Reg v Swaffield

[1996] HCATrans 370

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B33 of 1996

B e t w e e n -

THE QUEEN

Applicant

and

JASON ROY SWAFFIELD

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 2 DECEMBER 1996, AT 11.30 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   If the Court please, I appear with my learned friend, MR M.C. CHOWDHURY, for the applicant.  (instructed by the Director of Public Prosecutions (Queensland))

MR R.V. HANSON, QC:   If the Court pleases, I appear for the respondent.  (instructed by the Director, Legal Aid Office (Queensland))

GAUDRON J:   Yes, thank you.

MR BYRNE:   Your Honours, the applicant seeks to demonstrate error in the Court of Appeal.  We approach that task in this way:  we say that the trial judge had regard to all relevant principles; having heard the evidence on a voir dire and having referred, in the course of his reasons, to the relevant Australian authorities.

We adopt, with respect, as prima facie, the position, the statement, the penultimate paragraph of page 3 of the respondent’s outline of submissions, where our learned friend says:

What is unfairness in any particular case is a question of fact for the trial judge.

The trial judge in this case gave full reasons and made such a determination, and that determination was upset by the majority of the Court of Appeal.  We submit that whilst discretionary exclusion of voluntary admissions is open in various forms in all predominantly English‑speaking jurisdictions, the framework under which that discretion operates is different because of statutory or other provisions which apply in the different jurisdictions.  For example, in Queensland and generally throughout Australia, regard is had to the judges’ rules and the spirit of those rules as it has been called.

GAUDRON J:   What is their status in Queensland?  Do they have any status at all in Queensland?

MR BYRNE:   They have status in Queensland and that is recognised by the judgment of Mr Justice Pincus in the present case where he recognises that it is the earlier version - that is the 1936 version of the rules which have application in Queensland as general guidance provisions.

GAUDRON J:   They are issued by the commissioner to members of the force for their guidance, are they?

MR BYRNE:   No, they are adopted in the commissioner’s guidelines.  They have picked up the judges’ rules as a yardstick by which police should conduct themselves in the operation of interviews and investigations.  We have supplied ‑ ‑ ‑

KIRBY J:   They were laid down by English judges, so they became accepted generally by Australian judges, including in Queensland.  The commissioner somehow put them into writing and the 1936 rules are generally accepted. 

MR BYRNE:   That is so.

KIRBY J:   Could you just tell me what is happening now in Queensland, now that you have O’Neill and Davidson on one hand, and this case on the other; what is happening at the trial level?

MR BYRNE:   That is our concern.  I cannot answer that directly, but certainly our submission is and will be in more detail later.  But, the conflict makes it very difficult for trial judges to determine on what basis the discretion should be exercised.  There is, we say, not a real point of distinction ‑ ‑ ‑

GAUDRON J:   The principle relating to the discretionary rejection of evidence are not in doubt, are they?  I mean, they are simply not in doubt.

MR BYRNE:   Certainly they have been stated by the courts in Queensland; the majority in O’Neill and Davidson and Moyle, and those decisions purport to apply to statements by this Court in the various considerations.  So, yes, one would have thought they were not in doubt, your Honour.

GAUDRON J:   The issue, if there is one in this case, seems to be the way in which the Court of Appeal has used its position to interfere with the exercise of the trial judge’s discretion.  Is that not right?

MR BYRNE:   That is so.

GAUDRON J:   And, again, the principles relating to that are not in doubt.

MR BYRNE:   Again, that is so.

GAUDRON J:   So we are concerned with the way in which the Court of Appeal has applied those principles; or you would say misapplied them.

MR BYRNE:   We would say, as your Honour points out, misapplied, and we say it raises a point of special leave because of the way in which the application of the principles has been done, and the disturbing situation in which it leaves trial judges - not only trial judges ‑ ‑ ‑

McHUGH J:   But it does not leave trial judges in a disturbing situation.  The Court of Criminal Appeal has just, prima facie, wrongly interfered with the trial judge’s discretion.

MR BYRNE:   Why we say that, your Honour, is, if one is a trial judge, what provisions or what rules does one apply, the majority in O’Neill and Davidson and Moyle or the reasoning in the present matter.

