Nicholls v The Queen, Coates v The Queen

[2004] HCATrans 125

[2004] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P79 of 2003

B e t w e e n -

THOMAS NICHOLLS

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Perth  No P81 of 2003

B e t w e e n -

MARTIN GRAEME COATES

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 29 APRIL 2004, AT 10.04 AM

(Continued from 28/4/04)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Stone.

MR STONE: If your Honours please. The appellant Coates places reliance in its submissions on Hawley not having complied with the videotaping requirements under section 570D by having encouraged Coates to speak off camera and that he deliberately did so in the off‑camera admissions. The trial judge dealt with that issue, your Honours, in his second ruling; having, by that stage, heard the testimony of Hawley; having, by that stage, seen the video in its entirety, and by that stage then having heard the evidence of Officer Hutchinson. It was then at that point in time a break, so to speak, where submissions were then being made in relation to the evidence of the two senior officers. If I can take your Honours to the commencement of his Honour’s ruling in that regard, because it was somewhat interrupted by further submission by defence counsel.

HAYNE J: Just before we do that, can we go back to an aspect of 570D which may bear directly on this aspect of the matter, in particular, directing attention to section 570D(4)(c) and the requirement for consent. We have already noticed the difference between “interview” and “admission” in various parts of 570. If things are not complex enough, can I inject a third element. The Listening Devices Act 1978 (WA) was, I think, the legislation then in force, that is, at the time of enactment of 570D.

MR STONE:   Yes.  As I understand it, the Surveillance Devices Act came into ‑ ‑ ‑

HAYNE J:   In 1998?

MR STONE:   Yes, after this particular interview.

HAYNE J:   The 1978 Act, which I have not studied with any care yet, seems to prohibit, in effect, taping of private conversations.  So we have a third integer walking across the stage, namely, private conversations, without consent of the parties to it.  I direct attention to it for two purposes:  one, is this an explanation for what seems to be the legislative assumption about consent reflected in 570D(4); second, if it is relevant, does it say anything about the difference, query distinction, drawn in the provisions of 570D between interview and admission, and does it bear upon questions of reasonable excuse, in particular, a request of a person that a conversation occur in private without recording?

MR STONE: At the time of the second reading speech in relation to section 570D, there was no reference made to the Listening Devices Act.  Secondly, it was my understanding of the Listening Devices Act – I stand to be corrected – that provided a person was a party to the conversation, one could tape the conversation without the consent of the other party.

HAYNE J:   Yes, but then query whether you could use it by passing it on to someone else.  I do not know.

MR STONE:   Yes, the answer to that, your Honour – can I put it this way.  I was involved in a case where a woman had tape recorded a person who she believed had molested her child, and this was in contravention, obviously, of the Listening Devices Act.  What she did was subsequently pass it on to the police.  The police were then able to use that material, we submitted, on the basis that it was in the interests of justice to do so.  The police had not been a party to the illegal or unauthorised – if I can put it that way – taking and obtaining of the evidence in first instance.  Where they came into possession of it legitimately – namely, where the woman had passed it on to the police – it was accepted by a judge at first instance and then later on appeal that, using a Bunning v Cross type argument, it was in the interests of justice for that material to be used.

HAYNE J:   Mr Stone, I may have dragged a red herring across the path of argument.  At the moment it is not evident to me that it is a red herring, subject to what other members of the Court may consider.  It is an area in which I would be assisted by submissions, perhaps later rather than now from the parties.

MR STONE:   Yes.  I wonder whether, your Honour, in relation to the Listening Devices Act, we could provide written submissions in due course on that particular issue, if that would assist.

GLEESON CJ:   Well, perhaps all counsel could do that within 14 days.

MR STONE:   Thank you.  If I may then take your Honours to the commencement of the trial judge’s second ruling.  That is in 5 appeal book at 1299.  This was the commencement of the trial judge’s ruling then in the midst of the trial on 21 August, the trial having proceeded for some time.  Opposite line 10, his Honour took the view:

The reasonable excuse phrase that the section contains has in subsection (4) some explanation provided as to what it may mean, but that’s not an exclusive list of circumstances which will constitute a reasonable excuse and no others will.  Nonetheless, one of them is that the admission was made when it was not practicable to videotape it, and another is that the accused person did not consent to the interview being videotaped.

Of course he did consent to the interview being videotaped and there was a videotaped interview, but I think it is clearly open, when one views that process, to conclude that the break which occurred in the interview was at the request of Mr Coates, and that was a toilet break.  For myself, and I suppose it is my view which is of some importance in this context when I am ruling about whether the material should be excluded from evidence, there is –

and I emphasise this –

no reasonable proposition that it was a break which was effectively manufactured by the interviewing police officers.

This was a fact‑finding exercise for the trial judge at this point in time, given the submissions that preceded it on page ‑ ‑ ‑

GUMMOW J:   He also seems to have thought that there followed “a separate interview process”.

MR STONE:   Yes, his Honour looked at it in that context, that there were in fact, I suppose, three interviews.

GUMMOW J:   Yes.

MR STONE:   There was the first, the second – I would recognise immediately it is really one interview which we are concerned with, given the time, the situation, the place of the people involved.  What is important is that his Honour took the view that there was this break initiated and contrived by the appellant Coates so that he could have the opportunity to speak off camera, and so that what he wanted to say off camera would not be videotaped.

GLEESON CJ:   This on page 1299 – is it a ruling on the papers?

MR STONE:   No, this is the ruling on the evidence.

GLEESON CJ:   So the judge seems to have looked at the videotape himself, partly for the purpose ‑ ‑ ‑

MR STONE:   He has looked at it with the jury, your Honour, because prior to that ‑ ‑ ‑

GLEESON CJ:   I am just pointing out that it appears from the following paragraph that his conclusion is based on demeanour ‑ ‑ ‑

MR STONE:   Yes, he has also seen the two officers in the witness box.  He has seen the three people in the video itself, two officers plus Coates.

GLEESON CJ:   I assume the reference to demeanour in the fourth paragraph on page 1299 is a reference to what appears from the video.

MR STONE:   It is, your Honour.  What had occurred was Officer Hawley had been called to testify.  He gave - during the course of his evidence in‑chief the videotape was played.  It went over two days.  The jury were present, then cross-examination occurred.  Then Officer Hutchinson was called, his evidence in‑chief, in cross-examination, and re-examination if there was any, was heard by the trial judge and the jury.  Then counsel for Coates stood up and made further submissions concerning the senior officer’s evidence.  It was in relation then to the whole of that that the trial judge starts his ruling here.  It then goes on, your Honours.  There was a further submission by counsel and then his Honour picks it up again at page 1301 at about line 20 and he says:

In fact the first of them you raised in my view reinforces the correctness of my conclusion rather than the other way around, but it is clear that the process was commenced by Mr Coates in my opinion and that he was seeking to speak off the camera, if that phrase is appropriate, to the police officers and to discuss with them, and the short discussion which follows -

and your Honours have seen that it is a short discussion -

is of this content, what options he had to deal with the interview process when as is clear or anticipated it was resumed in an official way on the camera and was recorded.

KIRBY J:   I am just not quite understanding the point because you cannot walk your way out of a statute because you have taken initiative or because you want to do it your way.  The Parliament of Western Australia and the Parliaments of other States of the Commonwealth have enacted this scheme in order to stop exactly what we are here engaged in and what the Court of Criminal Appeal has been engaged in and what other courts and courts of criminal appeal and this Court has been engaged in; namely, this debate about what was said when matters were not being recorded as Parliament required.  You cannot just walk out of it because you want to have a private conversation, if the statute so requires.

