Playford v The Queen; Griffiths v The Queen

[2014] HCATrans 20

[2014] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B29 of 2013

B e t w e e n -

GARY ALLEN PLAYFORD

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B45 of 2013

B e t w e e n -

TREVOR HARRY GRIFFITHS

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 14 FEBRUARY 2014, AT 11.56 AM

Copyright in the High Court of Australia

____________________

MR J.R. HUNTER, QC:  May it please the Court, I appear for the applicant, Playford.  (instructed by Legal Aid Queensland)

MR M.R. BYRNE, QC:  May it please the Court, I appear with my learned friend, MR B.J. POWER, for the respondent in both matters.  (instructed by Director of Public Prosecutions (Qld))

MR M.J. BYRNE, QC:  May it please the Court, I appear for the applicant, Griffiths.  (instructed by Legal Aid Queensland)

FRENCH CJ:   Is it convenient for us to hear from counsel for each applicant before hearing from the respondent?

MR HUNTER:   Yes, your Honour.

FRENCH CJ:   Yes, very well, Mr Hunter.

MR HUNTER:   Your Honours, this case concerns the exercise of the fairness discretion to exclude what was held to be a voluntary confession to two murders in circumstances where the investigating police engaged in conduct that was deprecated by the primary judge and sharply criticised by the Court of Appeal.  The conduct engaged in is summarised in the judgment of Justice Dalton, who delivered a powerful dissent on appeal.  That is set out at page 57 of the application book, commencing at about line 11.

FRENCH CJ:   I do not suppose if it were not a powerful dissent you would be referring to it.

MR HUNTER:   It contains a helpful summary of what it was alleged that the police had done.  Essentially, there were a number of breaches of the relevant provisions governing the interviews by police with suspects – not only the Police Powers and Responsibilities Act but also the Responsibilities Code.  Quite independently of the breaches of the Act and the Code, the police plainly flouted the spirit and intention of those provisions. 

The conduct included a failure to record a caution, a failure to adopt an unrecorded conversation that included a caution, no inquiry as to why the applicant had apparently changed his mind about speaking to police without speaking to a solicitor in circumstances where he had twice earlier said that he would not speak unless he had spoken to one.  Most significantly, there was the failure to tell the applicant of the existence of the solicitor who had been engaged to act for him and to whom the principal investigating police officer had already spoken.

This case, it is submitted, is quite different from those involving an undercover operative.  This was not a Tofilau or Swaffield‑type case.  This involves a formal interview with a suspect at a police station.  It is contended that essentially what occurred is that his Honour allowed public policy considerations to intrude into the fairness discretion to the extent that they completely trumped any other consideration.

FRENCH CJ:   Just going to the facts for a moment, what do you say about the observation at paragraph [11] on page 36, in the judgment of President McMurdo – this is about line 20 - that the primary judge:

implicitly rejected the appellant’s evidence that, had he been warned in these terms by Mr Carroll, he would not have spoken to police.

MR HUNTER:   Well, what I say about that is, firstly, that the interviews that were undertaken after speaking to Mr Carroll were set against the background of what he had already done, which was to co‑operate extensively with police while still in New South Wales.  Secondly, the threat against his wife remained extant and although it was rejected the evidence – it was not accepted by police that they had offered him a contact visit with his wife with a view to encouraging him to participate in what I will call the re‑enactments, it is plain that that is what happened and he was at the end of the re‑enactments taken not to the watch‑house but to a room in the CIB where he had a contact visit with his wife and children.

So the fact that he was told by this police officer that he should say nothing is all well and good, but there were other factors operating on his mind as well.  Indeed, Justice Dalton made comment to that effect or to similar effect in her judgment, which I will need to turn up, but essentially her Honour said what I respectfully have adopted.

KEANE J:   Accepting what you say, Mr Hunter, is this not the agitation of a finding of fact ‑ ‑ ‑

MR HUNTER:   In my submission ‑ ‑ ‑

KEANE J:   ‑ ‑ ‑ which has been upheld by the Court of Appeal?

