Pollard v The Queen

[1992] HCATrans 70

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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

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 12 MARCH 1992, AT 2.13 PM

Copyright in the High Court of Australia

Pollard 1 12/3/92

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

I appear, together with my learned friend,

MR I.G. CRISP, on behalf of the applicant.

(instructed by Simon English)

MR BONGIORNO, QC: If the Court pleases, I appear with my

learned friend, MR N. PAPAS, for the Crown.

(instructed by J. Buckley, Solicitor to the

Director of Public Prosecutions (Victoria))

MASON CJ:  Mr Weinberg.

MR WEINBERG: If the Court pleases, I understand that the

Court has been provided with a copy of our outline

of submissions on behalf of the applicant and also with some bound materials which we propose to rely

on. They were supplied to the Court before lunch.

MASON CJ:	What sort of materials are they?
MR WEINBERG:	They contain references to the statutory

provisions that are in question.

MASON CJ: Yes, we have those materials.

MR WEINBERG: Also, I think, reference to one or two cases.

If Your Honours please, when section 464 was

introduced into the Crimes Act and came into force

in March 1989, it was thought, perhaps

optimistically, that that would be the panacea for the long-running problem of accusations by accused

persons that - - -

MASON CJ: Did not anyone read its provisions?

MR WEINBERG:  Somebody drafted it, Your Honour, but I

suppose one could have anticipated that there would

have been new problems created by the relevant

provisions and indeed that has come to pass. But

what we say about section 464 as a whole was that

it was plainly designed to ensure that wherever

there were facilities available for recording

interviews between police and suspects as, for

example, at all police stations, that those

facilities should be used, and it plainly

contemplated a sanction, that if they were not

used, then any confession or admission resulting

from that breach would be inadmissible, not merely

excluded arguably in the exercise of discretion,

but inadmissible, and the centrepiece for that

proposition was contained in section 464H(l)(d).

If I could invite the Court to examine that. It is

set out at tab 2 of the materials we have provided

to the Court, and it says, in terms, that:

Pollard 2 12/3/92

the confession or admission ..... is
inadmissible as evidence against the person in

proceedings for an indictable offence unless -

(d) if the confession or admission was made

during questioning at a place where facilities

were available to conduct an interview, the

questioning and anything said by the person

questions was tape-recorded.

Now, that is the central provision of section 464H

and one of the main purposes of the enactment of

section 464 as a whole. It is plain to see that

paragraphs (c) and (e), which surround
paragraph (d), are designed to deal with situations

which arise from time to time as, for example, when

one deals with paragraph (c), where a suspect

blurts out a confession before questioning

commences, provision is made for tape-recording any

confirmation of that confession subsequently, and

that is deemed to be sufficient and, again, in

paragraph (e), if the confession or admission

happens to be made at a place where there are no

recording facilities available, once again that

mechanism is available for rendering the confession

or admission admissible provided it is confirmed in

substance subsequently. But what is not provided

for in subsection (1) is this situation where the
police interview a suspect at a place where
recording facilities are available, but do not

switch on the recorder, and then subsequently switch on the recorder, and the question that

initially arose - - -

GAUDRON J: But that is not exactly how it happened, is it,

Mr Weinberg?

MR WEINBERG:  How it happened in this case?

GAUDRON J: In this case, yes.

MR WEINBERG:  No, Your Honour, it is not, but I will come to

that. What I am endeavouring to do is to set the

background to this case, if I may. That is a

situation which was not provided for in

section 464H and problems soon emerged because that

was occurring. The police would conduct what were

known as lead-up interviews or preliminary

conversations or preliminary questioning and having

elicited certain answers, sometimes admissions,

they would then switch the recording on for the

purpose of conducting what was known as a formal

record of interview.

The judges of a county court had to deal with

this problem initially and they did so in a manner,

which we say, reflects great credit upon them.

Pollard 3 12/3/92

They interpreted the provisions strictly and

narrowly and said that in those circumstances the

recorded part of the interview could not be

admitted because, what was plainly contemplated by

paragraph (d) was an exclusion of what is, in

essence, a one and indivisible process of
questioning, all taking place at the one place,

between the same police officer, the same suspect

and in relation to the same subject-matter. And we

had a number of rulings from the county court to

that effect, none of which ever reached the supreme

court for obvious reasons.	The confessions were
being excluded.	Now, what happens next is this

case, and this case, we say, has changed that most

salutary practice which was being followed by the

county court until the present situation arose.

The present situation arose in this way: the applicant was taken initially to the Frankston

police station. The Frankston police station is a

place where there are recording facilities

available. Interestingly enough, he was not

cautioned at all; he was given no caution of any
kind at the Frankston police station, not even the

old pre-section 464C caution; he was never told he

had the right to remain silent by the police

officer who questioned him at that station. No

recording was made of that conversation, none at

all. There was an interview which was conducted

over a period of approximately an hour and a half

or more, and during the course of that interview

admissions were made. What happened next was that

the applicant was taken to the St Kilda Road police

complex, because the police said they wished to

conduct, not a tape-recorded interview, but a video

interview, with this applicant.

En route, he made a spontaneous statement or

admission which was, in essence, a repetition of

something that he had said earlier at Frankston and

then, when he got to the St Kilda Road police	station, he was given what purports to be the	section 464C statement of rights, the recorder was
switched on and the conversation was recorded. The
trial judge was invited to exclude the recorded
conversation at the St Kilda Road police station and the trial judge held that in effect the process of questioning was severable; distinct; there were
two places; it was not a continuous process of
questioning; of course there had not been
compliance with the statute at Frankston, but the only consequence of that non-compliance was to exclude evidence of what was said at Frankston. It
had no bearing whatever upon the question of
whether there had been a statutory compliance for
the purpose of admissibility in relation to the St Kilda Road police complex interview.