MR STONE:   Your Honour, I accept everything that your Honour says, save that in this instance this accused man did not want his statements
videorecorded.  He wanted the opportunity to speak with the police
off camera.

KIRBY J:   So what?  That gives rise to the very vice that bedevilled the administration of justice, the good reputation of police, the prosecution by the Crown and, in some cases, the fairness to accused in the 1970s and 80s.  It is not only our country, other countries have tried to deal with this problem and they have gone to the trouble.  This Court really, in McKinney and earlier in Duke and all the other cases that have led up to the crescendo in McKinney, was pointing the way that they had to have electronic recording.  Eventually it was done and it turned out, as you would be the first to perceive, to be a very important weapon for the Crown.

MR STONE:   Save that Parliament did not say, with respect, your Honour, that all material that was not videotaped would be inadmissible.  Parliament provided a series of situations that allow for this type of situation to occur.

KIRBY J:   I accept that, but it is those exceptions that are laid down by Parliament, not the desires and wishes of accused persons or of police, that we have to focus our attention on.

MR STONE:   No, indeed, and the trial judge was then in a situation where he had to find whether, in the circumstances of this particular case, on the evidence that he heard, having regard to what transpired in relation to this case, did that provide a reasonable excuse for not having videorecorded what the suspect wanted to say off camera?  With respect, that was the finding that was open on the evidence.

If I could take your Honours to a decision of the New South Wales Court of Criminal Appeal dealing with the equivalent New South Wales legislation.  It is not quite the same as Western Australia because we are not required to have the suspect adopt what was said off camera, but it is still dealing with the reasonable excuse.  It is the first case on the respondent’s list of authorities.  It is the decision of Moussa.

KIRBY J:   Would you just remind me of what the New South Wales Act says.  It says that if you have an off‑camera admission, then it has to be immediately put to the accused on camera and the accused has to adopt it, otherwise it is out.

MR STONE:   Yes, that was my understanding of the New South Wales Act, which is different from Western Australia.  Could I take your Honours to page 514, paragraph 33.  This is what the New South Wales Court of Criminal Appeal had to say here, Justice Howie

There is scope for minds legitimately to differ as to whether a reasonable excuse has been made out in a particular factual context.  It is not for this Court to circumscribe the factual findings available to the trial courts.  Provided that those findings are open on the evidence and are made consistently with the purpose of the section and with regard to the mischief that Parliament sought to address, this Court should not interfere with what is essentially the function of the trial judge.

GUMMOW J:   It is a question of what the phrase “reasonable excuse” means in the statute and it is true of many statutes, not just this one.

MR STONE:   Yes, indeed, and we say it is open here, on the Western Australian legislation, for the trial judge to make a finding on the evidence, on the material before him, on the balance of probabilities that Coates had asked to speak off camera with the police because he did not want the deal that he wished to discuss with the police officers recorded.

GLEESON CJ:   As I understand it, you are dealing with a factual challenge to the statement that was made on page 1546 in volume 6 of the appeal book.  Mr McCusker said that the Court of Appeal was wrong to say that the break was engineered or contrived by the interviewee and Mr McCusker challenged the factual finding of the trial judge on that matter at page 1299, which was upheld by the Court of Appeal.

MR STONE:   Yes.

GLEESON CJ:   So we have to, amongst other things, deal with Mr McCusker’s challenge to that fact finding.

MR STONE:   With respect, the person in the best position to have judged that fact was the trial judge himself, because he had available to him the video itself and he could see the parties.  He did not have to rely on the transcript, which is not accepted, in that sense, as evidence, and he had before him the witnesses in person, and so he could make the best assessment as to the reliability and credibility of those witnesses and that evidence.

CALLINAN J:   But there is no dispute about the relevant facts as to what was said off camera.  It is a pure question of law whether those facts constitute reasonable excuse within the meaning of the section, so that all the observations in the world cannot assist in resolving that question.

MR STONE:   When one looks at the legislation ‑ ‑ ‑

CALLINAN J:   Whether the judge thought somebody was credible or not credible cannot resolve what is essentially a question of law, whether the facts, the undisputed facts – or, if you like, whether the facts as propounded by the police witnesses – amounted to a reasonable excuse. 

MR STONE:   Yes.

CALLINAN J:   It has nothing to do with observations by the trial judge.

MR STONE:   That is the starting point.  It has to be the starting point, with respect.  We would submit that the trial judge was correct on his finding that there was a reasonable excuse in the circumstances of this particular case, having regard to the provisions of the legislature, and that the Court of Criminal Appeal were correct also.

GUMMOW J:   Having regard to which provisions?

MR STONE: Section 570D(2)(b):

the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission ‑ ‑ ‑

GUMMOW J:   We know that, but with reference to subsection (4)?

MR STONE:   We say subsection (4), as his Honour the trial judge said, is not an exclusive list.  His Honour found ‑ ‑ ‑

GUMMOW J:   No, but it would be an odd result if you could tweak what is specifically dealt with in (a), (b), (c) or (d) and say, “Oh, well, it is almost within, say, (b) or (c).  It is not quite, but it is covered by ‘includes’”. 

MR STONE:   His Honour found it was allied to (4)(c):

The accused person did not consent to the interview being videotaped.

GUMMOW J:   Yes, quite.

MR STONE:   His Honour was confined by the factual situation itself.

McHUGH J:   I appreciate that that is what his Honour found, but my difficulty is that to read (4)(c) literally as applying to the facts of the case seems to mean, in effect, that the legislation is completely useless.  It just creates the very problem that the section is designed to overcome.  A detective says, “We asked him would he consent to an interview and he said no”, and then he said, “Yes, I did it, guv”, and so you have this oral – that is the very mischief that the section was designed to overcome, and the unsigned record of interview, “Yes, it is all true, but I am not going to sign it, I never sign anything”.  Surely, the legislature did not intend to just repeat in another form the issues that plagued the Court for 25 or 40 years?

MR STONE:   But they also did not intend to provide a straitjacket and, with respect, your Honour, in this situation the mischief is dealt with, I suppose, in the sense that something obviously happened to cause the intervention of the two senior officers.  Something must have brought them in.  The fact that they have come into the room itself is dealing with part of the mischief.  The fact that Senior Officer Byleveld says straight away, “There are no deals.  Get back on camera.”

McHUGH J:   Well, it all depends.  Without impugning the integrity of these officers in any shape or form, long experience in the courts showed that senior officers would get in the witness box, inspectors and sometimes superintendents, and say, “Yes, I asked the accused whether he made these admissions and he said, ‘Yes’”.  I refer to some of the matters in my dissenting judgment in Kelly.  It was a commonplace.

MR STONE:   Yes.  But then Parliament came along and enacted legislation which provides for a reasonable excuse, and the courts take the view that a trial judge is in the best position and is given that function, that is his role in the trial process.

McHUGH J:   Well, I think that is the issue.  There is no doubt, I think, that the literal interpretation of the section favours the view for which you contend, but it seems to me to have an effect which defeats the whole purpose of the legislation.  It would mean that in any case it would be open – as long as the judge believed that the accused had refused to consent to the interview being videotaped - it was an open go for the police officers involved.  That is what it comes to.  It is hard to avoid that ‑ ‑ ‑

MR STONE:   The obligation that was placed upon the prosecution was to satisfy the tribunal of fact.