MR HUNTER:   In my submission, in terms of the exercise of the unfairness discretion, the Court of Appeal erred in concluding that his Honour had not impermissibly merged the two discretions.  So it is not ‑ ‑ ‑

KEANE J:   But does not that submission turn on the notion that there is a separate ground of fairness in the sense that there was something unreliable about the confession because of the circumstances in which it was obtained, and does not the finding that the admissions would have been made in any event, even if the warning had been given, cut the ground from under that contention?

MR HUNTER:   Well, your Honours, I make a separate complaint about the findings of fact that were made and my submission is that there were in fact very limited findings of fact made about both voluntariness and fairness.  But, in my submission, it is not – the Court of Appeal’s view did not turn upon the fact that the applicant would inevitably have participated in the re‑enactment but rather it turned upon a conclusion that the applicant – that the learned primary judge had not in fact merged the two discretions when, in my submission, it plainly had.

Your Honours, in a case of a voluntary confession to murder or even two murders, public policy considerations will almost always trump fairness, and even gross misconduct that ensures that a defendant does not get access to legal advice that might result in the exercise of the right to silence will inevitably be held to justify the end.

His Honour, it is contended, impermissibly merged the two with the result that the outcome was dictated by what his Honour called the substantial social cost of the suppression of the evidence.  The relevant passage in the primary judge’s reasons is extracted in the judgment of the President at page 34 of the application book, the final paragraph on the page, numbered [28], and then over the page, at the top of page 35.

There his Honour referred not to cases concerning the fairness discretion, rather to cases concerning the public policy discretion.  I interpolate that the case of Stead involved police participation in an organised car stealing and rebirthing organisation/operation, not the admissibility or otherwise of confession.

His Honour did not, in the context of fairness, refer to any of the relevant cases, but only two that were concerned with public policy, and then referred to the substantial social cost of the exercise of the discretion favourably to the applicant.

FRENCH CJ:   The problem I have in the context of a special leave application is is this really a debate about whether the Court of Appeal, or the majority in the Court of Appeal, was correct in its characterisation of what the primary judge did in dealing with unfairness and in dealing with public policy?

MR HUNTER:   It is, in my submission, more than that.  The special leave point that we agitate for is one based upon the proposition that it needs to be made quite plain that these discretions have to be considered separately.  This Court has not in recent times addressed this issue in the context of a formal interview, if you like, at a police station as opposed to the conduct of an undercover operation.  We say that, whilst yes there would be, on any appeal, a debate about the merits or otherwise of the Court of Appeal’s characterisation of it, nonetheless the issue raises a point of general importance.  Can I move from the issue of the fairness discretion to the issue of the findings of fact, or what I contend is an absence of findings of fact?

FRENCH CJ:   This is going to the question of voluntariness?

MR HUNTER: Yes. The operative provision, which is section 10 of the Criminal Law Amendment Act, is set out in my outline at page 73 of the application book, at line 4.  That provision makes it incumbent upon the prosecution to prove that no threat was made or inducement offered or, if made, neither was operative, and to that extent findings of fact are critical.  His Honour, in my submission, simply did not make any.  His Honour rejected the evidence of the applicant and said that the inconsistencies in the police evidence did not cause him to doubt their evidence in other respects.

But, in my submission, that was a very general approach which really, in my submission, missed the point of a couple of critical aspects of the evidence.  His findings are set out, commencing at page 46 of the application book, in particular paragraph 24 at the foot of page 46 and then over the page, at page 47.  In particular, your Honours will see the underlined passage that has been emphasised by her Honour Justice Dalton.

Now, there were multiple elements to the applicant’s account.  Firstly, he said that he asked for a solicitor, that Burkin opened her notebook into which Burkin admits she had written Mr Carroll’s name but he asked for a solicitor and when she opened her notebook and asked him to name the solicitor and he could not, she closed the notebook and asked him if he wanted to talk to anybody else.  Then he was threatened in the sense that he was told that his wife would be charged as an accessory to murder if he did not speak to the police about what happened.

