McKinney v The Queen; Judge v The Queen

[1990] HCATrans 169

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S65 of 1989

B e t w e e n -

VINCENT PETER McKINNEY

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S66 of 1989

B e t w e e n -

MICHAEL ALLAN JUDGE

Applicant

and

THE QUEEN

Respondent

Applications for special

leave to- appeal

MASON CJ
BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 AUGUST 1990, AT 11.59 AM

Copyright in the High Court of Australia

McKinney(2) 1 8/8/90

MR P. HIDDEN, QC:  May it please the Court, in this

application, Your Honours, I appear with my learned

friend, MR s. FLOOD, for the applicant, McKinney.

(instructed by M. Richardson, Director, Legal Aid

Commission)

MR P. BYRNE:  May it please the Court, I appear for the

applicant, Judge. (instructed by M. Richardson,

Director, Legal Aid Commission)

MR R. HOWIE, QC:  I appear with my learned friend,

MR P. BERMAN, for the r~spondent Crown.

(instructed by S.E. O'Connnor, Solicitor for Public

Prosecutions).

MR HIDDEN:  Your Honours, this matter was before the Court,

constituted by five Judges, on 31 May 1990. After

hearing arguments the Court adjourned the matter so

that argument could continue before the entire

Court.

Your Honours, just some housekeeping matters.

There is now a second application book which we

trust Your Honours have containing the evidence of

certain witnesses which was not reproduced in the

first book, and also containing the entire summing

up which had not been reproduced in its entirety in

the first book.

Your Honours, we regret that it seems that

some pages of the evidence in the second book did

not come out in print. This begins, Your Honours,

in the pagination of the second application book

commencing at page 348, 349 and 350. For some

reason they have not appeared in print at all.	I
do not know whether that is the case with
Your Honours' copies, but it is with ours. Might we, accordingly, supplement - I will hand up to
Your Honours copies of those pages of the
transcript which commence at page 254 in the
pagination of the original transcript.
Your Honours, also, a supplementary list of

authorities was provided which includes an

unreported decision of the Queensland Court of

Criminal Appeal in The Queen v

Kelvin Ronald Condren. We were asked by the

Registrar, Your Honours, to bring with us copies of

that decision. Might we also hand that up to

Your Honours now. I will turn to that in a moment.

Your Honours, in relation to that matter of

Condren, that case had a little earlier been before

this Court and we trust that Your Honours have been

supplied with the transcript of the argument in

Condren?

McKinney(2) 8/8/90

MASON CJ: Yes, we all have the transcipt.

MR HIDDEN:	Yes, thank you, Your Honour. That simply supplements some factual matters in Condren which
do not appear from the Court of Criminal Appeal
judgment.  May we take it Your Honours also have
the transcript of the argument in this application,
on 31 May and may we take it the Court is familiar
with the argument thus far, on the factual
background, and may we merely take up where we left
off, or would Your Honours wish us to - - -?
MASON CJ:	No, I do not think there is any need to go

through it on the footing that you are starting

de novo, Mr Hidden, I think you can proceed on the

footing that the case has reached the stage which

it has as a result of the arguments presented on

the last occasion.

MR HIDDEN:	Thank you, Your Honours.
MR HIDDEN:	Thank you, Your Honours.  Your Honours, we do

have additional copies of the outline of argument

should those members of the Court who were not on
the original Bench require them, that is the

outline of argument presented on the - - -

MASON CJ:  One of the problems, I think, is that even some

of the members of the Court who sat on the last

occasion may have mislaid the outline of argument so if you have additional copies that would be of

advantage.

MR HIDDEN:  Your Honours, may I just ensure that there are

sufficient here.

MASON CJ:  I would think if you have approximately four that

would be sufficient, Mr Hidden.

MR HIDDEN:  We have got, in fact, eight, Your Honour.

MASON CJ: That is more than enough.

MR HIDDEN:  Your Honours will recall on the last occasion my

learned friend, Mr Flood, and I represented both

applicants.

MASON CJ: Yes.

MR HIDDEN:  Your Honours, again, perhaps, just on

housekeeping matters, there were some assertions

made by me on the last occasion which are not

entirely accurate or at least one, in particular.

If I could turn to the transcript of the argument,

Your Honours. At page 26, Your Honour

the Chief Justice asked:

McKinney(2) 8/8/90

What was the strongest statement made in the -

trial judge's -

directions to the jury about careful scrutiny

of the confessional evidence?

I did not immediately answer that, Your Honours,

but at page 28 I referred to page 192 of the

original book which is now page 516 of the second

book and said that in a passage there:

His Honour squarely puts it to the jury that

they must be satisfied beyond reasonable doubt

of the confessional evidence -

Upon a more careful rereading of that passage, that

is not so. All His Honour appears to have said,

after having made a reference to the confessional

evidence in the case of the applicant, Judge, was

that they had to be satisfied beyond reasonable

doubt of his guilt of the offence as charged but

there was no specific reference, Your Honours, to a

requirement that to establish his guilt they must

be satisfied beyond reasonable doubt of the

confessional evidence.

And the closest one gets to a direction like

that, Your Honours, is at page 528 of the second

application book where, again, summing up the case

of the applicant, Judge, right at the bottom of the

page, at line 29, His Honour said:

The other side to this coin, of course,

is that you are not merely looking to whether

you can discount the police evidence, whether

you are going to not be satisfied beyond

reasonable doubt it was not all a cooked up

job, a fabrication.

Your Honours, that appears to be as close as

His Honour ever got to a direction which we would

submit is appropriate in this case, that to convict

either applicant the jury must be satisfied beyond

reasonable doubt of the confessional evidence.

Likewise, if it assists Your Honours there were

other references to passages in the summing up.

BRENNAN J: What do mean by "satisfied beyond reasonable

doubt of the confessional evidence"?

MR HIDDEN:	Of course, in the context of this case that creates an unusual difficulty but satisfied beyond
reasonable doubt that each applicant had confessed
to his complicity in the crimes charged and that
that confession was the truth.  The difficulty
here, of course, created by the very facts in this

McKinney(2) 4 8/8/90

case was that on its face each applicant confessed

to sole responsibility for the crime charged.

I suppose what the jury had to be satisfied in

the ultimate was that each applicant was guilty of
complicity in the crimes charged. They, of course,

did not have to determine who had fired the weapon

provided they were satisfied that one had and that

the other was a party to a common purpose involving

the discharge of the weapon, likewise with the

other offences of breaking and entering whilst

armed and armed assault with intent to rob.

To use the confessional evidence at all they

had to be at least satisfied beyond reasonable

doubt that the confessions were made. Of course,

in the nature of thinks, in considering the case of

each applicant, they could not accept the

confession on its face because they had to deal
with the fact that in the case of each applicant

there was evidence that two other men had confessed

to sole responsibility for the crimes charged.

BRENNAN J:	The relevant thing when you mean "accept the confessional evidence beyond reasonable doubt" was
that those confessions were made.
MR HIDDEN:	Yes, I suppose in the context of this case,

Your Honour, that could not go beyond that because

they probably could not accept each confession at

face value having accepted that it was made.

BRENNAN J: There is a secondary question then and that is

if those confessions were made whether they were

true or whether any parts of them were true.

MR HIDDEN:  Any parts of them, Your Honour, yes. I suppose

the only way the jury could have reasoned this one

is that the confessions were made but were not true

in so far as each applicant sought to take the

whole blame upon his own shoulders. But certainly

there were many details in the confession which

they might have accepted as having been made and as having been true; for example, the mere entry into the house, the seeing there of a man and a woman.

DEANE J:  Does "voluntary" come into the question of those

confessions were made?

MR HIDDEN:  Not in the legal sense, Your Honour, in so far

as it is preconditioned to their admissibility but,

of course, any suggestion of pressure upon the
applicants by the police necessarily goes to their

reliability and to the question of whether they

were made and the question of pressure from the

police, including the lengthy detention, those were

live issues for the jury.

McKinney(2) 8/8/90

BRENNAN J: Relevant to their being made, I understand. What

do you say about - - -

MR HIDDEN:  And also relevant to the fact that signatures

were placed upon them and, I suppose, Your Honour,

I should at this stage speak for the applicant for

whom I appear, McKinney, relevant also to how his

signature came to be on a document which he claimed

was a false document, the fact of detention, of

pressure from the police was clearly relevant to

that fact, how did the signature come to be there?

That was very much a question for the jury.

Your Honours, we did refer the Court on the

last occasion - - -

BRENNAN J:  I do not want to interrupt you, Mr Hidden, but I

thought you said about their reliability, as well,

pressure was relevant to, is that correct?

MR HIDDEN:  Your Honour, I use the word "reliability" in a

global sense including whether the confession was

made at all but I suppose in every case, whatever

defence is raised, even if the accused says the

confession is a fabrication, none the less in every

case the jury must be satisfied, A, that the

confession was made and B, that it is reliable;

that is that it can be acted upon as the truth or

at least, broadly, the truth although the jury may

be of the view that some matters in the
confession - accepting the confession was made, the
jury may be of the view that some facts in the
confession are not true. They must be satisfied,

broadly, that there is an admission of complicity

constituted by it even if they took the view, as

they may have done in this case that each applicant

was in fact admitting to more than he had done.

Now, Your Honours, just amplifying some

further material upon we wish to rely since the

matter the matter was last .before the Court. We

did refer the Court on the last occasion to the

unreported decision of the Court of Appeal in

England in Reg v Richardson & Ors, The Guildford

Four case, and we refer to that merely as

indicating that even signed confessions - even

handwritten confessions - may be false, and

convictions based upon them may have to be set

aside. To those references may we now add,

Your Honours, Reg v Condren, which we have now handed up to Your Honours.

Your Honours, very shortly, Condren was an

Aboriginal man living in the Mount Isa area, who

had been found guilty of the murder of an

Aboriginal woman. The course of the proceedings

and the facts of the matter are best discovered

McKinney(2) 6 8/8/90

from the judgment of Mr Justice Thomas, that is the

second of the judgments recorded. Very shortly,

Your Honours, Condren was alleged to have made some

admissions when first confronted by police which
were not recorded, and then to have taken part in a

record of interview which he signed and that

interview was conducted, on the evidence, in the

presence of a justice of the peace who was a fire

officer but not a police officer. And in that, as

Mr Justice Thomas records, at page 7 of

His Honour's judgment, towards the bottom of the page:

The confession is detailed and is

consistent with the objective data found at

the scene and the condition of the victim.

However it does not contain any objective

verifiable facts that the police did not

already know.

Now, Your Honours, it transpired that some

time later Darwin detectives, interviewing another

Aboriginal man, received a confession from him that

he had killed the deceased in the Condren case.

There was other evidence - that, in fact, was led in

the original trial. When the matter first went to
the Court of Criminal Appeal there was a body of

fresh evidence, and when the matter came to this

Court there was yet more fresh evidence, and all of

this new or fresh evidence was considered by the

Court of Criminal Appeal when it finally went back

there in the decision which Your Honours now have.

Now, there is probably no need, Your Honours,

to detail in any way the further evidence that was

given. It is suffice to say there was evidence of

another man having confessed to the crime and there

was also evidence from reputable citizens which

suggested that the deceased could not have been

killed at the time at which it was supposed to have

occurred, and indeed, the deceased must have been

killed at a time after Condren himself had been

taken into custody for drunkenness. Now, Your Honours, we do not wish to labour

the details of the decision. Suffice to say, a
body of further evidence showed that the confession

which Condren had signed and which had been, it was

said, taken in the presence of an independent

justice of the peace, simply could not have been

true. Condren's own case was that the confession

was not his; that the answers were, in fact, those
of the police rather than his own, and that because

of a variety of forms of pressure he signed the

document. And the Court of Criminal Appeal in

Queensland set aside the conviction in the light of

all the fresh material. The majority directed a

McKinney(2) 7 8/8/90

new trial.	Mr Justice Thomas himself would have
entered a verdict of acquittal.	We understand,

Your Honours, in fact, the matter has been no-billed subsequently.

