Pollard v The Queen

[1992] HCATrans 221

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M53 of 1991

B e t w e e n -

MARK RAYMOND POLLARD

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

DEANE J

DAWSON J -

Pollard(2) 1 6/8/92

TOOHEY J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 AUGUST 1992, AT 9.33 AM

Copyright in the High Court of Australia

MR M.S. WEINBERG, QC:  May it please the Court, in this

matter I appear together with my learned friend,

MR N. CRAFTI, on behalf of the applicant.

(instructed by Simon English)

MR R.A. FINKELSTEIN, QC. Acting Solicitor-General for

Victoria:  May it please the Court, I appear with

my learned friend, MR N. PAPAS, for the respondent.

(instructed by John M. Buckley, Solicitor to the

Director of Public Prosecutions for the State of

Victoria)

MASON CJ: Yes, Mr Weinberg?

MR WEINBERG:  May it please the Court, in this application

it is our submission to the Court that a record of

interview which was received into evidence at the

trial of the applicant ought to have been excluded

and that by reason of the admission of that

evidence, a miscarriage of justice has occurred.

The submissions t.hat were placed before the

Court and which were raised before the Court

earlier in Melbourne before a Court of three

focused on two specific points. The first of them

is the construction of section 464H of the Crimes

Act of Victoria and the second, section 464C of the

Crimes Act.

MASON CJ:  We have read the papers, Mr Weinberg, and we are

familiar with the section, but by all means take us

to it in furtherance of seeking to place the

interpretation you contend for on it.

MR WEINBERG:  If we could deal with the matter in brief

fashion in this way. We say this: we say that the

trial judge ruled that the record of interview was not inadmissible pursuant to section 464H, because

the St Kilda Road police complex was a different

place from the Frankston CIB police station and

that by virtue of that "different place" argument,

the inadmissibility provision contained in

section 464H could not be invoked.

That emerges from the application book at

page 236 and 237, but if I can just take the Court

to the bottom of page 236, where His Honour's

conclusion is on this aspect of the case,

His Honour said this:

In my opinion the provisions of

Section 464H apply to the "place where

facilities were available to conduct an

interview". They clearly apply equally to the

Frankston CIB and to the St Kilda Road complex. They apply in my view separately.

Pollard(2) 2 6/8/92

The activities at each place must be looked at

within the limitations of 464H(l)(d). Had the

video been conducted at Frankston CIB after

the unrecorded admissions, that 464H(l)(d) as

interpreted by Bland, J. and in the light of

the observations of Hampel, J., then "the

place" would have been the same and it would
be clearly arguable that the illegality of the

earlier unrecorded admissions could have

tainted the later recorded record of view.

But here a different place is used. It

was properly used, not to avoid the provisions

of 464H but to enable a video to be conducted
of the record of interview, the specific

purpose and reason for the transfer of the

accused from one place to the other.

Accordingly, in my opinion this is a new

place for the consideration of 464H. That is,

that any admissions or confessions made at

St Kilda Road to be admissible must be

recorded. They were recorded. They are

therefore in my opinion admissible. I find

that the failure to comply with 464H(l)(d) at

Frankston CIB does not affect what happened at

St Kilda Road complex.

And so forth. So, it is clear in our submission

that the learned trial judge, in dealing with the
contentions of counsel at section 464H, required

the exclusion of this confession reasoned

essentially on the basis that St Kilda Road was a

different place for the purpose of the statute, and

that was - - -

BRENNAN J: Which confession?

MR WEINBERG:  The confession - I should not say confession,

Your Honour - there is a record of interview which

contains a series of what could be regarded as

admissions; there is no confession.

BRENNAN J: That is the relevant document?
MR WEINBERG:	Yes, Your Honour.  It is not a document, it

was not placed before the jury as a document; it is

a video-taped record of interview which ran for

about two and a half hours, it commenced at St

Kilda Road at about 12.25 pm on the day in

question, went to about 3 o'clock. There had been

an earlier conversation at Frankston CIB - - -

BRENNAN J:  I appreciate that, but the point is that

section 464H, as I read it, identifies the relevant

place by reference to the place where the

confession, the admissibility of which is in

Pollard(2) 3 6/8/92

contest, occurred, and so do we not need to
identify first what is the confession or admission

to which it is said section 464H applies.

MR WEINBERG:  We say that it is the admissions, if one

concedes that they are admissions for these

purposes, which were made at St Kilda Road. We say

that section 464H(l)(d) required the exclusion of

those admissions, because we say that what occurred at St Kilda Road was relevantly, within the meaning of the statute, part of the - I will use the

expression in the statute - it was during the

questioning - - -

DAWSON J: And that is what the section fastens on to, not

that there has to be a confession, but it is the

questioning that it fastens on to.

MR WEINBERG:  Yes, Your Honour.

DAWSON J: And the confession, of course, during the course

of that questioning.

MR WEINBERG: It is a combined concept, Your Honour. It is

"during questioning at a place where facilities

were available to conduct an interview". What we

are about to say is that the Court of Appeal did not, in terms, deal with the matter in quite the

same way that the learned trial judge did. The

learned trial judge simply said, "They're different

places, that is decisive, one can treat them

separately provided the later interview and the
questioning occurred at a place where it was

recorded."

DAWSON J: That is to miss one of the purposes of the

section.

MR WEINBERG: Indeed, Your Honour.

DAWSON J: As I understand it, the shorter trials committee,	whose recommendations lie behind, at least in part,	this section, sought to avoid voir dires which have
been lengthening trials considerably. But, of course, if you have a questioning broken up you do not eliminate that evil because you have the pressure, the inducements, which occur during a questioning which is not in evidence.

MR WEINBERG:  Yes, Your Honour, it is exactly the same thing

as if it all occurs at the one place and there is a lead-up conversation which is not recorded and then

the machine is turned on at a later stage. You

still have the same voir dire, the same debate

about what transpired before the recorder was

turned on.

Pollard(2) 4 6/8/92

DAWSON J: And so it does not achieve one of its purposes.

MR WEINBERG:  It certainly does not achieve one of its

purposes if the section is construed in the way
that the learned trial judge construed it by

saying, "It doesn't matter what happened at

Frankston, St Kilda Road is a separate place for

the purpose of the statute. It was recorded there,
therefore what occurred at St Kilda Road is

admissible. Don't worry about what happened at

Frankston because the Crown aren't seeking to lead

it at all." That is the reasoning that the learned

trial judge adopted, in essence, in our submission.

