R v Hein - [2013] SASCFC 97

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEIN
[2013] SASCFC 97
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Peek)
20 September 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
Appeal against conviction for aggravated robbery - whether judge bound by earlier ruling on voir dire by another judge - whether that judge erred in allowing cross-examination on the voir dire as to the truth of the admissions made to police - whether judge erred in failing to exclude evidence of police interview on basis it was unfair to admit the evidence - whether direction to jury as to use of suggested lies was flawed.
Held: appeal allowed - main part of interview should have been excluded - direction on lies was apt to mislead - retrial ordered - observations about cross-examination as to truth on the voir dire and on application of s 285AB Criminal Law Consolidation Act 1935.
Criminal Law Consolidation Act 1935 (SA) s 285AB; Evidence Act 1929 (SA) s 23, s 24, s 18V, referred to.
R v Wright [1969] SASR 256; McPherson v The Queen (1981) 147 CLR 512; R v Semyraha [2001] 2 Qd R 208; Frijaf v The Queen [1982] WAR 128; R v Mardlin [2004] WASC 73; R v Rowen (Unreported, Supreme Court of South Australia, Cox J, 25 January 1979), discussed.
R v Szach (1980) 23 SASR 504; R v Sharp (1983) 33 SASR 366; R v Croyden (1986) 11 CCC 67; The King v Brown (1931) 23 Cr App R 56; R v Brown (1988) 146 LSJS 326; Wong Kam-Ming v The Queen [1980] 1 AC 247; R v Brophy (1981) 2 All ER 705, considered.

R v HEIN
[2013] SASCFC 97
Court of Criminal Appeal: Vanstone, Kelly and Peek JJ
VANSTONE J:
Appeal against conviction for aggravated robbery

On 10 September 2009 there was a robbery at the Mannum branch of BankSA. The unarmed robber was not disguised but wore a pair of wrap-around sunglasses. The robbery occurred just before the bank was due to open. The only persons present were two bank employees, one of whom was the appellant and the other the woman named as the victim in the information, whom I shall call V. The case against the appellant was that she provided to the robber, whom she knew well, important information which allowed him to plan and execute the robbery, that she facilitated his entry and that during the robbery she failed to activate an alarm when she had the chance.
Originally the person said to be the principal, one Justin Lundberg, and the appellant were jointly charged with aggravated robbery. At the commencement of their trial the appellant sought a ruling that certain admissions she had made to police were inadmissible owing to inducements having been held out to her. She also sought discretionary exclusion of the interview. The original trial judge ruled against her on the issue of voluntariness and excluded only some of the questions and answers to which argument had been addressed. The judge said he would give reasons for so ruling if asked. Lundberg then sought a separate trial on the basis that some of the material in the appellant’s interview tended to implicate him. It is a matter of regret that that application succeeded and a separate trial was ordered. Lundberg’s trial then proceeded before the original judge and a jury and he was found guilty.
The appellant was remanded for trial. By the time her trial was reached the original trial judge had retired. To that point neither the prosecution nor the appellant’s legal advisers had sought reasons in relation to the determination of the appellant’s voir dire. Not long before the appellant’s trial s 285AB of the Criminal Law Consolidation Act 1935 (CLCA) was enacted. Under that section the second judge would usually be bound by the orders made by the original judge. The second judge heard lengthy argument as to the applicability and effect of s 285AB. He had regard to the evidence given before the original judge on the voir dire and to the submissions made and determined that, notwithstanding the absence of reasons, he was so bound. Although upon the appeal counsel for the appellant, Mr Boucaut SC, does not challenge the applicability of s 285AB, he argues that, in the absence of reasons for the original decision, the second judge was wrong to consider himself to be bound.
Mr Boucaut also argues that the voir dire hearing miscarried inasmuch as prosecuting counsel was wrongly permitted to cross-examine the appellant on the truth of the admissions which she made. That was done over the objection of counsel then appearing. It is further argued that even on the face of the recorded interview the mode and manner of the questioning was such that the interview should have been excluded, either because inducements were held out to the appellant and the questioning was marred by impropriety, or as a matter of discretionary exclusion, in that it was unfair to use the admissions against the appellant.
Finally, the appellant argues that there were material deficiencies in the direction the second judge gave to the jury in relation to lies which it was suggested she had told to police prior to her coming under suspicion. It is said that the jury was instructed that it could use these lies as evidence of guilt without an appropriate direction being given.
