Nicholls v The Queen - [2005] HCA 1

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
THOMAS NICHOLLS APPELLANT
AND
THE QUEEN RESPONDENT
Nicholls v The Queen
[2005] HCA 1
3 February 2005
P79/2003
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Western Australia
Representation:
J A Thomson for the appellant (instructed by Mullins Handcock)
S E Stone with L J Vanderende for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
MARTIN GRAEME COATES APPELLANT
AND
THE QUEEN RESPONDENT
Coates v The Queen
3 February 2005
P81/2003
ORDER
1.Appeal allowed.
2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of Western Australia made on 22 October 2002 in CCA 210/00 and in its place order that:
(a)the appellant's appeal to that Court be allowed;
(b)the appellant's conviction be quashed; and
(c)there be a new trial.

On appeal from the Supreme Court of Western Australia
Representation:
M J McCusker QC with J J Edelman for the appellant (instructed by Clark Whyte)
S E Stone with L J Vanderende for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Nicholls v The Queen; Coates v The Queen
Criminal law – Evidence – Admissibility of admissions made off-video during interview with accused – Whether reasonable excuse for not videotaping admissions – Criminal Code (WA), s 570D(2)(b), (4).
Criminal law – Evidence – Admissibility of evidence of prior inconsistent statement of witness – Whether evidence of statement went to issue – Whether admissible as exception to rule against admission of collateral statements – Whether exceptions of bias, interest or corruption applicable – Whether the detail of alleged statement indicating an exception to the collateral evidence rule must be put specifically to the witness in cross-examination.
Evidence – Criminal trial – Prior inconsistent statement of witness – Whether admissible as exception to rule against collateral statements – Admissions allegedly made off-video during interview by police – Whether reasonable excuse for not videotaping such admissions.
Criminal law – Evidence – Whether evidence of prior inconsistent statement hearsay – Whether exception to hearsay rule.
Criminal law – Jury directions – Whether trial judge's direction accorded with McKinneyv The Queen – Appropriateness of reference to possible perjury on part of police.
Criminal law – Evidence – Admissions – Adequacy of trial judge's direction – Whether need for McKinney direction.
Words and phrases – "interview", "reasonable excuse".
Criminal Code (WA), s 570D.
Evidence Act 1906 (WA), s 21.

GLEESON CJ.I agree, for the reasons given by Hayne and Heydon JJ, that in the matter of Nicholls v The Queen the appeal should be dismissed. In particular, I agree with what Hayne and Heydon JJ have said concerning the collateral evidence rule.
As will appear from a reading of the reasons of the other members of the Court, the decision to dismiss the appeal in Nicholls v The Queen, which turns upon the matter of collateral evidence, is unanimous. In the course of argument, we were invited by counsel to re-define the collateral evidence rule, characterising it, not as a rule of law, but as a guide to discretionary case management. That invitation has been declined by six members of the Court. Alternatively, it was argued that the excluded evidence fell within one or more of the exceptions to the collateral evidence rule, specifically those relating to bias, interest or corruption. That submission took a number of forms, and has met with somewhat different responses, but, in the view of all members of the Court, it must fail in any event because, in the cross-examination of the critical witness, no proper foundation was laid for the tender of the evidence in question.
I also agree, substantially for the reasons given by Hayne and Heydon JJ, that in the matter of Coates v The Queen the appeal should be dismissed. In view of the difference of opinion within this Court on the question of the admissibility of evidence of certain admissions allegedly made by the appellant, I wish to add the following comments. They are directed to the evidence of what was said during "the second break" in the questioning by police of the appellant, which is when the potentially significant admissions were made.
It is submitted that the evidence was made inadmissible by s 570D(2) of the Criminal Code (WA) ("the Criminal Code"). So far as presently relevant, that sub-section provided that evidence of an admission by the appellant to police was not admissible unless either it took the form of a videotape on which the admission was recorded, or the prosecution proved, on the balance of probabilities, that there was a reasonable excuse for there not being a recording on videotape of the admission. Sub-section (4)(c) provided that there was a reasonable excuse if the appellant did not consent to the interview being taped. Section 570D was part of a Chapter of the Criminal Code dealing with "videotaped interviews". The expression "interview" was defined to mean "an interview with a suspect by a member of the Police Force" (s 570). The Chapter, apart from s 570D, contained various provisions regulating particular matters relating to videotapes and their use. They do not touch the present problem. The statutory context throws little direct light on the question that now arises.
Bearing in mind the two rulings of the trial judge, and the context in which they were made, it is clear that he found that the appellant did not consent to the videotaping of the part of his conversation with the police during which the admissions presently in question were made. The appellant sought and obtained an interruption of the videotaping for the purpose of having a conversation that was not on tape. That finding was upheld by the Full Court. Miller J, in the Full Court, said that "the initiation by Coates himself of the off-video interview" was "a critical factor" in the decision that the evidence was admissible.
For the purposes of this appeal, it is important to distinguish between questions of fact, and questions of law concerning the construction of s 570D. At the trial, on an issue as to the application of s 570D(2)(b), the prosecution carried the onus of proving, on the balance of probabilities, that there was a reasonable excuse for there not being a recording on videotape of the admissions. As a matter of fact, the prosecution established to the satisfaction of the trial judge that, at a certain point in the interview then being recorded on videotape, the appellant requested that the videotaping cease, so that he could speak to police without there being a video recording of what he said. The decision of the Full Court creates concurrent findings on that matter of fact. Those findings were open on the evidence, and have not been successfully challenged in this Court.
The substantial question for this Court concerns the legal consequence, for the purpose of s 570D, of those findings.
Legislation such as s 570D seeks to strike a balance between competing considerations and interests. A search for legislative purpose needs to take account of the fact that legislatures rarely engage in the pursuit of a single purpose at all costs. Problems of statutory construction often arise because the extent to which the legislature intends to pursue a given purpose is unclear. When, as is so obviously the case with s 570D, Parliament adopts a compromise, a court may be left with the text as the only safe guide to purpose.
Section 570D(4)(c) assumes that the consent of a suspected person is necessary if the police are to videotape an interview. That assumption was not challenged in argument in this Court. Absence of consent to the interview being videotaped is, by definition, a reasonable excuse for there not being a recording on videotape of an admission made during the interview. Putting to one side, for the moment, the question of the interviewee who consents to some conversations being videotaped but does not consent to others, and subject to any other questions of admissibility that could arise, evidence may be received of an admission by an accused person in the course of an interview where the accused person did not consent to the interview being videotaped. In such a case, the interview is off-camera, but not off the record. Consistently with s 570D, a court may receive evidence of the admission. Because the accused person has not consented to a videotaping of the interview, there is a reasonable excuse for there not being a recording on videotape of the admission. That is the effect of the express language of the statute.
No doubt the general purpose of s 570D is to reduce the possibility of police fabrication of admissions, and to limit the potential scope for dispute about "verbal admissions". The reasons for that are too well known to require restatement. Even so, each one of the forms of reasonable excuse provided by s 570D(4) for there not being a videotaped recording of an admission, including absence of consent of the interviewee, is capable of being contrived, or disputed. The present problem arises because, although the section deals expressly with the case where a person being interviewed does not consent to the interview being videotaped, it does not deal expressly with the case of a person who gives consent and later terminates it, either completely, or with respect to some particular subject, or for some limited time.
As the facts of the present case illustrate, there could be many reasons why a person would consent to being questioned on videotape about some matters, but not about others. It is difficult to understand why the legislature would have intended to distinguish between the case of a person who, at the commencement of police questioning, refuses to consent to any videotaping, and one who terminates or suspends consent, temporarily or indefinitely. It is the dependence upon the consent of the interviewee that gives rise to the present question, together with the obvious practical possibility that, during the questioning, consent might be terminated or suspended. There is nothing in the section to suggest that consent, once given, covers all that follows without any opportunity for bringing it to an end. It would be unfair if that were so. A person who, at the outset, expects to be questioned about a particular matter might find that the questioning develops in an unforeseen manner. The most natural meaning to give s 570D, in those circumstances, is that termination or suspension of consent has the same consequence, during the period of suspension, or following termination, as an initial refusal to consent. That is the way the trial judge and the Full Court approached the section, and I think they were right.
What is the competing possibility? Let it be supposed that a suspect initially consents to an interview being videotaped. Suppose that, at some point in the interview, the police ask the suspect what he knows about X, a criminal. Suppose that, for reasons perhaps related to the known propensities of X, the suspect says, or indicates, that he will answer the question, but not on camera, and the camera is switched off. Section 570D is concerned only with the admissibility of evidence; specifically, the admissibility of admissions made to the police. It does not regulate the power of the police to ask questions, and it does not impose any obligation on a person to answer questions. It does not require the whole, or any particular part, of an interview to be videotaped; it simply deals with a consequence of the absence of a videotape record of an admission. In the example given, whatever the effect of s 570D might be, it does not depend upon whether the person being interviewed is accompanied by a lawyer, or upon whether contemporaneous written notes are made of what is said off camera, or upon whether, when the videotaping is resumed, the police repeat, in front of the camera, what had occurred while the camera was switched off. If some discretionary ruling relating to a matter of fairness is required, those circumstances might become relevant, but they have nothing to do with the question of construction of s 570D now under consideration. The argument for the appellant must be that, by temporarily withdrawing or suspending consent to videotaping, the suspect can say what he pleases about a particular topic without any risk that it might be tendered in evidence against him. That must be so, regardless of what precautions, if any, are taken to eliminate the possibility of dispute or fabrication. It would be so, for example, even if the suspect's lawyer is present and taking notes. That seems a very curious result. It is not one that is required by the language of s 570D, and it does not advance any rational legislative policy. I prefer the view of the section that was taken in the Supreme Court of Western Australia.
McHUGH J. These appeals by Thomas Nicholls and Martin Graeme Coates arise out of their convictions in the Supreme Court of Western Australia for the wilful murder of Clare Garabedian. There are two issues in Nicholls' appeal and four issues in Coates' appeal.
The first issue in Nicholls' appeal is whether the trial judge erred in rejecting evidence from a defence witness, Joseph Paul Ross, that the key prosecution witness had said that he was involved in the killing of Garabedian and that neither Coates nor Nicholls was involved in the killing. The second issue in Nicholls' appeal is whether the judge erred in rejecting evidence that the key witness had told Ross that he proposed to give evidence to implicate Nicholls and Coates in the murder. These issues turn on whether the statements were excluded by the collateral evidence rule. In particular, the issues turn on whether the statements were admissible under the "bias" or "corruption" exceptions to that rule or some development of them.