McHUGH J:   Yes.

MR STONE:   On the balance of probabilities, not beyond reasonable doubt, and Parliament left it open.

GLEESON CJ:   I think the point that was made in argument in Kelly, as I recollect it, was that in the various States when this issue came up the outcome reflected a compromise.

MR STONE:   Yes.

GLEESON CJ: The people who were advocating one point of view proposed a particular course and people who were advocating another point of view proposed another and in the end you had a compromise. As an American judge said some time ago, Parliament very rarely pursues its purpose regardless of all costs. The question that we have to decide, as a matter of construction of section 570D, is what is the effect, in a case like this, of the compromise that is plainly reflected in section 570D(4)(c).

MR STONE:   And in the word “includes”.

HAYNE J:   That is why I want to go back and discover the origin of this assumption about consent.

MR STONE:   Yes.  Perhaps if I could just finish up on the note, that it was quite clear from the second reading speech, as your Honour the Chief Justice has pointed out, Parliament was keen to achieve that balance, and one can see that in relation to what they said about McKinney and the reasons why this legislation was being introduced, but they did not want to close off the position, so that all material that was not videotaped was therefore inadmissible.

McHUGH J:   It may be that this section, or this Act itself, overtakes the Listening Devices Act because section 570B(4) says:

A person, other than a member of the Police Force acting in the course of duty . . . who supplies, or offers to supply, a videotape to another who is not an authorised person commits an offence.

MR STONE:   Yes.

McHUGH J:   It may be it is meant to be exhaustive of the issue.

GUMMOW J:   It does not say who makes, though.

GLEESON CJ:   The problem we have to face is that, while it seems reasonably clear that if, right at the outset, the accused had said, “I do not consent to any interview being videotaped”, then we would have been thrown back on the law as declared in McKinney and other cases.

MR STONE:   Yes.

GLEESON CJ:   There is a question as to how this legislation operates, where you have a sort of intermediate situation where an accused says, “I am happy to be interviewed about some things, but I’m going to put my hand up at some stage and call it off temporarily”.

MR STONE:   Yes, which he is entitled to do.  That is what he chooses to do, and at the same time, the police who were interviewing him have to develop some sort of a rapport, some sort of an understanding to get the suspect to talk ‑ ‑ ‑

GLEESON CJ:   Forget about the intermediate off and on again situation we had in this case, how does this legislation operate in the case of an accused who changes his mind halfway through the interview and says, “I withdraw my consent”.  Is that possible?

MR STONE:   Yes, I would think it is possible, but then again it would be a question of what was the nature of his consent up to that point in time, and again, by means of editing processes and all sorts of means, one could still, I would submit, get before the court, certainly, the material up to the point where consent is withdrawn, but again, that is a matter that would have to be considered by a trial judge in a voir dire situation.

GLEESON CJ:   What about an interviewee who says, and maybe genuinely says, “I did not realise you were going to ask me about these things.  When I consented to being interviewed, I thought you were going to ask me about something else entirely.  If I had known you were going to ask me about these things, I would not have consented in the first place”.  How does the statute deal with that situation?

MR STONE:   Again, I think one would need to go back to see what the nature of the caution was, what was the nature of the allegation that was put to him at the outset, at the commencement of the interview, to see whether it was being conducted in accordance with those sorts of allegations so that the man was in a situation to know what he was giving his consent to when it is first put to him ‑ ‑ ‑

HAYNE J:   But assume he is given the best and most informed consent imaginable ‑ ‑ ‑

MR STONE:   Yes.

HAYNE J:    ‑ ‑ ‑ but changes his mind, and having changed his mind, the tape is turned off, and later makes an admission.  How does the Act operate in that case?

MR STONE:   Again, having regard to the question of whether it comes within any of the ‑ ‑ ‑

GLEESON CJ:   The problem is that the ‑ ‑ ‑

MR STONE:    ‑ ‑ ‑excuses.

GLEESON CJ:    ‑ ‑ ‑the terms of the legislation are rather more simple than the complexity of the factual situation that could arise in practice.

HAYNE J:   For a start, it seems to assume that we all know what an “interview” is.

MR STONE:   Well, it defines an interview.

HAYNE J:   Yes, an “interview” means “an interview”, a very useful definition.

McHUGH J:   It means “an interview with a suspect”.

CALLINAN J:   Mr Stone, could I just ask you a question about a practical matter.  Say an invitation had been given on the resumption of the interview for Coates to repeat what he has alleged to have said off camera, and say what then followed had such a prejudicial effect that a judge would take the view that that outweighed any probative value and it should be excluded.  Can that be deleted from the tape?  Does that happen from time to time?

MR STONE:   Yes, and your Honours will see from the ‑ ‑ ‑

GLEESON CJ:   In this case, it happened in this case.

MR STONE:   In this case, yes, a large amount of material.  We had a week of what we call directions hearings before this trial started, in which a large amount of material was edited out.

CALLINAN J:   So the papers were cut and spliced. 

MR STONE:   Yes, and what is interesting about this is, no challenge was made at that stage to the Kays/Byleveld statements.

CALLINAN J:   Well, it does not matter, it was challenged at some stage.

McHUGH J:   Section 570F gives the court power to direct editing or erasure. 

MR STONE:   Yes.  It is an occurrence that happens every day in videotaping interviews.

CALLINAN J:   Well, in this Court, when we are considering the whole matter – and had such an invitation been given, it could have been put before us – it really makes the absence of an invitation fairly important, I would have thought, particularly, with respect to your argument – assuming the ground of appeal is upheld – that there is no substantial miscarriage of justice in the case of Coates.

MR STONE:   Can I perhaps approach it this way.  The respondent’s position is that when the videotaping resumed, whilst Coates was not asked by the officer to adopt – in the way it is done in some other States – what was said off camera, the officers certainly did ask him in very general questions – and I will take your Honours to that – questions that did reflect what was said off camera, and the answers that are provided by Coates do provide the material to confirm what was said off camera.  Namely, he was speaking in terms of his knowledge of the involvement of others, his knowledge of how the deceased was to be picked up, how she was to be taken to a motel and injected with heroin, and his having overheard a conversation between Nicholls and Davis. 

All of that is consistent with his having said off camera that he could tell the officers how the other two were involved, consistent with, in the respondent’s submission, his statement to the officers, “Charge me with conspiracy to murder”, because what he effectively then said on camera constitutes in substance the various ingredients and elements that would make up perhaps a charge of conspiracy to murder.

GLEESON CJ:   I think you pointed out to us yesterday – I am not sure which way this tends in the ultimate result, but you pointed out to us that the officers took some pains to actually get onto the record that there had been a conversation during the break.

MR STONE:   Yes, they did.

KIRBY J:   But they did not confront him with what he was alleged to have said, what they now say he said and what he disputes he said, which is the very problem.

MR STONE:   Can I just perhaps deal with it in this way.  At 1111, appeal book 4 ‑ ‑ ‑

KIRBY J:   Is this on the point that you say that, in effect, on camera they did go over the ground that was covered?

MR STONE:   Yes, it is.  Opposite line 10 on page 1111 there is mention made ‑ ‑ ‑

GUMMOW J:   We looked at all this yesterday.

MR STONE:   Yes.  Opposite line 10, mention of the “brief chat”, then further on down at about line 18 it says:

Like I said, during the break we had a brief chat and I will now ask you again, did you have ‑ ‑ ‑

KIRBY J:   That is not quite right, is it?  It was 45 minutes.