Pollard 4 12/3/92

The Court of Criminal Appeal, in essence,

upheld that ruling by the trial judge and we say

that that ruling is simply incapable of being

reconciled with the previous practice which had

prevailed in the county court of - - -

MASON CJ: But that is not the question, is it? The

question is, "What is the proper construction of

the provision?

MR WEINBERG: It is, Your Honour.

GAUDRON J:  And for that purpose we are dealing with

admissions rather than a confession, are we?

MR WEINBERG:  We are dealing with statements that are

harmful to the accused, Your Honour. Whether one

wants to call them admissions or confessions, they

go a good part of the way towards proving the Crown

case. If Your Honour is suggesting that this is

less than a full confession of guilt, arguably it

is so, but there are damaging admissions made at

Frankston and, in essence, repeated by the
applicant at St Kilda Road and indeed, in the

course of his record of interview, he refers to his

previous admissions. He says things like, "As I

told you before at Frankston this morning", not

surprisingly, we would say, once a person has made

admissions at Frankston to the same police officer

who questions him thereafter, within an hour or two of that. Even if he gets a caution, he is scarcely likely not to repeat the admissions unless he is

told, in effect, that, "You have not done yourself

any harm by what you said previously, it is not

admissible", in effect, "You can make a free and

voluntary choice now to answer questions, but bear

in mind that nothing that you said at Frankston can

be used against you". Without that, or something

like it being said to the accused, it is perfectly obvious, in our submission, that he is very likely

to repeat what he has said on the previous
occasion.	And that is the very vice, we say, of

the decision of the Court of Criminal Appeal in

this case.

It is because the Court of Criminal Appeal

has, in effect, said that this process of

questioning is divisible, that even though it is

the same police officer, asking the same suspect, the same question, at two separate places, within

an hour or so, it is divisible, it is separate.

One can put out of one's mind what occurred at

Frankston. The sanction for that is to exclude

what occurred at Frankston but admit what occurred

subsequently at St Kilda Road, in circumstances

where you could not even get that evidence in by

virtue of a process of confirmation, because none

Pollard 12/3/92

of paragraphs (c), (d) or (e) would permit that

course to be adopted. And there are a number of

errors of construction, we submit, that

demonstrate that that is not what this section was

designed to do; it is not what this section, read

in its ordinary and natural sense, does do; it

calls, we say, imperatively for the exclusion

of - - -

GAUDRON J:  Now, your construction would have it that there

is only ever one process, the whole of which must

be taped?

MR WEINBERG:  No, Your Honour. We do not say there is only

ever one process. Of course, there are questions of degree. It may be that a person is questioned

at one police station and six months later brought

in at a different police station, questioned by a

different police officer and it might be that in

those circumstances some notion of divisibility or

severance might be applicable but, we say, wherever

the line is drawn, this was one process of
questioning; this was a process of questioning
where a confession or admission was made during
questioning at a place - and we say the word
"place", in paragraph (d), must be read as

including the word "places"; place or places,

because otherwise it makes a nonsense of the Act

and we rely on the provisions of the Interpretation

of Legislation Act in Victoria, section 37, which

says that wherever one sees the singular, one can

read that as including the plural, provided there

is nothing in the Act to indicate a contrary

intention.

GAUDRON J: But does that not simply come down to a question

of whether there was one interview or more than one

interview, even on your construction?

MR WEINBERG:  It comes down to the meaning of the word

"questioning" in paragraph (d), whether there is

one questioning implicit in the term "during	questioning"; whether there can be a "during
questioning" at two places. If there can be at one
place - if, at a police station, the principle the
earlier courts laid down which was you cannot just
switch the recorder off initially and then an hour
later come back and switch it on and thereby circumvent paragraph (d), we say, why does it make
any difference if you do it at two places?

DAWSON J: Well, is it that the policeman has one interview

and one interview only available to him?

MR WEINBERG:  No, Your Honour, not at all. The policeman is

entitled to question a person under this Act, if

Pollard 6 12/3/92

the person wishes to answer questions, and he can

do it in several places and - - -

DAWSON J:	As long as he records it.
MR WEINBERG:	Yes, as long as each place has recording

facilities available. Once a person is questioned

as a suspect under this Act, we say that

paragraph (d) requires the recorder to be switched

on; none of this nonsense about not switching it on

for the early stages of the questioning; none of

this nonsense about not switching it on at police

station A, because we are going to switch it on at

police station B.

DAWSON J: But there is nothing that precludes him from

questioning a person at a place where there are no

tape-recording facilities?

MR WEINBERG:	No, Your Honour.
DAWSON J:	Then the question is ..... that evidence cannot be used unless the confession is confirmed.
MR WEINBERG:	No, Your Honour, that is so.
DAWSON J:	And if that is a separate questioning, then it

will not affect a subsequent question, will it?

MR WEINBERG:  It depends, Your Honour, on whether the

process that we have described earlier, as a

process of taint, operates; a taint process. It is

recognized in other branches of law relating to

confessions. If an inducement is offered to

somebody at point A, and unless that inducement is

removed, it is deemed to continue.

DAWSON J: Well, I am just trying to find out the

ramifications. If a person is questioned at a

place where there are not tape-recording

facilities, and then subsequently he is taken to a

place where there are recording facilities, you say	he cannot be questioned at that place in such a way
as to get the tape in?

MR WEINBERG:  I say that he can be, Your Honour, provided he

is told that what he has said earlier is not

admissible, and I say the basis upon which you can
get the subsequent conversation in, is

subsection (2), which is designed to deal with

exceptional circumstances. If an accused person is

told, in terms, "We questioned you back at your

house earlier today; you made certain admissions;

we did not record them: we propose to conduct a
fresh interview now, and I have to tell you that

what you have said earlier is not admissible in any

court.", we say that any judge faced, in those

Pollard 12/3/92

circumstances, with an accused who then answered

questions, would then have available to him to

admit the subsequent conversation, if he thought it

appropriate, subsection (2) which is designed to

deal with that situation.

