Prentice v The Queen

[1992] HCATrans 47

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No 5103 of 1991

B e t w e e n -

MARK ANTHONY PRENTICE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

TOOHEY J

MCHUGH J

Prentice 1 13/2/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1992. AT 11.27 AM

Copyright in the High Court of Australia

MR M.L. SIDES, QC:  Your Honours, I appear with my learned

friend, MR M.L. BRABAZON, for the applicant.

(instructed by Craddock, Murray & Neumann)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR A.M. BLACKMORE, for the
respondent. (instructed by the Director of Public

Prosecutions (New South Wales))

MR SIDES:	Your Honours, if I might hand up photocopies of cases that it is anticipated to take Your Honours
to and to an outline of the applicant's submission.
BRENNAN J:	Does the outline go beyond what appears in the

summary of argument?

MR SIDES: It does to this extent, Your Honours: in

paragraph 5, particularly subparagraphs (a), (b)

and (c) thereof, there are matters raised to meet

what appears in the outline of the Crown's

submissions.

BRENNAN J: Yes, Mr Sides, but could we say that the basic

problem that you face is that at the end of the

day, if you were granted special leave, the

question would be whether or not this confession

was voluntary, and that is essentially a question

of fact, and there is a concession at first

instance.

MR SIDES: There is a concession at first instance,

Your Honours, but we would respectfully submit that

that does not stand in the way of the success of

this appeal.

BRENNAN J:	Why not?
MR SIDES:	Your Honours, firstly, the court below, the Court of Criminal Appeal, allowed argument, indeed, heard

argument in full on the matter. It was not a

matter in which the court below applied rule 4.

Secondly, we would submit to Your Honours that the

evidence did raise, notwithstanding the concession,

the question of voluntariness.

McHUGH J: But rule 4 is not applicable. This was a

concession.

MR SIDES: It was a concession, Your Honour, but it was a

concession in the context of a special hearing.

This was not a normal trial, number one, and

counsel in a special hearing is in a very difficult

position. The section requires that a person at a

special hearing be represented by counsel unless
the court orders otherwise and, of course, because

the applicant is unfit, he is incapable of giving

Prentice 2 13/2/92

instructions about matters of fact.	So,
consequently, he would be incapable	of giving
instructions concerning his version	of the facts
surrounding the interrogation.

BRENNAN J:  What you are saying is that concessions cannot

be made by counsel because they cannot get

instructions to make them.

MR SIDES:  What I am saying to Your Honour is that the

concession made should not be seen as binding in
the same way as it would be binding at a trial

proper.

BRENNAN J: But the problem is not a question of whether it

is binding or not. The judge is called upon to

determine whether to admit a piece of evidence and

he is required to admit it, if it is relevant, if
it is voluntarily given and the concession is made

that it is voluntarily given there and then.

MR SIDES: Yes.

BRENNAN J:  Now, does he have to go beyond that?

MR SIDES: Yes, Your Honours.

BRENNAN J:  Why?

MR SIDES:  We would respectfully submit that there is ample ,

authority in MacPherson's case to demonstrate that,

notwithstanding such a concession. If, on the
evidence, the question of voluntariness arises, it
is the obligation of the trial judge to consider

the issue of voluntariness.

BRENNAN J: But MacPherson's case was a case where the

accused was unrepresented, was it not?

MR SIDES: Surely, the accused in the instance was

unrepresented but we would respectfully submit that

the principles there, none the less, apply in cases

where persons are represented and are very

applicable to cases where there is a special

hearing because the accused is unfit and unable to

give instructions.

BRENNAN J: That seems to me to be the very case where the

responsibility of counsel is at its highest and if
counsel then makes the concession, in the interests

of his client, having acquired whatever

instructions he can acquire, it is a big step to

say then that a court on appeal should review the

trial judge's finding.

MR SIDES:  Your Honours, the court on appeal did, in fact,

review the finding. His Honour made the formal

Prentice	13/2/92 finding that the confession was voluntary and in so finding gave great weight to the concession that
was made but we would respectfully submit to
Your Honours that, firstly, His Honour was bound to
consider the question of voluntariness because of the evidence raised and, secondly, that finding 6, a finding His Honour made in relation to the question of discretion, is really applicable to
voluntariness.

McHUGH J: Well, I have great difficulty with that

proposition. It goes to the question of fairness.

A statement can be made voluntarily although a

person has no idea of his right to remain silent.

MR SIDES:  We would respectfully submit, particularly in

relation to people who are functioning in a
child-like fashion, that it is necessary that they

understand the right to silence, that it is

artificial to split them up, and that is a

continuing theme of the cases dealing with children

and people whose understanding of European culture

and ways of functioning, such as Aboriginals, are
dealt with. Great emphasis is placed in those

cases upon the need to understand the caution.