MR STONE:   Yes, and the answer to that, of course, lies in the fact there was the conversation involving Hawley and Hutchinson with the accused Coates.  There was then a conversation involving Kays and Byleveld.

KIRBY J:   That is again not quite right.  It is not “we”; it is “we and our superiors”, and that is not put on the record.

MR STONE:   No, it has not been.  There is no mention of the superiors.

KIRBY J:   That would strike me as quite an unusual thing to happen, when detectives have charge of an investigation and they go out and bring in the boss, yet that is not referred to.

MR STONE:   But in broad terms, he is taken back to what was said off camera.

CALLINAN J:   The boss who loses his notes, I might also say.

MR STONE:   The boss – yes, the notes were lost, I accept that.

HAYNE J:   All this against a background where Mr Coates’ version of what happened during the breaks was markedly different from the version given by the officers, was it not?

MR STONE:   Markedly different in the sense that he could not remember what Hawley and Hutchinson said.

HAYNE J:   It went a bit beyond that, did it not, Mr Stone?  Mr Coates, particularly from pages 760 and following in appeal book 3, gives a description in‑chief of these events.  I think I perhaps capture the gist of it when I say that his version of events is the two senior officers come in, they come in with papers, they come in with papers that seem to be notes of what they are learning from interviews occurring with Davis in Queensland – Davis having been arrested in Queensland that morning – and they tell Coates what they have learned from Davis.  Coates’ explanation, good, bad or indifferent, at trial is, “Well, I parroted back to them what they had told me”.  Now, do I capture the essence of it?

MR STONE:   Yes, your Honour does.  The officers’ evidence, on the other hand – that is, of Kays and Byleveld – was that they ‑ ‑ ‑

HAYNE J:   Yes, you have told us that several times.  We know what that evidence is.

MR STONE:   Your Honours, if I can move on from there then.  I have dealt with the Court of Criminal Appeal’s reasoning.  They essentially endorse what the trial judge had to say.  If I can take your Honours to the proviso point in relation to this ground, and that is to be found in paragraph 32 of the respondent’s outline of submissions.  If I can take you to the trial judge’s direction in relation to the off‑camera admission, so that one can see it in the context of how he directed the jury.  That is at 5 appeal book, page 1448.

HEYDON J:   I am just a little confused.  If you lost on this admissibility point, then you have a proviso point.

MR STONE:   Yes.

HEYDON J:   If you win on the admissibility point, then there is a challenge against you in relation to the supposed inadequacy of the direction, then you again have a proviso point.

MR STONE:   That is my understanding of it, yes.

HEYDON J:   You have different proviso arguments, have you, for each point or ‑ ‑ ‑

MR STONE:   There are some points in common.

HEYDON J:   Yes, but at the moment the proviso argument is going to the admissibility point or the warning ‑ ‑ ‑

MR STONE:   Yes, it is going to the admissibility point.

KIRBY J:   But if it is admissible, then there is no error and there is no need for the proviso.

MR STONE:   Yes.

HEYDON J:   You are proceeding now on the assumption that the argument to date is ‑ ‑ ‑

MR STONE:   I am.  I am proceeding on the basis that what was said off camera should have been excluded and there was error.  The trial judge started really dealing with the videotaped admissions of Coates and the off‑camera admissions of Coates at page 1444 in his charge to the jury.  He outlines to the jury what was taking place in the video interview before the second break in the interview at page 1444.  On page 1445, opposite about line 16, his Honour makes this observation to the jury:

It’s interesting to see how the process of interview then develops and you will want to pay some regard to this I think because you will recall that after that sort of story is told they then go on to discuss with him the various telephone calls.

I mentioned to your Honours yesterday what the story was that was being told back at the house:  he was home, asleep, drunk, had not gone anywhere.

You will make a judgment for yourselves as to whether he appears to be in difficulty or to find that awkward and hard to deal with an answer at that time, but the outcome of that and what follows from that is the question of the further break, a break of about three‑quarters of an hour I think, a period of time which you will recall Ms Fordham 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.

So you will want to give that some consideration because what occurs during that break maybe of some significant assistance.  You will make your own judgment who asks for it.

Then he deals with what occurred off camera at page 1446.  Then we go on to 1447 and what is said there brings in the second ground of the appellant’s appeal in relation to what is called the McKinney question.  I will come back to that when I deal with that ground, but that is to be found, your Honours, towards the bottom of page 1447.

KIRBY J:   “You will make your own judgment” falls lamentably short of any McKinney direction or warning or advice.  It is just saying it is up to you.

MR STONE:   The expression ‑ ‑ ‑

KIRBY J:   There is no weight of judicial authority or advice and experience of the law brought to bear on the jury.

MR STONE:   I understood, with respect, your Honour, that when his Honour said at the bottom of page 1445, “You will make your own judgment” it was in relation to who asked for the break.  In other words, “It is a matter for you, for your determination, as the fact‑finding body”.  A McKinney‑type direction is really to be found at the bottom of 1447.

KIRBY J:   Are you moving now onto that point?

MR STONE:   No, I am dealing with the proviso point in relation to ground 1.

KIRBY J:   Well, I withdraw my comment then.  Let us stick to this point and come to McKinney later.

MR STONE:   His Honour says this at the bottom of page 1447:

The exchange on their evidence, you may think, certainly involves implied admissions of guilt in the sense that he is trying now to do a deal and offer to say something if he can be given some favourable treatment and be exposed to a shorter sentence on the basis that he was prepared to implicate Nicholls and Davis.  It is following that sort of reasoning as I understand it that the learned prosecutor says to you, “Well, you may regard what follows as being a process in which Coates speaks of what is substantially in truth his own involvement but attributes it in particular to Nicholls and then is prepared to implicated Davis.”

Then at line 10:

Certainly the exchange which follows does not involve any statements by him which implicates any accused person other than Nicholls and of course –

and he gives the warning in relation to how they cannot use that in relation to Nicholls, but he goes on to say this, and this is what is important in the respondent’s submission in relation to proviso on the off‑camera admissions –

The question is whether it provides evidence against Mr Coates in the way that that occurred.  Even then it seems to me that it’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.

Then at page 1449 his Honour directs the jury in these terms:

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 –

and this is a phrase that his Honour repeated over and over to the jury –

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 the other accused persons.

The respondent submits that that, in the context of this case, effectively neutralises what was said off camera.  The trial judge has effectively told the jury, “You can’t convict Coates of any offence open on this indictment on the basis of that evidence”.

McHUGH J:   But that hardly answers the real point of the criticism, does it?  If the evidence should not have been admitted, it has got in and it provides some support for Davis’ evidence, even if the evidence itself was not sufficient to convict.

MR STONE:   It provides, your Honour ‑ ‑ ‑

McHUGH J:   I would have thought myself that he could be convicted on that evidence alone.  It does not seem to me to be any weaker than, say, Woon’s Case.  Woon never made any admissions, but his answers were such that this Court said there was a consciousness of guilt upon which the jury were entitled to find him guilty of the robbery.

MR STONE:   But this trial judge directed the jury in this case that they could not act upon ‑ ‑ ‑

McHUGH J:   I understand that, but it does strengthen the Crown case.

