Miles v The Queen

[2000] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D14 of 1999

B e t w e e n -

BRETT VERNON MILES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 24 MARCH 2000, AT 12.11 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with MS S.J. COX, for the applicant. (instructed by NT Legal Aid Commission)

MR R.S.L. WILD, QC:   If the Court pleases, I appear with MS J.M. BLOKLAND, for the respondent. (instructed by the Director of Public Prosecutions (Northern Territory))

GLEESON CJ:   Yes, Mr Grace.

MR GRACE:    If the Court pleases.  This application raises issues concerning: firstly, the operation and interpretation of a common form statutory provision throughout Australia, which allows in certain circumstances the admission into evidence of disputed, unrecorded admissions or confessions; secondly, the practical content of the McKinney warning, when such evidence is admitted; and thirdly, the requirement for, and content, of an Edward’ direction, where the suggested lie is essentially a denial of the prosecution hypothesis by the giving of evidence by the accused, proffering an alternative explanation.  It is submitted that this case is an appropriate vehicle to examine all of these issues.

In relation to the first issue, section of 143 of the Police Administration Act of Northern Territory is a common form provision replicated in similar form throughout Australia.  Your Honours, I prepared a table, which I have provided to the Court, which I assume your Honours have, which outlines the position in the various jurisdictions throughout Australia concerning the admission into evidence of disputed confessions of this nature.  One will see that the provision in the Northern Territory is expressed in wide terms, without much direction at all to courts as to the matters to be taken into account.  A similar position applies in Queensland and in Victoria.

GLEESON CJ:   Could you just remind us of the circumstances in which this admission was made?

MR GRACE:   Yes.  What occurred was this:  there was a search warrant executed at the residence of the applicant.  During the course of a search of the premises the applicant was interviewed on tape.  Two police officers at least had tape recorders in their position, hand held items, which allowed the tape recording of confessions.  After the conclusion of a first tape recorded conversation, the tape recorders were switched off.  After they were switched off, at some stage there was a discussion between the applicant and police officers wherein the police officers depose, and the applicant denied, that the applicant had said to the police officers, in effect, I will talk to you if the tapes are not on.  The police officers gave an indication that the tapes were not on.  The applicant was said to have then directed the police officers to the location of the heroin.  Subsequently, the applicant was again spoken to by police officers on tape at the premises.  No mention of that conversation was put to the applicant, but the applicant denied that he had any knowledge of the location of the heroin or of the heroin.

Subsequently he was taken to the police station, he was interviewed, it was never put to the applicant that he had made any admission or confession in respect of the location of the heroin.  It was neither put to him that he had requested the police to not tape record a conversation.  The first time that the applicant was presented with the evidence in relation to what he is alleged to have said to the police was at the committal proceedings.  So the police explanation for failing to put the material to the applicant during the course of the record of interview was that, we were being fair to the applicant, because it would have been unfair to have put it to him, for confirmation, given that we had given an undertaking to him not to record the conversation, that it will be off the record.

KIRBY J:   This was good manners, but when it was useful, it came out later.

MR GRACE:   Yes.

KIRBY J:   This used to be a very common problem.

MR GRACE:   Yes, and the ruling of the learned trial judge, and the endorsement of that ruling by the court below, in this case, in effect, may give an imprimatur to police officers throughout Australia to adopt similar tactics as a means of circumventing the legislation and it would bring into play again the spectre of verballing which it was hoped that the enforced recording of conversations between suspects and police officers would avoid.

GLEESON CJ:   And the legislation gave the trial judge a discretion, is that right?

MR GRACE:   Yes.

GLEESON CJ:   And what was the error in the exercise of the trial judge’s discretion?