TOOHEY J: But they are cases in which the admissibility of

the evidence is challenged, are they not?

MR SIDES: Yes. Well, the admissibility of the evidence was

challenged here and it was sought by the concession

to challenge it upon a limited basis.

TOOHEY J:  Yes. I am suggesting to you that some of those

cases are cases in which the voluntariness of the

confession was challenged.

MR SIDES: Yes, and it is important to remember - and I

think Anunga's case says it itself and, I think,

Your Honour Mr Justice Brennan said it in Collins'

case, that the rule such as the Anunga rule go as

much to voluntariness as they go to the question of

discretion.

BRENNAN J: Well, they may bear upon the question of

voluntariness but it would be a new extension to

say that a statement could be voluntary only if the

confessionalist had a knowledge of jurisprudence

which enabled him to say, "I have a litigable right

to silence".

MR SIDES:  It would be relevant, we would submit, in this

fashion, that his level of understanding and his

ability to understand the concept, if you like, or

his right to remain silent, is an indication of the

level of his functioning and his capacity.

Prentice 4 13/2/92

McHUGH J: But that is not the real issue. The issue is

whether the statement was made freely by him.

MR SIDES: Well, there was evidence about that.

McHUGH J:  Now, if he has been given a warning and he makes

the statement, it is powerful evidence that the statement was freely made. But you cannot take that proposition and reverse it.

MR SIDES:	Your Honours, the point is, in relation to the caution, particularly, for example, in relation to
juveniles, the mere administration of the caution
is not seen to be sufficient. What is emphasized
in those cases and, again, in the cases applying
the Anunga rules, is the requirement that there is
evidence demonstrating that what has been conveyed
in the caution has been understood.
McHUGH J: Well, it is a question of fact.	Take a child of

10: the child, in the circumstances of the case,

might have a full capacity, might quite understand

the right to remain silent. The mere fact that he

is not warned -

MR SIDES:  It may depend on the evidence in a given case and

some 10-year-olds are obviously much brighter than

other 10-year-olds. In his receptive domain of

language functioning, this man's level was three

years eleven months.

Even in Dixon v McCarthy's case which dealt

with juveniles as old as 16, there was - even

though a caution had been given, in the absence of

any evidence that they understood what the caution

meant, it was held not to be voluntary.

McHUGH J: But a statement about what his age was alleged to

be just shows what an unsuitable vehicle this case

would be. When you read his various questions and

answers, one has the feeling it is very difficult

to accept those propositions of the psychologist.

If this issue had been raised before the trial

judge, then one would be in a very different

position to consider all the material.

MR SIDES: Yes. His Honour considered carefully the

evidentiary material and, indeed, His Honour found in finding number (6) that his understanding - - -

McHUGH J: Well, he said he -

had difficulty, even great difficulty, in

understanding the statements and questions

bearing upon his right to silence.

Prentice 5 13/2/92

MR SIDES: Yes, and the important thing is that even quite

young children, in a question and answer situation,

can answer questions and convey accurate and

meaningful information. They can tell you who

their teacher is, they can often tell you what
their school is and what address and their

brother's name and their parents' name. So that we

would submit that whilst it is legitimate to look

at the record of interview and the way that he was

questioned and the way he has answered questions in

assisting in determining his capacity, it is not of

itself conclusive. And certainly His Honour did

not express the view that he rejected the findings

of the psychologist which was supported by Dr Jolly

and significantly supported by Dr Wong.

But the other evidence that we would submit is

of significance appears at page 23 of the

application book where Dr Hayes was giving evidence

and at about point 2 she described that the

applicant:

is functioning at what is called the

"pre-conventional level" on moral reasoning

where he does not have any understanding of

the rules which govern society. He just does

or refrains from doing something because of

fear of the consequences, like a very young

child.

And then she was asked specifically, at the bottom

of that page, a question, we would submit, that

goes to the very issue of whether the choice to speak was made freely or not, and she was asked

this question:

People with his disability, do they tend to be

compliant with people in authority? A. Yes,

they do and this is part of the deficit in

moral reasoning, that response is to authority

so somebody with authority status or

perceived in the person's eyes to be an

authority comes along, they will tend to agree

with that person because they want to avoid
the consequences, as they perceive it, of

disagreeing.

Now that, we respectfully submit, which was

untested in cross-examination and unchallenged,

goes to the very issue of whether the choice was

made freely or not, the inference being that it was

likely or possible that he was behaving in a

compliant way.

BRENNAN J: But what the trial judge was doing was

considering the admissibility of the confessional

statement in the light of the concession that it

Prentice 6 13/2/92

was voluntary. You now have a finding by the trial

judge and a finding by the Court of Criminal

Appeal, "As a matter of fact, this confession was voluntary". You have concurrent findings of fact based in the first instance upon a concession. How

can you get special leave to raise that again here?