Your Honours, may we also add to the category of examples of signed confessions which may be

unreliable, the unreported decision of the New

South Wales Court of Criminal Appeal in Reg v

Williams and Bewert of 17 December 1986. That is

quite a brief judgment, Your Honours, but in that

matter both appellants had signed records of

interview admitting an armed robbery and, in fact,

had pleaded guilty in the district court. In the

appeal they sought to go behind that plea of guilty

and to assert their innocence. The fresh evidence

there, Your Honours, was again that subsequently

another man confessed to the very armed robbery

which they had confessed to and, in addition, there

was apparently fresh evidence in the nature of an

alibi from two people who were total strangers to

the appellants.

In the light of that material the Court of

Criminal Appeal, in a brief judgment, mainly I

think because the Crown Prosecutor in this case

conceded that the convictions could not stand, set

the convictions aside and directed a new trial and

again, in fact, Your Honour, we are informed that

that matter was also no-billed. So, Your Honours,

we merely add Condren and Williams and Bewert to

Richardson as examples of the fact that even signed

confessions may be false and convictions based upon

them may be unsafe.

Now, Your Honours, returning then briefly, if

we may, to Carr and Duke, the principal decisions

upon which this application relies. The way the

principle was expressed in both cases was that in

appropriate cases it may be necessary for a trial

judge to fashion a warning to the jury, carrying

the weight of his or her judicial authority, in

respect of disputed police evidence of unrecorded

confessions which are not corroborated.

Now, the clear differences here,

Your Honours, is that first of all these

confessions, or the confession in the case of the

applicant, McKinney, is signed and there is other

evidence in the case capable to a degree of being

corroborative of his guilt, and that evidence has

now been more fully set out in the second

application book, in particular, Your Honours, the

evidence of Ms Williamson and Mr Rossiter, to the

effect that the three men - there is the two

applicants and the third man, de Cressac, who was

acquitted - left a home at Parramatta in the early

McKinney(2) 8 8/8/90

hours of the morning of the offence and returned

some hours later in a distressed condition, and

that evidence, of course, was inconsistent with the

alibi which each of them claimed in the trial.

There was evidence from Ms Williamson that

upon their return the applicant, McKinney, had in

his possession a bag of what she believed to be
heroin.

McKinney, himself, was said to have admitted having stolen speed - that is, amphetamines - from

the house where the offence occurred although the

victim of the crime is Milson - whose evidence is

also set out in the second application book - gave

no evidence that, in fact, anything had gone

missing from the house where the offence took

place.

Now, the question arises, I suppose, when this

Court has spoken of disputed police evidence of admissions which is uncorroborated, is the Court

speaking of corroboration in the sense of other
evidence pointing to the guilt of the accused or is
the Court speaking of evidence directly

corroborating the fact that the confession was

made? It seems, Your Honours, that it was in the

second sense that the submission was originally

put. If I could take Your Honours back to Carr,

(1988) 165 CLR 314 - in the joint judgment of

Justice Wilson and Your Honour Justice Dawson at

page 318, the submission put by Mr Kahle was

summarized in this way, in the second complete

paragraph:

practice that in every case where the sole or

In the first place, it was argued that the

substantial evidence against an accused person

is a disputed uncorroborated oral confession,
the trial judge must direct the jury to the

effect that, having regard to the inherent

unreliability of such evidence, it would be

dangerous for them to act upon it.

It was that submission which the majority of the

Court rejected although acknowledging that it may

be necessary in some cases.

If I may then take Your Honours to some

remarks of Your Honour Justice Deane: firstly, at

page 335 of the report, well towards the bottom of

the page Your Honour spoke of the warning which

might be given in such cases and said:

That further warning should be to the effect

that, while it is ultimately a matter for

McKinney(2) 8/8/90

them, the members of the jury should give

careful consideration to the dangers involved

in convicting an accused person in

circumstances where the only (or substantially

the only) basis for a finding that his guilt

has been established beyond reasonable doubt

is uncorroborated and disputed police evidence

of oral admissions allegedly made by him while

he was held in custody by the police.

At page 338, Your Honour Justice Deane went on to

say, towards the top of that page:

If the"evidence of the alleged oral confession is the main evidence against an accused, his denial that the confession was made may

involve a real risk that the issue at the

trial will effectively become whether the

police witnesses have combined in a criminal conspiracy to pervert the due administration of justice by perjury.

Now, Your Honours, our submission is that

clearly in Carr and Duke, this Court was dealing
with cases where the only evidence against the

accused was the confession and it was natural

accordingly that the Court should confine what it

had to say about directions to that situation, that

is, a situation in which the only evidence against

an accused is confession and there is no other

evidence of the accused's guilt. However, the
dicta, particularly those of Your Honour

Justice Deane, seem to acknowledge in so far as

Your Honour spoke of cases where the only

substantial evidence against an accused is a

disputed confession, seem to acknowledge that one

may have a case in which there is other evidence of

the accused's guilt but the confession remains

uncorroborated because there is nothing to confirm

that it was made.

This, of course, Your Honours, is a case where

there is some other evidence of the accused's

guilt, particularly that of Williamson and

Rossiter, against their claim of an alibi. But, in

our submission, that does not in any way
corroborate the fact that a confession was made by the applicant and it is that fact, standing alone,

which, we would submit, must be corroborated. In Duke, Your Honour Justice Deane was even a

little more specific about it. Reg v Duke is

reported in (1988) 62 ALJR 139. At page 145,

Your Honour Justice Deane, in a dissenting

judgment, said right towards the end of

Your Honour's judgment:

McKinney(2) 10 8/8/90

As has been seen, those circumstances -

meaning circumstances calling for a direction

include the unlawfulness of the applicant's

detention by the police, the admission in the

police evidence that the applicant desired to

see a solicitor, the complete absence of
corroboration of the police evidence of the
alleged confessional statement, the fact that
the police suspected or believed that the
applicant was guilty of the Adelaide offence
before they took him into custody and the
absence of any other significant evidence of

the applicant's guilt.

Now I take Your Honour there to have been

distinguishing between, on the one hand,

corroboration in the sense of other evidence of the

applicant's guilt and on the other hand, direct

corroboration that the confession was made.	They
are two separate matters.

TOOHEY J: Are you directing this present submission at the

admissibility of the confession or at the

directions that are to be given once the confession

has been admitted?

MR HIDDEN:  No, Your Honour. This application relates only

to the directions. The question of admissibility

was argued in the Court of Criminal Appeal, but it

has never been part of this application that the

court was in error in holding that the evidence was
admissible. Maybe it should have been,

Your Honours, but it has not been. This

application itself is concerned only with the

absence of adequate directions.

MASON CJ:  Now, what is the direction that you submit should

have been given?

MR HIDDEN: Well, Your Honours, for that may we take

Your Honours back to the transcript of the previous

argument - Your Honours, it could perhaps be done

even more neatly than that, indeed by reference to

the outline of argument. Your Honours, firstly, we

would submit the jury should have been warned that

confessional evidence may be unreliable, even if

the confession be signed. And in the particular

context of this case - if we may take Your Honours

to the outline, to paragraph 5 - the jury should

have been warned that to compare the evidence of

the police officers who are practised witnesses

with the unsworn statements of the accused is

dangerous - this matter was raised in Carr,

Your Honour; all these matters were raised in

Carr; that the police believed both applicants to

McKinney(2) 11 8/8/90

be guilty, and in the case of McKinney there was

evidence that they knew he had a criminal record;

that the confessional evidence, although it was

contained in a signed record of interview, was not

otherwise corroborated in any relevant respect.

And may we perhaps split that into two

matters, Your Honours - firstly, the making of the
confession was not itself corroborated apart from
the signature, and the other evidence in the case
was not capable of corroborating the guilt of the
applicant in any relevant way because the essence
of the Crown case was what happened at the house.

Whether they went there or not is one matter, but what the Crown had to prove was what happened at

the house. And whatever did happen at the house,

who was a party to what occurred? What was the
common purpose? What was the extent of it and who

was a party to it?

Now, the only evidence as to that, apart from

the evidence of Ms Milson and her daughter, the

only evidence of the implication of any of the

applicant's, or the extent of his implication,

arose from the confessional material.

Next, that the confessions were made while the

applicants were unlawfully detained and unlawfully
detained for a very lengthy period. Further, there
was no admission, of any relevance in any event, in
the record of interview which could not have been
fabricated by the police on the basis of the
material already available to them - and of course

because there was evidence, Your Honours, that both Ms Milson and her daughter and the other people who had been in the house had, on the very day of the

offence gone to Mt Druitt police station and made

statements to the police. And in the context of

this case, most particularly, the unusual

circumstance in respect of each applicant that two

other persons had confessed to solve complicity in the crime in a way similar to that in which he was

alleged to have confessed.

In other words, Your Honours, we submit that

His Honour was required specifically to draw those

matters to the jury's attention, and to say to the

jury, in the light of all those matters, you must

scrutinize the confessional evidence with great

care.

DAWSON J:	I take it that all those matters were referred to in the addresses?
MR HIDDEN:	Undoubtedly, Your Honour, yes.
DAWSON J:	At length?

McKinney(2) 12 8/8/90

MR HIDDEN:  Yes. Yes, they were, Your Honour. Our

submission is that His Honour ought to have given

the is weight of his judicial authority to the
caution which the jury must exercise in the light

of them.

TOOHEY J.:	Mr Hidden, at one point you said that there was sqme other evidence from which the accused's guilt
might be inferred - those were not your particular
words - but paragraph (c) on page 3 of the outline
asserts that:

The confessional evidence ..... was not

otherwise corroborated in any relevant

respect.

MR HIDDEN:	Yes.
TOOHEY J:	What is the reconciliation between those two

statements?

MR HIDDEN:  Your Honour, what I meant was this - indeed, in

the Court of Criminal Appeal the fact that the
confessional evidence was not corroborated in any

relevant respect was conceded by the Crown and

accepted by the court. But what I meant is this,

Your Honour; as I said, the only evidence as to

what exactly occurred in the house and, in

particular, as to what the involvement of any one

of the applicants was emanated from the

confessions, but to establish any of the crimes

charged that had to be proved.

The other evidence to which I refer,

Your Honours, is, as I say, the evidence of

Williamson and Rossiter, but contrary to the alibis

claimed by all of the three accused they were, in

fact, together on the morning of the offence, left

. together some time later from which the jury might

premises at Parramatta together and returned confessional evidence, that in the interim they had

the offences charged. gone together to the house at Dharruk and committed All I am saying, Your Honours, is that this is

not a case where there is no other evidence

whatsoever, apart from the confessions. There was

other evidence, but standing alone it got the Crown

nowhere. The confessions were essential to the

Crown case and a conviction was impossible without

them.

BRENNAN J: What is the circumstance which, in your

submission, requires a judge to lend the weight of

his authority to the submissions that have been

McKinney(2) 13 8/8/90

made from the bar table on the live issues of fact

before the jury?

MR HIDDEN:  The circumstance peculiar to this case,

Your Honour, or generally?

BRENNAN J: Well, I put it as more generally but certainly

so far as this case is ce,ncerned.

MR HIDDEN:	The circumstances peculiar to this case are those which we have just enumerated, Your Honour,
but we submit that the general circumstance which requires such a warning is the fact that courts,
that is judges and lawyers, know better than the
ordinary community that confessions can be
fabricated but can look pretty good, can look convincing.
BRENNAN J:	Well now, that is the proposition that needs

some analysis, is it not, in reference to what

judges and lawyers know, that signed confessions

are forgeries?

MR HIDDEN:  Your Honour, I cannot, off the top of my head,

think of any case where it was established that a
signature was a forgery, but.there are cases where
despite the genuineness of the signature the
confession was false and was the result of
pressure, and Richardson teaches us that, Condren

teaches us that.

BRENNAN J: So, it is a question then, there are three

issues are there not: was the confession made

before signature?

MR HIDDEN:	Yes.
BRENNAN J:	Was it signed?
MR HIDDEN:	Yes.
BRENNAN J: And was it true?
MR HIDDEN:	Yes.
BRENNAN J:	Now, what is the special knowledge that judges

and lawyers have about those three aspects?