Now, Detective Burkin’s account regarding the first point was really quite extraordinary.  She went from, “Yes, I told him about Mr Carroll and gave him the details to know.  After consultation with my partner and with senior police back in Queensland, we made a deliberate decision not to tell him”.  The effect of that evidence is summarised in Justice Dalton’s judgment at page 40 of the application book at the foot of the page in paragraph [35]. 

So, Detective Burkin’s evidence had been quite inconsistent about a central aspect of the applicant’s account.  Yet, when his Honour made what the Court of Appeal held was a finding of fact, his Honour said “The inconsistencies in the police evidence were not of sufficient weight to lead me to the view that I could not rely on them with respect to other matters.”

The inconsistency was not about another matter.  It was about the very matter that was central to the question for determination and that something untoward had in fact occurred is borne out by the applicant’s response to being cautioned and that is set out in, again, the judgment of Justice Dalton at page 41 of the application book, starting at about line 35 on that page.  He was asked to ‑ ‑ ‑

KEANE J:   But if one goes to paragraph 59 in her Honour’s judgment at page 47, her Honour accepts the findings of the primary judge that the confessional statements were not induced.

MR HUNTER:   Yes.  Well, my submission is that that finding by the primary judge was not open.  It certainly was not exposed.  The reasoning behind it was not exposed by ‑ ‑ ‑

KEANE J:   Sorry, no, my point was simply that on this point the view of the Court of Appeal is unanimous. 

MR HUNTER:   Yes, yes.  No, I accept that.  Yes, of course, but the point ‑ ‑ ‑

KEANE J:   Unanimous in relation to a matter of fact.

MR HUNTER:   Yes.  The point that I seek to agitate on appeal goes to firstly, the obligation to find facts in the context of – in a confession and, secondly, the obligation to give reasons and so for that reason it is contended that a point of special importance is raised.  Significantly, I submit, the applicant gave a number of extremely cryptic answers when asked to explain what the warning meant to him and it was contended below that that was consistent with him not really understanding what was going on, that is, he had been threatened on the one hand before the tapes were turned on and then cautioned once the tapes were turned on.

Now, that was no minor aspect of the applicant’s argument, but his Honour did not address it at all.  Similarly, his Honour did not address the really remarkable issue of the contact visit.  The applicant alleged that his participation in the re‑enactment was induced by that and, again, nowhere did his Honour address the contention that the fact that that visit occurred suggested that indeed the applicant’s account of what had been offered to him was correct.  As I have submitted a moment ago, there are two aspects of the voluntariness of this confession that give rise to points justifying the grant of special leave.  May it please the Court.

FRENCH CJ:   Thank you, Mr Hunter.  Mr Byrne.

MR M.J. BYRNE:   May the Court please.  The applicant, Trevor Griffiths, was on trial for a double murder.  There was a four day pre‑trial hearing held before the learned primary judge to determine whether confessions made by him to police were admissible on that trial.  Following that four‑day hearing, the learned primary judge gave his decision which, in the case of this applicant, consisted of eight paragraphs in total.  If I may take the Court to page 113 of the application book and there in paragraph [126] of the dissenting judgment of her Honour Justice Dalton are set out the eight paragraphs numbered from [42] to [49].

Her Honour analyses what is contained in those.  I will not take your Honour to that in detail as they are in very short compass, but can I make this submission.  The operative paragraph is paragraph [48] of the primary judge at page 115 of the application book where his Honour said this:

I do not accept that anything said by Mr Griffiths was the subject of or as a result of any threat or inducement made by either detective involved.  His conduct was, I find, a result of his own decision made on that day.

The difficulties with that, we submit, are legion. There is nothing in those eight paragraphs or findings as to whether inducements were made in terms of section 10 of the relevant Act in Queensland if they were, what the inducements consisted of, and yet there is that, as it is noted, somewhat ambiguous finding in paragraph [48].