The Court of Appeal did not adopt precisely that approach and if we could identify the manner

in which the Court of Criminal Appeal dealt with

it, it is set out in the judgment of the Court of

Criminal Appeal in the application book at

pages 438 to 440. What the Court of Criminal did

was firstly to recite what the trial judge had

found - that appears half-way down page 438 -

without expressly approving or disapproving of the

reasoning adopted by the learned trial judge.	Your
Honours will see that quotation half-way down	page
438 and there is reference to "questioning at	a
place" in the next paragraph.

And then the court went on to say at the top of page 439 that one can find difficulties in the construction of section 464H. It then recited the

events, the fact that he was questioned at

Frankston. It -

was a place where facilities were available to

conduct an interview.

It could have been recorded and it was not

recorded. The Crown did not attempt to lead any of

that. They spoke about the fact that in the course

of the journey between Frankston and St Kilda Road

the applicant made a statement to the police which

they characterize as an admission. We do not

concede that it is necessarily an admission, but it

is certainly capable of being regarded as such by

the jury.

Then one goes to page 440 and they then cite

what occurred at St Kilda, and the court says:

The applicant was questioned at St Kilda. That was a place where facilities were

available to conduct an interview. The

questioning was tape recorded: the evidence
of the confessions or admissions were not
rendered inadmissible. Section 464H(l) could

have rendered that evidence inadmissible only

Pollard(2) 6/8/92

on the view that the questioning at Frankston
and at St Kilda was one and indivisible, but

as we have already said no reason appears why

it should be so regarded.

When they say, "As we have already said", they are

referring back to an earlier statement which

appears at page 439 half-way down the page.

Now, we say several things about that to this

extent: the expression "one and indivisible" - I

do not know whether that was an expression that was

used by counsel, or whether that was an expression

that was introduced by the court itself in

summarizing their perception of what had been said

by counsel, but it is not quite identical to the

words "during questioning" which are the statutory

words. In our respectful submission, those words

"during questioning" bear considerably greater

breadth than the proposition that there must be one

and indivisible entity capable of being described

as a single act of questioning; because

questioning is a process, in our respectful

submission. By its very nature it involves the

asking a series of questions. Questioning does not

cease to be questioning because somebody goes out

and has a cup of tea or uses a comfort facility to

break the questioning for a period of time. That

is not decisive as to whether what is occurring is

during questioning for the purpose of the statute.

There are, however, other indicia which need

to be looked at to determine whether what is

occurring is during questioning, and in this case

these facts are clear and incontrovertible.

It was the same police officer who questioned

?-tr Pollard at the Frankston Police Station for an

hour and a half on the morning, the same morning,

within a couple of hours of the commencement of the questioning or the continuation of the questioning,

at St Kilda Road - same police officer - the

subject-matter of the questioning was exactly the

same; it was the incidents that had occurred three

nights earlier at Seaford. The suspect was, of
course, the same. It occurred during the same

period of custody, the one unique period of custody

which is prescribed by the Act. We say, on any

view, this was during questioning, and the Court

has simply said "no reason appears why it should be

regarded as one and indivisible". I do not know

whether that means that no reason was advanced, or

that the Court could not think of a reason, but we

cannot think of a reason why this should not be

regarded as during questioning, for the purpose of

this statute.

Pollard(2) 6 6/8/92

Now, it may be said that means that what we

are talking about is the application of the statute

rather than a question of construction. But we

submit not. We submit that by its decision, on the

facts of this case, the court has given a meaning

to the words "during questioning", which is a very

narrow meaning, and the court has effectively said,

"If there is some kind of discernible break between

part of the questioning and another part of the

questioning, that eradicates the operation of

section 464H and the police need not worry about

that. They can commence a lead-up interview, they

can question for an hour. Then there is a distinct

break of an hour or two, then they come back and

give their caution or their warning, switch on the machine and you have got a new process. It is not

"during questioning". And if that is the way in

which the section is being construed then, in our

respectful submission, it is being misconstrued and

section. it is not just a matter of the application of the

So what we propose to do in our very brief

submissions on this point is to give the Court

about eight distinct reasons why both the decision

of the trial judge and the decisio-n of the Court of
Criminal Appeal cannot withstand scrutiny and why
this record of interview, as played to the jury, as
tendered, ought to have been excluded as a matter

of law pursuant to the section, and are reasons are

as follows:  number one, we submit that the word

"place" as it appears in section 464H(l)(d)

includes the words "places".

We make that submission for these reasons -

for this reason initially. The first reason: we

say that one can get guidance as to the meaning of

.the word "place" in that section from similar use

of the word "place" in other provisions surrounding

this provision, and if one goes to section 464A one

will see - this is part of the same division of the

Act; 464A(4)(d) indicates that one of the factors	which is to be taken into account in determining
whether the police have breached the time limits
which are set out in the Act, namely, that they
have kept a person for no longer than a reasonable
time in custody. Paragraph (d) says that one of
the matter~ to be taken into account is:

Any need to transport the person from the

place of apprehension to a place where

facilities are available to conduct an

interview or investigation.

It is exactly the same expression:  "a place where

facilities are available to conduct an interview or

investigation". If the word "place" in that

Pollard(2) 7 6/8/92

paragraph does not include "places", then in our

submission, what we have in this case is an

unlawful detention ex hypothesi, because he was

taken not just to Frankston but he was also taken

to St Kilda. It cannot be that for the purpose of

treating the width of the police powers, one treats the word "place" as including the word "places" for

paragraph (d) of section 464A(4), but for the
purpose of considering the rights of the accused,

one treats the word "place" as being singular.

That is our first point.

Our second point is that section 37 of the

Interpretation of Legislation Act of Victoria 1984 provides in the usual way that singular includes the plural unless there is an intention

demonstrated in the Act that it should not. It is

the usual form; the Court will be well familiar with that provision. We say there is nothing in

this Act to demonstrate that the word "place"

should not include the word "places", and we simply

rely upon that statutory provision.

Our third proposition as to why "place" should

include the word "places" for the purpose of

paragraph (d) is this: it is plain within

464H(l)(d) that other words contained in that

section which are in the singular must necessarily

be read as including the plural.