I propose to deal first with the complaints about the manner in which the police interview was conducted (ground 2) and then to go to ground 4, the argument resting on the direction the trial judge gave to the jury in respect of the suggested lies. In my view the appeal should succeed on the basis of both grounds.
The police interview
I proceed on the basis that the rejection of the appellant’s evidence to the effect that prior to the recorded interview she was offered inducements and was the subject of coercion stands. I confine my consideration to the terms of the recorded interview.
I now set out the main questions to which objection was taken before the second judge and which led to the contention that the interview was involuntary or liable to discretionary exclusion. I have italicised the impugned parts.
Q6.Okay. Now currently as I said to you, it’s come to our attention that you may be involved in this robbery with Justin [Lundberg]. Is there anything you’d like to say in relation to that.
A. No.
…
Q34.We obviously know a lot more about this investigation than we’re leading to okay. First of all we know that he handed forty one thousand dollars in cash to someone at the Camelot Hotel shortly after the robbery yesterday, on Thursday okay. What can you tell me about that. Do you see where we’re going with it now.
A.He didn’t actually give me details he mentioned something one night when we were drunk he said something about the Gypsy Jokers, what’s the other one, or Rebels and he said something about bikie gang but he didn’t want to tell me anymore about anything.
…
Q38.Alright I’m going to ask you again okay have a good think before you answer. Is this the person that robbed the Bank SA at Mannum. (showing picture of Lundberg)
A.Probably yes.
Q39.Okay now we’re starting to get somewhere. In your own words just explain to me how it came to be that this plan was actually hatched. Whose idea was it. I presume it wasn’t yours.
A.No.
…
Q49.You knew he was going to come that day didn’t you. You know I can sit here and ask you a lot of really tough questions or you can just come clean its up to you alright but I’m just going to keep asking the questions as I said you don’t have to answer each one you can tell me you don’t want to answer them but I believe that there’s something on your chest that you need to get off I know I can understand you know that you’re quite, you know, upset about it. You’re terrified the last few days I’ve seen that you’ve been extremely nervous and extremely worried and I think you feel a bit guilty myself, that’s my interpretation. Alright so I’m going to ask you some questions now. We’ll go back to the start as I said before you don’t have to answer the questions if you don’t want to anything that you do say is being recorded and can be used as evidence do you understand what that means.
A.Yes.
…
Q51.And it involves the robbery of a Bank and innocent people have been involved in it and caught up in it and terrified because of it. And these people are one of your own work colleagues okay, alright, alright. So let’s go back to the start I want to talk about him okay you’ve known him for a while and he was a previous employer, employee okay.
A.Yeah
…
Q75.Well about security about where you worked how many people worked there. How easy it would be to rob. How much money’s held there. Bear in mind he’s being spoken to.
A.He’s trying to blame me now.
Q76.Well this is your chance, this is why we’re coming to see you. If you feel that he’s dumped you in it then you might need to clear everything that’s going around in that head of yours.
A.I can’t believe he did it to me.
Q77.I know you have previously answered this question I’m going to ask you again, the relationship that you’re in with him is it, do you want to be more than friends with him what is your attraction with him.
A.Nah, I don’t know, he’s a fun guy to hang out with, we had fun together, that was all we’re just friends, still can’t believe he did it to me that’s all.
Q78.Well he did it to you okay, and he’s left you holding the bag. Alright everything you had Wednesday is lost in terms of your job okay how people see you, how you put your work colleagues in the position that you put them in and it’s because of him. Now what’s important here is that when we talk about what you did to help because I don’t believe for a second that he’s come in on his own unplanned and he’s done it on a day that you’re there. I think that you may have had good intentions to help a friend I believe that you’ve played a significant part in this and this is your opportunity to tell me what that part was. So in your own time and in your own words you just tell me what’s actually happened so we understand it.
A.He just wanted to find out about the Branch. And if I was going to be working there; when I was going to be working there and who I was going to be working with. He said aw, how much money is there, I was trying to find out I guess. Once I told him, it was just a guess, I don’t know, and like how do you open the safe, he said do you need codes. Do I have to look at him.
(italics added)
It was contended that the balance of the interview should have been excluded as involuntary. It was also argued both at trial and before this Court that those parts of the interview to which I have referred should have been excluded in any event as a matter of discretion, it being unfair to use the answers against the appellant.