MR STONE:   Of course, it strengthens the Crown case, but not as much, with respect, your Honour, as the lies he told on camera, the knowledge he revealed on camera of the events in question.  This was all on camera and paled into insignificance in relation to his motive in this case, the independent evidence as to the false alibi, and matters of that nature.

McHUGH J:   I thought there was something in this point, but when I raised the matter late yesterday afternoon Mr McCusker pointed out that there was an admission, in effect, of conspiracy to murder, “Charge me with conspiracy to murder”.

MR STONE:   Yes. 

McHUGH J:   That is pretty strong material.  It goes beyond anything that was said when the interview resumed.

MR STONE:   When the interview was resumed, Coates made admissions in terms of a conspiracy to murder.

HAYNE J:   He says he was fed all that by the police during the break.  Those were the answers he gave in your cross‑examination at 805 to 809 and thereabouts.  Now, you may, at the end of the day, have a strong case, but are we in proviso territory?

MR STONE:   I would submit that we are, with respect, your Honour, having regard to the way in which the trial judge directed the jury as to the use that they could make of about a dozen words said off camera.

HAYNE J:   Can I just understand the structure of the charge.  Is the key to it at page 1427, lines 22 and thereabouts, where the trial judge says, in effect, “You have to accept Davis; if you cannot accept Davis, acquit”?

MR STONE:   Yes. 

HAYNE J:   With that you join 1435, which is, what do you do with the lies he has told?  Well, they might supply some buttressing.  We then have 1448 and thereabouts, again, further buttressing for Davis.  But the case goes to the jury, does it not, as “Do you accept Davis?”

MR STONE:   Yes, and only upon the evidence of Davis.

HAYNE J:   The point then comes, if you knock out any one prop, or any one piece of evidence put forward as a prop for Davis, does that permit the proviso to be applied? 

MR STONE:   In the circumstances of this case, yes, having regard to the prop that is being relied upon is about a dozen words said off camera, which pale into insignificance when compared with what he then says on camera.

KIRBY J:   Do you not then run into the problem of Domican, that because we do not know which of the props sustained the jury or individual juror’s decisions we are really speculating as to whether or not and to what weight they gave to particular props, that it becomes much more difficult to apply the proviso, is it not?  In the Court of Criminal Appeal in New South Wales I applied the proviso and that was corrected in this Court in Domican because they said you could not be sure that the want of proper instructions on identification evidence was not the matter that swung particular jurors or the jury.  Logically that is unassailable and I accept it.

MR STONE:   I would submit in this instance that obviously the bulk of support to be found for Davis had to be the videotaped interview that went for several hours in which he told, on the Crown’s version, a series of lies and then he revealed his own knowledge and involvement in the events in question, coupled with motive, coupled with the false alibi.  At the bottom of the pile, so to speak, in terms of props, would have to be – although the Crown placed reliance upon it, I accept that – what was said off camera.

GLEESON CJ:   The problem is that Mr Davis was not a boy scout and he needed all the support he could get.  If he got some from inadmissible evidence, it might be difficult to apply the proviso.

MR STONE:   In annexure B the Crown has outlined – and I do not propose to go into any detail about that, but it does highlight the material that formed the prosecution case.  There was the evidence of motive.  There was Davis’ evidence itself.  In terms of props, the motive supported Davis’ evidence and that was the subject matter of defence admissions, that the deceased was a Crown witness against him in a case and the only eye witness.  There is forensic evidence which supports Davis’ evidence.  In relation to that, the Crown has adopted the trial judge’s analysis of that evidence.  That was evidence supportive of Davis.  A substantial part of the eight‑week trial was evidence that supported Davis.  There was other evidence which supported Davis in the form of civilian witnesses.  That is outlined in B7 through to B14. 

There were telephone call records which supported Davis’ evidence.  It is outlined at B15 to B18.  Then there is the false alibi material and then there were the lies, to which I have referred, told by Coates in his videorecorded interview.  Then there was Coates’ evidence himself, in which he admitted no hesitation at all in lying in the police interview and dumping on others, as long as he was not seen to be in Rivervale.

The Crown submits that, whilst the off‑camera admissions were a prop, having regard to the way in which the trial judge directed the jury in relation to them at that point in time, that, in itself, amounted to a direction to the jury that they could not use them to found a conviction and the real significance of that was diminished considerably.

Your Honours, if I can move to the McKinney question.  Again, that needs to be seen really in the context of the trial judge’s direction to the jury.  The Court of Criminal Appeal utilised the proviso in relation to what the trial judge said and concluded that there was no miscarriage of justice.  If I can take your Honours to1447, 5 appeal book, opposite line 15, his Honour has there been reviewing the off‑camera admissions ‑ ‑ ‑

GUMMOW J:   We have seen this, too.

MR STONE:   Yes, but not quite in the context.  Your Honours have been referred to the question itself, but not to the paragraph that follows immediately.  The question at 15, it is put in this way:

A question that might arise is whether you think that his 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?

Your Honours have been taken to that, but what immediately follows is this:

Your consideration of that may be of some assistance to you in relation to the credibility matters generally.  But again you would not accept their evidence of course unless – the real question I suppose is whether you accept the evidence of the police officers as to what occurred, which would give what follows a particular significance so far as the evidence against Coates is concerned or whether you would reject their evidence on the basis not necessarily that you accept as being correct what Mr Coates says, but at least that you think it may be true and that you do not reject his evidence of what occurred during this period as being a truthful account –

The respondent would submit that there, his Honour has qualified what was said earlier on concerning perjury, has posed for them a correct question for their consideration in terms of the burden and onus of proof.

GLEESON CJ:   I suppose a question we have to consider is how you relate McKinney to the situation that arises, if you are correct, about your argument as to the construction of section 570D. If you are wrong in your construction about 570D, we do not or may not get to this.

MR STONE:   Yes.

GLEESON CJ: But if you are right about the way section 570D operates in relation to somebody who puts up his hand in the course of an interview and says “I want to go off camera for a while”, how do you relate McKinney and the considerations that lay behind the decision in McKinney to a circumstance like that?

MR STONE:   It needs to be a McKinney‑type direction.  It does not have to encompass all that was said in McKinney, but there must be some consideration given to it.  We would submit, in the circumstances of this case, that what the trial judge said to the jury, that they could not rely upon the off‑camera admissions in itself was perhaps better than a McKinney direction.  McKinney, and what was said in Kelly, seems to make it clear that the courts are concerned with a McKinney‑type direction only in those situations where the substantial or the only evidence upon which guilt can be established is the off‑camera or the uncorroborated material.

GLEESON CJ:   The problem about labelling directions by reference to the name of cases that addressed somewhat different problems is that trial judges may not then be responsive to the need for flexibility and the need to relate the directions to the particular circumstances, but what needs to be done is to bring the attention of the jury to the vulnerability of the position of an accused person off camera, and to the possibility of police taking advantage of that.  It may be distinctly unfortunate that any direction on that subject is given the label “McKinney” or “McKinney‑type”.  It ought to be just a direction related to the circumstances of the particular case.  Were the jury here warned about the vulnerability of the accused off camera and the difficulties associated with a contest about what was said off camera?

MR STONE:   No, they were not, no, not in that way.  What the jury were directed about, at 1445 of 5 appeal book, was the judge drew to the jury’s attention counsel’s criticism of the off‑camera process and reminded them that the police officers had testified without any aid to recollection except their notes which they kept or made at the time.  If I could take your Honours to that ‑ ‑ ‑

KIRBY J:   Would you remind me, was there a request for redirection along McKinney lines?