McHUGH J:   But there is not any ratio in this case that is binding on a trial judge, is there?

KIRBY J:   In this case the majority appears to have applied the dissenting opinions in O’Neill, and therefore, if I were a trial judge I would wonder, “Now, do I apply the dissenting opinion in O’Neill and the decision in Swaffield, or do I apply the majority opinion in O’Neill and Davidson and the Court of Appeal in New South Wales”.  It is a question, I suppose, whether you should just be allowed leeway and that Queensland will ultimately sort itself out on this point or whether it is the job of the High Court to try to sort out these differences that should be sorted out within the Court of Appeal.

GAUDRON J:   In a context in which it is a Crown appeal.  It is a Crown appeal from an acquittal.

MR BYRNE:   Yes, we accept that difficulty.  Yes, from an acquittal entered by the Court of Appeal.  We say that, of course that is a consideration, but the.....on granting special leave in this case is not that great given that there was no appeal against the other sentences or convictions, and there is only one year difference in the end result of the sentence ultimately imposed for the arson, and that was also in a context of the fact that all sentences were made cumulative upon an eight year sentence earlier imposed.

KIRBY J:   One year may not seem too much to you, Mr Byrne, but it might seem a lot to Mr Swaffield.  It is a shame that this point cannot be tendered to the Court as a theoretical appeal in some way that would not have that consequence for him.

MR BYRNE:   It may or may not.  Your Honours, if you were minded to grant special leave, could leave the matter of a retrial to the Director of Public Prosecutions in the exercise of his discretion, and taking all matters into account he may decide to exercise that in a certain way.  To get back to the point, the majority judgment in O’Neill, this honourable Court refused leave in respect to that.  We now have a situation where despite that the Court of Appeal has, at least the President in his reasons, adopting his reasoning in O’Neill has agreed with Mr Justice Helman in the present case to form a different majority.  That is, we say, unsatisfactory, and it is a matter which needs the resolution of this Court.  Mr Justice Pincus points out in his judgment ‑ ‑ ‑

KIRBY J:   We have read what Justice Pincus - what do you say is the important philosophical or conceptual difference between Justice Fitzgerald and Justice Pincus?  Is it to do with the use of entrapped statements to police by people who have made it clear that they do not intend to make a statement and then undercover officers are used because that may be a matter of general importance?

MR BYRNE:   Your Honour, that is the precise issue on which we have difficulty, and we say the courts would have difficulty, because the President relies upon his minority judgment in O’Neill, and to remind your Honours briefly of the facts in O’Neill; the witness went to the police, told the police that O’Neill had confessed to her of the crime of attempted murder.  The police, having that information, sent her back to O’Neill wired for sound and to obtain further confessions and those confessions were obtained.  The majority of the court, the President dissenting, held those admissions to be properly admitted.

In the present case the police were in a less advantageous position.  They had no evidence on which the respondent could have been charged. They certainly had suspicions and they may have had beliefs, but there was, as is demonstrated by the failure to lead evidence at committal, no evidence on which to proceed.  So, in those circumstances, again, taped conversations held to be inadmissible.  The President, for the reasons he gave in O’Neill, Mr Justice Pincus saying, “Well, O’Neill requires the admission”, and indeed, Mr Justice Helman saying , “Because on the reasoning of English Court of Appeal decisions”, which, as we have attempted to say in our outline rely upon quite different provisions and a different statutory scheme than exists in Australia.

That is why we said earlier the trial judges are in a difficult position.  If a trial judge - and to use this example:  His Honour Judge Nase, sitting in Rockhampton with a jury is to apply the Queensland authorities or the authorities from this honourable Court, he can be expected to know that.  But if he has to have regard to English Court of Appeal decisions and, for example, paragraph 10.1 of Code C of the Codes of Practice in England, it is rather a daunting task for him to undertake.  We would say that the majority in this case seems to impose that sort of obligation upon a trial judge in the exercise of his discretion.  That is where we say that the error has occurred.