In my view there is nothing improper in questions 34, 38 and 39. There is nothing wrong with police advising of a fact revealed by their investigations, provided they recount it accurately. On the other hand police are not required to disclose the fruits of their investigation. While it is rather paternalistic to tell a suspect to have “a good think” before answering I do not think it is objectionable. In question 39 the police officer assumes that the appellant had knowledge of a “plan” being “hatched” and the appellant had not said as much. While such a question would have been objectionable if asked of a witness in court, I do not consider that the same rules apply to police questioning, at least not as strictly.
Question 49 falls into a different category. For a start, it is as much a lecture as a question and that lends to it a coercive quality. It contains a veiled threat to wear the appellant down with a succession of “tough questions”. It purports to convey the questioner’s belief that she has “something on [her] chest” together with his conclusion that she is feeling “a bit guilty”. It is very unlikely that the appellant had ever previously been in the position of being interrogated by a detective, she being a bank employee, presumably of good character. I can well understand that questions of this type might have been found by her to be intimidating. Question 51 really amounts to a continuation of question 49, although it does not contain what I see as the vices of question 49.
There were a number of complaints about the sequence of questions from 75 to 78. First it was said that the police officer by saying the words “bear in mind he’s being spoken to” misled the appellant. It appears from other evidence that although Lundberg had been arrested, he was not at that time being questioned, let alone in the process of implicating the appellant. It was suggested that the police perpetuated what appeared to be a misapprehension in the appellant’s mind of the true state of affairs by suggesting to her that if the appellant felt that Lundberg had “dumped [her] in it” then she might need to “clear everything that [was] going around in that head of yours” (question 76). While on one view the sequence of questions from 76 to 78 could be interpreted as referring to Lundberg causing trouble for the appellant by committing a crime at her workplace, it is noteworthy that at the appellant’s trial prosecuting counsel put to the jury that it appeared that the appellant was indeed labouring under a misapprehension to the effect that Lundberg was, in what he was saying to police, implicating her in the crime. The appellant’s counsel further complained that it was inappropriate for the police officer to refer to his own belief about the matter, twice, in question 78.
The police officer concerned said in evidence that he did not deliberately mislead the appellant, but the wording of question 75 was apt to convey that Lundberg was being spoken to at that very time. I consider that the officer could properly have told the appellant that Lundberg had been arrested and that police planned to interview him about the matter. However, questions 75 and 76 went further than that.
It is clear that police officers interviewing a suspect may not mislead him. In R v Szach (1980) 23 SASR 504 this Court upheld Wells J’s ruling on the voir dire that police had not been obliged to alert the accused, who was driving the victim’s motor vehicle, that since first speaking to him the victim’s body had been found and that they were now investigating a murder and not just the theft of his car. However, that decision turned very much on the fact that the investigation was at an early stage and Szach was not a suspect. King CJ said at 582:
Such legitimate investigatory tactics are not to be confused with falsehood or dishonest trickery. Honesty is to be demanded of the police and other law enforcement agencies at all times. Falsehood, express or implied, and dishonest trickery must always bring the condemnation of the courts however worthy the ends sought to be achieved by such methods. The end can never justify such means, and the courts must be ever ready to use the discretion to exclude evidence obtained by such means, even if technically admissible, in order to preserve the stream of justice from pollution and protect the citizen from the possibility of oppression. Devices and stratagems have a part to play in police investigation, but they must not be allowed to degenerate into dishonesty in any of its forms.
In R v Sharp (1983) 33 SASR 366 the accused had told Detective Florance that he did not know where the deceased’s body was. Florance told him that the victim’s parents would surely like to give her a decent burial. Later the accused took police to the correct location. Florance failed to tell the accused that in the meantime other information had allowed them to locate the body. Florance’s conduct was described by Cox J as “affirmatively and culpably misleading” (at 376) and he found that it would be unfair to admit the statement against the accused.
If it becomes plain that a suspect has misapprehended something which has been said to him by an officer then the suspect should be disabused of his misunderstanding. In Sharp at 376 Cox J referred to R v Rowen (unreported, Supreme Court of South Australia, Cox J, 25 January 1979) in which he had “rejected evidence of an interrogation in which a detective, by his own positive act, knowingly confirmed a suspect’s mistaken understanding of a particular matter”. There, the police attended at the suspect’s address at 6:00 am in relation to a kidnapping that had occurred hours before. Part of the conversation was as follows:
Detective:Last night several persons were kidnapped from Parkholme and taken to an address to obtain heroin. They were kidnapped by two men. I believe that you are one of those men. What have you to say about that?