But subsection (2) could not conceivably be

invoked in circumstances where the police have

deliberately not recorded a conversation which is

an interview, questioning and answer, designed to

elicit admissions, and it eliciting those

admissions, the police have deliberately not used

the recording device - - -

DAWSON J:	You say "deliberately", you might be right, but they are under no obligation to use a
tape-recorder - I am not just putting it to you, the Act does not place them under any obligation to use the tape-recording machine if they are not
going to seek to tender any admissions.

MR WEINBERG: Well, Your Honour, that is the construction

that we resist. What we say is that the Act, read

in its entirety and on its ordinary natural

meaning, suggests quite clearly that if they are
conducting an interview at a place where there are

recording facilities available, they should switch

on the recorder. They should not be - - -

MASON CJ:	But it does not say that.
MR WEINBERG:	No, it does not, Your Honour, and we accept

that it does not say that.

MASON CJ:  And it seems to me that the problem from your

point of view is that the Act is directed to

rendering inadmissible a confession or an admission

at a place. Now, the fact is that the admission

made at Frankston, although in similar terms to the

admission made in St Kilda, was a particular

admission made at Frankston.

MR WEINBERG: Yes, Your Honour.
MASON CJ:	It is not one admission that is made, as it were, at both places. There are admissions made at each
place.
MR WEINBERG:	There are a number of admissions made in any

interview, Your Honour, that is certainly so.

MASON CJ: That is quite right, but is that not-precisely

the situation to which His directed?

MR WEINBERG:  Could we respond by not answering

Your Honour's question immediately, but by asking

this question: if that construction is correct,

Pollard 12/3/92

then it must follow, in our respectful submission,
that if the police do what they used to do earlier

on and may still be doing and, indeed, probably are

doing in the light of this decision, that is,

conducting lead-up interviews; not switching on the

machine; switching it on and switching it off and

having bits of conversations with accused, if that

is what this section contemplates as being

permissible, then all I can say, Your Honours, with

respect, is that Parliament has laboured very long

and hard and produced very little.

MASON CJ: Well, that is not unusual, is it?

MR WEINBERG:  Your Honour, the Act is to be construed

purposively. The Act is to be construed in the

light of what the mischief was that this provision

was designed to rectify. The construction - - -

MASON CJ: Yes, well I am in favour of purposive

construction, but you see how far that takes you:

it takes you into the exercise that

Chief Justice Young endeavoured to carry out in

this particular case and then you get a provision

that looks very different from these provisions.

MR WEINBERG:  Your Honour, I understand with respect, I

think, what Your Honour is moving me towards, but

what I say about that, Your Honour, is this: either

this decision is correct or the other decisions

handed down early on by the county court judges and

by Mr Justice Hampel in the supreme court are

correct. The two cannot really stand, we say.

GAUDRON J: 

Not necessarily, it depends whether you - well

they can, can they not, by concentrating on a
place? In this case you have two different places.

MR WEINBERG: 

Why should that make any difference, with

respect, Your Honour?

GAUDRON J: Well, because the statute talks about "a place".
MR WEINBERG:	But the Interpretation of Legislation Act

tells us that "a place", singular, may be read as

"places" "or places", it tells us that that is the

construction to give to the word "a place", unless

there is something in the Act which specifically

indicates to the contrary. Now, all that we are

saying is, that is an everyday method of

construction, courts do it all the time, singular

includes the plural. Just read in the word "or

places". If you do that you come to exactly the

mode of construction that we are seeking to

achieve. Why should it make any difference if the

policeman conducts himself at the one police

station in the way that they were, and we say that

Pollard 9 12/3/92

is inadmissible, that is clearly in breach of the

statute. It leads to all sorts of problems, it

ought to be excluded. And instead of switching the

machine on at the same police station, they take

the bloke up the road 100 metres and do it at

another police station. The law would be brought

into true disrepute if that were the point of

distinction, in our submission.

Why should that make any difference? What

earthly purpose would that kind of distinction

make? Why should it be read that way? And we say

that this case has been interpreted, in effect, as

overturning those earlier decisions.

DAWSON J: Well, the reason why it should be read that way

is because - I am just putting this to you - the

section really is designed to ensure that when a

confession goes in, it goes in in a recorded form

and that is achieved by the alternative

construction.

MR WEINBERG: But, Your Honour, if that were so then

Your Honour would be saying, in effect, then it is

perfectly consistent with the section to turn the

machine on and off; nothing wrong with that. You

can have one process of questioning. The parts

that go in are the parts that are recorded; the
parts that are excluded are the parts that are not

recorded. Now, if that be so, and on a literal

interpretation of that section, Your Honour may

very well be right, because there is nothing in the

section, in its terms, other than a provision

saying, "Well if you do not record it, you do not

get it in". And if that is so, that means you can conduct your questioning by switching the recorder

on and then switching it off, and then switching it

on and switching it off, and the only sanction is

you lose out on the bits that have not been

recorded. Now, why would Parliament enact a

provision designed to achieve that result?

DAWSON J:  You have concentrated on "place", but do you not

have to direct some attention to the word

"questioning"? There may be more than one

questioning.

MR WEINBERG:	Yes, Your Honour.
DAWSON J:	So that if you have what you say is one

questioning, the process, you say, would not be

available.