We take the Court to the words "confession or

admission". Your Honours, in our respectful

submission, the word "admission" in

section 464H(l)(d) plainly includes "admissions",

because a person may make a series of admissions

during the course of a questioning. Indeed, it is

not at all inconceivable that he could make a

series of confessions to different offences during

the course of one process of questioning.

So we say if a singular word such as "admission" in paragraph (d) means and can mean

"admissions" for the purpose of the section, why

should not "place" include "places"? We also say

in respect of that particular proposition that the

words "investigating official" which appear at the

commencement of section 464ij(l) must include

"investigating officials". It cannot be that the
section ceases to have operation because a
confession or admission is made to investigating

officials rather than to an investigating official.

So there are many words within the section

which are expressed in the singular and are

intended to include the plural, and we simply say

there is no reason why the word "place" should not

be read as though it included "places".

Pollard(2)	6/8/92
TOOHEY J:	How crucial is that to the Court of Criminal Appeal's reasoning, Mr Weinberg; the notion of
"place" versus "places"?
MR WEINBERG:	It is difficult to say, Your Honour, because

the court referred in terms to what the trial judge

had said. It neither expressed approval nor

disapproval in terms of what the trial judge had

said, and it then went on to deal with the matter

on the slightly different basis of one and

indivisible, and the meaning of the words during

questioning.

What I am doing at this time is anticipating

or dealing with the trial judge's reasoning, saying

we can attack that - and I will move to attack the

Court of Criminal Appeal in just one moment - but I

do accept that a reading of the Court of Criminal

Appeal does not tell us whether the court has

approved the reasoning of the trial judge or has

not approved the reasoning of the trial judge; it

simply recites it. One would have thought if the

court had thought there was something wrong with

that reasoning, the court would have said so. That

is the comfort perhaps that I draw from the
proposition that the court has by implication at

least approved that reasoning. I do not know if

that -

TOOHEY J: Yes. I suppose the next question - and maybe you

are coming to that, and if so, leave it - is: if

"place" does mean "places", how destructive is that

of the conclusion reached by the Court of Criminal

Appeal?

MR WEINBERG:  It knocks out one peg upon which it could be

said the judgment rests, and we will knock out the

other peg if we are able to in just a moment when

we come back to the other part of the argument, if

Your Honour will bear with me for a moment. The other matter that we say in relation to

the word "place", Your Honours, is that in its

ordinary and natural construction, it seems to us

with respect that that word was not intended to

create a dichotomy between a place and another

place, such that if a suspect is moved from

Frankston to St Kilda Road, one, as it were,

surgically dissects the exercise and says, "That's

the end of the operation of the section."

After all, Your Honours, we note that the word

"place" itself is a very difficult and elusive

concept. It is a plain English word but a place

can be a part of a room; it can be a room within a

structure; it can be a building; it can be an

Pollard(2) 9 6/8/92

adjoining building: it can be two buildings

separated within a particular place. If you ask

somebody in London - this example was suggested to
me the other day - whether Melbourne is a place
they would say Melbourne is a place. So it all
depends on your starting point as to what is meant

by the word "place". We submit, in our respectful

submission, that on its ordinary natural

construction, the word "place" as it appears in

paragraph (d) was not intended to delineate, hive

off and create a dichotomy for relevant legal

purposes with other places.

If a person is taken from point A to point B,

place A to place B, there is no reason why the

section should cease to have operation in the way

that the trial judge suggested.

DEANE J:  It is quite clear that if there is a place where

facilities were available, following a place where

facilities were not available, you do dissect for

the purposes of (l)(e).

MR WEINBERG:  Yes, Your Honour, (c) and (e) are exceptions

to what we say is the requirement that one records.
(c) is for the situation where the· suspect blurts

out a confession before there is any opportunity to

switch on a recorder.

DEANE J:  Now, why on your argument, if, in the questioning

at Frankston, the accused had said nothing and in

answer to a question in the car between Frankston

and St Kilda he had said, "I admit it is a fair

cop", and then when he got to St Kilda the first
question was, "In the car you said it was a fair

cop" and he said, "Yes, I did say that but I am

going back on it". Why would not (l)(e) apply to

make what he had said in the car admissible?

MR WEINBERG:  Your Honour, (l)(e) would prima facie render

admissible the confirmation which has occurred on

tape at St Kilda Road of what has been said
earlier.	On our argument - - -

DEANE J: And (l)(d), on your argument, apply to the

questioning - - -

MR WEINBERG:  Yes, Your Honour, even though no admissions

had been made on that occasion, because we say the

statute is plainly designed to achieve a purpose

and that purpose is that if you are at a place

where one can conduct an interview and where there

are recording facilities available you should use

them. We will come to the second reading speech

and matters of that kind, but those sorts of
propositions, as expressed by the minister in the

course of the speech in Parliament, make it plain

Pollard(2) 10 6/8/92

that was the purpose of this legislation. It was

to ensure that there was universal tape recording

of interviews, at least at those places, where such

facilities were available and could be used. It

was to stop what had become a great abuse, a great

vice, the very vice this Court dealt with in a

different way in McKinney's case.

DEANE J: But one can see problems. I mean, say, for

example, what had happened at Frankston had been

the police saying, "The complainant has lodged a

complaint about John Brown, commonly known as

'Butch'. Is that you?", and he had said, "Yes,

that is me, I am John Brown commonly known as

'Butch'" and the police then said, "Well, we had

better go into a formal interview now". On your

argument, would it all be excluded?

MR WEINBERG:	Your Honour, the position is that the recording only has to be switched on at a point
which is set out in subsection (1). That is when:

a confession or admission made to an

investigating official by a person who -

(a) was suspected; or

(b) ought reasonably to have been suspected -

of having committed an offence.

DEANE J: Well, assume that is satisfied.

MR WEINBERG: Sorry, Your Honour, because I thought that

Your Honour's example was put on the basis that the person might not have been suspected until he had

said something.