MR HIDDEN:  Decided cases, Your Honour, such as Richardson

and Condren, and as my learned junior says,

inquiries of various kinds - reports of Law Reform

Commissions.

BRENNAN J: What was Condren, was it a case of a confession

never made, or a case of a confession made that was

false?

McKinney(2)	14	8/8/90
MR HIDDEN:	I suppose one would have to say, never made.	As

I understand it, Your Honour, Condren's case - this

actually appears a little better in the outline of

argument in this Court than it does in the Court of

Criminal Appeal's judgment. Condren's case was

that the police asked questions and then themselves

supplied the answers; that the answers were not

his; that they were typed on the document and

then, as a result of various kinds of pressure, he

signed it. There is no suggestion of a forgery in

Condren's case. Very similar, it would seem

Your Honours, to what was indeed found to have

happened in Richardson's case in England.

DAWSON J:  How exactly are you putting this, Mr Hidden? You

are not saying that there is a rule of law in these circumstances the judge should give a direction, or are you saying that it is a matter of practice, in

this case it resulted in a miscarriage, not to

observe the rule of practice or are you just

saying, in this case, in its own peculiar
circumstances failure to give a direction resulted

in miscarriage.

MR HIDDEN:  Your Honour, we do not feel that we can submit

that there is a rule of law or even, indeed, any

i~variable rule of practice, in the light of the

views of the majority of this Court in both Carr

and Duke, which are firmly set against such a

proposition. But we certainly do say that this was

a case in which a direction was called for, just as

it was recognized that Carr was a case in which a

direction was called for, even though there may be

no rule of law or practice requiring it.

McHUGH J:  I thought we convened a bench of seven in this

case.

MR HIDDEN:  I will have another look at it.

MASON CJ:  Yes. You were confronted in the course of

argument on the last occasion with Duke.

MR HIDDEN:  Yes.

MASON CJ: And that your problem was to overcome Duke,

because Duke seemed, in effect, to be a worse case

than this one and yet the court said, "No direction

was required" .

MR HIDDEN: Very well, Your Honour, we are being -

MASON CJ:  Now it was in the light of that that we convened

this Court of seven.

MR HIDDEN:  That being so, Your Honour, we are being unduly

timorous.

McKinney(2) 15 8/8/90

MASON CJ:  I must say that that impression had been conveyed

to you by you earlier in the argument, I thought.

I think you ought to face up to it.

MR HIDDEN:  Yes, thank you, Your Honour. Well, that being

so, our primary submission is that confessional

evidence, generally, ought be the subject of a

warning. The nature of the warning will to some

extent vary with the facts of the case, but

confessional evidence, we would submit, has been

shown by the contemporary experience of courts and

the results of inquiries and reports and the

like -

DAWSON J: As a rule of law, as a rule of practice, or just

in individual case dependent on the facts?

MR HIDDEN:  As a rule of law, Your Honour. Confessional

evidence has been shown to be evidence carrying

with it peculiar dangers, perhaps similar to that

which has long been recognized in respect of

identification evidence.

DAWSON J: What if it is accompanied by a tape recording -

or is in the form of tape recording?

MR HIDDEN: That may solve the problem, Your Honour, but we

would, and indeed -

DAWSON J:  In other words it may be reliable in certain

circumstances?

MR HIDDEN:	Yes.
MR HIDDEN:	Yes.  Your Honour, we do not feel it necessary

to submit at this stage that even tape recorded

confessions ought to be the subject of a particular

warning but we certainly do submit that

confessional evidence recorded otherwise than by

mechanical means ought invariably to be the subject

of a warning of the danger of fabrication.

DAWSON J:  I was just going to say you have got some support

in the law of Victoria for that where, as a general
rule, confessions are excluded unless they are the

subject of a tape recording or can be confirmed by

a tape recording later on.

MR HIDDEN:  Indeed so, Your Honour. Whether we will get to

the stage of confessions being excluded in the
absence of them, again, is perhaps a matter which

it is not necessary to decide.

DAWSON J: Well, that is a matter of statute in that State.

MR HIDDEN:  Yes. One would imagine, however, Your Honour,

that once, if there is as is anticipated or as is

McKinney(2) 16 8/8/90

hoped for, statute law requiring the tape recording

or video taping of confessions in New South Wales,

it will be accompanied by a provision that the

evidence which is not tape recorded or video taped

will be inadmissible.

BRENNAN J:  To make good your proposition, is it correct to

say that you must, I suppose, convince this Court

that judicial experience is such that confessional

evidence is more likely than would be appreciated

by the ordinary juror to be effected by either

forgery or procured by force or to be fabricated

than the ordinary juror would appreciate?

MR HIDDEN: Yes, Your Honour, that is so and we submit it is

inherent - - -

BRENNAN J: Is there anything more for you to say, or that

you can say, apart from the fact that that is the
proposition that you advance, you tender in support

of it the three cases that you have identified here

and you say to this Court, "Well, do Your Honours

understand that to be the case or not?"?

MR HIDDEN:  I suppose so, Your Honour, except that while

this Court I do not believe has looked specifically

at the question of signed confessions this Court

has certainly on a number of occasions -including

Carr and Duke and cases preceding it -recognized

the potential unreliability of confessions which
are not contained in signed documents and the

danger that a jury will not understand the

potential unreliability in the way that judges and

lawyers do.

BRENNAN J:  Now, should we, perhaps, conceive of these

problems as related peculiarly to New South Wales

and base ourselves on what we assume to be the New

South Wales experience?

MR HIDDEN:  No, Your Honour.

BRENNAN J: Then, what is there to demonstrate that

Australia wide judicial experiences of the kind

that you have indicated?

MR HIDDEN:  Your Honour, we have referred only to Condren in

Queensland and, of course, to Richardson in England

which, we would submit, suggests that the problem

is, indeed, widespread, almost world-wide, I

suppose, but we do not have, Your Honour, specific

cases from other States, apart from Queensland, where it has been shown that signed confessions were false.

TOOHEY J:  I have not read Condren, Mr Hidden, but does it

go so far as to conclude that the confession was

McKinney(2) 17 8/8/90

false or does it go no further than to say that in

all the circumstances, including the evidence of

witnesses who had not been heard at the trial, it

would be unsafe to uphold the verdict of guilty?

MR HIDDEN:  I would think the latter, Your Honour.

Mr Justice Thomas - that is inherent, indeed, in the consequential order made. Mr Justice Thomas

certainly was of the view that a verdict of

acquittal ought to be entered. But the majority of

the court were of the view that it was a new trial
point, that a fresh jury should pass upon the whole

of the evidence.

TOOHEY J:  I am just not clear what you are suggesting that

Condren is authority for?

MR HIDDEN:	I am sorry, Your Honour, that the - - -?
TOOHEY J:	I am just not clear what Condren is said to be

authority for in the context of the present
application or is it merely illustrative of the

problem that can arise in regard to verdicts of

guilty where confessions are involved.

MR HIDDEN:  It is illustrative of the problem, Your Honour,

but it certainly is authority for the proposition

that convictions based upon signed confessions may

be unsafe.

MASON CJ: But, Mr Hidden, surely your broad proposition is

that there is an inherent danger in convicting on

uncorroborated evidence and that inherent danger

requires the judge or calls for the jury's

attention to be directed to that.

MR HIDDEN: Precisely, Your Honour.

MASON CJ: And that as a matter of fairness to the accused

such a direction ought to be given. We are not surely concerned with whether or not judges and lawyers know more about these risks than the

whether or not there is a greater risk in New South average juror would; nor are we concerned with Wales of police misconduct than there is elsewhere.

MR HIDDEN: Yes, Your Honour. With respect, Your Honour,

that is our submission. The reference to judges

and lawyers is that judges and lawyers are aware of

the inherent danger, juries may not be. That is

why the direction is called for. And, indeed,

Your Honour, we would submit that the direction

ought be given even if there is corroboration in

the sense of other evidence of the guilt of the
accused because confessions still tend to loom

large even when there is other evidence of the

guilt of the accused. And, as is well known,

McKinney(2) 18 8/8/90

Your Honours, an accused may be guilty but may yet

not have confessed.

McHUGH J: But how far do you take this argument about

inherent dangers? There are inherent dangers in

accepting almost all forms of evidence,

particularly oral testimony, human recollection is

very fallible, no one suggests that you have got to

give a jury a direction that there is inherent

danger in oral testimony, do they?

MR HIDDEN:  No, Your Honour, but that is more within the

experience of ordinary people. Ordinary people every day of the week deal with other people's

recollections.

McHUGH J: That means you come back to your proposition

then, that judges and lawyers do have greater

knowledge than ordinary people, and if so, what is

the authority for that proposition?

MR HIDDEN: Well, Your Honour, it has been recognized by

this Court. If Your Honours will bear with me a

moment while I find the particular passage I was

seeking. In argument, of course, in Carr,

Your Honours, and it appears in the introduction to

the judgments, Mr Kable referred to a number of

reports about confessional evidence - - -

McHUGH J: Yes, well there is the Beech Report, the Murray

Report, and the Mitchell Report, the Crawford

Report, the Lucas Report, there are a lot of

reports that establish these things.

MR HIDDEN: All of which stack up.

McHUGH J: But what about the other side of the coin? To

round the matter off should the judge not also

instruct the jury that many people who confess
later untruthfully repudiate their confessions;

that experience shows that to be the fact as well?

MR HIDDEN:

Maybe, Your Honour. I suppose that is a matter

more within the knowledge of the general community,

but - - -

BRENNAN J:  I do not know about that. It may be that judges

are able to identify with some precision the

circumstances that give rise to repudiations.

MR HIDDEN:  If Your Honours will forgive me, there is a

particular passage in Carr - - -

DEANE J:  Why need you go beyond the case where the conduct

of the prosecution has given rise to the inherent

danger of fabrication by either not having adequate

means of mechanical corroboration which are readily

C1T32.TPF	19	8/8/90
McKinney(2)

available, or by illegally imprisoning somebody in

custody who should not have been imprisoned, or

whatever be the circumstances? I mean, I do not

follow why you are setting out on this high, wide

and handsome attack on every confession.

MR HIDDEN:	Yes. Yes, indeed, Your Honour, it may be but the principle might be expressed in the way in
which -

DEANE J:  Do not agree with me. You may want to keep it as

a fall-back position, I do not know.

MR HIDDEN:  Yes. I suppose the reason for the high wide and

handsome approach, Your Honour, is the fact as we

said earlier, that fabricated confessions can look

convincing. That, in a sense, is the basal

problem. If police are armed with sufficient

information about how an offence was committed,

they are able to, if so minded, fashion admissions

which have an apparent colloquial spontaneity about

them and look like the words the accused might have

used. It is easily done. At first flush it looks

convincing; it looks natural; it looks

unaffected. That is the difficulty Your Honour,

and to that extent we would submit that the jury

ought to be warned in respect of any disputed confession, even if it is unattended by other

factors such as undue pressure or unlawful

detention. The need for the warning, however,

Your Honours, is heightened where those factors are

present.

MASON CJ:  Mr Hidden, it may be convenient to adjourn now

and give thought in the meantime to how you are

going to present the balance of the argument.	We
will resume at 2.15.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM: 

MASON CJ: Yes, Mr Hidden?

MR HIDDEN: If the Court pleases. Your Honours, our

submission is this: that in every case in which the

Crown relies upon confessional evidence of whatever
kind, the jury ought be warned to exercise caution
before accepting that evidence unless they, the
jury, find that there is independent verification

of the fact that it was made and the circumstances

ClT32.TPF	20	8/8/90
McKinney(2)

in which it was made. That verification may

consist of a tape recording or a video tape or,

perhaps, some independent person being present
while the confession is made but we submit that it

ought be left to the jury to determine whether

there is that independent verification and what

. weight to give to it.

Condren is an interesting example of the fact that it seems even though a person independent of

the police was present at the confession, none the

less there was sufficient disquiet about it in the

light of the fresh evidence for the Court of

Criminal Appeal to set his conviction aside.	It is
for that reason, we submit, that the direction

ought be in general terms and it ought be left to

the jury to determine whether there is independent

verification and if so, what weight is given to it.