Rowen:Who put me in?
Detective:I believe the other person was Mick Mayne. What have you to say about that?
Rowen:You’ve got him have you, was it him?
Detective:What was the purpose for kidnapping the persons?
Cox J doubted that the detective intended to deceive Rowen but found that, in failing to dispel the obvious error made by Rowen to the effect that Mayne had implicated him, the detective fell into serious error. Though Cox J thought the matter to be finely balanced, he exercised his discretion.
It will be noted that there is a particular sensitivity where police conduct has the effect of misleading a suspect in relation to a co-offender’s statements to police concerning him.
Questions conveying to a suspect that the interviewing police officer does not believe him and the belief that he is guilty are also improper. In R v Croyden (1846) 11 CCC 67 the words “I dare say you had a hand in it; you may as well tell me all about it” were found to be an inducement such as to render the confession inadmissible. In The King v Brown (1931) 23 Cr App R 56 the Court rejected a confession which followed a statement by a police officer to the suspects in custody in these terms:
I am satisfied you both know something about taking the glass from the window in Ashwell’s shop on the night of 20 April and stealing the goods.
In R v Brown (1988) 146 LSJS 326 at 330 King CJ, speaking for the Court of Criminal Appeal, approved of this line of cases, although the circumstances there under consideration were found to be distinguishable.
In this case the combination of the quite forceful indications by the police officer that he would continue to put “tough” questions to the appellant, the several expressions of belief that the appellant was involved in the robbery and the contribution the officer made to engendering a false belief that Lundberg had implicated the appellant all lead me to conclude that the questioning from question 49 should have been excluded, at least as a matter of discretion, in that there was police impropriety and it was unfair to use the evidence against the appellant. Such findings were available to the second judge, just as they are available to this Court. In my opinion the second judge should not have considered himself to be bound by the ruling of the second judge, so far as it related to the recorded interview.

This ground is made out.
Direction on suggested lies
When police attended at the scene of the robbery the appellant told Constable Barrie that she did not recognise the robber. On the following day when she provided a written statement to police she again failed to nominate Lundberg as the robber. The prosecution relied on what it suggested were clear lies on both occasions as items of circumstantial evidence which, together with other evidence, tended to prove the crime. The judge directed the jury that if it found either statement to be a lie, then it could only be used as a piece of circumstantial evidence demonstrating the guilt of the accused if the jury was “satisfied that [the appellant’s] motive or reason for telling the lie was to distance herself from Lundberg and from the robbery”. The appellant complains that this direction was inadequate in that it invited the jury to use the lie as evidence of guilt even in circumstances where the desire to create distance between herself and Lundberg was due to reasons other than being knowingly involved in the robbery. The appellant contends that a full Edwards direction discussing the competing explanations for the lies should have been given.
In my view the appellant’s argument is well founded. The trouble with a direction which allows a lie to be used against a person if the motivation is to create distance between the liar and the crime is that the expression tends to obscure rather than elucidate the underlying purpose of the lie. If these were lies, then they could have been told because the appellant perceived that identifying Lundberg as the robber could cause police to unjustly bring suspicion to bear upon her. She might have feared that if Lundberg’s identity were known and if her strong links to him were revealed, it would tend to implicate her in the crime. On the other hand, the appellant could have lied merely to protect Lundberg, a person for whom she plainly had some affection. Both reasons could cause the appellant to distance herself from Lundberg. These matters needed to be addressed by the judge to avert the jury from too readily implying guilt from the lies. The direction given by the judge rather added to that danger, inasmuch as any motivation in the form of a wish to distance herself from Lundberg was left to the jury as evidence of guilt.
In the circumstances of this particular case I consider that the direction created a real danger that the jury would misuse the evidence of lies. In my view this ground is made out.
Questioning on voir dire as to truth
During the voir dire the appellant was questioned by the prosecutor, over objection, about the truthfulness of statements made during the interview. For example, the appellant was asked whether or not she was being truthful when she said that she and Lundberg had discussed the robbery beforehand, that Lundberg used her car to carry out the crime, that he would follow her to the bank and rob it, that Lundberg asked her details about the Mannum branch – who would be present, what codes would be needed to open the vault – and that Lundberg told her he had debts. Mr Boucaut submitted that such questioning was impermissible.