DEANE J:	No, assume he is suspected.
MR WEINBERG:	Your Honour, if he is suspected, then before the police speak to him, if he is in an interview
room where they have a recorder, they should switch
the machine on. That is what the Act, in our
submission, plainly contemplates and, Your Honour,
the full answer - - -
DEANE J:	But it is not only in an interview room where they

have got a recorder, it is outside in the charge

area in a place where there is an interview - - -

MR WEINBERG:  There is a better answer to Your Honour's

point if I may draw Your Honour's attention to

section 464H(2), which provides residual discretion

to the court:

A court may admit evidence of a confession or

admission otherwise inadmissible by reason of

Pollard(2) 11 6/8/92

subsection (1) if the person seeking to adduce
the evidence satisfies the court on the

balance of probabilities that the

circumstances -

(a) are exceptional; and

(b) justify the reception of the evidence.

And the example that Your Honour gives might very

well fall within subsection (2). It was just that

kind of situation which the Parliament, in our submission, envisaged could occur from time to

time,.where a strict interpretation of the statute

might lead to unfairness to the Crown or absurd

results. But this is not a case where

subsection (2) was ever invoked or could be

invoked.

BRENNAN J:  To take Justice Deane's example perhaps another

way:  if the police go to a house suspecting the

occupant of being guilty of an offence and ask him

to accompany them to the police station, and in the

car he says, "What's all this about?" and they say,

"We have a complaint about you in relation to so

and so", and he then makes a confession on the way

to the police station, and when they get to the

police station, they record it.

MR WEINBERG:	Yes.
BRENNAN J:	Now, as a matter of construction, does

section 464H(l)(d) apply?

MR WEINBERG:  No, Your Honour, because a police car would

not be a place where facilities were available to

conduct an interview within the meaning of the

section.

BRENNAN J:  But part of the questioning takes place then in

a place where there are facilities. Part of the

questioning is in the car; part of the questioning

is at the police station.

MR WEINBERG:  Provided the recorded is switched on from the

time that the questioning occurs at the place where

facilities are available to conduct an interview,
then the evidence of what is there said is

admissible and the earlier admission may be

received, pursuant to paragraph (e), if it is

confirmed on the tape.

BRENNAN J:  I understand that that would be the object, as

it were, at which the Act is firing, but your

argument, as I understand it, is that there is but

a single body of questioning in this case.

Pollard(2)	12	6/8/92
MR WEINBERG:	Yes.	In this case, Your Honour, because the

questioning has occurred at places where facilities

were available for the purpose of conducting an

interview. Our argument is that there is a single

body of questioning for the purpose of what

occurred at Frankston and what occurred at

St Kilda - - -

BRENNAN J:  I appreciate that is the argument, but the words

"at a place", as I understand it, are words which

you are using to qualify ''questioning", is that

right?

MR WEINBERG:  Yes, Your Honour.

BRENNAN J: And that the questioning, in this case, is a

single body of questioning?

MR WEINBERG: In this case, yes, Your Honour.

BRENNAN J:	Even though it took place at two places?
MR WEINBERG:	Yes, Your Honour.
BRENNAN J:	So you are interpreting it as questioning at two

places where facilities are, et cetera?

MR WEINBERG:	Yes, Your Honour.
BRENNAN J:	Now, what happens when there is questioning at

two places, at one of which facilities are not

available and the other of which they are?	How
does section 464H(l)(d) then apply?

MR WEINBERG:  There is no difficulty about receiving only

the questioning which is recorded at the place

where facilities are available, because there is

nothing in the Act to require the exclusion of that
material in those circumstances. The vice that

occurred in this case was that the police could

have and should have recorded the conversation at

Frankston pursuant to the requirements of the Act.

Because they have not done so, in our submission,
the Act catches the totality of what occurred.	The
Act does not catch the totality of what has

occurred, in Your Honour's example to me, because

the first interview is not at a place where there
are facilities available for questioning, therefore

it is not "during questioning at a place" or places

"where facilities were available to conduct an

interview".

The words, "where facilities were available to

conduct an interview", are inextricably linked to

the word "place", in our submission. So,

Your Honour's example creates a different result,

in our respectful submission. What this Act

Pollard(2) 13 6/8/92

catches, in our submission, is the situation where
the police are engaged in a single continual

process of questioning - and I use "continual"

quite specifically, as distinct from "continuous -

at a place or places, each of which is a place

where the facilities were available for recording

and were not used.

DAWSON J:  Do you mean facilities available for recording or

to conduct an interview?

MR WEINBERG:  I am sorry, Your Honour, to conduct an

interview.

DAWSON J: Every police station would have facilities

available to conduct an interview and what it means

is if you take a person to a police station you

record - - -

MR WEINBERG:	Yes, Your Honour, that is so.
DAWSON J:	In the car or getting there, that is different.
MR WEINBERG:	Yes, Your Honour, that is so and that is our

submission on that aspect.

DAWSON J: But the policy behind the section was to avoid

any question about the voluntariness of

confessions, was it not?

MR WEINBERG:  The voluntariness or the fairness,

Your Honour.

DAWSON J: Fairness, taking all the tests - - -

MR WEINBERG:  All aspects of it, or the problem of so-called verbals, Your Honour.

DAWSON J: Well, the three, voluntariness, fairness and

Bunning v Cross.

MR WEINBERG:  Yes, Your Honour, that is so. It was to put a

stop to the lengthy delays that were plainly taking

place and the concerns of miscarriages of justice

and the concerns the police were being falsely

accused, all these matters.

DAWSON J: Yes, you get voir dires in about 50 per cent of

trials which lengthen the trial by about twice the

length.

MR WEINBERG:  We had one in this case because the police did not put a recorder on at Frankston.

DAWSON J: Precisely.

Pollard(2) 14 6/8/92

MR WEINBERG:  If they had put a recorder on at Frankston

there would have been no voir dire.

DAWSON J:	So the policy is that either the confession or, in the exceptional circumstances, the confession in
the car, the confirmation is recorded and if it is
not that is - - -
MR WEINBERG:	And, Your Honour, we gain strength, in our submission, in what Your Honour is putting to me
from the fact that (c), (d) and (e), none of them,
deal with the situation that occurred in this case.
(c) and (e) are the exceptions to the rule that you
have got to tape-record a conversation. (c) and
(e), they are the exceptions. There is no
exception provided in the Act itself for a
situation where somebody has been questioned at a
place where there are facilities available for conducting an interview, not recorded, and then,
later on, questioned again. That is the one
situation that is not dealt with in the Act.

