Nicholls v The Queen, Coates v The Queen

[2004] HCATrans 124

[2004] HCATrans 124

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 WEDNESDAY, 28 APRIL 2004, AT 10.18 AM

Copyright in the High Court of Australia

__________________

MR J.A. THOMSON:   May it please the Court, I appear for the appellant Nicholls in matter P79/2003.  (instructed by Mullins Handcock)

MR M.J. McCUSKER, QC:   May it please the Court, I appear together with my learned friend, MR J.J. EDELMAN, for Coates, the other appellant.  (instructed by Clark Whyte)

MR S.E. STONE:   May it please the Court, with MS L.J. VANDERENDE I represent the respondent in both appeals.  (instructed by Director of Public Prosecutions (Western Australia))

GLEESON CJ:   Mr McCusker, have you and Mr Thomson made an agreement about order of addresses?

MR McCUSKER:   We have.  That is, that I should go first, your Honour.

GLEESON CJ:   Yes, Mr McCusker.

MR McCUSKER:   I think my learned friend, Mr Stone, wishes to raise the matter of the notice of contention before I proceed.

GLEESON CJ:   Yes, Mr Stone.

MR STONE:   If the Court please, the respondent has filed in these proceedings notices of contention and the respondent would seek leave to proceed on those notices.

GLEESON CJ:   Is that opposed, Mr McCusker or Mr Thomson?

MR McCUSKER:   Yes, it is, your Honour.

GLEESON CJ:   What is the issue between you, about whether the notice of contention should be available?

MR McCUSKER:   There is only one matter we wish to raise, your Honour, and that is that the argument regarding the proviso was not raised before the Court of Criminal Appeal by the respondent.

GLEESON CJ:   Is it convenient for us to hear argument ‑ ‑ ‑

MR McCUSKER:   It is indeed, your Honour.

GLEESON CJ:   ‑ ‑ ‑ on that and decide the matter in due course?

MR McCUSKER:   Yes, certainly.

GLEESON CJ:   That is, decide whether the respondent can rely on the notice of contention in due course.

MR McCUSKER:   It is.

KIRBY J:   I think in Kelly it had not been raised in the Court of Criminal Appeal of Tasmania, is that correct?

MR McCUSKER:   That is so, your Honour.  Nevertheless, the proviso was applied.

GLEESON CJ:   Yes, Mr McCusker.

MR McCUSKER:   If it please your Honours.  This is an appeal from the Court of Criminal Appeal of Western Australia.  The appellant Coates, together with two co‑accused, the appellant Nicholls and one Hoy, were tried together and convicted of a murder of one Clare Garabedian.  The murder took place on the evening of Saturday, 22 August 1998, or the early hours of the Sunday morning, 23 August 1998.

This appeal raises two broad issues. The first is the admission into evidence of off‑video admissions said to be made by the appellant Coates. That raises in turn the question of the application of section 570D(2)(b) of the Criminal Code (WA) dealing with the videotaping of admissions and the requirement, which I will come to in more depth, that there be a videotaped interview, otherwise the introduction of the alleged admissions into evidence will not be permitted unless there is a reasonable excuse.

I said there were two broad issues.  If it were properly admitted into evidence, that is, the evidence of admissions given by the police officers of the off‑camera admissions, then the further question arises and only then arises, as to whether a McKinney warning, as it is being called, should have been given and the nature of the learned trial judge’s direction to the jury, which, as a separate matter but still arising from observations of the majority in this Court in McKinney, the question as it was put by the learned trial judge might well be who was telling the truth and who was committing perjury in this case, which the appellant says is a direct contravention of what the High Court said in McKinney should not be said.

KIRBY J:   Just let me understand it.  The first is whether, in the circumstances, the McKinney direction was called for by reference to the fact that there was some other evidence, it is suggested.

MR McCUSKER:   Yes.

KIRBY J:   The second is whether or not it was strictly called for.  The direction that was given is contrary to McKinney, is it?

MR McCUSKER:   Precisely so, your Honour, yes, so there are two discrete issues there.  Even if the McKinney direction, so‑called, was not called for in the circumstances, there still remains the question of the nature of the direction actually given and whether it contravened what the High Court in McKinney said was a direction to be avoided, in effect.

The second broad issue is unrelated to discrete issue and that is the refusal of the trial judge to admit into evidence evidence which was to be given by a witness called for the defence, one Ross, directly, we say, reflecting on the evidence of the principal and critical Crown witness, one Davis.

Briefly, Davis gave evidence which directly involved Coates, and, indeed, Nicholls, in the murder.  Davis himself, prior to the trial, had pleaded guilty to the murder, admitting his part in it, and had been sentenced and given a non‑parole period of 15 years, which was in return for his undertaking to give evidence in the trial of Coates and Nicholls.  I will come to the detail of that, but, essentially, what is said in relation to that issue is that Ross, had he been permitted to give the evidence, would have said that he had been told, prior to the trial, on a number of occasions in the prison where both he and Davis were inmates, that Davis proposed to give evidence which would put Nicholls and Coates on the scene, participating in the murder, although in fact they had not been on the scene at all.

GLEESON CJ:   Cross‑examining counsel evidently did not have enough confidence in Mr Ross when he was cross‑examining Davis to put distinctly to Davis what it was that Ross was going to say. 

MR McCUSKER:   He put it in broad terms ‑ ‑ ‑

GLEESON CJ:   The cross‑examination was a vote of no confidence in Mr Ross.

MR McCUSKER:   Well, he put it in very broad terms.  Of course, sometimes that is understandable, your Honour, because cross‑examining counsel may not have full confidence or full proof, but he did put it in broad terms without mentioning Mr Ross by name.

HAYNE J:   He did not put, did he, the circumstances of the supposed statement being referred to sufficiently to designate the occasion of its making?

MR McCUSKER:   That is so and, therefore, under the Evidence Act, your Honour, it could not be admitted simply as a prior inconsistent statement which otherwise would apply.

HAYNE J:   Thus, the evidence with which we are concerned is evidence of an out‑of‑court statement of the witness Davis?

MR McCUSKER:   Yes.

HAYNE J:   Not capable of being put to the witness Davis as a prior inconsistent for want of satisfaction of section 21, is that right?

MR McCUSKER:   That is so.

HAYNE J:   And not capable of proof under section 21?

MR McCUSKER:   That is so, because section 21 would ‑ ‑ ‑

HAYNE J:   Yet you say it is admissible?

