McKinney v The Queen; Judge v The Queen

[1990] HCATrans 120

~

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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 -

MIC,AEL ALLAN JUDGE

Applicant

and

McKinney

THE QUEEN

Respondent

Applications for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

McHUGH J

C2T 1/1/Ci'f 1 31/5/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 MAY 1990, AT 10.22 AN

Copyright in the High Court of Australia

MR P. HIDDEN, QC:  May it please the Court, I appear with

my learned friend, MRS.A. FLOOD, for the applicants.

(instructed by M. Richardson, Director, Legal Aid

Commission of New South Wales)

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

my learned friend, MR P. BERJ:vIAN, for the respondent

Queen. (instructed by S.E. O'Connor, Solicitor

for Public Prosecutions)

MR HIDDEN:  If the Court pleases. Your Honours I hand up

an outline of argument.

MASON CJ:  Thank you. Yes.

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

CARR V REG, to which we will take Your Honours

in more detail somewhat later, this Court, as far

as we are aware, considered for the first time in depth the question whether, in appropriate cases,

a caution ought to be given to a jury concerning

the acceptance of confessiqnal evidence. The matter

had been referred to by the Court in earlier cases,

but it was in CARR, as we apprehend it that this

Court first, only two years ago, considered the

matter in detail. The effect of the decision in

CARR, of course, or the majority decision was,

that there is no rule of law or practice requiring

a warning concerning the acceptance of disputed

confessional evidence, but that in appropriate

cases a warning might be called for, and each case

must be judged on its own facts.

(Continued on page 3)

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McKinney

MR HIDDEN (continuing):  CARR, of course, was concerned with

disputed confessions which were not authenticated

by the signature or the writing of the accused. It

was concerned, in fact, with unsigned records of

interview, as was the later case of DUKE, to which

we will also refer briefly in due course, which was

decided very shortly after CARR and raised, in

many ways, the same issue. What is unusual aoout

this case, we submit, Your Honours, and what makes

it a proper one for the grant of special leave, is

the fact that in this case signed records of

interview are involved, and yet it is our submission,

consistently with the principles espoused in CARR,

and affirmed in DUKE, that it was one calling for

a warning from the trial judge.

Now, may we take it that Your Honours are familiar with the evidence?

MASON CJ: Well, we have read the judgment and I, for my part,

have read the directions given to the jury. That
does not mean to say that I have a recollection of

everything that was specifically stated in those

MR HIDDEN: Certainly, Your Honour. Well, it is probably

sufficient if we refer to some of it as we go along.

Your Honours, shortly the two applicants were tried

together with another man called De Cressac Villegrande

on a count containing three counts - charging

crimes against each of them jointly. The first was

a count of breaking and entering whilst armed,

with intent to commit a felony under section 113

of the New South Wales CRIMES ACT. The second was

one of breaking and entering a dwelling house and

therein inflicting grievous bodily harm upon a

person pursuant to section 110 of the CRIMES ACT,

and the third one was armed assault with intent to

rob, pursuant to section 97 of the Act.

Now, Your Honours, the Court of Criminal Appeal

shortly summarized the fact, perhaps adequately for

present purposes, although it may be necessary a little
later to refer to some of the other evidence in the

case, and the court's summary of the evidence appears

at the application book commencing at page 280 and

going through to the top of page 282. Shortly,

what occurred was that in the early morning of

13 August 1986, someone entered a house at the suburb

of Dharruk in the west of Sydney; inside the house

was one Marilyn Milson and her two daughters and

also another man, Warwick Clarke. It seems that

Marilyn Milson saw two men, one of them carrying a gun.

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MR HIDDEN (continuing):  That man threatened her with the

gun, demanded money from her while the other man

stood near the door. She denied any knowledge of

any money and that man bound her hands with sticky

tape and both men left the room. Shortly afterwards

she heard a weapon discharge and the man,

Warwick Clarke, who was in another room was

seriously injured although, fortunately, survived

as a result of gunshot wounds.

Two days later, on 15 August 1986, police

arrived at premises at Parramatta where the applicants

and the third man were together with a number of

other people. It was apparently a fairly

spectacular raid involving members of the SWAS

squad. There were shotguns in the possession of

police. Police arrived, a search took place; in

a bedroom was found a 38 revolver which aoparently

was similar in appearance to the gun seen by

Ms Milson. That gun was linked by the admission of

the applicant Judge to him as being in his

possession. A personal search of the man Judge

found some 38 calibre cartridges which were similar

in type to a spent cartridge found at the home where

the crime had been coITu.~itted.

Police remained there for some time and, perhaps,

also summarizing this aspect of the case quite briefly:

they had arrived at the house at Parramatta in the

early morning, some time later the two applicants,

together with other people, were taken to

Parramatta police station where they were there detained for some time, subsequently taken to

Mount Druitt police station. At·:~1ount Druitt police

station during the course of the afternoon the

two applicants and the third man were interviewed by police it would seem, Your Honours, independently by

different sets of police at about the same time in

different rooms. They were charged in the early

evening of that day but were not taken before a court

until the following day so that, in effect,

Your Honours, they were in the custody of the police

for virtually 24 hours, in fact, longer before being

taken before a magistrate to be charged.

(Continued on page 5)

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MR HIDDEN:  Now, Your Honours, the records of interview appear

in the application book and it is necessary, including that of a man who was acquitted by the jury. The record of interview of the applicant

McKinney appears at page 252 of the application

book. Suffice it to say, Your Honours, the

effect of that record of interview is a complete

admission to the first two crimes charged in the

indictment, that is, the break and enter with
intent to steal and the infliction of the grievous
bodily harm, and the effect of the record of

interview is that McKinney went alone to the house

armed and committed the crimes charged. There is

no, perhaps express or adequate admission of the

assault with intent to rob, although he does admit

to having tied the hands of Ms Milson.

Judge's record of interview appears at

page 259 of the application book and again the

effect of that record of interview is that he

committed the crimes charged, or at least the first

two of them alone. The effect of his record of

interview is that he went alone to the house armed

with a weapon; broke and entered it with intent

to steal and it was he who discharged the weapon

both say, accidentally, causing grievous bodily
harm to the man in the house. Again, there is no
express admission in it of the third crime, the

assault with intent to rob of Ms Milson.

