Reg v Swaffield- Pavic v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 1996

B e t w e e n -
THE QUEEN
Appellant
and
JASON ROY SWAFFIELD
Respondent

Office of the Registry
Melbourne No M13 of 1997

B e t w e e n -
STEVEN FRANCIS PAVIC
Appellant
and
THE QUEEN
Respondent

BRENNAN CJ

TOOHEY J
GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 1997, AT 10.24 AM

(Continued from 24/6/97)

__________________________________

BRENNAN CJ: Yes, Mr Grace.

MR GRACE: Thank you, your Honour.

BRENNAN CJ: Mr Grace, before you commence your argument this morning, in the light of the submissions that you made yesterday and in the light of some of those that were made before you rose yesterday, the question arises whether the present formulation of the rules in relation to the admissibility of confessions are satisfactory and whether it would be a better approach to think of the question of admissibility as turning, first, on the question of voluntariness; next, the question of exclusion, which might be based on considerations of reliability; and, finally, an overall discretion which might appropriately take account of all the circumstances of the case in order to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable having regard to contemporary community standards. Now, it is just a question of whether or not any such approach is one that you would contemplate as being appropriate and, if so, how it would operate in relation to the facts in the present case.

MR GRACE: Yes, I would submit that such an approach would be appropriate and that it could operate in the circumstances of the present case to enliven the discretion, firstly, and to see it is exercised in favour of the exclusion of the evidence. The trend towards this approach has been apparent, it is submitted, in a number of recent

decisions of this Court commencing with your Honour the Chief Justice’s comments in Duke and your Honour Justice Toohey’s comments in Duke, following through into Foster, and I will take your Honours to those extracts shortly.

It is also remarked upon by his Honour the President of the Court of Appeal of Queensland, Justice Fitzgerald, in his judgment, albeit dissenting, in O’Neill and touched on also in Davidson & Moyle, but perhaps the commencing point for consideration of the issues may be Duke and then I will take your Honours to Foster. The relevant extracts in Duke from the judgments appear at page 513 where your Honour the Chief Justice commented upon reliability or unreliability of being only one factor that is relevant in consideration of the exercise of the fairness or unfairness discretion and that is made clear at point 4 on page 513 of the judgment which appears in 180 CLR 508. At point 4 your Honour the Chief Justice says this:

The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.

Now, your Honour left open what “for any other reason” might be and the next sentence gives some description of what that might be:

Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross‑examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case.

Now, it may be that your Honour in that extract was straying into the area of public policy considerations in the exercise of the fairness discretion and it is perhaps made clear ‑ ‑ ‑

KIRBY J: But is that not inevitable if you adopt this tripartite structure that is put to you that sometimes the unreliability will be because of the unfairness, but sometimes it will be completely reliable but obtained in such an unfair way that it enlivens the third step, which is the public policy exclusion?

MR GRACE: Yes, but traditionally the activation of the public policy considerations apply in a traditional Bunning v Cross sense and as his Honour Justice Dawson delineated in Cleland applies when there has been a level of unlawfulness or impropriety that is easily discernible and is completely extraneous to considerations of fairness to the accused. Here it appears that your Honour the Chief Justice is merging to some extent the considerations of the nature of the police conduct and giving voice to the concerns of public policy in the exercise of the fairness discretion and Justice Toohey in your Honour’s judgment at page 527 at the top of the page said this:

In the present case a relevant factor to consider in the exercise of the discretion is whether the confession was obtained while the applicant was held in unlawful custody and whether it would thereby be unfair to him to admit the confessional evidence.

So your Honour is making no concession there to reliability being necessarily the issue. Matters in addition to questions of reliability are relevant in your Honour’s statement there, it is submitted, and the unlawfulness of the custody which goes to the nature of the police conduct is a relevant consideration it would appear from that sentence.

TOOHEY J: I take it you would put voluntariness into a separate category in the sense that if the statement is involuntary then no question of discretion arises, the evidence should not be received.

MR GRACE: Yes, but voluntariness, as Foster’s Case demonstrates, can not always be divorced from these other issues and I will come to that now. In Foster 113 ALR 1 at page 8 in the joint judgment of the then Chief Justice Sir Anthony Mason and Justices Deane, Dawson and your Honours Justices Toohey and Gaudron ‑ ‑ ‑

TOOHEY J: I am sorry, what reference are you giving us?

MR GRACE: The Australian Law Report. The top of page 8, your Honours, is the commencement point. At that stage in the judgment those members of the Court had reached the conclusion based upon certain comments in previous cases, including Lee’s Case, that the semi‑illiterate position of the appellant was a matter to consider. The situation that he was placed in, his custody, his special position of vulnerability were all relevant to the exercise of the fairness discretion and after the quotation from Lee on page 8 at approximately line 12 their Honours said this:

The above considerations alone constitute substantial grounds upon which evidence of the confessional statement might have been excluded pursuant to the discretion to exclude evidence whose reception would be unfair to an accused. There were, however, some more particular aspects of the present case which weighed heavily in favour of exclusion of the evidence. We turn to identify them.