GAUDRON J:   They cannot.  That really is reading a little too much into the decision of the Court of Appeal, is it not?  The Court of Appeal cannot fetter the trial judge’s discretion.  The principles are clear.  It is a discretionary matter, the discretion to be exercised in the circumstances of the particular case.

MR BYRNE:   But what principles does one apply?  If I could take your Honours to page 9 of the record, at the bottom, this is what his Honour, the learned President says.  The final word on that page:

My reasoning on those occasions -

that is, in dissent in O’Neill and Davidson and Moyle -

would necessarily lead to the conclusion at which Justice Helman has arrived, which is supported by the decisions of the English Court of Appeal to which he has referred.

Now, it must flow, we say, from that, that the majority of the court ‑ ‑ ‑

GAUDRON J:   The most that can emerge from that, surely, is that there was unfairness in this case.  The trial judge thought there was no particular unfairness; the Court of Appeal thought there was.  Now the next question is, discretion.

MR BYRNE:   It is the reasoning of the Court of Appeal we seek to attack, your Honour.

KIRBY J:   Did you argue below that the English decisions had no relevance to the exercise of the discretion in Queensland?

MR BYRNE:   I did not appear below, so I cannot specifically answer that question, your Honour.

KIRBY J:   But you say that the problem now in Queensland is:  (a) you have got a disparity between the authorities and you have got the President applying his dissenting opinions, and you have got a complete clash between what would be therefore two decisions of the Court of Appeal, which this Court has declined to interfere with; single cases, but you have got that; and, secondly, you have got Justice Fitzgerald, in this case saying that the English decisions support his position and you say the statutory scheme is completely different and that the poor Queensland judges in Rockhampton will be pouring over an irrelevant statutory scheme, and we should put an end to it.

MR BYRNE:   We do say that.

GAUDRON J:   Well, with respect, the question is only, is it not, raised by this case, if there be any question, it is whether, in the circumstances of this case, there was an unfairness in the way the evidence was obtained?  That can be the only matter on which there can be any difference of opinion, can there not?

MR BYRNE:   We accept that, but we say it must be an unfairness which would require, as it was put by the majority, the exercise of the discretion to exclude, and that is where we say, if there was an unfairness, on the existing authorities prior to Swaffield, it was not such an unfairness that would give rise to the exercise of the discretion.

KIRBY J:   But unfairness is a very, very broad test and one could say, in this case, applying quite a rigorous test.  Here is a person who declined to say anything and then, because of some other investigation, the prosecution, as it were, trapped him or inveigled him, deceived him, into making statements which were damaging to him, well knowing that he was not wishing to make any statements to police.  Now would it not be open to a trial judge to say, “Well, I think that is unfair”, or to a Court of Criminal Appeal to say, “I think that is unfair.”?

MR BYRNE:   It depends, to answer your Honour’s question, really upon the tests and the principles which are applied, the answer which one gets to that.  If one applies, for example, the English provisions, which outlaw any questioning of persons suspected, and without a warning, then certainly the answer would be yes, it requires exclusion.  If the English provisions do not apply, then it becomes more of a balancing exercise for the trial judge, and we say that is what the trial judge did here and the Court of Appeal, in the majority, erred in reversing his discretion in reliance of the other statutory provisions which were not relevant.

McHUGH J:   What you would say, I suppose, is that if the police thought they had reasonable evidence upon which to charge the accused but knowing that he was not going to answer any questions, they adopted a course of deception, that is one thing, but your argument is that, in this particular case, they did not have any evidence upon which they could charge him at the time the deception was practised.

MR BYRNE:   Quite so, and if one accepts that as a correct statement of facts, and we submit it, with respect, is, then trial judges and covert operatives are met with a difficulty that his Honour Mr Justice Helman seems to be saying that even in that situation, the judges’ rules would have required a warning to be given to the person.

McHUGH J:   I must say, at the moment, without hearing Mr Hanson, I have real difficulty in just seeing what the judges’ rules have got to do with this case at all - with this particular case anyway.