MR McCUSKER:   Yes, your Honour, yes.  We say it is admissible ‑ ‑ ‑

HAYNE J:   It is a very odd result, is not it?  It is a very odd result that the Evidence Act provides a particular method for putting to a witness a prior inconsistent statement, that is not met, and yet you say that you can adduce evidence of what is a prior inconsistent statement despite failure to satisfy the statutory requirement?

MR McCUSKER:   Yes, your Honour, we say it goes beyond being simply a prior inconsistent statement.  It is evidence which goes to the credibility, certainly, of Mr Davis, and the credibility of Davis goes directly to a fact in issue, namely whether or not Davis was telling the truth when he stated that both Nicholls and Coates were the on the scene and participants in the murder.

HAYNE J:   But that is saying that the evidence was relevant.

MR McCUSKER:   Yes, it is, your Honour.

HAYNE J:   That is a start but not a finish of the inquiry.

MR McCUSKER:   No, I appreciate that, your Honour, but certainly that is the way we put it.  So that we accept that the provisions of the Evidence Act were not met so far as the Act deals with prior inconsistent statements.  It could not be adduced on that basis.

KIRBY J:   Could I ask in relation to the sentence that was passed on Mr Davis, is it suggested that that was a lesser sentence than he would otherwise have suffered by reason of his agreement with the Crown and his commitment to give evidence?

MR McCUSKER:   Yes, your Honour.

KIRBY J:   I was puzzling as to what your theory was, was in it for the Crown to implicate two absent witnesses, or in it for the police officers?

MR McCUSKER:   There is no suggestion that any animus was borne by the police officers towards Coates and Nicholls, but it was clear from the evidence that there was at least more than one party to the murder.  The initial statements of Davis to the police implicated Coates and Nicholls and he maintained that stance whilst initially denying his own participation, ultimately confronted with the irrefutable evidence of the forensic evidence which showed that he was on the scene.  There was DNA evidence to show that Davis was definitely in the room at the time, whereas, I should add, there was no evidence of that nature whatever to establish that Coates and Nicholls were in the room.

KIRBY J:   I am just wondering what extra mileage there is for the police to have the other two accused present in the room when Mr Davis admits that he injected the heroin into the deceased.  I just do not quite follow why the police would have any concern to implicate two others beyond what Mr Davis has admitted is his own direct, immediate, involvement in the offence.

MR McCUSKER:   I think the answer – although it is speculative – is that since Davis did implicate Coates and Nicholls, and Coates was a dealer in drugs, the police took it that Coates and Nicholls were indeed parties to the crime, and therefore, having formed that view, sought the assistance of Davis in order to proceed with the trial against Coates and Nicholls.  Without Davis’ assistance, Coates and Nicholls certainly could not have been convicted.

KIRBY J:   Without Mr Davis’s say‑so, it would not be provable that Mr Coates and Mr Nicholls were there. 

MR McCUSKER:   No.

KIRBY J:   What was in it for Mr Davis to implicate the other two offenders?  He would know that that would not excuse his involvement in the injection of heroin.  I am just trying to get the theory of your case.

MR McCUSKER:   Yes.  Initially, what was in it for Davis was to exculpate himself, because initially he denied being on the scene at all.  Confronted with the evidence that he was clearly on the scene, he maintained that Coates and Nicholls were parties to the offence and he ultimately agreed to give evidence against them.  In return for that, he was dealt with more leniently than were, ultimately, Coates and Nicholls.  So what was in it for Davis – in answer to your Honour – was ultimately the promise of a lighter custodial sentence.

The second of the two issues that the appellant seeks to raise, the refusal to admit the evidence of Ross, raises some important questions concerning what has sometimes been referred to as the vexed issue of the collateral evidence rule.  Could I start by dealing, however, with the off‑video admissions.  In our summary, they are referred to in paragraphs of the relevant argument and the evidence is at paragraphs 19 and following of the appellant’s summary.

The evidence of Detective Hawley – perhaps I should just set the scene.  Coates agreed to a videotape interview.  There was an initial break in the interview for the purpose of Coates going to the toilet, but in fact he did not go to the toilet, and there was some discussion which is of no relevance between him and the police officers.

KIRBY J:   The actual initiation of the break was from the police end, was it not?   “Do you want to go to the toilet?”

MR McCUSKER:   That was the second break, certainly.

KIRBY J:   I see.

MR McCUSKER:   The second break was a question, “Do you want to go to the toilet?”  The evidence of Hawley is referred to at volume 6 of the ‑ ‑ ‑

KIRBY J:   Just tell me what happened at the first break.  Did Mr Coates ask for an interruption?

MR McCUSKER:   I think he did, your Honour, yes - I will take you to the evidence on that - but did not, in fact, go to the toilet.  The second break was at the initiation of the police, in that they asked him repetitively, “Do you want to go to the toilet?”  There was no answer.  “Do you want to go to the toilet?”  He said, “Sure”.  There then followed a discussion, and this much is common ground, there was a discussion between Coates and the police, but from that point on they depart because Coates denied that he made any of the admissions or so‑called statements evidencing consciousness of guilt, as it was put, which Hawley and his colleague, and later two other more senior detectives, – that is, Kays and Byleveld – said took place in that same break.  It was quite a lengthy break.

So there is a dispute as to what was said during the course of that break.  Hawley’s evidence is referred to by the Court of Criminal Appeal in its reasons.  It is volume 6, pages 1540 to 1541, where Coates, I should stress, did not admit directly his involvement in the murder but made statements which, as I said, suggested consciousness of guilt.  At line 17:

‘How much will I get?’ . . . 

He said, ‘I haven’t even got 5 years in me –

This is Hawley’s evidence repeated in the reasons for judgment of the Court of Criminal Appeal.  At the foot of the page Hawley said that Coates said:

‘I know exactly what happened and it’s now how you think.  It’s nowhere near it.  It’s 100 miles away from it.’

Over the page he says:

‘They went and did it.  I was maggoted –

meaning drunk –

I was at home maggoted . . . ‘He said Thomas and fucking idiot -

and by that he was referring to Nicholls and to Davis.  Line 10:

I said, ‘What are you going to say on video?  We need to get this vanished. Are you going to stick to your current “I don’t know anything” story or are you going to tell us what really happened?’  He said, ‘What’s in it for me?’

Then followed the evidence of Kays and Byleveld, who came on the scene while Hawley and his colleague left the room, and the relevant part is set out at 1541, lines 15 and following, where the evidence of Kays:

Mr Coates said he didn’t want to go to gaol, that he wouldn’t last 5 minutes, and, yeah, that he would hurt himself.  He would do himself some harm if he was faced with that prospect.