MR WEINBERG: It is a process of questioning, we say,

Your Honour, and we accept - I think I said in

answer to a question from Your Honour

Justice Gaudron, that there may be circumstances

Pollard 10 12/3/92

where there is not one questioning, but what we say

is, wherever you draw the dividing line, when the
same police officer, if the same man is questioning
this fellow in the same morning, within an hour or

two, about the same subject -

DAWSON J:  Can I put it to you: it is at least open to

conclude here that there was one questioning at

Frankston and another questioning at St Kilda.

MR WEINBERG:  Your Honour, the Court of Criminal

Appeal - - -

DAWSON J: Well, just let me finish and you can answer it

then.

MR WEINBERG:  I am sorry, Your Honour.

DAWSON J: That would mean, upon one construction, the

questioning at Frankston was not tape recorded;

there were facilities available, therefore any

confessions made then are not admissible. If it

was a separate questioning at St Kilda; it was

recorded and any confessions are admissible, but

what could not be done was, at St Kilda, they could

not switch on and off the machine, because that was

the one questioning.

MR WEINBERG:	The one place, Your Honour, certainly - - -
DAWSON J:	And the one questioning.

MR WEINBERG: But, Your Honour, would it be one questioning,

if I put the matter this way, for the police to

question a person at St Kilda for an hour between

nine and 10, and then come back at 11 and continue?

DAWSON J: Well, it may be a matter of degree, but you may

be able to say here that at least the questioning

at Frankston and the questioning at St Kilda, were

two distinct questionings.

MR WEINBERG:  They were at two distinct places, but they

were not two distinct questionings within the

section of the Act. Your Honour puts it to me that

it is open to say that. Of course it is open to

say that, but we are here seeking special leave,

Your Honour, we are not arguing the appeal. We are

saying that the construction that we urge is also

open to be adopted and we say the point is an

important one in the administration of justice,

because this case is being construed, not just to

deal with this situation, that is, the movement of

the accused from one station to another, but also

to deal with the situation where the police turn on

and turn off the tape recorder within a station,

and it turns, as Your Honour very correctly points

Pollard 11 12/3/92

out, upon this notion of questioning and what is meant by questioning. Why can there not, in our

submission, be a single process of questioning,

which takes place at two places?

If a person is being driven in a car and is

being asked questions and answering them, he is
being questioned at many places, but it is a single

process of questioning. To characterize

questioning for the purpose of section 464C, in our

submission, one has to have regard to the

subject-matter of the questioning, the person who

is asking the questions and the person who is

answering the questions.

DAWSON J: Well, is your proposition that where a suspect is

interrogated, there is only one questioning?

MR WEINBERG:	No, Your Honour, it is not, because the suspect may be interrogated by different police
officers months apart.

DAWSON J: Where a suspect is interrogated by the one

policeman, there is necessarily, whatever the

intervals of time or references of place, the one

questioning?

MR WEINBERG:	No, Your Honour, it is a question in every case a question of fact, but what the Court of
Criminal Appeal has said is that, as a matter of
law, if you are questioned by the one police
officer, asking the same questions, of the same suspect, about the same matters and getting the
same answering, it is two different questionings
because they are at two different places. And we
say, that is a distinction and a proposition of law which makes very little sense, with great respect to the Court of Criminal Appeal.

GAUDRON J: Well, do they put it as a matter of law?

MR WEINBERG:	this case, was indivisible as one that they cannot They say the argument that the questioning, in
and do not accept, because, in part at least, there are at different places.
GAUDRON J:	And there was some difference in time.
MR WEINBERG:	Yes, it was an hour or two, or three hours

later, certainly.

GAUDRON J: Yes. Well, that is not an insignificant period

of time, and what your argument would really amount

to is this, is it not: assume there is somebody at

a police station, who is not a suspect, but he

is being questioned and although he is not a

suspect, he confesses, but there is no tape

Pollard 12 12/3/92

recording on, because he is not a suspect.	The
suspect -

MR WEINBERG: It is not a problem, Your Honour. It is not a

problem, because it may be dealt with,	in terms, I
may be wrong about this, 464H(c) - - -

GAUDRON J: Well, let us assume you have the facilities

available and they are not switched on, because he

is not a suspect.

MR WEINBERG:  Your Honour, paragraph (c) operates both when

facilities are available and when facilities are

not available; it is predicated upon the confession

or admission simply being made before the

commencement of questioning.

GAUDRON J:  You say questioning arises when the person

becomes a suspect, do you?

MR WEINBERG:  Yes, Your Honour, in a relevant sense. That

is made plain - - -

GAUDRON J: Yes, or perhaps in a case such as the present

when it is thought there is sufficient material to

charge? In a case such as the present - - -

MR WEINBERG:  Your Honour, it is set out in 464H(l), a

person is a suspect for these purposes, when he:

(a) was suspected; or

(b) ought reasonably to have been suspected -

of having committed an offence -

GAUDRON J: That does not really deal with the situation.

In a case such as the present, it is not a question

whether he is a suspect or ought reasonably to have

been suspected; it is whether or not it was

suspected or ought reasonably have been suspected

that there was a crime.

MR WEINBERG:  "Of having committed an offence", to use the

language of the statute.

GAUDRON J: Well, the issue was consent.

MR WEINBERG:  But, Your Honour, on any view in this case,

this man was a suspect. There is no dispute about

that.	He had been arrested; he had been taken to
Frankston, no dispute about that.	No dispute that

he was given no caution; no dispute that no

recorder was switched on and no dispute that he was

questioned, I think his name was Mr Minisini, a

senior detective of the rape squad, for the best

part of an hour and a half, that he answered

Pollard 13 12/3/92

questions and that he made the same admissions

later on.

Now, Your Honours, in cases like Duke and

Carr, the impropriety, if one dared use that term

in these proceedings, was far less than what has

happened here. This man has been, I hesitate to

say it, but railroaded. He has made admissions,
without being told he has got any right to silence,

let alone the section 464C rights; he has made

those admissions and he has repeated them later on.