MR STONE:   No, there was not.  What there was, though, was ‑ ‑ ‑

KIRBY J:   I think we went through this yesterday, and the point was made that there is no rule for it in Western Australia.

MR STONE:   No.  There were a number of redirections sought by the defence counsel, but no redirection was sought in relation to what his Honour had to say.  What counsel, before his Honour directed the jury, invited the trial judge to direct in these terms - and if I can take your Honours to that – at 1324, your Honours, 5 appeal book.  This was just before his Honour charged the jury.  This is what defence counsel asked.  I pick it up at line 10, and this is defence counsel speaking:

I’m most concerned also, sir, that the prosecutor has hammered to the jury the “outrageous allegation that four police officers have lied” in terms of what happened during the break in Mr Coates’s record of interview.

. . . 

MURRAY J:   It’s hard to avoid that conclusion, isn’t it?  Let’s be sensible about it.

FORDHAM, MS:   Well, sir, the ‑ ‑ ‑

GUMMOW J:   What page is this?

MR STONE:   Page 1323.

GUMMOW J:   Thank you.

GLEESON CJ:   That might reflect what I referred to yesterday as the local culture.  There might be some places where that would not be regarded as an amazing allegation.

CALLINAN J:   You had an inquiry into the police force over there, did you not?

MR STONE:   Yes.

McHUGH J:   Has Mr Temby been given his report yet?

MR STONE:   It is Justice Kennedy.

GUMMOW J:   Justice Kennedy.

McHUGH J:   Justice Kennedy, is it?

MR STONE:   Yes, he has.

McHUGH J:   Did not Mr Temby hold some inquiry over there?

MR STONE:   He was over there in relation to the finance brokers.

McHUGH J:   Finance brokers.

CALLINAN J:   At any rate, there is a reference to Anti‑Corruption Commission officials in this part of the Criminal Code, which suggests that conspiracies to lie by police officers may not be entirely unknown.

MR STONE:   Perhaps if we can see how this pans out, because this is the direction that the defence counsel sought in relation to this McKinney‑type issue.  This is the trial judge:

MURRAY J:   His evidence was that what was said by two of the officers, the first two who were interviewing him, to have been a conversation they had simply didn’t occur, that there was no conversation with them at all and that the second two officers immediately came into the room – that’s Kays and Byleveld – and started to tell him what Davis was saying in Brisbane.

Then at page 1324 this is what defence counsel asked:

FORDHAM, MS:   I wonder then, sir, whether in the context of simply summing up the case for Coates, whether it would be possible to insert in there somewhere the fact that mention was made or issue was taken with the fact that the police didn’t have contemporaneous notes, didn’t necessarily corroborate each other given that they consulted in the production of statements and effectively that Coates says it didn’t occur as they said.  That, in my submission, would be perhaps a more neutral way of putting what came across.  So I merely make that request, your Honour ‑

In fact, the trial judge accommodated that request.  Then defence counsel asked whether she could – this is about line 18 – reserve her position as to whether that should, in fact, occur.  One can see at the bottom of page 1324:

I’m afraid, it’s a case of damned if you do and damned if you don’t.

It continues on at 1325, at the top of that page:

MURRAY J:  Well, one’s a prisoner of the evidence, of course.

Then at 1326, your Honours ‑ ‑ ‑

HAYNE J:   Just pausing there, do I understand the position to be that it is not put to the police officers that they are lying, what is put to them is may be mistaken?

MR STONE:   It was put to them that what they were saying, the admissions they attribute to Coates, did not happen.  It was not suggested to the officers that they were lying, and there were reasons for that.  No one wanted to open up ‑ ‑ ‑

GLEESON CJ:   They just all made the same mistake.

MR STONE:    ‑ ‑ ‑ the character, basically.  But the obvious inference was that they were telling lies, that was what was being put.  At 1326:

As to whether your Honour should say anything about the quite outrageous suggestion that four police have lied, I wonder whether if your Honour were minded simply to say something along the lines of that clearly there’s a conflict between Mr Coates’s evidence and that of the police – Mr Coates says one thing occurred, the police say something else ‑ ‑ ‑

GLEESON CJ:   What page is that?

MR STONE:   Page 1326.  Then at the bottom of that same paragraph at the top:

I would imagine that’s the sort of thing your Honour might be saying anyway but I can’t see what else can be done to resolve that, given that your Honour feels the inevitable inference is that we’re suggesting the police have lied.

And that was the obvious inference.  I did not want it put like that, I did not want Justice Murray – it is a question of what the evidence establishes.  That was what was sought by the defence counsel before the trial judge directed the jury in relation to that issue, and the trial judge accommodated that request.  We have picked up where he accommodated it.  Without taking your Honours through it in its entirety, it is at page 1445. 

GLEESON CJ:   How are you progressing in terms of time, Mr Stone?

MR STONE:   I am about to conclude the McKinney question.  I have still the McKinney direction to deal with and the collateral issue ground to deal with.  I do not propose to say any more about the trial juge having accommodated what the defence counsel sought.  That is at pages 1445 to 1447.

KIRBY J:   Well, that is relevant to the second step, the proviso, but, as to the first step, we have to get the principle right.  Why is what I said in Kelly not correct?  If you can, contrary to your primary submission, walk out of the provisions of the statute, with all of the effort Parliament has put into getting the statue enacted and to deal with the mischief, why is it not then imperative that the McKinney type direction be given in that circumstance?

MR STONE:   Perhaps I can take your Honours to Kelly ‑ ‑ ‑

KIRBY J:   I do want you to go over what – I am talking about the principle here.  I am not ‑ ‑ ‑

MR STONE:   I understand the principle, but the situation that has evolved is that it is apparent to those that have to direct juries, I suppose, that having regard to what was said in McKinney, what was then said in the case of Black, which followed on immediately from which the Black direction comes – and that is referred to in the respondent’s outline of submissions – that what this Court said so recently in Kelly, that it only applies in a limited situation, this McKinney‑type direction.

GLEESON CJ:   It depends what you mean by “it”.  That is the problem with labelling it McKinney. It is not a question of taking some standard direction from a case with a particular name and applying it in all other circumstances that have anything even remotely in common with that case. It is a question of looking for an appropriate response to a particular problem, and the particular exists, if it does exist, because of the need to apply this section 570D to a complex variety of circumstances. What you have to do is to consider whether, if a person puts his hand up and says, “I want to go off camera for a little while” – and if he cannot do that, the problem does not arise – then how are trial judges obliged to respond to that in the interests of justice?

MR STONE:   I understand that, but the difficulty that seems to have emerged is that a qualification was placed upon directions in that regard by the authorities of McKinney, of Black and Kelly in this Court, as to when ‑ ‑ ‑

CALLINAN J:   Do you not simply say that McKinney is really concerned in a case where the police evidence stands alone and there are not any corroborative details at all, and you have an overwhelming mass of corroborative detail in this case.  Is that right?

MR STONE:   Yes, and that has been ‑ ‑ ‑

CALLINAN J:   It really is your submission?

MR STONE:   That is our submission, because the qualification is put on those types of cases to which a McKinney‑type direction can be given by this Court itself.  This is not a McKinney case.  We have the evidence of Davis.  That was the case.  We have evidence of motive.  We have evidence that came from an independent source.

GUMMOW J:   We have taken your annexure B on board.

