Mallard v The Queen

[1997] HCATrans 303

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P52 of 1996

B e t w e e n -

ANDREW MARK MALLARD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 1997, AT 11.12 AM

Copyright in the High Court of Australia

MR M.T. RITTER:   If it please the Court, I appear for the applicant.  (instructed by Gibson & Gibson)

MR J.R. McKECHNIE, QC:    On this occasion, with my learned friend, MR K.P. BATES, I represent the respondent.  (instructed by the Director of Public Prosecutions (Western Australia))

TOOHEY J:   Yes, Mr Ritter.

MR RITTER:   If it please the Court, special leave is sought in this application on the basis that important questions of principle are involved as well as the individual circumstances of the case warranting it.

The application raises the issue of the directions which ought to be given by a trial judge to a jury when investigating police officers conduct interviews with suspects without using readily available video-recording equipment.

TOOHEY J:   Can we just ask you this:  as far as the video recording of interviews with accused persons, that is now, is it not, the subject of legislation?

MR RITTER:   With respect, some accused persons but, significantly, the legislation only covers accused persons whose charges can only be dealt with indictably.  So that there are a large category of offences which may result in appearances in a District or Supreme Court where the legislation does not cover the situation.  That includes such offences as burglary where there can be sentences of eight to 18 years; threats, aggravated indecent assault and stealing of amounts up to $10,000.

So, because of the definition of what is “a serious offence” for the purposes of the legislation, there remains a gap of potential defendants to which the legislation will not apply.  Secondly, in relation to that point, your Honours, the legislation, of course, does not affect this case if there is a miscarriage and, thirdly, if one is looking at other States, it obviously does not affect the broader position.

TOOHEY J:   No, but it would have some bearing upon the question of general principle to the extent that that is argued in support of the application.

MR RITTER:   Yes, that is so, but as I say, because of the definition of “a serious offence” there remains a potential significant gap of potential offenders that are not going to be covered by the legislation. 

Now, in this particular case there were three interviews of significance.  The first two which took place a week apart were conducted in video interview rooms but where detectives chose not to use video-recording equipment.  The third interview which took place after the second interview, and therefore a week after the first interview, there was a videotaped record made and there were things said in that videotaped interview which confirmed what had been said in the second interview, but what there remained was a significant dispute about what had been said in the second interview as to whether it was confessional in nature or whether it was simply discussion of theory and conjecture as to how the offences may have occurred or the offence may have occurred with the applicant regurgitating to some extent what he said in his evidence was suggestion by the police officers as to matters they knew.  So, therefore, the non-video recorded evidence was most significant.

Indeed, the trial judge told the jury that they could not convict beyond reasonable doubt and could not find that the appellant was the person who killed unless the jury accepted the police evidence of the confessions he made.

In that context the issue, therefore, of the warnings to be given over the non-use of the video-recording equipment was most significant.  Our submission is ultimately this, that there ought to be a rule of practice that when the Crown alleges confessions have been made in relation to a serious charge, where the confessions are not mechanically recorded in circumstances where they reasonable could have been, that the trial judge must warn the jury that the failure to use the video-recording equipment is to be taken into account in assessing whether the confession was made.

TOOHEY J:   But within the context of this application, Mr Ritter, are you suggesting that by reason of these matters that there was a likelihood of a miscarriage of justice?

MR RITTER:   There was, your Honour, for this reason:  that, ultimately, as the trial judge said, the conviction depended upon acceptance of the police evidence of confessions.  Whether or not what was said on the video record of interview was confessional in nature or repeating matters of conjecture depended upon what was said at the second interview.  So, what was said at the second interview in relation to the third interview was extremely important.  Therefore, what directions ought to have been given about the non-videod interview were crucial, with respect, your Honour.

Our submission as to the direction that I have suggested be made would include that the failure to use the equipment therefore affects the reliability of the police evidence; that a jury should be cautious in accepting the police evidence of such confession.

TOOHEY J:   But your draft notice of appeal seems to go further and to focus not only on the directions that the trial judge should have given the jury but also to argue that the confessional evidence that was not the subject of video recording should have been excluded.

MR RITTER:   Yes, it includes both points.

TOOHEY J:   Well, there is a big difference.

MR RITTER:   There is a big difference, but I suppose what I am doing now is highlighting what I see to be a major point, given the time constraints and the fact that the written submissions are already there.  But, your Honour is right, that point is brought up; there is a big difference and if I get the opportunity I will get to that point as well.  What I am trying to highlight at this stage is what we see is a major point warranting special leave and a point which, in the way in which the trial judge dealt with the issue, was potential of occasioning a substantial miscarriage of justice.

Now, the reason for the warning may not necessarily need elaboration but it would seem to be this, in our submission, that suspicion is created by the deliberate failure of the police to use available video facilities because the police have chosen to not have corroboration of what was said and have placed the accused in the position where there is a susceptibility or a vulnerability to a fabricated confession.  What the trial judge - - -

McHUGH J:   Fabricated by whom?

