R v Pirimona, Lawrence Stuart
[1998] TASSC 136
•6 November 1998
136/1998
PARTIES: R
v
PIRIMONA, Lawrence Stuart
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 42/1998
DELIVERED: 6 November 1998
HEARING DATE/S: 18, 19, 20 August 1998
JUDGMENT OF: Cox CJ, Underwood and Crawford JJ
CATCHWORDS:
Criminal Law - Evidence - Confessions and admissions - Voluntary statements - Voluntariness - General principles - Whether any evidence suggesting confession not voluntary.
MacPherson v R (1981) 147 CLR 512, applied.
Aust Dig Criminal Law [466]
Procedure - Courts and judges generally - Judge's disqualification for interest or bias - Reasonable suspicion of bias.
R v Watson; ex parte Armstrong (1976) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12; Livesey v New South Wales Bar Association (1983) 151 CLR 288, applied.
S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, referred to.
Aust Dig Procedure [5]
REPRESENTATION:
Counsel:
Applicant: D J Bugg QC
Respondent: S P Estcourt and J P E Walker
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Collins Law
Judgment category classification:
Court Computer Code:
Judgment ID Number: 136/1998
Number of pages: 41
Serial No 136/1998
File No CCA 42/1998
THE QUEEN v LAWRENCE STUART PIRIMONA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
UNDERWOOD J
CRAWFORD J
6 November 1998
Orders of the Court
Leave to appeal granted.
Appeal upheld.
Verdict of acquittal set aside.
Direct that the respondent be re-tried.
Respondent remanded on bail to first day of next Criminal Sittings of the Supreme Court in Hobart.
Serial No 136/1998
File No CCA 42/1998
THE QUEEN v LAWRENCE STUART PIRIMONA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
6 November 1998
The Attorney-General seeks leave to appeal the verdict of acquittal entered by direction of the learned trial judge on the respondent's trial for one count of receiving stolen property, to wit an aluminium boat, outboard motor and trailer. Particulars of the charge were that the respondent, at Middleton in Tasmania, on or about 15 March 1997 without lawful excuse had that property in his possession knowing the same to be stolen property. The grounds of appeal are as follows:
"1That the learned Trial Judge erred in law in ruling the evidence of the interview between investigating Police officers and the Respondent inadmissible; and/or
2That the learned Trial judge erred in law in that while finding the interview between the Respondent and investigating Police officers to be admissible he declined to admit it into evidence.
3That the learned Trial Judge erred in that he presided over the trial of the Respondent and he did not bring an impartial and unprejudiced mind to the resolution of issues between the Crown and the Respondent on that-trial.
4That the learned Trial judge erred in that he continued to preside over the trial of the Respondent when, in all the circumstances, fair minded members of the public would have held a reasonable apprehension that His Honour might not bring an impartial mind to that trial."
The indictment and Crown papers were filed in this Court on 10 January 1998. The charge arose following a theft from Mayne's Marine Boat Yard at New Town of an aluminium boat and trailer with two outboard motors on or about 27 February 1997. Among the Crown papers were a proof of evidence of a police officer who took photographs of the stolen property at the respondent's home on 15 March 1997, and a statement from the owner of the property to the effect that he had left it at Mayne's Marine for a service on 26 February 1997 and that it was no longer there two days later. He gave serial numbers of the equipment and a brief description of it. In a later statement, after receiving the boat back, he gave details by which he claimed to be able to identify it as his. There was also a statement from Mr David Mayne giving details of how access had been gained to his boat yard where the boat had been left and one from a Mr Tonks, a nearby resident, who claimed to have seen a boat and trailer moving in the yard on the night of 27 February, and some time thereafter a dark coloured Ford Cortina 1974/1975 model towing a boat and trailer near the yard. It had a noisy exhaust and sped away before Mr Tonks could procure the number. Another statement was made on 24 March 1997 by a Mr Woolley of Middleton who said that on Sunday, 2 March 1997, he had seen two men at or near the launching ramp at Middleton. They had been joined by another man, who had resided in the locality for about twelve months and who was "very distinguishable as he is tall, very lean and a Maori". This man was known as "Buck" and had come to the ramp in an aluminium boat accompanied by a number of children and a female. By the way he was controlling the boat, he did not appear to be very familiar with it. The three men put the dinghy on a trailer and left the area very quickly, towing the boat away with a green early model Cortina sedan in very poor condition.
The Crown papers also included statements from two investigating detectives, Pratt and Ghedini, to the effect that on 15 March 1997, they had attended premises at Middleton where the respondent resided and had found, in a fallen-down metal shed on the land, the property described in the indictment. After a short conversation, which was noted by one of the detectives in writing, the respondent was voluntarily taken to the Kingston Police Station where he participated in a video recorded interview which lasted approximately sixty-six minutes. At the conclusion of it, he was taken before Acting Sergeant Kline for the purpose of completing the Register of Persons Interviewed, and after that he was told that he would be proceeded against by summons and was then conveyed home. A transcript of the video taped interview in which the substance of the earlier conversation, recorded in long-hand, was incorporated and acknowledged by the respondent, was also included in the Crown papers. The detectives' proofs also asserted that the boat at the respondent's premises had been conveyed to the owner and identified by him. In the course of the interview, the respondent denied knowledge that the boat was stolen and gave an account, which a jury might well have found improbable, of acquaintances arriving with it at 2am on Saturday, 1 March for the purpose of taking the respondent fishing and eventually leaving it there the following day because the car used to tow it had a burnt out clutch. Towards the end of the interview when the respondent's account had been probed, he made statements which a jury might well conclude amounted to admissions that he had known since 2 March, when the other two men had left, that the boat was stolen. There was no proof of evidence from Acting Sergeant Kline or copy of the page of the Interrogation Register which such an officer is required to fill in after enquiring of the person interviewed whether he or she has any complaints about the way the police have acted.
The respondent had been committed for trial in the Supreme Court on 8 September 1997, and on 20 April 1998 the matter was stood over for hearing of an application by him for a stay of proceedings in consequence of his having been denied legal aid. The application relied upon the considerations adverted to by the High Court in Dietrich v R (1992) 177 CLR 292. On 27 April 1998, the respondent swore an affidavit in support of his application. It dealt with his unsuccessful endeavours to procure legal aid, his means, his ability to properly represent himself and his encounters with the police. It contained the following paragraphs in respect of his defence:
"14On 15th March 1997, I was interviewed by officers of the Tasmania Police concerning a boat. Prior to the police arriving at my premises, I had taken two Normison tablets and two Serapax tablets. When the police arrived, I was feeling docile.
15The police then asked me to accompany them to the Kingston Police Station to participate in a record of interview, which I agreed to do. During the interview, I consumed more Serapax tablets.
16I have made two admissions in that record of interview. Those admissions appear at the end of the record of interview. Those admissions were made under duress. At the time I made those admissions, I had been interviewed by the police for approximately one hour. I was feeling drowsy because of the Serapax I had taken and I felt I was under pressure. The police were asking and firing lots of questions at me. I only made those admissions so the police would let me go home. 17 I wish to plead not guilty to this charge because I did not now the boat that was at my property was stolen until I was informed of this by the police."
On the same day, the learned trial judge heard the respondent's application. He was one of several persons to whom aid had been refused by the Legal Aid Commission and his application was treated by the Crown as something of a test case. The Crown was represented by the Director of Public Prosecutions and the respondent was represented by Mr McKee. Among the materials before his Honour was a set of the Crown papers. In the course of the learned Director's cross-examination of the respondent on his affidavit, the learned trial judge asked the latter if he had read a transcript of the interview and whether it contained everything that happened. On receiving affirmative replies, his Honour continued:
"So when you say that they were asking you lots of questions and they kept coming back to things, I can know what they asked you by reading it? There's nothing that happened that I couldn't find out by reading my copy? Is that fair?
MR PIRIMONA: Mm.
HIS HONOUR: All right. So when you say they asked me — they kept asking and firing lots of questions to me, it is only the questions that are in this transcript?
MR PIRIMONA: Yeah."
In the course of submissions as to the complexity of the issues on the respondent's forthcoming trial, there was considerable discussion as to the likelihood that one of those issues would be the voluntariness and admissibility of any admissions made by him to the police or the discretionary exclusion of such material and the relevance of his ingestion of drugs to those issues.
On 4 May 1998, the learned trial judge dismissed the respondent's application for a stay of proceedings and published his reasons therefor (49/1998). In a careful and fair exposition of the principles involved and of their application to the facts as he understood them from the material then to hand, his Honour concluded:
"In the circumstances of this application, there is potential for unfairness by reason of the accused's lack of knowledge of procedure and rules of evidence. That potential unfairness can be remedied by the trial judge. There is potential unfairness by reason of the accused having to provide evidence of the effects of a drug on his mental state at the time of interrogation. That potential can be remedied by the issue of a subpoena to a medical practitioner nominated by the accused, or the requirement for the Crown to make available a suitable expert witness. Insofar as the nature of the prosecution case might be seen to raise the possibility of unfairness, I am not satisfied, at this stage, that it has such potential. In evidentiary terms, it appears relatively simple; it comprises one count only, a relatively small number of witnesses are to be called, and the legal ingredients of knowledge can be well dealt with in the trial judge's directions to the jury. I do not regard the nature of the case as requiring a stay of proceedings."
Earlier he said:
"It is sometimes claimed that any unfairness occasioned by reason of lack of representation ought be remedied by the trial judge, and, indeed, some would say that if he or she is unable to so do, that person ought not hold judicial office. The claim as a whole manifests ignorance of the judicial system, whilst the latter portion can be seen as spiteful. A judicial officer is able to ensure that the trial procedures are explained and kept as simple as possible, and to prevent counsel from obtaining tactical advantage by reason of knowledge of the rules of procedure and evidence. A trial judge is well able to ensure that inadmissible evidence is excluded and that issues of character, prior inconsistent statements and the consequences of their introduction are explained to an unrepresented accused before a particular course is adopted. But a trial judge cannot and ought not attempt to enter the arena in an effort to redress imbalance."
On the hearing of the present application, the learned Director of Public Prosecutions criticised his Honour's comments in the first two sentences of that excerpt. He referred to an earlier comment of the learned trial judge during the course of the hearing:
"I think I've got a Federal Attorney-General who tells me that if a judge can't run a fair trial in the absence of counsel a judge shouldn't be in the job … if that report is accurate, that is what he says — I shouldn't be in the job, which is offensive."