The first issue in Coates' appeal is whether the trial judge erred in holding that disputed oral admissions, allegedly made by Coates during a break in a videotaped interview with the police (and not subsequently confirmed on video), were admissible in evidence. That issue turns on whether the break in the interview constituted a separate interview to whose videotaping Coates did not consent and, if so, whether that constituted a "reasonable excuse" for not videotaping the alleged admissions within the meaning of s 570D of the Criminal Code (WA).
The second issue in Coates' appeal is whether the trial judge misdirected the jury in relation to the disputed admissions by saying "[a] question that might arise is … who is telling the truth and who is committing perjury". This issue turns on whether the judge's statement accorded with the decision of this Court in McKinney v The Queen[1].
[1](1991) 171 CLR 468.
The third issue in Coates' appeal is whether the trial judge was required by McKinney to direct the jury concerning the difficulties faced by an accused person when challenging evidence of a disputed admission when the admission is not the sole evidence against the accused.
The fourth issue in Coates' appeal is whether the trial judge erred in refusing to admit evidence concerning statements made by the key Crown witness. The statements were to the effect that the key witness was being encouraged to implicate Coates, that Coates was not involved in the murder and that the key witness intended to give false evidence. As in the appeal of Nicholls, this issue turns on whether the statements were excluded by the collateral evidence rule and whether they were admissible under the "bias" or "corruption" exceptions to that rule or some development of them.
If any of these issues is decided in favour of the appellants, further issues arise under the Crown's Notices of Contention concerning whether any errors made by the trial judge resulted in a substantial miscarriage of justice.
In my opinion, Nicholls' appeal should be dismissed because, although Ross's evidence was otherwise admissible, the statutory conditions for its admission were not met. Contrary to the direction in s 21 of the Evidence Act 1906 (WA), the circumstances of the key witness's statement were not sufficiently described to the witness to allow him to deny or admit the statements. Coates' appeal, however, should be allowed because the disputed oral admissions were tendered in evidence in breach of s 570D of the Criminal Code.
Statement of the case
In a jury trial conducted in August and September 2000 in the Supreme Court of Western Australia, Thomas Nicholls, Martin Graeme Coates and Amanda Kaylene Hoy were tried and convicted for the murder of Clare Garabedian in 1998. The Western Australian Court of Criminal Appeal dismissed appeals against their convictions. Subsequently, this Court gave Nicholls and Coates special leave to appeal against the orders of the Court of Criminal Appeal.
The material facts
The Crown alleged that Coates had asked Adam John Davis to pick up Garabedian, who worked as a prostitute, and give her a "hot shot" – a heroin overdose. Garabedian was the key Crown witness in other criminal proceedings against Coates and Hoy. Davis said that, for a payment of $2,000, he agreed to give Garabedian the "hot shot". He said that, using Hoy's car and mobile phone, Nicholls' clothes and a bag of heroin supplied by Coates, he picked up Garabedian one night in August 1998. Posing as a client, he took her to a motel. Davis said that he gave heroin to Garabedian, some of which she injected, and then about an hour and a half to two hours later he gave her another shot of heroin at her request. He then rang Hoy from a pay telephone and told her that Garabedian had used most of the heroin. Hoy said that she would leave a package for him under the driver's side wheel of her car, which she told Davis to park in a side street. Davis said that he subsequently collected a package containing a large syringe filled with heroin from under the wheel of Hoy's car. Some time later, Coates and then Nicholls called Davis separately on the motel room telephone and asked whether he had killed Garabedian. Davis told them that he had not done so.
Davis claimed that, about 15 minutes after the telephone call from Nicholls, Coates and Nicholls arrived at the motel room. Garabedian woke up, screamed and tried to make a run for the front door. Coates dragged Garabedian to the ground and Nicholls held a pillow to her face. Davis held her left arm while Coates pushed the syringe into her right arm several times before handing it to Davis, who then injected her in her left arm. Coates then stood on Garabedian's throat. Coates subsequently wiped Garabedian's body with a wet towel and Davis cleaned other areas in the motel room to remove fingerprints. Nicholls collected incriminating items and put them in a pillowcase.
The Crown case against Coates was based principally on the evidence of Davis who had pleaded guilty to the murder of Garabedian and had been sentenced to life imprisonment. His sentence was reduced to a minimum of 15 years on the undertaking that he would give evidence against Nicholls, Coates and Hoy. However, the Crown also relied on three other areas of evidence apart from the testimony of Davis:
1.admissions allegedly made by Coates during a break in a videotaped interview with police;
2.evidence of motive: criminal charges had been laid by Garabedian against Coates and Hoy; and
3.evidence that Coates had relied on his brother-in-law, Trevor John Bloomer, who had offered to testify falsely that he was at Coates' house with him on the evening in question.
The Crown case also relied on evidence of association and forensic evidence and telephone records placing Coates in the vicinity of the motel when Garabedian was killed.

The admissions allegedly made by Coates were unrecorded oral statements to police officers while Coates was in police custody being questioned about Garabedian's death. Detective Senior Constable Hawley gave evidence that, during a videotaped interview, Coates asked to go to the toilet. The videotape was stopped for about 45 minutes (this was the second time the videotape was stopped for a supposed "toilet break"; the first break lasted for four minutes). Hawley testified that, when the videotape was turned off, Coates said to him and Detective Senior Constable Hutchinson: "What are my options?", "What can I do?", "How much will I get?" and "I haven't even got 5 years in me. I'll neck myself." Two other officers, Detective Sergeant Kays and Detective Senior Sergeant Byleveld, gave evidence that they were called into the interview room during this break and that Coates told them that he did not want to go to jail where he would not last five minutes. They gave evidence that Coates also said that he wanted to do a deal and be charged with conspiracy to murder. Coates denied the substance of the police evidence. He also denied that he had initiated the break. No reference was made to these conversations when the videotaped interview resumed. The police officers made no attempt to get Coates to confirm on videotape the substance of the admissions that he had allegedly made while the videotape was turned off. Nor were any contemporaneous notes taken of the alleged off-camera admissions. Hawley and Hutchinson claimed that they made notes of the conversation on the following day that included notes of the untaped portions. They said that these notes were subsequently lost or mislaid. Kays and Byleveld gave evidence that neither took notes of the conversation they claimed to have had with Coates.
The Crown case against Nicholls was also based on the evidence of Davis and on out-of-court statements made by Nicholls to police in a videotaped interview. The Crown case also relied on telephone records that placed Nicholls in the vicinity of the motel at the time when Garabedian was killed.
Coates and Nicholls denied Davis's version of events. In cross-examination, Davis could not explain how it was that only his fingerprints were identified in the motel room or the absence of fingerprints or DNA evidence of Coates and Nicholls in the room. No objective or other evidence linked Nicholls to the events that caused Garabedian's death. Nicholls' statements to the police did not amount to a confession of the offence. However, Nicholls admitted in an interview with the police that he had been present with Coates in the motel room when Garabedian woke from a sleep and recognised Coates. Nicholls admitted that he had grabbed Garabedian, but claimed that he then left the motel room. When he returned later, he found that it had been cleaned up, or was in the process of being cleaned up, by Coates.
Both Coates and Nicholls sought to tender evidence from a defence witness, Ross, that Davis had told him that Coates and Nicholls were not involved in the killing and that he, Davis, had been encouraged by the police to implicate Coates and Nicholls. The trial judge ruled that the evidence was inadmissible because it was collateral evidence and did not fall within the bias exception to the collateral evidence rule.
His Honour directed the jury that, unless they accepted the evidence of Davis, they could not convict Nicholls or Coates. He also directed the jury that, standing alone, the evidence of the unrecorded admissions was insufficient to convict Coates of any offence. The trial judge further directed the jury that the evidence of Nicholls' unrecorded admissions would not alone be sufficient to convict Nicholls, but that it would support the accuracy and truth of Davis's evidence. He did not warn the jury about the danger of relying on the evidence of Coates' unrecorded admissions to the police officers. The trial judge also did not give a McKinney direction in relation to those admissions.
The jury found Nicholls and Coates guilty of the wilful murder of Garabedian.
1.The admissibility of the evidence of Ross (the collateral evidence rule)
The evidence sought to be led from Ross
At his trial, Nicholls sought to lead evidence from Ross about a conversation that Ross had had with Davis in Casuarina Prison concerning the evidence that Davis was to give at the trial. Counsel for Nicholls told the trial judge that Ross would say that Davis had told him that he was involved in the murder of Garabedian but that neither Coates nor Nicholls was involved in her death. However, Davis had told Ross that he would give evidence implicating Nicholls and Coates in the murder because the police had offered him a deal if he did so. Counsel said that Ross would also say that Davis said that the police had told him what to say and that he, Davis, "was going to come to court and tell lies about that in order to secure the deal that was offered to him by the police to implicate Mr Coates and Mr Nicholls." Counsel for Nicholls sought to lead the evidence as an exception to the collateral evidence rule. During the cross‑examination of Davis, counsel for Hoy asked:
"Have you ever told anybody that the whole story – you've made up the whole story you've told us about the involvement of Coates and Nicholls is a lie? – No, I haven't.
That you were told by police what to say? – No.
And that you did it so that you would gain a benefit? – No.
Never told anybody that? – No.
Quite sure about that? – Very sure.
Because it all is a lie, isn't it – the whole thing? – No, it's not."
Counsel for Nicholls asked Davis:
"Did you in a conversation say that the police had told you what to say in order to implicate others? – No.
Did you say in a conversation that you had given Clare Garabedian two shots and that Marty Coates knew nothing about it? – No.
Did you say in a conversation that the police had offered you a deal if you cooperated and implicated Marty Coates and others in the murder? – No.
Did you in a conversation confirm that yourself and Clare Garabedian had been 'an item' for some time prior to her death? – No, never.
So none of the things that I have put to you were ever said by you in any conversation to anybody? – No."
Counsel for Coates did not put any of these matters to Davis. Indeed, counsel for Coates did not put to Davis that he had told a third person that the story he had told police about Nicholls and Coates being in the motel room where Garabedian was killed was untrue and that Coates knew nothing about the killing. Nor did counsel put to Davis that the police had offered him a deal if he implicated Nicholls and Coates and that police officers had told him what to say. Counsel also failed to put to Davis that Davis intended to give false evidence about Coates' involvement in Garabedian's murder. Nevertheless, counsel for Coates sought to lead evidence from Ross that:
(a)Davis had told Ross that "Davis was being encouraged to implicate the others [Coates and Nicholls] and that the others indeed were not there and were not involved and didn't know anything about it";
(b)"[Davis] is telling someone in gaol effectively that he intends to give false evidence, that they [Nicholls and Coates] were not involved and yet he intends to give false evidence"; and
(c)"[Davis] will acknowledge in his evidence that he is being encouraged to implicate the others".