We submit that the judge ought go on and give

reasons for the warning which would be general to

any case. Firstly, that in the absence of any

independent verification, the jury should bear in

mind that the fabrication of a confession is easy

and to rebut it is difficult. The jury ought be

warned against over-estimating the probative value

of confessional material. The jury ought be warned

that interrogating police are necessarily in a

position of superiority over the accused and that,

to use the words of Your Honour the Chief Justice

from Van der Heer, there is a compelling aura about

interrogation in a police station. The jury ought

be warned, drawing from the then Chief Justice in

Driscoll, that there is a temptation for police to fabricate confessional evidence. Rather,

Your Honours, those are general matters which ought

be given as reasons for the warning .

The individual case may then call for

additional matters to be raised as part of the

warning. Unlawful detention.may be one of them.

The respective demeanour of the police witnesses,

on the one hand, and the accused may be one of

them. One would think they generally would be but,

I suppose if, for example, the accused were himself

a former serving police officer, his demeanour in

the witness box may be as impressive as those
giving evidence against him but one would imagine,
generally speaking, there would be a marked
difference between the demeanour of the police

witnesses and the accused in his evidence or in his

unsworn statement.

Your Honours, we submit that such a warning ought be given whether or not there is other

evidence in the case implicating the accused.	As
we apprehend it, Your Honours, it is now well

ClT32.TPF	21	8/8/90
McKinney(2)

settled that a warning ought be given about

identification evidence, for example, and that
warning ought to be given whether or not there is

other evidence implicating the accused. The fact of other evidence implicating the accused and the weight of it may bear on the question whether, at the appellate level, the failure to give a warning

has caused a substantial miscarriage of justice but

the fact that there is other evidence in the case,

we would submit, does not relieve the judge of

giving the warning in identification cases and

should not relieve the judge of giving such a

warning in confessional cases.

Your Honours, it may be unnecessary but may we

briefly refer back to some of the decisions of this

Court on the basis of which we make our submission?

We have already referred to the fact that even the

presence of an independent witness may not render

the confession reliable - and Condren is an example

of that. As far as the question of the ease of

fabrication and the difficulty of rebuttal, might

we refer Your Honours to some passages from the

judgment of Your Honour Justice Gaudron in Carr,

165 CLR 343, about the middle of the page, where

Your Honour said:

The possibility that a conviction may be based

on fabricated confessional material renders it

necessary, in the interest of justice, that

disputed confessional evidence be treated

somewhat differently from other disputed

evidentiary material. That necessity will

endure until reliable means are adopted which,

in the words of Lawton LJ in Turner v Reg make

confessional material "difficult either to

challenge or to concoct". The confirmation of

the existence of a record of interview by a

police officer not associated with the

investigation does not serve that function,

particularly if, as in the present case, that

officer is attached to the same station as the

investigating police.

It is inevitable and proper that the

question of fabrication should be determined
by a jury. But given the formidable task
undertaken by an accused person in challenging

confessional material, it is, I think, necessary that the jury be assisted by appropriate warning as to the dangers of

convicting on disputed confessional evidence

emanating from police officers if there is any

matter (other than the mere fact that the
material is disputed) which either directly or
indirectly calls the reliability of the
confessional material into question.

C1T32.TPF	22	8/8/90
McKinney(2)

Your Honours, for the purpose of this submission,

our submission, of course, goes a little further

that the warning which we have suggested ought be

given in any case, in every case, not only in cases

where there is something about the evidence in the

particular case calling the material into question.

That is, in any case where there is confessional

material which is disputed.

Your Honours, my learned junior reminds me

that a little earlier, at page 343, Your Honour

Justice Gaudron said:

The possibility that a person may be

convicted on confessional material fabricated

by police officers is odious and frightening. Yet it is a possibility that must be accepted once it is acknowledged that confessional

material may be fabricated and that an accused

person faces an inherently difficult task in

having a jury accept that possibility.

It is for that reason, Your Honour, we submit, that the warning ought contain an admonition to the jury not to give undue weight to confessional material.

Your Honours, as to the temptation of police officers to fabricate confessions, that,

Your Honours, we draw from the remarks of the then

Chief Justice Sir Harry Gibbs in Driscoll v Reg,

137 CLR 539. In the first complete paragraph,

His Honour said:

A jury called upon to decide whether an

oral confession has been made in response to

police questioning often faces a difficult

task. It is very common for an accused person

to deny that he made an oral confession which

police witnesses swear that he made. The

accused has an obvious motive to claim that

police testimony of this kind is false -

as, indeed, Your Honour Mr Justice McHugh

acknowledged earlier: 

On the other hand it would be unreal to

imagine that every police officer in every

case is too scrupulous to succumb to the

temptation to attempt to secure the conviction

of a person whom he believes to be guilty by

saying that he has confessed to the crime with

which he is charged when in fact he has not

done so.

Your Honours, in, if we may take Your Honours

briefly to Van de Meer v Reg, which was, of course,

a case concerned with admissibility of confessional

ClT32.TPF	23	8/8/90
McKinney(2)

evidence. That, Your Honours, is reported in

(1988) 62 ALJR 656. Now there, Your Honour the

Chief Justice and Your Honour Justice Deane had

some extremely firm remarks to make about the

propriety, or the necessity for propriety, on the
part of police in dealing with suspects. But, in

particular, Your Honour the Chief Justice referred

to the vulnerability of a suspect in a police

questioning situation. And, at page 660, second

column, just below C, Your Honours said:

At any time interrogation at a police station

has a compelling aura about it.

And we would submit, Your Honours, that is the case

no matter who the suspect is, whether the suspect

be a sophisticated member of society, or an

uneducated illiterate man from the lower social

echelons.

So, Your Honour, in short that is our

submission as to the warning which we would submit

ought be given. Also, by way of background,

Your Honours, we would respectfully adopt the

remarks of Your Honour Justice Deane again in

Carr v Reg, mindful of the fact that Your Honour

was, at this stage, in dissent, at page 335 of the

report, where Your Honour referred to the
dissenting judgment in the Court of Criminal Appeal

of Mr Justice Neasey, who had said that:

the particular circumstances of the case were

such that -

a warning was called for. And, in about the middle

of the page Your Honour said:

For my part, I would go further and recognize

a prima facie requirement that such specific

directions be given in any case where the

prosecution relies upon police evidence of

disputed oral admissions allegedly made while

the accused was under interrogation while in

police custody and where the actual making of

the admissions is unsupported by video or

audio tapes, by some written verification by

the accused, or by the evidence of some
non-police witnesses.

Now, Your Honours, it is our submission that indeed

courts ought go a little further; that the warning

ought be given even though the confession is

signed, even though there is written verification

that that extent, and we submit that Richardson,

Condren and Williams and Brewert are eloquent of

that necessity.

C1T32.TPF	24	8/8/90
McKinney(2)

Your Honours, that is our submission as to the

warning which ought be given and our submission as

to the effect of the warning which ought to have

been given in this case, that is, the general

warning which we have envisaged, plus a warning

based upon the peculiar circumstances of the case

which we have earlier enumerated. Certainly, if

Your Honours were of the view that a general rule

that such a warning ought be given, is not the law,

we would certainly submit that a warning of that

nature was called for in this case and we would

submit that as a matter of practice, if it is not

the law that a warning ought always be given; trial

judges ought to have regard to all those factors in

determining whether a warning be given or not.

What is significant, of course, Your Honours,

is that since this trial, which is the subject of

this application, Carr and Duke have been decided,

and in the course of them, this Court has

identified a number of factors which go to the

question whether a warning ought be given. This

Court had never before looked with such

particularity at the problems relating to

confessional evidence which call for a warning; it

now has, and that has all happened since my learned junior appeared in this trial which brings us here.

BRENNAN J:  Mr Hidden, what does a judge do if, accepting

your submission, he gives this warning which this

Court solemnly declares to be the law of this country and then, having regard to the facts of the case, there are factors which look as though the confession is entirely true and thoroughly reliable

in the ~ense that there is somebody who is brought
in to witness the signature; there is the signature

there; not the slightest cross-examination to

suggest that the words were not used or the
signature was not genuine, and perhaps even no

cross-examination on the proposition that when the

police sergeant presented himself at his house that

morning he had said, "Glad you are here, Sergeant,

I was wondering how long it would take you to get
here"?	Now what does a judge say to the jury in a

case like that?

MR HIDDEN: Well, Your Honour, our submission is posited

upon the assumption that the confessional evidence

is disputed. If it is, then one would trust that

there would have been cross-examination such as

that suggested by Your Honour, but in the absence

of it, then, in our submission, the judge still

gives the warning, but then makes such comment as

he or she may see fit, about the way in which the

trial was conducted. Your Honours, in our

submission it is no different from the old rule, or

certainly in New South Wales the old rule, about a

ClT32.TPF	25	8/8/90
McKinney(2)

corroboration direction in sexual cases. Judges

always gave it, but having given it, none the less,

there may be a great deal of corroborative evidence
to which the judge would then refer and the judge

may see fit within the limits of his or her

discretion to makes comments about the weight of

that evidence. But the warning was given none the

less.

BRENNAN J:  The difficulty, it seems to me, is to lay down,

on your argument, a proposition of law which is

going to put, to that extent, a further yoke upon

the shoulders of trial judges and yet not to be able

to tell them what they are to do in a given case.

If you do not get it right the appeal will be

allowed but we are not going to tell you how to deal

with this case·because we cannot.

MR HIDDEN:	With respect, Your Honour, if the judge did not give the warning in circumstances where this Court
held he should, the appeal may yet not be allowed because the standard form proviso might be applied
in such a case.
BRENNAN J:	Not if it is a question of law.
MR HIDDEN:	If the Court of Criminal Appeal were of the view

that the evidence was overwhelming - - -

MASON CJ:  I would have thought your response might be

modelled along the lines of what Justice Deane had

to say in Carr that you could enunciate it as a

prima facie general rule and, if so, it can adjust

itself to the circumstances of the particular case.

MR HIDDEN:  Yes. Well, Your Honour, we would certainly

accept that as a fall-back position. Maybe this

Court should go no further than that. In a sense,

Your Honours, I suppose it is that we are referring

to when we said if this Court were not prepared to

enunciate a rule of law concerning the warning,

none the less trail judges ·ought, in every case,

enumerated and which this Court has recently	have regard to all the factors which we have
enumerated in determining whether or not to give a
warning, because the difficulty was, at the time
this trial was conducted, we do not believe,
Your Honours, that the trial judges gave any
thought whatsoever to the need for a warning about
confessional evidence in cases.

One may, one may not, in one case or the

other, but no organized thought was given to the

matter and certainly, Your Honours, it may be that

this Court should not go beyond saying, as

Your Honour suggests, that there is a prima facie

requirement for a warning and that at the very

C1T32.TPF	26	8/8/90
McKinney(2)

least in every case trial judges ought consider the

factors which we have enumerated in determining

whether a warning shall be given or not. At least

the matter can be argued with those factors in

mind.

We do submit, Your Honours, that to require

that a warning be given in every case would not
unduly burden trial judges. It is not as if it is
a difficult warning to give and it would not unduly

fetter courts of criminal appeal because while the

absence of the warning would be an error of law if

this Court were of the view that it ought always be

given, the fact remains in any instant case it was

still open to a court of appeal to say, "However,

in view of the overwhelming evidence in this case,

we are satisfied there is no substantial

miscarriage of justice occasioned by the absence of
the warning and the appeal will accordingly be
dismissed", consistent with the principles this

Court enunciated in Wilde as to the proviso to the

criminal appeal Acts. It is not as if in every

case where the warning was not given the conviction

would have to be set aside, we would submit.

BRENNAN J:  In any of the inquiries that have been

conducted, has the suggestion or the remedy for

police misfeasance ever been proposed to be a

direction required of trial judges with respect to

confessions?

MR HIDDEN:	Not to my knowledge, however, I do believe - Your Honours, my learned friend, Mr Byrne, is
equipped with some of the inquiries.
Your Honours, I understand and I think Mr Byrne
would be able to take Your Honours precisely to the reference. Not in the way in which Your Honour expressed it, but certainly the Australian Law Reform Commission did suggest that in the case of
unsigned confessions a warning ought always be
given as one of its recommendations. Your Honours,
those are our submissions, ·if the Court pleases.