MR STONE:   Yes, but the short point is this.  There was a considerable amount of evidence that was being utilised by the Crown in this case.  The off‑camera admissions, the uncorroborated off‑camera admissions, if you like, form such a small part of the case.

KIRBY J:   I understand that argument, but it takes us back to the discussion we were having about 10 minutes ago, that we cannot know what affected the jury’s decision.  If the poison has been put in the well by verbals given by police, then that may be a very critical matter, because there are at least some citizens – perhaps many, and not a few judges – who think everything that a police officer says is gospel.  The experience of the law which the Court reflected in McKinney is that that can sometimes be an unsafe assumption to start from.  That is the problem that I see.  If you can walk outside the statute with all the determination that Parliament has put into enacting it, then it seems to me there has to be some warning otherwise the vice that the statute was directed at in response to McKinney is still there – poison in the well.

MR STONE:   I am not sure that I can advance the respondent’s position much further than what I have stated to this point in time in relation to that.  The trial judge effectively gave a direction to the jury in relation to that material, the off‑camera material, which was better, we would submit, than a McKinney direction.  He told them they could not convict upon it, whereas a McKinney direction would have.  It would have been a direction along the lines, “Be careful, be warned, it is dangerous to convict upon this material.  The accused was alone, he was with police officers, he was vulnerable, but, nevertheless, you can convict upon this material”.

KIRBY J:   I just do not see why trial judges – and it has been seen over a number of cases – are unwilling to give Longman and McKinney type directions, because it seems to me that if they do, juries can use their common sense and do use their common sense, but it is a corrective.

MR STONE:   I understand what your Honour is saying.  The Court of Criminal Appeal and this Court took the qualification that was imposed by this Court in McKinney as being the law.

GLEESON CJ:   Because the McKinney direction is a direction that it is dangerous to convict, and that is a direction that only makes sense in circumstances where the evidence of verbal admission is substantially the only evidence on which the prosecution relies.  It makes no sense otherwise.

MR STONE:   And it makes no sense in this case.  It would have been confusing, it would have been inappropriate, for the trial judge to have given a McKinney type direction.

KIRBY J:   I do not see why.  You would say that, insofar as the jury reflect upon the statements alleged to have been made off camera, it is dangerous to convict upon that evidence.

MR STONE:   Because the jury had evidence from Officers Hawley and Hutchinson that they interviewed this witness in accordance with the requirements of the legislation, the jury then had the videotape itself, in its entirety ‑ ‑ ‑

GLEESON CJ:   But the jury were not told it was dangerous to convict upon that evidence, they were told it was “impossible” to convict upon that evidence.  Consistently with McKinney, they could have been told that it was open to them to convict on that evidence.  They were told in this case it was not open to them to convict on the evidence.

MR STONE:   That is correct, and that is why we submit that is better than a McKinney direction.

GLEESON CJ:   That depends on whether you are tied to this label, “McKinney”.  If you get away from that label, you have to address the question of whether the jury could have been given some warning, not that it was dangerous to convict on this evidence – because they were told they could not convict on this evidence – but whether they should have been warned about the risks associated with evidence of this kind, if they were minded to attach any significance to such evidence.

MR STONE:   We say that was sufficiently done in terms of the request made by defence counsel and what his Honour then did by reminding the jury of what was said by the defence, the failure to have notes, et cetera and so forth.  That was sufficient for these purposes in the context of this trial, because the emphasis in this case, as far as the jury were concerned, had to be upon Davis, not upon what was said off camera.  That was not going to take the jury anywhere.  The emphasis in this case, for them to convict, had to be to be satisfied of Davis’ evidence, that he was telling the truth, and in relation to that the bulk of the evidence came in a different shape or form.  The off‑camera material was such a small part of that.

GLEESON CJ:   Well, now, does that bring you to your collateral evidence argument?

MR STONE:   Yes, it does, your Honours.  The respondent’s position is that it is important in this case to consider what was actually said, or alleged to have been said, by Davis and what it was that Ross was alleging, before one can really embark upon criticism of the trial judge’s exclusion of that material.  Importantly, in this case, it was conceded by one of the defence counsel that the alleged conversation between Ross and Davis occurred before there was any talk of a deal or his giving evidence.  If I can take your Honours to that, because that is of some considerable significance.  We make that point in paragraph 45 of the respondent’s outline of submissions.  It is really against that background that one must then consider what was said, what was alleged. 

Now, that, in our submission, is evidence – which, of course, if accepted, that is evidence which is clearly going to the corruption exception, if it is not simply directly evidence which is relevant to the facts in issue.  Now, my learned friend said Davis had already implicated the accused.  Well, he may have implicated him by statements, but that is one thing.  It is quite another to come to court and give evidence, to give sworn evidence, against them, against a background where he has said on several occasions – a number of occasions, according to Ross – “I’m going to go to court and lie in order to secure a deal that I’ve done with the police, to be treated more leniently”. 

In those circumstances, in our submission, the requirements of putting a prior inconsistent statement are not relevant.  What is, of course, always relevant is the question of the rule in Browne v Dunn, but that is not a rule that says that if you do not put it you cannot call the evidence, but simply that, in fairness, a witness who has not had the matter put to him may be recalled.  In any event, the general nature of the evidence to be given against him was put to Davis and was denied by him. 

In that regard, again the question of the proviso – your Honours, in our reply we have dealt at some length with the application of the proviso, in particular, in paragraph 21, but I do not wish to weary your Honours and take up more time, but annexure B to my learned friend’s submissions contains a number of matters which, with respect, are incorrect.  Overall,

none of the matters that my learned friend refers to in that annexure in any event would, if taken on their face, be evidence which would incriminate Mr Coates. 

There is certainly plenty of evidence.  For example, at B6 of this annexure B reference is made to forensic evidence which supports Davis’ evidence.  Well, it does.  It supports Davis’ evidence to the extent that Davis was clearly in the motel room where he said he was.  But there was not the slightest forensic evidence – in fact, the forensic evidence was to the contrary, after a thorough search and sweep of the room there was not any evidence that Coates had been in the room.  So the forensic evidence might support Davis in his assertion that he was there, but that is all.

So far as B7 is concerned, your Honours need to realise that – again, I just make the brief assertion – the evidence of Lazarakis, in fact, showed that, contrary to Davis’ assertion that he was not at the house to do tattooing, in fact, according to Lazarakis, he was.  Davis had denied tattooing that night at 1 appeal book page 139, whereas Lazarakis’ evidence was that, at 1 CB 278 – that is the notice of contention book – said, and  ultimately admitted, that he did see that Davis was there tattooing Coates.  But there are many other matters where annexure B is incomplete.

GUMMOW J:   Perhaps you had better let us have note on it at some stage.

MR McCUSKER:   I think I should give you a note rather than trawl through them, your Honour.  We say overall, taken at their face value, none of those could possibly in combination support a contention that the proviso should apply.  If the evidence of Ross were admitted – put it this way, if one hypothesises a reasonable jury and they are looking at Davis, as they were urged to do, with great scrutiny and care because of his background and his motives, it would surely weigh or be likely to weigh in the mind of such a reasonable jury that, according to Ross – of course, there was a question of how Ross would go as a witness, but that is another matter entirely, it is a jury matter – if Ross said the things that he was going to say, how would that affect a jury?  It could not fail, in our submission, if the evidence was accepted, to affect the jury’s view of the credibility of Davis.  May it please your Honours, they are our submissions in reply.

GLEESON CJ:   Yes, thank you, Mr McCusker.  Mr Thomson.