The record of interview of the third accused

who was acquitted, De Cressac-Villegrande, commences

at page 266 of the application book. This record of

interview, of course, was never before the jury,

Your Honours, but it was referred to in evidence as

the confession of a third unknown man - the third

unnamed man as my learned junior points out. The

effect of De Cressac's record of interview was really

that he was the principal offender in the crimes

charged again, although there is no express admission

of the assault on Ms Milson with intent to rob her.

De Cressac in the record of interview says that the

applicants were with him and were either in the vicinity

or present with him when he did the acts complained of.

But his record of interview does not suggest that they were actually aiding and betting him in the process of

that. So, in effect Your Honours, three men took sole

responsibility for the crimes charged.

BRENNAN J:  Was there any evidence as to whether any speed or

any heroin was in fact taken from the premises?

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McKinney
MR HIDDEN:	I do not believe there was.	Yes, I am indebted

to my learned junior. There was evidence that

McKinney returned with some speed but I do not

believe there was any evidence of Ms Milson that

any speed went missing from the riouse.

Your Honours, De Cressac's record of interview

was rejected by His Honour but the records of

interview of the applicants were admitted. However, in the evidence in the trial the jury were informed that another unnamed man had confessed to sole

responsibility for the crimes charged.

Your Honours, there was some other evidence to

which brief reference might be made and we regret,

Your Honours, that it is probably not adequately

set out in the application book. Suffice it to say -

there is reference to it in the summing up but

maybe it needs a little fleshing out. Suffice it to

say, a lady called Williamson gave evidence that she

had seen the applicant Judge in possession of a

revolver the day before the day of the crimes

charged and she said on the morning on which the

offences were committed she saw the three men leave

the flat at Parramatta early in the morning and

return some time later, still in the early morning,

and that they were in a somewhat distressed or

disturbed condition. There was a man called

Rossiter, known by the nickname "Skippy", who gave

evidence. He was apparently something of a

tippler, Your Honours, and comment was made upon

his credibility in that regard. He gave evidence

of seeing the men leaving the flat with a bag and gloves and balaclavas and Ms Milson said that the

men she saw had balaclavas.

DEANE J:	What did De Cressac say in his unsworn statement?
MR HIDDEN:
had to deal only with the suggestion that he had made

Your Honours, we have not recorded it but De Cressac

certain admissions to Ms Williamson. He did not

have to deal, of course, with any admissions to the

police. We can assist Your Honours with that because

we have the complete transcript.

DEANE J:  Did he say he was not there on the night?

MR HIDDEN:  He did. Yes, all raised alibis. Your Honours,

Rossiter also, I think, gave evidence of having seen

the applicant Judge practising quick draws with the

weapon on the occasion before the offences are said

to have taken place.

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McKinney

MR HIDDEN (continuing): Basically, the effect of the

other evidence was that Judge was in possession

of a weapon similar to that seen by Ms Milson.

And, as I have said, Your Honours, there was

the evidence of seeing the three men leave on the

morning, apparently possessed of equipment to

commit a crime and return sometime thereafter,

looking not all that happy.

BRENNAN J:	Any ballistic evidence?
MR HIDDEN:	Your Honour, there was a spent 38 cartridge found

and, as I recall it, I think there was some expert

evidence concerning that. The effect of the evidence

was that all that could be said of the bullets

found on Judge was that they were of the same type

as the spent cartridge found at the house.

BRENNAN J:	But nothing to identify - - -
MR HIDDEN:	A fairly common type of weapon, of course.
BRENNAN J:	But nothing to identify the particular bullet

that was used at the scene as having been discharged

from the Smith and Wesson - - -

MR HIDDEN: No, there was not. There was no comparative

microscopic evidence of that kind.

BRENNAN J:  Was that because it was not available or was

it not possible to discover it scientifically?

MR HIDDEN:  Your Honour, that is entirely clear but as I

understand it the spent cartridge was inadequate

to do any comparative microscopic test because

of its condition. Yes, everyone was calling it

a "slug", I remind Your Honours.

Your Honours, the summing up, of course, was

lengthy and we have reproduced, in the application

book, only parts of it but to get to the gravamen

of the application for special leave may we take

Your Honours to certain applications which were

made for redirections by my learned junior, Mr Flood,

who was then appearing for the accused, the

applicant McKinney.

His Honour had summarized the submissions

of counsel concerning the weight to be given to the confessions.

Perhaps before turning to that, Your Honours, I should point out that each applicant had made an unsworn statement - which

are reproduced in the application book. The statement of the

applicant Judge corrrnences at page 153 of the book and as has
been ·:::bserved he raised an alibi and as to the record of

interview which he had signed he said, in effect, that he was

assaulted by police and threatened by him, that the document

was of their composition, the police involved in this case being detectives Finch and Bamford and a great deal of the

detail of this ccmnences at page 155 of the book and continues

to page 157.

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MR HIDDEN (continuing):  He describes at page 156 the physical

assaults upon him.	He said that he denied any
involvement.	He said that he was offered heroin
and later offered beer.	He said after the record

of interview had been completed, none of it being

his words, he was told by Detective Finch:

You will sign this or your family is fucked, we'll set your family up.

And in the light of all that he signed the document.

Your Honours, Mr McKinney was terse, to say the least,

in his statement, which appears at page 159 of the

application book. Again, in effect he raised an

alibi and in relation to the police evidence all he

said was:

I was taken to three different police

stations, was assaulted by the police

and forced to write a statement.

Now, I pause here to say, Your Honours, that the

brevity of Mr McKinney's statement does not seem to have, in any way, complicated the issues which were put to the jury in the trial and, indeed, his statement
was put to the jury by His Honour as an adequate

challenge to the evidence of the police together with

the matters which had been elicited in
cross-examination as to his lengthy detentior. and,
indeed, in relation to Mr McKinney specifically,

His Honour observed upon his apparent inarticulateness and observed that the trial was not an intelligence

test.

Now, Your Honours, the particular matter upon

which counsel relied, apart from the statements of the accused themselves, in challenge to the police evidence was the circumstance of their very lengthy

detention. That had been unsuccessfully the subject

of a voir dire examination as to the admissibility of

the records of interview, but it is clear, Your Honours,

that much was said about it by counsel in address,
although those addresses are not recorded.	The

evidence certainly disclosed that at Parramatta while

the applicants were at the police station there

there was a local court sitting, and that local court

was a mere step from the police station.