MR GRACE:   The error was that the trial judge did not take into account relevant matters concerning the exercise of discretion and further that he took into account irrelevant matters.  What those matters were, were these:  The rationale behind the introduction of these provisions, which was to avoid disputes as to the making of admissions or confessions, to avoid untrue allegations of fabrication against police officers being made and, importantly, to ensure the reliability of confessional material and, not insignificantly, to improve the administration of criminal justice and avoid it being brought into disrepute.  His Honour Justice Deane in Pollard at page 205 identified those issues ‑ ‑ ‑

KIRBY J:   I think you are back on telling us why this is very important and we know that it is very important; now what was the error of the discretion of the primary judge?

MR GRACE:   Because his Honour failed to take into account the rationale behind the introduction of these provisions in the first place and what I am seeking to identify to the Court is, where the error was in his Honour’s reasoning process was, at no time did he take into account the very matters that caused the introduction of this legislation in the first place and one of the matters I was about to take the Court to was the matters that Justice Deane referred to in Pollard, and the ‑ ‑ ‑

CALLINAN J:   How do you get around what the Court of Criminal Appeal said at page 87 line 15:

On the other hand, there was no unfair disadvantage to the appellant in admitting the evidence.  As the appellant’s position was that no such conversation occurred at all, there was no disadvantage in not being able to accurately recall events.

MR GRACE:   Well we say that there is substantial potential unfairness to the applicant.  Could I take you to ‑ ‑ ‑

KIRBY J:   You say, I suppose, the disadvantage is a) if he was in the confessing mind, he has not had his exact words of confession recorded, and b), if he was not in the confessing mind, then the statute has been circumvented and allegations have been put in his mouth which he did not say, on tape, as was the purpose of the legislation.  So it is a big disadvantage, because jurors might accept what is put in his mouth, whereas the whole point of the legislation was to put that issue out of contest.

MR GRACE:   Yes.  There are two further matters:  firstly, that there is effectively an abrogation of the right to silence at trial.  The trial is furthermore imbalanced.  The accused is required to put his or her own character into issue by cross-examining the police officers as to the fact of fabrication and that may have ramifications later on in the trial process.  In the Court of Appeal in England, in the matter of Keenan, these issues were recognised, and can I take your Honours to that case very briefly?

KIRBY J:   I suppose if a person has a long record, they have got to make a very critical decision as to whether they enter upon this and, in effect, if police know that a person has a long record then you run the risk of circumventing the statute because they know that, in effect, in many cases, the person cannot challenge it.

MR GRACE:   Yes, exactly, your Honour.

KIRBY J:   What is the name of this case, the English one?

MR GRACE:   Reg v Keenan (1990) 2QB 54.

GLEESON CJ:   Yes.

MR GRACE:   And can I take your Honours to page 66 in the judgment of his Honour Justice Hodgson at paragraph C.  Do your Honours have that page?

GLEESON CJ:   Yes, thank you.

MR GRACE:   The third line into paragraph C:

If he rules against admissibility –

this is the trial judge –

it may be that where, as here, the other evidence is not strong, the defendant will exercise his right not to give evidence.  To permit the evidence of the interviews to be given may therefore effectively deprive the defendant of a right he would otherwise have had.

And, ultimately, at page 70 at paragraph C his Honour said:

If the defence case was to be (as it turned out to be in fact) that the evidence was concocted, then it was unfair to admit it, because by doing so the defendant was not only forced to give evidence but also, by attacking the police, to put his character in issue.  If the defence was to be that the interview was inaccurately recorded, then it was plainly unfair to admit it, because it placed the appellant at a substantial disadvantage in that he had been given no contemporaneous opportunity to correct any inaccuracies nor would he have his own contemporaneous note of what he had said.

So I trust that that answersyour Honour Justice Callinan’s question as to why the comment at page 87 was in error, in our submission.  So our primary submission is that ‑ ‑ ‑

KIRBY J:   Did he make any admissions that are relevant in the record of interview that is taken and is recorded amongst the papers here?