MASON CJ:  Thank you, Mr Hidden. Yes, Mr Byrne. Do you

have an outline of argument separate from the one

that was presented on the last occasion by

Mr Hidden?

MR BYRNE:  No, I do not, Your Honour. If I can go

directly, Your Honour, to that point

Justice Brennan just raised, in the Australian Law

Reform Commission's Report on Evidence, which was

published in 1985, it was proposed there that there

should be established various categories of

evidence in which a warning should be given.	If I
can refer Your Honours to - - -

McKinney(2) 27 8/8/90

BRENNAN J:	Is this the interim report or No 26 or No 38?
MR BYRNE:	Your Honours, in interim report No 26 the issue

was dealt with at paragraphs 1015 to 1020 and it

was there proposed that there should be a broad
range of categories of evidence which would require

a warning to be given by the trial judge and

amongst those categories was included - and I quote

from paragraph 1017, at about half-way down:

evidence in the form of unsigned records of

interview.

That proposal by the Australian Law Reform

Commission was also reflected in the draft

legislation which, Your Honours, accompanied the
final report which is report No 38 which was issued

in 1987, and in particular I refer Your Honours to

clause 140 of that draft legislation where -
without reading it in detail - the proposal which
was contained in the commission's interim report

was enacted in the draft legislation.

Your Honours, if I might just go briefly to

add some specific matters that are relevant in the

matter of the applicant, Mr Judge, I would adopt on

his behalf what has been said by Mr Hidden, but

there is one matter, if I might deal with it as a
preliminary matter: it is apparent from the
evidence which was presented in the case that the

jury could not have attached a great deal of weight

to the evidence of the witnesses Rossiter and

Williamson to whom Mr Hidden has referred.

It was apparent that in the evidence of

Williamson the accused person, Mr De Cressac, had confessed his guilt to her, she being at that time a woman who was described as his girl friend, but the jury nevertheless acquitted Mr De Cressac.

There was evidence against Mr Judge provided by

both the witness Rossiter and Williamson, but there

was, in my submission, a reasonable conclusion from

the totality of the evidence in the trial that in

the case of Mr Judge the jury had placed great

weight on the police evidence.

Your Honours, the general reasons why a

warning has been required in other cases, whether

that be a warning in the nature of a corroboration

warning in the traditional categories of evidence

or a warning such as is required now in cases of

identification, the general factors have been

outlined by Mr Hidden - it would be my submission

that those general factors that apply in those

other cases apply equally in the case of

confessional evidence and that it can in many

McKinney(2) 28 8/8/90

senses be said to be analogous with the position of

identification evidence.

If I can just say one thing about the reasons

why the warnings should be given and take

Your Honours briefly to the judgment of this Court

in Bromley and, in particular, to the judgment of

Justice Brennan in that case.	Bromley was reported
in 161 CLR at page 315.	As Your Honours may

recall, it was a case which dealt with the need for

a warning in the case of a witness who was

suffering from an intellectual impairment and refer

in particular to pages 324 and l25 in the judgment
of Justice Brennan and note that in that judgment

His Honour cited three specific reasons why it was

necessary to give a warning. Firstly, it was

partly because of the inherent dangers involved in

that category of evidence; secondly, the fact that

the danger inherent was not necessarily obvious to

a lay mind; and the third matter - those two

matters have been referred to by Mr Hidden but the

third matter, in my submission, is a matter of

particular importance in the context of this case

and it appears at page 325 at about point 8 where

Justice Brennan said:

It may be that the circumstances will require

some caution to be given - not because of a

particular rule of practice affecting

witnesses suffering from some form of mental
disorder but because a warning is necessary to

put the defence case fully and fairly.

In my submission, Your Honours, the same

observation can legitimately be applied to the

circumstances of this particular case.

Your Honours, if I can just go briefly back to

the recommendations made by the Australian Law

Reform Commission in relation to categories of

evidence in which a warning is required and note

that the commission recommended, so far as the

should be, firstly, a warning of the possible	nature of the warning is concerned, that there
unreliability of the evidence; secondly an
explanation as to why that evidence was possibly
unreliable; and, thirdly, a warning of the need
for caution in determining, firstly, whether it should be accepted and, secondly, what weight the
jury might reasonably attach to it.

In addition to that and in addition to what

Mr Hidden has submitted to this Court, it would be my submission that a warning of the kind described

should draw attention to the specific matters which

might affect the reliability of the evidence

concerned.

McKinney(2) 8/8/90

matter that Mr Hidden addressed Your Honours in Your Honours, if I can just add something to a

relation to, the circumstances why a warning was

required in this case, and simply add to the

reasons that he put before the Court one which is
concerned only with the case of the applicant,

Mr Judge, in his case there was an explanation put

before the court in his unsworn statement as to why

he would have signed a document even though it did

not contain, as he put it, a true record of the

conversation that had occurred between him and the

police. The explanation that he put forward was

that he had been threatened that if he did not sign

it - putting it perhaps colloquially - the police

would in some way get his family.

There was evidence before the court,

Your Honours, that Mr Judge's father was a person who, in fact, was on parole or on a bond at the

time and had previously served, I think, a sentence

of nine years for armed robbery. That is a

particular matter of importance in his case. It

did not apply to the other accused because they did

not raise that matter but it is coincidentally a

matter which was put forward by one of those people

who were involved in the case of Richardson. They

had signed a confession which they later claimed to

be untrue and in one case a handwritten confession

on the basis that threats were made to them that

their families would suffer if they did not
co-operate.

Your Honours, in my submission, the fact of the signature in this case as being a matter which,

in some sense, goes to support the truth or the

correctness of the interview, or the record of the
interview had between the police and the applicant,

is of less compelling weight because of the other

circumstances in this case which again have been

referred to by Mr Hidden. Those other

circumstances, in my submission, are circumstances

which were such as to require a warning by the

dangers of relying on confessional evidence and of	learned trial judge to the jury of the general
the specific dangers that were apparent in this
particular case.

DEANE J: Mr Byrne, one of the relevant things, if your

submissions were to succeed, must be that it has

now been demonstrated that mechanical means can

readily be used to remove most of the dangers

involved in confessions while people are held

isolated in custody. If that is so, may it not be

that the position now, in that regard, is or has

been developing all the time and is now somewhat

different to that which existed in 1987?

McKinney(2) 30 8/8/90

MR BYRNE: Well, I do not know, Your Honour, that that is

the situation in New South Wales. I cannot speak

with any authority of the other States but my

understanding of the other States is that all

States, except Western Australia and New South

Wales, have instituted a system of electronic recording of interviews between police and

suspected persons.

DAWSON J:	Not only that, in Victoria confession is not admissible unless there is a tape recording or unless it is - - -
MR BYRNE:	Yes - there are exceptional circumstances, I

think. There is a rider but, as I understand it,

that legislation was proclaimed in 1989.

DAWSON J: It has been in force for some little time.

MR BYRNE:  Yes. I am reminded, Your Honours, that we do

have copies of that Victorian legislation to which,

Your Honour Justice Dawson has referred, if you

would wish me to hand that material up.

Your Honours, if I might just say in

conclusion, in my submission, the most important

aspect of this case which required - indeed in my

submission, it could be put higher than that - it

demanded some observation by the learned trial

judge was that in this particular case there was

evidence before the jury that the confession said

to have been made by Mr Judge was contradicted by

two other alleged confessions, only one of which

was before the jury as an exhibit in its entirety,

but there was evidence of the fact of another

person having admitted to the offence. Those

circumstances, in my submission, as I put it, with

respect, demanded that the jury's attention should be directed towards examining the evidence said to

have been obtained in the police station, and

demanded a direction from the judge that the jury

should analyse that evidence particularly carefully

before acting upon it.

The result of the trial is, of course,

conclusive of the fact that the jury did act upon it but, in my submission, in the circumstances of

this case there is a real risk that they may well

have acted upon it without giving it the scrutiny

that it properly deserved.

Your Honours, in answer to the question Your

Honour Justice Deane put to me earlier, Your Honour

is inquiring as to whether in 1987 when this

interrogation and trial were conducted that at that

stage there was no move afoot for the introduction

of a system of electronic recording of police

McKinney(2) 31 8/8/90

interviews. It was clear, Your Honour, that in

1975 the Australian Law Reform Commission had

recommended in emphatic terms really, that such a

system should be introduced, and that the

admissibility of evidence of that kind should be

dependent upon the use of the kind of mechanical
devices spoken of. Since that report in 1975 there

were a number of reports, some of them in New South

Wales itself which preceded the interrogation and

trial of this matter which made the same

recommendations. But as far as I am aware they

have not yet been acted upon. There is certainly

no implementation of such a scheme on a general

scale in New South Wales.

DEANE J:  Can I ask you - no doubt we were told this last

time - was any request for further direction or

relevant request for further direction made of the

trial judge in relation to the confessional

material?

MR BYRNE:  There was, Your Honour, yes. The application for

further directions was largely put by Mr Flood who

appeared for Mr McKinney at the trial. Counsel

representing Mr Judge adopted Mr Flood's

submissions in that regard.	May it please the
Court.

MASON CJ: Thank you, Mr Byrne. Yes, Mr Howie.

MR HOWIE: Might I might hand up to Your Honours some copies

of the outline. Much of that outline has been
covered in matters that have gone on. Might I

first indicate the situation in New South Wales in

relation to electronic recording of interviews as

it has been raised by Your Honour Mr Justice Deane.

The situation is that there is an

implementation timetable in existence - I have

copies of it if Your Honours wish - of the

implementation of video recording in New South
Wales.	The funds have now been finally made

available by the government to the police and

prosecuting authorities in order to implement such

a system and, as I say, a timetable has finally

been drawn up to commence on 22 October 1990, and

hopefully within two years to completely fit out

every police station throughout New South Wales

with video and audio recording. That is the

present situation.

MASON CJ: That is going to start implementation on

22 October, is it?

McKinney(2)	32	8/8/90
MR HOWIE:	Yes. That is apparently for the first police station in the Sydney region.	It is a matter of -

the problem has been in New South Wales, as

Your Honour would, perhaps, be not unaware of

resources and the proper availability of resources

by the government and the difficulty, of course, in

New South Wales has always been the problem of

fitting out every police station of the necessary

changes to many of the police stations which are

national trusts and the wide distances in many of

the police stations throughout New South Wales. I

know New South Wales is not alone in that, but what
has been looked at doing in New South Wales is not
just doing it in a piecemeal situation but going

throughout on a complete system throughout the

whole of the State to implement such a system and

it has gone - at this stage it has been determined

that the one shall be video recording and so, at

least, is in process. So, Mr Justice Deane,

nothing has changed dramatically in a real sense

since 1987 except that finally the money is

available and the implementation is about to be put

into progress.

DAWSON J: Were you going to hand up the

implementation -

MR HOWIE:	Yes, I will do so. There is an implementation committee, of course, who have drawn this up from
police, the Attorney-General's Department, the Director of Public Prosecutions. Major problems
have been involved in transcription - I know Queensland is having difficulty in transcripts and
budgetary allowances have been made for all of
those things including transcription which is one
of the most expensive.

MASON CJ: As a matter of interest, what is number 3?

MR HOWIE:	Internal police security unit - investigation of the police. I just thought I would bring
Your Honours up to date with that.

The Crown would say that the majority in Carr
is correct and should be applied.	One of the

difficulties, really, with confessions is knowing

what it is that will enliven the court to give the

particular warning that my friend has suggested

that the court should give in cases of confessions.

Is it the fact that it is a confession? Is it the
fact that it is a confession to police? Is it a
fact that it is the confession to police in

custody? Is it the fact that it is a confession to

police in custody and there is no other

corroboration? It is the difficulty of knowing

what it is about confessions which will enliven the

necessity of a court to give a warning to the jury

McKinney(2) 33 8/8/90

about the reliability or otherwise of the
confession. For example, there are many
confessions which do not occur to police;

confessions which can occur to members of the

family - that is not unknown - and have been relied

upon and have been disputed.