DAWSON J: And the fact is if you take a person to one

police station and extract from him a confession,

it is not recorded, and then take him to another

one where there are facilities and conduct

what - - -

MR WEINBERG:  It is called the "police station shuffle",

Your Honour, and it is a vice that we submit that

the judgment of the Court of Criminal Appeal has

given, in effect, a charter to police to avoid

these provisions entirely simply by taking a person

from one police station to another provided there

is some kind of break in the questioning.	It seems
that an hour's break, as far as the Court of

Criminal Appeal is concerned, means it is not

questioning, it is not during questioning, even

though the same police officer, same subject-

matter, same suspect, same day, same custody.

DAWSON J: What was the voir dire about in this one?
MR WEINBERG:	The voir dire in this case involved a series

of challenges. It was based on the proposition

that at Frankston the applicant had been

intimidated and that the confession was - I should
not say "confession", Your Honour, there is no

confession. But the admissions that were capable

as being regarded as admissions were extracted by

virtue of intimidation. That was one part of the

voir dire.	A second part of the voir dire was
based on unfairness.	The former or old discretion,

as it has been called, and we will come to that a

little later on when we deal with the second leg of

our argument.

Pollard(2) 15 6/8/92

But the judge found, as a fact, that the

claims by the applicant that he had been shouted

at, threatened and whatever at Frankston, he was

satisfied to the requisite degree that the

confession was voluntary in that sense. So that

kind of voluntariness is not in issue, was not in

issue before the Court of Criminal Appeal and is

not in issue here. But what is in issue is the

non-compliance with section - - -

DAWSON J: That sort of debate, lengthy debate that the

section was designed to eliminate.

MR WEINBERG:  So we say, Your Honour, yes, that is our

submission. If we can come back to the words,

"during questioning", Your Honour, the Court of

Criminal Appeal has said no reason appears why what
occurred here should be regarded as one and

indivisible.	We do not say that it is one and
indivisible.	We do not have to say. We do not

have to go that far. We do not have to say it is one and indivisible. What we have to say is that

it is during questioning and questioning, as we

have said, sure, in our respectful submission,

there are questions of degree involved in

questioning but if this is not during questioning

then what is, in our respectful submission?	Why
does the fact that the police have stopped

questioning him for an hour, why does the fact that

Mr Minisini has stopped asking him questions for

one hour or two hours mean this is not during

questioning?

If it had all happened at Frankston, if

everything had occurred at Frankston, and

Mr Minisini had gone out for an hour and had some

lunch and come back and resumed the interview, that

would have been during questioning, in our

respectful submission. Why does the fact that he

has been taken from Frankston to St Kilda Road and

there is a break of an hour or two mean that it is

not during questioning for the purpose of the

statute. We cannot engage the Court of Criminal Appeal

because we do not know what they had in mind. The

court simply said no reason has been advanced as to

why this is one and indivisible. Well, I have

given the Court at least six reasons, in our

respectful submission, as to why it is not one and

indivisible, and I do not know what was in the

court's mind when it said no reason has been

advanced.

I do submit this: the onus does not rest upon

the applicant to advance reasons as to why it is

one and indivisible. If the court was under that

Pollard(2) 16 6/8/92

misapprehension, then that is a fundamental error

because this is not a question of fact for the

purpose of the exercise of the unfairness

discretion or the Bunning v Cross discretion. This

is a matter of fact finding for the purpose of the

construction of a statute on which no onus rests

upon the accused. It is not for the accused to

show that this was during questioning.	It is not a
matter of onus in the strict sense at all.	It is a
matter of fact finding.

DEANE J: Could I just take you back. Does not (e) raise a

bit of a problem for your "one and indivisible"? I

mean, go back to the example I gave you and make it

a bit better.

MR WEINBERG:  Better from whose point of view, Your Honour?

DEANE J: Better against you.

MR WEINBERG: That is not better, Your Honour.

DEANE J: Take the case where he is questioned at Frankston,

admits nothing, and that is tape-recorded, and the

police say, "Well, there are a few things there

that are relevant, that we really should get this

on video." So they then put him in the car to take

him to St Kilda where he is questioned on video,

but in between in the car, he makes the classic

admission, "I suggested it is a fair cop. I did

it." And then when he gets to St Kilda they say to

him, "You made that admission", and surprisingly he

confirms that he did. Now, unless you are going

to exclude what happened in the car, you have to

say that you can divide the questioning.

MR WEINBERG:  You exclude what happened in the car because

you are excluding what happened at St Kilda Road,

and you are excluding what happened at St Kilda

Road because of the failure to record at Frankston,

which is a place where facilities were available.

So you achieve the result of excluding -

DAWSON J: But the example was it was recorded at Frankston

on tape.

MR WEINBERG:  I am sorry, it was recorded at Frankston.

DEANE J: But it was not recorded in the car. Well now, if

it is one indivisible - - -

MR WEINBERG:  But it is not at a place where facilities were

available for recording, Your Honour, where the

admission was made.

Pollard(2) 17 6/8/92

DEANE J: That is the point I am trying to make with you.

There is in that situation a need to acknowledge that there is not an indivisible.

MR WEINBERG:  Your Honour, I cannot say that any

construction of this statute will achieve

DAWSON J:  Why can you not say there was one questioning

which took place at different places?

MR WEINBERG: Well, I certainly say there was one

questioning which took place at different places.

I do not say that for the purpose of the

statute - - -

DAWSON J: One of which had no facilities.

MR WEINBERG:  Yes. And, Your Honour, I cannot make the

statute work 100 per cent either way, but neither

can you. The point about it is that whatever

examples one comes up with, whichever approach one

comes up with, the statute is going to produce

anomalies because it is a statute.

DEANE J:  But it does not really answer to say there was one

questioning that took place at different places

because if·you say that, you are in difficulty
because the next question will be, "Well now, what

took place at facilities where", and so on - - -

MR WEINBERG:	Yes, Your Honour, I understand that.
DEANE J:	- - - and you will be landed with "at St Kilda".
MR WEINBERG:	I understand where Your Honour is leading, and

all I am saying is I am content to confine myself

to the facts of this particular case.

DEANE J: Well, I was really warning you against adopting

what Justice Dawson put to you in so far as I was

concerned, I - - -

MR WEINBERG:  Your Honour, I cannot try to win both yourself

and Justice Dawson simultaneously if Your Honours'

minds -

DAWSON J:  I see the difficulty.