The learned Director submitted that his Honour was stung by comments attributed to the Federal Attorney-General and that in some way his resentment unconsciously led him to act in the way the Crown particularises its claim of actual or apparent bias. I shall return to this submission after reviewing those particulars but, at this stage, I pause only to say that whoever the author of such a comment may have been, it is demonstrably wrong to suggest that any unfairness occasioned by lack of representation can or ought to be remedied by the trial judge. Although there may be some cases where unfairness due to lack of representation can be reduced or even eliminated by the trial judge, it is obvious that there may be some cases where such a result is impossible; Dietrich (supra) is such a case. It is obvious from his Honour's reasons that he had a clear and proper perception of his role as trial judge and a determination to ensure, in a manner which was not inconsistent with his fulfilment of it, that the respondent was accorded fairness on his trial.
After having handed down his ruling on 4 May, there began the series of incidents of which the Crown now complains. By this stage, Mr Perks was acting as Crown counsel and asked for the respondent to be remanded for trial commencing one week later on 11 May. Mr McKee, having taken judgment on the application to stay proceedings, now withdrew. His Honour then addressed the respondent, asking if he had a set of the Crown papers. The respondent asked, "which papers are these" and the learned trial judge said, "just have a look at my set", whereupon a set of papers taken from the Bench was handed to the respondent who said, on examining them, that he had never seen them before. Without further inquiry of Crown counsel, his Honour said:
"Well that's outrageous for this man to have representation withdrawn by the Legal Aid Commission and no one has even had the decency to provide him with a set of papers."
Thereafter, he adverted to the fact that the respondent had consulted various lawyers, giving his version of events, but commented that nobody had ever given him a copy of the Crown papers.
His Honour then realised he had mistakenly passed to the respondent the set of papers relating to a totally different matter in his list and passed the correct set to the respondent, whereupon the latter acknowledged that he had received a copy and had it at home. The learned trial judge then said:
"All right, well I withdraw the word 'outrageous' then if you have got — if you have been given them."
Although his Honour's assertion that no one had had the decency to provide the respondent with the Crown papers was broad enough to include the respondent's advisers from time to time, it would have been understood to have been a reprimand of the Crown Law authorities by anyone with knowledge that the initial responsibility for providing such material rested with the Crown. It was an unwarranted criticism and deserved a fuller retraction than the withdrawal of the single epithet "outrageous".
He then went briefly through the statements saying:
"Now the first one is a Policeman who says he took some photographs, that probably won't concern you. Then you will see there is a man who said he owned a boat and it went missing, and I don't think that's an issue in this case. And then you have got some Police Officers who say that they recovered the boat from your premises, and I don't think that's an issue. What is important are those witnesses who I suppose claim to see certain people at various places, that's Mr Woolley, and I think he makes reference to a man called Buck, and I think the Police asked you whether your nickname was Buck and I think you told the Police that's so. So they are the sort of things that are set out in those papers. Now you told me, in an Affidavit, that you really want to contest the accuracy of what the Police told you, what the Police say you said. I think you told me in your Affidavit that you are on Serapax and that had affected you and you were not firing on all cylinders, is that fair?
MR PIRIMONA: Yes sir.
HIS HONOUR: Right, so that's what your case is about?
MR PIRIMONA: Yes.
HIS HONOUR: But what appears in the transcript might have been said but you weren't functioning properly so that we shouldn't rely on it, is that fair?
MR PIRIMONA: Yes."
His Honour then asked if the respondent wished to call the doctor who prescribed him Serapax and there were discussions about arranging a subpoena for his attendance. At this stage, a firm date for the start of the trial was not set, but just before adjourning the matter for mention a week later, his Honour asked Crown counsel if there was anything else and counsel said:
" … the witness David Neil Mayne would have been unavailable if the trial was going to start next week and the Crown has arranged for another witness, another employee of Maynes Marine, to give the same evidence. Nothing unusual about the evidence, but the Proofs have not been typed yet, given that your mooting at starting date of the eighteenth or later, then Mr Mayne should be able to give evidence. It's just to cover that area of Mr Mayne's evidence.
HIS HONOUR: Well I'll watch what you have done and not done very closely.
MR PERKS: I'm sure you will your Honour, yes.
HIS HONOUR: But it does - that indicates we're off to a bad start, you are proposing to start a trial on the eleventh and give this man a supplemental Proof?
MR PERKS: Well as I say your Honour it's in virtually the same terms as Mr Mayne, it is another employee who was there at the time that Mr Robertson delivered the boat and noticed the boat was missing the following day. And as your Honour has indicated to Mr Pirimona it doesn't seem to be an issue, that area of the case.
HIS HONOUR: We shall see. Mr Pirimona are you on the 'phone? You don't have a 'phone, all right. Well if the Crown start delivering you other papers we will have a chat about that next Monday."
The respondent was then remanded on bail until Monday 11 May.
On 11 May, his Honour permitted a Mr James to act as a friend of the respondent, although not permitting him to question witnesses or address the jury. There were discussions about the doctor's evidence and Mr James asked if the Crown were intending to call Mr Woolley who claimed to have seen the respondent controlling the boat at Middleton on 2 March. Crown counsel confirmed that that was the case but said he could not locate Mr Tonks, but intended to proceed without him. Mr James then commenced this exchange:
"Mr JAMES: Well really your Honour, these witnesses really don't need to be called because we're not -
HIS HONOUR: You're not disputing the boat was taken from that yard on that night -
Mr JAMES: We're not disputing the boat was stolen, there was something - you know, they were running around last week with a - you know another subpoena for someone that doesn't make any difference.
HIS HONOUR: - and he's not charged with stealing. I follow that. So you don't care about Tonks. I think they were going to call someone else actually, who said I work in that yard and the boat - the boat was there and then it wasn't.
Mr JAMES: I think they've got three people that've said that the boat's been gone from the yard. Well, I don't think they need to subpoena all of those.
HIS HONOUR: They need to prove that the boat - they need -
Mr JAMES: Was stolen.
HIS HONOUR: - was stolen. So, anyway, you're not troubled - well, Mr Pirimona, you're not troubled by that and Mr James, you're helping him, you're not troubled by that. Any problem with any other witnesses? From your point of view, from your calling them.
Mr JAMES: Yes, we would like to be made available to us the record of the tape recording so we can watch it."
In respect of the video taped interview, Crown counsel indicated that the respondent and Mr James could, if they wished, accompany a law clerk to the Crown Law offices and view the tape there. The learned trial judge asked why they could not be supplied with a copy of it and counsel explained that the Crown had possession of only one copy at that stage. The normal procedure, he claimed, where accused persons were represented, was for the legal representative to attend the Crown Law office and view the tape there. The learned trial judge expressed surprise that a copy was not normally provided as, when tapes are edited to excise inadmissible portions during a trial, that exercise is conducted speedily and copies of the edited tape produced without delay. Crown counsel said it was not a matter of difficulty in procuring copies, but rather a matter of policy that copy tapes were not released to accused persons because inappropriate subsequent use had, on previous occasions, been made of them. He suggested that after the remand the respondent should liase with the Crown Clerk for mutually convenient arrangements to be made. His Honour commented that this was "not good enough". When Crown counsel was unable to give an assurance that the Crown could immediately provide a copy, his Honour asked, "… do I stay further proceedings on this matter sine die, or simply stay them until such time as the Crown is able to provide a document or an exhibit to this witness — to this accused?" Counsel responded, "… do I gather from what your Honour's saying, that your Honour is — requires the Crown to furnish Mr Pirimona with a copy of the tape or …?"
This exchange continued with a suggestion by his Honour that if the respondent was required to view the tape at the Crown Law offices, the Crown Clerk would probably be a witness for the Crown, an indication from counsel that the clerk need not be present, and the reiteration by his Honour of his question whether the Crown wanted to stay sine die or until the Crown provided a copy of the tape. His Honour said he did not want the Director of Public Prosecutions to make any exception to his policy.
At the same hearing, Mr James sought to correct a statement contained in the respondent's affidavit to the effect that he had consumed Serapax tablets during the interview, saying that four such tablets had been taken immediately prior to the interview, but not during it. After further discussions, Crown counsel indicated that the tape was at the Bellerive Police Station and that a copy could be made available to the respondent within fifteen minutes. Before the conclusion of the proceedings on that day, Mr James indicated to his Honour that:
"We're not disputing the fact that it was stolen, your Honour, we're not disputing the fact that they took it down there. We're not disputing the fact that they went fishing in it, that Buck took his children in it, which was four children."
The matter was then adjourned for trial a week later.
Against this background, the respondent's trial commenced on 18 May 1998. It did not get off to a good start. Prior to the empanelling of the jury, his Honour asked the respondent if he had a copy of the jury list. It appeared he did not have one. His Honour said he was surprised and thought the Code required the Crown to provide accused persons with such a list. He acknowledged that this was only on request and said, "they wouldn't know that, would they?" Crown counsel apologised and his Honour said, "it's in the Code". There was no further overt criticism then of the Crown for failing to provide the jury list to the respondent, but his Honour did advert to it later in the course of reasons for judgment published on 26 May when he said:
"1 No jury list was provided to the accused. The Criminal Code, s328, provides:
'Upon the application of a person against whom an indictment has been filed the Crown law officer filing such indictment shall supply such person, 2 clear days at least before the day of trial, with a copy of the indictment and a copy of the jury panel free of charge; and shall permit such person, upon his trial, to inspect, free of charge, all depositions taken against him and forwarded to the Attorney-General.'
It is true that the accused made no such application. The Court had provided him with an extract of the Criminal Code, s258, but not s328. To that extent, the Court was remiss. But an officer of the Crown ought not rely on the absence of an application to comply with the spirit of a statutory obligation. As it turned out, the accused was only provided with a copy of the jury panel immediately before the first juror was called, and then only after enquiry had been made by the Court."
With respect, the failure of the Crown to supply the respondent with a copy of the jury list was in no way reprehensible. The Criminal Code, s328, imposes the obligation to supply it only if it is requested and there was no suggestion that the respondent did so. In the circumstance that the respondent was an unrepresented accused, it was no more the responsibility of the Crown to provide this material than it was the trial judge's to ensure that he received it. Both, it would seem, overlooked the desirability of giving him a copy in advance of the trial. Any disadvantage could have been easily remedied by an adjournment, but no disadvantage was apparent, and no adjournment sought.