STONE, MR:  Did he then say anything to you?‑‑‑Yes.  He indicated that he wanted to do a deal and that he wanted to be charged with conspiracy to murder.

What did he tell you about that?‑‑‑He also indicated that he would give evidence against Davis and Nicholls in exchange for that deal.

The trial judge referred to that evidence at volume 5, appeal book page 1447, in his summing up.  At the foot of that page, between lines 20 and 25, in the last paragraph:

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 –

That is a fair categorisation of the evidence that was given and as he put it to the jury.  In volume 6, at page 1548, in the reasons of the court, that part of the trial judge’s summation is in fact set out.

KIRBY J:   What page is that again?

MR McCUSKER:   At page 1548, line 15, where the Court of Criminal Appeal sets out at paragraph 152 the observations of the trial judge in part.  As I have said, your Honours, Coates denied all of that, so the matter was clearly in issue.  Under cross‑examination, if I could take your Honours to volume 3 ‑ ‑ ‑

KIRBY J:   I realise all of these points are interconnected, but are you dealing with the collateral evidence point now, or are you back to the McKinney –

MR McCUSKER:   I am sorry, your Honour.  I am, at the moment, on the question of the admission into evidence of the ‑ ‑ ‑

KIRBY J:   It is the interruption of the tape, so we are dealing with the first point?

MR McCUSKER:   We are, indeed, yes.  I am sorry.  In volume 3, at page 623, Hawley, one of the detectives who gave evidence of the off‑camera admissions, was cross‑examined and was asked, starting at line 5:

So what happened?  Coates was on his own . . . and Kays and Byleveld went in? ‑ ‑ ‑Yes. 

That was the second group of detectives who went in and gave evidence that further statements were made to them off camera.  He was asked:

Was the camera malfunctioning at the time? ‑ ‑ ‑It wasn’t switched on at the time.

Was it malfunctioning? ‑ ‑ ‑No, it wasn’t.

Was there a problem?  Was it broken down? ‑ ‑ ‑No. 

So it would have been, with Coates’ permission, perfectly possible to have had the camera on during Detective Kays and Byleveld’s conversation with him? ‑ ‑ ‑It would have been possible, yes.

Likewise with your conversation with him? ‑ ‑ ‑Yes.

Because it was in the same place? ‑ ‑ ‑Yes. 

So it was perfectly possible to have turned it on.  There was no evidence from any of the detectives who gave evidence of the off‑camera admissions to the effect that Coates had refused permission to conduct that part of the interview on video.  After the break, when the videotaping actually resumed, all that was said – it appears at volume 4 at page 1111.  This is when the interview resumed.  Perhaps I should ‑ ‑ ‑

HAYNE J:   A 45‑minute break.

MR McCUSKER:   There was a 45‑minute break, yes, and then the question:

Q.       Okay.  Obviously we had a brief conversation or we had quite a conversation during that - - that break.  Do you agree with that?

There was no audible response, and then the interview continued.  Certainly at the previous page at 1110 there was the precursor to the break which was on video, that is, on video – the question at line 22:

Q.       Do you want [to] go to the toilet?

There was no answer.

Q.       Do you want to go to the toilet again, do you?

A.       Sure.

Q.       All right.  I will suspend the interview again.

So that is where the second break occurred. 

GLEESON CJ:   Where was this evidence given in‑chief, Mr McCusker?

MR McCUSKER:   The evidence of Hawley?  It appears at volume 2 of the appeal book, page 591.

GLEESON CJ:   Thank you.

KIRBY J:   “Sure” is an unusual answer to give to the inquiry.

MR McCUSKER:   Yes.

KIRBY J:   It is in common parlance, at least as I understand it, a word that implies, “Well, if that is what you want, I will do it”.  I may be wrong in that, but it is a concurrence in something being put, rather than a request.

MR McCUSKER:   That is so, your Honour.  Indeed, although it is put by the respondent that it was a break which was initiated and contrived by the appellant, in fact, if I could take you just briefly to volume 5 of the appeal book at page 1294 at line 20, this is what the learned trial judge was saying in the course of his decision to admit the off‑camera evidence:

What is put there is that this should be understood as a process of the accused person making statements during a break which was taken –

and then the words –

if not at his initiative, then with his agreement –

and we would say, with respect, that the plea was not at his initiative, although it was with his concurrence.

GLEESON CJ:   I am just trying to locate the point at which the objection was taken that the judge was ruling on.

MR McCUSKER:   The objection was taken – I will see if I can locate it, your Honour, and come back to that.

GLEESON CJ:   All right.  Perhaps your junior can find it in due course ‑ ‑ ‑

MR McCUSKER:   Yes.  It is in volume 5 – I am not quite sure.  I think it is either volume 4 or volume 5. 

GLEESON CJ:   I presume the evidence was objected to when it was led in‑chief?

MR McCUSKER:   What occurred – it was rather unusual, your Honour – there was initially, at an early stage in the trial, there was not a voir dire but a ruling on the papers, as it was put – and, indeed, it is described by the respondent in its submissions in those terms.  So that the question of whether the evidence of Hawley should be admitted was a question which was debated at an early stage of the trial ‑ ‑ ‑

GLEESON CJ:   At a pre‑trial hearing?

MR McCUSKER:   Essentially, yes, but on the papers.  That is, it was not a voir dire in the strict sense.  Then the matter arose again in relation to the evidence of Kays and Byleveld, and that is after the evidence of Hawley had been given and the video played to the jury.  At that point the question arose once again but in relation to the evidence not yet given of Kays and Byleveld.  So that is how it went and the contention again was that this was off video and it ought not to be admitted, there was no reasonable excuse.

GLEESON CJ:   Does that mean that the trial judge ruled on whether there was a reasonable excuse before having heard the oral testimony of the police officers?

MR McCUSKER:   That is so, your Honour.  Yes, it is.  It was a ruling, as it was described, on the papers, simply on the deposition, which of course the trial judge had, of Hawley and the transcript.

GLEESON CJ:   So Hawley had been questioned about this at the committal proceeding, had he?

MR McCUSKER:   I do not think so, your Honour, no.  I do not think that was the case.

KIRBY J:   Is this decision on the papers something provided for in Western Australian criminal procedure, or something the judge did out of his general powers?

MR McCUSKER:   Out of his general powers, I believe, yes.  There is no express provision to do it that way, but that is how it was done.  The judge ruled initially that there was reasonable excuse in respect of Hawley’s evidence relating to the off‑camera admissions, which, of course ‑ ‑ ‑

HAYNE J:   And what was the reasonable excuse which his Honour found?