Now, he is worse off, in a way, on this

construction, than he would have been under the old

common law rules, the judges rules and the standing

orders. If that is not a perverse result at the
end of the day, then - I am getting into the realm

of giving a jury address, Your Honour, I will not

do that.

DAWSON J: That is right, is it? Out of interest,

Mr Weinberg, if he were not cautioned, questioned and made admissions and subsequently was cautioned

and then made the same admissions, the second set

of admissions at common law would not be

admissible?

MR WEINBERG:  At common law?

DAWSON J: Is that the position?

MR WEINBERG:  No, no, Your Honour. Of course, at common law

the position was discretion, as far as cautions

were concerned and it still is; that has not been

changed by this Act. There is nothing in this Act

which says that the failure to caution leads to

automatic inadmissibility. What might - - -

DAWSON J:  No, but even if - well, no, perhaps I will not

pursue it.

MR WEINBERG:  I am sorry, Your Honour. I was simply making

the point that it was not inadmissible at common

law.

DAWSON J: Well, you are saying he is worse off in this

situation?

MR WEINBERG: Well, Your Honour, there would have been a

pretty fair argument to have this confessional

material excluded, applying the old principles.

The difficulty has the court is focused -

DAWSON J:	On the basis that it was not voluntary?
MR WEINBERG:	Yes. Well, not voluntary, or that the

discretion ought certainly to have been exercised

in circumstances such as this, but what the court

Pollard 14 12/3/92

has done is to reverse the process by saying,

"This was compliance with the statute, so what was

wrong with it? After all, we are dealing with the

problem by wiping out all that occurred before,

without perceiving that the real problem is that

the man has made ad.missions and repeated the

ad.missions, which anyone is going to do."

Your Honour, I am sounding as though I am

addressing a jury, and I should not do that.

Perhaps I could - - -

DAWSON J:	Does the judge's discretion still exist?
MR WEINBERG:	Yes, Your Honour, it does. Section 464J

expressly retains all discretions that previously

existed, including the so-called Bunning v Cross
discretion and unfairness and so forth. But,

Your Honours, I think I have at least indicated what our point is in relation to 464H.

MASON CJ: Yes, I think you ought to reserve some of your

fire for the next point.

MR WEINBERG: Well, yes, Your Honour, because this one is

just about as bad as the first one, in our

respectful submission. This is a man who has had a

triple breach, if I can put it that way. He has

had no caution of any kind at Frankston. He has

then suffered through the failure to record what

has occurred at Frankston and then, worst of all in

some senses, he gets - certainly he gets what the

statute says he should get, in the bare literal
terms of the statute: he is informed of the

statutory rights under section 464C. If I can invite the Court to look at section 464C - - -

MASON CJ:  Mr Weinberg, let us assume for the moment that

the Court of Criminal Appeal was wrong in holding

that there was no non-compliance with section 464C,

what then is the consequence? Section 464C does

not render the material inadmissible.

MR WEINBERG:  No, it does not, Your Honour; it only forms

the basis for an exercise of discretion, but then,

Your Honour, this man has not had that discretion

exercised, because the trial judge ruled that

section 464C had been complied with and so did the

Court of Criminal Appeal and, Your Honour, we say

this is the non-exercise of a discretion to which

he was entitled and unless the Crown can say, well

the discretion would inevitably been exercised
against the applicant anyway, then we say that is a

proper point to raise before this Court, even

though it relates to discretion.

It is an important point, Your Honour, because

these are new rights. For the first time they have

Pollard 15 12/3/92

been enshrined in statute; it is no longer simply a
question of cautioning an accused when he has the
right to remain silent. That is expressly

preserved in another provision of this Act, but

there are new rights. A new regime is part of the

balance that has been struck between the police who

have been given greater powers under this statute -

now they can detain for a reasonable time, rather

than six hours - and the balance to that is that
there are new statutory rights created by

section 464C and those rights say, in terms, that

the investigating official, before any questioning

commences:

an investigating official must inform the

person in custody that he or she -

(a) 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 -

and then there are some qualifications to that

which are not relevant, and then we are told:

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.

Those are new rights.	They never, so far as we are
aware, existed in statutory form before.	Some the

judges' rules or some of the standing orders had
variance of them, but they did not have the force

of law and they were not precisely in this form.

Here there are enshrined in a statute and they are

mandatory.

Well, Your Honours, we accept that the

applicant was told, in precisely the terms set out

section 464C(a) and (b), that he may communicate

with or attempt to communicate with a friend or

relative and may communicate with or attempt to

communicate with a legal practitioner. That is

what he was told, and then he was asked, "Do you

understand?" And he answered, "Yes." And, the

Court of Criminal Appeal said, "Well that is what

the statute says that the police must do, they must

inform him of those statutory rights." They have

done that in exactly those terms. They have even

gone further, they have asked him, "Do you

understand that?", which is not set out in the

statute, not required, and he has answered, "Yes."

Pollard 16 12/3/92

"What could be more obvious", says the Court of

Criminal Appeal, "than there has been compliance

with the terms of the statute and what is

required?"

MASON CJ:  Now, Mr Weinberg, can I just take you up on your

statement earlier that the trial judge considered
the matter on a discretionary basis, but on the

footing that there had been compliance with

section 464C.

MR WEINBERG:  Yes, Your Honour.

MASON CJ: Now, is that correct? The reason why I ask the

question is, if you look at page 67, it does not

seem to me to be entirely clear as to what the

trial judge is saying.

MR WEINBERG:  Page 67, Your Honour, of the application book?

MASON CJ: Yes. First of all, four lines from the top,

paragraph (6):

The caution at St Kilda Road added nothing and

was pointless.