MR RITTER:   By the detectives.

McHUGH J:   But you had a record, a videotaped interview, in which no reasonable person could come to any other conclusion that the accused was making admissions.

MR RITTER:   With respect, I differ with that, your Honour.

McHUGH J:   At one stage Detective Brandham asked him:

Can you indicate to us where you said you hit her on the head?

And your client said:

I think the initial blow would have been to here, around the forehead.

And indicated.

MR RITTER:   Yes.  With respect, your Honour, the important part about that is the reference point of the detective to what had been said previously.  What had been said previously from the accused’s point of view, in his evidence, was that he had, in this discussion of theory and conjecture with the detectives, put himself in the position of the person who had been the offender and with a process of discussion and the detectives offering their own suggestions, had suggested things in the first person, so that explains at some point the use of the first person.

You will see scattered throughout that interview is quite clearly speculation, supposition and a reference to some other person as being the offender.  In other words, him saying, “He would have done this” or “This would have happened” or “I think about it” and even at one point, “Well, I’ve got other ideas about that now.”  What also is significant, when you look at that interview, is that there are some key areas in what he discusses about the offence which clearly did not match the objective facts.  There are those areas, and your Honour picks up a key one that the Crown relied on, where there is a statement which fits in with the facts but there are other examples which do not.  They are most important again in assessing, as I say, the reliability of that interview.

I get back to my point about how the trial judge dealt with this issue in the case.  The trial judge simply gave no warnings as to the fact that the video had not been used for the first two interviews and, indeed, in our submission, compounded that error by telling the jury that the process of the police making notes and then reading them back at trial, notes which had never been shown to the accused, was, as his Honour described at pages 198 and 199 of the application book, in relation to the first interview, a “perfectly normal and perfectly proper” process, and in the second interview, an “ordinary process, properly carried out”.

So that we see that not only did his Honour err in failing to give the warning which we say he ought to have, but that was compounded by an erroneous direction on the interviews being a proper and ordinary process when they involved a failure to use video facilities which the Commissioner of Police’s guidelines indicated that they should have.

This particular issue, although it was before the Court of Criminal Appeal by the grounds of appeal and by the submissions that were made, was not specifically dealt with by the court.  Although his Honour the Chief Justice quoted part of the directions that I have just referred to, his Honour’s analysis at pages 357 to 367 of the application book did not refer to the point of the failure to direct on the non-use of the video equipment.

TOOHEY J:   Mr Ritter, was there an application for redirection?

MR RITTER:   On that issue?  No, there was not, your Honour.

TOOHEY J:   On other issues?

MR RITTER:   There was, yes.

TOOHEY J:   But not on that one.

MR RITTER:   Although my memory may serve me wrong here, but I think it was really matters from the Crown rather than defence counsel that were raised after the jury retired.  So, those issues were not raised by defence counsel but the obvious submission is that if there is, nevertheless, a miscarriage of justice, the Court ought to intervene.

We submit that there is therefore an error in the approach by the Court of Criminal Appeal because they have failed to consider this aspect of the appeal against conviction.

KIRBY J:   What is the proper approach if otherwise the Court is of the view, with the Court of Criminal Appeal, that the evidence against your client was compelling?

MR RITTER:   If it is the view of this Court or the Court of Criminal Appeal?  If it is the view of the Court of Criminal Appeal that the ‑ ‑ ‑

KIRBY J:   No, I am saying if it is the view of this Court, reviewing the decision of the Court of Criminal Appeal, that the evidence otherwise against your client is compelling, would the failure to give a direction to the jury in relation to the facility of videotaping be sufficient of itself to warrant intervention?

MR RITTER:   In the circumstances of this case, your Honour, yes, and the reason is this, that the third interview which is all that could contain the compelling evidence - any compelling quality about that, in my submission, is dependent on a proper understanding of what was said at the second interview.

KIRBY J:   I am just not talking about the interview, I am talking also of the other evidence, not the least of which was the “locking of eyes” evidence.

MR RITTER:   Again, with respect, your Honour, that only arises in the interview.  In the video recorded interview, Detective Brandham says, in a leading question, “You told us there was a locking of eyes”, and there is agreement with that.  Now, your Honours will see from the analysis in the written submissions that it was the applicant’s evidence that that had been put to him by the detectives, that they had been told that.

KIRBY J:   Why would he accede to it in the videod interview if it were not so?

MR RITTER:   Because what he is acceding to is acceding to saying that, yes, he had said that there had been a locking of eyes, with, he, talking about himself as the theorised defender as opposed to the person who had actually carried it out.

TOOHEY J:   But in so far as you rely upon inadequacy of directions, you are really driven to argue that by reason of that inadequacy there was a likelihood of a miscarriage of justice.

MR RITTER:   Indeed, that is right.  That is brought forward or enhanced in part by what we say are the anomalies in a video record of interview, the factors which he clearly got wrong if he was the offender.  The fact, for example, where the driver of the vehicle in which the young girl saw him, he says of the driver, who was a 71-year-old grandmother, “I don’t think he had his licence for very long, he must have been young.”  He says, for example, that the handbag had been taken and disposed of when no handbag had been taken and disposed of.  He gave an inaccurate description on the video as to what clothing the victim had worn.