In the course of opening the case, Crown counsel told the jury that he would be calling Mr Woolley who would tell them that, on 2 March 1997, he saw a boat, similar to the one stolen from Mayne's Marine, "being steered or controlled by a person he knew as Buck — a tall, lean Maori" who had lived in the Middleton area for the preceding twelve months. After the opening, Mr Perks called the police photographer. As counsel sought to tender the photographs taken by the witness, the learned trial judge first ascertained that the respondent had copies and then asked when he had received his copy set. He was told "just a while ago, when we came into the court". His Honour asked Crown counsel why he should, as a matter of discretion, permit their tender when "although proofed in a technical sense [they were] not supplied prior to the trial, or if prior to the trial, by some minutes." The jury was then asked to leave the Court. Upon their doing so, his Honour observed that in previous proceedings when the Director of Public Prosecutions had been present, one of the prerequisites which had been discussed to ensure a fair trial of the respondent had been that the "Crown would do all in its power to make available the information to the defence", and that subsequently there had been further discussions with Mr Perks. The latter acknowledged the discussions in respect of the video recording and said he had wrongly assumed that the respondent had a copy of the photographs. He suggested that an adjournment would rectify any disadvantage to the defence.
The learned trial judge emphasised that the respondent, like any accused person, was entitled on trial to require the Crown to prove its case and to take advantage of any gap, even a technical gap, in the method of proof. He asked the respondent if the late supply of copies of the photographs was causing him a problem. Upon the respondent indicating that it had not done so, his Honour said:
"It's causing me one. I know that you don't dispute, show me the photographs. I know you don't dispute the boat, but see you were entitled to look at these in advance and say, well look this is not the boat, or -. They can't prove this is the boat that was taken, or it wasn't in that place - and normally, so you can sort out that, you get these things in advance so you've got time to think about them. I thought that I'd settled all that last week, but obviously I hadn't and now they're seeking to tender documents or photographs that were shown to you this morning".
Upon being again told by the respondent that it did not cause him a problem, his Honour went through each of the Crown papers to ensure that the respondent had a copy. After receipt of all the proofs had been confirmed, his Honour said there was a document among his papers called a "Record of Prior Convictions". The respondent said he did not have a copy of that document in the bundle of papers given him by the Crown, but that he had procured a copy from the police station. The Court then arranged for the respondent to have a photostat copy of the list of convictions which appeared in his Honour's papers. The Court then adjourned briefly. Upon resumption, his Honour said:
"I have given consideration to the reception of evidence in the form of photographs taken by a Forensic photographer. I note that neither a copy of the Jury list was afforded to Mr Pirimona, who represents himself, until eighteen May, although the Crown has been aware of the likely date of trial for some time. I also note that the photographs sought to be tendered by the Crown were not supplied to Mr Pirimona until shortly before this trial commenced. So two important pieces of information were not supplied to a person known to be unrepresented and whose case had been chosen by the Crown as a vehicle to argue the matter of law affecting this jurisdiction.
And it would appear that the Crown has not paid regard to the obligation of fairness to an unrepresented accused, however, Mr Pirimona says he is not prejudiced by the late delivery of the photographs and at this stage of the trial I am prepared, with reluctance, to have them admitted. However if it comes about during the trial or some other reason that the late delivery of these photographs has taken away from Mr Pirimona an opportunity to challenge certain - to challenge or take advantage of certain evidentiary points and I regard that lack of opportunity as having arisen by reason of the late delivery of the photographs and I'll come back to this question of whether this man can have a fair trial given the way in which the Crown has approached its obligation."
The jury was then recalled and the photographs tendered. The witness was not cross-examined.
Although nothing was said at this time about the failure to include in the respondent's set of papers a copy of his Record of Convictions, in later reasons for judgment published a week after the conclusion of the trial, the learned trial judge included the following criticisms of the Crown:
"2Immediately after the making of an opening statement, counsel for the Crown tendered, through a forensic witness, a set of photographs depicting the scene of the premises and the location of the stolen property. The photographs were relevant to the question of whether the property was hidden, and, during the course of the trial, the accused attempted to make something of this issue. The photographs were provided to the accused some minutes before the trial commenced. No explanation was given, other than oversight, as to why the material had not been earlier provided to the accused. That failure had the potential to disadvantage the accused.
3A record of prior convictions of the accused was included in the Crown papers provided to the Court. The purpose of this practice remains unclear, but it warranted, in this case, a similar provision to the accused. Had he put character in issue, counsel for the Crown would have been entitled to cross-examine the accused on his record. The accused was entitled to know in advance the contents of such a record so that he could consider potential risk, check accuracy and prepare any response to questions based on that record. The documentation was not provided until Court intervention during the trial."
I shall return to the photographs. With respect to the Record of Prior Convictions, the Crown routinely supplies a copy of known previous convictions among the copy papers for the use of the trial judge, but routinely does not include one among those delivered to an accused person. The purpose of supplying such information to the trial judge is to alert him to the extent of potential damage to an accused person's credit should the conduct of his trial (whether he is represented or not) expose him to the risk of putting his character in issue. An accused person presumably knows the extent of his own previous convictions, at least in substance, but a copy can be received on application to the Crown if desired, or it can be obtained, as the respondent himself obtained it, under the Freedom of Information legislation. I note from a perusal of the record that it contained no reference to any conviction within the three years preceding his being charged with this crime for receiving stolen property or for any crimes under any of the provisions of the Criminal Code, ChXXIV to ChXXVI so as to enable the Crown to prove any such conviction in support of the averment of guilty knowledge (see the Code, s258(3)). Had that been the case, the fact should clearly have been exposed, together with full details of how the Crown intended to prove the relevant convictions. With respect, the failure of the Crown to give the respondent a copy in this case did not warrant the criticism implicit in his Honour's inclusion of it among the list from which I have quoted of "a number of matters [which] arose before and during the trial which cause concern for the conduct of future trials of this nature".
The next witness called was the owner of the boat. He gave a brief description of it, said he had identified it upon its return to him, although there had been some alterations made to it, and then confirmed, after being invited to examine the photographs, that they were of his boat. His Honour immediately asked, "How can you say that or why do you say that?" The witness then pointed to various features about the boat, some of which were visible in the photographs which, he claimed, enabled him to identify the boat as his. That concluded the evidence-in-chief but, before offering the respondent the opportunity to cross-examine, the learned trial judge queried with the witness whether some of the points of identification were visible in the photographs. The witness indicated certain red engine enamel which had been used to paint the inside of the trailer mudguards. Thereafter, the respondent was asked if he wished to cross-examine and he declined to do so.
The applicant submits that his Honour's criticisms of the Crown in respect of the late supply of the photographs to the respondent, and his intervention by way of cross-examination of an uncontroversial witness, demonstrate bias on his part and a readiness to engage in the role of defence counsel, notwithstanding a clear indication, prior to trial, that no issue was taken as to the fact that the property in question was stolen.
I have already adverted to his Honour's comments about the failure to deliver the photographs to the respondent until shortly before the trial began. Although the respondent had, prior to trial, indicated that no issue was made as to the property having been stolen, he had made no admission to that effect and he was entitled to make such capital as he could out of any discrepancy there may have been between the oral identification of the boat and what the photographs showed. Likewise, there may have been an advantage in demonstrating from the photographs the fact that the boat was readily visible. He was not deprived of those opportunities, but was deprived of time in which to consider how he might exploit them. Crown counsel did not seek to justify the late delivery of the photographs, and accepted that it was an oversight which should not have occurred. It is unfortunate that it did occur, but no harm appears to have been done and the potential for harm was low and remediable by adjournment. It warranted a mild rebuke, and if his Honour's reaction was greater than the fault deserved, it is readily explainable by the fact that he had been at pains to ensure that the unrepresented respondent received from the Crown everything to which he was entitled. I shall deal with the interventions in cross-examination in due course.
The next witness was Scott Taylor from Mayne's Marine who gave evidence of Mr Robinson's delivery of the boat to the yard and of its disappearance. It was his evidence which was the subject of a supplemental proof to replace that of Mr Mayne, the proprietor, who, as had been anticipated, was not available at the time of the trial. It was uncontroversial and not cross-examined upon.
Mr Valance Henry Woolley of Middleton, was then called. He described how, on 2 March 1997, he had returned to the launching ramp after fishing and had seen two men at the ramp shortly before an aluminium dinghy arrived in which there were children, a female and a man who was known to him as "Buck". He was asked to describe him and this exchange then followed:
"WITNESS: Reasonably slim build - of Maori descent I should imagine.
HIS HONOUR: I'm sorry - what did you say?
WITNESS: Maori or New Zealand descent or something like that - he looked a little bit like a Maori.
HIS HONOUR: You have sudden expertise, do you, in racial characteristics of people?
WITNESS: I've had a lot more or quite a bit to do with Maori but I would say that's what - he wasn't an Australian, let's put it that way.
HIS HONOUR: How do you know - how do you know he couldn't be a Torres Strait Islander - or a - listen to my question, please, witness.
WITNESS: Would you repeat the question?
HIS HONOUR: How do you know that he couldn't be a South Sea Islander?
WITNESS: Well, it was commonly known that that was a Maori from down there.
HIS HONOUR: Commonly known - what qualifications do you have, Mr Woolley in the area of, I guess, ethnic origins or racial characteristics.
WITNESS: I would have none.
HIS HONOUR: Does the Crown persist in leading this?
MR PERKS: In my submission, the witness is entitled to describe the appearance of the man known as 'Buck' - as he appeared to be of Maori descent.
HIS HONOUR: You are not permitted.
MR PERKS: Pardon?
HIS HONOUR: I said, you are not permitted to lead that - I will just note that it has been led. Go on, Mr Perks. On the base that the witness does not have qualifications to give opinion evidence."
Crown counsel then led evidence of skin and hair colour, the witness's aquaintanceship with "Buck" and, ultimately, a dock identification of the respondent was quite properly allowed. The witness gave evidence that when the boat landed, the other two men helped "Buck" to put it on a trailer and they then left the area in an old model green Cortina in poor condition. The respondent was asked if he wished to cross-examine and he did so, asking whether there was one car with the boat and children, or two cars. The witness replied:
"There was another car parked at the ramp but usually at the ramp there is anything up to six or eight cars and after the boat left the ramp I didn't - you have to actually turn around to see who leaves and I never took particular notice who or what everyone got into but they left fairly quickly."
The respondent then asked where the male occupant of the boat was as it came to the ramp. This exchange followed:
"RESPONDENT: I was on the, whereabout on the boat? … Well you was at the stern, I suppose, in the back, and the female was up the bow.
