a statement of fact that

the Court or that His Honour had looked at that; he

had looked at the facts, he had looked at the basis

upon the facts had been found and that the appellate

court did, in fact, make an assessment of that finding.

So the statement at page 436 is not a statement where

C2T26/l/VH	42	11/5/88
Kyriakou

he is saying that the Court will never do it.

Further, in line 16:

If there is no evidence to support a

finding, or if a judge has applied wrong

principles, or if the evidence is all one

way -

and he is talking about the evidence being all one

way as though it is a matter where it is possible

for the Court of Criminal Appeal to make an

assessment of the evidence and that that is what

the Court of Criminal Appeal does. Read as a

restrictive statement that the Court of Criminal

Appeal would never interfere or never see its role

as reassessing that matter, I would not seek to

support it, but I would seek to read it down in the

way that I have just indicated to Your Honour.

(Continued on page 44)

C2T26/2/VH	43	11/5/88
Kyriakou

MR BLANCH (continuing):  Now, in support of that reading

down of that passage, is the passage, then, that

further appears at page 437, where at line 6,

His Honour said:

In my view His Honour has not been shown

to have erred in any way in the findings of

primary fact which he made upon the voir dire,

or in exercising the discretion, which he

undoubtedly had, to admit the relevant

material.

It is perfectly clear, in our submission, from that that His Honour is saying that we have assessed it

and we do not believe that he has erred in any way

as to those findings of primary fact.

The other matter is at page 438 where, at the

top of the page, when dealing with the question of

illegality, the Court of Criminal Appeal said:

That having been held as a fact, His Honour

was entitled to exercise his discretion in

the manner which he did, and this court in

my view should not interfere.

He is not saying "this court cannot interfere", nor

suggesting that they are bound, in any way, from

exercising any judgment. It is our submission that

the Court of Criminal Appeal did, in fact, embark on

a review of the material, that they did make an

assessment, and it was an appropriate assessment.

Those are the matters that I would ~ut specifically

in reply, unless the Court wishes to hear from me

about other matters.

DEANE J:  Mr Blanch, can I take you to section 410(2).

What do you say the position is if, in determining

whether the confession was voluntary, the judge says,

"I am not persuaded that there was no threat or promise

in terms of the blow"?

MR BLANCH:  Your Honour, that would lead to the same

conclusion as it would at common law, that without

further - that would be material from which it could

be concluded that the confession was induced.

DEANE J:  Except, if you reach that stage, does not section 410(2)

operate to say it is to be assumed that the threat or promise was to be prima facie assumed that the

threat or promise which he is persuaded may have

taken place induced the confession if it did take

place?

MR BLANCH:  Yes, Your Honour, unless the contrary be shown,

which is the concluding words of the subsection.

However - - -

C2T27/l/HS	44
Kyriakou

DEANE J: If that be so, and I appreciate what you say about

the evidence in this case and so on, did not the

trial judge and the Court of Criminal Appeal both

overlook the significance of the lack of satisfaction

about the blow not having been struck? In other words,

that the trial judge had to be positively satisfied
that, given that he was in a state of judicial atrophy

about the blow, it was to be presumed that the blow

induced the confession?

MR BLANCH: 

Your Honour, ·the answer to that, in our submission,

simply is this: that it was abundantly clear from
what the trial judge said that he had section 410

precisely in mind. Admittedly he did not refer to

section 410 in terms, however there was, as I have

indicated, an extensive voir dire that extended over

a period of two weeks. There was reference in that

voir dire to just about every case that has ever

been written.

(Continued on page 46)

C2T27/2/SDL	45	11/5/88
Kyriakou

DEANE J:	I was not trying to take you into that, though, and
I can see the factual things:  the time between
the blow and everything else.
MR BLANCH:	I was not going into the facts, Your Honour.

What I was saying was this, that section 410 was

discussed backwards and forwards during the course

of this voir dire. Although the trial judge did

not say, "I have in mind section 410 and, in particular,

I have in mind section 410(2)", it is nevertheless

abundantly clear that hi did because that, really,

is the only real logical explanation for his bothering

to disclose the fact that he was in two minds

about the blow and where that left him - leaving the fact that he got himself into that position,

reading into what he said, what he must have been

saying was this: "I appreciate that I have to make a finding about this blow because here is force which could lead to a finding of involuntariness.