MR GRACE:   No, he did not and, indeed, the record of interview, as I understand it, was not admitted into evidence at the trial.  Our primary submission is that the learned trial judge failed to consider what we say were relevant matters and took into account irrelevant matters; this was perpetuated by the Court of Appeal and highlighted by the passage that your Honour Justice Callinan alerted my attention to and therefore the decision was ‑ ‑ ‑

KIRBY J:   It is a bit like what used to happen in the days before sound and video recording, when there was the practice of the formal record of interview, that the police would give evidence sometimes that the person, the accused, had declined and said he never gave records of interview, but off the record he would say such and such; that was the whole object of the sound recording and video recording to circumvent that problem, which was as damaging to the reputation of police as it was to the fair trial of the accused.

MR GRACE:   Yes.  It may be said in opposition, well, how could you expect there to be circumstances that would allow material such as this to ever be admitted in the proper exercise of discretion, and our answer to that is this, that there are a number of examples that one can envisage whereby this material would get in.  One would be where it was not disputed that the accused person had made the admissions or confessions and it was a matter that the accused thought that he or she would obtain some forensic advantage from, to allow its admission; secondly, where there was independent confirmation of the fact of the conversation having occurred, perhaps not by a police officer, but by an independent third party, there may be some diary entry of the accused or some other piece of material; thirdly, where there is independent proof of mechanical failure and it is not disputed and fourthly ‑ ‑ ‑

GLEESON CJ:   I should have thought that the most damning aspect of this evidence was not what he said to the police, but the fact that he led them to the heroin.  What if he had said nothing, but had just crooked his finger and led them to where the heroin was?  That would be the substantial evidence against him, would it not?

MR GRACE:   Well, as I understand, he did not physically lead them to the heroin.

GLEESON CJ:   Well, he showed them where it was.

MR GRACE:   He is alleged to have pointed out where the heroin was.

GLEESON CJ:   Well, suppose he just pointed his finger, would that have been inadmissible?

MR GRACE:   Well, it would have to be referable to some conversation; it could not have occurred in a vacuum.

GLEESON CJ:   Not quite, but suppose that after the tapes were off, without any further conversation between him and the police, he had walked to a part of the room and pointed his finger and the police had looked there and found heroin.  Now, how would the legislation have ever borne on the admissibility of that evidence?

MR GRACE:   It would not.

KIRBY J:   Why is that not a fourth category that – there are three categories you mention and one, at least, would make this not a suitable vehicle to raise the general issue of confession or statements outside the tape.

MR GRACE:   Because one cannot look at that issue in a vacuum; it had to be prefaced by conversations, obviously concerning whether there was heroin or narcotics in the premises.

KIRBY J:   Look, there are plenty of confessions made without hard evidence of this kind.  That would be the occasion for us to review this general issue.

MR GRACE:   Well, there was never an opportunity given to this applicant to comment upon any of that material, even the pointing, if there was a pointing; there was never an opportunity in this case for him to ‑ ‑ ‑

GLEESON CJ:   It was the police allegation that he indicated to them where the heroin was that was the gist of the damaging evidence against him?

MR GRACE:   Yes, and he gave them verbal direction as to where it was, according to the police.

GLEESON CJ:   Do you not think you had better move to the McKinney direction?

MR GRACE:   Yes.  The McKinney direction, we say, was deficient in two respects and those two respects are set out at paragraph 34 on page 114 of the application book. The first respect was that:

The Learned Trial Judge neglected to mention the need to look for corroboration of the evidence –

of the police officers concerned –

or, if none existed, that fact.  His Honour only referred to the Accused’s inability to call evidence in corroboration of the fact of him not making any admissions.

And, secondly:

The Learned Trial Judge failed to draw attention to the matters which brought the reliability of the admission into question, namely the police officers’ failure to confirm, or seek to confirm, the substance of the admission –

nor the request not to tape the conversation –

during the tape-recorded interview.

And the proof of those omissions appears in the perusal of the directions at pages 34 and 35 of the application book.