MR WEINBERG: That is an argument, Your Honour; that is not

His Honour's finding.

MASON CJ:  And you will see later down - I mean, just

assuming for the moment that it is only argument as

you say - there is another reference:

A number of points of illegality further lead

to a finding of unfairness -

and then there is again a reference to section 464

under (8). Now, where did the trial judge deal

with those considerations?

MR WEINBERG:  Your Honour, those were in fact submissions,

they were not findings.

MASON CJ: Yes, I know, but I want to know - - -

MR WEINBERG:	His Honour made findings in relation to section 464H and they appear at page 70 of the
application book, Your Honour. All of these
submissions related to section 464H, I should say,
Your Honour.

MASON CJ: Nothing referred to section 464C?

MR WEINBERG:  Page 62, Your Honour. A number of

arguments - - -

Pollard 17 12/3/92

GAUDRON J: All of this was advanced in argument for the

exercise of a discretion?

MR WEINBERG:  Your Honour, I cannot say that. I can

certainly say that it was - - -

GAUDRON J: It seems to have been treated as such - - -

MR WEINBERG: 

Yes.

GAUDRON J: 

- - - advanced, first of all, to show that the

confession was not or the admissions were not
voluntary.

MR WEINBERG: I have a feeling, Your Honour, that what might

have occurred is that there was a decision of

His Honour Mr Justice Cummins in a case called

Tchiang, which is included in the material that has

been supplied to the Court. That decision did not

come out until 24 June 1991, which is after this

trial took place and in that case

Mr Justice Cummins ruled that the construction of

section 464C, which I am urging upon this Court,

was the correct construction, so that there had not

been a ruling by a supreme court judge on that

point and Mr Justice Cummins' ruling was not
referred to by the Court of Criminal Appeal in the
present matter but, plainly, the decision - it was

referred to in court, but it is not in the

judgment. I am told by my friend it was actually

drawn to the court's attention, but is not referred

to in the judgment of the court, and it would seem

Your Honours, that I have to say that the specific

point does not seem to have been raised before

His Honour at the trial, although it was taken as a

ground of appeal before the Court of

Criminal Appeal in reliance upon what

Mr Justice Cummins had subsequently held to be the

case. And if the Court is to say to me, "Well that

means the point was not raised before the trial

judge initially", I would have to concede that, but

case where it was raised before the Court of I would say in the particular circumstances of this	Criminal Appeal and was only brought to light by
Mr Justice Cummins' judgment after the trial, and
particularly if the Court were minded to grant
special leave in relation to the first point - - -

GAUDRON J: But it does seem that the trial judge exercised

his discretion, conscious of the problems with

section 464C.

MR WEINBERG:  We would say so, Your Honour, because

His Honour had drawn to his attention some of the

arguments that I have advanced in terms of the

horse having bolted, for example. That is really

what my argument is, that it is too late to - - -

Pollard 18 12/3/92

GAUDRON J: Well, at page 62 there is a reference to:

In breach of section 464A(3) and 464C -

MR WEINBERG: That is at Frankston, Your Honour, as I read it. That is a submission that was made, because,

in fact, there was a caution given at St Kilda Road

in the precise formal terms set out in

section 464C. But that seems to be the history of

the matter, Your Honours, that this precise point

does not seem to have been raised in that way

before the judge at first instance, but a lot of

the arguments that are being applied here were

taken on the basis of - for example, paragraph (v)

is set out at page 62:

The later giving of the caution at St Kilda

Road was pointless. A shutting of the gate

after the horse has bolted, that is to say,

once tainted forever tainted ..... manner and

method of questioning at St Kilda Road -

there were a lot of general points going to the

exercise of discretion which ought to have lead to

the exclusion of the recorded interview and,

indeed, at page 223 - that reminds me - there is

one point that was specifically taken, which is a

curious one, it may have some merit, and it is

this, the statute says that what was said at

Frankston is inadmissible, but what the accused has

done, in answer to the questions is, in effect, to

recite what was said at Frankston, by answering the

questions, as I told you before. So that the

statute arguably requires what was said later to be

excluded because it incorporates what was said

earlier.

I can keep thinking of arguments on my feet,

Your Honour. I do not whether that assists.

MASON CJ: That may be a good reason for refusing special

leave to appeal.

MR WEINBERG:  Your Honours, we would have said not, with

respect. It is reason for commending counsel for

deftness and ingenuity on their feet.

MASON CJ: But there is a difficult about this particular

point, is there not, when it was not raised before

the trial judge and therefore one could not have

expected him in the circumstances to have exercised

his discretion, having regard to it.

MR WEINBERG:  Your Honour, it was raised before the Court of

Criminal Appeal and the Court of Criminal Appeal

has given a judgment on the matter and that

judgment stands as the law in this State and it is

Pollard 19 12/3/92

a point of very great importance, we would say,

because this regime applies to every form of

questioning every day and if the court is wrong as

to what is required that is a matter that ought

urgently to be attended to by this Court and,

furthermore, if the court is wrong, the Court of

Criminal Appeal, we say that it is inconceivable

the discretion would not have been exercised

favourably to this man in these circumstances.

DAWSON J: It may have been raised before the trial judge.

If you look at page 64, at least, he sets out - - -

MR WEINBERG:	I hope Your Honour is right.
DAWSON J:	You cannot say from what appears there but -
MR WEINBERG:	My learned friend, Mr Bongiorno, suggests that

the answer lies at page 59, Your Honours, where,

after setting out in the middle paragraph the

history of the matter - yes, Your Honours:

The accused was not given a caution by

Minisini before questioning took place in the

interview room at Frankston CIB; nor was he

invited, permitted or even appraised of his

rights to communicate with a family friend or

lawyer. Although the Frankston CIB officers

had the capacity to tape-record the
conversations between the accused and

Minisini, no such tape-recording was effected.