While the applicants were at Mount Druitt there

was a short drive away a court at Blacktown where

magistrates were sitting. It was elicited in evidence

that at both courts there were duty solicitors

engaged by the Legal Aid Commission who would have

been available for advice had the applicants been

taken there promptly. ·

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TOOHEY J:	Mr Hidden, what was the distinction between the
records of interview that led to De Cressac's record being rejected and the others being
admitted?
MR HIDDEN:	Your Honour, in De Cressac's case there was

evidence which His Honour accepted, the he was

influenced by drugs and,in addition,there was

an unusual circumstance: it seems that

Mr De Cressac had carved into the leg of a table,

I think, with something, the words, "Rocky is

innocent says nothing", and that was seen and

was established by evidence. In all the circumstances

His Honour felt, I believe His Honour said as a

matter of discretion, that his record of interview
ought be rejected, but was not so persuaded in

respect of th~ applicants.

Now I thini also, Your Honours) it arose from

the evidence that by the time the

applicants did get before a magistrate it was

a Saturday morning at one of those special courts

that are convened for that purpose when,of course,

duty solicitors would not have been available.

Now, Your Honours, His Honour referred to this

material in summing up and put it to the jury basically,

as a matter going to the credibility of the police.

As His Honour put it, if the jury were of the view

that the police had thumbed their nose at the law,

they could have regard to that in determining

whether they believe the evidence that the

confessions were made.

Reference was made briefly, Your Honour, to the

unusual circumstance that each of the three men
independently claimed sole responsibility for the

crime, but it would seem not adequately for counsel's

purposes and at page 235 to 236, Mr Flood, then

appearing for McKinney, in effect,asked His Honour

to emphasize that the curious circumstance that

each of the three men had claimed sole responsibility

for the crime was a matter going to the

reliability of the evidence that, in this case, his

client McKinney, had confessed at all. His Honour

declined to give any further direction, including

that one. His Honour had referred to that fact

simply as to the question of whether in fairness,

after the police realized that each accused had

confessed to sole involvement, the police should

have then gone back to the other accused and said, 11 Look, you say you did it on your own. The other

two say they did it on their own. What do you want

to say about that? 11 His Honour referred to that

in summing up, but not to the proposition that that

of itself could carry them the stamp of unreliability

about the confessions relied upon.

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McKinney
MR HIDDEN (continuing):	What is clear on the evidence,

of course, Your Honours, is that only one person

short the man, Clarke. More importantly, Your Honours,

can we take Your Honours to page 241 of the

application book from which, Your Honours, it will

appear that counsel for McKinney had, during the

course of his address to the jury, sought to quote

from three judgments comments of judges concerning

confessional evidence? His Honour did not allow counsel to do that in the course of address. At

this stage of the summing up, at page 241, counsel

asked His Honour himself to refer to those passages,

and in effect to give his judicial authority to the

proposition that confessional evidence can be

fabricated and is not always reliable. It was that

which also His Honour declined to do.

Now, it is to be borne in mind, Your Honours,

that at this stage CARR had not been argued in this

Court - this was late 1987 - although both CARR

and DUKE had been decided in this Court by the time

the appeal to the Court of Criminal Appeal came on

for hearing. Now, it is probably appropriate,

Your Honours, to take Your Honours to the passages

which consel asked His Honour to read to the jury

because, in our submission, they are germane to

the argument here. Counsel referred to the

judgment of Mr Justice Cave in REG V THOMPSON, (1893)

2 QB 12, which was itself a case not involving

admissions to a police officer, but

in fact to a senior officer of company. It was

at page 18 of that report that His Lordship said,

in the bottom paragraph:

I would add that for my part I always

suspect these confessions, which are supposed

to be the offspring of penitence and

remorse, and which nevertheless are repudiated

by the prisoner at the trial. It is remarkable

that it is of very rare occurrence for evidence

of a confession to be given when the proof of

the prisoner's guilt is otherwise clear and

satisfactory; but, when it is not clear and

satisfactory, the prisoner is not unfrequently
alleged to have been seized with the desire

born of penitence and remorse to supplement it

with a confession; - a desire which vanishes

as soon as he appears in a court of justice.

Your Honours, the next passage which counsel asked

His Honour to refer to was that in the decision of

this Court in RV LEE AND OTHERS, (1950) 82 CLR 133.

Lee, of course, was a case primarily concerned with

the judicial discretion to reject confessional

evidence which is voluntary, but is shown otherwise

to have been unfairly obtained. But at page 159

five Judges of this Court, in a joint judgment

said, at about point 5 of the page, Your Honours:

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It is, of course, of the most vital

importance that detectives should be

scrupulously careful and fair. The

uneducated - perhaps semi illiterate-man who

has a "record" and is suspected of some

offence may be practically helpless in the

hands of an over-zealous police officer.	The
latter may be honest and sincere, but his
position of superiority is so great and so

over-powering that a "statement' may be"c.aken"

which seems very damning but which is really

very unreliable. The case against an accused

person in such a case sometimes depends

entirely on the "statement'' made to the police.

In such a case it may well be that his statement,

if admitted, would prejudice him very unfairly.

Such persons stand often in grave need of that

protection which only an extremely vigilant court

can give them.

Of course, Your Honours, that was a comment no doubt

primarily directed at the question of admissibility.

Finally, Your Honours, counsel having wished

His Honour to refer to passages of this Court in

DRISCOLL V REG, (1977) 137 CLR 517, at page 539,

Mr Justice Gibbs as he then was, said this in the

first complete paragraph:

(Continued on page 12)

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MR HIDDEN (continuing):

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 acused has an obvious

motive to claim that police testimony of

this kind is false. 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.

At page 542, in another passage relied upon by counsel,

His Honour said this at about point 5 of the page:

The mere existence of a record is no

safeguard against perjury.

Of course, here, Your Honours, DRISCOLL, was dealing

with an unsigned record of interview:

If the police officers are prepared to
give false testimony as to what the accused
said, it may be expected that they will not

shrink from compiling a false document as well.

But a little further on, Your Honours, His Honour had

this to say, quite prophetically in 1977:

If the police wish to have supporting

evidence of an interrogation there are other

methods, such as tape recording, or the use

of video-tape, which would be likely to be

more effective than the production of

unsigned records of interview, and would not
be open to the same objection.

BRENNAN J:  Those are passages which, I imagine, most

experienced defence counsel have well and truly

tucked away in the front of their Archbold.

MR HIDDEN:	Indeed so.
BRENNAN J:	And, no doubt, there are correspondinr, passages

which many prosecutors have tucked away in the front

of theirs.