I do have to make a finding about it even though

I am not too sure in my mind about it. Therefore

I disclose that and that is the state of my mind.
I put it in the balance in favour of the accused

and yet still the contrary is shown".

GAUDRON J:  But all he put in the balance was his uncertainty,

did he not, Mr Blanch?

MR BLANCH:  No, Your Honour. I think that what he said

about that was that he was prepared to assume

in, the accused's favour.

MASON CJ:  Page 432, line 33, the relevant paragraph begins,

after his reference to the qualification.

Being a matter which is part of the

facts which have gone into contention and

become issues on the issue -

that is the blow -

I must therefore put into the scale in favour of Kyriakou that factual issue.

which, as I read it, means he is putting into

the scale in favour of the accused an acceptance

that the blow was struck.

MR BLANCH:  Yes, with respect, Your Honour, that is correct

and, as I am putting to Your Honours, I am sure

that is what is done.

GAUDRON J: Is that the right test, in any event? Why should

he not put it into the scale as against the
presumption of voluntariness, or the acceptance

of voluntariness, in the light of section 410?

C2T28/l/SDL	46	11/5/88
Kyriakou

MR BLANCH:  Your Honour, I appreciate what Your Honour is

putting but it would be reading a lot into that

statement to say that thereby it is an indicator

that he would reverse the onus in respect of that.

DEANE J:	Why did you not read that factual issue as the
existence of that unresolved issue of fact?
MR BLANCH:	Because he had resolved the issue, Your Honour.
DEANE J:	He did not resolve it.
MR BLANCH:	He resolved it in favour of the accused.

DEANE J:  No. Why did you not read that the way Justice Gaudron

read it, and that is: "I put in the scale in

favour of the accused the fact that there is an
issue which I am unable to resolve about whether

or not a blow was struck"? Ultimately little may turn upon it, but what I was putting to you,

and I do not think you have really dealt with

it, is on a fair reading of what the trial judge

said, he did not appreciate the implications in

so far as onus of proof of voluntariness was

concerned of his inability to resolve the issue

about whether the blow was struck.

(Continued on page 48)

C2T28/2/SDL	47	11/5/88
Kyriakou

MR BLANCH:  With respect, Your Honour, in our submission,

that is not so. He went on to say, in that very

paragraph, that he was satisfied,on the balance of

probabilities, that the confession was voluntary.

I appreciate the point that is being put against me

is that it is for the Crown to prove that it was

voluntary but, in our submission, he could only put

a factual issue in favour of the accused if he was

putting it against the Crown.

DEANE J:  So you say we read this as if he said, "Being unable

to resolve the issue about the blow, there is a

presumption that this confession was involuntary",

because that is what section 410(2) does, as I

understand what you put?

MR BLANCH:  Your Honour, the treatment of section - I will not

take the Court to it, but just briefly noting in passing - the treatment of section 410, a clearer statement of the law appears in the judgment of

Mr Justice Dixon in McDERMOTT V R, (1948)

76 CLR 501, at page 511 and following, and the passage

in MacPHERSON read by my friend, the passage at page 519
of MacPHERSON referring to section 410 extending
the connnon law in one respect refers to the use of

the words "untrue representation" in section 410, and

that is the respect in which section 410 is said to

have been extended by the common law.

But having noted that, coming back to Your Honour's

question, it is, in our submission, a fair and

proper reading of what was found by His Honour here

was that he could not make up his mind, that he was

prepared to accept in favour of the accused that the
blow had been struck, he was prepared to put that in

the scales, even though he says in favour of the

accused, in our submission, that conversely.

(Continued on page 49)

C2T29/l/HS	48	11/5/88
Kyriakou

GAUDRON J:  If he did that, surely he should have gone on

to positively find that there was no inducement, to state that he was satisfied on the remaining

evidence that there had in fact been no inducement

or threat, or that it was not operating on his

mind at the time of the making of the confession.

MR BLANCH: Well, in my submission, Your Honour, it is not

necessary for His Honour to have exposed his thought
processes to that extent. It is a necessary

conclusion from what he said and what he has concluded

here that that is precisely what he did. He knew

where the onus of proof was; he knew it was on the

Crown. He said that he put this issue and if it

is an issue of fact, and he is resolving it, he

could only resolve it in favour of the accused

if he had in fact reached a conclusion, or said

that he had to make a positive finding. If it

were just simply an issue left up in the air,

it could not possibly have been put in anybody's

favour. He has clearly said that it was an

issue that he has resolved in favour of the accused,

which means against the Crown, and there is

no suggestion from the rest of that paragraph that
he has remotely considered that the onus was anywhere

other than squarely on the Crown.