MR BYRNE:   And that leads on to what we say is a special leave point, in that not only judges - and we have made this point, I will not repeat it - but persons seeking to gather evidence in important crimes will now, if this majority is taken to be correct, feel inhibited to carry out covert operations.  Mr Justice Pincus describes that potentially as being catastrophic and we, with respect, adopt that and say that there needs to be some guidance ‑ ‑ ‑

KIRBY J:   Another point of view is that it is really rather undesirable that police interview a person and then having failed there may wire people up to indulge in hotel conversations with them and gain information they never otherwise would have got; that may arguably not be a good development.

MR BYRNE:   It may or may not; it must again depend on what knowledge the police had and what principles are to be applied.

KIRBY J:   Of course, in this case the respondent was being investigated for a drug offence that had nothing to do with the arson, and it was just somebody putting one and one together that led to the covert investigation.  That is the case, is it not?

MR BYRNE:   Yes, that is so, and we also factually take issue with Justice Helman’s description of this as an interrogation.  What was raised simply was, by way of deception admittedly, that the agent’s brother‑in‑law was in trouble for an unrelated arson and then the respondent volunteered his involvement in the $400,000 arson of the Leichhardt Rowing Club.  So it is not a question of cross-examination or overbearing; it is two persons involved in a voluntary conversation and the learned trial judge gave weight to the fact that this was a criminal enterprise they were engaged in.  They were equal parties, they were voluntary, and in all the circumstances there

was no discretion to be exercised.  We say the error occurred by the application of incorrect principles, in particular, the English statutory scheme in paragraph 10.1 of Code C.  If the Court pleases.

KIRBY J:   Could you just help me on a small factual matter?  There was a reference during the conversation, which was taped, to the brief.  Now, this was the 57-page brief that was in the possession of the interrogator, the covert operator.

MR BYRNE:   That is so.

KIRBY J:   How would that not have put the respondent on the alert that this was somebody who had some connection with those who could supply the brief?

MR BYRNE:   I cannot answer that.  There was certainly reference to the brief against the made-up brother-in-law.  I believe that is the context in which the brief of evidence was referred to, not the brief in respect to the particular respondent here.  Those are our submissions, if the Court pleases.

GAUDRON J:   Yes, Mr Hanson.

MR HANSON:   If the Court pleases, I have three points:  the first is that the very exceptional circumstances, because of the acquittal, that must be shown are not made out.  I have given your Honours the authorities for that in the outline.  The second point is that the differences of opinion in the Court of Appeal are really not differences on any point of principle, but are differences upon what circumstances, in any particular case, will amount to the requisite unfairness.

KIRBY J:   You say that but on Justice Helman’s approach, every judge in Queensland is going to go pouring over those English judges’ rules or commissioners’ instructions.  I mean, we really have to grow up in this country and make sure, if we do look to foreign countries, that what we are looking at is the slightest relevance to our inquiry.

MR HANSON:   Your Honour, the argument that his Honour has erred by adopting the English comments because they are based on the English Code seems to be a misreading of what his Honour had to say.  Could I take you to page 40 of the record where his Honour sets out the English position.  About line 25, that is the second line 15 there - you will see the lines are misnumbered - line 25, from there to the end of that paragraph, there is a reference to the position in England, and the grounds are “unfair either at common law or  under s. 78” of the Act or the Code, and then section 78 is set out at lines 34 to 39, and it is in no more and no less terms than that, the judge has a discretion to exclude the evidence if he thinks it is unfair.  So there are three grounds in England and the argument that his Honour’s adoption of the English cases is vitiated by the English Code is just a misreading.

KIRBY J:   That may be a correct submission and in due course might need to be considered but do we not now have a situation where there is a conflict between the authority of different judges in the Court of Appeal, and they are all resolutely sticking to their own guns and big guns have got to be brought in to resolve it.

MR HANSON:   Well, as I have said in the outline ‑ ‑ ‑

KIRBY J:   And may this not be, with undercover operations apparently becoming more common, something of more general significance beyond Queensland?

MR HANSON:   If leave were given and the appeal allowed, your Honour, what would be the effect of the judgment?  That in that case it was unfair to go about obtaining the evidence in that way and the evidence should not have been received.  With respect, that result will not assist particularly.

McHUGH J:   Not necessarily, Mr Hanson.  One view might be that Justice Helman was in error to even have regard to the judges’ rules in this context.

