O'Neill v The Queen

[1996] HCATrans 80

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B26 of 1995

B e t w e e n -

JODY MICHELLE O’NEILL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1996, AT 12.35 PM

Copyright in the High Court of Australia

MR A.J. KIMMINS:   If it please the Court, I appear on behalf of the applicant.  (instructed by Grays Lawyers)

MR M.J. BYRNE, QC:   May it please the Court, I appear with my learned friend MS L.J. CLARE, on behalf of the respondent.  (instructed by D. Field, Solicitor to the Director of Public Prosecutions)

TOOHEY J:   Yes, Mr Kimmins.

MR KIMMINS:   So far as this particular case is concerned, the applicant was convicted of the attempted of her husband.  It was alleged by the prosecution that she injected him with insulin.  The main Crown witness against the applicant was a Mrs Lally.  It would seem that there was an unrecorded confession by the applicant to Mrs Lally.  There was then a report to the police and then the police arranged for Mrs Lally to travel back to the applicant, engage her in conversation and attempt to have her recount the confession that had been previously given.

So far as the main points that we raise before this Court, we submit that the dissenting judgment of the President in the Court of Appeal at some length sets out the history of the unfairness discretion in Australia, that his Honour’s conclusion having regard to the aspects of the point that we raise in this Court were correct, that so far as the majority in this particular case is concerned there seems to be no common ground between Mr Justice Pincus and Mr Justice Dowsett except in their conclusion, as such.  We also submit that there are a number of authorities, both in Queensland and, more particularly, in South Australia which show a divergence of judicial opinion when it comes to the point that we raise here.

TOOHEY J:   Mr Kimmins, what is the point that is raised here?

MR KIMMINS:   The point that we raise, your Honour, is that where the police engage a civilian citizen to attempt to obtain a confession from a suspect in a particular matter, that there is unfairness that enlivens the discretion of the trial judge.  That is the first point.  So far as the second point is concerned, such a method adopted by the police really removes the right of silence that an accused person does possess under the law.  Those are the two main points.

TOOHEY J:   Yes, I appreciate that you say that but in terms of the principle upon which the evidence should have been excluded, is it confined to unfairness or ‑ ‑ ‑

MR KIMMINS:   It is confined to unfairness, your Honour.

TOOHEY J:   Not involving the methods employed by the police, except in so far as they relate to unfairness; is that the way it is put?

MR KIMMINS:   Yes, that is so, your Honour.

TOOHEY J:   What happened at trial?  Was the evidence challenged on the basis of unfairness?

MR KIMMINS:   The point was not raised at all at trial, your Honour.  In the Court of Appeal amended grounds of appeal were inserted and it was sought to be argued before the court.  It would seem that Mr Justice Fitzgerald addressed the matter as did the other two members of the court.

TOOHEY J:   Yes, but could I just pursue for a moment the question of what happened at trial.  You say that unfairness was not raised.  Do you mean no objection was taken at all to the evidence now sought to be challenged?

MR KIMMINS:   No objection was taken whatsoever, your Honour.

KIRBY J:   Well, that is not a very promising start.

MR KIMMINS:   No, it was acknowledged by both the President and Mr Justice Dowsett that the point was not raised at trial but both gave it some consideration, especially the President, in some length in the respective judgments of the court.  So far as Mr Justice Pincus was concerned he too, in his short decision, raised this one point for consideration and pointed out, as I have already mentioned, that he agreed with what Mr Justice Dowsett had to say but, in fact, came to a conclusion through a different method.

So far as my outline is concerned, I have attempted to set out what seems to be the divergence of opinion between the members of the majority and also with how they differ from Mr Justice Fitzgerald’s decision.  It would seem that so far as Mr Justice Pincus was concerned, he was of the view that when it came to a consideration of the unfairness discretion, that the only matter that was of any relevance was the reliability point.  He spent some little time coming to the conclusion that if the matter was properly recorded and was unequivocal and reliable, well, that was the end of the matter and that there was, in fact, no question of unfairness arising.

So far as Mr Justice Dowsett was concerned, he was of the view that because the police were not involved in this particular matter and that there was no position of inequity between a police officer and an accused person, then the discretion did not arise here, but he qualified that particular point by stating that it may well be appropriate if it has passed the investigative stage and was an evidence‑gathering exercise, that different considerations may arise.