HIS HONOUR: I don't follow that. The male was at the back of the boat?
WITNESS: No. There's a centre console, which is right in the middle, the male was towards the stern and the female or girl, or whatever, was towards the bow.
HIS HONOUR: The centre console is itself towards the bow, isn't it?
WITNESS: It is towards the bow.
HIS HONOUR: So who was at the centre console?
WITNESS: Pardon?
HIS HONOUR: Who was at the centre console?
WITNESS: Buck was driving the boat or he was thereabouts right at the control.
HIS HONOUR: I thought you said he was down the stern of the boat.
WITNESS: No. Well towards the stern is the control. You control it from the rear of the centre console and that's nearly two thirds of the way to the stern.
HIS HONOUR: Or two thirds of the way to the bow?
WITNESS: No, two thirds of the way - actually where you stand is more or less pretty close to the centre of the boat, in round figures.
HIS HONOUR: So you now say the man was at the centre of the boat?
WITNESS: Oh no, he was after the centre console, after the centre -
HIS HONOUR: If he was holding the wheel he'd be in the centre of the boat, would he not?
WITNESS: It's not right in the centre, it's a little bit towards the stern.
HIS HONOUR: Well that's your version."
With respect, his Honour's questions and comments were unnecessarily argumentative.
A little later, his Honour asked about another vehicle:
"HIS HONOUR: Now what was this other vehicle that was near the boat ramp?
WITNESS: Well there were several vehicles at the boat ramp.
HIS HONOUR: I thought you said there was one other.
WITNESS: No, I said there were several other boat ramps - there's usually up to anything from half a dozen vehicles there, including mine.
HIS HONOUR: I'll replay the tape in a moment. I thought you told me that there was a green Cortina and that you saw another vehicle at the boat ramp, other than the green Cortina.
WITNESS: I think there was another boat [sic] parked near the trees but, as I said, as I mentioned before, I never took particular notice of the other vehicle that was parked there but it didn't have a trailer on it, I don't think.
HIS HONOUR: What sort of vehicle was that?
WITNESS: I'm not real sure.
HIS HONOUR: And then you said 'I saw a boat parked near a tree', what was that about?
WITNESS: A what?
HIS HONOUR: A boat.
WITNESS: There was no other boat parked there.
HIS HONOUR: You said there was.
WITNESS: I don't recall mentioning another boat.
HIS HONOUR: All right, stop - Replay the tape? Do you want to pursue any questions at the moment though arising from what I said?
MR PERKS: No your Honour.
HIS HONOUR: Mr Pirimona I'd stopped you asking questions, well I hadn't I interrupted, are there any other questions you want to ask at the moment?
MR PIRIMONA: Yes sir."
The respondent then asked some questions about the speed with which the party left the area of the boat ramp and his Honour obtained confirmation from the witness that the party had departed in two cars, but he could not say who got into each of the vehicles. This appears to have concluded the examination of the witness, and the learned trial judge then said:
"Well I'm not going to relieve this witness, Mr Perks, I've put to him that he said something in his evidence, he's denied that he said it, I'll wait for the transcript. So he's not relieved on the trial. I don't want him necessarily to wait at court but I may require him to reattend once I've got the transcript."
The following dialogue then occurred:
"HIS HONOUR: The witness has given me an answer, I put to the witness the word he used, he's denied using the word. Now it was going to prove impractical to have the tape replayed, he won't concede he used what my notes say he used and I'll wait for the transcript. I don't want him waiting here unnecessarily but -
MR PERKS: I'm just wondering whether anything turns on it, your Honour as far as the -
HIS HONOUR: I'll be the judge of that.
MR PERKS: Yes, very well, your Honour. The problem I have is that I now propose -
HIS HONOUR: Oh, no, I understand that, I'm just saying he's not relieved from the trial, I don't necessarily want him to remain at court, I'm merely exploring how much notice if I say I do require this man back because my note differs from what he says.
MR PERKS: He lives at Middleton, your Honour, I don't know how long, I'm not familiar with the area of Middleton, I don't know what the driving time is or how quickly he could be back at court if -
HIS HONOUR: How long would it take you to get to court?
WITNESS: Forty, fifty minutes.
HIS HONOUR: Well it's likely or possible that you'll be required to reattend here tomorrow.
WITNESS: I thought there was something - no, that will be right, for sure.
HIS HONOUR: Well it doesn't matter, I'm not relieving you from attendance. All right. But you'll receive a message about a convenient time, all right.
WITNESS: To be contacted, what - how will -
HIS HONOUR: Well you return here at ten o'clock tomorrow, that's the easiest way.
WITNESS: Return at ten o'clock tomorrow.
HIS HONOUR: Yes.
WITNESS: Okay.
HIS HONOUR: You're relieved until then."
It seems to have been tacitly agreed that his Honour would conduct a voir dire into the circumstances in which the video taped interview had been conducted, and, as the only other Crown witnesses still to be called at that stage were the two interviewing detectives, the learned trial judge then swore the jury out until the following morning. It was by this stage late in the first morning of the trial. There followed a brief discussion with Crown counsel about the voir dire, counsel indicating that he intended to call both officers. It was agreed that the doctor whom the respondent wished to call concerning the prescription of drugs for him, was available at 2.15pm that afternoon and that he should be interposed then and given the opportunity to view a part, at least, of the video for the purpose of commenting on the respondent's condition.
In the course of discussions about master tapes, Crown counsel advised that the copy given to the respondent at his Honour's direction a week previously had been retrieved from him by the Crown that morning. His Honour demanded to know by what right this had been done when he had said the trial would proceed when the respondent had been given all the documents. His Honour expressed annoyance that the Crown should, in these circumstances, say to the respondent that the tape should be returned. Mr Perks explained that in accordance with the Director of Public Prosecution's policy, which his Honour indicated he did not seek to have changed, the tape had been made available to the respondent a week before on the latter signing an undertaking to return it to the Crown Clerk, Mr Coad, "at the conclusion of the criminal proceedings commenced against me or at the request of the Office of the DPP." The discussion continued:
"HIS HONOUR: But I had certainly made it quite clear that this trial would not proceed until an unrepresented accused had been afforded copies of the material relied upon by the Crown. And that was given as a result of a reluctance by the Crown to do anything other than allow this man to go at the whim of someone else and wait in the DPP's office and they might show it to him when he got there. And I said that wasn't sufficient.
MR PERKS: Well that wasn't the position that was put to your Honour, the position that was put to your Honour was that Mr Pirimona attended the Crown at a mutually convenient time, not at the whim of the Crown, at a mutually convenient time.
HIS HONOUR: I'll check the transcript but I'm sure you told me, or whoever was appearing for the Crown, that you would check with Mr Coad as to what was a suitable time. And the matter became refined in the subsequent discussion. But at any rate I thought that I had said the DPP would have a policy and I shouldn't interfere with that, I simply said that the difficulty about that was that we couldn't proceed with the trial. I had thought as a consequence of that the Crown was going to make available copies. I was not told that they would be demanded or the return would be demanded before the voir dire."
The luncheon adjournment followed and, on resumption, his Honour asked why the respondent had been asked to hand the tapes back that morning, and Mr Perks replied:
"Well there's no reason I can give why, other than my understanding of the situation was that when they were given to Mr Pirimona by Mr Coad he was asked to bring them back to court when the trial resumed on Monday, which he did. I can't do any better than that, I can't give your Honour any reason other than that no reason is proffered by the Crown, it is just a fact that is what happened."
The learned trial judge then said:
"You see it would seem to me that the Crown and I have totally different views about the concept of a fair trial and its purpose, and the - one of the requirements would be that an unrepresented litigant facing a Criminal prosecution by the State is unaware of rights of procedures and what we could call pre-trial procedures. And one of the fundamental parts of a trial is that a person is afforded Crown material before the trial commences.
And one of the problems of an unrepresented person is that when counsel for the Crown states something to that person or requires something of that person, passivity means that they will not cavil. So the state represented ably by counsel is able to dictate to an unrepresented person that which that person may or may not do and already today we have (1), no provisions of a jury list. (2) No provision of photographs. (3) No provision of the record of the man and that becomes — of the record, prior convictions and that may have become relevant if the Crown sought to use them in cross-examination of the accused, depending on what else had transpired and he wouldn't have known what the record contained except from memory in order to meet that cross-examination. And (4) the piece of evidence of the interrogation which is central to the Crown case was provided at the Court's insistence, not by Crown offer and taken back. And I now have difficulty in seeing how those four, what we call, misunderstandings. Not one, not two, not three, but four misunderstandings. It can be said that the Crown is doing other than placing its own gloss on what it regards as a fair trial." [sic]
The voir dire commenced with the calling of Dr Salter at the instance of the respondent. Questioned by his Honour, he confirmed that his partner, Dr O'Halloran, had prescribed Normison and Serapax for the respondent at approximately monthly intervals in the four months prior to the interview in March 1997. He said that the effects of Normison, which is a hypnotic, would normally be drowsiness and sedation, leading to sleep. Serapax is an anti-anxiety agent which relieves psychological symptoms of agitation and irritability and physical symptoms of tremor, palpitations. The adverse side effects of Serapax would be drowsiness, dizziness, poor concentration and sometimes disorientation. Asked if that drug would make a person more susceptible to the suggestion of another, he said, "I think it would lower your resistance and probably make you more susceptible too". He was then asked whether there were physical manifestations if someone were taking Serapax and replied, "slurred speech, loss of muscle control, sort of staggering walk, that type of thing." The doctor was then invited by his Honour to view some parts of the tape with a view to making comment on the demeanour of the respondent during the interview, and he was left to observe parts of the tape in the court room while the Court adjourned. On resumption, he confirmed that he had looked at the first five minutes of the tape and said, "during that time he appeared alert, attentive to the questions, his responses seemed brisk, his speech was normal and the motor control of his hands and moving glasses and signing the papers all seemed fairly normal to me."
He continued:
"I then looked at the last five minutes and I think really his speech was slurred at times, he appeared to be slouching more. Apart from that I couldn't detect any other gross changes except that his answers were slower but they were in response to questions that required more thought."
He confirmed that he had only looked at those two parts. The slurring of the speech, he said, was a possible consequence of taking Serapax, but asked if he could offer an opinion as to any possible link between the Serapax and the slurring, as distinct from slurring through tiredness, he said he could not distinguish and similarly with respect to the observation of slouching which he had made.