Consequently, the conversation, admissions and

denials that were mentioned in that interview

room are not recorded in any way whatsoever.

Indeed, notes taken by Minisini at the time

have not been able to be found, and the

memories of O'Loughlin -

I should say Minisini was not called at the trial.

DAWSON J:  So that in the exercise of his discretion, the

trial judge took into account the fact that he was

not given the opportunity to consult with a legal

practitioner - - -

MR WEINBERG:	At Frankston, Your Honour, it would seem.
DAWSON J:	I see.
MR WEINBERG:	The next paragraph says this - my learned friend, Mr Bongiorno, suggests I read it:

It is in the background of these facts

and circumstances that Mr Punshon submits that

the videoed record of interview is

inadmissible. He makes his submissions on a

number of bases: namely, one, illegality,

Pollard 20 12/3/92

that the conversations which took place at the

Frankston CIB were not tape-recorded,

notwithstanding that those conversations took

place at a facility where tape-recording

devices were available. In these

circumstances, the whole of the conversations

between Minisini and the accused at Frankston

CIB are inadmissible by reasons of the provisions of s 464H of the Crimes Act.

Mr Adams does not dispute this

assertion ..... Mr Punshon submits, however,

that because Minisini clearly obtained

valuable information from the accused as to

his admissions and denials regarding the

allegations of the prosecutrix, and further, a

valuable insight into the personality of the

accused -

and so forth. Your Honour, I cannot say that the

point precisely was taken before the trial judge.

DAWSON J: It does seem to be referring to the

Frankston there.

MR WEINBERG:  It does, Your Honour, yes. But we do press,

in our submission, that the matter was raised

before the Court of Criminal Appeal and fully

considered by the court.

MASON CJ: Yes, that point has been registered.

MR WEINBERG: If Your Honour pleases. Could we just say why

we say the decision of the Court of Criminal Appeal

was wrong? We say it was wrong because, in our

submission, to tell an accused person that he has

the right to communicate with a friend or relative,

to inform that person of his or her whereabouts

immediately prior to launching into questioning,

does not suggest to the person that the person may

exercise that right there and then.

It is properly capable of being understood as

a right that he may exercise at some point after

the questioning or at some point during the

questioning or at some indeterminate point, in the

same way in relation to communication with a legal

practitioner. To tell an ordinary person who has

been arrested that he may communicate with a legal
practitioner does not tell the person anything of

the content of the right which we say is contained

within the last paragraph of section 464C(l),

because that section creates more than a right to

be informed, it creates the right, we say, on the
part of the person being interrogated to have the
investigating official defer the questioning and

investigation.

Pollard 21 12/3/92

They are ambiguously stated rights. The mere

fact that an accused says, "I understand that does

not mean a thing", and other jurisdictions which
have similar regimes of rights such as these have

recognized just that point, concluding, as we point

out in our outline of submissions that in England,

PACE, the Police and Criminal Evidence Act of 1984,

had precisely this kind of regime and the codes of

practice under it had to be amended precisely

because the ambiguity was understood and people are

now told these are rights that they can exercise

immediately before they are questioned. If that is

not done these rights are not worth a penny. It is
as simple as that. That is our point and that is

our application. If the Court pleases.

MASON CJ: Yes, Mr Bongiorno.

MR BONGIORNO:  To take the matter in the order that my

learned friend did, in our submission, section 464H

is a section which goes to the admissibility of

evidence which is sought to be tendered, not to the

questioning of suspects.

The section commences with the assertion that:

Subject to sub-section (2), evidence of a

confession or admission made to an

investigating official by a person ..... is

inadmissible ..... unless -

certain conditions are fulfilled.

In our submission, the section does not deal

with the substantive law relating to the
questioning of suspects; it deals with the

admissibility of certain evidence that the Crown

might wish to lead. So that if the section is not

complied with, the penalty against the prosecution

is inadmissibility. It is not a section which lays

down the way in which suspects must be

interrogated.

MASON CJ: In other words, you are supporting the

construction of the Court of Criminal Appeal?

MR BONGIORNO:	Yes.
MASON CJ:	Now, do you want to add anything in support of

their construction?

MR BONGIORNO:  I think not, Your Honours. No, I do not,

with respect, Your Honour.

MASON CJ:  We are aware of what the Court of Criminal Appeal

said. We understand the point of view they are

Pollard 22 12/3/92

urging.	Now it is a matter whether you can add to
that.

MR BONGIORNO:	I think not.
GAUDRON J:	Did you understand the Court of Criminal Appeal

to be saying that every time there was a difference

in time, as it were, there is a time delay, there

were two questions?

MR BONGIORNO:  In our submission, what the Court of Criminal

Appeal was saying about section 464H was that in

the circumstances of this case there was a

questioning at St Kilda Road in respect of which

section 464H was complied with and that that

questioning was separate and distinct in this

instance from the questioning at Frankston, and

left open the question as to whether in some other

circumstances, if questioning, as my learned friend

argued, was carried out at the one place, at the

one time with the machine being turned on and off,

there may well be - - -

MASON CJ: It might be a continuous question.

MR BONGIORNO: It might be a continuous question. It might

be a completely different question. But in this

point that arises is whether the questioning at	instance and on the facts of this case, the only admissible by virtue of there having been
compliance with section 464H and the court found, as did the trial judge, that there was.

There is nothing more that I can add to the

way in which it has been expressed by the joint

judgment of Their Honours in the Court of Criminal

Appeal on that point.

MASON CJ:  What about the second point?

MR BONGIORNO:

The section 464C point, in our submission,

again, I respectfully adopt the arguments that are

set out in the joint judgment of the Court of

Criminal Appeal.