Mr Boucaut relied on the Privy Council’s decision in Wong Kam-Ming v The Queen [1980] 1 AC 247. In essence the decision there was that an accused person giving evidence on a voir dire hearing in relation to whether his confession was voluntary may not be asked questions as to the truth of his statements (at 257); irrespective of the outcome of the voir dire hearing, the prosecution may not adduce evidence of what the accused said on the voir dire (at 257-8); if the statement under challenge was excluded by the judge then the prosecution may not cross-examine the accused on the evidence he gave there (at 259); if the statement was admitted and the accused gave evidence before the jury he was liable to be cross-examined on any previous inconsistent statements made during the voir dire evidence (at 260).
In R v Brophy (1981) 2 All ER 705 the House of Lords appeared to go further than the third and fourth statements above, holding that provided the accused’s evidence had been relevant to the issue upon which the voir dire turned, his evidence could not be used against him at the trial under any circumstances.
The Full Court of this state had considered the matter several years earlier in R v Wright [1969] SASR 256. There, Bray CJ had stated a case having taken evidence on the voir dire in relation to the admissibility of an alleged confession. The accused had been cross-examined, without objection, on the truth of his statement to police. The confession was excluded as a matter of discretion and the prosecutor then intimated that he proposed to prove before the jury the accused’s evidence on the voir dire. The question reserved concerned the prosecution’s right both to question the accused on the voir dire as to the truth of his statement and to call evidence of his answers at trial. In his reasons in the Full Court Bray CJ expressed the view that questions going to the truth of a confession were always relevant to the accused’s credit. However, having regard to the terms of s 23 and s 24 of the Evidence Act 1929 (SA) dealing with the duty on the court to decide whether a witness is obliged to answer questions going merely to credit, he went on to consider whether such questions were relevant to the question of voluntariness. He expressed the view (at 260) that such questions would sometimes be relevant to voluntariness and other times not. There, where the alleged inducement amounted to an exhortation to tell the truth coupled with an intimation that it would be better for the accused if he did so, he found the questions to be irrelevant. In relation to challenges to confessions based on discretionary issues he took the view that such cross-examination was not relevant to the issue at all. Bray CJ went on to say that, on reflection, he should probably have disallowed the questions and that he did not think they could have affected his opinion about the circumstances leading to the confession. He then discussed whether evidence on the voir dire might be admitted at trial, finding that if the confession had been admitted it would be admissible. Chamberlain J found that the questions going to truth could be asked and, if the accused acknowledged that his confession was true, evidence of that admission could be led before the jury. Zelling AJ expressed the opinion that upon the voir dire the accused could have refused to answer questions about the truth of the confession on the basis that they might incriminate him. He laid emphasis on s 18V of the Evidence Act (as it then stood), noting that it allowed for persons charged to be asked any question in cross-examination, but did not explicitly require that person to answer. His Honour went on to find that the questions were legally admissible subject to the exercise of judicial discretion, noting however that in some cases such questioning might be irrelevant, and objectionable on that basis (at 277).
In my respectful opinion the disparate opinions expressed in Wright make it of limited assistance on this question. In the years since Wong Kam-Ming was decided the High Court of Australia has not found it necessary to deal with the questions it raised (see McPherson v The Queen (1981) 147 CLR 512) and the intermediate courts of Australia have not been inclined to accept without qualification the propositions established by it. Without descending into the detail of the various decisions in the state courts of appeal (for example, R v Semyraha [2001] 2 Qd R 208, Frijaf v The Queen [1982] WAR 128 and R v Mardlin [2004] WASC 73) the preponderance of authority seems to be that whether questioning as to the truth should be permitted turns on a precise categorisation of the issue on the voir dire. The authorities seem to favour the view that it is not the case that an accused person may never be asked in a voir dire hearing concerning the voluntariness of a confession whether or not the confession is true. As Bray CJ said, “such questions may sometimes be directly relevant to the issue and at other times not”.
My understanding of the practice in this state in the years following the delivery of the decision in Wong Kam-Ming was that prosecuting counsel did not cross-examine accused persons as to the truth of their confessions, certainly when voluntariness was at issue. In my mind there is much to be said for such a conservative practice. Bearing in mind that the intermediate courts in Australia have found it difficult to state a general rule as to when such questioning would be permissible, it will not be easy for prosecuting counsel or for trial judges to decide the issue without mature consideration. In my opinion the questioning in the instant case and the answers elicited by it did little, if anything, to assist on the question of whether the appellant’s statement was voluntary. The prosecutor’s agreement not to lead evidence taken during the voir dire does not assist either way.