KIRBY J:   Not very inaccurate.  He said it was a pants suit as distinct from jeans.

MR RITTER:   No, he said “a skirt”, and then the detective said, “Well, earlier you said “dark trousers and a jumper”.  He said, “Yes, that’s right but I think that was the co-worker.”  It was clear that he had gone into the shops some days earlier and had seen a co-worker.  Another point:  in relation to the disposal of the handbag, I have made that point, but also in relation to the disposal of the supposed weapon.  It was disposed of at a place that he identified “off Stirling Bridge where the diving team went to look for - could not find” and the evidence of the person who led the expedition was that “if the materials were there we would have found them”.

So that each of these factors together indicates, in our submission, that what was said in the interview was not compelling evidence supporting conviction.  One also had to look at what was said in the previous interviews and that is where the misdirections occurred.  There are other aspects of misdirection.  For example, although his Honour told the jury that the police were practised witnesses, he did not offer the additional information which is important that it can be difficult to tell when practised witnesses are telling the truth.  He did not indicate that it can be more difficult for an accused to have evidence supporting his views of what had happened at an interview than it is for police to fabricate a confession, and he did not tell the jury that they should give careful consideration to the dangers of convicting of the basis of the uncorroborated confessional evidence.

He did not tell the jury, the point that I have made today, that the confessional flavour of the third interview was dependent upon a proper appreciation of the second interview which ought to have brought into focus the other points that we say his Honour ought to have made.

KIRBY J:   None of those were the subject of applications for redirection, none of them?

MR RITTER:   That is so, and I have to frankly then say, in any event, there was a miscarriage of justice and therefore the Court ought to consider the special leave application.

The special leave point is enhanced by what the Court said in McKinney.  McKinney, of course, made the point that there ought to be a direction where there is uncorroborated confessional statements made but that was made at a time when there was not the ready availability of video-recording equipment.  The change in technology since that time means that the Court now, in our submission, ought to give consideration to that important issue.  There are other factors that bring into sharp focus the confession here.  That was, of course, the shocking and well publicised crime of murder that it was; the fact that there had been no arrest for a month afterwards and therefore the possibility of pressure on the police to do something about this outstanding crime, if you like.  There was, of course, no forensic evidence and the only confessional evidence there was to prove the charge beyond reasonable doubt.

Your Honours, in the remaining time that I have, I might refer to the other flank about the unfairness discretion and the error that the court made there, in our submission.  The court considered the failure to video the first and second interviews - this is the Court of Criminal Appeal - and decided that there was no basis upon which the unfairness discretion should operate but the court clearly intimated that if these interviews had taken place after

the decision of Sell of the court on 22 June 1995, the decision probably would have been different.

Now, in our submission, that approach involves an erroneous understanding of the unfairness discretion.  It seems to suggest that the unfairness discretion is based on whether the police ought to have known of the court’s view of the desirability of video recording interviews.  In our submission, that is in error and that the basis of the unfairness discretion is whether it is unfair to the trial of the accused.  In this case the unfairness, therefore, derives from the fact of the lack of the record of those interviews as opposed to whether or not the police knew or ought to have known of the court’s view of video use.  In particular, the unfairness that emanates from the fact of failure to video record is the fact that, again, the accused is placed in a position of vulnerability to confession, that the accused is denied the opportunity of corroboration and is placed at a forensic disadvantage at his trial in that he has to challenge the police confessional evidence with all the difficulties attendant upon that that the Court examined in McKinney.

Those issues, again, if one considers them and then says the evidence has been allowed in by the trial judge, it again brings into keen focus, in our submission, the sorts of directions that ought to be given and the issue of misdirection here.

There were, in relation to the interviews, other things which would cause some concern in looking at the unfairness discretion.  The fact that the first interview was for a period of over eight hours; the second interview was involved for over two hours; the fact that the applicant suffered from a bipolinar mood disorder, all of these factors provide additional reasons why it is unfair not to see and hear precisely what occurred during those interviews.

If the Court of Criminal Appeal had excluded those interviews, then that would be consistent with the video-recording legislation which has now been passed and proclaimed to take into effect.  In this case, the accused is suffering from having his interviews after the legislation has been passed but before it has been proclaimed and also suffers from the fact that it was passed, although after McKinney, before Sell’s Case was determined which the court thought was significant.  If the Court please.

TOOHEY J:   Thank you, Mr Ritter.  The Court need not trouble you, Mr McKechnie.

In so far as the applicant seeks an expression of general principle, the use of video‑recording facilities is now governed by legislation, at least in respect of indictable offences.  There is nothing in the matters complained of by the applicant which establishes the likelihood of a miscarriage of justice and nothing otherwise that warrants a grant of special leave to appeal.

The application is refused.

AT 11.35 AM THE MATTER WAS CONCLUDED