In cross-examination by Crown counsel, the doctor said that there was nothing in the portions of video which he watched which showed the respondent giving other than responsive and appropriate answers to the questions asked by the police officers, and that the respondent did not at any time appear to him to be confused by a question. The slurring he observed, he said, was not very noticeable and it was slow. Asked by the respondent, through his Honour, to assume an ingestion of eight tablets, two of which were Normison and the balance Serapax, the doctor said that would make a patient very "slurry", and asked whether that was consistent with what he had seen on the video, he said he thought the respondent would probably be more "slurry" than that.
The first of the two police officers, Detective Pratt, then gave evidence. He said he did not see the respondent consume any tablets during the time he was in his company, nor was there any discussion about prescription drugs. He had first seen him at his home at about 5.45pm and the interview concluded at about 8.05pm. At the conclusion of the examination-in-chief and before the tape was played, his Honour said, addressing the respondent first and then the witness:
"Now you have the right now to ask questions but as you have said we will play the video first but there were two questions I want to ask of this witness which may affect or impact on your questions, and the first is Constable, because this ordinarily would be evidence led by the Crown, but they haven't, they have chosen not to lead it, but I will do it, not sure why they have. At the conclusion of the interview what did you do?"
The witness then gave details of taking the respondent before Acting Sergeant Kline for the purpose of permitting him to air any grievance he might have before an officer independent of the investigation. There was a brief cross-examination by the respondent as to whether the boat was hidden, and the officer said that from where they were parked, "you could not see the boat without walking up to it." The tape was then played, at the conclusion of which, his Honour indicated his intention to adjourn and to send the jury away until the next day at 2.15pm in the afternoon.
Before the Court adjourned, Mr Perks made some submissions concerning Mr Woolley. He protested at his Honour's treatment of that witness when the latter had described the man he later identified as the respondent as looking "a bit like a Maori". Counsel submitted that his Honour had launched an unwarranted and unfair attack on Mr Woolley because of what he had said and that he had extended the attack in questioning the position of the console in the boat. He referred to the witness's apparent slip of the tongue in referring to another boat parked near a tree and submitted that his Honour's tone in addressing the witness, calling for a transcript and refusing to relieve him from further attendance, suggested that the witness was deliberately lying. He submitted that he had anticipated, from the pre-trial discussion, that the evidence would be unchallenged, that the witness had a history of heart problems, that he had found the experience of giving evidence most distressing and counsel asked that he be relieved and not required to attend the following morning.
His Honour responded that his criticism in respect of the allusion to a Maori extended not only to the witness but to counsel for having led the evidence. He said:
"It is not ordinarily permitted for a person without direct knowledge through family, relationship or long association or without qualifications to make identification of a witness by reference to a claimed ethnic origin.
I intervened by asking a question - asking whether the person has expertise — and that should read 'you have certain expertise, do you in racial characteristics of people?' So my intervention was made because an issue of identification as to who was in the boat, as distinct from who was one of three people, turned out, as it transpired, to be an issue between the parties. And I had intervened to prevent the witness giving evidence of identification based on a claimed, unskilled and not knowledge held by result of relationship, family or the like, in making such an identification, and I will intervene again Mr Perks, if that happens again, whilst I am presiding judge in this court."
In his later reasons for judgment, he repeated the criticism in these terms:
"Counsel for the Crown led from the witness, without affording warning to the Court, that the man he saw was a Maori. How the witness knew such to be the case is unclear, although it might have been a belief gained through hearsay. The Court certainly does not presume to possess the capacity to determine ethnic origin in any but the most obvious case, and certainly this was not such a case. The problem is that the imagery conjured up by the use of a generic or racial description clouds the evidence and any real description is mixed with the stereotype. As it turned out, the accused did not contest presence, but did dispute, by questioning, that he was the operator of the vessel at the time of the claimed identification by the witness. Counsel ought not, in a case such as this, have attempted to lead such evidence. Its use might be objectionable and such questions can oblige a trial judge to ascertain the nature of the defence case in order to consider the propriety of the question. Once a trial judge is required to enter that domain, there is compromise to both the accused and the presiding judicial officer."
There are two literal inaccuracies in this passage, although perhaps nothing turns on them. The witness did not say the respondent was a Maori, but was "of Maori descent I should imagine … he looked a little bit like a Maori." Secondly, this evidence was not led without warning to the Court. The Crown papers included the statement from Mr Woolley that the man he knew as "Buck", "is very distinguishable as he is tall, very lean and a Maori". It could therefore have been anticipated that Crown counsel might seek to lead evidence along these lines, although it is not always the case that everything in a police statement will, in fact, be led, especially if it is arguably not admissible. In any event, it was mentioned by the Crown prosecutor in his opening speech.
His Honour treated the evidence as opinion evidence which was inadmissible because the witness did not have the necessary expertise to express it with any degree of reliability. There is a fine line between the kind of subject matter which requires such expertise before an opinion thereon is receivable in evidence and that which does not. As Cosgrove J said in Price v R [1981] Tas R 306 at 321 - 322:
"There are many categories of opinion evidence which can be given by witnesses without qualification. Examples are age, intoxication, and speed. Very often witnesses are permitted to give opinion evidence because it is a convenient and unobjectionable way of compendiously conveying their perception. Sometimes opinion evidence by non-experts is accepted as to the nature of things now regarded as commonplace which, in an earlier age, would have been regarded as esoteric, eg, identity or type of motor vehicles, aeroplanes, launches and so on. But the occasions on which non-expert opinion evidence are received are almost always those in which the balance of convenience is heavily in favour of the reception of such evidence, and no injustice can be seen to flow from it. For example, a witness may, without demur, describe a motor-powered boat as a launch in a proceeding where that term is merely a convenient way of indicating to the tribunal the general nature of the boat as a small passenger carrying vessel. But, if in some way, the enquiry before the tribunal involved the question whether the boat was a 'launch' as defined in the Marine Act and Regulations, it would be necessary for the witness to demonstrate his expertise before his evidence could be received."
That was a case where proof that a substance was heroin, was essential to conviction, and the issue was whether a drug user could give an opinion as to whether the substance supplied by the accused was indeed heroin. In this case, the ethnic origin of the respondent was not a matter in issue at all. His identity as a person using the boat in question was an issue the Crown was seeking to prove, although, as it happened, he did not dispute the fact and, in my opinion, the witness's description of him as a person who looked a little bit like a Maori was a convenient and unobjectionable way of compendiously conveying the witness's perception. I do not regard the leading of this evidence by the Crown as an infringement of any evidentiary law, nor in any way prejudicing the respondent. But even if the Crown was in some way remiss in leading the evidence, the witness, himself, deserved no criticism. He was not to know the niceties of the rules of evidence and his statement had no discriminatory overtones.
His Honour then dealt with the complaint in respect of the witness's alleged confusion and slip of the tongue in respect of another "boat" being seen near a tree. It is unnecessary to go through his remarks in detail. Suffice it to say that it could not be assumed that the reference to another boat was a slip of the tongue and, as the matter was, in his Honour's view, capable of impacting upon the contention of the respondent that he had not driven the car towing the boat away from the launching ramp area, he was not prepared to relieve the witness and put him beyond prompt recall should the occasion arise. The granting of relief to witnesses is a matter of discretion for the trial judge. I am not prepared to say that the decision to refuse relief in the circumstances was unreasonable or indicative of hostility to the witness or the Crown. However, some hostility towards the witness is indicated by a discussion in respect of when and how he was to hold himself ready to return to the witness box.
When, at the conclusion of his evidence, he was told that he was not relieved, Mr Woolley sought some guidance as to what he should do. The exchange has been set out above (at 12 - 13). At the end of it, he was unequivocally directed to return to the Court at 10 o'clock the following morning. When Mr Perks began his protest and application for the relief of Mr Woolley, he said, "Your Honour has required that Mr Woolley come to Court tomorrow". His Honour replied, "No I haven't. I haven't relieved him from further attendance on the trial. That is a different proposition". The transcript, however, does not bear this out. Later, when the learned trial judge reiterated that for the reasons he had elaborated, he would not relieve the witness, he said: "He is not required to be here at ten o'clock because we're doing a Voir Dire, and, Counsel, I attempted, did I not, to make it at his convenience, and I tried to do that and that didn't come to anything, so in exasperation I said 'Well come back at ten'." He referred to the transcript of his discussions with Mr Woolley and said that he was not going to get into negotiations with the witness about how the Court was going to contact him. Counsel replied, "It sounded to me, your Honour, as if it was a direction to the witness to attend here at ten o'clock tomorrow", and his Honour responded, "Precisely, because I was trying to explore how we'd get a message to him and he's cavilling about wanting to be contacted and I wasn't going to do that so I said 'Well make a time'." With respect, the learned trial judge did tell the witness to return the following day at 10 o'clock. Whether or not out of exasperation on his Honour's part, that direction was not preceded by an attempt on the part of the witness to negotiate a suitable time, nor by cavilling on his part about wanting to be contacted. Having responded to counsel's submissions about relieving Mr Woolley, his Honour then asked Mr Perks if he wished "to explore the console issue." Mr Perks declined.
It is necessary now to give some detail of the interview. It lasted approximately sixty-six minutes and after nearly an hour, the first tape ran out and there was a short break while a second tape was inserted and the machine and interview restarted. The interview commenced with a request from the respondent for a drink of water, which was supplied. Detective Pratt started the questioning with details of name and address and confirmation that the respondent had accompanied the police to the station of his own free will and was not under arrest. The notes of the conversation at his home were put to him and confirmed. In this conversation he had said that a man named Greg whom he met at an hotel was down at Middleton fishing, but had burnt out the clutch of his car and had left the boat with him about three weeks earlier. Greg had been driving a Datsun car and had "a couple of guys" with him whose names he did not know. He was again told the police were investigating the theft of a boat and equipment from Mayne's Marine and that they intended to question him about it. He was given a standard caution and was asked to tell them about the boat that he had at his house. He repeated that he had seen a man at the Russell Hotel with some other men, that they had said they would come down fishing, that they had come down and gone fishing, that while travelling up and down the hill near his residence, the clutch had been burnt out and he had permitted them to leave the boat on his property. The man's name was Greg Williams and he lived in the Melton Mowbray area. He had met him in hotels from time to time and arranged for him to come down to Middleton fishing "on a certain day of the weekend … two, three weekends ago." He said Greg had come down with two other males whom he did not know "probably 2 o'clock I think" in the morning. After a short time, he had gone to bed and the other men "crashed on the couch". The other two men were called "Rob" and "Mary" [sic]. The clutch on the car had started to burn out when they brought the boat down and later that day they went fishing, having towed the boat down the hill to the water. After fishing, they had towed it back up again and the clutch was almost burnt right out. They stayed the next night, and the following day they went fishing again, setting nets in the morning and, in the afternoon, the respondent had taken his children out for a ride in the boat. There was discussion about the number of times the vehicle had towed the boat up and down the hill and the respondent's steep driveway, as opposed to towing it home on a basically level road. At this stage, about one third of the way through the interview, Detective Pratt put to the respondent that he knew the boat was stolen and that was why the boat was left with him "out of the way". This was denied.