What our complaint is about the failure to give reasons in the context of a double murder trial and the admissibility of confessions is that it cannot properly be seen as transparent, it cannot properly be analysed to ascertain what the actual findings upon the confession and its admissibility were.  The majority of the Court of Appeal approached it this way.  At page 84 of the application book, her Honour, the President, in paragraph [14] of the judgment of the Court of Appeal, used this phraseology:

I would infer –

my emphasis:

from a reading of the reasons as a whole that his Honour –

et cetera.  So, the President is placed in the position where, in the absence of findings, we say, or inadequate reasons, she has to infer from what was said.  The other member of the majority was Justice White and at page 103 of the application book, at the bottom of paragraph [90] on that page, her Honour said:

This was not an express finding by the primary judge that the conversations described by the appellant in the car, said to have induced his confession, did not occur; rather the implication of his Honour’s conclusion –

So the two members of the majority are forced, in my respectful submission, to use terms of inference and going from implication.  We say that in it itself demonstrates what her Honour Justice Dalton said in dissent that there simply was here appealable error by the absence of sufficient reasons being given.

Application book 117 before your Honours contains three paragraphs upon which we rely – paragraphs [134], [135] and [136].  Dealing with them quickly, her Honour identifies, we would respectfully say correctly, in paragraph [134], that paragraph 48 does not sufficiently and properly set out whether there was, in fact, voluntariness in the terms that that phrase is understood legally in this context.  His Honour’s reasons simply do not allow that proper level of analysis. 

In paragraph [135], her Honour, for the reasons, or including the reasons we have given orally this morning, finds a view that there was appealable error because of the absence of adequate reasons and we have set out in our written outline the passage commencing about line 25 beginning:

There is no analysis, elucidation or explanation –

down to the bottom of that paragraph.  That explains, better than I could, the failings in the level of reasons given here.

FRENCH CJ:   So you are asking this Court to, as it were, look through the judgments of the Court of Appeal and directly assess whether the trial judge has made findings attributed to him by the Court of Appeal or gave adequate reasons.  It comes back to the question of, is there a special leave point in a contested characterisation of what the trial judge did by the members of the Court of Appeal.

MR M.J. BYRNE:   I accept that, your Honour but what I say in response is that the importance – and the general importance – is the level of reasons and transparency of reasons that a primary judge charged with hearing a pre‑trial application of this sort involving confessions to in this case – I accept the double murder – whether the absence of specific findings – and this is our number two of the special leave questions – whether the failure by a court to make appropriate findings of fact precludes a conclusion of voluntariness.

In our submission, all three of the members of the Court of Appeal in this case were of the view that there were inadequate reasons.  The level of inadequacy certainly differed, but our submission that the important point is it is not satisfactory and a point of general importance as to whether a person on trial for a matter of this importance must be reduced to having courts infer or by implication work out what was said and what the findings – the important and critical findings of fact necessary for the admission of the confession were.

That is made more so here by the fact that section 10 of the Criminal Law Amendment Act 1894 (Qld) placed the onus on the balance of probabilities on the prosecution of excluding any promise or threat. On the material here, we submit that there could not have been a finding that that provision was excluded. Those are our submissions in respect to that.

The only other matter we seek to agitate – this is in effect what was said by my friend, Mr Hunter – is whether there was this failure to separately consider the two relevant discretions.  In paragraph [136] of the

dissenting judgment of Justice Dalton at record book or application book 117, her Honour finds that there was:

no independent consideration of the factors going to these two distinct discretions.

That does not, in my submission, appear to be controversial.  The reasons by his Honour in respect of this applicant were so brief that there is not reference to authority, there is not reference to the two distinctions, let alone the factors relevant to their exercise.  We say that too is an error and an important error for the consideration of matters of this kind in the criminal jurisdiction.  Unless I can assist further, those are my submissions.