MR HANSON:   I have difficulty with that point.  I have conceded that in the outline but said, really, what his Honour is doing is speaking of the judges’ rules by way of illustration, that the rules are being circumvented by this device.  That is really what he is talking about, although I must concede he seems to have gone a little further than that in places.     Page 44 I think it is.

KIRBY J:   You have to say they are a sort of metaphor for fairness?

MR HANSON:   Yes.

KIRBY J:   And that in so far as he refers to the cases that gathered around the judges’ rules, they may give some analogical argument for unfairness generally?

MR HANSON:   Yes.  I could not support the suggestion that judges’ rules required a warning to be given to Swaffield in this case by the undercover policeman with his tape recorder in his coat pocket.  I could not support that, but really that is all his Honour is saying, that this is all a device to circumvent the safeguards where you have got a man who has, in the past, been seen by the police; twice said he does not want to talk to them; he has been charged and released, and the safeguards are contained in the judges’ rules.

KIRBY J:   That may be so, but that is not an unimportant point.  What is the philosophical difference in your submission, or the difference of principle between Justice Fitzgerald and Justice Pincus?

MR HANSON:   No point of principle at all, your Honour.  In one case, some members of the Court thought it was unfair; others did not.

KIRBY J:   And they both seemed to think that there is some deep abiding principle of difference between them.

McHUGH J:   Yes, and the reason it does not appear from this judgment is because you have got to read O’Neill, and the President takes the view that these deceptive operations are, in effect, prima facie unfair.  It obtained admissions by deception.

KIRBY J:   And he might be right.

McHUGH J:   Justice Pincus does not.

MR HANSON:   Mr Justice Helman, on the other hand, decided the case another way really, really on the facts of this case, a very detailed consideration of the facts of this case.

KIRBY J:   But look at it from the point of, here is the judge sitting in the court house in - what is the most remote town of Queensland - and he is poring over O’Neill, he is poring over Davidson and he is poring over Swaffield.  He learns that this Court refused special leave in O’Neill and in Swaffield.  It does make his task a little confused.  I mean, I am always thoughtful for the trial judges.

MR HANSON:   He would be faced presumably with another set of circumstances, a slightly different variation no doubt, and the prosecutor could have instructions from the director that it is open to the trial judge to make up his own mind on these facts, the principles are clear:  “Make up your own mind.”

KIRBY J:   But if the course were adopted - Mr Byrne, very fairly, has said that in the event that the Court determined the matter, the double jeopardy of your client would be taken into account.  May that not be a just way, without dealing with it as a moot point but dealing with it as a real point, in which this Court could throw some light, the issue can be resolved, trial judges can be relieved, important questions of the use of covert evidence can be considered and your client is not going to be, or may not be, in great peril.

MR HANSON:   It depends what the final order is, I suppose, your Honour.  If the appeal were eventually allowed in this Court, would judgment of acquittal be set aside which would leave the conviction by the jury in place? So he would be left with his conviction for this offence, although he may not be - I suppose the only way to cure that would be for the director to enter a nolle prosequi if he could, or invite the Court to make some such order.

McHUGH J:   No, but if the Court set aside the ‑ ‑ ‑

MR HANSON:   It could only be with the cooperation.  I think Mr Byrne said, “Leave it to the director”.  I am not sure that that is right.  It would have to be resolved here.

McHUGH J:   If we held that the Court of Criminal Appeal was wrong ‑ ‑ ‑

KIRBY J:   That would restore the verdict of the sentence.

McHUGH J:   - - - that would restore the conviction.

MR HANSON:   Yes.  I do not know how he gets rid of that conviction.

KIRBY J:   I think that is correct.

McHUGH J:   Yes, I think you either go free or, in effect, the conviction stands and you remain in gaol.

KIRBY J:   He says it does not matter very much, it is only a year.  MrByrne looks at these things in a very robust way.

MR HANSON:   The director does not have a pardoning power.  The conviction is there and it stays.

KIRBY J:   Yes.  I think we have to face the fact that the consequence which normally follows from a Crown appeal would follow, and that is one of the reasons for restraint in Crown appeals.