MR McCUSKER:   His Honour found that there was a reasonable excuse because the police officers believed that Coates would not say the things that he said off video on video.  I will take you to the trial judge’s ruling on that, but essentially it was because the police officers were entitled to believe that Coates wanted to speak off video and, therefore, would not speak on video.

GLEESON CJ:   By the time the trial judge made that ruling, had anybody asked the police officers, “Why didn’t you video this”?

MR McCUSKER:   No.

KIRBY J:   But if that could be a reasonable excuse, that would be a reasonable excuse potentially in every case.  It is a self‑fulfilling excuse.

MR McCUSKER:   Of course it is, your Honour, with respect, yes.

HAYNE J:   And is it relevant or irrelevant on your submission, that after these off‑camera admissions are supposed to have been made the police do not, with a video on, say “During the break you told me X, Y, Z.  Do you agree you told me those things?”

MR McCUSKER:   We say it is very relevant, your Honour.  It is not crucial, but certainly it is relevant.  Nothing was said at all as to what was allegedly said on video.  Clearly, we say on the video part of the first part of the interview, just before the break we are talking about, there is effectively a suggestion by the police that he speak to them off video, at least that there be a break.  Then there is nothing said when the videotaping resumes, and he, of course, was consenting to a videotape interview.  Nothing was said about what was allegedly said off video.

The problem is compounded by several other factors.  One is that although in the case of Hawley and his colleague they did make notes of the interview, they made them the next day jointly.  At a later date they gave evidence.  They prepared their witness statement from those notes which were then lost, that is, the notes were lost.

GLEESON CJ:   Mr McCusker, is there any convenient place in the papers, perhaps in the reasons for judgment of the Court of Criminal Appeal, where we can find a summary statement of the procedure that was followed at the trial in relation to decisions as to the admissibility of this evidence?

MR McCUSKER:   It is not in the judgment, your Honour.  I think, probably conveniently, the respondent in fact has set out what occurred at page 3 of its submissions, where the first break is described and Coates then requested to go to the toilet.

KIRBY J:   What page is that again?

MR McCUSKER:   It is page 3.  That simply describes what occurred in terms of first and second break, and I should, to answer your Honour the Chief Justice’s question ‑ ‑ ‑

GLEESON CJ:   Yes, I was not asking about the procedure that was followed by the police, I was asking about the procedure that was followed by the trial judge.

MR McCUSKER:   I appreciate that, your Honour, and that appears, perhaps helpfully, at page 5, paragraph 23 and following.  The first ruling on the papers, which is at volume 5 at 1292 – but that is simply a reference to what had actually occurred, as distinct from a description of the procedure that was followed.  The respondent notes that after hearing submissions on the papers early in the trial, the trial judge observed in his ruling that when Coates first requested to go to the toilet, and so on.  That is the first ruling, and that was simply, as I say, on the papers, without hearing any evidence.

HAYNE J:   When you say, “On the papers”, is there some bit of paper where the accused disclosed why the evidence should not be admitted?

MR McCUSKER:   Those are the submissions, yes.

HAYNE J:   Well, anything.  You say, “On the papers”, but it is all a bit opaque to me.

MR McCUSKER:   I understand that, your Honour.

GUMMOW J:   The papers seem to be mislaid.

HAYNE J:   It is unfortunate.

MR McCUSKER:   What occurred was that there was a contention that this evidence ought not to be admitted.

HAYNE J:   I understand that, but where do I find it?

MR McCUSKER:   It is not reproduced.  I can provide your Honours with a transcript later – a copy of it – of the argument that was raised.  It was early in the peace, at page 494 of the transcript on 2 August, where counsel raised the question saying my learned friend, Mr Stone, had relied upon the fact that he says Mr Coates had made admissions against an interest, he had made admissions regarding his involvement. 

GLEESON CJ:   On page 6 of the respondent’s written submissions, in paragraph 27, it said:

After hearing the evidence of Hawley and Hutchinson and viewing the video . . . the trial Judge determined as a question – 

MR McCUSKER:   That is right.

GLEESON CJ:   Did the jury also hear that evidence?

MR McCUSKER:   Yes, they did.  So it was not a voir dire.

GLEESON CJ:   No.  The evidence had been heard by the jury at the time of that second ruling?

MR McCUSKER:   The evidence of Hawley and Hutchinson had, because, of course, the break in interview involved four officers all told.  First Hawley and Hutchinson, who gave evidence of what the accused said to them.  Then they left the room and were replaced by Kays and Byleveld.  There was a ruling given – the first ruling, as it was referred to, on the papers, was given in respect of Hawley and Hutchinson’s evidence of the off‑camera statements.  That ruling was made without the evidence of Hawley and Hutchinson being heard either by the jury or by the trial judge.  He simply ruled on the papers, that is, on the depositions of Hawley and Hutchinson.

GLEESON CJ:   Depositions to a committing magistrate?

MR McCUSKER:   Yes, it was to a committing magistrate.

GLEESON CJ:   And were they cross‑examined before the committing magistrate about the matter of reasonable excuse?

MR McCUSKER:   I do not think so, your Honour.  No, they were not.

GLEESON CJ:   So by the time they came to give evidence as to the reason why they did not record what was said, the evidence about what was said had already been heard by the jury.

MR McCUSKER:   No.  It went this way.  They had given evidence at committal and the papers from the committal were before the trial judge.  The trial judge gave a ruling on the admissibility of Hawley and Hutchinson’s evidence as to the off‑camera admissions.

GLEESON CJ:   And at the committal had they explained, at least in their evidence‑in‑chief, why they did not record the admissions?

MR McCUSKER:   No, your Honour, they did not.  They simply gave the evidence of what occurred.

GLEESON CJ:   How did the trial judge know when he made the first ruling what was the reason why they did not record?

MR McCUSKER:   I think he inferred it, your Honour.  It is an inference.

GLEESON CJ:   Now, by the time they came to give evidence about their reasons in cross‑examination, the jury had already heard in‑chief what was said off camera.

MR McCUSKER:   That is right.

GLEESON CJ:   Was that on the assumption that the trial would have then been aborted if the judge had ruled the evidence to be inadmissible?

MR McCUSKER:   No, your Honour, because he had ruled in advance that the evidence was admissible, against the submissions of the appellants’ counsel.  Once he had ruled on that there remained the question of the admissibility of the evidence of Kays and Byleveld, which was not the subject of any ruling prior to the evidence of Hawley and Hutchinson.  So we had a two‑stage situation, where Hawley and Hutchinson gave their evidence which, whilst damaging to the accused, was not perhaps quite as damaging as the evidence of Kays and Byleveld because – well, I have taken your Honour to that evidence.