Now it is important to note that in two jurisdictions, and your Honours can discern this from the table that I have provided to you, both in the Commonwealth Crimes Act and in the South Australia legislation there is a requirement by the judge, by the court, to point out to the jury that there has been non-compliance if there is admission notwithstanding and as to the nature of the non-compliance and those were both matters that affected the reliability of the confession material and both matters were not brought to the jury’s attention when we say they ought to have been and, in the circumstances, full compliance with the McKinney direction was necessary to ensure a fair trial.  The failure to do so prejudiced the applicant by depriving the jury of the opportunity to appropriately scrutinise the police evidence of the alleged admission.              The court below, with respect, missed the point that reliability was a crucial issue and a central matter of dispute in the trial.  A direction with judicial imprimatur was required.

Now, if I could move quickly onto the Edwards’ point and say this, that there must be something more than the effective denial of the prosecution case to give rise to an Edwards’ type direction.  In this case, all there was was the prosecutor in his final address saying to the jury, you have heard the evidence of the applicant, he has told you a pack of lies.  That justified, according to the trial judge, the giving of the Edwards’ direction and what, in effect, that did was to elevate the evidence of the accused person to the level of a suggested or possible lie and, in effect, was only a denial of the prosecution evidence. 

That was a course that was admonished in the New South Wales Court in Zheng’s Case (1995) 83 A Crim R 572 -and your Honours will have that in your material - in the judgment of his Honour the Chief Justice at Common Law, Justice Hunt, his Honour in Zheng said this, at the bottom of page 576:

Once the jury had reached that conclusion concerning the appellant’s conduct, there was nothing further which the Crown had to establish relating to that particular conduct of the appellant.  For the jury to be invited to conclude that the appellant’s lies concerning his conduct in the car park was available as evidencing a consciousness of guilt, which could then in turn be taken into account in some way in determining whether the appellant had in fact conducted himself in that way is a wholly circular argument.

In other words, the appellant’s lies as to what he did in the car park –

which was an involvement suggested in the sale of heroin –

could not logically be established without first reasoning that the appellant had in fact done in the car park what the Crown’s witnesses said that he did –

and that was an example of circular reasoning which, in effect, negated the verdict resulting in a retrial.

KIRBY J:   We have heard a lot of these arguments in Zoneff, which stands for judgment.

MR GRACE:   Yes, I am aware of that.

GLEESON CJ:   Thank you, Mr Grace.  Mr Wild, we do not need to hear you on the issue about the discretion of the trial judge to admit the evidence

or about the Edwards’ point.  You might confine your submissions to the complaint about the McKinney direction.
NEWSPEAKER
MR WILD:   The McKinney direction.  Thank you, your Honour.  Your Honour, what his Honour did say throughout the whole of the course of the voir dire was that there would be need for a McKinney direction and, in fact, he endeavoured to give a McKinney direction in the context of this case.  What my learned friend points to in his submissions is two matters that he says indicated a deficiency and, as I understand it, one of them was a suggestion that in all cases it was necessary that there be corroboration or warning that there should be corroboration.

If you look at what his Honour did, in fact, give to the jury it was a direction that they should be very careful indeed as to what it was that they should find and look for and this appears at pages 34 and 35.  For example, at the top of page 35 of the application book, starting at the bottom of the previous page:

Bear in mind the circumstances that I put to you and remember that that may cause you to give pause and think carefully about whether you should convict a person on the basis of those sets of circumstances as they are in this case.  You need to give careful scrutiny to the evidence.  You must remember that police witnesses are often practised in the giving of evidence as opposed to an accused person who rarely is.  And sometimes it might be more difficult to tell if a policeman is doing the best he or she can to tell you the truth as opposed to prevaricating or fabricating or telling you whoppers.  But it is important to just bear those things in mind when you come to consider it whether or not that confession, so‑called, was made.  If so, whether it was in the terms it was made, and if so, whether it is safe for you to rely upon it.