TOOHEY J:   I am still having a lot of trouble, I have to say, Mr Kimmins, with identifying the particular principle that is at issue here.  I mean, I know you express it in terms of unfairness, but unfairness for what reason?

MR KIMMINS:   Because it effectively removed from the accused her right to remain silent and, secondly, allowed the police to circumvent the judge’s rules in that, we would submit, at the relevant time that the police sent Ms Lally back in to speak to the accused they had sufficient evidence there that would have raised the necessity of a warning to be given to her at that stage.  So, it is effectively the police attempting to circumvent the rules that were appropriate at that particular time.  The point has been discussed in a number of authorities that I have outlined in Part V of my outline and I have attempted to break up the conclusions reached therein.

It would seem, so far as those which are favourable to the applicant, that the courts there deal very, very briefly with the question of unfairness in this particular factual scenario and do not deal with the principles as such but come to the conclusion that there is a discretion to exclude on the basis of unfairness, that in these types of situations that unfairness did arise and that as a result of that the evidence should have been excluded or was not excluded in those cases.

So far as the matters contained of the last three cases on page 10 of my outline, it would seem that the only decision outside of Queensland that we were able to find, apart from a reference to an unreported Victorian decision and Mr Justice Pincus’ decision in the last authority of Reg v Davidson and Moyle, unreported, CA No 511 of 1994, was the matter of Barker where the Full Federal Court in 1994 referred to the decision of Pfening and came to a conclusion that there was no unfairness and then proceeded in relation to other grounds.

It would seem that the principle itself, that fairness applies in these particular circumstances, has, in fact, been adopted by the South Australian Supreme Court, and that in this particular case we would submit that, having regard to Mr Justice Pincus’ decision, where he said that there is no unfairness which arose here; having regard to Mr Justice Dowsett’s decision, where he stated that there was no unfairness that arose here, but there may well be if police were involved, and having regard to the dissenting decision of the President, it is our respectful submission that there does arise in this particular case a divergence of judicial opinion, based on the factual scenario here; that so far as the question of unfairness is concerned, there seems to be a difference of opinion in the Court of Appeal so far as how they came to the conclusion as to unfairness applying, and also having regard to Mr Justice Fitzgerald’s exhaustive summary so far as the High Court decisions in the last 15‑odd years are concerned, that there has been a divergence of opinion which, basically, now, sits with what the President found in this particular case, as opposed to what Mr Justice Pincus and Dowsett found in this particular case.

TOOHEY J:   Is it because the witness approached the applicant at the instance of the police that the point arises and is that the basis of the objection?

MR KIMMINS:   Yes, your Honour, at a time when the police, in our respectful submission, had sufficient evidence that would have caused a warning to have been given if a police officer had approached the applicant and in circumstances where the civilian witness did not need to provide a warning because she was a civilian witness.

TOOHEY J:   Could I ask you the position with regard to undercover police officers?

MR KIMMINS:   It depends in what circumstances, your Honour.  So far as what is contained in my friend’s outline, where he refers to ‑ page 7 of my friend’s outline.  At paragraph 10 he deals with a) b) and c).  So far as point a) is concerned - that is the point that was raised by the Court just then‑ we would submit that that is still in its investigative stage.  That is an undercover police officer, say, in the drug field, dealing with a suspect.  We say that that is in the investigative stage when one might suggest that there is not sufficient evidence to arrest the person at that time.

So far as point b) is concerned, it is respectfully submitted that there are appropriate safeguards in legislation in Queensland to cover that particular aspect, the Invasion of Privacy Act, and so far as c) was concerned, we would submit that is still in the investigative stage as well, attempting to identify offenders.  In this particular case, the alleged offender had already been identified when Miss Lally approached the police.  The police then, as contained in the chronology in my outline, were in a position, after having taken a very detailed statement from her ‑ they were in possession of incriminating evidence, which would be sufficient, as I have already said, to warrant a warning being given to her prior to them proceeding to interrogate her.

KIRBY J:   But they did not interrogate her.  They simply had the person who was making this very serious accusation go, wired for sound, to have the conversation which would provide evidence one way or the other, or they might have had their doubts about them.  I mean, they might have thought there could be some other reason why such an accusation would be made against a friend.