So before Kays and Byleveld gave any evidence the trial judge gave a ruling, that is, after the hearing the evidence of Hawley and Hutchinson, as to the admissibility of the evidence of Kays and Byleveld.  Now, by that time he had heard, of course, not only the evidence‑in‑chief but the cross‑examination of Hawley and Hutchinson.  So he had then the opportunity to determine, perhaps more easily, whether there was a reasonable excuse.  But under cross‑examination ‑ ‑ ‑

HAYNE J:   That is rolling together two distinct questions, is it not?  There was a question about reasonable excuse about what was said to Mr Hawley and his colleague.  There was a separate question about reasonable excuse about the evidence that the other officers were going to give.

MR McCUSKER:   That is so, yes.  Now, in relation to Kays and Byleveld, they were not present during the video interview at all.  They only came into the room after the break and after the alleged discussion between Hutchinson and Hawley, the policemen, and Coates.  So Kays and Byleveld could say nothing as to what had occurred immediately prior to the break, they were not there.

KIRBY J:   They were the senior officers, such as was suggested had to be brought in to agree to any “deal”?

MR McCUSKER:   That is right.

KIRBY J:   They were senior detectives, were they?

MR McCUSKER:   Yes, they were senior to Hawley and Hutchinson.

KIRBY J:   You really have to postulate, do you not, that they were in on some sort of conspiracy to protect their colleagues?  I know you do not want to say that, but that is really what you have to postulate.

MR McCUSKER:   That is a possibility, yes, your Honour.

HAYNE J:   Why do you have to postulate anything?

MR McCUSKER:   We do not, we say it simply comes to this – whether it is admissible.

HAYNE J:   The question is, first, whether it is admissible and then the subsequent question becomes whether the jury accepted as having been said, and it is not for you to demonstrate, for example, concoction, conspiracy, or anything.

MR McCUSKER:   No, but it is the preliminary step, whether it was admissible.  It was debated and ruled against us.

KIRBY J:   I realise that, but I am trying to see whether or not a reasonable excuse is being demonstrated and the reasonable excuse that is suggested is this man would not make any statement on video but wanted to do a deal.  For that reason it was suggested he had to get the input of the senior detectives, they came into it and they said he effectively sought a deal and we could not deliver that ‑ ‑ ‑

MR McCUSKER:   That is so.

KIRBY J:   And that, therefore, this is, as it were, corroborative of the reasonable excuse that is being postulated.

MR McCUSKER:   That may be arguable ‑ ‑ ‑

KIRBY J:   It still has problems ‑ ‑ ‑

MR McCUSKER:   It does.

KIRBY J:    ‑ ‑ ‑ because there is a question of whether, in such a circumstance, it is not the duty of the police to, once the video starts rolling, put it on record.

MR McCUSKER:   Yes.

KIRBY J:   In Tasmania I think there was something in the statute that required or suggested that that should be done.  That was referred to in Kelly.

MR McCUSKER:   In Kelly’s Case.

KIRBY J:   Is there anything like that in the Western Australian Act, or not?

MR McCUSKER:   No, there is not a similar provision, but no one, no police officer said that the appellant Coates refused to speak on video.  No police officer said that he was asked if he would repeat on video what he allegedly said off video.  It was simply a case where the break, we say, was initiated by the police.  There was quite a lengthy break and then when the videotaping resumed there was no reference to what allegedly occurred in the break.

The reasonable excuse which was held – could I take you to the trial judge’s ruling, first at volume 5 of the appeal book at page 1292 - I should say that although it is not in the appeal books before this Court, in view of your Honour’s understandable concern as to how this all came about, at page 499 of the transcript - and I can provide copies - the trial judge said:

As I say, I did make rulings, if you like, upon a voir dire conducted by reading the material and making rulings about its admissibility.  And it is not necessarily the case that issues of the kind you foreshadow need be raised on the voir dire prior to their being run before a jury.  So isn’t that the answer?  If that happens then it may - the material may require a relevance and an inadmissibility -

I think that means admissibility -

which at the moment in terms of the code it doesn’t have.

HAYNE J:   Can I just interrupt you there and can we just look at 570D.  How does that procedure accord – 570D, in particular, (2)(b), upon which the trial judge appears to have founded his ruling, that on trial evidence not admissible unless:

(b)  the prosecution proves, on the balance of probabilities -

What proof was proffered by the prosecution in support of the admission of what the statute, prima facie said, was not to be admitted?

MR McCUSKER:   The only proof that was proffered was the deposition of Hawley and Hutchinson, no more.  They are witness statements, I understand, not actually depositions.

HAYNE J:   They are not even sworn?

MR McCUSKER:   Not even sworn, no.

KIRBY J:   But this might have been with the concurrence of the accused that this is this informal procedure that the judge would carry out rather than go through ‑ ‑ ‑

MR McCUSKER:   I believe it was, yes.  But the question still remains, in answer to his Honour Justice Hayne, how that could constitute sufficient proof on the balance of probabilities that there was a reasonable excuse.

CALLINAN J:   Mr McCusker, where is the evidence relating to the loss of the notes, the police officers’ notes?  Do not give it to me now, if you cannot, but if you could give me a reference ‑ ‑ ‑

MR McCUSKER:   I can get it for you.  In fact, I think I have referred to it in the outline.  I will take your Honour to it.  The evidence of Hawley and Hutchinson was they made their notes the day after and then later on after they made their witness statements from them, they said they lost the notes.  In the case of Kays and Byleveld they never took notes.  They never made notes.  They simply, at some later date, prepared their witness statement for the trial based on their recollections and no more.  The reference appears in paragraph 26 of our outline and the reference to the lost notes is at volume 3, appeal book page 627; and also at 634, line 10.

GLEESON CJ:   Does section 570D(b)(2) require that the reasonable excuse be the actual reason for not recording the admission, or is it determined objectively, as it were, independently of the actual reason for the non‑recording of the admission?

MR McCUSKER:   I would have thought that, objectively, your Honour, there must be proven on the balance of probabilities that there is a reasonable excuse.

GLEESON CJ:   But does the police officer have to say, “This is the reason I didn’t do it, and this is a reasonable excuse for not doing it”?  Or does he simply say, “Don’t worry about why I didn’t record it.  There was a reasonable excuse for not recording it”?