Now, as I say, I do not raise that as against the police force generally or against these police in particular.  The accused says that because he alleges this is a fabrication and it is for you to make up your mind about it.  I just give that word of warning:  give it very careful consideration if it is the substantial reason why you come to a conclusion that he is guilty.

So you look at that in that sort of light.

And then he goes on and continues with the accused giving evidence and then, almost immediately after that, he gives another version of the golden thread and the presumption of innocence in favour of the accused which reinforces, the Crown would say, what has gone immediately before.

Now, your Honours, what McKinney has said, we would argue, is very similar to the wording used by his Honour and the wording itself almost follows word for word in some parts what his Honour Justice Deane said in Carr’s Case which is adopted by the Court in McKinney.  It is our submission that what his Honour did was properly to draw attention to the matters that were relevant.

In the second point that my learned friend raises, he draws attention to the police officer’s failure to confirm or seek to confirm the substance of the admission.  That is a matter that the trial judge considered and the Court of Criminal Appeal considered and took the view that in the circumstances it was reasonable that the police officers did not endeavour to have that matter brought to his attention and tested again at that point.

GLEESON CJ:   Thank you, Mr Wild.  Is there anything you want to put in reply, Mr Grace?

MR GRACE:   Yes, I do.  I know your Honours have effectively shut me out of any reply in respect of the first point but could I remind your Honours what the evidence was and that appears at page 81 of the application book concerning the off‑tape conversation, about seven lines from the bottom:

We – we told him there was no tapes.  He could see Detective McDonagh had his tape recorder in his hand.  He probably wouldn’t have been aware I had one, and then Detective McDonagh asked him, ‘Well, where is the gear?’  We were standing towards the end of the bed and we could see out through – out through the window, out to the – towards the – overlooking the carpark, out towards the swimming pool area and that was when he told us where the gear was, so to speak.

What did he say about the position?---well, he said it was near the – near the swimming pool, in the swimming pool area where the filter hose came out or the hose came out of the filter.  It was buried in the ground.

No evidence of acts, pointing.  I just point that out to your Honours. 

The second point is this, concerning the McKinney direction.  In McKinney itself their Honours, then Chief Justice Sir Anthony Mason and Justices Deane, Gaudron and McHugh at page 476 said this, at about point 5 on the page:

And, of course, the trial judge’s duty to ensure that the defence case is fairly and accurately put will require that, within the same context, attention be drawn to those matters which bring the reliability of the confessional evidence into question.  Equally, in the context of and as part of the warning, it will be proper for the trial judge to remind the jury, with appropriate comment, that persons who make confessions sometimes repudiate them.

The second point I want to make on the topic is this.  In the Commonwealth and in South Australia there are statutory provisions which provide that if a judge permits evidence to be given before a jury, notwithstanding that it has not been recorded, the judge must inform the jury of the non‑compliance with the requirements of the section or the absence of sufficient evidence of compliance with those requirements and give the jury such a warning as he or she thinks appropriate in the circumstances and the same applies in South Australia.

Nowhere in the judge’s directions to the jury in this case did he give the jury the benefit of that sort of direction or warning.  It was deficient and we say it has given rise to a substantial miscarriage of justice.

GLEESON CJ:   There were three grounds on which this application was based.  On the ground concerning the exercise of the trial judge’s discretion to admit certain confessional evidence, and on the ground related to the suggested inadequacy of the direction concerning lies, the Court sees no error in the decision of the Court of Criminal Appeal of the Northern Territory.

As to the suggested inadequacy of the direction given by the trial judge following the case of McKinney v The Queen (1991) 171 CLR 468 the Court is of the view that the case involves the application of well‑established principles to the facts and circumstances and the Court is not convinced that there has been any miscarriage of justice. In those circumstances, the application is refused.

We will adjourn for a short time to reconstitute.

AT 12.40 PM THE MATTER WAS CONCLUDED