FRENCH CJ:   Thank you, Mr Byrne.  Yes, Mr Byrne.

MR M.R. BYRNE:   If it please the Court, whilst both applicants were co‑accused at trial and joint applicants in the proceedings which are the subject of these applications, there are differing considerations that apply to each and I will, if I may be permitted to, largely but not completely deal with each separately before this Court.

The respondent’s contention, dealing with Mr Playford’s application firstly, if I may, is that the complaints really are distilled, or are properly distilled, in any event, as to a complaint of the form of words used rather than when one looks carefully at what occurred, a failure to consider the relevant factors and apply relevant tests.  It is our submission that the Court of Appeal correctly identified, albeit in the words of Justice White, with some hesitation, that the primary judge had properly exercised the discretion he was being asked to exercise.

It is our submission that to understand that, one needs to look at the voluntariness point first.  That recognises, firstly, the primacy of the considerations of voluntariness in the exercise that was before both the primary judge and the Court of Appeal, and, secondly, that the fact finding that occurred there sets the background for the exercise of the discretion by the primary judge and the flow‑on effect to the Court of Appeal.

As has been noted in the course of discussion this morning, the Court of Appeal – members of the Court of Appeal were unanimous in finding that voluntariness was established by the prosecution.  At application book 47 at paragraph [56], in particular then referring back to paragraph [55], is the finding by Justice Dalton.  Whilst Justice Dalton has, at application book 47, underlined certain parts of the reproduced findings, can I take the time to point to the Court certain other aspects of what we contend are findings from paragraph [21] which appears on application book 46?

Halfway through that paragraph, the primary judge found that the behaviour as displayed in the interviews by Mr Playford did not suggest one way or another whether he had been threatened or the subject of inducements.  If anything, his answers appeared to be a possible claim he had been threatened and acted in self‑defence.  That, in our submission, ties in with the last sentence in paragraph [22], recording that the applicant’s behaviour during the interview and the manner in which he answered were consistent with somebody who wanted to “get it off his chest”.   That is a quotation. 

Earlier in paragraph [22], his Honour noted in the second sentence that the answers given in the interview were those of a man who understood what he was being asked.  There was then a finding in the first, or in paragraph [23], summarised in the first sentence, the conduct of one of the detectives was “to be deprecated”, that was the conduct in relation to the solicitor, Mr Carroll, and the failure to pass on the information of his interest and involvement in the matter.

One moves to paragraph [24], immediately following the underlined passage by her Honour Justice Dalton.  His Honour makes note of the volunteering of further information.  That further information can be found at application book 43 in paragraph [41] in the judgment of Justice Dalton where it is recorded that:

towards the very end of the interview after the recording had initially been terminated, the recording resumes –

The applicant had said he wanted to say something to police.  There followed some further information which Justice Dalton categorised as having been intended to be self‑serving, or seemed to have been so, in any event.  So there certainly were findings that were then made. 

Now in paragraph [56] of Justice Dalton’s judgment she makes reference to paragraphs [17] through to [19] of the primary judge’s reasons.  I will not take your Honours to the primary judgment but they are reproduced at application book 33 in Justice McMurdo’s judgment in relevant respects, paragraph [8], at least the paragraphs [17] and [18] that Justice Dalton referred to.

There were, it is submitted, clear findings made on that issue, as to voluntariness.  At application book 31, Justice McMurdo, in the second paragraph of the judgment going over the page, agreed with Justice Dalton’s reasons, the relevant findings and the ultimate conclusion had been made and then Justice White’s agreement is found at application book 38, paragraph [24].

We submit that the reasoning of Justice Dalton on that point is compelling.  We submit that it was quite open, both to the primary judge and the appellate court in considering the findings of the primary judge to accept that the applicant was somebody who, and again I quote, wanted to “get it off his chest”.  That he volunteered further self‑serving information is consistent with such a finding. 