MR THOMSON:   May it please the Court, I respectfully adopt what Mr McCusker has said about the collateral evidence rule and the example that he gave.  We would say that in respect of the collateral evidence rule if what Davis had expressly said was, “I intend to give false evidence”, then section 21 would have no relevance at all, because it is not a prior inconsistent statement.  So the evidence of Ross has two different characters, and it is the second character, whereby it relates to corruption or bias, that we rely on and why we say that it was admissible.

Secondly, because it would be evidence in relation to the very issues at the trial, we submit that it would not open up the question of character generally, and, therefore, perhaps it would not cause the debate about whether or not there could be other cross‑examination about character generally, because this was very specific evidence relevant to the very issue at the trial.

Perhaps one further point can be made, and that is that in the Queensland decision of R v Lawrence a similar type of situation arose, but it was in respect to false complaints made on another occasion.  It appears from the report, at about paragraph [3], that the method of putting the other occasions of false complaint was fairly general and comparable to what occurred in the present case.

GUMMOW J:   That is R v Lawrence [2002] 2 Qd R 400.

MR THOMSON:   Yes, that is correct, your Honour, and if you go to paragraph [3], the only part of the report that deals with what was put in respect of the other occasion is set out there and that is simply that:

“You had, in fact, told Mr Galley, hadn’t you, that you were going to set Mr Galley up by telling officers that you had propositioned – that he propositioned you for sex?‑‑‑I didn’t say that.
You told that to Mr Galley, I suggest?‑‑‑No, I didn’t say in those words. 
You told him in words to that effect though, didn’t you --- ?‑‑‑No. 
--- that you were going to set him up by telling the prison officers that he had propositioned you for sex?‑‑‑No, that’s not true.
The reason why he – you didn’t like him at that time was that you had taken advantage of another prisoner by the name of McConaghy, hadn’t you?‑‑‑That’s not true.

The Queensland Court of Appeal ruled that independent evidence from Mr Galley should have been admitted.  It was only put in general terms there as well.

In respect of the proviso, it is necessary in its application to Nicholls to mention that the Crown case against Nicholls only relied on two types of evidence.  Perhaps I can take you to appeal book 6, at page 1522.  There, there is a summary by Justice Miller concerning the type of evidence.  He starts at paragraph 97 and says:

Counsel for the respondent argued at the hearing of the appeal that the Crown case relied on a considerable body of evidence to support the evidence of the accomplice Davis and this body of evidence was the same in relation to each of the accused persons.

And then Justice Miller actually summarises it in respect of each of the accused.  In paragraphs 98 and 99 he deals with Hoy and Coates.  At the bottom of paragraph 99, Justice Miller says:

In the case of Nicholls, the Crown relied upon his out‑of‑court statements to police on 7 October 1998 in which he implicated himself, Davis and Coates in the killing.

So there were two types of evidence against Nicholls.  There was the evidence of Davis and the out‑of‑court statements that Nicholls had made to the police.  The trial judge – we say, correctly – directed the jury that if the evidence of Davis was not accepted, there was no sufficient evidence available to convict Nicholls.

We, therefore, say that the evidence of Davis was fundamental to the trial, there was no independent evidence which could have justified a conviction if the jury did not accept Davis’s evidence, and, in circumstances where credibility is central to the trial, the proviso will not apply.  In that respect, I refer to what your Honour Justice McHugh recently said in the decision of Festa.  I will not take you there because of time, but the relevant pages were 632 to 633, and I think your Honour Justice Hayne, at page 661, acknowledged the importance of preserving the role of the jury in these sorts of cases.

Nevertheless, even if the Court does look in detail at the evidence, for the purposes of determining whether or not to apply the proviso in respect of Nicholls, there are a number of comments we would make.  The first is that the evidence upon which the respondent relies only goes to bolster the credit of Davis, not to corroborate independent facts which demonstrate that Nicholls participated in the murder of Garabedian.  So it is a two‑step chain of reasoning:  because Davis was credible on other issues, therefore, Davis should be believed in respect of what he said occurred in the motel room.  We say that that is not a proper case for the application of the proviso.  What is required is a single step in the reasoning, that there is other independent evidence which would go to show the participation of the accused in the actual events.

The second point is the point about Lazarakis that Mr McCusker has mentioned and that it, in fact, does not bolster the credit of Davis, but is contradictory to it.  The relevant page references in respect of Lazarakis are in volume 1 of the contention book, pages 276A to B and 279A to D, where Lazarakis testified that tattooing had been carried out, but Davis firmly denied that he had carried out any tattooing on the relevant evening, and that is at volume 1 of the appeal books at page 135, between points 10 to 20.

Thirdly, if I can just mention the only independent evidence upon which the respondent relies in order to implicate Nicholls and to justify the application of the proviso and submit that that independent evidence provides no basis for a conclusion that the conviction of Nicholls was inevitable, which is the appropriate test if the proviso is to be applied.  Firstly, the only suggestion of a motive given in respect of Nicholls is that he had a loyalty to the household in which he lived and where Hoy and Coates lived, but that was all, and it was particularly as a result of his loyalty to Hoy.  That is put forward as his motive for participating in the murder.  We would say that that alleged motive is an extremely weak one.

The second point is that there is reference made to the fact that a witness Le Bas saw the passenger of the ute belonging to Nicholls at about 4.00 am on the morning of the murder, holding what appeared to be a chocolate box, heading towards the bin area and that later, at about 5.45 am, he again saw the passenger getting back into the ute with something in his hands which looked like yellow or a cloth.  Again, we would say that in circumstances where Nicholls has said that he was at the premises of the motel on some occasions, that that evidence does not show that he was ever in the room and committing murder.

Thirdly, there were two calls from unnamed persons who were probably male, according to the witness, that is, witness Kent, made to the motel at about 4.15am, but that evidence does not implicate Nicholls unless you believe Davis, so it cannot be corroborative of Davis’ testimony.  I think my friend said in addressing the Court that the telephone records went both for and against Nicholls, and that encompasses also the mobile telephone records. 

As well, I think there is some evidence of a witness called Nemeth that there were two unidentified men who passed the kitchen door of the motel at about 5.40 to 5.45 am.  The full extent of her description of those men was that one of them was tallish, not fat, and wearing a black beanie, and the other had longish, brownish hair.  That description was the full extent and that is found at volume 1 of the contention books, page 10C to E.  Again, we say that that evidence does not independently implicate Nicholls. 

I think the last piece of independent evidence is simply that a television set in the motel room was turned up loudly.  Again, that evidence has no probative force in and of itself.  So we would say, if you look at all

of that evidence as independent evidence and take it as a whole, it would certainly not justify the application of the proviso.

I think my friend referred to the fact that Ross’ evidence had been rejected by the jury.  He says that, I think, by reference to the fact that Ross testified on one matter, that is, that Davis knew Garabedian.  We would say that that is not a terribly relevant matter and you cannot necessarily infer that their conviction was a rejection of that evidence on the part of Ross.  Another point to be made in that context is that it is for the Crown to show that the proviso should be applied.  For the Crown to say Ross’ evidence should be rejected does not actually answer the question about the application of the proviso.

The only other thing is I would seek leave to put in submissions in response.

GLEESON CJ:   Thank you, Mr Thomson.  We will reserve our decision in this matter.  We will adjourn to reconstitute in Court No 2 in two minutes time.

AT 12.42 PM THE MATTERS WERE ADJOURNED