The admissibility of Ross's evidence
The trial judge ruled that the proposed evidence of Ross was inadmissible. The Court of Criminal Appeal upheld his ruling[2]. In the Court of Criminal Appeal, Miller J held that the evidence sought to be led from Ross was collateral and did not go to a fact in issue or a relevant issue. His Honour said that whether Davis had previously made an inconsistent statement about the presence of Nicholls and Coates in the room in which Garabedian was killed did not go to the issue of whether Nicholls and Coates were in fact in the room. The evidence of Ross could only go to the issue of whether Davis had said that Nicholls and Coates were in the room at the relevant time, not whether as a fact they were in the room[3]. This was a question of credibility. Miller J further found[4] that the evidence did not fall within any exception to the rule that answers to collateral questions are final and conclusive and cannot be rebutted. Miller J[5] also upheld the trial judge's finding that "there was nothing to suggest that the relationship or any situation existing as between Davis and Coates/Nicholls established bias" so as to bring the case within that exception to the collateral evidence rule.
[2]Hoy v The Queen [2002] WASCA 275 at [106]-[134] per Miller J, Anderson J agreeing.
[3]Hoy [2002] WASCA 275 at [121]-[122] per Miller J.
[4]Hoy [2002] WASCA 275 at [124].
[5]Hoy [2002] WASCA 275 at [126]-[127].
Submissions of the appellants in this Court
In this Court counsel for Nicholls and Coates contended that:
1.the collateral evidence rule did not apply because the evidence of Davis was the core or central evidence in the case, without which neither Nicholls nor Coates could have been convicted. In these circumstances, the issues of credibility and facts in issue were so inextricably linked that the distinction between matters of credit and matters going to the issue was reduced to "vanishing point";
2.alternatively, Ross's evidence fell within the bias or corruption exceptions to the collateral evidence rule. Counsel for Nicholls and Coates contended that the corruption exception was not limited to a relationship between the witness and one of the parties, but applied whenever a witness demonstrates a willingness to obstruct the discovery of truth by manufacturing or suppressing testimony; and
3.the collateral evidence rule should be relaxed where evidence going to credit has substantial probative value and it is in the interests of justice to admit it.
It is appropriate to consider each of these submissions in turn.
The collateral evidence rule: statement of the rule, exceptions to the rule and treatment of the rule
Statement of the collateral evidence rule
The central thesis of the common law concerning the admissibility of evidence is that it is admissible only when it is relevant, that is[6]:
"if it tends to prove a fact in issue or a fact relevant to a fact in issue. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact." (footnote omitted)
In other words, evidence is relevant "if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."[7] In a trial, a balance must be struck between considerations of justice and matters of practicality. Consequently, the general rule concerning admissibility is qualified by other rules of evidence. One qualification concerns evidence of matters collateral to the issues in the case.
[6]Goldsmith v Sandilands (2002) 76 ALJR 1024 at 1029-1030 [31] per McHugh J; 190 ALR 370 at 377.
[7]Goldsmith (2002) 76 ALJR 1024 at 1025 [2] per Gleeson CJ; 190 ALR 370 at 371.
The collateral evidence rule declares that answers given by a witness to questions put to him or her in cross-examination concerning collateral matters are final. Those answers cannot be contradicted or rebutted by other evidence[8]. Hence, the rule is often referred to as the "finality" rule. Collateral facts are "facts not constituting the matters directly in dispute between the parties"[9] or "facts that are not facts in issue or facts relevant to a fact in issue"[10]. In most cases, a fact that affects the credibility of a witness is a collateral fact. Hence, an answer given by a witness to a matter that relates to credibility alone – in other words, a collateral matter – is final and cannot be rebutted.
[8]Cross on Evidence, 7th Aust ed (2004) at 573 [17580].
[9]Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 546 per Latham CJ; Goldsmith (2002) 76 ALJR 1024 at 1025 [3] per Gleeson CJ; 190 ALR 370 at 372.
[10]Goldsmith (2002) 76 ALJR 1024 at 1030 [32] per McHugh J; 190 ALR 370 at 378.
Policy considerations provide the rationale for the collateral evidence rule. The reasons for the rule are generally practical: it is based on principles of case management[11], such as the desirability of avoiding a multiplicity of issues and of protecting the efficiency and cost-effectiveness of the trial process by preventing the parties from litigating matters of marginal relevance. The rule is also based on the need to be fair to the witness[12].
Tests for determining collateral matters
[11]White J in the Queensland Court of Appeal in R v Lawrence said that the finality rule "is a case management rule": [2002] 2 Qd R 400 at 416. See also Natta v Canham (1991) 32 FCR 282 at 300.
[12]See, eg, Natta (1991) 32 FCR 282 at 298.
There are two tests for determining whether a matter is collateral. The first test, articulated by Pollock CB in Attorney‑General v Hitchcock[13], defines collateral matter by reference to the issues upon which evidence may not be tendered by a party as part of its case during examination in-chief. The second test defines collateral matter in terms of credit.
[13](1847) 1 Ex 91 [154 ER 38].
Pollock CB explained the first test in Hitchcock when he said[14]:
"[T]he test, whether the matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your part to prove in evidence – if it have such a connection with the issue, that you would be allowed to give it in evidence – then it is a matter on which you may contradict him."
[14](1847) 1 Ex 91 at 99 [154 ER 38 at 42].
Another formulation of this test is that relevance to an issue other than credit is a necessary condition of admissibility[15]. This test emphasises the importance that the information must have to prove the material facts in issue. However, it is problematic in that it does not identify the requisite degree of importance that information must have before it can be tendered in-chief. Nor does it identify how a court decides whether a fact is collateral[16]. For example, the English Court of Appeal said in R v Funderburk[17]:
"The difficulty we have in applying that celebrated test is that it seems to us to be circular. If a fact is not collateral then clearly you can call evidence to contradict it, but the so-called test is silent on how you decide whether that fact is collateral. The utility of the test may lie in the fact that the answer is an instinctive one based on the prosecutor's and the court's sense of fair play rather than any philosophic or analytic process." (emphasis added)
Sufficient relevance depends both on the importance of the fact in issue to proving a material fact and the degree to which further evidence can establish that fact in issue. It is therefore virtually impossible to identify matters that will always be collateral or will always be relevant – each case turns on its own particular facts.
[15]Natta (1991) 32 FCR 282 at 295.
[16]Narkle v The Queen (2001) 23 WAR 468 at 479 per Murray J.
[17][1990] 1 WLR 587 at 598; [1990] 2 All ER 482 at 491.
The second test for determining whether a matter is collateral is whether it is relevant only to a witness's credit in contrast to matters relevant to the facts in issue that can be rebutted by calling evidence[18]. The problem with this test is that it is often difficult to maintain the distinction between credit and issue. It is also often difficult to maintain the distinction between evidence that affects only the credit of a witness and evidence that is relevant to a fact in issue. The credibility of a witness is inevitably indirectly relevant to establishing facts in issue. Sometimes, the credibility of a witness is decisive of the facts in issue. It is a matter of degree, both in relation to relevance and to whether a fact is collateral. Whether a fact bears on the credit of a witness depends not only upon what the witness represents to the court[19], but also upon the nature of the party's case.
Criticisms of the rule
[18]See Harris v Tippett (1811) 2 Camp 637 at 638 per Lawrence J [170 ER 1277 at 1278]; Piddington (1940) 63 CLR 533 at 545 per Latham CJ; Natta (1991) 32 FCR 282 at 300.
[19]Goldsmith (2002) 76 ALJR 1024 at 1025-1026 [3] per Gleeson CJ; 190 ALR 370 at 372.
Given the deficiencies identified with respect to the tests for determining whether a matter is collateral, it is not surprising that the finality rule itself has been criticised in a number of cases[20]. In Natta v Canham, for example, the Full Court of the Federal Court said[21]:
"The central rationale of the [rule] ... is less consistent with its characterisation as a hard and fast rule of law than as a well-established guide to the exercise of judicial regulation of the litigation process. While judges will be astute to confine or prevent exploration of secondary issues affecting credibility, the exercise of the judicial function in that regard should not be encumbered by over-nice distinctions between 'collateral' and other matters and the application of enumerated exceptions with a flavour of statutory proviso about them. And even where one of the exceptions can be invoked, as for example where there is an allegation of bias which is denied, 'a court would only permit such a diversion from the material issue if it were satisfied that the interests of justice, namely, the proper investigation of the material issues, demanded it': see Bakopoulos v General Motors Holden's Ltd [1972] VR 732 at 733 per Lush J."
[20]See, eg, Palmer v The Queen (1998) 193 CLR 1 at 23 [53] per McHugh J; Lawrence [2002] 2 Qd R 400 at 406 per McPherson JA; Goldsmith (2002) 76 ALJR 1024 at 1031-1032 [37]-[41] per McHugh J; 190 ALR 370 at 379-381.
[21](1991) 32 FCR 282 at 298.
The decisions of this Court in Piddington v Bennett and Wood Pty Ltd[22] and Goldsmith v Sandilands[23] illustrate the difficulties with the rule, as do decisions of the English courts[24]. One difficulty arises when a court has to determine whether the evidence concerns a collateral matter or a fact in issue or a fact relevant to a fact in issue[25]. The cases show that courts have blurred the distinction between collateral facts and facts in issue[26]. Questions of degree are frequently involved when deciding whether collateral evidence should be admitted[27].
[22](1940) 63 CLR 533.
[23](2002) 76 ALJR 1024; 190 ALR 370.
[24]Compare Busby (1981) 75 Cr App R 79 and Harris v Tippett (1811) 2 Camp 637 [170 ER 1277]; see also Marsh (1985) 83 Cr App R 165; R v Knightsbridge Crown Court; Ex parte Goonatilleke [1986] QB 1; Chandu Nagrecha [1997] 2 Cr App R 401.
[25]Goldsmith (2002) 76 ALJR 1024 at 1031-1032 [40]-[41] per McHugh J; 190 ALR 370 at 380, citing Piddington (1940) 63 CLR 533 and Busby (1981) 75 Cr App R 79.
[26]See Goldsmith (2002) 76 ALJR 1024 at 1032 [41] per McHugh J; 190 ALR 370 at 380-381.
[27]Goldsmith (2002) 76 ALJR 1024 at 1046 [103] per Callinan J; 190 ALR 370 at 399.
In Palmer v The Queen[28], I said, and repeated in Goldsmith[29], that the credibility of a witness and the facts which the witness represents in court are both "relevant" matters, and there is no logical distinction between them for this purpose. However, the common law does make a distinction concerning them and generally regards answers to questions on credit as going to collateral issues. This has the result that an opposing party cannot tender evidence to contradict those answers. In Goldsmith, I said[30]:
"[L]ogically there is no distinction, so far as relevance is concerned, between the credibility of a witness and the facts to which the witness deposes. The reliability of oral testimony cannot be separated from the credibility of its deponent. But the common law has generally refused to act on the basis that there is no distinction between the credibility of a witness and the facts to which the witness testifies. Because the common law regards answers to questions on credit or credibility as going to collateral issues, in most cases the opposing party cannot tender evidence to contradict those answers." (emphasis added, footnote omitted)
[28](1998) 193 CLR 1 at 24 [56].