MR HIDDEN:  I cannot imagine what they are, Your Honour, but

yes, I am sure there are.

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McKinney

BRENNAN J: 

Do we not really have to look at what the judge said in the circUJ.~stances of this case rather than

seeing whether he refused to adopt the observations

that were made in particular contexts?

MR HIDDEN: 

Your Honour, in our submission, the significance

of counsel's application was this: the significance
of those passages, of course, is simply that courts

have long recognized that confessional evidence may

be unrealiable but, in our submission, that is a

matter especially within the knowledge and
experience of judges and is not, even in this day

and age, the common knowledge of the community.

What counsel was asking His Honour to do by

the course of inviting His Honour to read those

passages was to give His Honour judicial weight

to the proposition that confessional evidence may be

unreliable. He was saying to Your Honour, "Don't

just sum.~arize my submissions in this case; tell

the jury that it is the experience of courts that

this type of evidence may be unreliable". That is

what His Honour declined to do and, indeed, at

line 40 at page 241 of the application book,

Mr Flood said:

Would Your Honour give your judicial weight to the unreliability of identification evidence -

that was another matter, Your Honours, which does not

concern us for the purpose of this application -

and also to the unreliability of

Mr McKinney's confession arising in all the

circumstances in which it is arising having

regard to those breaches of the law that

Your Honour has found were breaches

amounting to illegality.

That was the gravamen of counsel's submission.

Now, we say, Your Honours, in a sense prophetically -

because it was that very issue which this Court

addressed in CARR and, again, in DUKE and it is,

perhaps, appropriate at this stage to turn to those

cases, Your Honours.

Your Honours, CARR V REG, (1988) 165 CLR 314.

That, of course, Your Honours, was a case of admissions which were said to have been recorded

but the record was not signed and in that sense,

Your Honours, we might use the expression "oral

admissions". I suppose all admissions are oral but

if Your Honours would accept that it is in that

sense that the expression is used. Certainly, it

was a case in which the oral admissions were not in

any way corroborated and, indeed, that there was

some evidence tendered to suggest that they were not true.

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To that extent, of course, it was a stronger

case than the case at bar. Your Honours, the

first matter argued was that it was a rule of law

or practice that in any case involving disputed

evidence of oral admissions the judge ought warn

the jury that such evidence ought to be closely

scrutinized before convicting upon it. With the exception of Your Honour Justice Deane, the rest

of the Court rejected that submission but did

recognize that particular cases may call for a

warning because of the special knowledge that

judges have which the community at large and

jurors, in particular, do not have about

confessional evidence and about the course of

evidence in a trial.

(Continued on page 15)

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MR HIDDEN:  The majority of the Court were of the view that

CARR was a case where such a caution ought to

have been given even though no such direction

was sought by counsel at the trial. Your Honour

Justice Brennan, at page 329, had this to say,

at about point 2 of the page:

The applicant had been in gaol. The

history of the applicant, the absence of

any independent evidence to connect the

applicant with the robbery and the belief

which the police held that the applicant

was the offender are circumstances which,

in combination, are apt to raise some concern

about the safety of acting on disputed

evidence of a confession then allegedly

volunteered.

In the next paragraph Your Honour said:

As one might expect, a powerful and proper

attack on the truthfulness of the police

evidence was made by counsel for the

applicant. The learned trial judge, in a

conspicuously fair surrnning up, impressed on

the jury the need for the Crown to satisfy

them beyond reasonable doubt that the

confession had been made. No application for

a further direction was sought. It can be

said that juries are alive to the public

debate about fabrication of evidence by

police, that the case was fought on the issue

whether the alleged confession was made and

that the jury must have appreciated the

weaknesses in the Crown case.

In these circumstances, I entirely share

the hesitation which Neasey J

who Your Honours will recall was in the minority

in the Tasmanian Court of Criminal Appeal -

expressed but, in the result, I think his

Honour was right in coming to the conclusion

that the verdict was unsafe and unsatisfactory

because no warning was given. Although the

jury were left to determine whether they were

satisfied beyond reasonable doubt that the

confession was made, without such a direction

as Neasey J. proposed their answer to that

question might well have depended on an

unsharpened comparison between the demeanour

of the police witnesses and the demeanour of
the applicant as he made his unsworn statement
and on a well-fanned suspicion that the

applicant was a dubious character who was not

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McKinney

likely to hold back on admitting a crime
until the case came to court. These were dangers

not necessarily obvious to the lay mind, and

they were dangers against which the jury ought
to have been warned in order to avoid a

perceptible risk of miscarriage of justice -

and Your Honour there referred to BROMLEY -

In the circumstances of this case, there was

a perceptible risk of a miscarriage of

justice against which it was necessary to give

a warning that the confessional evidence should

be closely scrutinized, that comparison of

demeanour is not necessarily a sound guide to

comparative veracity and that the belief

entertained by the police of the applicant's

guilt before any confession was made was a

fact which the jury might bear in mind in

determining whether the confession attributed

to the applicant had in fact been made.

Now, Your Honours, in the same case Justice Gaudron,

at the bottom of page 342, had this to say:

It must be accepted that unfortunately there

are occasions when confessional evidence is

fabricated by police officers, including by

the bringing into existence of a typewritten

"record of interview".

Now, no doubt there, Your Honours, Your Honour was

referring in the context of this case to an unsigned

one -

It must also be accepted that an accused person

faces a formidable task in asserting or attempting

to establish fabrication, notwithstanding

that the prosecution bears the task of

The contest established by challenge to establishing guilt beyond reasonable doubt.	confessional material emanating from police
officers necessarily involves an assertion
that police officers, sworn to uphold the law,
have attempted to pervert its processes - a
possibility which understandably might not
meet with ready acceptance, yet one which a
jury must accept as a reasonable possibility if it is to acquit in the face of evidence amounting to a confession of guilt.

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MR HIDDEN (continuing):  A little later, Your Honours, passing

over two sentences, Her Honour said:

The possibility that a conviction may be based

on fabricated confessional material renders it

necessary, in the interests 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 L.J. in TURNER V THE QUEEN

(86) make confessional material "difficult either

to chaJ.lenge 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.