MR McCUSKER:   No, I think there must be both a reasonable excuse objectively and it must be the reason why it was not recorded.  In this case, what the reason was, as well as the reasonable excuse, was really inferred by the trial judge.  I was going to take you to what the trial judge said at volume 5, page 1292.  It starts halfway down that page, where he details the evidence.  When I say, “the evidence”, of course, I am referring to what the papers said, not the evidence as such.

HEYDON J:   It is the record of interview, is it not, which became evidence in the trial? 

MR McCUSKER:   There are the police statements, the witness statements.  That is what he is referring to when he makes that ruling.

HEYDON J:   But if you take the material at the bottom of 1292, the last 10 lines, there is material in quotation marks.  Does that come from the police statements or from the record of interview?

MR McCUSKER:   It comes from the police statements, because there was no record of interview as such.

HAYNE J:   But there was the video and there was the transcript of the video.

MR McCUSKER:   There is that, yes.

HAYNE J:   It is from that, is it not?

MR McCUSKER:   Certainly, yes.  That far, he relies upon the videotaped interview.  It is the following material.

KIRBY J:   Why would it not be legitimate for the trial judge to say, “Well, I’m being invited to deal with this on the papers.  If they had any real belief that they could prevent this evidence from reaching this standard they would ask for it to be dealt with in a formal voir dire.  Therefore, I will infer that the evidence would come up to this point, and, therefore, on that basis that would, if proved, constitute a reasonable excuse”?

MR McCUSKER:   The answer to that, I think, your Honour, is that although it was dealt with, as I understand it, on the papers by agreement, nevertheless, there was a contention raised on behalf of the appellant that the papers could not possibly establish a reasonable excuse, or that, indeed, the police officers operated on the basis of there being a reasonable excuse.

KIRBY J:   But that contention was addressed to the merits.  It was addressed to what would be proved if this were formally adduced in evidence and sworn testimony.  It was not directed to, “Well, you can’t prove reasonable excuse by this informal means”.

MR McCUSKER:   No, it was not.  No, it was not directed to that.  So the contention was not that you cannot prove a reasonable excuse by simply looking at the papers.  The contention was, assuming that that evidence is given, it could not possibly constitute a reasonable excuse, and, therefore, the evidence of the off‑camera admissions is not admissible.  That was the way it went.

GLEESON CJ:   The reasons for the judge’s decision are given at page 1295, are they not?

MR McCUSKER:   Yes, they are.  His Honour says, between lines 5 and 10: 

This is a situation which in my opinion is allied to that –

that is, non‑consent to the interview being videotaped, referring to the specific reasonable excuse contained in subsection (4)(c), where “reasonable excuse” includes:

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

His Honour said: 

although there’s no direct reference to non‑consent to these statements being made whilst the videotape was running, it is a situation in which, as I have said, a break in the process of recording the interview was contrived and the statements were initiated and made by the accused at that time.

Now, his view that the break was contrived was based entirely upon the matter I have taken you to in the videotaped interview where the police officers twice asked, “Do you want to go to the toilet?” and he said, “Sure”.  It may be said it was contrived, but the question then is, “By whom?”  His Honour went on to say:

By analogy and in regard to the circumstances to which I’ve referred, it is my opinion that what occurred would constitute a reasonable excuse for there not being a recording of the material on videotape.

GLEESON CJ:   Was the essence of his decision, right or wrong, that your client would not have consented to the videotaping of the conversations and that was the reasonable excuse for not videotaping them?

MR McCUSKER:   That must be it, I think, your Honour.

GUMMOW J:   The section distinguishes between evidence of an admission and paragraph (c) talks about “the interview being videotaped”.

MR McCUSKER:   It does.

GUMMOW J:   Not that portion of the interview which contains the admission.

McHUGH J:   Paragraphs (4)(b), (c) and (d) seem to be all referring to the totality of the interview.

MR McCUSKER:   They do, yes.

GUMMOW J:   Not cherry picking.

MR McCUSKER:   That is right, yes.  Your Honours pointed out the distinction between admission and interview that was made in – there is some similar in the Tasmanian legislation.  As your Honour the Chief Justice said, the essence of the ruling made at that point by the trial judge appears to be that it could be inferred that the accused would not have consented.  The problem with that is that ‑ ‑ ‑

GUMMOW J:   Consented to what, though?

MR McCUSKER:   Consented to ‑ ‑ ‑

GUMMOW J:   Any interview?

MR McCUSKER:   ‑ ‑ ‑ any interview.  But he had already consented to an interview and he continued to consent to an interview because after the break it was resumed.  It is our submission that (4)(b) has no application at all.  It cannot be said that there was a reasonable excuse because the accused might not have consented or probably would not have consented to the interview being taped when indeed he had consented to the interview being taped.

HAYNE J:   What do you do then with the difference between (2)(b) and (4)(b), (c), (d)?  Paragraph (2)(b) is:

reasonable excuse for there not being a recording on videotape of admission;

Paragraphs (4)(b), (c), (d), which are examples of reasonable excuse rather than the whole field, are examples of no consent to interview.

MR McCUSKER:   To interviews, yes.

HAYNE J:   What do you say is the path through that resolves that difference?  Does anything turn on it?

MR McCUSKER:   I think it does, your Honour.  Paragraph (2)(b) refers to a videotape of an admission and then the question is whether the admission in respect of which evidence is sought to be adduced was part of an interview and was the interview consented to.

GLEESON CJ:   Does paragraph (4)(a) have any bearing on the matter?

MR McCUSKER:   No, your Honour, it was not argued that it was not practicable to videotape, but what is relevant, I suppose – dealing with the question of construction – is that so far as an admission, which is not part of an interview, is concerned ‑ ‑ ‑

GUMMOW J:   But (a) is talking about videotaping the admission.

MR McCUSKER:   Yes.

GLEESON CJ:   Suppose the trial judge was correct to decide that this conversation just would not have taken place at all if it had to take place in front of the camera.  Is that a situation that would bring (a) into operation?

MR McCUSKER:   No, your Honour.  It could not be said it was not practicable to videotape the admission because the camera was there and could be turned on.

HAYNE J:   Can I just understand what seems to be the reasoning of the trial judge.  Do I capture it if I understand it as being that the accused’s request or agreement to speak off camera is equivalent to the kind of case contemplated by (4)(b), non‑consent to interview, because it is or it amounts to non‑consent to videoing of the particular conversation which constitutes the admission.  Is that the reasoning which his Honour follows?

MR McCUSKER:   That appears to be the line of reasoning, yes.

HAYNE J:   Where do you say the error in it lies?

MR McCUSKER:   First, we say that (4)(c) ‑ your Honour mentioned (4)(b) but I think you meant (4)(c).

HAYNE J:   Yes.