Detective Pratt then asked the respondent if he was sure "Greg" was Greg Williams, and he said that was what he knew him as. Asked if he knew Wayne Maxwell Smith or Jacky Smith, he said he had heard of a Jacky Smith a few years back. When asked if he knew a Christopher Allen, he said, "Know a Chris but I dunno a Allen." He was then asked whether "Mary", or the other man, was Christopher Allen and replied, "One was Christopher, yeah I think that was Mary." Detective Pratt said, "Why didn't you tell us that a minute ago" and received the reply, "Well I didn't know what, what you knew, or what you know." Detective Pratt replied, "That's right. You don't know what we know."
Shortly after this, Detective Ghedini was asked by Detective Pratt if he had any questions. Ghedini asked the respondent about his knowledge of Greg Williams whom he said he had known for four to five years. He had never before suggested they go fishing together. The respondent said he knew Williams had an aluminium and a fibreglass boat at Mangalore which he had seen. He had never been out fishing with Williams before because he cannot swim but went on this occasion because "It wasn't far out … we had the kids and all in the boat with us." Pratt then interrupted and said, "But hang on, you went across and set a net on the other side, you told us", to which the respondent replied, "Yeah that was on our own, that's without the kids, but I mean." Pratt asked, "You can't swim so it doesn't matter does it" and he replied, "No."
Ghedini resumed the questioning and asked about his going to see the boat at Mangalore and the respondent said he thought he "wouldn't mind a boat down there myself." The respondent referred to Greg's father and said his name was Don Smith. Detective Ghedini continued to ask questions about the fishing trip and the burnt out clutch and the respondent said he did not think there was anything suspicious about the boat being left with him. The transcript of the interview occupies thirty-nine pages; mid-way through page 22, Ghedini handed the baton back to Pratt.
Detective Pratt returned to the theme of the two boats at Mangalore and a description of the property. He suggested that it was "Wayne Maxwell Smith, or Jacky Smith's house." The respondent replied, "Is that Jack?" In a more insistent voice, Pratt said, "You know this bloke, you drink with him, you've known him for four years, you've been to his house, that is Jacky Smith's house isn't it and it was Jacky Smith that brought down to you the other day?" There followed this exchange:
"AOh I've known him as Wayne, that's fair enough with me.
QYou've known him as Wayne?
AWayne.
QListen who do we know this person as, Greg or Wayne?
AWayne, Wayne Greg, now I've had, I've had same thing happen to me over in Bruny Island this afternoon, right.
QWhat happened to you at Bruny Island this afternoon?
AOh went across over there and we just sittin' over there having a few beers on, on the side of the road there, on the Fauna Board … police come down on us, we're only over there for a bit a fun, you know, goin' down the pub there and all that.
QYeah, well ...
ASo we sorta got shunted out of there, had to come home.
QFine, I'm, to be perfectly honest I'm not really interested in what happened this afternoon, alright, this person that you drink with at the Russell, or you drunk with at the Russell Hotel and said he was coming, down to go fishing, who is he, what's his name?
AOh it's Greg, Greg Williams.
QAlright.
AThat's what I know him.
QWho's Wayne then?
AWayne, well I think Wayne, he could be the same, I'm not saying he's the same person but I've known him as Greg".
By page 25 of the transcript, the respondent had agreed that the person who arrived at his house at 2 o'clock in the morning was Wayne Maxwell Smith or Jacky Smith and on the following page, that on the next morning, Smith had told him he had had trouble with his wife the previous night. He also confirmed that Smith had told him because of this trouble his [Smith's] wife would have told the police about the boat up there and he had to move it from his house. The officer then put to the respondent that Smith had told him that night that the boat was stolen and that he had to bring it to the respondent's house. The respondent said, "No he didn't tell me the boat was stolen he said he was bringing the boat down … and we'd go fishing." He said Smith had rung him in the afternoon of the previous day to say he would be down. Confronted with an earlier statement that he did not have the telephone on at home, the respondent said that Smith had not rung him to say he was coming down, but had told him earlier in the week.
Detective Pratt directed further questions as to the arrival of the boat at 2am and whether the car had been repaired. The respondent said the car was still not fixed on the Tuesday before the interview on Saturday 15 March 1997, but that they were towing the boat around the previous weekend. He said the clutch had not fully gone. Pratt said:
"QWell if the clutch hadn't fully gone, why didn't they tow the boat home with them on the first night?
AI don't know.
QYou do know because you know that the boat is stolen and that's why it's at your place isn't it, to be kept out of the way down there and that story about clutches going in cars, quite conveniently, is absolutely absurd. What you're saying just doesn't make sense.
AWell I can get somebody to verify that the clutch was stuffed.
QI don't doubt that they may have had trouble with the clutch, but it certainly wasn't stuffed to the extent that they couldn't tow the boat back to Hobart, because if it was that bad they wouldn't have come down a weekend later, towed the boat back down, taken it out fishing and then taken it back up to your place, would they? Because you've already told us that your driveway is by far steeper than any other hill on the road between Hobart and Middleton?
AMmm.
QSee it doesn't make sense does it?
AI dunno. What, what is this all boiling down, is it, is it coming down on my shoulders or something.
QWhat it boils down to is the fact that at your house you have a boat which is stolen and I believe that you know the boat is stolen, I'm not alleging or implying in any way that you had anything to do with the theft of the boat, but what I am saying is that the boat which is stolen is at your place and you knew it was stolen.
ANah.
QAnd I believe that because you're basically just running us around in circles by telling us different names, of different times, but this, like I say this story with the clutch in this car is absolutely fanciful, and I believe that you're just, like I said, running us around in circles because you know damn well that boat is stolen.
AIf that boat was stolen and … inaudible ..., it's his, it's his business, it's not my business.
QNo, like I said a second ago, right, not in any way am I implying or alleging that you stole the boat or had anything to do with the theft of the boat, what I am saying is the boat is at your house and you know that either Chris, Mary, whatever his name is, and possibly Wayne, had stolen the boat and that while the boat was at your place, you knew it was stolen property, that's what I'm saying
AMmm.
QDo, do you follow what I'm saying to you?
AYeah I follow what you're saying.
QI'm not saying that you went out to Maynes Marines and stole the boat, I am not saying that at all, what I am saying is that the boat is at your place and you know that the boat is stolen and that you were just probably keeping it there for Chris and Wayne?
AWell it def ..., it is sittin' there waiting for them to come and get it.
QYeah, but they're probably quite rightly so, but you know that the boat was stolen don't you?
AI know now.
QYeah but you knew before we turned up that the boat was stolen, you knew pretty well that the boat was stolen when they turned up at two o'clock in the morning?
AYeah I thought it was funny, that hour, I didn't expect that."
At this stage, the first tape ran out and a fresh one was put in. The respondent confirmed on the second tape that during the changeover, the matter had not been discussed. He was again asked about boats at Smith's property which did not include the allegedly stolen one and it was suggested as odd that Smith should suddenly have another boat. He said he did not ask questions because he did not want any trouble. At this stage, the following admissions were made:
"AWell I don't want no troubles.
QThat's right, because you thought that the boat was stolen?
AYeah I s'pose, yeah.
QYeah and surely when you thought about it and you talked about it and he told you about the trouble with his wife, he told you that the boat was stolen didn't he?
A… Yeah, yeah, when we went out fishin' yeah.
QSo you would have got a fair shock when we turned up down there this afternoon?
AOh yeah, but it didn't worry me because there was, you know, like I said, it's got nothing to do with me, just the fact that it's there.
QBut you knew it was sto …, when we turned up and we asked you about the boat, I mean, fine you took us to it, you took us, showed us straight to the boat …
AMmm.
Q… but you knew that when you showed us to the boat that the boat was a stolen boat?
AWell it was there and it was obvious.
QHow do you mean it was obvious?
AWell everything was there, to what you wanted, numbers and everything.
QBut you knew it was stolen?
AWell I'd heard, yes."
The remaining two and a half pages of transcript need not be recited for present purposes.
As I have set out above, the respondent in his interview, at one stage when questioned about the identity of the man he described both as "Greg" and as "Wayne" said, "I've had the same thing happen to me in Bruny Island this afternoon." Detective Pratt asked him what had happened and received a disjointed answer about police coming down on him and someone else when they were having a drink "on the Fauna Board" and how they had had to come home. Detective Pratt expressed disinterest in what happened that afternoon in the terms already set out. In the course of cross-examining Detective Pratt, the respondent asked him whether, on the video, he had mentioned something about being on Bruny Island. The following is a transcript of what occurred:
"MR PIRIMONA Now you weren't interested but I am interested because Greg Williams spoke to the Police and the Fauna Board, his name was given as Greg Williams, what am I to do or what am I to say to that?
MR PERKS: Your Honour I don't think the witness can answer this question, if it is a question?
MR PIRIMONA: Your Honour I am trying to state that I know the man as Greg Williams and …
HIS HONOUR: Yes, well I understand that. The Crown they'll object to you asking questions which may have some impact on their case I suspect so I will hear the objection first."
Mr Perks objected to the form of the question and the learned trial judge asked the respondent to put it in a different form. The transcript continues:
"MR PIRIMONA: Yes, your Honour. When we were on Bruny Island that day his name, licence was Greg Williams, this is all I am trying to state as to the case, sir.
HIS HONOUR: All right. Do you object to that question, Mr Perks? You do?