Your Honours, we pause to interpolate that, of course, in this trial there was evidence that the usual

procedure was adopted whereby officers from the

station's staff were brought in at the end of the
records of interview to ask certain standard
questions of the applicants as to whether the
interview was accurate and whether they had any

complaints and the like. It is to that type of

evidence we apprehend Her Honour was referring

and saying it really adds nothing and does not

send the problem away. Her Honour went on:

It is inevitable and proper that the

question of fabrication should be determined

by a jury. But given the formidable task

1-:.ndertaken 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.

And at page 344 Her Honour said:

Whilst stopping short of an inflexible rule

applicable to all disputed confessional material,

I would nonetheless state my view that a trial

judge should not be hesitant to identify matters
bringing the reliability of confessional material

into question.

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And Her Honour concluded at page 345, towards the

end of the second-last paragraph: In any case where there is some matter calling

the reliability of disputed confessional

material into question it is for the trial

judge to fashion a warning sufficient and

appropriate to the circumstances of the case
to alert the jury to the necessity of
exercising caution before convicting on that

disputed confessional material.

Now, Your Honours, those principles were affirmed,

of course, in DUKE V REG, (1989) 63 ALJR 139,

which was reported around the same time. Your Honours,

it is probably not necessary to go to it except

to say this: it was referred to by the Court of

Criminal Appeal specifically in this case. DUKE

itself was a case where there was an unsigned record

of interview which, it seems, was uncorroborated,

or not corroborated in any specific way, and

in circumstances where the accused had been held
in custody unlawfully for a considerable period of
time although, as I recall it, not for as long as
the applicants were in this case, and to that

extent the Court of Criminal Appeal in this case

saw some similarity with DUKE and noted that the

majority of the court were not of the view in DUKE

that any special warning was called for.

It is to be borne in mind however, Your Honours,

that while there are some similarities between the circumstances in DUKE and the circumstances of the

case we are now arguing, there is in this case the
unusual additional feature of the fact of three men
independently confessing to sole responsibility for

the crime. It is, of course, difficult to know what

to make of that feature. One could say, well, that

adds veracity to the confessions. If the police

were to load the three of them up - if I may use that

expression in Your Honours's Court - then they would

have made sure that each of the three appeared to

make records of interview which were consistent with

each other and in which one admitted primary

responsibility and the others admitted ancillary

responsibility. That is one view, of course.

On the other hand, it is to be borne in mind that

the three men were being interviewed at about the

same time by different sets of police and, on the other hand, one might say is it likely that three men in the position of these accused would be such decent chaps

that each would be prepared to accept the entire burden

upon his own shoulders. So whatever one may make oE

this curious circumstance in the ultimate fact-finding

function, it is a circumstance, in our submission,

which is disturbing and which heightens the need for

caution in accepting the confessional evidence.

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MR HIDDEN (continuing): It may have been open to the

jury to accept it and to have explained it on

the basis which we have first suggested but

before doing so the jury ought to have exercised

great care, we would submit, Your Honour, and

in the spirit of the decisions of this Court in

CARR and DUKE, care in which they were assisted by a warning from the learned trial judge

carrying the weight of his judicial authority,
not merely a summary of the submissions, however
vigorous, Jf counsel. Now, Your Honour, looming

large here, of course, was the unlawful detention,

of itself a significant factor, we would submit.

And perhaps before turning to that, Your Honours,

may we take Your Honours to a learned article by

Mr Paul Byrne of counsel, formally a commissioner

of the New South Wales Law Reform Commission,

appearing in(1988) 62 ALJR 1046. The learned

author there analyses the decision of this Court

in CARR, Your Honours, and in page 1047 refers

to the joint judgment, the dissentingjudgment as

it turned out, of Justices Wilson and Dawson.

And towards the bottom -

DEANE J:  Mr Hidden, DUKE is really a very strong authority

against you, is it not? I mean, there you had

the unlawful detention that you have here. On the

one hand in DUKE you had an unsigned record.	Here
it is signed and the only thing you can weigh

against that disadvantage from the point of your

case is the problem about the three individuals
each admitting that he did it in attempting to

exculpate others involved with him if they were

involved.

MR HIDDEN:  Yes, but Your Honour we do submit that that is

a most striking thing, distinguishing this case

from DUKE.

DEANE J:  I do not think you can just though point to DUKE

and then side-step it. It is something that is flat

in your path, apart from that one consideration.

MR HIDDEN: Well in our submission, Your Honours, that one

consideration is sufficient to distinguish the case

from DUKE. I pause to interpolate, Your Honours:

the Court of Criminal Appeal referred to DUKE, but
themselves almost en passant.At page 302 of the

application book in the second paragraph

Their Honour said:

Interestingly enough in DUKE there were

similar circumstances led in evidence and those

circumstances were not considered to give rise

to a need for the direction now sought. That,

however, is by the way for it is necessary to

determine each case on its own particular circl.ITI!Stances.

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Your Honours, I do not immediately recall the

length of the unlawful detention in DUKE, and

my learned junior is just checking that up. Yes,

it appears from Your Honour's judgment, that is

Your Honour Justice Deane at page 143 - in the

second column, the second sentence in the first

complete paragraph:

He had, by then, been held in police custody

for some six hours without any effort at all

being made by the police to discharge their

statutory duty to take him before a justice - Now, Your Honours, the situation here was - - -

DEANE J: If you look at that paragraph though, which I presume

is accurate, there were other matters in DUKE which

raised real doubts about the reliability. His

consistent refusal to sign anything was one thing.

MR HIDDEN:  I appreciate that, Your Honours, but, with respect

Your Honour, that is why we are here. DUKE on its

face is against us or DUKE in one sense is a case more

favouring a direction than this one, but the difference

is there is this significant circumstance that three

men appear to have carried the burden on their

own and the question which arises,in any event,is

whether the fact that records of interview are

signed would necessarily disqualify one from a

direction in an appropriate case.

(Continued on page 21)

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MR HIDDEN (continuing): The question which arises, in any

event, is whether the fact that records of

interview are signed would necessarily disqualify

one from a direction in an appropriate case.