There have been confessions - it does not

take much to imagine various confessions which are

not to police and which are not subject to that

sort of criticism that can be made of police and,

perhaps, the pull on police to obtain a confession

if they believe somebody is guilty.

Therefore, it is difficult, the Crown would

say, to realize or to point the finger at what it

is that will enliven such a requirement for a

judicial warning being given to a jury in a

particular case. Some Justices in Duke, of course,

thought it was the fact of unlawful detention

itself - Your Honour Mr Justice Deane was of that

view. The Crown's attitude to that is that that

really can be taken care of by the discretion under

Bunning v Cross to - if it is unfair because of

unlawful detention or if it is unfair, perhaps,

where there is video and tape recording available and not used by the police without any reasonable

explanation for that, that the court could, in the

exercise of its discretion, reject that evidence

and, therefore, achieve the same end, as it were,

that -

GAUDRON J: And deprive the jury of its fundamental

function. It does not really seem satisfactory,

does it, Mr Howie? It is an unfair - I mean, I

take it from what you are saying is that we can

extend unfairness. It is quite different

questions.

MR HOWIE:  The only question, we would suggest, that arises

from a confession obtained by unlawful detention is

one of unfairness. There is nothing, we would

suggest, in unlawfulness of a detention which makes

the confession unreliable apart from the fact that the unlawfulness of the detention may reflect upon the police and their credibility which was a matter

which exercised His Honour's mind and which

His Honour gave lengthy directions to this jury on.

In other words, one of the problems in this case

was whether or not the police acted unlawfully -not
whether they acted unlawfully in detaining these

people because the Crown conceded that but the

question of whether or not the police knew they

were acting unlawfully and that was one of the

matters which took up a lot of the voir dire before

His Honour and was one of the considerations of

His Honour in not rejecting the evidence in this

McKinney(2) 8/8/90

case was on the basis that he accepted that the

police misunderstood the law, as it existed before

Williams, and misunderstood their rights in

relation to the questioning of people.

Now, that was His Honour's finding of fact

about that, but His Honour left it to the jury by

numerous directions, that if the jury came to the

view that the police, in this case, were aware that

they were breaching the law, and he used the word

"thumbing their nose" at the commissioner's

directions, "thumbing their nose" at what the law

was, then that was a matter they could take into

account in determining whether or not the

confessions were made because it attacked the
police's credibility, because if they were prepared

to unlawfully detain somebody they may well be

prepared to fabricate a confession by them.

His Honour went on, though, and this is

perhaps the only other point - sorry, getting back

to unlawful detention - there is nothing, we would

submit, that in the unlawfulness of detention,

apart from the relevance it may have to the

credibility of police, which would necessarily mean

that a confession would be unreliable because an

unlawful detention may occur very, very quickly;

it may be very short; it may be very technical and

therefore the unlawful detention question is exercised on Bunning v Cross principles, the

unlawfulness of the obtaining of the confession.

We would submit, that if it is not exercised in

Bunning v Cross, or if it does not enliven the discretio.n under Bunning v Cross, there is no other reason why a court should have to warn a jury about

a confession obtained unlawfully without its

reliability, apart from the fact of its

relationship to the credit of the police.

The other matter which, though, exercised this

Court in Duke was the length of the detention, and

whether a long detention might be a matter which

particular case at bar, His Honour went at length	should give rise to a warning. In this case, the
again to distinguish to the jury the difference between whether or not the detention was unlawful, or the police knowing it was unlawful, as opposed to the question of whether or not the length of the detention and the circumstances surrounding the detention led to a confession or led to the signing of the confession which was not true, or whether it led to the person having pressure applied to them
to put the signature on a false confession. We
would submit that that is a proper matter for the
jury to take into account and may be the subject of
a warning to a jury that they should look at that
question as to whether or not the confession, or

McKinney(2) 35 8/8/90

the signature of the confession, was a voluntary

act by the accused or was made as what it appears

to be, that is an adoption of that statement made

by him.

Now, His Honour, it is true, never gave any

warnings in this case. We accept that there was

nothing in this case where His Honour ever warned

the jury or gave judicial weight to the factors

which have been spoken about as applying in this

case. But what His Honour did do was to give very

thorough directions to the jury as to the use that

they were to make of that evidence; as to the use

that they were to make of that material, when

looking at the question of whether or not the

confession could be relied upon by the Crown,

beyond reasonable doubt.

In fact, at one point which I might just take

Your Honours to, His Honour actually indicated to

the jury that the real substance of this attack on

the police and their record of interview was not so

much as what was being placed on it by the defence

counsel who it seems from reading the transcript of

His Honour's remarks and, with due respect to Mr

Flood and those who appeared, was a substantial

attack on police propriety and an attack on,

really, that the police were acting unlawfully and

that the police knew they were acting unlawfully,

and therefore would fabricate the record of

interview. But what His Honour was really clearly

indicating to the jury in the passage was that it

was not simply a matter of unlawfulness of

detention, as might have been said by counsel for

the defence, but was really a question, the real
issue was one of credibility and reliability of the
confessions.

So, what His Honour was doing to the jury, although he did not give them a warning, he was

clearly indicating to them.the real relevance of

this material and the real weight they were to	place on it, rather than becoming involved in a	dispute, or being concerned about a dispute, or
whether or not the police had acted improperly.
And, we would submit, that that was an important
matter for His Honour to do, in the circumstances
of this case, and notwithstanding that he did not give a warning to the jury upon that question,that really the jury were made well aware of what the
real significance of it was, and that occurs at
page 456 point 5. This was the start of numerous
directions by His Honour about the importance of
the - it occurs in the second volume. His Honour
had just spoken about the attack made on the police by Mr Flood and others and then says, at point 5 on
that page:

McKinney(2) 36 8/8/90

There is however - although this perhaps

was not put to you so fully or with so much

vigour - a way in which the detention of the

accused, McKinney and Judge respectively,

beyond the time which the law would sanction

on proper principles, is relevant. And it

goes to the extent to which you may be willing

to consider the statements made to the police,

including those from the record of interview,

reliable. It is not a question of legality -

that was my part of the partnership. Your

part of the partnership was reliability. Are

they reliable?

His Honour goes on:

Now, reliability is affected in two ways

by the length of time the men were detained

before they made their statements and the

records of interview respectively. The first

is the fatigue, psychological pressure of

being so long detained, being left alone so

long to stew and fret. That is to be

considered. Of course it is. Because you

have got to decide. "Has that made them say

things that they would not have said - in the

sense that they did not do themselves justice?

Were they so tired that their psychological

ability to defend themselves had gone?"

Your Honours will see at the end there he

says:

Ponder on them and no hint will come from me. Of course, His Honour is not lending judicial

weight to that matter and so I cannot suggest that

it was a caution in the way that the courts have

spoken about cautions. Turn the page, at 457, at

the top:

There is another ·element to it. Again I

stress I am talking about reliability. The

second element is that if you came to the view

that the police had thumbed their nose at the

law, as distinct from simply not getting it

right, but had thumbed their nose at the law,

it may affect in your minds, their credit -

because if they thumbed their nose at the law

in relation to how long they detained the men

before taking them before the magistrate,

might they not also have thumbed their nose at

the law in other respects? So it is important

for you to turn your minds to whether the

police got it wrong or thumbed their nose at

what they knew the law required them to do.

McKinney(2) 37 8/8/90

And there are set out in the written material before Your Honours numerous references in similar

lines throughout the summing up to the importance

of both the unlawful detention and the length of

the detention and the affect it might have.

Your Honours, reference has been made really

to the fact that times have changed because of

Condren and Williams and Bewert, the New South

Wales unreported case, and Richardson, and that

this Court should now realize that it is not only

oral confessions which may be looked at with some

distrust, but also signed records of interview.

With respect, none of those cases really indicate

that. Williams and Bewert - there is nothing in

the report there to indicate how it was that those

signed confessions came about.

The Court knows or has, it seems, experience

of the fact that people may make confessions, even
if those confessions are agreed that they made
later on, but yet dispute the contents of the
confessions as being reliable; for example, because

of some psychiatric illness, or some problem -

Morris tends to be an example of the case of

whether or not the alcoholic in Morris could be

relied upon when he confessed to the woman about
his participation. But we do not know in Williams

and Bewert what it was said about those records of

interview, how they came to be signed. The

accused, in fact, pleaded guilty to that matter

when they came to court.

In Condren again, it is not clear whether or

not the court in Queensland determined that he was

not guilty of the offence, or what was to be gained

from the fact that Condren had signed an interview

and acknowledged the interview in front of a,
seemingly, witness who was not connected with the

police and yet that there was other material which

suggested that he may not have committed the

offence. In Richardson; which is the English case,

if one looks at the Times Report - I will not take

it to Your Honours - but there the court itself,

the House of Lords, were acknowledging numerous

possibilities about why - well, if it is being put

in front of Your Honours - I do not know if

Your Honours have what I have but I have just got

a copy of the Times and the report of it, but there

Their Honours were saying that matter - about the

third column from the end, the third paragraph

down:

It followed that any evidence that cast real doubt upon the reliability or veracity of

the officers responsible for the various

interrogations had to mean the whole

McKinney(2) 38 8/8/90

foundation of the prosecution case disappeared

and the convictions would be unsafe in this

case.

Evidence had come to light in the case,

thanks to the efforts of the Avon and Somerset

Police, which showed quite clearly that so- called contemporaneous records of some of the interviews conducted by the Surrey Police

officers with Armstrong and relied upon by

those officers when they gave evidence were

not contemporaneous records at all.

What exactly they were might never be

known. But it was accepted and rightly

accepted by the Crown that the manuscript

notes produced at the trial were not what the

Surrey Police officers said on oath they were.

It goes on, and down about two paragraphs, the last

paragraph at the end of that column:

The first explanation was that the

typescripts were a fabrication by the police

from start to finish, invented by some fertile

constabulary mind; that they were amended to

make them more effective and then written out

in manuscript to enable the police to produce

them as if they were a contemporaneous note of

the interrogation.

The second possibility was that there was a contemporaneous manuscript note, that it was

reduced into a typewritten form by someone as

a fair copy for some reason or other - perhaps

legibility - that it was then amended to

improve it and finally reconverted into

manuscript by the various Surrey officers

involved so it could be produced as a

contemporaneous note.

It might be it was a mixture of those two

possibilities. For the purpose of this appeal

it was immaterial which of the two versions

was true.

So it really does not again tell us very much

about, even in the English situation, signed

records of interview and the reliability or

otherwise which might be placed on them. But,

Your Honours, whatever problems the courts might have noted and the various investigating bodies

might have noted about oral confessions, none of

those seem to apply to signed records of interview.

No one has had the same misgivings about a signed

record of interview. This Court has, on various occasions, distinguished between oral and signed

McKinney(2) 39 8/8/90

confessions; the admissibility of signed documents
as opposed to unsigned documents, and the Court has

made it quite clear that the signing of a document

is a very important difference between a confession

which is oral and one which is contained in a

signed document.

BRENNAN J:	The parts that you have directed our attention to in the summing up there is obviously a
considerable attack made on reliability of
confessions.  Was there any attack in the cross-
examination as to whether the documents that were
tendered as confessional statements had been signed or whether the words attributed to the accused in those statements had been used?

MR HOWIE: There was no attack that those documents, the

signed records of interview, had not been signed by

the accused. They all acknowledged that they were

their signatures and that they placed those
signatures on those documents but the attack was

that the confessions in those documents were not

made by the accused and that nothing in those

documents, apart from some very minor statements,

were made and they were not made in the context of

that document. For example, the scab of the cut on

the face of McKinney which came from a blow in

Melbourne, it is acknowledged in the record of

interview by McKinney that the blow was not

inflicted by the police but came from a cut from an

incident in Melbourne. In the cross-examination of

the police officers in relation to that it was

acknowledged that McKinney had told them that the

cut had come from Melbourne, is that not right?

MR HIDDEN: It was challenged.

MR HOWIE:  It was put that the police had obtained that

information from him but not in the circumstances in which the record of interview - my friend says

that is not right, I might have misstated it

anyway.