MASON CJ: But what if we take the view against you, the

Court of Appeal's construction of 464C(l) is

incorrect, what do you then say?

MR BONGIORNO:  Then, if the construction required the

investigator to do more than he did in this case,

one gets back to the question of the discretion

which is retained by section 464J. So that the

question of the admissibility of that evidence then

falls for decision by the trial judge on the basis

Pollard 23 12/3/92

of a discretionary exclusion, either on the basis of Bunning v Cross or on the basis of unfairness.

In this case, and given the ruling of the

trial judge and the canvassing that he made of the

issues and the way in which he approached the
matter, in our submission, there would be no basis

for a special leave point arising out of that, even

if this Court were of the view that the

construction placed on the matter was unduly narrow

by the Court of Criminal Appeal.

GAUDRON J: Is that a correct statement at page 93? There

is a reference to the Cleland discretion and it is

said:

the learned trial judge does not appear to

have been invited to exclude the video tape on

that ground - - -

MR BONGIORNO:  I am sorry, Your Honour. Did Your Honour say

93?

GAUDRON J: Yes, I did.

MR BONGIORNO:  Yes, I have got it, thank you.

GAUDRON J: His Honour the trial judge seems to have

considered unfairness fairly comprehensively in

relation to the arguments that were put.

MR BONGIORNO:  Yes. There was no argument upon that either

before the trial judge or, indeed, before the Court

of Criminal Appeal. There is certainly no argument

on the question of - I take it that Your Honour is

referring to the exclusionary ground based upon the

deterrent effect of exclusion upon investigatory

authorities. That was not argued - it would appear

not to have been argued before the trial judge and

it was not argued before the Court of Criminal

Appeal.	It is simply referred to there. What was
argued was the - - -

GAUDRON J:	The general unfairness.
MR BONGIORNO:	- - - the more general proposition that

Bunning v Cross might have required the exercise of

a discretion in favour of the accused but there was

no reference to the deterrence head of exclusion,

if that is what it might properly be called. I

should also say my learned friend made something in

his argument of there not having been a caution at point of arrest, not that I think anything turns on

it so far as the argument is concerned.

Pollard 24 12/3/92

MASON CJ:  Mr Bongiorno, can we come back to that sentence

identified by Justice Gaudron a moment ago. It

does seem, does it not, that although the

submission was made of non-compliance with 464C(l)

at Frankston, that such a submission was not made

in relation to St Kilda.

MR BONGIORNO: Before the trial judge?

MASON CJ: Yes.

MR BONGIORNO:  I think that is right, Your Honour, yes.

Indeed, I would not even concede that it was made in those terms at Frankston, if one looks at what

the trial judge said in his ruling.

MASON CJ: That may be correct but, certainly, so far as

St Kilda is concerned, there is nothing to suggest

that such a submission was made to the trial judge,

ie non-compliance with 464C(l), leading to

illegality.

MR BONGIORNO:  Yes, it appears not on a reading of his

ruling and I am unable - certainly it was raised in

the Full Court, section 464C, at St Kilda Road but

I have no recollection of whether any argument was

addressed there as to it not having been raised in

the court below; I just cannot remember.

MASON CJ: Well now, what do you say about Mr Weinberg's

submission that, leaving aside the absence of an

appropriate submission at the trial on this point,

we are now confronted with what may be an incorrect

interpretation of section 464C(l) by the Court of

Criminal Appeal that is obviously going to be followed in other cases?

MR BONGIORNO:  Yes. Well, if Your Honours came to that

view, I could not argue that that was not a special

leave point. If, in fact, the Court took the view

that the Court of Criminal Appeal was arguably

wrong, given that that now represents the law in

this State until it is reversed either by this

Court or reconsidered by the Court of

Criminal Appeal - - -

MASON CJ: Yes. There is an obvious difficulty in our

saying on a special leave application that the

Court of Criminal Appeal may be arguably wrong on

that point, without going on in an appeal to

express our view about it.

MR BONGIORNO:	Yes, well that is - yes.
MASON CJ:	I mean, if you look at the position that the

Court of Criminal Appeal is in, if we say an

interpretation is arguably wrong or there is force

Pollard 25 12/3/92

in a contrary argument, what does the Court of

Criminal Appeal do when the matter arises before it

again, because it has not got a concluded view from

this Court?

MR BONGIORNO:  Yes, I see the point Your Honour is making.

I suppose that might often arise in this sort of

situation where an argument is put. It would be

our submission, of course, that the Court of

Criminal Appeal is clearly right, so we would not concede that, but I see the force of what

Your Honour says, so far as Act creating the vehicle by which the matter might be examined by

this Court. I do not think as I stand here that I

can see any cogent answer to what Your Honour has

put.

I do not think there is anything further,

unless there is any specific matter that is not set

out in our summary of argument, which I have

virtually ignored in the course of dealing with my

friend's submissions. Perhaps so far as - yes,

well, having regard to the way the argument has

gone, paragraph 5 of our argument is probably of
not much concern now, and so far as section 464H is

concerned, I think I have said everything that can

be said on behalf of the Crown.	If the Court
pleases.

MASON CJ:  Thank you, Mr Bongiorno. Do you have anything in

reply, Mr Weinberg.

MR WEINBERG:  I do not think I could add anything,

Your Honours.

MASON CJ:  The Court will take a short adjournment in order

to consider this matter.

AT 3.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.12 PM:
MASON CJ:	The Court has come to the conclusion that this

application should be referred for consideration by

a Full Bench of the Court consisting of five or

seven Justices, and the parties should be prepared,

when the matter is listed, to argue the substance

of the case.

AT 3.13 PM THE MATTER WAS ADJOURNED SINE DIE

Pollard 26 12/3/92