[29](2002) 76 ALJR 1024 at 1030 [32]; 190 ALR 370 at 378.
[30](2002) 76 ALJR 1024 at 1030 [32]; 190 ALR 370 at 378.

Because of what Starke J said in Piddington[31], I have long thought that the rule that answers in cross-examination on collateral questions are final is a rule of convenience, not a rule of law or a principle. In Palmer[32], I said that evidentiary rules based on the distinction between issues of credit and facts in issue "should not be regarded as hard and fast rules of law but should instead be seen 'as a well‑established guide to the exercise of judicial regulation of the litigation process'." In Goldsmith, I said[33]:
"Despite the longevity of the finality rule, it has increasingly come to be regarded more as a flexible standard than a fixed rule of law[34]. Starke J recognised this in Piddington v Bennett and Wood Pty Ltd[35] when he said that the finality rule was 'a rule of convenience, and not of principle'. Similarly, in Natta v Canham[36], the Full Court of the Federal Court said that the rule should be regarded 'as a well-established guide to the exercise of judicial regulation of the litigation process'."
[31](1940) 63 CLR 533 at 551.
[32](1998) 193 CLR 1 at 23 [53], citing Natta (1991) 32 FCR 282 at 298.
[33](2002) 76 ALJR 1024 at 1031 [39]; 190 ALR 370 at 379.
[34]Palmer (1998) 193 CLR 1 at 23 [53].
[35](1940) 63 CLR 533 at 551, citing Christian J in R v Burke (1858) 8 Cox CC 44 at 53.
[36](1991) 32 FCR 282 at 298.
As a result[37]:
"For reasons of convenience, it is necessary to maintain the rule that independent evidence rebutting the witness's denials on matters going to credibility is not ordinarily admissible. … If evidence going to credibility has real probative value with respect to the facts-in-issue, however, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts-in-issue."
[37]Palmer (1998) 193 CLR 1 at 23-24 [55] per McHugh J.
McPherson JA endorsed this approach in R v Lawrence[38]. His Honour regarded my remarks in Palmer as "correctly reflecting the state of the law as it now is in Australia."[39] The Full Federal Court took a similar view of the finality rule in Natta[40], noting academic commentary to the effect that the rule is productive of absurdity and that there has been a tendency in the courts to diverge from the rule when justice so requires. The Court in Natta also said[41]:
"[Notwithstanding the decision of the High Court in Piddington,] the court is not bound to the view that the exclusionary rule is absolute or that the categories of exceptions to it are closed. It is a rule of practice related to the proper management of litigation. A trial judge should not be precluded from determining in an appropriate case that the matter on which a witness' credit is tested is sufficiently relevant to that credit as it bears upon issues in the case that such evidence may be admitted."
[38][2002] 2 Qd R 400.
[39]Lawrence [2002] 2 Qd R 400 at 406.
[40](1991) 32 FCR 282 at 298.
[41](1991) 32 FCR 282 at 300.
In Lawrence[42], White J characterised the finality rule as a "case management" rule and recognised the capacity for "exceptions" to the rule to develop incrementally where the evidence sought to be adduced to test the witness's credit is sufficiently relevant to the facts in issue. The separate judgments of Kirby J and myself in Goldsmith[43] also endorse a more flexible approach to the rule. We treated the rule as a flexible standard rather than a fixed rule of law.
[42][2002] 2 Qd R 400 at 416.
[43]Kirby J emphasised the need to preserve the actuality and appearance of even-handed justice as a reason for admitting exceptions to the rule: Goldsmith (2002) 76 ALJR 1024 at 1037 [70]; 190 ALR 370 at 388.
The English courts also now support a more flexible approach and relax the finality rule where the interests of justice require it to be relaxed[44]. If credibility is inextricably linked with the principal issue in the case and that issue is incapable of being verified or tested except by evidence concerning credit, the English Court of Appeal has admitted rebuttal evidence involving prior inconsistent statements[45]. The relaxation of the rule has occurred principally in sexual misconduct cases, where the difference between questions going to credit and questions going to the issue is often indistinguishable.
[44]See, eg, Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482; Chandu Nagrecha [1997] 2 Crim App R 401.
[45]See, eg, Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482; Chandu Nagrecha [1997] 2 Crim App R 401.
In Lawrence, Thomas JA noted[46] that, at least in relation to sexual offences cases, issues about credit (for example, evidence showing a disposition on the part of the complainant to make or support false complaints) ultimately go to whether or not the offence was committed. His Honour referred[47] to R v Lowrie and Ross[48], where the Queensland Court of Appeal acknowledged that, although some of the cases could be explained under the "bias" exception to the collateral rule, others were "difficult to explain on any other basis than practice and the obvious injustice of excluding [the collateral facts]." This led the Court in Lowrie and Ross to conclude that although the finality rule itself is clear[49]:
"[i]ndividual situations will no doubt be identified from case to case where it would be unjust to deprive an accused person of the right to lead evidence destructive of the credibility of another witness when the circumstances do not tidily fit within the recognised exceptions".
[46][2002] 2 Qd R 400 at 410.
[47]Lawrence [2002] 2 Qd R 400 at 410.
[48][2000] QCA 405 at [43] per Thomas JA, McPherson JA and Muir J agreeing.
[49][2000] QCA 405 at [43].
Given the problems with the finality rule and the cases that are not explicable in terms of the rule, common law courts should now regard that rule as a rule of convenience – a rule for the management of cases – rather than a fixed rule or principle. Once it is recognised that it is a rule of convenience, courts should take a more liberal approach to admitting evidence showing a lack of credit or credibility of a witness than the traditional approach of the common law[50]. Where the interests of justice are likely to be advanced by admitting evidence tending to destroy the credibility of a witness, courts should hesitate to reject such evidence. Thus, where a circumstance affecting credibility is so inextricably connected with a fact in issue that it will probably determine that fact, a trial judge should generally admit evidence of that circumstance. Evidence of such a circumstance should not be excluded merely because it is not within the established exceptions to the collateral evidence rule. In Natta, the Full Federal Court concluded that a collateral matter could be pursued beyond cross-examination "in the interests of justice, whether or not it came within any of the traditional exceptions to the rule against evidence on collateral issues."[51]
[50]Cross on Evidence, 7th Aust ed (2004) at 604 [19030]; see also Natta (1991) 32 FCR 282 at 298, 300.
[51](1991) 32 FCR 282 at 300. Murray J endorsed this approach in Narkle (2001) 23 WAR 468 at 475-476.
In R v LSS, however, Thomas JA thought that in sexual offences cases collateral evidence should not be received merely because the facts in issue occurred in private, left few visible traces of having occurred and determination of the issues depended on an assessment of the credibility of the parties[52]. Thomas JA also said[53] that to use the privacy of the occasion and the lack of corroborative evidence "as a basis for departing from the general rule of finality would leave too wide a gap in that important rule." In Bannister v The Queen[54], Franklyn J also said that, if the collateral evidence rule applied in sexual offences cases said to have been committed in private where the issue is whether or not the acts complained of occurred at all, and not merely where the only significant issue is consent, it would logically apply "to any offence in respect of which there is no extrinsic evidence and no witness other than the offender and the victim."
[52][2000] 1 Qd R 546 at 554-555. Thomas JA was discussing the following statement in Cross on Evidence, 5th Aust ed (1996) at 532 [19070]:
"[S]exual intercourse, whether or not consensual, most often takes place in private, and leaves few visible traces of having occurred. Evidence is often effectively limited to that of the parties, and much is likely to depend upon the balance of credibility between them. This has important effects for the law of evidence, since it is capable of reducing to vanishing point the difference between questions going to credit and questions going to the issue." (foonote omitted)
[53]LSS [2000] 1 Qd R 546 at 555.
[54](1993) 10 WAR 484 at 494. Murray J agreed with Franklyn J's comments in Narkle (2001) 23 WAR 468 at 480.
The finality rule is important to the efficient conduct of litigation. Without it, the principal issues in trials would sometimes become overwhelmed by charge and counter-charge remote from the cause of action being litigated. In many cases, the finality rule also protects witnesses from having to defend themselves against discreditable allegations that are peripheral to the issues. But the common law should not have any a priori categories concerning the cases where the collateral evidence rule should or should not be relaxed. It should be regarded as a flexible rule of convenience that can and should be relaxed when the interests of justice require its relaxation. Avoiding miscarriages of justice is more important than protecting the efficiency of trials. And in cases where the rule needs to be relaxed, it is unlikely that any question of potential unfairness to a witness will arise. That is because the allegations will be inextricably connected with the issues. If unfairness to a witness is likely to arise – for example, because the witness is not in a position to meet the allegation – the trial judge can take steps to ensure that no unfairness arises. The statements of Thomas JA and Franklyn J to which I have referred are contrary to the approach of the Full Federal Court in Natta[55]. They should not be followed in so far as they state or imply that the rule should not be relaxed in any particular category of case.
[55](1991) 32 FCR 282 at 300; see also Narkle (2001) 23 WAR 468 at 475-476, 479 per Murray J.
The collateral evidence rule should therefore be seen as a case management rule that is not confined by categories. Because that is so, evidence disproving a witness's denials concerning matters of credibility should be regarded as generally admissible if the witness's credit is inextricably involved with a fact in issue. Consistently with the case management rationale of the finality rule, however, a judge may still reject rebutting evidence where, although inextricably connected with a fact in issue, the time, convenience or expense of admitting the evidence would be unduly disproportionate to its probative force. In such cases, the interests of justice do not require relaxation of the general rule that answers given to collateral matters such as credit are final.
Application of the collateral evidence rule to the present appeals
In the present appeals, the evidence of Ross goes to the credibility of the witness Davis. Whether Davis had said that he had been offered a deal by the police in exchange for falsely testifying that Nicholls and Coates were in the motel room when Garabedian was killed would not prove that Nicholls and Coates were not in the motel room at the time. It would not prove or disprove the killing of Garabedian. The evidence of Ross would not tend to prove or disprove, therefore, a fact in issue in the trial. But if Davis made a statement to the effect that he intended to give false evidence in order to secure the deal that the police had offered him, it would have had a material bearing on the credibility of his evidence.