DAWSON J:  And I suppose you say .if he t~en positively

came to the conclusion that the conression was

made voluntarily, he does not have to go through

those steps?

MR BLANCH:  Yes, Your Honour. And the other factor in

support of all that, of course, is the

factual material which I will not go through.

I would not wish to put any further submissions on

it unless the Court wishes to hear from me.

MASON CJ: Yes, thank you, Mr Blanch. Mr James?

MR JAMES:  Your Honour, I have only one matter in reply.

It was put that it was the heroin that was asserted	to be the inducement as to the making of the record
of interview. Of course, it was the applicant's
case on the voir dire, and at the trial, that it was the whole of the surrounding circumstances with the heroin offer and supply in the context of the withdrawal occasioned by the detention which
was merely the proximate cause. And, in our submission, it is going too far to suggest on
a reading of the applicant's evidence that all
he was asserting was the heroin.

C2T30/l/JM	49	11/5/88
Kyriakou

MR JAMES (continuing): Indeed, it was the entire complex

of the circumstances operating on his mind at 10 o'clock at night after his denial that the

submission put on his behalf caused him, at that

stage, to execute the document and to make the

oral admission. And it was really a case in which

all of these things were said to be operative.

The separating out, as it were, the blow, in our submission, is not simply a matter to be taken

on its own. It really cannot be separated out

from the questions of credit that he raised and

the questions of fact that he raised and because

the trial judge sought to separate it out in that

fashion, in our submission, indicates the sort

of wrong approach that was raised with my learned

friend in his argument.

Your Honours, at page 432, line· 39, there are those words:

However, even putting that into the scale

in favour of the accused I remain satisfied

on the balance of probabilities -

which would indicate, Your Honours, in our submission,

that His Honour has not performed the task properly

and that he has left the question of the blow out

until he sees what else there is and then put it

in to see it· as some sort of balancing process.

Whether that reveals error in onus or matter of

that sort arising from those words:

I remain satisfied on the balance of

probabilities -

or it is merely so elliptical as to leave us with the proposition that His Honour's findings should

be supported by anything else logically available,

I am unable to assist the Cour½ but our contention

is that there is here material which would indicate

mistake and that there is here.material that warrants

a total review of the whole of the circumstances.

MASON CJ: Yes, thank you, Mr James. The Court will adjourn

for a short period of time to determine what course

it will take in the matter.

AT 12.18 PM SHORT ADJOURNMENT

C2T32/l/ND	50	11/5/88
Kyriakou
UPON RESUMING AT 12.26 PM:

MASON CJ:	The Court expects that it will be in a position
to give its decision in this matter at 2.15.

AT 12.27 PM THE MATTER WAS ADJOURNED

T32	UNTIL LATER THE SAME DAY
UPON RESUMING AT 2.19 PM:
MASON CJ:  A majority of the Court is not persuaded that

the learned trial judge appreciated the effects

in so far as the onus of proof of voluntariness

is concerned of the combined effect of

section 410(2) of the CRIMES ACT 1900, New South

Wales, and His Honour's conclusion that he was

unable to find whether the applicant had been struck

across the face by Detective Bown some 11 hours

before the making of the confessional statements.

His Honour's positive finding that the

confessional statements were in fact voluntary

did not, however, turn on any question. of onus

of proof. In these circumstances it does not appear
to us that any error in relation to the operation
of section 410(2) vitiated His Honour's decision

to admitted evidence of the confessional statements.

The applicant submits that the Court of Criminal

Appeal failed to properly review the evidence when

considering whether the trial judge erred in finding

that the oral admissions and record of interview

made by the applicant were voluntary. Although

the judgment of the Court of Criminal Appeal does

not accurately express the role of an appellate

court when a challenge is made to such a finding

of fact by a trial judge, the Court is not persuaded

that the Court of Criminal Appeal failed to examine

for itself the critical issue of fact.

The application for special leave to appeal

1s therefore refused.

AT 2.21 PM THE MATTER WAS ADJOURNED SINE DIE

C2T40/l/ND	51	11/5/88
Kyriakou