It is then relevant to consider his later contact with the solicitor, Mr Carroll, when he had been extradited to Queensland.  His Honour found that Mr Carroll had provided advice which, in effect, and I am very much broad brushing it, was to “Don’t talk to anybody, not anybody, even in the cells.  Just don’t say anything about it” and yet he went through and continued with the re‑enactment on 31 January 2009.

It is said against us and, in quoting from part of the judgment of Justice Dalton, that he found himself in a different position by then.  Nonetheless, it is consistent with an expectation that he wanted to get it off his chest and simply would have ignored the advice that was given, had it been given, and had Mr Carroll been put in contact with him.  So the findings are against the applicant.

One of the principal inducements which was said by the applicant to have induced his interview on 28 January was the threat to have his wife charged.  As Justice Dalton noted, that must have been excluded or not accepted by the primary judge, although I accept it is not expressly stated in his reasons.  The ninth line down, in paragraph [56] on record book 47, Justice Dalton said that it:

must mean that the primary judge preferred the evidence of the police as to what was said in the conversation which took place before the recorder was turned on.

That is in light of the concession which we have mentioned in our summary of argument that the prosecutor, appearing as the respondent to Mr Playford’s application at first instance, conceded that if the Crown did not disprove that such a threat had been made the interview must be seen as involuntary.  So nothing was found in favour of the appellant where it is expressly noted that they were in dispute.

It is said in oral argument against us this morning that there was no finding as to the contact visit which was said to have occurred after the re‑enactment.  We take issue with that and we take the Court to the primary judgment at page 14, paragraph [34].  If I can read certain sentences and paraphrase others.  His Honour stated expressly:

I do not accept the evidence from Mr Playford that any police officer made a statement to him in the form which he alleges.

His Honour makes other observations, giving some reasoning as to why.  He continued:

While the provision of the access visit by his family was unusual, I am satisfied on the balance of probabilities that it was done for the reasons advanced by the police and that it had not been held out to him prior to the re‑enactment, or at all, in order to induce him and that it did not induce him.

FRENCH CJ:   Where are you reading from in that passage?

MR M.R. BYRNE:   The primary judge’s judgment at page 14 of the judgment, paragraph [34].  It should be in our material that we had sent.  It is not in the application book, I apologise.

FRENCH CJ:   Yes.

MR M.R. BYRNE:   May I continue?

FRENCH CJ:   Yes.

MR M.R. BYRNE:   Against those findings which are against the applicant at any stage where there is any dispute, one turns to consider the issue of the asserted conflating of the discretionary grounds.  In our submission, it is, with respect, trite to say that the discretions overlap.  Justice McMurdo thought that it was not entirely surprising that his Honour did merge the considerations but also thought that it was not necessarily such an error of law.

The confessions in this application were approached by all parties on the basis that they were reliable.  Reliability is, of course, usually considered to be an important, but it is not the sole, touchstone for the exercise of the fairness discretion.  However, it is our submission that once issues of reliability are removed, relevant considerations overlap or, if you like, merge even more markedly.

The inferred findings by Justice McMurdo at paragraph [11] of her judgment on application book 36 are all made on the basis of being the natural consequence of the expressed findings or of matters that were not in dispute.  Insofar as this application and the other application – that by Mr Griffiths – deals with a point of contested characterisation, it is our submission that what is sufficient reason will always be a line in the sand which is capable of movement.

It is our submission that in both applications that the sufficiency of the findings is such that neither application is clearly one where the Court of Appeal has been in error.  The court in each judgment has sought the basis for the inferred findings and they were, it is our submission, indeed, open.

Once one takes the reliability aspect away and starts to consider what other matters personal to the applicant…..that were said to raise the unfairness as opposed to matters more traditionally aligned with the public policy discretion, such as the conduct of police and the asserted breaches of legislative and subordinate legislative provisions, they all relate back to the proposition of his evidence which he gave on the pre‑trial hearing that he would not have taken part in the record of interview at Albury on 28 January had police notified him of the interest of the solicitor. 