No jury could reasonably convict Coates or Nicholls on Davis's evidence if Ross's evidence was accepted. In the interests of justice, therefore, Ross's evidence should have been admitted. In Lawrence[56], the appellant was convicted of raping a fellow prisoner. In cross-examination the complainant denied that he had told a witness that the complainant was going to set the witness up by telling prison officers that the witness had propositioned the complainant for sex. The Queensland Court of Appeal held that the trial judge had erred in failing to allow the witness to give evidence concerning this statement. The Court held that the evidence – even if it only went to the complainant's credit – became admissible once the complainant denied having made that statement or threat. The decision does seem to stretch even the flexible standard doctrine to its limits. It is difficult to escape the conclusion that the Court thought that the evidence of the witness was admissible because it was true and, hence, critically undermined the credibility of the complainant. Probably, the best justification for the decision is that the evidence, if admitted and accepted, would have showed that the complainant was a person who was prepared to make false claims of rape in prison. It should not be seen as a prior inconsistent statement case. In that respect, the case is like Natta.
[56][2002] 2 Qd R 400.
In Natta, evidence of an out-of-court statement was allowed although it did not concern the facts in issue. In cross-examination during a personal injuries case arising out of a motor vehicle accident, the plaintiff denied that she had told a friend that an easy way of making money was to buy an old car and stage an accident. The Full Federal Court upheld the admission of defence evidence from the friend that contradicted the plaintiff's denial. The Court found that, if true, the fact that the plaintiff had been prepared to propose the pursuit of fictitious claims[57]:
"demonstrated … an approach to the litigation and claim process that called into serious question the extent to which [the plaintiff] could be believed in what she told the court and her doctors in important areas concerning the extent and location of her pain which to a significant degree could not be independently verified."
[57]Natta (1991) 32 FCR 282 at 300.
Accordingly, I think that the interests of justice required the admission of Ross's evidence. In addition, I think the evidence of Ross was also admissible under the corruption exception to the collateral evidence rule.
Exceptions to the collateral evidence rule: bias, interest or corruption
Among the circumstances where a witness's answer on a collateral matter is not final and may be contradicted[58] is where the witness is biased or has been corrupted. In Piddington, Latham CJ said[59]:
"Any witness may be cross-examined for the purpose of discrediting him. But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness's answers cannot be contradicted by other evidence except in certain exceptional cases. Exceptions to the rule at common law are that after cross-examination of his opponent's witnesses a party may give evidence to show that they are notorious liars, or have given their testimony from a corrupt or other wrong motive, or that they have previously made statements inconsistent with their evidence."
[58]A more extensive list is set out in my judgment in Goldsmith (2002) 76 ALJR 1024 at 1030 [33]-[36]; 190 ALR 370 at 378-379.
[59](1940) 63 CLR 533 at 545.
Evidence rebutting a witness's evidence may be adduced where the witness is affected by one of three "kinds of emotion constituting untrustworthy partiality"[60], namely, bias, interest or corruption. Wigmore refers to emotional partiality in three senses. The first is bias in the sense of "all varieties of hostility or prejudice against the opponent personally or of favor to the proponent personally"[61]. The second is interest in the sense of "the specific inclination which is apt to be produced by the relation between the witness and the cause at issue in the litigation."[62] The third is corruption in the sense of "the conscious false intent which is inferrible [sic] from giving or taking a bribe or from expressions of a general unscrupulousness for the case in hand"[63]. Wigmore acknowledges that the "theoretical place" of the corruption exception "is not easy to determine. It is related in one aspect to interest, in another to bias, in still another to character (ie, involving a lack of moral integrity)."[64] Nevertheless, he observes that the essential discrediting element in relation to evidence showing corruption is "a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony."[65]
[60]Wigmore on Evidence, Chadbourn rev (1970), vol 3A at 782 [945] (emphasis omitted).
[61]Wigmore on Evidence, Chadbourn rev (1970), vol 3A at 782 [945] (original emphasis).
[62]Wigmore on Evidence, Chadbourn rev (1970), vol 3A at 782 [945] (original emphasis).
[63]Wigmore on Evidence, Chadbourn rev (1970), vol 3A at 782 [945] (original emphasis).
[64]Wigmore on Evidence, Chadbourn rev (1970), vol 3A at 802-803 [956].
[65]Wigmore on Evidence, Chadbourn rev (1970), vol 3A at 803 [956].
Cross on Evidence distinguishes bias "in the sense of underlying and undue sympathy or hostility felt by the witness towards a party" from corruption "in the sense of more specific interference with testimony, typically by way of bribery"[66]. However, Cross on Evidence notes that "similar principles" underpin both methods of attacking the credibility of an opponent's witness[67].
[66]Cross on Evidence, 7th Aust ed (2004) at 601 [19015].
[67]Cross on Evidence, 7th Aust ed (2004) at 601 [19015].
In Hitchcock, Pollock CB accepted that independent evidence may be given to prove a self-contradictory statement made by a witness or to rebut a denial given by the witness in relation to the witness's state of mind or feelings towards a party. He referred to "those matters which affect the motives, temper, and character of the witness, not with respect to his credit, but with reference to his feelings towards one party or the other."[68] Hence, evidence of what a witness said is admissible "to shew what is the state of mind of that witness, in order that the jury may exercise their opinion as to how far he is to be believed."[69] While the "interest" and "bias" exceptions to the collateral evidence rule are typically limited to evidence about the feelings of the witness towards one party or the cause at issue, the so-called "corruption" exception is not so confined. In Lawrence, Thomas JA remarked that[70]:
"An offer to testify corruptly is a good and clear example of the 'corruption' exception. There is no doubt that a legitimate collateral issue is raised in such a case, and that evidence to support such an allegation may be independently called."
[68]Hitchcock (1847) 1 Ex 91 at 100 [154 ER 38 at 42]. See also Maguire, Evidence: Common Sense and Common Law, (1947) at 67, cited in Cross on Evidence, 7th Aust ed (2004) at 575 [17580].
[69]Hitchcock (1847) 1 Ex 91 at 101 per Pollock CB [154 ER 38 at 42].
[70][2002] 2 Qd R 400 at 409.
As indicated earlier, the complainant in that case denied in cross-examination that he had threatened to make a false complaint against a third party. The Queensland Court of Appeal held that the trial judge should have admitted the evidence of the third party against whom the threat was made. Thomas JA doubted[71] that evidence in relation to corrupt moral character is limited to a specific corrupt intention in respect of the case in hand, but rather applies where a witness has a motive for being untruthful.
[71]Lawrence [2002] 2 Qd R 400 at 410, 412.

Evidence of bias or corruption of a witness has been received in several cases, even though such evidence would not satisfy Pollock CB's test in Hitchcock. Such cases include R v Phillips[72], LSS[73] and Lawrence[74]. R v De Angelis[75] and Smith v The Queen[76] are more orthodox examples of the application of the corruption exception.
[72](1936) 26 Cr App R 17.
[73][2000] 1 Qd R 546.
[74][2002] 2 Qd R 400.
[75](1979) 20 SASR 288.
[76](1993) 9 WAR 99.
In Phillips, the English Court of Criminal Appeal held that evidence of bias ought to have been admitted to prove that a child who was a victim of and witness to an alleged incest had admitted that her mother had put her up to making the allegations. The accused denied the offence, claiming that the mother had schooled her child as to what to say. The Court held that the evidence of two women to whom the child had allegedly made the statements went directly to the accused's defence, not to the credibility of the child.
Evidence of out-of-court statements was also held to be admissible in LSS, where the accused was charged with incest and other sexual offences against his daughter. The Queensland Court of Appeal held that the trial judge should have admitted evidence from the daughter's brother that he had seen their mother (another Crown witness) coaching the daughter. In the Court's view, the brother's evidence should have been admitted – not only as to what he saw, but also as to what he heard. The Court said that the brother's evidence was inextricably linked with the accused's defence. Thomas JA said[77]:
"[E]vidence demonstrating the coaching of a witness, when there is a clear opportunity for a person apparently hostile to the accused to influence the witness, ought to be able to be called by an accused person."
[77]LSS [2000] 1 Qd R 546 at 554, Pincus JA and Ambrose J agreeing.
Thomas JA also said that the evidence fell within the exception to the collateral evidence rule in favour of evidence of bias or partiality in a witness. His Honour acknowledged[78] that "any hostility on the mother's part was based upon her belief in the truth of her daughter's complaint." However, he said[79] that this sort of reasoning was circular when the ultimate issue was the truth of the complaint. Accordingly, his Honour said that[80]:
"[T]he evidence foreshadowed from the brother could cast doubt upon the reliability of the complainant's evidence given the rather extended coaching that is said to have occurred, including encouraging the complainant to 'get emotional'."
[78]LSS [2000] 1 Qd R 546 at 553.
[79]LSS [2000] 1 Qd R 546 at 553.
[80]LSS [2000] 1 Qd R 546 at 553.
In Smith[81], the Full Court of the Supreme Court of Western Australia held that the trial judge had improperly excluded evidence from a witness for the defence in a sexual offences case. The evidence concerned out-of-court statements made by the complainant that suggested bias on her part against the accused. In cross-examination the complainant, the foster-daughter of the accused, denied that she had made statements to the witness that she had been ejected from the home of her foster family because of her drug taking and had said to the witness: "Don't worry. They will all pay for it."[82] The Full Court held that, if accepted, the jury could conclude that the evidence revealed bias on the part of the complainant causing the fabrication of the charges about which the complainant had given evidence.
[81](1993) 9 WAR 99.
[82]Smith (1993) 9 WAR 99 at 101.
Evidence of out-of-court statements by a defence witness was also admitted to prove bias in De Angelis[83]. The Full Court of the Supreme Court of South Australia upheld the admission of evidence from police officers that a witness for the defence had said to them that "if required to go to court [the witness] would lie in order to avoid offending" the accused[84]. King CJ said[85] that the statement was "admissible under the common law rule which allows statements by witnesses indicating bias or partiality to be proved". His Honour said that[86]:
"[A] statement to the effect that a person if required to give evidence will give false evidence out of a desire not to offend certain of the parties is a statement indicating partiality in relation to the parties or the cause, whether that partiality stems from friendship or fear."
[83](1979) 20 SASR 288.
[84]De Angelis (1979) 20 SASR 288 at 295 per King CJ, Jacobs and Legoe JJ agreeing.
[85]De Angelis (1979) 20 SASR 288 at 295, citing R v Umanski [1961] VR 242.
[86]De Angelis (1979) 20 SASR 288 at 295.