As to the level of sophistication to be attributed to the "fair-minded observer", Kirby P (as he then was) expressed the view in S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 at 375 that care should be taken against attributing to the hypothetical reasonable observer a level of sophistication which may be enjoyed by judges and other lawyers (or by especially educated or informed citizens, or even by the parties involved). That was a case where a judge, who had had extensive professional connection with one of the parties to the suit prior to his appointment to the Bench, declined to disqualify himself from hearing the case. Kirby P was warning against attributing to the fair-minded observer the "in club" kind of knowledge a judge or barrister might have of such a relationship and of the ability of the barrister on appointment as a judge to retain objectivity in respect of his former client. His Honour adhered to his view in Australian National Industries v Spedley Securities (1992) 26 NSWLR 411 and noted the apparent acceptance of it by Toohey J in Vakauta v Kelly (1989) 167 CLR 568 at 585. In that case, Toohey J said, at 584 - 585:
"I accept the observation of McHugh JA in the instant case that 'in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly'. In effect, that is what this Court said in Livesey, at p 299. And it is true, as Clarke JA pointed out, that it is a 'reasonable apprehension' with which the court is concerned. And, if it adds anything, it is such an apprehension in 'a fair-minded observer': Livesey, at p 294. But, in this regard, the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case."
In a case such as the present, a judgment as to an apprehension of bias should not proceed on the basis that the fair-minded observer should be regarded as ignorant of matters with which judges and barristers would have more familiarity, such as the practice in respect of providing copies of the jury panel, advance copies of photographs, proofs of evidence, and the like. If the objective facts give the appearance of bias then "inside knowledge" which might put a more innocent complexion on the conduct complained of to one with that knowledge, should not be attributed to the hypothetical observer.
Having regard to the matters about which I have made specific comment, to the frequency with which he directed at the Crown criticism which was not fully warranted and the degree to which his Honour's questions to witnesses assumed an adversarial character, I have reached the conclusion that a fair-minded person, who had observed the manner in which this trial was conducted, would have been left with a reasonable apprehension that his Honour did not bring to it, and especially to the determination of the factual issue raised on the voir dire so crucial to the Crown case, a fair and unprejudiced mind and that in his laudable determination to ensure that the accused suffered no disadvantage by reason of not being represented by counsel, his Honour unconsciously assumed the mantle of defence counsel to such a degree that his role as judge was overshadowed and could not be performed with the requisite degree of objectivity. Whether resentment at the reported comments of the Federal Attorney-General played any part in this unconscious shift in roles is completely speculative. It would serve no useful purpose for an appeal court to indulge in any such speculation and unfair to attribute motives when the learned primary judge "is not heard by that court in self defence or justification" (per Kirby P in Goktas v GIO of NSW (1993) 31 NSWLR 684 at 689). However it came about, the result has been that the issues raised by the indictment were not tried according to law and, in my view, this amounts to an error of law in respect of which the Attorney-General's application for leave to appeal should be granted and the appeal upheld. I would set aside the verdict of acquittal and direct that the respondent be re-tried.
Serial No 136/1998
File No CCA 42/1998
THE QUEEN v LAWRENCE STUART PIRIMONA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
6 November 1998
I have had the advantage of reading the reasons for judgment of the learned Chief Justice. I entirely agree with them, except in two respects. I am of the opinion that the learned trial judge erred in ruling that he was not satisfied that the statements made in the "latter part of the [respondent's] interview" were made voluntarily. See the learned trial judge's written reasons for judgment, 67/1998 at 14. I am also of the opinion that the learned trial judge erred in ruling, "[h]ad the evidence been admissible on the basis of voluntariness, it ought nevertheless be excluded in the exercise of discretion" (supra) at 14. Accordingly, I respectfully differ from the learned Chief Justice in these respects and would uphold the notice of appeal, grounds 1 and 2, but for the reasons given by the learned Chief Justice, I too, would not have granted leave to appeal notwithstanding that, in my opinion, those grounds have been established.
At 31 of his reasons for judgment the learned Chief Justice cited the passage from the judgment of Gibbs CJ and Wilson J in MacPherson v R (1981) 147 CLR 512 at 519 - 520 which is relatively recent authority for the propositions that:
voluntariness is a condition precedent for admissibility;
those seeking to adduce confessional evidence carry the onus of establishing voluntariness;
the standard of proof is on the balance of probabilities;
absent evidence which suggests that the confession was not voluntary, it is presumed to be voluntary; and
if the confession is voluntary, those seeking to exclude it carry the onus of showing it was improperly or unfairly obtained.
In his reasons for judgment, the learned trial judge said at 3, "… the accused claims that two answers claimed to constitute admissions were the product of fatigue and oppression." It is true that the respondent's friend submitted to the learned trial judge at the conclusion of the evidence on the voir dire that, "… the confession is, Your Honour, was probably due to the drug, tiredness and because I think everybody wanted to get out of there." It is true that a little later on, the respondent's friend submitted, "I can see that he said, yes he's known its stolen, but in his opinion or our opinion, that it was under duress at that time [sic]. I think he had been badgered a little bit late in the interview." However, those were only submissions. The only evidence on the issue of voluntariness was the video taped recording of the interview and the oral evidence of Dr Salter who watched the beginning and the end of that interview. The accused chose not to give evidence on the voir dire. Before the trial began, he claimed to have ingested tranquillisers before being interviewed, but when the learned trial judge came to determine the admissibility of the "latter part of the interview", the only material evidence of fatigue or oppression was the sounds and pictures on the videotape and Dr Salter's evidence. In answer to questions from the learned trial judge, Dr Salter's evidence was as follows: [66-67]
"HIS HONOUR Are you able to describe his demeanour at all as you observed it in that video?
WITNESS: Yes. I looked at the first five minutes and during that time he appeared alert, attentive to the questions, his responses seemed brisk, his speech was normal, and the motor control of his hands and moving glasses and signing the papers all seemed fairly normal to me.
HIS HONOUR Yes.
WITNESS: I then looked at the last five minutes and I think really his speech was slurred at times, he appeared to be slouching more. Apart from that I couldn't detect any other gross changes except that his answers were slower but they were in response to questions that required more thought."
In the course of Dr Salter's cross-examination, this exchange occurred:
COUNSEL "Now you have told us that in the last five minutes you said that Mr Pirimona's speech seemed to be a bit slurred at times and he has slouched in his seat, you say that could be because of Serapax or it could be because of tiredness and the result of a lengthy interview? … It could be either, yes.
But there was nothing, that the portions of video that you watched, were - sorry, were the answers given to - answers given by Mr Pirimona to the questions asked by the Police Officer responsive and appropriate answers? … Yes.
Did Mr Pirimona at any time appear to you to be confused by a question? … No."
In addition to studying Dr Salter's evidence I have watched and seen the video tape. In my respectful opinion, the finding of the learned trial judge that the latter part of the interview was not voluntary is one that was not reasonably open to him to make. A confession is made voluntarily if it is made in the exercise of a free will to speak or be silent. See R v Lee (1950) 82 CLR 133 at 149; McDermott v R (1948) 76 CLR 501; Collins v R (1980) 31 ALR 257. It is perhaps worth setting out the well known passage from the judgment of Dixon J (as he then was) in McDermott at 511:
"At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J in R v Thompson (1893) 2 QBD 12 at p 17."
There was absolutely nothing to be seen or heard on the video tape or in the evidence of Dr Salter to suggest that the latter part of the respondent's interview was not the product of a free choice on his part to speak or remain silent and, in my respectful opinion, the conclusion of the learned trial judge to the contrary was not reasonably open on the evidence.
The following observations made by the learned trial judge in his written reasons for judgment at 10, are more in the nature of a submission that might have been put to him, rather than findings reasonably open on the relevant evidence. He said:
"Examination of the transcript and viewing of the video tape indicates persistent denial by the accused of prior knowledge, confusion in many areas of questioning and an eventual passive acceptance of the force of the arguments put by both interrogating officers. Those officers were determined to pursue the matter until the desired result had been achieved."
There is no evidence that the respondent was "confused". He did not give evidence that he was confused. Dr Salter saw no sign of confusion. I saw no sign of confusion. A number of the respondent's answers demonstrated that some of his earlier answers had been false, but if this is what the learned trial judge meant when he referred to "confusion in many areas of questioning", it was not confusion that tended to show that the respondent was not speaking in the exercise of his free choice to speak or remain silent. The learned trial judge's conclusion that the video tape and its written transcript shows "an eventual passive acceptance of the force of the arguments put by interrogating officers" is simply not supported by the evidence. Nor, in my respectful view, is the final sentence, "[t]hose officers were determined to pursue the matter until the desired result had been achieved".
With respect to the exercise of a judicial discretion to exclude confessional evidence, the learned trial judge concluded that the police officers had cross-examined the respondent during his interview and concluded at 16 of his reasons for judgment, "[t]he conduct was in the nature of cross-examination, it was in breach of the principles of permitted interrogation and it ought be excluded in the exercise of discretion".
The reference to "breach of principles of permitted interrogation" is a reference to the Judges' Rules, r7 which his Honour set out in his reasons for judgment at 15:
"(7) A prisoner making a voluntary statement must not be cross-examined, and no questions should be put to him about it except for the purpose of removing ambiguity in what he has actually said. For instance, if he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and day of the month which do not agree, or has not made it clear to what individual or what place he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point."
There is no doubt that the respondent was cross-examined within the meaning of that expression in r7. However, a consideration of any of the Judges' Rules must bear in mind the words of Dixon J in McDermott at 514 - 515:
"This Court is now invited to lay it down that the practice now obtaining in England must be followed and in particular that the Judges' Rules must be accepted as a standard of propriety. To do so would be to go beyond the function which this Court so far has exercised in appeals by special leave in criminal matters. No rule of law has yet been established either here or in England imposing either upon the judge at a criminal trial or upon the Court of Criminal Appeal the duty of rejecting confessional statements if they have been obtained in breach of the 'Judges' Rules' … Here as well as in England the law may now be taken to be, apart from the effect of such special statutory provisions as s141 of the Evidence Act 1928 (Vict), that a judge at the trial should exclude confessional statements if in all the circumstances he thinks that they have been improperly procured by officers of police, even although he does not consider that the strict rules of law, common law and statutory, require the rejection of the evidence."