MR McCUSKER:   That (4)(c) refers to non‑consent to the interview, and the accused had consented to the interview.  So that once he had consented to the interview, then (4)(c) cannot apply to alleged off‑camera admissions.  The word “interview” and the word “admissions” are used not interchangeably but as something distinct.  If that were not the case, if that were not the proper construction, it would mean this, that the police could videotape an interview of an accused on which nothing is said and then later say, at the conclusion of the interview, albeit the camera was still available, “The accused made a number of admissions which we have noted” ‑ ‑ ‑

GUMMOW J:   And now lost.

MR McCUSKER:   ‑ ‑ ‑ “and now lost, and those admissions are admissible because we believe that he would not make those admissions on camera or, indeed, that he said he would not make them on camera”.  Our submission is that that really opens wide the door to the kind of problem that this legislation is intended to at least partially cure.

HAYNE J:   In part, that consequence would follow from the fact that it is the accused who can control whether the videotaping occurs.  The legislation presupposes that the accused’s consent to videoing is necessary.

MR McCUSKER:   That is so.  If the accused does consent, as here, to the videotaping, it is our submission that that must put an end to the admission of off‑camera admissions under this legislation.

HAYNE J:   The argument would be the more powerful if the police, with or without consent of the accused, could simply leave the cameras running.

MR McCUSKER:   It would, yes.  Nevertheless, where you have a situation where the accused has consented to the videotaping of an interview, then, in our submission, subsection (4)(c) has no application so as to bring in as admissible an off‑camera admission allegedly later made.

McHUGH J:   Is not the strength of your case this, that the policy of the section is that once a person is suspected of committing a serious crime, the police have an obligation to record interviews with that person on video, and, unless the police show they attempted to get the admission on video, there is no reasonable excuse for the failure to videotape the admission.

MR McCUSKER:   That certainly is the major thrust of our case, your Honour.  There was no attempt made here.

McHUGH J:   It would be different if they said, “Stop, say no more, I want you to come in here”, as soon as he said, “What are my options?”, and then they said, “Now, what do you want to say about what are my options?”  He says, “I am not going to say anything more”, or he says it.  But if they make no attempt to get him on camera, if they do not get him on camera and record him as refusing to say anything, then, arguably, there is no reasonable excuse.

MR McCUSKER:   It went beyond that in this case, your Honour.  Not only did they make no attempt, but under cross‑examination it was conceded by ‑ ‑ ‑

McHUGH J:   They said they encouraged him.

MR McCUSKER:   They encouraged him to speak off video and there was no evidence from any police officer that he was asked whether he would speak on camera.  So the entire purpose of the legislation would, in our submission, be subverted if these circumstances were to be held to constitute a reasonable excuse.  Indeed, what occurred here might have been different – although we would say the point remains – if a police officer had said, “He told me off camera he was not prepared to speak on camera”, but that is not this case in any event.

McHUGH J:   What about the very difficult case where the accused, say, on the way to the toilet, suddenly bursts out, “You know I did it”.  In such a case, is there a reasonable excuse if the police then do not take him back in and put that to him on camera?

MR McCUSKER:   Our submission would be, there is no reasonable excuse, that at least it should be put to him on camera.

McHUGH J:   Maybe in that sort of case, if a judge was satisfied to a high standard of proof that such an admission has been made, it may be a case where there are exceptional circumstances which in the interests of justice might justify the admissions.

MR McCUSKER:   Well, I was about to say that, your Honour.  That is (2)(c) which refers to “exceptional circumstances”, but if it is not on videotape and you simply have the police evidence that he said something on the way to the toilet and there was no attempt to put it on videotape ‑ ‑ ‑

GLEESON CJ:   It opens the door to another form of potential abuse, does it not?

MR McCUSKER:   It does.

GLEESON CJ:   Because videos will be laden with statements such as, “During the break you said to us, ‘A man is an animal, I don’t know what came over me’, and I now want to know whether you are prepared to repeat that on the tape”.

MR McCUSKER:   Certainly, it opens the door to potential abuse.  It would raise a question, for example, of the discretion of a trial judge as to whether that part of a videotaped interview ought to be given to the jury, as distinct from being evidence that the judge might see on a voir dire for the purpose of determining whether there is a reasonable excuse, as part of the evidence.

KIRBY J:   We had some of these cases put to us in Kelly.  There were cases where the police come to a crime scene and in the heat of the moment things are said by accused before there is any real opportunity of setting up a recording.  Your answer is that that is a different category to one where an interview has been conducted and consented to.

MR McCUSKER:   Yes, it is.

McHUGH J:   The section does not operate unless you are a suspect, so there has to be evidence that you are a suspect.

MR McCUSKER:   That is so.  Your Honours did observe in Kelly v The Queen at pages 282 to 283 at paragraph 33, that (4)(c) creates a specific excuse where the accused fails to consent to the interview.  It is not the admission but the interview which is referred to.  That comes back to an earlier point that your Honour Justice Hayne was making with me.

KIRBY J:   In due course you will have to come, I think, to what the state of authority is in the light of Kelly, because in a sense the holding in Kelly and the binding rule for which it stands relates to the proviso, does it not, or ‑ ‑ ‑

MR McCUSKER:   It does, yes.

KIRBY J:   It may be that that is what the case stands for and everything else about the Tasmanian Act were obiter dicta – I am not sure – but you will have to deal with that point so that we know where we stand so far as the Court’s authority is concerned.  Do not do it out of turn, but do it when you can, but do it.

MR McCUSKER:   Could I say briefly, your Honour, that my understanding of the decision in Kelly is that the majority found that the evidence of the admissions in issue in that case were not in the course of official questioning and that, as a matter of construction, although a purposive construction had to be given to the legislation, nevertheless, as a matter of construction, it could not be said that where Kelly in that case had ceased being questioned and was walking across the car park, that that was still in the course of official questioning, although the ultimate decision, of course, was based on the proviso.

KIRBY J:   But is your point that, even if there is a holding in Kelly about the Tasmanian statute, it is addressed to the peculiar factual situation of interview finished, statements made in the car park, whereas here there is no doubt that an interview was agreed to, it was conducted, it was interrupted and it was resumed ‑ ‑ ‑

MR McCUSKER:   Yes.

KIRBY J:   ‑ ‑ ‑ and, therefore, this is all as part of the interruption of the interview process.

MR McCUSKER:   And furthermore, your Honour, the Western Australian legislation does not have ‑ ‑ ‑

GUMMOW J:   It does not have the crucial phrase, does it, “in the course of official questioning”?