In R v Umanski[87], however, the Full Court of the Supreme Court of Victoria held that a statement, although affecting the credibility of a witness, was not capable of proving bias. The accused in Umanski was charged with incest involving his step‑daughter. The accused's wife was an important prosecution witness. The trial judge excluded evidence that the wife had threatened to give her husband up to the police unless she received a share of property from him. The wife denied making the statement. The Full Court held that the evidence was rightly excluded. The Court, "[n]ot without some hesitation", said that such evidence fell short of tending to establish bias or partiality that might lead the wife to give false evidence[88]. The Court said[89]:
"Had the alleged statement been to the effect that [the accused's wife] would be revenged on her husband or that she would offer false evidence of the offence of incest unless he gave part of his property to her, the case would have been different. What she is alleged to have said, however, was the converse of this. In effect she alleged to have said that she was prepared to drop the case against her husband if he made such a gift to her, not that she would invent a charge of incest against him if he did not. No doubt this indicates a willingness on her part to disregard her public duty for a price and so goes to her credit but we consider that this falls far short of evidencing a motive for giving false evidence."
[87][1961] VR 242.
[88]Umanski [1961] VR 242 at 244.
[89]Umanski [1961] VR 242 at 244.
Subject to certain limitations relating to relevance, hearsay and, potentially, s 21 of the Evidence Act, rebuttal evidence of corruption on the part of a witness should generally be admissible to show that the witness has a motive for being untruthful. Cross on Evidence acknowledges that it may be that "the only test [for the reception of the evidence] is the importance of the allegation in the context of the case."[90] This statement supports the view that the rules relating to the corruption exception should not be rigidly applied, particularly in circumstances where a more liberal approach would operate to be curative of injustice.
[90]Cross on Evidence, 7th Aust ed (2004) at 606 [19040].
Probative value of Davis's out-of-court statements
If Ross's evidence was admitted, he would say that Davis had said to him that:
"[A]lthough he, Davis, ... was involved in the killing of Clare Garabedian neither Coates nor Nicholls was so involved or present in the room but ... nonetheless he was proposing to give evidence to implicate the two of them in the murder."
Counsel for Nicholls submitted that the effect of this evidence was that at the time of making the statements, Davis intended to give false testimony at the trial of Nicholls and Coates. Counsel also submitted that the evidence of Davis's intention to give false testimony at the trial provided a basis for inferring that he also possessed that intention at the time of testifying at trial. He contended that this was evidence of Davis's corruption as a witness, and that it had the same probative value as evidence that Davis had accepted a bribe to testify falsely at trial. Counsel for Coates contended that Davis's stated intention to give false evidence implicating Coates was evidence of corruption, that is, "a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony."[91]
[91]Wigmore on Evidence, Chadbourn rev (1970), vol 3A at 803 [956].
The Crown submitted that the evidence of Davis's out-of-court statements only went to show that Davis had been offered a deal or that he was being encouraged to implicate Coates and Nicholls. The Crown submitted that evidence that a witness has been offered a bribe is not evidence of a corrupt state of mind. Accordingly, evidence that Davis had been offered a deal or had been encouraged to implicate Nicholls and Coates likewise did not constitute evidence of a corrupt state of mind[92]. The Crown also contended that the evidence of Davis's out-of-court statements did not disclose an intention to give false evidence. Ross's witness statement did not actually say that Davis said that he, Davis, intended to give false evidence implicating Nicholls and Coates. Rather, this was sought to be inferred from Ross's evidence. As a result, this case was distinguishable from cases such as Lawrence and De Angelis. In those cases, the evidence sought to be led in rebuttal was that the witness had expressly stated an intention to give false evidence, those statements being probative of a corrupt state of mind.
[92]See Hitchcock (1847) 1 Ex 91 at 101 per Pollock CB, 104-105 per Alderson B, 106 per Rolfe B [154 ER 38 at 42-43, 44, 44-45]; Lawrence [2002] 2 Qd R 400 at 403 per McPherson JA.
The nature of the evidence that Ross would have given is somewhat vague. It is not clear whether Ross would have said that Davis claimed he had been offered a deal by the police or had actually done a deal with the police or whether he actually said that he would give false evidence. However, if admitted, a jury could find that Davis said that he had done a deal with the police and that he intended to give false evidence implicating Nicholls and Coates. If so, it would be evidence of a corrupt state of mind: it would be an example of a specific interference with testimony and evidence of "a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony." And the jury could infer from this finding that his evidence against Coates and Nicholls was actuated by this state of mind.
Whether Ross's evidence is hearsay and, if so, admissible as an exception to the hearsay rule
The evidence that Ross would give was not hearsay evidence. The purpose of the evidence was to demonstrate Davis's state of mind, that is, a mental state affected by corruption or bias. The evidence was not intended to prove the truth of the statements. As Pollock CB said in Hitchcock[93]:
"It is certainly allowable to ask a witness in what manner he stands affected towards the opposite party in the cause, and whether he does not stand in such a relation to that person as is likely to affect him, and prevent him from having an unprejudiced state of mind, and whether he has not used expressions importing that he would be revenged on some one, or that he would give such evidence as might dispose of the cause in one way or the other. If he denies that, you may give evidence as to what he has said, not with the view of having a direct effect on the issue, but to shew what is the state of mind of that witness, in order that the jury may exercise their opinion as to how far he is to be believed." (emphasis added)
[93](1847) 1 Ex 91 at 100-101 [154 ER 38 at 42].
In Walton v The Queen[94], Wilson, Dawson and Toohey JJ pointed out that the making of a statement is frequently relevant in considering the mental state and subsequent conduct of the witness, quite apart from the truth of the content of the statement. A question of hearsay arises only if the words are relied upon as establishing some fact narrated by the words.
[94](1989) 166 CLR 283 at 301-302.
The Crown contended, however, that it was the content of Ross's statements that was critical and not the fact that they had been made. Evidence that Ross had had a conversation with Davis, without more, would not suggest corruption on Davis's part. In so far as the statements had value because of the assertions contained in them, the Crown contended that they constituted a "bare assertion"[95] about Davis's state of mind. Accordingly, because they did not amount to conduct from which a relevant inference could be drawn, the statements had to be excluded as hearsay. But these contentions misunderstand the relationship between statements that prove a state of mind and statements that infringe the hearsay rule. What is relevant in the present context is the state of mind of Davis when he gave evidence. That may be inferred from his conduct or from his statements.
[95]Walton (1989) 166 CLR 283 at 304 per Wilson, Dawson and Toohey JJ.
Ross's evidence could not be used as proof that Davis had actually done a deal with the police: that would be hearsay. If the words demonstrated an intention to give false testimony, however, Ross's statement was evidence of Davis's mental state that established a corrupt motive that affected his testimony. In Smith[96], the Full Court of the Supreme Court of Western Australia upheld the admission of out-of-court statements on this basis. It held that evidence was admissible to prove that the complainant in a sexual offences case had said to a witness that she had been ejected from her foster home because of her drug taking and that "[t]hey will all pay for it." The Full Court said that the evidence might have revealed that the complainant had given her evidence from a corrupt or other motive.
[96](1993) 9 WAR 99.
In Walton[97], Wilson, Dawson and Toohey JJ remarked that in some cases:
"a person's statements about his state of mind will only have probative value if they are truthful and accurate and to rely upon them is to rely to some extent upon the truth of any assertion or implied assertion contained in them. To that extent an element of hearsay may be said to be present."
But it is probably more accurate to say that in cases like Smith the contents of the statement revealed bias or corruption and the reasons for that state of mind rather than the truth of their contents. In Smith, the statements were not admitted to prove that the complainant had taken drugs or had been ejected from her foster home. They were admitted to prove that she was biased against the accused for the reasons that she gave.
[97](1989) 166 CLR 283 at 302.
In Phillips, the English Court of Criminal Appeal held that evidence that the complainant's mother had coached her to give evidence was admissible. In LSS, the Queensland Court of Appeal held that evidence was admissible that a witness saw and heard the complainant being coached by her mother. The Court said that this evidence could cast doubt upon the reliability of the complainant's evidence.
Ross's evidence concerning Davis's out-of-court statements was not admissible for the purpose of proving the truth of the contents of those statements – that Davis had done a deal with the police or that Nicholls and Coates were not in the motel room at the time of Garabedian's death or were not involved in the murder of Garabedian. The evidence was admissible for the purpose of proving that Davis intended to give false testimony against Nicholls and Coates. That is, the evidence was admissible to prove a corrupt state of mind on Davis's part.
The procedure for adducing evidence as an exception to the collateral evidence rule
At common law, if a witness does not admit the making of a prior statement, the cross-examiner must identify that statement to the witness. Only if the witness still refuses to admit making the statement may the opposing party prove the oral statement[98]. Section 21 of the Evidence Act ("Cross-examination as to and proof of prior inconsistent statement") is to similar effect. Section 21 requires that the cross-examiner identify the particular occasion when the supposed statement was made. Only if the witness does not distinctly admit that he or she made the statement can evidence be tendered to prove that he or she in fact made the statement. Section 21 provides:
"Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject‑matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.
The same course may be taken with a witness upon his examination in chief or re-examination, if the judge is of opinion that the witness is hostile to the party by whom he was called and permits the question."
[98]The Queen's Case (1820) 2 Brod & B 284 at 313 [129 ER 976 at 988]; Crowley v Page (1837) 7 C & P 789 at 791-792 per Parke B [173 ER 344 at 345].
Section 21 is essentially declaratory of the common law[99]. It does not abrogate the common law principles[100]. Proof or admission of the prior inconsistent statement does not constitute evidence of the facts stated[101] unless the witness is a party (in which case the statement may amount to an admission). Section 21 prescribes the requirement that must be met before proof of a previous inconsistent statement may be tendered. That requirement is that the circumstances of the statement must be identified to the witness sufficient to designate the particular occasion. In other words, the circumstances in which the prior inconsistent statement was allegedly made must be identified to the witness in sufficient detail so that the witness has the opportunity to admit or fail to "distinctly admit" that he or she made the statement[102]. Only if the witness fails to "distinctly admit" that he or she made the statement can evidence be led of the making of the inconsistent statement.
[99]See The Queen's Case (1820) 2 Brod & B 284 at 313 [129 ER 976 at 988]; Crowley v Page (1837) 7 C & P 789 [173 ER 344].
[100]See Umanski [1961] VR 242 at 244. The Victorian Full Court in that case construed the "permission" in the equivalent s 35 of the Evidence Act 1958 (Vic) as not abrogating common law principles.
[101]Hammer v S Hoffnung & Co Ltd (1928) 28 SR (NSW) 280; Askew [1981] Crim LR 398.
[102]This is the common law position: The Queen's Case (1820) 2 Brod & B 284 at 313 [129 ER 976 at 988].
Counsel for Nicholls and Coates submitted that s 21 of the Evidence Act does not apply to evidence adduced for the purpose of showing a corrupt state of mind. Counsel for Coates submitted that the purpose of proving a prior inconsistent statement is to raise doubt as to the reliability of the witness while the purpose of establishing a corrupt state of mind is "quite different". Establishing a corrupt state of mind impeaches the supposed impartiality of the witness.