That is the point essentially, and I emphasise “essentially”, made by Justice Dalton in her dissenting judgment at application book 58 and 59, in paragraphs [99] and [100].  Your Honours will see that her Honour speaks at much greater length than I have but I emphasise that is the essential point that her Honour there makes.

Given that all express findings and inferred findings have been against the applicant, given the finding that the applicant wanted to get it off his chest and that he was eager to speak, a likelihood that his evidence that he would have been silent had he been told of Mr Carroll’s involvement and provided with the advice that he ultimately was pales away.  The discretions overlap but the live issues, the real live issues in the matter, given the findings that were made, are those which are usually considered under the head of public policy issues and it is for that reason that it is unsurprising, in our submission, that the primary judge considered or expressly spoke of authorities dealing with the public policy issues only.

Your Honours, they are my submissions in relation to the application for Mr Playford and as your Honours have seen, I have overlapped a little into the matters concerning Mr Griffiths.  But may I move to Mr Griffiths’ application in substance?

FRENCH CJ:   Yes.

MR M.R. BYRNE:   In our submission, a factor which complicates the application before the Court is that the applicant relied upon different specified inducements at first instance as against those relied upon in the Court of Appeal.  At first instance the inducements which were said to have occurred in police vehicles between the Albury Police Station and the airport, and then between Brisbane Airport and the Beenleigh Police Station, they occurred on – I think I am correct in saying – 30 January. 

In the Court of Appeal the inducements which were relied upon were said to have been delivered during the course of the conversation prior to and then other comments made during the course of the interview of 28 January 2009.  There was a change in position, we submit that there was a very sensible change in position because on 29 January the applicant refused to be interviewed by police when he was approached and it may have been seen tactically that that had broken any causative chain in relation to inducements. 

We note the applicant’s written summary of argument continues to assert that those asserted inducements from 28 January in Albury were operative, and seeks the resolution of the application on that basis.  Justice Dalton refused to consider that ground on that basis.  That is found at paragraph [122] of her Honour’s judgment at application book 112.

Justice McMurdo did not expressly refer to the change in position but referred only to the finding of the trial judge.  We submit your Honours would accept she thereby considered only the originally argued inducements, and Justice White noted that generally a party is restricted to matters argued at first instance but went on to consider the issue of voluntariness, taking into account what I have characterised as the newly asserted basis, and that is at record book 103, paragraph [93].

Now, it was in the course of considering the issue on the newly asserted basis that Justice White referred to Victorian and Canadian authority on the topic of, and I quote, “emotional manipulation”.  We accept that which is written against us but it appears to be from the Canadian authority that her Honour borrowed the phrase of “improper inducement”. 

Our submission on the point is that any police questioning of a suspect, including the most gentle and proper of questioning, will often involve a degree of encouragement to speak or to continue speaking and that when suspects are being questioned they will often feel a degree of pressure.  That per se is not the subject of prohibition by legislation or common law.  It is doubtful, in my submission, that that degree or that type of questioning per se is a threat or promise for the purposes of the legislative provision.

KEANE J:   In any event it cannot interfere with the exercise of a free choice to speak.

MR M.R. BYRNE:   Indeed, and that was the point that I precisely about to make, and I thank your Honour.  Her Honour Justice White introduced into her judgment that concept of improper inducement at paragraph [102], page 107 of the application book, but then immediately in the next, and I mean immediately from the next sentence which commenced paragraph [103], noted that:

Even if they were so characterised, the appellant was able to make a free choice –

Critically, her Honour makes the observation that:

He had already discharged any moral duty to disclose the location of the bodies well before –

that interview in Beenleigh.  That is a reference to what is said to be the inducements from 28 January 2009.  Hence, her Honour found there was no “operative inducement”.  Justice McMurdo at page 84 in paragraph [13] referred to the reasons being:

spartan but that does not make them inadequate –

but they were “remarkably economical”.  Nonetheless, her Honour referred to findings that again, we submit, were indeed open in all of the circumstances.  I will not in the circumstances of this application take your Honours chapter and verse through each sentence in paragraph [13] to relate back to the primary findings, but we simply say that they were either express findings that were made, they were the inevitable consequence of express findings that were made, or were matters which were not in dispute.