MR WEINBERG:	- - - are working in different directions. will settle for the proposition that in the facts	I
of this particular case Your Honour's example does

not cause me a problem, and that is the best I can

do with it and hope that Your Honours will

separately reason in your own ways towards a result

which is desirable from the point of view of the

applicant.

Pollard(2) 18 6/8/92

Your Honours, I will not take the Court through the second reading speech, but we

understand our friends have put it on their list of
authorities and the Court has it. What we say is

that there are passages in the second reading

speech which confirm what we have said in response

to Mr Justice Dawson, that the intent was the

universal recording at places where facilities are

available. That was the plain intent as

exemplified in the second reading speech. I do not

know how helpful these sorts of very broad
statements by parliamentarians are but, to the
extent that they appear, they are consistent with
what we are putting to the Court.

Your Honours, could we also say this: the construction which we urge upon the Court in

relation to the words "during questioning" is a

sensible construction, because the narrow view

adopted by the Court of Criminal Appeal really does

create another kind of very grave difficulty; not

just the problem that Your Honour Justice Dawson is

referring to, of lengthy voire dires and not

solving the problems which the legislation was

designed to solve, but real unfairness.

If the mere fact that you move from one police

station to another, or the mere fact that there is

a separation in time between earlier questioning

and later questioning means that you treat the two

separately is decisive on the question of

section 464H, then what you have is the very

problem which has been identified in other courts,

in other places, as the problem of successive

confessions, compounded to a great degree by the

interpretation placed upon this section by the

Court of Criminal Appeal.

Now, that problem arises this way: a person is

spoken to by the police; he is given no caution of

any kind; the conversation is not recorded and he

makes admissions - not an uncommon situation a long

time ago, we thought, but it seems to be occurring

again - and subsequently the police bring in the

tape recorder, give him his full caution and, what

does he do, not surprisingly, he repeats his

admissions. Now, that is a plain fact of human

nature and I am not asserting it from the bar

table, it has been recognized, time and again, in the authorities, as a factor that has to be taken into account in determining whether to admit

confessions in these sorts of cases.

Could I, without taking the Court to lengthy passages, just note that Mr Justice Smith, in the

case of Reg v Amad, (1962) VR 545, at pages 548 to

549, recognized exactly that phenomenon in

Pollard(2) 19 6/8/92

excluding evidence of a third and fourth

interrogation in circumstances where there was no

impropriety associated with those interrogations,

but there had been earlier improprieties in

relation to the first and second interrogations,

His Honour reasoning that having made the

confession as the result of a failure of police to
question him properly, of course he is going to

repeat the confession, or the admission, and at the

bottom of page 548 this passage appears:

Those conducting the third and fourth

interrogations were not guilty of the

improprieties that took place during the first

and second interrogations. Before each of

those later interrogations, Amad was

cautioned, and in neither of them was he

submitted to cross-examination; moreover, he

now says -

this is on the voire dire -

that what he told the police in the two later
interrogations was true. Nevertheless, the

Crown's position in relation even to these

later interrogations is not free from

difficulty. The third and fourth

interrogations took place, it is true, at

Amad's request, or suggestion, which was prompted by advice from his sister that he

should tell the police the whole truth; but

one of the factors which in combination

persuaded him to accept and act upon that

advice was almost certainly the circumstance

that he had already admitted to the police in

the second interrogation some of the main

matters constituting the case against him;

indeed, the admissions made in the third and

fourth interrogations, so far as they are
important, are in substance little more than

an expansion of the admissions obtained in the

second interrogation. Accordingly, the proper	conclusion, in my view, is that the
admissions -

should be excluded.

That is the problem of successive confessions

or successive admissions, made more graphically

clear by a dissenting judgment in the United States

Supreme Court in Oregon v Elstad, 470 US 298, a

decision handed down in 1985. Could we take the
Court to the judgment and in particular at

pages 324 and 325 onwards. I will not read the

very strong language or all of it, but

Mr Justice Brennan, speaking on behalf of himself

and Mr Justice Marshall with Mr Justice Stevens

Pollard(2) 6/8/92

the background to this. also dissenting, the majority - if I could just set

This case was about successive confessions.

It was about a person who was not given his Miranda

warnings at all initially, made admissions, then

was given his full warnings and repeated his

admissions. There had been a line of authority in

the United States going back 20 or 30 years to the

effect that the failure to give the Miranda

warnings the first time and the fact that he is
later given that caution and repeats his admissions

does not cure the problem.

You have got to do something to cure the

problem because of the clear evidence that there is

a causal connection between his having already let
the cat out of the bag, having already made the

admission, and his willingness to repeat the

admission after being cautioned. The caution is a

dead letter. The United States Supreme Court

overturned that doctrine in this case by majority,

but Mr Justice Brennan said this at page 324:

The Court today sweeps aside this

common-sense approach -

which is the last 20 years of judicial rulings -

as "speculative" reasoning, adopting instead a

rule that "the psychological impact of

voluntary disclosure of a guilty secret"

neither "qualifies as state compulsion" nor

"compromises the voluntariness" of subsequent

confessions. So long as a suspect receives

the usual Miranda warnings before further

interrogation, the Court reasons, the fact
that he "is free to exercise his own volition

in deciding whether or not to make" further

confessions "ordinarily" is a sufficient

"cure" and serves to break any causal

connection between the illegal confession and

subsequent statements. The Court's marble-palace psychoanalysis

is tidy, but it flies in the face of our own

precedents, demonstrates a startling

unawareness of the realities of police

interrogation, and is completely out of tune

with the experience of state and federal

courts over the last 20 years. Perhaps the

Court has grasped some psychological truth

that has eluded persons far more experienced

in these matters; if so, the Court owes ~n
explanation of how so many could have been so

wrong for so many years.

Pollard(2) 21 6/8/92

Your Honours will gather that His Honour

Mr Justice Brennan was not impressed with the reasoning of the majority.