The Court of Criminal Appeal do not, in turn,

suggest that he would but the case raises that

unusual circumstance.	And to that we will turn
in a moment, Your Honours.	The passage in Mr Byrne's

article to which we wish to refer Your Honours

is that appearing at the bottom of the first column

at page 1047. Having referred to the joint judgment

of Justices Wilson and Dawson the learned author

wrote:

Whilst their Honours have followed the

modern trend away from "formula" directions - and he refers there to a number of cases in England,

here and Canada -

they have, with respect, overlooked the fact
that the categories of evidence where a warning

is required have undoubtedly changed as the

criminal law recognises changing standards

and altered values. Because there is now

a general view that the evidence of the victim

of a sexual offence does not suffer from an

"intrinsic lack of reliability", most

jurisdictions in Australia and elsewhere have

abandoned the mandatory requirement, developed

in the seventeenth century -

and he refers to Hale -

to give a corroboration warning in sexual

assault cases. Some jurisdictions have, more

controversially, abandoned the requirement

for a warning regarding the evidence of children - and there is reference to a New South Wales provision.

The learned author then refers to the warnings

given in identification cases and suggests some

other areas where warnings might be given and

then continues at the bottom of the second column:

The rationale behind the development

of judicial warnings being given for particular
categories of evidence is based on judicial

experience of the dangers inherent in that

particular form of evidence.

Your Honours, our submission is, in other words,

that the attitude of the courts to the giving of

a warning necessarily changes with the times and

with judicial experience as the time throws it

up.

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It is our submission that in this day and

age courts should not be slow or trial judges should

not be slow to give warnings with the weight of

their judicial authority in cases where disputed

confessional evidence is a significant part of

the Crown case. And if there were any doubt about

that as far as signed records of interview are

concerned, we would submit that modern experience

has put that doubt at rest too.

It is in this context, may we take Your Honours

to the unreported decision of the Court of Appeal

in England in REG V RICHARDSON AND OTHERS.	We
somewhat regret the state of play here.	Your Honours

were referred to a Times newspaper report of this

case. We have since obtained a computer print-out

by some system known as Lexis in England of the

complete judgment in the matter which I believe

Your Honours have now. We had hoped to have the

judgment officially issued by the court and, indeed,

yesterday it was faxed to us by counsel who is

a friend of my learned junior in London but the

faxed copy was illegible, Your Honours, we regret, but

we have no reason to believe that the computer

print-out is not an accurate statement of what

the Court of Appeal had to say in that case.

Of course, Your Honours, this was the celebrJted

case of the Guildford four who, as Your Honours

will recall, were found guilty many years ago of

two bombings - IRA's type bombings - at Guildford

and, indeed, two of them were also convicted of

a bombing at a hotel in Woolwich. These events

were said to have happened in 1975 and 1974

respectively.

Significantly, Your Honours, the report reveals that all four appellants had made either records

of interview which they signed or had themselves

made hand written statements. If I could take

Your Honours to the fourth page of the judgment

which is numbered page 8 of this computer print-out,

at the middle of the page the court referred to

the case against the appellant Armstrong and noted

that:

Armstrong made two statements which he signed.

They amounted to confessions that he had taken

part in the Guildford bombing.

Their Honours refer in that paragraph to the nature

of the statement; Armstrong's defence was, in effect,

an alibi and in the next paragraph Their Honours say

that Armstrong said of those statements that they:

C2Tl4/2/ND	22	31/5/90
McKinney

were untrue except for -

certain -

personal details he had given ..... He signed

the false statements, he said, because he

had been high on drugs when he was arrested

and when the effects of the drugs had worn

off he was induced to sign these statements

because he was frightened of the police

officers. He said he had been treated with

brutality by the police -

BRENNAN J: What is this going to tell us about the Australian

scene?

(Continued on page 24)

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MR HIDDEN:  It is going to tell us this, in our submission,

Your Honour, that as judicial experience of confessions

progresses it is clear that even signed confessions

may be unreliable and in this case, we submit,

Your Honours, it was shown that signed confessions

were completely unreliable and as that judicial

experience develops judges ought - in the spirit of

the suggestions, if we may say so, made bv Mr Byrne

in his article - adapt and tailor

appropriate warnings in appropriate cases, in our

submission, even in cases where confessions are

signed. That is the submission, Your Honour. On

the next page the court turns to the case of - - -

BRENNAN J:  Telling a jury what, Mr Hidden, precisely? I

mean, in the circumstances of this case what

precisely is the warning that you say should have

been given that was not given?

MR HIDDEN:  Yes, Your Honours, we will turn directly to that.

In this case, Your Honours, we submit the warnings

should have been these:  that in comparing the

credibility of the police officers on the one hand and the applicants on the other they ought bear in

mind that the police are practised witnesses, and

there was actually evidence led from each of the police

officers as to his experience and as to the hundreds

of times he had given evidence; they should have

been warned, in the light of the evidence, that the

police believed the applicants to be guilty, or this

should have been pointed out to them, and that, on

the evidence, there was knowledge that McKinney at

least had a criminal record - that was actually

elicited at page 115 of the application book; they

should have been warned that although the confessional

evidence was signed it was not corroborated in any

relevant respect.

By that, Your Honours, we mean this. True

it is that there was evidence other than admission

that Judge was in possession of a gun similar to that

said to have been used or said to have been seen at

the house in question, but there that evidence ended.
True it is that the men were seen by Ms Williamson

to leave the house on the morning in question with the

apparatus of a break and enter and return some time

later looking somewhat shaken. That is as far as

that goes. As to what happened at the house, which

was vital, Your Honours, the only evidence really
was that of the confessions. Ms Milson said two men

came in. She could not identify them. One of them

tied her up, demanded money, then she heard a gun go

off. Who were those two men? Which man did what?

If any man did anything was he aided and abetted by

anyone else?	The only information in answer to those
questions,	which were vital, emanated from the

records of interview. It is in that sense, we would

C2Tl5/l/HS	24	31/5/90
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submit, Your Honours, that the records of interview

were not corroborated in any relevant respect.

Further, Your Honours, we submit that the judge

ought to have warned the jury that there are dangers
in convicting on confessions made by men who have been
held in unlawful custody for a lengthy period because

that custody means they do not have access to legal

advice, to family or friends, and their opportunity

to go before a magistrate, if approor~~te protPSt
their innocence and seek their release on bail, is delayed. In
this case, of course, not delayed reasonably, not

delayed lawfully, but delayed blatantly unlawfully

for a period of really more than 24 hours.

BRENNAN J:  We are not speaking here about a discretion to

reject for unfairness. We are speaking about a direction to a jury that because they are held unlawfully that is a circumstance which the jury

should bear in mind in determining what, the veracity?

MR HIDDEN:	Yes, Your Honour.
MASON CJ:	But none of the specific directions were sought,

were they, as distinct from the suggestion that a

general direction should be given as to the danger

of convicting or of accepting confessional evidence

on the footing that it is or may be unreliable?