MR McCUSKER:   Quite, so it is different in that respect.  The West Australian legislation is stronger in that it refers to evidence of any admission - that is in subsection (2):

any admission by the accused person shall not be admissible -

so it does not restrict it, as the Tasmanian legislation, does to official question.

GLEESON CJ:   Section 570D(4) is for the purposes of applying subsection (2), and the relevant part of subsection (2) is paragraph (b).

MR McCUSKER:   Paragraph (b), yes, “a reasonable excuse”.

GLEESON CJ:   A reasonable excuse for there not being a recording of the admission.

MR McCUSKER:   Yes, that is certainly the case.

GUMMOW J:   The trial judge also referred at one stage to (c) as well as (b), at 1294, about line 18; he did not come back to it though.

MR McCUSKER:   He did not accept that there were exceptional circumstances.  The ruling was based solely on the view that there was an analogy, as he put it.

McHUGH J:   But he did come back to it at 1295, line 15.  He said:

I would not think it necessary or appropriate in such a case as this to say that what I’ve described constituted an exceptional circumstance ‑ ‑ ‑

MR McCUSKER:   Quite.  I think it is fair to read that as a conclusion that it did not apply.

GLEESON CJ:   Yes, thank you.

MR McCUSKER:   There was a second ruling that I have mentioned to your Honours, and I should take your Honours to it, at 1297.  It starts there and this is in advance of the evidence of Kays and Byleveld being given - the argument starts at 1297 in the absence of the jury and at 1299, the trial judge gave a ruling on it and he starts at line 10 referring to:

The reasonable excuse phrase that the section contains -

notes that it is not an exclusive list -

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 –

Pausing there, that is contrary to what his Honour had previously said.  I took your Honours to his observation that, if not at the initiation, at least with the consent or the concurrence, but there he is saying –

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

And then he goes on.  There is some intervention there.

CALLINAN J:   Mr McCusker, how did there come to be two rulings?

MR McCUSKER:   Because the second ruling was in advance, it was in respect of a submission that the evidence of the two later police officers, Kays and Byleveld, should not be admitted, new evidence.  So we have the initial ruling on the papers, it was put at the outset of the trial ‑ ‑ ‑

CALLINAN J:   That is at 1294 and 1295, is it not?

MR McCUSKER:   Yes, it is, and you will see ‑ ‑ ‑

CALLINAN J:   That was on the papers.

MR McCUSKER:   That was on the papers, yes.

CALLINAN J:   Right, and then 1299 ‑ ‑ ‑

MR McCUSKER:   Page 1299 and following were dealing with the admissibility of the evidence of Kays and Byleveld.

CALLINAN J:   The two police officers who were called in. 

MR McCUSKER:   Came in later, yes.  Those police officers’ evidence had not yet been given.

CALLINAN J:   But, again, that is on the papers, is it?

MR McCUSKER:   It is, again, on the papers, yes, but based at that time on the fact that the evidence of Hawley – based on the papers in the sense that Kays and Byleveld had not yet given evidence, so it was in advance of hearing their evidence – based on the evidence then given of Hawley and Hutchinson and, of course, the videotaped interview itself.  So the judge had Hawley and Hutchinson’s evidence by then, in‑chief, on oath and cross‑examination, as well as ‑ ‑ ‑

CALLINAN J:   That is in accordance with some case management procedures, is it, in criminal trials in Western Australia?

MR McCUSKER:   I am not sure that that is so, your Honour.  I do not think it is.

CALLINAN J:   But the parties concurred in doing it this way?

MR McCUSKER:   The parties concurred.  They concurred in the first ruling at the outset of the trial being on the papers, and on the second ruling – it was, again, essentially on the papers so far as Kays and Byleveld were concerned.  But Kays and Byleveld’s witness statements did not really add much to it, if anything, in terms of reasonable excuse.

GLEESON CJ:   I suppose, from the point of view of trial counsel for both sides, when they were dealing with this on the papers, they were actually arguing the point that they wanted to argue, on the common assumption that the police officers, when called to the witness box, would give the evidence that was foreshadowed by the written statement of what it was expected their evidence would be.

MR McCUSKER:   Certainly, yes.

KIRBY J:   What is your theory for the operation of the Act where the police officers have absolute integrity?  Acting in a proper way, having regard to the policy and language of the Act and the mischief that it was addressing after the long history that preceded McKinney, what should they do?  Because this would not be an uncommon phenomenon, one would think, that a person faced in a corner, perhaps presented with an extremely inculpating statement, would try to have a conversation that would help that person’s predicament.  What are police officers, under the scheme of the Act in Western Australia, to do in such circumstances?

MR McCUSKER:   The first thing that they should do, once the accused indicates that he wants to say something further, is to ask him if he is prepared to say it on video.  That was not asked here.  Second, if he then refuses – which, again, did not occur here – they should at least go on video after the interview, if it is an interview, for the purpose of recording on interview, if they can, what has occurred off video. 

There remains a problem, in terms of the construction of the statute, even on that approach, because our primary submission is that, on a proper construction of the statute, once an accused has consented to the videotaping of an interview, it is simply not open – other than where there are exceptional circumstances which, in the interests of justice, justify the admission – but putting that to one side – it is not open to the police to adduce in evidence an off‑camera admission allegedly made.  Once the consent has been given to the interview, then anything said to have been off camera, not videotaped, is inadmissible other than in exceptional circumstances.

KIRBY J:   But there are two points here.  The first is the exceptional circumstances exemption and the second is stopping the kind of exercise in which the Court of Criminal Appeal of Western Australia and this Court has been involved in its tracks by putting on the record, in order to prevent this type of inquiry – that it was also held in Kelly – proceeding, because if it is put on the record, then it is much less likely that that is going to be explored and, as you say, the trial judge will often keep that material from the jury on the basis that it is not relevant and would do greater harm than good.

At the moment I am having some difficulty in seeing whether that really did strengthen the Crown case, compared with what he did.  The only thing I can see at the moment is that he said that they went and did it, but there is practically nothing in the statement to the detectives that adds anything significantly to what he says on tape after the interview resumes.  So would you give consideration to that?

MR McCUSKER:   I will give a full answer, your Honour, but one matter immediately, and that is that he suggested he be charged with conspiracy to murder, which takes it well beyond what he said when he went back on tape, because there is an implied admission there that he was a party to the murder itself.  May it please your Honours.

GLEESON CJ:   We will adjourn until 10 o’clock tomorrow morning.

AT 4.21 PM THE MATTERS WERE ADJOURNED
UNTIL THURSDAY, 29 APRIL 2004