His Honour over the next two pages sets out the reasoning why subsequent confessions made after

a person has been warned, when he has already

blurted out his confession without having been

warned, really are causally linked and you have to

establish a break in the chain before you allow

them to be received. That is all set out at 325 and 326. Then at 328 through to 332, His Honour

points out - and I will just read the beginning of this at 328:

Our precedents did not develop in a

vacuum. They reflect an understanding of the

realities of police interrogation and the

everyday experience of lower courts. Expert

interrogators, far from dismissing a first

admission or confession as creating merely a

"speculative and attenuated" disadvantage for
a suspect, understand that such revelations

frequently lead directly to a full confession.

Standard interrogation manuals advise that

"(t)he securing of the first admission is the

biggest stumbling block ..... " If this first

admission can be obtained, "there is every

reason to expect that the first admission will

lead to others -

He goes on to cite numerous American interrogation

manuals, much as was done in Miranda, as to how

desirable it is to get the first admission. Once

you have got the first admission, he is going to

repeat it.

Now that, with respect, is exactly what

happened in this case. The first confession or
admission was obtained at Frankston and it was

obtained in gross breach of a number of the

provisions of this statute, and it is scarcely

surprising, therefore, in our respectful

submission, that when he is asked the very same

questions at St Kilda Road, an hour and a half

later, after being given warnings - the footnotes

are very interesting, Your Honours, I will not take

Your Honours to them but the language is quite

strong, on both sides I should say. No doubt my

learned friend Mr Finkelstein will want to draw in

aid the views of the majority. But what we say,

Your Honours, is that Mr Justice Brennan is right

and clearly correct. There is, undoubtedly, a

causal connection between a person who has made

admissions at Frankston, admitted to a number of

things, he is going to repeat those admissions when

he is asked about the very same matters an hour

Pollard(2) 22 6/8/92

later, and there is no point in giving him a

caution thereafter and saying, "Well, do you now

want to exercise your right to silence", if you have not given him a caution an hour and a half

earlier, because the cat is very much out of the

bag.

Now, how does all that link into what we are

saying here. We are saying it is relevant to this

question because the construction placed upon

section 464H by the Court of Criminal Appeal

invites exactly this kind of phenomenon. It

fundamentally detracts from questions which are

very close to question of voluntariness.	It says
conduct your lead up in the way you like.	If it is

separated in time and in place from the later

interview, it does not matter what has occurred

earlier, we will only concentrate on what occurred

later at St Kilda Road.

MASON CJ:  I think we are seized of the point.

MR WEINBERG: If Your Honour pleases.

MASON CJ:	We do not need the rhetoric, Mr Weinberg.
MR WEINBERG:	Your Honour, I will not belabour the point.

We say, therefore, that section 464H, if the construction that we place upon it and the

application that we urge upon the Court is correct,

we say that leads to inadmissibility and that

should have been the decision of the Court of

Criminal Appeal.

If we may move to the second part of our

argument, which is section 464C.	This,
Your Honours, turns upon the fact	that although the
statute requires that the suspect	be given notice
of certain rights that he has and	those rights are
set out in section 464C(l), he:

may communicate with or attempt to communicate

with a friend or relative to inform that

person of his or her whereabouts; and

(b) may communicate with or attempt to

communicate with a legal practitioner.

Those are statutory rights, they are new rights,
they were not previously incorporated in the law of

Victoria as part of the law of Victoria. There

were standing orders which had a somewhat ephemeral

quality about them which suggested that that should

be done, but this statute says that must be done.

It is obligatory to inform the person of these

rights but that does not exhaust the rights that

the suspect has. Your Honours will see that there

Pollard(2) 23 6/8/92

is another right contained in that subsection, and

that additional right is that:

the investigating official must defer the
questioning and investigation for a time that
is reasonable in the circumstances to enable

the person to make, or attempt to make, the

communication.

Now, Your Honours, the way the Court of Criminal

Appeal and the way the trial judge dealt with this was to say, "Well, he has been given his rights, he

was informed in the precise terms of the statute as

to matters (a) and (b), and that is all he is

entitled to". He was read those rights. He was

asked, "Do you understand that?", he said, "Yes",

and then away the police officer went with

questioning. And the Court of Criminal Appeal and

the trial judge said that is all he is entitled to,

there has been no breach of the statute.

We say there has been a breach of the statute,

and we say that breach of the statute of failure to

give the applicant what he is entitled to, under

the statute, which is a fuller statement of his

rights than is contained in the bare paragraphs (a) and (b), vitiates the exercise of the learned trial

judge's discretion, because that discretion was

exercised upon the footing that there was no

relevant unfairness because there was no relevant

impropriety.

His Honour had this argument and I should say this at once: when this matter was before a Court of three in Melbourne I made a concession which was

an incorrect and improper concession. I conceded

that the matter had not been raised before the

trial judge at first instance but urged the Court

the consider the matter, in any event, because it

had been considered in detail by the Court of

Criminal Appeal. The matter was raised, at first

instance, before the trial judge. I do not think

there is any dispute about that between myself and

my learned friend but, just for the purpose of the

transcript, could I indicate that the matter was

raised before the trial judge at the following

pages: it was raised, firstly, on page 27; it was

raised through the cross-examination of the

witness, Sterling, at pages 47 to 48; again,

cross-examination of Sterling, at pages 62 to 63;

slightly retreated from at page 64; raised again in

terms at page 143.

DEANE J: These references are to the voir dire hearing, are

they?

Pollard(2) 24 6/8/92

MR WEINBERG:  These are reference to the voir dire,

Your Honour, and also some of them are references to the submission made at the end of the voir dire on the admissibility of the confession. It was

raised again at pages 205 and 206 and, finally,

His Honour notes it at page 229 of the transcript.

So the precise point that I am raising before this

Court was taken, in our respectful submission, by counsel and I did counsel a disservice in saying

that he had not raised this argument before the

trial judge. He said, in effect, that there had

been a literal compliance with the statute but that

there was a necessary implication to be drawn from
the statute that a fuller warning was required,

even the warning that was given by Mr Minisini.

The background to this, Your Honours, is this:

the applicant was arrested at 6.40 am and given

what is known as the short caution; that is, "You

have the right to remain silent".	He was told
nothing more at that stage about his rights.	He
was taken to the Frankston Police Station.	He was

at Frankston, questioned from between 7.30 and

10.30 at Frankston, for a period of about an hour

and a half during that period. He was given no

caution of any kind - his is common ground, by Minisini, the man who conducted that interview,

Minisini not having been the person who apprehended

him at 6.40 - not told that he had the right to
remain silent, not told of any of these statutory

rights, at all, and, of course, it was not

recorded.