MR HIDDEN: 

Your Honour, that is quite so, and, of course,

these issues which were raised in CARR and DUKE were
no doubt not immediately present to the mind of counsel
because those decisions had not yet come to fruition.

Of course, in CARR itself no redirection was sought

at all by counsel who actually argued the appeal in

this Court and was also counsel at the trial.

(Continued on page 26)

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MR HIDDEN (continuing):  So that we vX)Uld submit that Your Honours

would not see great significance in the fact that

these directions were not in tenns sought - well,

Your Honours, except to say this, at the top of

page 241 of the application book, before counsel's

request that His Honour refer to the various

passages from judgments as to confessional

evidence, counsel said this:

Your Honour repeated on Monday of this week

that the question is whether the alibi raised

a doubt in your mind that he did not commit

the crime. Well, I have made my submission.

Your Honour has reinforced that legal direction,

in my submission

I am sorry, Your Honour, this is the relevant

passage:

Your Honour reinforces this aspect,

you are not concerned with illegality, that

is police illegality, you are concerned with

reliability -

counsel was there referring to an earlier direction

His Honour had made in which His Honour sought to

separate His Honour's function in determining

admissibility and that of the jury in determining

reliability; counsel went on -

and it is my submission that they can look at the illegality as one of the oppressive

acts giving rise to an unreliable document

or that their illegality would stretch so far

they are prepared to break the law and

manufacture evidence or the jury will have a

doubt about that.

MASON CJ: That was put to the jury, was it not?

MR HIDDEN:  Your Honour, it was put as the effect of counsel's

submissions. We submit it ought to have been

supported by the weight of His Honour's authority.

In other words, "I,as the trial judge, warn you to

scrutinize carefully confessions produced after

lengthy periods of custody, especially periods of

custody in which persons are being held illegally."

MASON CJ:  What was the strongest statement made in the

directions given to the jury about careful scrutiny

of the confessional evidence?

MR HIDDEN:  My recollection, Your Honour, was the direction

as to the necessity of being satisfied beyond

reasonable doubt, upon that evidence, and my

learned junior will just turn that up.

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Your Honours, the next matter in respect of

which we say His Honour should have given the jury

direction was that there was no admission of

any significance in either record of interview

which could not have been fabricated by the police

on the basis of the material they already had

and, finally, that the jury ought scrutinize the

confessional evidence carefully because of the

unusual fact that three men appeared separately

to have accepted by confession the whole burden

on their own shoulders, and His Honour ought,

himself, to have cautioned the jury about accepting

the confessional evidence in the light of that.

MASON CJ:  Mr Hidden, it seems to me that what you are

suggesting is that we should prescribe that in a

particular case very specific direction should be

given, tailored to the circumstances of that case. It does not seem to me that the submission you are

now making raises a question of general principle

which would have a wide-ranging application in the

criminal law.

MR HIDDEN: Well, Your Honour, we cannot submit any more than

that the question of whether direction is called

for is a matter for the trial judge on the evidence

in the instant case, because that is what this

Court held in CARR. None the less, the majority

in CARR did grant special leave and did

intervene because in their view in that case the

directions were not adequate. However, Your Honour,

the additional unusual feature of this case, we

submit, Your Honour, is that the submission is that

such directions might be called for even where .a

signed record of interview is involved. We submit

that this Court has not squarely yet considered

that question and that the guidance of courts of

trial is called for in that regard, that is, in a

case where signed records of interview are involved

and, indeed, in a sense, the urgency of the guidance

by the decision of the Court of Appeal in RICHARDSON,	of this Court in cases of that nature is demonstrated
where signed confessions were actually found to be clearly unreliable and convictions were quashed
in the teeth of them.

That case is a recent and dramatic demonstration

of the potential unreliability of even signed

confessions.

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MR HIDDEN (continuing):  As to the matter raised by

Your Honour the Chief Justice concerning the

summing up, my learned junior refers me to a

passage at page 192 of the application book In that passage His Honour squarely puts it to the

jury that they must be satisfied beyond reasonable

doubt of the confessional evidence and that

appears, Your Honours, to be the strongest direction

given by His Honour. And, indeed Your Honours, our

complaint is that that is the only direction of

law which His Honour gave them concerning the

confessional evidence. That is the only direction

which carried the weight of His Honour's authority,

rather than a restatement of counsel's submissions.

BRENNAN J:  The problem of a signed confession is, of course,

different from that of an unsigned confession.

MR HIDDEN: Clearly, Your Honour, of course.

BRENNAN J:  Because one of the critical factors is how come

there is a signature by the accused on a document.

MR HIDDEN:  Of course, yes.

BRENNAN J: Well now, in this case, the statement from the

dock by Judge says, it is there because, "They

threatened to do terrible things if I did not put

it there." I presume that was put to the police

officers in cross-examination?

MR HIDDEN:	Yes, Your Honour, in detail.
BRENNAN J:	And I presume it was one of the critical issues at
the trial?
MR HIDDEN:	Yes, Your Honour, indeed.
BRENNAN J:	Could the jury have failed to appreciate that that really

was the question for their consideration, and let me add a

further question_ and do the courts have any special

experience which would tell them that there is a risk

of police making threats of that kind to procure

signatures to confessions?

MR HIDDEN:  Yes, Your Honour, in our submission.yes. No doubt

the jury were aware of the issue to be determined by

them. What we are saying, Your Honour, is that in

determining that issue they required the assistance of

the trial judge's experience, or the experience of

courts. Your Honour, now that Your Honour mentions it,

there is a passage which I cannot immediately turn to,
but one of the police officers,I believe Detective Cohen,
was asked in cross-examination, I think by my learned
junior, or said in answering to my learned junior in

cross-examination, that he had never heard of any case

C2T17/1/JL	28	31/5/90
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where people had been leant on in police stations.

It is page 121 of the application book, the last

four questions:

. You have heard of people being lent on in

N.S.W. police stations as well, haven't

you? A. I would not say people have been

lent on in N.S.W. Police stations.

Never heard of that? A. I have never heard

of people being lent on.

Never heard of police in N.S.W. fabricating

confessions? A. No.

Never heard of them forcing people to sign

a fabricated confession? A. No.

Well, now, Your Honours, what might that convey to

a jury? That is the sort of thing that invites the

judge - - -

BRENNAN J: That is the thirteenth stroke of a crazy clock.