MR KIMMINS:   That is open, I have to concede that, but the fact still remains that instead of approaching the applicant, themselves, to attempt to work out whether there was, in fact, any animosity or any problems between the two women, they chose to use - which was accepted by Mr Justice Pincus and also the President - trickery, to attempt to obtain a confession that was subsequently used.

KIRBY J:   I suppose the one point that is going against you, which is the one the court mentioned earlier, was that you did not take this objection at the trial, at the point where the evidence was being tende  red, and that would have allowed the process to take its regular course.

MR KIMMINS:   Another counsel appeared at first instance, but I am stuck with that fact.

KIRBY J:   By you, I mean, your client.  A point going for you, perhaps, is that it is likely, in the development of technology, that the use of this technique by police may become more regular, and in some ways, if it is sanctioned, it does have the assurance that there is the recording which the tribunal of fact can actually hear.  That may present a point of general principle, but it is not a particularly good vehicle because the objection was not taken at the trial.

MR KIMMINS:   I accept that, and as was accepted by the Court of Appeal, the matter was not raised at trial, but then they, despite that fact, agreed to investigate the matter, and that was investigated by both the dissenter and also the majority.

KIRBY J:   Do you need leave in Queensland to raise such a point at the appellate level?  Do you need leave to raise a point that has not been taken at the trial; because there is a general question here as to whether appellate court should encourage fine‑toothcombing of trials to find points that never occurred to anybody in the context of the drama of the trial?

MR KIMMINS:   Leave had to be sought to add further grounds of appeal.

KIRBY J:   And was granted?

MR KIMMINS:   And it was granted.

TOOHEY J:   I am not sure that that is an answer, quite, to Justice Kirby’s question, thought, is it?  It is one thing to need leave to amend the grounds of appeal, but it may be another question whether there is any rule or practice that requires leave to appeal where a matter has not been the subject of objection - when the admissibility of evidence has not been the subject of objection at trial, as is the case in New South Wales.

KIRBY J:   You need to show special circumstances in New South Wales because this is a very common practice, that points that did not occur to anybody in the course of the criminal trial are found by new counsel who look at it with an eagle eye, and then they come up to appellate courts to raise the point.  That is really not to be encouraged.

MR KIMMINS:   I accept that, your Honour, and I believe - it was accepted by the members of the court, but they chose to consider the matter and have produced a rather lengthy judgment, both in dissent and in majority, attempting to answer the questions that were raised here, anyway.  Unless there is anything I can assist the Court with further - - -

TOOHEY J:   Thank you, Mr Kimmins.  Yes, Mr Byrne.

MR BYRNE:   Thank you, your Honours.  I can deal briefly with the points made by my learned friend in the course of oral submissions today.  They were firstly, that there was a divergence of opinion between courts as to the principles to be applied.  Our response to that submission is that is not correct.  The principles are well known.  It is simply a question of application of those principles to the facts and particular cases.  That explains, we say, why there was an exclusion of evidence in, say, Pfening (No 1) but not in the other South Australian case, and similarly, why there was not an exclusion in Reg v Barker of the Full Federal Court.

Each case must turn on its own facts.  That leads to the second point here.  Our learned friend states his point, as I recall it, as being where police engage a civilian to attempt to obtain a confession from a suspect, a discretion arises.  The factual circumstances here are somewhat different.  The police did make use of the witness, Lally, but it was not to obtain a confession.  It was more to confirm that a confession had been made.

KIRBY J:   Is that not a small difficulty for you; that if it is to confirm a decision which has already been taken, then a point has been reached where a warning should be given by the police before they, as it were, trap an accused into giving further evidence that will incriminate them.  That is the complaint that has been put about this process.

MR BYRNE:   We say, not necessarily, and indeed, your Honour raised the point before with my learned friend.  The police here were confronted with a situation whereby a person comes to them and says, in effect, “A person I know but have never had any real dealings or friendship with, has confessed to me that she attempted to murder her husband.

McHUGH J:   Not only confessed to her, but asked her to see her at her home, was it not?

MR BYRNE:   Exactly.  Yes, invited her to her home, your Honour.

McHUGH J:   For the purpose of telling her?  Extraordinary.