This appeal does not turn on the question of whether Wong Kam-Ming should be accepted in this state. It is undesirable in this case to say more about this ground of appeal.
The application of s 285AB CLCA
Section 285AB CLCA came into force on 11 March 2013, shortly before the appellant’s trial. There is now no argument that it did not apply to her trial. In essence, Mr Boucaut argues that notwithstanding the section the judge should not have regarded himself as being bound by the voir dire rulings of the original judge. The issues agitated before the first judge on the voir dire were both as to voluntariness and the discretion. The appellant’s case was that she was spoken to by police prior to her recorded interview commencing and was told that Lundberg had been arrested and was at the Adelaide Police Station, telling police that she planned the robbery and that he did not care what happened to her but was just trying to save himself. Then it was argued that even on the face of the interview there were inducements and improper questions which should have led to a finding of inadmissibility or, at least, discretionary exclusion.
The terms of the section are as follows:
285AB—Determinations of court binding on trial judge
A determination or order made by a judge of the court in proceedings dealing with charges laid in an information is binding on a judge of the court presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal, unless the trial judge considers that it would not be in the interests of justice for the determination or order to be binding or the determination or order is inconsistent with an order made on such an appeal.
Mr Boucaut argues that the absence of reasons for the rulings robbed the second judge of the ability to evaluate whether it was not in the interests of justice for the orders to be binding. It was not sufficient, he submitted, that having heard each side’s evidence the original judge clearly stated that he did not believe the appellant’s evidence and invited defence counsel to proceed on that basis. That left open the question of whether the judge applied the correct principles and it also said nothing of the various considerations relevant to the application for the discretionary exclusion of most of the recorded interview.
Since I have found that a good deal of the interview should have been excluded this ground falls away. However, I would make an observation or two about it in deference to the arguments we have heard.
Section 285AB envisages that (where there is a renewal of the application for exclusion) the second court will make an assessment of the material considered by the original judge, the issues raised and the original ruling. It will need to do so in order to answer the question whether it is not in the interests of justice for the orders to be binding. (Here the second judge did so and gave reasons for his decision.)
I do not consider that the absence of full reasons of itself would have justified disregard of the original judge’s findings. Particularly if the voir dire had turned only on the factual dispute relating to events prior to the recorded interview, then the bare statement that the judge rejected the appellant’s evidence would have been sufficient. In relation to the undisputed factual material – the interview – the second judge had available, not only the material itself, but the transcript of the voir dire before the original judge. He was in a position to make an assessment for himself of the interests of justice question.
It is not an error of law not to give reasons. Here, the original judge indicated that he would give further reasons later if asked. He was not asked to do so. Reasons would have enabled the second judge and this Court to see how the first judge viewed the questioning; whether he considered it raised questions of voluntariness or discretion only and, if the latter, why he chose not to exercise his discretion, and also if the appellant’s evidence informed his decision about the recorded material. However, the very fact that this Court has decided that the majority of the questioning at interview should have been excluded tends to indicate that the task envisaged by s 285AB could be carried out (in relation to recorded material) without the benefit of full reasons.
For the reasons mentioned earlier it is unnecessary to say more.
Conclusion
I have found that the arguments concerning the interview and the direction on lies are made out. I consider that the combination of the two leaves no room for application of the proviso. For the purposes of the appeal it was not necessary to come to grips with the whole of the evidence presented against the appellant and so we are not in a good position to assess what impact the exclusion of most of the interview will have on the case against her. Accordingly, it is appropriate to order a re-trial.
I would make the following orders:
1.grant permission to appeal on grounds 1 and 2 (permission already having been granted in relation to grounds 3 and 4);
2.allow the appeal;
3.set aside the conviction and direct a new trial.
KELLY J: I agree that the appeal should be allowed. I agree with the reasons of Vanstone J.
PEEK J. I agree that the appeal must be allowed. I agree with the orders proposed by Vanstone J and substantially with her reasons.
I would prefer to offer no comment as to the trial Judge’s decision to order separate trials; the propriety of questions 34, 38 and 39 in the interview; and the topic of Wong Kam-Ming v The Queen[1].
[1] [1980] 1 AC 247.