MR HIDDEN:  I am sorry, Your Honour.

BRENNAN J: That is the thirteenth stroke of a crazy clock.

MR HIDDEN:  I appreciate that, Your Honour, but in our submissions,

Your Honours, that is the very sort of evidence which
requires the trial judge to come in and say, "Now

come on, ladies and gentlemen, let us face it,

confessions are sometimes fabricated., It is the

experienc of courts and people are sometimes leant on11 • That is judicial experience. It is

that sort of material, Your Honour, which we say

heightens the need for a warning. Maybe to the

jury it was transparent Your Honour, we do not know

We as lawyers do know, that is just not true. We

do not know what the jury knows and the jury needs

the experience of lawyers to assist them. They may well

know what the issue is but to assist them in
resolving it, they are entitled to the experience of
the courts in this sensitive, but in this day and age

highly controversial area of confessions.

Your Honours, those, in short,are our submissions.

As to the significance of the detention on which great

weight was placed in the course of the argument and,

indeed, in this application, it is sufficient, really

to refer Your Honours to the many statements of this

Court and of judges of this Court, as to the sanctity

of personal liberty and as to the illegality of

detaining persons for the purpose of questioning rather

than police officers honouring their obligation under the corrm:m

law and in New- South Wales by statute, to take persons arrested

as soon as practicable before a magistrate to be charged.

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MR HIDDEN (continuing):  Your Honour Mr Justice Deane has

said so in many cases in another context.

Your Honour referred to it in

RE BOLTON EX PARTE BEANE, 162 CLR 514, to which

we do not propose to refer now, Your Honours.

It was, of course, emphasized, Your Honours, by

many members of this Court in WILLIAMS V REG,

161 CLR 278. It was referred to, again in a

different context, in trenchant terms

by Mr Justice Fullagar in TROBRIDGE V HARDY,94 CLR 147

and there are many other references.

Again, Your Honours, the sanctity of personal

liberty and the illegality of detention for the

purpose of questioning is a serious question of great

contemporary relevance.

Your Honours, the other matter, and I am

mindful of what Your Honour Justice Brennan had to

say in CARR about the fact - - -

DEANE J:  Mr Hidden, before you go on, can I divert you?

You referred to Ms Williamson's evidence. I have

had a little difficulty in fitting it in partly,

possibly, because of the limits of the material but

am I correct, her evidence was consistent with the

records of interview and inconsistent with the

unsworn statements of your clients?

MR HIDDEN:  Your Honour, it was inconsistent in so far as they raised alibis, yes. Her evidence was that the

three men did leave the flat at Parramatta on the

morning in question and, indeed, I think, the

evidence of Rossiter was, "Left armed with a

paraphernalia of a break and enter".

DEANE J:  I may have got it wrong but was not the evidence

of one of your clients that he was not even there?

MR HIDDEN:  Yes.

DEANE J:  That he was at home so that it was not only a

matter of her evidence as to when they left, it was

her evidence as to their being there?

MR HIDDEN:  Yes, Your Honour, that is quite so. My learned

junior reminds me, Your Honours, that she was a

heroin user who had used heroin that way and was

declared a hostile witness, in fact.

DEANE J:	I appreciate the attack on her evidence and so on.
MR HIDDEN:	The other significance of her evidence, Your Honour,

was certain admissions said to be made to her by

De Cressac but, of course, Your Honours, her

evidence is certainly significant to that extent and

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it is inconsistent with her assertion that they

were not even there and were somewhere else.

However, as we said earlier, Your Honours, even

assuming that there is sufficient evidence that

the three men went to the house at Dharruk, what

happened there and who did what and what the

involvement of the others was can be determined

only from the records of interview and from no

other source.

DEANE J:  The reason I asked you is that rightly or wrongly

I keep comparing the facts of this case with the

facts in DUKE and there was no evidence in DUKE

which could be said to play the part of

Ms Williamson's evidence in this case.

MR HIDDEN:  No, Your Honour, as I apprehended in DUKE

there was absolutely nothing but the confession,

nothing at all.

DEANE J:  There was nothing at all, yes.

MR HIDDEN:  That is so, Your Honour. Your Honours, may we

conclude with an observation about the necessity for mechanical recording of confessions. I mean,

as long ago as 1977, Mr Justice Gibbs referred to

that in DRISCOLL. I appreciate that

Your Honour Justice Brennan in CARR said, "Well,

the courts can't replace the legislature and
the court must deal with the law as it stands",
but this case, again, raises the pervasive

problem of the inadequacy of recorded confessions

and, in our submission, RICHARDSON shows

dramatically in recent times that even the

signature or the handwriting might not be good

enough and the confession may yet be unreliable.

Your Honours, we have prepared, if

Your Honours are prepared to receive them, a

sunnnary of developments in New South Wales concerning

the question of mechanical recording of interviews

in police stations. We gather that Your Honours

in CARR were brought up to date as to the state of

play, at least, in Tasmania and in other areas.

I wonder whether we might hand up to Your Honours -

I think my learned friend Mr - - -

BRENNAN J:	What is this to show, Mr Hidden?
MR HIDDEN:	We have got to say, Your Honours, in relation

to this case, absolutely nothing, I suppose.

BRENNAN J:  That the police are dragging their feet, is that

it?

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MR HIDDEN:  Well, someone is dragging their feet,

Your Honours. The present state of play in

New South Wales appears to be, Your Honour, that

the Attorney-General's Department have, in fact,

called for tenders for the requisite equipment

but there is an argument as to who is to pay for them

and at the moment the Treasury is not prepared to

do so.

MASON CJ:  That is not unusual, is it, that -

MR HIDDEN:  We appreciate that, Your Honour. If the

Court pleases, those are our submissions.

MASON CJ:  The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 11.36 AM SHORT ADJOURNMENT

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UPON RESUMING AT 11. 50 AM:

:MASON CJ:  Mr Hidden and Mr Howie, the Court has come to the

conclusion that in view of the importance of the

submissions made on behalf of the applicant

the application is one that should be heard by the

entire Court so that questions arising from the

judgments and the differences of opinion in
CARR and DUKE can then be considered by the entire

Court and to that end we propose that the matter

should stand adjourned today so that it can be

fixed for some convenient date in the future.

MR HIDDEN: If the Court pleases.

MR HOWIE: If the Court pleases.

AT 11.51 AM THE :MATTER WAS ADJOURNED SINE DIE

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