He was then taken to the St Kilda Road

complex. Along the way we have the blurting out of

what could be regarded as an admission and he was

told it would be better not to say anything at that
time; what could be regarded as another variant of

the short caution - back to St Kilda Road where he

is given what is said to be the full caution,

although we say it is not the full caution, and

then off we go into a three-hour interview.

We say that to read to a suspect what is

contained within paragraphs (a) and (b) of

section 464C is not to comply fully with the

requirements of the statute in terms of the

obligations of the police and the rights of the

suspect. We say that because there is a duty upon

a police officer to defer questioning, an express
duty, an investigation for a time that is

reasonable in the circumstances to enable the

person to make or attempt to make the

communication, that obligation arises. There is an

obligation to inform the suspect that the rights

that he is being told about, that is the right to

communicate with his solicitor, the right to

Pollard(2) 25 6/8/92

communicate with friend and so forth, is a present

entitlement which he has and it is a right which

will lead to the deferment of questioning if the
suspect wishes to take up either of those two
options.

In other words, he should be asked, "Do you want to make a phone call?", nothing too

complicated. "Do you want to make a phone call

now, we will wait with the questioning if you want

to do that, otherwise we will get on with it?".	It
does not have to be in some magic formula.	It does

not have to be an incantation. It just has to

communicate to the suspect that he has a right by

virtue of these provisions to speak to his lawyer

before he is questioned, if he wishes to exercise

that right.

To say to a suspect, "You may communicate with

or attempt to communicate with a legal
practitioner", is to say very little of

significance and meaning to ordinary persons who

are apprehended by the police and find themselves

in police custody because that right is ambiguously

stated in the Act. It is perfectly capable of

being understood as a right which may be exercised
but not just yet, not until we have finished

questioning. It is perfectly capable of being

misunderstood, if I can put it that way, and we say

that by necessary implication the statute requires

more to be done than merely to parrot that

particular right.

The Court of Criminal Appeal disagreed with

that contention. It said, look, he has had his

rights read to him.	He was even asked, do you
understand, and then he answered questions.	He
answered questions, said the Court of

Criminal Appeal, therefore he can be taken to have

waived his right. That, we submit, is a complete

non sequitur. The fact that he has answered

questions does not mean that he has waived his

rights, unless it is clear firstly that he has

understood what his rights are.

McHUGH J: What do you define as his right?

MR WEINBERG:  His right, Your Honour, in our submission, is

to be told that he has an entitlement, a present

entitlement to exercise the rights that are set out

in ( a ) and ( b) .

McHUGH J: Well, is his right a right to communicate or

attempt to communicate with a friend before

questioning or investigation commences?

Pollard(2) 26 6/8/92

MR WEINBERG:  Yes, Your Honour; before questioning or

investigation under section 464A(2) commences.

McHUGH J: Well, he was not in terms told that he had that

true of those provisions which are concerned

with the protection of human rights. In this

case the right conferred by

section 5(2)(c)(ii) upon a person who has been

arrested and detained, namely the right to

communicate with a legal adviser, is capable
in some situations of being of little value if

the person is not informed of the right. Many

persons might be quite ignorant that they had

this constitutional right or, if they did

know, might in the circumstances of their

arrest be too cenfused to bring it to mind.

This was not a case where he was not informed of

the right, but he was informed in ambiguous terms,

in our submission. Mr Finkelstein's average man is

not the man who is normally in the police station,

with respect, under suspicion or under questioning,

for some of the indictable offences that are dealt

with in these sorts of matters.

Could we refer the Court to Kaufman's Work on

Confessions in Canada. The update to that at

page 75, cites a decision of the Manatoba Court.	I
am sorry I cannot assist the Court other than to
say it is (1982) 32 CR (3d) 256.	I do not know

what "CR" stands for, but this passage appears in

Pollard(2) 77 6/8/92

relation to the Charter cases and the way they are

dealt with in Canada on this precise right.

Real opportunity is meant by the provision of

the Charter, not the incantation of a potted version of the right followed immediately by

by a considered and recorded

conduct which presumes a waiver. evidenced

election. The elegant and measured exchange

of the drawing-room is unlikely to prevail in
the investigation of violent crime, but the

form of words in the Charter is not

complicated and should be followed unless the

exigencies of the situation render that course

impractical; if another form of words is used

to convey the substance of the right, it is

all the the more vital that there be a

responsive reply to demonstrate that the

essence of the right is understood.

That is the line of cases in Canada on the Charter, which deal with exactly the same kinds of rights

and the approach adopted in that court.

Finally, our final point, in relation to the

principles upon which the discretion is to be

exercised for a breach of section 464C, we do not

contend that something like Miranda has been

transmuted into section 464C. The explanatory

memorandum make it plain it is not an automatic

exclusion and we do not contend that it is, but

what we do contend is that it is obviously a very

important factor in the exercise of the fairness

discretion and the exercise of all relevant

discretions, that here we have a breach of a

statute.

We do not confine our argument on unfairness

to the failure to give a full warning, we say that

there were breaches - clear breaches - at

Frankston. Everyone of these cautions should have

been administered by Mr Minisini back at Frankston.

The general warning as to silence, the right to consult a friend, the right to consult a solicitor,

he should have recorded that earlier conversation,

and we finally say, as our final submission to the

Court, that in looking at whether this man would

have made these admissions back at St Kilda Road

the Court should ask itself one question, if he had

been told by his solicitor at St Kilda Road, "Don't

worry about what you said back at Frankston, they

have not tape-recorded it, it can't be used against

you", we say there would have been a completely

different choice as to whether to speak or not

speak from that point onwards, and that is the very

vice of this whole exercise. That is why his

Pollard(2) 78 6/8/92

inability to appreciate that he had not let the cat

out of the bag back at Frankston really does taint

the subsequent admission or confession that was

obtained at St Kilda Road. It was not really a

free choice in that sense, in our respectful

submission. Those are our submissions in reply.

MASON CJ: Yes, thank you, Mr Weinberg. The Court will

consider its decision in this matter.

AT 1.00 PM THE MATTER WAS ADJOURNED SINE DIE

Pollard(2) 79 6/8/92