But the common law has long taken the view that the rules concerning proof of a prior inconsistent statement apply to cases where the statement goes to the issue of bias or corruption. The Queen's Case[103] is the seminal case on proof of inconsistent statements. There, Abbott CJ, giving the answers of the King's Bench judges to questions from the House of Lords, said that words spoken for the purpose of corruption were no different from words spoken for any other purpose. He said[104] that they "fall within the same rule and principle, with regard to the course of proceeding in our courts, as words spoken for any other purpose". The reason for this similarity of treatment is clear. It would be anomalous if the nature and circumstances of the statement were required to be put to a witness as a prior inconsistent statement before the witness's credibility could be attacked, but not if the witness had stated that he or she intended to lie in court.
[103](1820) 2 Brod & B 284 [129 ER 976].
[104]The Queen's Case (1820) 2 Brod & B 284 at 315 [129 ER 976 at 988].

Before dealing with the detail of these factual arguments, it must be remembered that before the second ruling was made, the trial judge heard the evidence of the police officers Hawley and Hutchinson, had not heard any contrary evidence from Coates, and accepted the evidence of the officers. No application was made to set aside either the first or the second ruling after Coates did give evidence. No basis was put forward for impugning the testimonial honesty of the police officers involved in this case, and no attempt was made to essay the difficult task of demonstrating error in the trial judge's acceptance of their evidence. In that state of affairs, the trial judge's finding that the break was requested by Coates and not manufactured by Hawley and Hutchinson must be accepted.
To some degree, the factual submissions of Coates are unsupported by the evidence. Thus, what Hawley actually said in cross-examination was:
"In fact you actually encouraged him to speak off video by saying, 'Come on then, tell us your side of the story' didn't you? ––– Yes, I suppose you could say that."
So you deliberately chose to continue this interview off camera for a short time, didn't you? ––– Yes.
And you would agree with me that that is not proper or careful practice? ––– In hindsight, yes.
That what you should have been doing is really as soon as the conversation started was, 'Come on, we really should be having this on video.' Right? ––– Yes."
It is particularly to be noted that Hawley did not say any words to the effect that the conduct of the police was "'deliberately intended' to avoid videotaping requirements".
Further, it was correct of the Court of Criminal Appeal to say that Coates initiated the off-video discussion because the trial judge found that the break "was at the request of Mr Coates". It was also correct of the Court of Criminal Appeal to say that the officers' evidence demonstrated Coates's anxiety to speak. The officers proved indeed that as soon as the videotaping ceased the questioned suddenly became the questioner; that his opening words were: "What are my options?", "What am I looking at?", "What can I do?" and "How much will I get?"; that he followed them up with references to how he would not survive gaol, and by the statement "How can I get myself out of this situation?" Only then did Hawley say "Come on then, tell us your side of the story". The officers also proved that Coates said "What's in it for me?", and asked to see Kays and Byleveld with a view to striking a deal.
Some of the factual arguments are beside the point; they do not demonstrate error in the trial judge's conclusion that Coates initiated the decision to cease videotaping at 5.06pm and did not assent to its resumption until 5.51pm. It therefore does not matter that the police officers did not say that Coates refused his consent to videotaping, nor does it matter that the police officers did not specifically ask him about his consent. Contrary to what Coates suggested, there was evidence that the police officers believed Coates was anxious to speak off tape and there was evidence that they believed that Coates was not consenting. So far as the evidence of Hawley and Hutchinson is concerned, Coates's submission is irreconcilable with the trial judge's finding based on their evidence that the break was requested by Coates and was not manufactured by Hawley and Hutchinson. So far as the evidence of Kays and Byleveld is concerned, the submission is irreconcilable with the fact that Byleveld told Coates that no further discussion could take place unless it was videotaped; with the fact that when Kays left the video room he told Hawley and Hutchinson to "get back in there and put him back on video if he wanted to"; and with the fact that Byleveld believed that "Mr Coates had ceased the video". These items of evidence imply a belief in Kays and Byleveld that it was the wish of Coates that the discussion at that time not be videotaped.
Nor is the admissibility of Coates's admissions affected by whether Hawley allowed the discussion to continue off-camera for a short time without pressing Coates for a resumption of videotaping, or whether Hawley had not conformed to proper or careful practice.
Counsel for Coates argued that the first ruling could not be defended because the trial judge made it in reliance only on the unsworn witness statements of Hawley and Hutchinson, and they were incapable of constituting sufficient proof of "a reasonable excuse" on the balance of probabilities. That was not a point taken by counsel for Coates before the trial judge when he was considering the arguments before he made his first ruling. Counsel for Coates at that stage acquiesced in the procedure, and did not require a voir dire in which sworn evidence might be taken. The parties appear to have assumed that the evidence the officers would eventually give would conform to what their statements said. Certainly there was no prejudice to Coates, because it turned out to be the case that the officers' evidence, when it came to be given, corresponded with their witness statements. And the second ruling, which confirmed the first ruling, though by somewhat different reasoning, was given with the benefit of the sworn evidence of Hawley and Hutchinson.
Coates's legal arguments. Coates rightly argued that s 570D and similar enactments recognise that miscarriages of justice may occur where the prosecution relies on a confession or admission that has not been mechanically recorded. To that may be added the desire of legislatures to minimise time-wasting in forensic combats between accused persons and police officers over whether or not a confession had been made.
However, these general appeals to the purposes of the legislation do not point decisively, as a matter of construction, to what particular technique is revealed in the language of the statute as having been chosen by the Western Australian legislature.
Counsel for Coates submitted that it would frustrate the purposes of s 570D if a "reasonable excuse" could be found in the mere circumstance that police officers gave evidence that they "did not initiate" a non-videotaped discussion, but believed that the accused was "anxious" to speak out and had initiated the discussion, chose to continue the interview, and then, when videotaping resumed, chose not to have any admissions confirmed. Coates submitted that s 570D should not be construed so as to permit easy evasion by allowing dishonest police officers to get off-camera admissions into evidence by giving perjured testimony that they had thought the suspect no longer wanted the interview recorded.
The risk of police officers lying in order to bring s 570D(4)(c) into operation is a risk which could only be overcome by a complete ban on the reception of non-videotaped admissions. Despite s 570D, it would be possible for police officers to tender admissions by mendaciously testifying that the accused was not "a suspect", or that it was "not practicable" to videotape the admissions, or that the equipment could not be obtained in time, or that it malfunctioned. Parliament struck a compromise in enacting the section: it relied on a belief that police officers would in general try to carry out their investigative and testimonial duties honestly. On that assumption, compliance with s 570D would result in a good many admissions being reliably recorded even though difficulties may arise in some marginal cases, and even though there might remain a possible risk of perjury. It is not possible to seek to overcome the possible risk of perjury by construing s 570D to mean what the words do not say.
Counsel for Coates advanced a more modest argument: that the beneficial purpose of s 570D could be frustrated by police officers simply giving evidence that they believed a suspect did not want admissions recorded and therefore ceasing to videotape the interview. That is not so, for a mere belief of that kind is insufficient to prove that the suspect did not consent.
It does not matter that the police officers did not ask Coates to repeat on-camera the things he had said off-camera. It might have been thought aggressive and even deceitful of them to have done so in those particular circumstances, in view of the fact that he had made it plain that he did not want to talk about certain matters on-camera. It would nullify the regime which permits a suspect to consent or not to consent, if police officers were required to accede to a suspect's wish to speak off-camera, but then to repeat on-camera everything that had been said. Further, though most legislatures have made it a condition of admissibility of non-videotaped admissions that their making be confirmed in a recorded form[307], that course has not been adopted in Western Australia. Some of the statutes adopting the former course pre-date the introduction of s 570D in 1992[308]. That suggests that the Western Australian legislature deliberately chose not to adopt the course adopted elsewhere. And it militates against Coates's submission that, on the true construction of s 570D, a failure to get the admissions made off-camera repeated on-camera means that there is no "reasonable excuse".
[307]Crimes Act 1914 (Cth), s 23V(1)(b); Criminal Procedure Act 1986 (NSW), s 281(2)(a); Crimes Act 1958 (Vic), s 464H(1)(c) and (e); Summary Offences Act 1953 (SA), s 74D(1)(c); Evidence Act 2001 (Tas), s 85A(1)(b); Crimes Act 1900 (ACT), s 187(3) (applying the Commonwealth legislation in the ACT); Police Administration Act (NT), s 142(1)(a).
[308]The Victorian legislation dates from 1988 and the Commonwealth legislation from 1991.
Counsel for Coates suggested that nothing in the Second Reading Speech about the Bill containing what became s 570D casts light on its construction. It is true that there is nothing specific about the construction of s 570D(4). But the Attorney-General, after describing the success of a trial scheme for videotaping the interviews of suspects and the advantages of installing appropriate equipment, referred to McKinney v The Queen[309]. He then said[310]:
"The Bill will ensure that in serious cases an accused's confession will be inadmissible unless it has been videotaped. Exceptions to this rule will be permitted, subject to the court's discretion, to receive evidence of admissions which have not been videotaped, if this is in the interests of justice."
The exceptions are s 570D(2)(b) read with sub-s (4), and s 570D(2)(c). The only reference to the "interests of justice" appears in s 570D(2)(c). Yet the Attorney-General's language indicated that he regarded the "reasonable excuse" exception in s 570D(2)(b) as advancing the interests of justice also. A construction of s 570D(4) that would exclude the admissions made between 5.06 and 5.51pm would not serve the interests of justice.
[309](1991) 171 CLR 468.
[310]Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 4 June 1992 at 3356.
Counsel for Coates appeared to submit that the "reasonable excuse" in s 570D(2)(b) both had to exist and had to be the reason why there was no videotaping. In effect, it was submitted that even if Coates did not consent to the videotaping, the real reason why the police questioned him without continuing the videotaping was to serve their own ends, not to conform to his wish to speak "off-camera". That submission is irreconcilable with the trial judge's finding that the break was requested by Coates and not manufactured by Hawley and Hutchinson, and with the evidence discussed above demonstrating the belief of the police officers that Coates would not go on videotape.
Counsel for Coates also submitted that s 570D(2)(b) required proof of a "reasonable excuse for there not being a recording on videotape of the admission" and s 570D(4)(c) required proof of a lack of consent by the suspect to "the interview being videotaped" – not the part of the interview containing the admission. In short, he submitted that the prosecution had to prove a lack of consent to any interview at all. The contrast between "admission" in s 570D(2)(b) and s 570D(4)(a), and "interview" in s 570D(4)(b)-(d) is curious. However, if sound, this submission would have absurd results. It would mean that if the suspect refused consent to any part of the discussion being videotaped, but proceeded with it and made ten admissions, they could be proved against him, but if he agreed to the discussion being videotaped, save for isolated moments during which he made the same ten admissions, they could not be proved against him.