MR SIDES:  Your Honours, the reasoning that seems to have

led the court below to find that the confession was
voluntary appears at page 55 of the application

book where the Chief Justice, with whom the other

members of the court agreed:

and there was no evidence that the appellant

is a person who was incapable of making a free

choice or of understanding his right to choose

between speaking and remaining silent.

Now, that seems to be the reason why they come to

the conclusion a little further down that:

the evidence does not justify the conclusion that the Crown at the special hearing failed

to show on the balance of probabilities that

the confessions were voluntary - - -

McHUGH J: Well, His Honour goes on to say:

I am of the opinion that a review of the

entirety of the evidence at the special

hearing supports a conclusion that the Crown
did show on the balance of probabilities that
the confessional statements made by the

appellant were voluntary.

MR SIDES: But if he is saying in the first passage,

Your Honours:

there was no evidence that the appellant is a

person who is incapable of making a free

choice -

then it would be axiomatic that on a review of the

entirety of the evidence he would come to the

conclusion the court came to. What we are

submitting is that the process of reasoning is

fatally flawed because there was evidence of his

capacity to make a free choice. And the court,

having entertained argument on the point and having

approached it upon the basis that it was
appropriate for the court to review the evidence,
notwithstanding the concession made at first
instance, and make a determination upon the

question of voluntariness for itself, the court, we

would respectfully submit, in its reasoning

process, fell into error in finding that there was

no evidence in relation to his being capable to

Prentice 7 13/2/92

Y'if\1-

make a free :hoice or and it is

,L;. .,J - '

interesting - - -

BRENNAN J:  Mr Sides, you cannot really escape from what the

Chief Justice said at page 55, half-way down, that:

there was no issue ..... as to the voluntariness

of the confessions -

MR SIDES: Yes, I appreciate that. There was no issue in

the sense that the counsel made the concession but

what we are saying, Your Honours, is that there was

evidence. Notwithstanding the concession made,

there was evidence which would have justified

His Honour in finding the confession was not voluntary.

BRENNAN J: Well, you understand the difficulty that you

face and if you have anything further to say then

by all means say it.

MR SIDES: 

We would submit that part of the reason why the

court below fell into error is that it looked only
for specific questions going to this question of
capacity. At the top of page 55, the Chief Justice
observes:

No witness at the special hearing

expressed the view, or was asked to express a

view, to the effect that the appellant was,

and is, not a person who is capable of forming

or exercising a free choice as to the making

of admissions of the kind that were made by

him in the present case.

Now, no question was directly put in that

instance but what was put was a general question

and the answer, we would submit, was specific to

the case and that is the question and answer at the

bottom of page 23 of the application book that

deals with him being a compliant person to people	in authority. That, we respectfully submit, goes
to the very question of his capacity to make a free
choice.

McHUGH J: It is in a very limited context. In civil cases

there is a rule that you cannot raise a new point

on appeal if the admission of evidence could

conceivably have affected that point. Now, if ever

a case fell within that principle, it is surely

this one. This case may have had a great deal of

evidence if that was a real issue in the particular

case.

MR SIDES:	The problem from the applicant's point of view is that the great deal of evidence to which
Your Honour refers, it seems, the only source of it
Prentice	13/2/92

might have been the applicant himself who was

unfit.

McHUGH J:	The cross-examination may have been different.
MR SIDES:	You see, if he is unfit to give instructions, he

is unfit to tell his counsel, to give his counsel

information that would form the basis of
cross-examination, in which case is it legitimate
for counsel then to go on what would normally be

regarded as a completely fishing expedition without

any instructions to support it.

BRENNAN J: Well, are you in a position to say that counsel

acted without instructions?

MR SIDES: Counsel could not get instructions because his

client was not in a position - was not fit to give

instructions.

BRENNAN J: Are you in a position to state that?

MR SIDES:  I am not in a position to say that but the

evidence discloses it. Indeed, Dr Wong's opinion,

which is referred to in the application book at

page 36 - the learned judge at first instance makes

reference to the evidence of Dr Wong, and this was

in relation to his fitness, and the evidence was:

Furthermore, because of his retarded

development, I do not feel he would be in a

position to understand even the gist of the

evidence given against him or to follow the

proceedings in court -

and, indeed, at one stage during the delivery of
the learned judge's reasons - I think it was either

the reasons on the voir dire or the summing up -

there was in fact a disturbance, some sort of

outburst, for want of a better word, on the part of

the applicant. And the very fact, of course, that

no questions were asked, putting to any of the

witnesses what did and did not happen, would be

indicative that counsel had no instructions; had no

details from his client - and perhaps "client"

should not be used in the traditional sense in a

special hearing - but had no instructions from thf=

applicant and that must be demonstrated from the

failure to cross-examine the witnesses and a

failure to put to them in the questions things that

happened.