MR BYRNE:   Then told her out of the blue, yes, and the police were, in our submission, entitled to treat it as somewhat extraordinary and it did not necessarily lead, or would not necessarily lead reasonable police to immediately march around to the home, warn the person, and conduct an interview.  The circumstances were such that the police were, we say, entitled to say, “Well, she has spoken to you voluntarily once.  Will you go back and speak to her again and see if she will, again, speak to you voluntarily?”, which she did, and those admissions confirmed what was claimed to have been said on the earlier occasion. 

It is, in fact, stronger, we say, in those circumstances than to use the example your Honour Justice Toohey raised of undercover officers.  Undercover officers often in the drug investigations are dealing directly with persons engaging in what is illegal activity.  Where, in those circumstances, is the warning to be given?  Is it when the undercover officer asks to be supplied with drugs, when he is supplied with drugs, on the first, second or third occasion, et cetera?  It is a legitimate, we say, method of investigation in those circumstances and in the quite unusual circumstances confronting police here it was legitimate, particularly given the serious and unusual nature of the allegations.

McHUGH J:   If the matter had been raised at the trial and the unfairness point run, the relevant police officers might have said, “Well, we were very dubious about it all.  We certainly didn’t think at that stage that we had enough evidence to arrest her.”  There are lots of answers they may have

given which would have explained why they had not arrested her at that stage.

MR BYRNE:   Quite so, your Honour.  Indeed, that is the case in other cases where there are proper voir dires held and the relevant persons, including here, Lally, the police officers involved, would be able to say on oath what their opinion was and explain the reasons why they did things.  The Court of Appeal did not have the benefit of any of that type of evidence and neither do your Honours.  So, it is simply a question of looking at the factual scenario facing police and saying whether in the absence of evidence, from the absence of reasons or explanations, whether that necessarily, solely on the unfairness discretion, would require the exclusion of the evidence. 

Our response to that is to say that the majority of the Court of Appeal was entitled, on the material, to find that this was not unfair as there was no impropriety, there was no compulsion to speak, and the person had voluntarily spoken on the first occasion to a stranger and simply confirmed it on the second occasion on tape.  We say, in conclusion, that this is not a point of principle.  The principles regarding the unfairness discretion are reasonably well understood.  This is simply an attempt to apply those principles to particular facts.  Those are our submissions.

TOOHEY J:   Yes, thank you, Mr Byrne.  Mr Kimmins, anything in reply?

MR KIMMINS:   The only matter I wish to raise in reply, so far as my friend’s last point is concerned, is that there is no point of principle.  We respectfully draw the Court’s attention to the agreement in conclusions by the majority, but the difference in their reasonings to coming to that conclusion.  There seems to be in this particular case no principle which is agreed upon by the majority.  Thank you.

KIRBY J:   But what do you say in answer to Justice McHugh’s point that had this point been raised at trial the police might well have given their explanation as to why they had their doubts and, therefore, sent out the friend with the tape?  I mean, that could have given a complete explanation that would have hit on the head the point that you are urging upon us, namely, that they had already made up their minds and that they should have given a warning at that stage.

MR KIMMINS:   That could well in fact have been the case, your Honour, but the chronology that we are stuck with is really what is contained in my outline, which seems to be that being seized of a sworn statement from the woman, Lally, they then proceeded to move in this particular way and

within a very short period of time of obtaining the second statement they purported to speak to the applicant and when she was explained her rights she declined to answer any questions.

KIRBY J:   Yes, you are stuck with that, we are stuck with it, the applicant is stuck with it and the reason that everybody is stuck with it is that generally a sense of unfairness will emerge most vividly to those who were in the trial, and the point was not raised.

MR KIMMINS:   Yes.

KIRBY J:   Anyway, I think you have said what can be said on the point.

MR KIMMINS:   Thank you, your Honour.

TOOHEY J:   Yes, thank you, Mr Kimmins.

The Court is not persuaded that a grant of special leave to appeal is warranted in this case.  While the proposed grounds of appeal raise questions of the admissibility of statements made by the applicant by reference to considerations of fairness and reliability and also by reference to the conduct of the police, these matters have been the subject of decisions by this Court.  In the end the issue is one of the application of established principle to the unusual facts of the case.  It is of some importance too that no objection was taken to the relevant evidence at trial.  The application for special leave to appeal is refused.

That completes the applications for special leave to appeal.  The Court will adjourn until Tuesday at 10.15 am.

AT 1.01 PM THE MATTER WAS CONCLUDED