BRENNAN J: Without going into the details of it, was there

any direction by the trial judge to the jury about

whether they could place any reliance upon a

signature which appeared on a document, the

contents of which were in dispute; that is, so far

as the making of the confession therein contained

was concerned?

MR HOWIE:	Only the constant directions to the jury that a person might put his signature on the document by
reason of being overborne by time, by threats, by
the circumstances in which he was in custody.
There are numerous ones of those made to the jury
that that was a consideration they had to look at,

McKinney(2) 40 8/8/90

the circumstances in which the custody and what the

applicants had said about the way these signatures

came to be on the documents. So His Honour was

read to Your Honours and, similarly, through the	indicating that to the jury as in the passage I
summing up, that a person may either make a
confession or adopt a document by placing his signature on it by reason of the delay, the unlawfulness of the detention, the threats and the circumstances.

The other matter, in particular, about this

that is relied upon by the applicants as being

somewhat of an unusual case is the fact that three

people made a confession that they in substance

committed the offence by firing the one shot.

McKinney and Judge, these applicants, both maintained that they were sole persons in the house and that they both fired the gun which caused the

injury.

There are two things to be said about that

which places this case, perhaps, in a different
situation: the first is that this is not a case
where the police had the material. All the

material contained in the confessions was material

which the police had and therefore there was

nothing in the records of interview which the
police could not fabricate. What was interesting
about this case was that the confessions which it

is alleged the police fabricated were not in

accordance in the material that the police had

because the police knew that there were two people

in the room, the knew from Mrs Milson and in fact

it is pu·t to one of the applicants in the record of

interview:

We have been informed that two persons were in

the house.

So that the material in the record of interview, in

numerous respects, is not in accordance with what

the police already knew when they were interviewing
these applicants.	For example - these are

referred to in the material that we have posed to

Your Honours but if I could just take you very quickly to the records of interview. They are contained in the first volume.

Judge's record of interview starts on

page 259. Now, it is true that the police, when

they were cross-examined agreed with the cross-

examination to them that all the material which was

contained in the records of interview was material

which incriminated them was material which they had

but, of course, the interesting thing about it is

that some of the material is not in accordance with

McKinney(2) 41 8/8/90

that that they had. Perhaps the most striking, if

one goes to Judge's record of interview, is

questions 65, 66 and 67 which appear on 264.

You see, it was already known, and the police

had already informed them that it was already known
from Williamson and her statement to the police

that McKinney, Judge and Villegrande were seen

together - or De Cressac, as he is also known -

were seen together at the time of the incident,

yet in 66 and 67 Judge is alleged to have denied

that he knew De Cressac, or that he knew McKinney, yet, of course, the information the police had was

that more than he knew them, but that he was with them on the morning, that he had been residing at the house at Hassal Street, and that he had been

with the three of them both at 4.30 am and when

they returned at six.

Of course, that is consistent, perhaps the

jury might have thought, with the verbal admission
and perhaps the way that the Crown was explaining

these interviews, that what was going on here was

that these two people, or the three of them, were

trying to not say anything which would indicate

that the others were involved or that anybody else

was involved in the offence.

Similarly, in McKinney's record of interview,

at question 46 - that is page 254 - perhaps a minor

point, but an interesting one at question 46:

Can you tell me which room you hid the gun in?

A. I can't remember, it's a big house. But, of course, the police had already found the

gun in the morning. They knew where it was. They

knew that it was wrapped in blue cloth. They found

it in a cupboard in Rossiter's room. The jury

might think it a very curious fact that the police

would, in a record of interview in which they had

all the material which they needed to fabricate the

interviews, have ·a question like that where

McKinney cannot remember where he would hide the

gun, yet the police knowing full well where the gun

was found.

I mean, these a jury questions as to what they

made of this, but it is a different case to one
where all the material in the records of interview
is material which the police knew and is consistent
with the material which the police knew which would

implicate the accused.

The whole fact really upon which this appeal

is based and the matter which it is said takes this

out of the ordinary and calls for a warning to be

McKinney(2) 42 8/8/90

to the jury was the fact that the three people had

all confessed to firing the same shot. Well, it is submitted that that is the obvious problem that the

jury must have had to confront. This is not a case

where an interview on its face may seem to be

reliable, but on the basis is not.

This is not a case in which warnings, we would

submit, are normally given, where a jury may miss

the point, may miss the matter which would bring

some doubt or may cause them to be concerned with

the reliability of the statement. The fact - and

it was made very clear in cross-examination, I

think before any of the interviews, or at least

just after one of the interviews had been

tendered - at in fact the police had, it was said I

think, an embarrassment of riches, they had three
confessions, each person agreeing to commit the
very incident, that is the firing of the gun, and

the jury could not have mistaken that.

The jury could not have known. It ran through

the cross~examination, it would have been running

through addresses, and it even ran through - there

is some remarks made by His Honour which I will

take Your Honours to in his summing up that this

was a factor which clearly indicated that not all

of everything contained in the record of interview
could be reliable and therefore must have brought

the jury to consider carefully and scrutinize with

care the records of interview and the way in which

it was said to come about.

We would rely upon those passages of

Mr Justice Brennan in Bromley where it is said that

where a matter is obvious, where a question of

reliability is quite obvious to a jury, there is no

need, in that sort of case, to warn the jury in

order to avoid a possibility of a miscarriage of

justice.

We would say in this case it was impossible the significance of it, that it immediately brought for the jury to have overlooked that or overlooked	to, outstandingly so, in an extraordinary case, the
unreliability of everything that was contained in
the record of interview and therefore forced the jury to have to consider the records of interview,
what they mean, how they came about and what
reliability to place on them as a whole.

We would go further than that; it is not a

matter for a judge to warn the jury as to what to
make of that, as to what that indicates, to warn a

jury that that indicates that perhaps these records

of interview have been fabricated or that perhaps

McKinney(2) 43 8/8/90

they should caution themselves or be very cautious

in placing weight on those records of interview.

It may well be that a jury - and a very quick

view about the matter is that it would be

extraordinary for the police to fabricate such
records of interview. It is a relevant fact not to

indicate the unreliability of the interviews as

being either fabricated by the police or being

signed by the accused because they were threatened or because of the lengthy delay, but rather it was a very significant and potent factor in this case

for indicating that in fact the records of
interview were not fabricated by the police. This

is not a case - - -

DEANE J: would you agree, Mr Howie, as I follow what has

been said against you, that the main issue in the

case really became whether the records of interview

had been fabricated or not?

MR HOWIE:  No doubt.

DEANE J: Well now, if that is so, the reason the accused

had to face that main issue of fabrication in a

context where they could have no evidence but the prosecution could have all the evidence it wanted was the conduct and the illegal conduct of the

prosecution, does that not go to the question of

what should be pointed out to a jury?

MR HOWIE:  But what should the jury be told about that?

They were told that that went to the credibility of

the police.

DEANE J:  You see, that is the whole point of confessional

evidence. They used to say it in terms of sexual

offences - easy to make and hard to repute - but in
confessional evidence it is even more so. Because

of its very nature it raises an almost false issue

in circumstances where, by the conduct of one side,

it has all the resources and the other side is

placed at an inevitable disadvantage unless what

are now seen, as you have indicated, as natural

guarantees of fairness and propriety are

implemented.

MR HOWIE:  But there will always be occasions. Even when

videos and tape recording is introduced, there will

always be still occasions when confessions are

made, or alleged to be made to police, in

circumstances where it could not possibly have been

made by tape recording or by video recording.

DEANE J: That may well be so but all that has been put

against you is when the occasion is created by

illegal conduct and where the imbalance of

McKinney(2) 44 8/8/90

opportunity is created by prosecution conduct that
fairness requires some sort of direction to balance

the scales a little bit.

MR HOWIE:  We would submit that that does not go to a

warning that the jury cannot rely upon that

evidence or that the jury should look at it with

scepticism apart from the fact of what it does, as

His Honour said, from the unlawfulness of the

police behaviour and, if you like, the impropriety

of the police by putting it in this situation.

We would say that that does not really affect

the reliability of the confession at all. It does not affect the question of whether or not the jury

can rely upon it, whether it does not affect that

it may not or may be true. It may be, if you have

got a case where there are video recordings or tape facilities available, that the absence of those, or that the police have not used them, may be pointed

to as an indicator - it may firstly go to the

question of whether or not it should be admitted

anyway - on a Bunning v Cross discretion - it may

still go to the question of an indicator that the

police have in some way not given the jury the best
possible evidence because they have not used the
tape or video facilities which are available. But
if they are not available, nobody ever put to these

police officers that you could have had it taped or

you could have had it videod - well, the answer

would have been they did not have those facilities,

the facilities for the police were not there.

Now, if they do not have those facilities, is

that to. be judged that the police have acted

unfairly or that in some way that the interview is

unreliable? They have taken the next best and that

is one which has been looked at by these courts and

considered as a reliable way of showing an

interview and that is by having the document signed

by the accused. It is for the jury then to

determine what they make of the fact of a person

signing an interview and, we would submit, a judge

does not really have any more knowledge than the

people in the community as to the weight to be

placed on the fact that a person has signed a

document.

DAWSON J:  Am I right in thinking it was quite clear that

someone, whether it be the accused or the police, had made up one or other of these stories? They

could not both be true.

MR HOWIE: That is right.

DAWSON J: And it was undisputed that the two accused had

placed their signature on the document?

McKinney(2) 45 8/8/90

MR HOWIE: That is right. There was no doubt that it was

the accuseds' signature. It was not a case where

the accuseds said, "That was not our signature",

which may be very different.

DAWSON J:  So that you have clear unreliability in some

respect. Goodness knows what it was.

MR HOWIE: That is true.

DAWSON J: But that was the dilemma that the jury had to

solve.

MR HOWIE: Exactly right. That was the point I was making

about the fact that the statements themselves had

their own, if you like, their own downfall in them.

DAWSON J: And the police were not putting these forward as

reliable confessions?

MR HOWIE:  No, that is right.

DAWSON J: Not both of them, anyway.

MR HOWIE:  Not both of them, it could not be. Well, the

Crown could not put that the whole three were

correct, that the three people had one finger on

the gun and fired one bullet. I mean, that was not

even consistent. There was nothing in the records
of interview of these two that was consistent with

the events as detailed by the witnesses who were

there, by the Milsons, because there were clearly

two people, clearly one at the light switch - one

Caroline Milson I think her name is - one at the light switch while the other was getting and taping

up Mrs Milson's hands. And there was talk between

them. And Mrs Milson saw another person, or it

could have been taken as another person, in the

corridor. And the De Cressac-Villegrande

interview was not before the jury because

His Honour refused to admit it, but it is in the

appeal book, and I suppose it is one of the

considerations when perhaps the judge could look at

that interview when coming to give warnings to the

jury about it. But the De Cressac-Villegrande

interview is completely different again in that

although he admits that he was the person who

pulled the trigger, he names these two appellants

as having been present, names them as having come -

or he forced them to come, I think he says - he

forced one of them to drive the motor vehicle, but

he told them to get out, that he pulled the gun and

that they had nothing to do with it. They did not

know he was armed and he told them to clear off.

So it was a different set of circumstances

there in that record of interview. Again, not

McKinney(2) 46 8/8/90

consistent with the statements which the police had

both at the date of the offence and which they got

later from Rossiter and Williamson and the other

people.

DAWSON J: And if the police had concocted the stories and

not the accused, the only real question then left

was, "How did it come about that they put their

signatures on the document"?

MR HOWIE:  Yes.

DAWSON J: And that was the question that the trial judge

dealt with.

MR HOWIE:  Yes. And as Your Honours would appreciate, that

was the substantial part of the cross-examination.

The applicant Judge gave a very long dock statement

in which he detailed every aspect of what the

police did to him in order to arrive at the

signature. I cannot remember them all or in detail

or how they went, but I think that it was the long

delay, the fact that he did not know what he was

going to be charged with, that he was offered

alcohol, that he was offered drugs, that he was

constantly abused, bashed up physically and

psychologically, and then the final straw that

broke the camel's back - I am sorry, they were

going to load him up, in the vernacular, with armed

robberies - none of that persuaded him to sign the

document. The final straw that broke the camel's

back was when they indicated that they would make

up offences against his family, and that led him to

put his signature on the document.