In Lee (supra) at 154 - 155 the judgment of the Court establishes that the discretionary issue is not whether one or more of the Judges' Rules have been breached, but whether "the accused has been so treated that it would be unfair to admit his statement". In my respectful opinion, there is no such concept in law as "principles of permitted interrogation". The only relevant issue is whether it would be "unfair to the accused to allow his own words to be given in evidence against him" per R v Jeffries (1947) 47 SR(NSW) 284 at 312, approved by the Court in Lee at 154. The Judges' Rules originated in England in 1906 when the judges of the King's Bench responded to a request from the Chief Constable of Birmingham to indicate the judges' attitude towards the police practice of questioning suspects and taking statements from them: see An Examination of the Judges' Rules in Australia (1972) 46 ALJ 489. The author of that article highlights the fact that the Judges' Rules are no more than administrative directions drawn up to ensure that any statement tendered in evidence has been made voluntarily and therefore is admissible in evidence. In the case of indictable offences, any useful purpose served by those Rules has now largely disappeared. The Criminal Law (Detention and Interrogation)Act 1995, s8(2) prescribes video taping as a condition precedent to the admission into evidence of a confession on the trial of a person accused of a "serious offence" unless, in the circumstances set out in that subsection, the court otherwise orders. Thus, the trial judge on a voir dire is able to see and hear everything that occurred during the course of an interview with an accused person. The technology enables the judge to witness virtually first hand, everything that was said and done. By watching and listening the trial judge is able to determine whether it would be unfair to permit the words of the accused to be used against him on his trial. He or she will gain little further assistance from recourse to the Judges' Rules in making that determination.
In this case, the respondent was not under arrest and voluntarily agreed to be interviewed. It might well be thought that the account being given by the respondent during the early part of his interview was unlikely and contained a number of untruths. In my view, the interrogating officers were entitled to pursue their questioning with some robustness and were not obliged to simply accept what the accused was telling them. It is quite clear from the tone of voice used by those officers and their bodily movements that, although the respondent was subjected to close questioning, he was not at any time overborne or threatened. There was nothing in the questions or the conduct of the officers asking the questions that could lead to the exercise of a discretion favourable to the accused because admission of the confessional evidence would be unfair to him. I venture to set out below the following passage from the judgment in R v Jeffries (supra) at 313 - 314, cited with approval in Lee at 155:
"The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence."
Accordingly, for those reasons, I would uphold grounds 1 and 2 of the notice of appeal but, for the reasons expressed by the learned Chief Justice, would not give leave to appeal on that account alone.
With respect to the remaining grounds of appeal, there is nothing I wish to add to the reasons for judgment of the learned Chief Justice.
Serial No 136/1998
File No CCA 42/1998
THE QUEEN v LAWRENCE STUART PIRIMONA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
6 November 1998
I respectfully concur with what has been said by the Chief Justice concerning grounds 3 and 4 and agree that for those reasons the Attorney-General should be granted leave to appeal, the appeal should be upheld and the verdict of acquittal set aside and the retrial of the respondent should be directed. I wish, however, to add some comments concerning the role of a trial judge when an accused person is unrepresented.
In this case, the learned trial judge correctly identified the role of the trial judge in the course of his earlier determination that he should dismiss the respondent's application for a stay of proceedings in accordance with the principles of Dietrich v R (1992) 177 CLR 292. What his Honour said (R v Pirimona 49/1998 at 7 - 8), with emphasis added by me to particularly material parts of it, was as follows:
"It is sometimes claimed that any unfairness occasioned by reason of lack of representation ought be remedied by the trial judge, and, indeed, some would say that if he or she is unable to so do, that person ought not hold judicial office. The claim as a whole manifests ignorance of the judicial system, whilst the latter portion can be seen as spiteful. A judicial officer is able to ensure that the trial procedures are explained and kept as simple as possible, and to prevent counsel from obtaining tactical advantage by reason of knowledge of the rules of procedure and evidence. A trial judge is well able to ensure that inadmissible evidence is excluded and that issues of character, prior inconsistent statements and the consequences of their introduction are explained to an unrepresented accused before a particular course is adopted. But a trial judge cannot and ought not attempt to enter the arena in an effort to redress imbalance. The High Court in Dietrich recognised this distinction when Mason CJ and McHugh J, at 302, cited with approval the observations of Sutherland J in Powell v Alabama (supra) at 61:
'But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.'
But the dichotomy does provide some assistance in any decision concerning a stay of proceedings. If the unfairness is perceived to arise because of lack of knowledge concerning trial procedures, rules of evidence or from an inability to adequately prepare for the next witness and similar matters, the court ought be able to remedy the unfairness by granting adjournments, affording simple advice as to the manner of presentation, questioning and the like. If an unrepresented accused needs assistance with respect to the calling of a witness or the production of documents, then the trial judge ought be able to cause a subpoena to issue in the name of the accused or require the production of documents from the Crown or some other party. If the prosecution is perceived as having taken advantage, then the right, indeed obligation, to abort or adjourn the trial and stay further proceedings remains. Where the unfairness arises by reasons of factors external to the nature of the case, then the court is better able to ensure fairness and is less constrained to stay proceedings. Where the unfairness arises by reason of the nature of the prosecution case by virtue of complexity, number of counts, reliance on scientific or other forms of expert evidence and the like, then a court is less able to ensure fairness since it ought not become involved in an examination of the defendant's case, nor attempt to act as an 'amicus'. This approach is consistent with that taken by Thorson JA in R v Taubler (1987) 20 OAC 64 (a decision of the Ontario Court, cited with approval by the Court of Appeal in R v Sechon (1996) 104 CCC 554 at 559). An example of the difficulties associated with the trial judge attempting to redress the balance is afforded by the case of R v Turlon (1989) 49 CCC (3d) 186, where the Court of Appeal stated, at 191, the trial judge had 'gone beyond merely assisting the accused and conducted the kind of cross-examination that would have been expected of defence counsel'."
With respect to the learned judge, during the course of the subsequent trial he overlooked much of what he had said in that passage. Contrary to his statement that a trial judge ought not attempt to enter the arena to redress imbalance, his Honour did just that, by which I mean he did enter the arena of conflict between the parties. Contrary to what was said in the cited passage from Powell v Alabama, his Honour did investigate the facts and direct the defence. Going much further than merely "affording simple advice" his Honour attempted to act as an amicus curiae and went "beyond merely assisting the accused and conducted the kind of cross-examination that would have been expected of defence counsel". By doing so, his Honour acted contrary to the matters of principle he had correctly identified on that earlier occasion when rejecting the application for a stay of proceedings. By endeavouring to do what he did to protect the unrepresented accused's position, he gave the appearance of partiality. See Foster v R (1982) 61 FLR 440 at 441.
The judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law. Particularly if the accused is unrepresented, once it appears that there is a real question as to the voluntariness of a confession tendered by the Crown, the judge must satisfy himself that the confession was voluntary, and that will usually involve holding a voir dire, even if none is asked for. See MacPherson v R (1981) 147 CLR 512 at 523. For that purpose, it will frequently be required of a trial judge to explain to the accused, in the absence of the jury, what is involved in such a process and of the risks to the accused which might be involved in it. It is wrong to think that a judge who explains to an accused person the choices open to him is playing the part of an advocate. The judge would merely be performing a judicial duty by informing the accused of his or her rights in relation to the conduct of the trial. MacPherson at 524.
"There is no limited category of matters regarding which a judge must advise an unrepresented accused ¾ the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial". MacPherson at 524. Advice is frequently given about such matters as a right to challenge jurors and how it may be exercised; the right and possible need to cross-examine witnesses and to give evidence and what some of the risks might be which could arise if the right is exercised; a right to address the jury; the right to object to inadmissible evidence; the raising of problems with the judge possibly in the absence of the jury; the risks involved in putting the accused's character in issue. There is no set list and what will be required will depend upon the circumstances of the particular case. On some occasions, it may be necessary for the judge to give assistance to the accused when he is examining or cross-examining witnesses, or when he is giving evidence himself. It may become apparent that the accused is having some difficulty expressing himself or in framing questions with which counsel would have no difficulty or in giving evidence himself. But the trial judge should avoid conducting the accused's case, or giving the impression that he is doing so.
In MacPherson v R at 546, Brennan J cited the following passage from Laker Airways v Department of Trade [1977] 1 QB 643 per Lawton J at 724:
"In a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play."
Brennan J pointed out that there is a distinction, however, between telling the players how to play and telling them the rules of the game and he approved the following statement by Wills J in R v Gibson (1887) 18 QBD 537 at 543:
"It is sometimes said ¾ erroneously as I think ¾ that the judge should be counsel for the prisoner; but at least he must take care that the prisoner is not convicted on any but legal evidence."
As was pointed out by Brennan J at 547, the judge's duty to ensure that a trial is fair does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused of his rights in order that he may determine how to conduct his case. In the present case, the learned trial judge went further than advising the respondent on how to conduct his case. On a great number of occasions, his Honour conducted the case for him.
Concerning grounds 1 and 2 and the admissibility of the confessionary material, there is little I wish to add to what has been said by Underwood J. I comment that in hindsight it may be said that the evidence of Dr Salter, which was given on the voir dire, ought not to have been received. That certain drugs had been prescribed for the respondent, and the possible effects of those drugs, had no bearing on the question whether the confession should be admitted because there was no evidence that at any material time the respondent had taken those drugs. Dr Salter's opinion that in the last five minutes of the video recorded interview, the respondent's speech was slurred at times and he appeared to be slouching more, was strictly an inadmissible opinion. The learned judge was quite capable of assessing whether those matters were facts by viewing the film of the interview.
My own observations of the interview between the police officers and the respondent included the following. The interview was conducted at a leisurely pace. The police officers spoke slowly and clearly when asking questions. The respondent took great care about many of his answers. On many occasions, following the asking of a question by one of the officers, there was what I would describe as a pregnant silence when the respondent seemed to be having difficulty thinking of a satisfactory and believable answer. He clearly gave untruthful answers on a number of occasions, particularly in the early stages concerning the identity of the persons who had brought the boat to his house. There was some cross-examination of him by the officers and there is no doubt that as a result of that cross-examination he made the admissions that he knew the property was stolen. Some readers of the typed transcript of the interview might consider that there was a level of oppressiveness in the questioning of him, but that was certainly not the impression I gained from watching the video recording. The respondent did not appear tired. There was no sign of him being under the influence of drugs. He plainly answered the questions voluntarily. The police officers were justified, because of manifest lack of candour in many of his answers, in not believing all that he was saying. They persisted in their efforts to elicit the truth and in the end they were rewarded by the admissions. But the officers were not overbearing in their manner. The respondent gave no sign of being oppressed or confused, and he did not give or call any evidence to suggest that he was.
As is observed in Cross on Evidence, Aust Edn, par33655, "if the rare case of a contrite man who makes a more or less spontaneous confession is excluded, every confession that was ever made was probably made in consequence of questioning but for which the maker would have stayed silent." Undue insistence or pressure may well have a bearing on the question of admissibility or the exercise of a discretion to reject the evidence on the basis of unfairness, but on the basis of the evidence before the trial judge in this case, it is my view that his Honour ought to have ruled admissible all of the confessionary material.
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