MR HANSON:   My third point was that the majority below were correct, regardless of all of these other arguments.  It was a correct decision to say that this was nothing but a device to circumvent the safeguards.

KIRBY J:   I would feel more comfortable with that submission if, in fact, it was a device that came out of the blue, that they found the friendship which they were using, that in fact they had this man under surveillance for entirely different reasons and somebody put two and two together and thought, “Well, we might use this occasion”.  Now, that is a chance factor that is not a manipulation of the relationship by the police contrary to what they know is the wish of the accused.

MR HANSON:   Yes.  This case has gone further than any other case has gone of course.  The next step will then be a deliberate police plants with the target and for no other reason, where the fellow with the tape recorder will be a policeman.

McHUGH J:   I think you have got to draw a distinction between two classes of case, Mr Hanson.  One is where the police have got evidence and they are going to charge the man anyway, but they really want to strengthen it, and the case where they just have not got enough evidence.  To my mind, there is a real distinction between the two situations.  In some respects, this case is weaker than O’Neill, because in O’Neill they could have charged him without the tape.  They would not have had the same strong case, but they could have relied on the other nurse’s evidence.  Here they had no evidence at all without this.

MR HANSON:   No.

KIRBY J:   But in that sense, this case may tender to the Court the hard case in the sense that they had no evidence and they went out to get it and they went out to get it contrary to the declared intention and wish of the accused.

MR HANSON:   And they went with a policeman not ‑ ‑ ‑

KIRBY J:   You might win the case on appeal.

MR HANSON:   We prefer to win it here, your Honour.  Those are my submissions, your Honours, unless there is something further I can add?

GAUDRON J:   Thank you, Mr Hanson.  Mr Byrne.

MR BYRNE:   Could I just say a few things?  What I had in mind in the submission I made in relation to if the Court granted special leave when the appeal was ultimately successful, the conviction has been quashed by the Court of Appeal.  It would be open, in our submission, for this Court to order a retrial of the matter and then the discretion of the director would come into play.  The two other points I seek ‑ ‑ ‑

McHUGH J:   We would not order a retrial, would we?  The only order we could make would be to restore the conviction.  We would say that the appeal to the Court of Criminal Appeal should have been dismissed.

KIRBY J:   That is our function, to substitute the order of the court below for the order that ought to have been made by them.  Our relationship is with them.

MR BYRNE:   That is so.  It was in that context that I made that submission.  Could I make this point?  The question as to whether the relevance of the English provisions and statutory provisions raises its head is answered in our learned friend’s response on page 1 of his outline.  He said the answer to the proposed special leave question (c) “is clearly ‘yes’”, and Mr Justice Helman was correct in having regard to the English decisions.  We say that highlights that this was a relevant concern and it is where the Court of Appeal and, if not corrected, other courts will fall into difficulties.

KIRBY J:   But when you actually look at the Act, as distinct from any Commissioner’s instruction, the Act is just a generality about unfairness, “would have such an adverse affect on fairness of the proceedings that the Court ought not to admit it”.  So it is really a repetition of the common law principle.

MR BYRNE:   That is so and that is where it is clear that the statements of principle extracted from the English cases are having regard not to the Act but to the Code, because your Honours will see that on, for example, page 41 of outline 12 in the judgment of Lord Justice Taylor, he says:

They were not questions “about the offence”.

That is a reference, we would say, to paragraph 10.1 of Code C which says:

A person whom there are grounds to suspect of an offence..... must be cautioned before any questions about it -

and similarly that appears at line 35 in Justice Helman’s reasoning:

They deprived the appellant, it was further submitted, of his right not to incriminate himself by answering questions which, had they been put by a police officer acting overtly as such, would have required a caution under the relevant code.

And again page 42, line 30, they are talking about circumvention of the Code.  So it is that Code which we say is foreign to the law in Australia which is being applied in the English cases and which is being transmuted, if you like, by the majority into the law of Queensland.  That is our reply, thank you.

GAUDRON J:   Yes, thank you, Mr Byrne.  There will be a grant of special leave in this matter.

AT 12.03 PM THE MATTER WAS CONCLUDED