As to the conflating of the discretions, which is the terminology used by Mr Playford, but in effect the same argument adopted by Mr Griffiths, I do not wish to repeat too much of what – or any of what I have said to your Honours.  Can I simply add these points?  Given that I am responding ‑ ‑ ‑

FRENCH CJ:   You can carry on.

MR M.R. BYRNE:   Thank you.  Your Honours, could I take you to page 113 of the application book, particularly the top of the page is the continuation of paragraph [124] of Justice Dalton’s dissenting judgment.  Her Honour at, I think it is the eighth line down halfway across, noted:

Counsel appearing for the appellant did not seem concerned to properly distinguish or differentiate between the two discretions in submissions made to the primary judge.

Her Honour gives an example which she considered was –

probably the height of opaqueness in relation to this topic –

We simply note that whilst it does not discharge the duty of his Honour to consider the matter properly, he does not seem to have been assisted by counsel who at that time was appearing for Mr Griffiths.  I emphasise that because there was change of counsel through the history of the matter.

Again, reliability was not in issue.  When it is taken out of consideration, we submit that the matters which tend more towards traditional public policy considerations rose to the top.  Bearing in mind the refusal to be interviewed on 29 January and hence, we would submit, any effect that the improper continued questioning that occurred on the 28th had the effect of which was diluted by the time of the impugned interview, it left only one real issue, and that was the issue of tiredness.  His Honour found against the applicant’s assertion that the police’s questioning was not leading, and his Honour found that the applicant made a series of statements which were not the result of prompting questions.

His Honour the primary judge had the advantage of seeing and hearing – I beg your pardon, in terms of this interview, of hearing; it was not video recorded – of hearing that interview and seeing and hearing the applicant in the course of the pre‑trial hearing.  Her Honour Justice White expressly noted that she too had listened to the recording.  Her Honour stated at application book 109, paragraph [89], that the appellant in that court – the applicant here – could:

be heard speaking fluently and without prompting.

There seems to have been little room - in fact, we would say no real room – for the exercise of fairness considerations personal to the applicant on that basis.  We do not deny in both applications that his Honour merged considerations in his expression of findings, but our essential point is that it is neither unremarkable nor an error of law.  Our final proposition is that this indeed is a matter of characterisation and the findings of the Court of Appeal are not so clearly in error as to warrant the grant of special leave.  May I assist the Court further?

FRENCH CJ:   No, thank you, Mr Byrne.  Yes, Mr Hunter.

MR HUNTER:   Your Honours, my learned friend, Mr Byrne, was of course correct to point out the passage in paragraph [34] of the judgment of the primary judge and I apologise for overlooking that.  Beyond that, I have no reply.

FRENCH CJ:   Yes, thank you, and Mr Byrne?

MR M.J. BYRNE:   I have no matters in reply, thank you, your Honour.

FRENCH CJ:   Thank you.

Each of these applications seeks to agitate questions relating to the manner in which judicial discretion to exclude evidence of a confession was exercised.  Each applicant was convicted after a trial of two counts of murder.  At a hearing on the voir dire prior to trial, a judge had declined to reject evidence of a confession.

The decisions of the Court of Appeal turned largely upon its assessment of the sufficiency of the reasons given by the primary judge for the manner in which that judge’s discretion was exercised and the approach to questions of fairness and public policy taken by the judge.  The evaluation of the sufficiency of the primary judge’s reasons by the Court of Appeal depended upon the application of settled principles to the factual circumstances found by the primary judge.

The application does not raise a question warranting the grant of special leave.  In any event, the prospects of a successful appeal are not such as to warrant the grant of special leave.  In each case, special leave should be refused.

AT 12.48 PM THE MATTERS WERE CONCLUDED