So, special difficulty arises for counsel in

the conduct of these hearings and reference is made
to that by His Honour Mr Justice Williams in Reg v

House, (1986) 22 A Crim R 344 at page 354. At

page 354 at about point 5, His Honour said:

Prentice 13/2/92

In my view, a legal representative

(whether he be barrister or solicitor) for a

person in the position of the appellant is in

an extremely difficult position, and he ought

not, even in the face of questioning from the are dependent upon proper and meaningful instructions having been received from the

client.

That was a different situation to what pertained

here because the tribunal questioned counsel about

the statement of facts that were sought to be
tendered and counsel made certain submissions about
the facts which had obviously come from his client.

I jump the next sentence and continue:

The Tribunal is dealing with a person whose

liberty and other rights are at stake, and who

by definition is probably not in a position to

give instructions as to the conduct of the

proceeding on his behalf. In consequence, it

is for those who seek to prove the citizen's

state of mind to do so without relying on

concessions extracted from his legal
representatives. That is not to say that

legal representatives in such a situation

should adopt an obstructionist approach or

resort to delaying tactics. The ethical duty

of a lawyer in such a situation is to put the

issues before the Tribunal to strict proof,

and if the evidence is sufficient, the hearing

would not be protracted.

Now, it may be, in retrospect, that counsel

was not behaving in an appropriate fashion in

making - - -

BRENNAN J:	It may be or it may not be.
MR SIDES: Well, may not be.

BRENNAN J: It is a major thing, it seems to me, for counsel

to come to this Court and to mount an argument

seeking special leave to appeal on the footing that

counsel who appeared for somebody at a trial had

been recreant to their duty. For my part, without
some demonstration of that proposition, I am not

prepared to accept it.

MR SIDES:  We would submit to Your Honours the demonstration

appears in the manner in which the hearing itself
was conducted and the fact that, firstly, the

applicant did not either give evidence or make a

statement and, secondly, that no questions were put

to any of the witnesses that would be indicative of

information gleaned from the applicant himself.

Prentice 10 13/2/92

McHUGH J: But you do not know. Counsel may have had

instructions that this confession was made

voluntary or that it could not be challenged. There

was not an issue. The Crown prosecutor did not

cross-examine on the issue. There just was not any

evidence about it.

MR SIDES:  The only evidence about it is the evidence to

which I have taken Your Honours which is the

evidence, particularly, from the psychologist.

BRENNAN J: That was the evidence that was given in the

light of the issues for then to be determined.

MR SIDES: But it went, Your Honours, to the issue of

voluntariness.

BRENNAN J:  It was evidence which would have been relevant

had the issue of voluntariness been raised.

MR SIDES:	But we submit to Your Honours the mere giving of the evidence raises the issue notwithstanding the
concession and that, we would submit, is supported
by MacPherson's case, and what is said in unrepresented accused because in Dixon v McCarthy
the same question arose and notwithstanding the
concession of the solicitor who appeared for the
young persons at first instance, Mr Justice Yeldham
entertained the application for the prerogative
orders and granted them, having found that the
confessions were not proved to be voluntary.
McHUGH J:	When counsel appear in a case and concede a

point, a judge would want very cogent reasons for

going behirtd that concession and, indeed,

interrogating counsel about his reasons for the

concession or the extent of his instructions.

MR SIDES: Well, Your Honours, I do not think that I can put

the matter any higher.

BRENNAN J:  No. We need not trouble you, Mr Blanch.

The applicant contends that a confession by a

person of child-like mentality and understanding

should not be treated as voluntary unless it is

established that the person understands that he has

a right to remain silent and his choice to speak

was made free from the influence of persons in

authority or from the circumstances that he is in

at the time of speaking. At the special hearing

held pursuant to section 428M of the Crimes Act

1900 (NSW) counsel for the applicant conceded that

the confession was made freely and voluntarily but

submitted that the trial judge should exclude it in

the exercise of his discretion. Nevertheless, the·

Prentice 11 13/2/92

Court of Criminal Appeal allowed the question of

voluntariness to be raised in an appeal to that

Court and held it to be voluntary.

In the light of the concession, there is no

justification for granting special leave to
consider what are concurrent findings of fact by
the trial judge and the Court of Criminal Appeal.

Had the questions of principle which counsel for

the applicant now seek to raise on appeal been

agitated at the special hearing, it may be that the

course of the voir dire would have been different.

The case is not a suitable vehicle for

considering those questions of principle.

Accordingly, special leave will be refused.

AT 11.57 AM THE MATTER WAS ADJOURNED SINE DIE

Prentice 12 13/2/92