Now, that is, with great respect we would

submit, a real jury question. And one has to look

how these documents came to be - how even the

accused said - these documents came to be

manufactured. It was not a case of, even on the

accuseds' version, that the three police officers

in three different police stations had three

different accused and all made confessions and

nobody talked to one another, and unfortunately

they all did the wrong thing - nobody had worked

out on the police view what the story was going to

be.

DEANE J: Were the alleged statements of one accused in

evidence against the other?

MR HOWIE:  No. What His Honour said about that though was

this: His Honour told the jury and this was one of

the very last things he told the jury before they

retired on this to consider their verdict. What he

told the jury was that the evidence that one of

them, for example Judge, had said that he fired the

McKinney(2) 8/8/90

gun was not admissible against Judge in McKinney

and De Cressac's case, that Judge did, in fact,

fire the gun but they could use it as evidence that

somebody else, as another person, had in fact

admitted to firing the gun even though in McKinney,

if we take McKinney's case, even though in his

record of interview there is evidence against him

that he in fact fired the gun.

You see, that is why it was introduced into

evidence that a third person, who nobody named but

of course it was De Cressac, but that a third

person had also admitted to firing the gun. So the

jury knew, when they were considering each

particular case, that two other people had also

admitted to firing the gun and His Honour told the

jury that they could take that into account when

looking at the question of the record of interview

against the particular person.

DEANE J: And have you got at your fingertips, as it were, a

reference to where His Honour summed up about the

unreliability of the interviews because of the

conflict between them, and how that could be used

when only one record of interview was in evidence

against each?

MR HOWIE:	Page 573, I am reliably informed.
DEANE J:	Do not go to it, Mr Howie, but just give me the

reference.

MR HOWIE:  Yes, it goes on, it is the bottom of 573 and goes

right through to 574, 575.

DEANE J: Thank you.

MR HOWIE:  There were two ways in which it was put because

in an attack on the police because the police were

being put as being fair, and there was a constant

attack on the police that, "You say you are being

fair, you said you did the right thing because the

police kept saying, well we did not take them

before a justice, we wanted to interview them as a

matter of fairness to them, to allow them to put

their views forward; we only had information; we

did not have any particular evidence; we wanted

them to tell us what they wanted to say about the

matter" and they were strenuously, as you would

imagine, attacked about that as that, in fact, they

were not being fair at all; they were trying to

get confessions; and that they were delaying

putting them before a magistrate for that reason.

And one of the attacks made upon their fairness was

to say to the police, "Well, look you are being

fair" you say, "Well, why did you not go back to

one of these people and say to them, look you say

McKinney(2) 48 8/8/90

·· you confessed, you say you pulled the trigger but

we have two other people who say they pulled the

trigger. Why did you not do that?".

Now, of course, that was not the accused case

because the accused case was that they did not say

anything, but this was the sort of attack that was

made on the police. His Honour refers to that, but

then went on to say, in those pages, what else they could do with it, the fact that it was significant,

that they could use it in their evaluation of the

records of interview.

I was just saying how the records of interview

came into being. It is important to note in this,
as the jury would have, that Judge in his statement

to the jury indicated that the police in fact were

talking about it at the time; that they had left

the room; that they were talking with other

police, obviously, that they were working out what

they were going to say and then that they came back

and fabricated the record of interview. So, it was

not a case that there were three groups of police

who had not got their act together in three

separate places and could have done this

accidentally. Also, McKinney, although he did not

talk about that in his statement because it was a

very short statement, the cross-examination of the

police involved and it was put to them that, in

fact, they were conversing with people and that, in

fact, I think it even went further than that, it

was put to them that they knew that I think Judge

had, in fact, admitted to firing the shot when they

were going to interview McKinney.

The other matters that have been raised -

matters about significant features, in this matter,
were the relevance of people"s records; the fact

that they had a record, these are matters of course

that have been referred to in Carr and Duke as

factors which may bring about a particular warning. There was a reference to the fact that McKinney had

a record because that was part of his defence, as

it were, that he had a record and that was why the

police were prepared to indicate, or to load him up indicated to them what the relevance of the fact
if I might use that expression, for this offence.

that McKinney had a record was, that is at 446

point 25. He also told the jury that they had to

take into account McKinney's lack of fluency and
the length of his statement - he made a very short

statement. His Honour warned them that it was not

an intelligence test, I think he said, that giving

evidence in this Court was not an intelligence

test, and that they had to have regard to the fact

that McKinney could not read and write and that his

McKinney(2) 49 8/8/90

statement was very, very short, but that they were

to not give it less weight by reason of that. That

of course was another matter which is referred to

in Carr and in Duke about the problems of comparing

practice police witnesses with their accused. And

His Honour indicated to the jury that really the
whole Crown case, or the significance of the Crown

~ase, were the confessions.

So we basically would submit that although

there were no warnings in this case the jury were

adequately directed upon the relevance of all this
material and that there could not have been a

miscarriage of justice, notwithstanding what

warnings might normally be expected to be given.

There was a further direction sought and the

direction was to the relevance of the fact that the

three people had each made these sort of

statements.

I do not think I can usefully add anything

further at this hour. Thank you, Your Honours.

DEANE J:  Mr Howie, I no doubt should know the answer to

this, but it is a while since last time. How did

the position end in relation to the evidence of

the, was it the carving on the table?

MASON CJ:	De Cressac's carving on the leg of the table.
MR HOWIE:	Yes. There were two things, I think, that led

His Honour to throw out the De Cressac; one was

the fact that there was evidence De Cressac was

using heroin and had used it that morning and that

he was "hanging out", if I might again use the

vernacular, over the period because he had not had

heroin and then there was also the carving that

De Cressac had carved - I cannot remember the exact words.

MASON CJ:  But was that evidence before the jury, or not?

MR HOWIE:  No, sorry. That was evidence which His Honour

used on a voir dire to - - -

MASON CJ:	On the voir dire?
MR HOWIE:	Yes, to throw out the confession.
DEANE J:	What was carved?
MR HOWIE:	It was something like "Rockie is innocent and

says nil".

DEANE J: And did the accused attempt to bring out that

evidence?

McKinney(2) 50 8/8/90

MR HOWIE: In the trial?

DEANE J: In the trial.

MR HOWIE:	Before the jury? No.
DEANE J:	They did not?
MR HOWIE:	No, because as far as De Cressac was concerned,

there was no evidence whatsoever after that that he

had made any confession to the police at all.	The
only evidence then left against De Cressac was
really the statement allegedly made by him to
Miss Williamson.

GAUDRON J:  Was it sought to tender the evidence of the

fact that the third person who had confessed had

also disputed that confession?

MR HOWIE:	No.
GAUDRON J:	Then only half the story relevant to the jury's

determination as to the validity of that third

confession was before them?

MR HOWIE:  Yes. They knew nothing at all except that a

third person had also agreed to having fired the

shot.

GAUDRON J:	The evidence simply was not tendered, there was no dispute about it?
MR HOWIE:	It was not sought to be tendered by the Crown and

the accused did not seek to tender it either.

DEANE J:  But it was common ground that at the time he had

allegedly made his confession, or thereabouts, he

had carved this on the table in the police station?

MR HOWIE:  Yes. I think there was independent evidence. I

cannot recall, I am sorry, just at the moment,

because it is not·in the appeal book, but there	certainly was evidence given on the voir dire about	that; not another word said about it after though,
after the voir dire. Thank you, Your Honours.

MASON CJ:	Thank you, Mr Howie.	Mr Hidden.
MR HIDDEN:	Extremely briefly, Your Honours.	Your Honours,

in fact I am indebted to my learned friend for

reminding me of something in the course of his

submissions. Of course, an additional factor

affecting the weight of the evidence of McKinney's
record of interview was the fact that he, of

course, could not read and the document was signed

by him having been read over to him on the evidence

McKinney(2) 51 8/8/90

by another police officer, not one involved in the

investigation, but by another officer at the police

station.

That appears from the last page of the record of interview at page 257 of the first application

book, Your Honours, and was, of course, the evidence

in the trial.	Your Honours, just two other matters
only.	My learned friend asked rhetorically what are

the factors which might give rise to the necessity

to give a warning in general terms. Your Honours,

it is precisely because the factors affecting the

reliability of a confession are so varied, but the

knowledge that confessions may be unreliable is so

widespread amongst the profession that it is our

submission that there be a rule of law or at least a

prima facie requirement that a warning be given.

BRENNAN J: 

I still have difficulty in understanding the

case. Here are signatures by the two accused.

content of this supposed rule as applied in this confessions to which their signatures have been appended and the second is, if they did, are those confessions true? Now, as to the first, the whole

thrust of the case was whether or not they had said

anything which led to the creation of the documents
to which they put their signatures and as to the

second, there was no doubt but that there was a

full dispute about that.

The jury's attention was directed to those two

questions. If a warning was given in whatever

terms, would it not have amounted to the expression

of a view by the judge that he favoured one view

rather than another and if so, what possible legal

justification would there be?

MR HIDDEN: 

No, with respect, it would not amount to the

expression of such a view any more than a
corroboration direction in sexual cases did. It
simply alerts the jury to things of which those

laymen may not be aware, that is, what they make of

this confession is a matter for them but in
determining what they make of it, be warned, the
experience of the law -

BRENNAN J: What they make of it depends on the answer to

those two factual questions.

MR HIDDEN: Yes, Your Honour.

BRENNAN J: And the jury knew precisely what those two

questions were and what the contending views were

about each of them.

McKinney(2) 52 8/8/90

MR HIDDEN:  Yes, they knew what the contending views were,

Your Honour, but they were not assisted by the

experience of the criminal justice system which is given in the form of a warning. Just as in sexual
cases, Your Honour, everybody knew in the old days

what the contending views were and yet the law was

of the view that the jury was required to be warned

that it is dangerous to convict on the

uncorroborated evidence of the complainant.

BRENNAN J: That is right.

MR HIDDEN:  That warning was said to be given because that

was the experience of courts by which the jury was

required to be enlightened.

BRENNAN J: And that was because it was said that

complainants in sexual cases were unreliable

witnesses.

MR HIDDEN:  That was the basis of it in history,

Your Honour, but that is not necessarily what was

put in the warning.

BRENNAN J: That is the whole foundation of the rule.

MR HIDDEN:	Yes.
BRENNAN J:	So that, what the proposition is here, is that

the warning should be given that when the police

say "X" and the accused says "Y", that they should

be warned that the experience of the court says

that police are unreliable witnesses.

MR HIDDEN:  It need not be put in that way, Your Honour.

The experience of the courts is that confessions

may be fabricated and, indeed, in some cases have

been and it is for that reason that the jury should

scrutinze the evidence of the police with special

care. It is because the evidence of the police

tends to have, in the minds of a layman, a

probative force which it may not necessarily

deserve.

The only other matter in reply was a remark, I

suppose, really. Perhaps the need for warnings is

highlighted by the fact that our learned friend

revealed that it would seem from October this year

a system of video taping will begin to come into

effect. In the meantime, there are, I am not quite

sure, how many thousands of people in New South

Wales who have been interrogated but have not yet

been tried who will not have the benefit of that

procedure. Your Honour, it is they that need to be

protected by at least a warning.

McKinney(2) 53 8/8/90

BRENNAN J:  And I suppose there will be always people who

will be brought into the police lockups at Bannigan

and Turkey Creek which will never have these

facilities available. Are they some kind of second

class legal citizens?

MR HIDDEN: Well, it may be so, Your Honour, but a fortiori

then for them there must be at least a warning, if

they cannot have the benefit of a recording.	Those
are our submissions in reply, Your Honours.

MASON CJ:	Do you wish to say anything in reply, Mr Byrne?
MR BYRNE:	No, Your Honours.

MASON CJ: The Court will consider its decision in this

matter.

AT 3.58 PM THE MATTER WAS ADJOURNED SINE DIE

McKinney(2) 54 8/8/90