Counsel for Coates also submitted that the Listening Devices Act 1978 (WA)[311] applied to the questioning of Coates, and that this meant that the police could not have had a reasonable excuse for failing to videotape any part of the questioning. Section 4(1) of the Act prohibits the use of any "listening device" to record a "private conversation" by a person who is not a party to that conversation; it also prohibits a person (whether a party to the conversation or not) from communicating or publishing "the substance or meaning" of a private conversation that has been recorded in that way[312]. However, s 4(2) provides that "it is not an offence" for a party to a private conversation to record and publish it if the publication is "no more than is reasonably necessary in the public interest or in the course of his duty or for the protection of his lawful interests". Counsel argued that either the questioning of Coates was not a "private conversation", or that, if it was, s 4(2) applied. Either way, it would have been lawful to videotape the admissions, and the existence of the Listening Devices Act did not create a reasonable excuse for not doing so, since Coates's consent was not required.
[311]The Listening Devices Act 1978 (WA) was repealed and replaced by the Surveillance Devices Act 1998 (WA), which came into force on 22 November 1999.
[312]Section 3 relevantly provided:
"'private conversation' means any conversation carried on in such circumstances as may reasonably indicate that the parties to the conversation desire it to be confined to those parties, but does not include a conversation made in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard."
Even if the questioning of Coates during the relevant period was not a "private conversation", or, if it was, even if the exception in s 4(2) could be held to apply, that would simply mean that any recording of the non-videotaped admissions by the officers, or the subsequent publication of that recording, would not constitute an offence. The Listening Devices Act imposes no obligation to record conversations. There is no explicit link between it and s 570D of the Criminal Code. Whether or not the Listening Devices Act did not render it unlawful to videotape the admissions, it casts no light on the correct construction of s 570D.
For all these reasons, no error has been demonstrated in the reception by the trial judge of the admissions made by Coates that were not videotaped.
McKinney direction
Coates submitted that the trial judge should have given the jury a direction of the kind described in McKinney v The Queen[313]:
"[T]he jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed … that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated. Within the context of this warning it will ordinarily be necessary to emphasize the need for careful scrutiny of the evidence and to direct attention to the fact that police witnesses are often practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth. 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."
[313](1991) 171 CLR 468 at 476 per Mason CJ, Deane, Gaudron and McHugh JJ.
The trial judge directed the jury as follows on the non-videotaped admissions. He reminded the jury that the relevant discussion had lasted three quarters of an hour. He said that that was a period of time which counsel for Coates:
"particularly invites your attention to as saying it's far too long a break to be accommodated by the sort of discussion which police officers say occurred and the events which police officers say happened during that period."
He directed the jurors that they would want to give that "some consideration". He then said:
"You will make your own judgment who asks for [the break]. It's asked for apparently as a toilet break and then it occurs."
He then summarised the evidence of the four police officers and the evidence of Coates, and said that the competing versions had to be measured carefully against each other. He pointed out that the police officers had not kept any notes made at the time and had testified without any aid to recollection. He then said, in a passage to which counsel for Coates directed specific criticism:
"A question that might arise is whether you think that [Coates's] evidence may be right and the officers might be mistaken about what occurred, but you might find that a very difficult proposition and the question might well be, the simple question, who is telling the truth and who is committing perjury in this court in relation to what occurred at that time?"
He then said that the real question was whether they accepted the evidence of the police officers, that it was not necessary for them to believe Coates, and that it sufficed if they thought his evidence "may be true". He said that on the evidence of the police officers, the jury might think that Coates had made "implied admissions of guilt", including conscious dishonesty on his part. He continued:
"[I]t's perfectly clear that if you took that to be a lying process, if I can describe it in that way, to sum up the nature of the process, alone on that basis you could not convict Coates of any offence.
Its real significance would be the extent to which his behaviour in that way is so revealing of a consciousness of guilt as to provide support for the truth and accuracy of Davis's evidence when he implicates Coates. It remains the case, I think, that you keep coming back to Davis and the need to rely upon him if you are to establish guilt and make decisions about guilt in this context as well as in relation to other accused persons."
Two criticisms were advanced by Coates. The first was that what he called a "McKinney direction" should have been given and was not given. The second was that the passage in which the trial judge referred to perjury was sufficiently flawed to justify the allowing of the appeal.
The first criticism fails. According to the majority in McKinney v The Queen, the direction called for should be given where two conditions are satisfied. One is that the confession is "the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt"[314]. The second is that the making of the confession is not reliably corroborated. If the passage quoted above from McKinney v The Queen were to be treated as a statute, or even as a canonical statement of the common law, and construed with precision, it would not apply here, because the evidence of Hawley about the admissions he heard was corroborated by Hutchinson, and vice versa; and the evidence of Kays as to the admissions he heard was corroborated by Byleveld, and vice versa. However, it is not desirable to construe the passage as if it were a statute. Other passages in the reasons for judgment of the majority reveal that the Court was troubled about the risk of collaboration by police officers[315]. In these circumstances, the word "corroborated" should perhaps not necessarily be given its normal meaning. But the other condition, that the confession be "the only (or substantially the only) basis" for finding guilt cannot be explained away or read down. Counsel for Coates submitted that it was only "an example given in that case". That is incorrect.
[314](1991) 171 CLR 468 at 476.
[315](1991) 171 CLR 468 at 476-477.

The condition was not satisfied here. In the case of Coates, the evidence against him included that of Davis – a witness whose background, behaviour and position left him open to be disbelieved, certainly, but whose evidence was available to be accepted. The evidence against Coates also included admissions made by him in the videotaped parts of the questioning, not only in the form of lies but also in the form of knowledge of the expressed desire of Coates and Nicholls to kill the victim. Coates had a motive to kill the victim – to silence the only eye witness against him and Hoy in pending criminal proceedings. He expressed anger at the victim, and feared that her evidence could lead to him having to serve three or four years' imprisonment. He had an opportunity, demonstrated by telephone records and by admissions, to kill the victim: he was near the scene of the murder at the time it took place. Davis's evidence about what happened was confirmed by medical and forensic evidence, even though it did not directly implicate Coates. While explanations were advanced in the course of the trial in order to nullify the effect of these categories of evidence, they were capable of being accepted by the jury, which meant that neither the non-videotaped admissions nor the evidence of Davis stood alone.
Further, the trial judge twice pointed out that, in isolation, the non-videotaped admissions did not form a basis on which Coates could be convicted. That was stronger than the type of direction described in McKinney v The Queen. That type of direction, while centring on the "dangers involved in convicting", assumes that once the dangers have been properly considered it is open to the jury to convict on the admissions. But the direction that the trial judge here gave was that the jury could not convict on the admissions alone.
To hold that the kind of direction now called for by Coates was mandatory would involve a very substantial change in the law. Nothing in the reasoning in McKinney v The Queen or in the arguments advanced by Coates suggests that that change should be made.
The fundamental obligations of a judge instructing a jury are well known. The trial judge must decide what are the real issues in the case, and then tell the jury, in the light of the law, what those issues are[316].
[316]Alford v Magee (1952) 85 CLR 437 at 466; Melbourne v The Queen (1999) 198 CLR 1 at 52-53 [143]; RPS v The Queen (2000) 199 CLR 620 at 637 [41]-[42]; Zoneff v The Queen (2000) 200 CLR 234 at 256-257 [55]-[56]; Azzopardi v The Queen (2001) 205 CLR 50 at 69 [49]; KRM v The Queen (2001) 206 CLR 221 at 259 [114]; Doggett v The Queen (2001) 208 CLR 343 at 373 [115].
There may now be a question whether the warning described in McKinney v The Queen is now appropriate at all. At the time it was decided, only one Australian legislature had attempted to deal with the problems to which the Court in McKinney v The Queen was directing its attention. Now that all Australian legislatures have devised solutions in their own differing ways, it is not clear that the direction described in McKinney v The Queen, in its precise terms, continues to have the same work to do. A competing consideration is that while the dangers that troubled the majority in McKinney v The Queen have generally been reduced by legislation, so far as they remain in particular cases, a warning is still called for. However, the question need not be decided in this case, for the reasons already given.
Where there is a real issue about whether evidence of non-videotaped admissions should be accepted, the trial judge may find it appropriate to draw attention to the particular difficulties that may affect acceptance of police evidence about non-videotaped admissions, even if it is not substantially the only evidence against the accused and even if it is corroborated. Whatever duty there was to warn in this case was amply carried out by the trial judge. He pointed to the key problems in accepting the testimony of the police officers – the lack of notes (as counsel for Coates had requested) and the time difficulty. He reminded the jury of counsel's criticisms along those lines. He also spoke of the need for care. He directed them as to the burden and standard of proof on the issue in a manner which was not complained about. And he directed them that it would not be possible to convict on the non-videotaped evidence alone. These directions reflected the issues that had arisen in the case and gave the jury sufficient guidance about their resolution.
The other criticism made concerned the trial judge's references to perjury. Reliance was placed on a statement in McKinney v The Queen[317] that a jury should never be directed in terms which suggest that it is necessary to decide whether police officers have conspired to permit perjury. But the trial judge did not suggest that it was necessary to decide that in this case. He said that it "might well be" a question, not that it was. One reason why he chose that language may be that counsel for Coates did not cross-examine the police officers to suggest that they had been engaged in a conspiracy to commit perjury, and had endeavoured to prevent that possibility arising as an issue.
[317](1991) 171 CLR 468 at 477.
There is a further reason for rejecting both criticisms of the trial judge's directions in relation to the non-videotaped admissions. Before the summing up, counsel were asked if they wished to propose any particular directions. Counsel for Coates did not propose any directions on this subject beyond two suggestions, both of which the trial judge took up – one about the police officers' want of notes, and another about summarising the competing bodies of evidence. After the summing up, counsel spent a considerable time asking for further directions. None were sought on this topic. There is no requirement in Western Australia that leave must be obtained to take a point on appeal which was not taken at trial. However, the things that happened before, and the things that did not happen after the summing up, suggest that counsel for Coates was of the view that the summing up had not unfairly disadvantaged Coates. Because of her familiarity with the context and atmosphere of the trial, she was much better placed than anyone else (and in particular much better placed than her successors or this Court) to judge that question. The fact that no redirection was sought correcting the initial directions suggests that the initial directions were not in need of correction. It may also suggest that counsel elected not to seek a more favourable direction because to do so might have had the disadvantage of highlighting and reminding the jury of the admissions made. The failure to complain is particularly significant in relation to the second of Coates's criticisms, because another way of putting that criticism, if it were sound, is that it reversed the burden of proof. The fact that counsel did not complain about what, if the criticism were sound, would be a very fundamental matter, suggests that it is not sound.
Orders
Both appeals should be dismissed.