Then their Honours go on to discuss three separate matters and it is submitted that those three separate matters, which I will shortly elucidate, do not of themselves affect the accused nor necessarily the reliability of the evidence and these would not have been factors that would normally have been encompassed within those matters that are taken into account in the exercise of the fairness discretion and the first one was the nature of the police infringement, and at line 18 their Honours say this:

First, there was the nature of the police infringement of the appellant’s rights. It was both serious and reckless. The courts of this country have been at pains to stress that the right to personal liberty under the law is, in the words of Fullagar J, “the most elementary and important of all common law rights”. It is “beyond question that at common law” neither a member of the police force nor any other person “has power to arrest a person merely for the purpose of questioning him”. Nor was there any statutory provision which even arguably conferred a power upon the police, in the circumstances of the present case, to arrest the appellant otherwise than for the purpose of taking him before a “Justice to be dealt with according to law”.

Now, that discussion would not be out of place in the discussion of a Bunning v Cross‑type exclusionary case but nevertheless it finds its place in discussion of a fairness issue. The second point which appears at the top of page 9 on line 4 is this:

Secondly, it was clear from the police evidence that the unlawful arrest and detention of the appellant had been for the purpose of questioning him in an environment from which he had no opportunity of withdrawing.

Then there is set out some questions and answers. At line 45 there is mention of the fact that the appellant’s mother was told that she must wait until the interview had been completed before ‑ ‑ ‑

KIRBY J: Is that a matter relevant to step one, voluntariness, in the reconceptualisation?

MR GRACE: It may be, but it comes to - in point three the issue of voluntariness is fairly and squarely raised and that appears at line 48 on page 9 where their Honours say:

Thirdly, there was a real question in the present case about whether any admissions by the appellant were voluntary in the sense of meaning “in the exercise of a free choice to speak or be silent”. Inevitably, the subjection of a person to involuntary and persistent interrogation by the police while he or she is unlawfully detained in police custody gives rise to a situation in which there are likely to be grounds for concern about whether any confessional statement has been voluntarily made since the unlawful detention in custody is likely to carry with it an implicit threat of continued unlawful detention unless and until the questions of interviewing police are answered to their satisfaction.

So you have voluntariness being used as a justification or a basis for the exercise of the fairness discretion and in articulating the matter in that way perhaps the Court was doing no more than emphasising the statements that your Honour the Chief Justice and Justice Toohey had made in Duke’s Case, but that gives a clear indication of the trend or the direction that this Court appears to have been going along since at least Cleland and it is not inconsistent with what your Honour articulated at the outset of this morning’s proceedings in the way in which the issue of this type of evidence can be treated.

TOOHEY J: Where would you put the Ridgeway situation into your discussions, Mr Grace?

MR GRACE: Ridgeway would probably come last, your Honour.

TOOHEY J: What, as a residual sort of basis for excluding the evidence or would you put it in some other way?

MR GRACE: Perhaps in those exceptional cases which give rise to Ridgeway‑type situations it would be as a residual matter.

TOOHEY J: Because they are not cases that necessarily involve any unfairness for the accused.

MR GRACE: Correct.

KIRBY J: But on this suggestion unfairness is merely one illustration of the third discretionary step and you would have to be careful to so formulate it that unfairness did not fall out of the formulation, but has there been any discussion of this in academic literature, in other words, reformulating the conceptions? I realise that we in Australia took a somewhat more rigorous stand on the exclusion of evidence, but what about in Canada or other countries, is there any development there that we should know of?

MR GRACE: I will be taking your Honours to the Canadian cases shortly. There has been a recent discussion in the University of New South Wales Law Journal in relation to this issue appearing just recently in volume 20 at page 25 of the 1997 edition of the University of New South Wales Law Journal, part 1, an article that is entitled “The Exclusion of Voluntary Confessions, A Question of Fairness”.

GUMMOW J: Does that include any consideration of the Commonwealth Evidence Act?

MR GRACE: Yes, it does.

TOOHEY J: Sections 90 and 138 of that Act bring a pretty broad brush approach to bear on the exclusion of evidence unfairly obtained or obtained in circumstances where conduct is unlawful or I think it is put ‑ ‑ ‑

BRENNAN CJ: Improperly or ‑ ‑ ‑

TOOHEY J: ‑ ‑ ‑ impropriety or in contravention of an Australian law.

MR GRACE: Yes. The Australian Law Reform Commission apparently envisaged a specific role for the discretion in its 1985 report, but no attempt was made it appears in the Commonwealth Evidence Act to define a limit of the circumstances in which the reception of confessional evidence might be said to be unfair.

KIRBY J: Would not the existence of a formulation in the Evidence Act which is going to be, I would think, increasingly important be a reason for some care on the part of this Court in reformulating matters given that the Parliament has expressed a formulation which specifically addresses fairness which until now has been a common law formulation of the court?

MR GRACE: Yes. It is yet to be decided, but it is submitted that the Commonwealth Evidence Act could not be regarded as a code and the courts will still have to look to the common law to interpret its provisions.

KIRBY J: It would be awkward though if there were two streams. I mean, you are right but it will not govern what the common law is but it would be awkward if there were two formulations.

MR GRACE: All the more reason, it is submitted, for the creation of this general discretion which would then easily fall within the particular provision of as it stands now of the Commonwealth Evidence Act.

BRENNAN CJ: Mr Grace, if there were to be any reformulation that may involve, if not an overruling, at least a departure from some of the existing cases in this Court, Lee’s Case in particular I am thinking of.

MR GRACE: Perhaps also to some extent Cleland’s Case, your Honour, particularly comments of Justice Dawson.

BRENNAN CJ: Yes. It may involve an extension of the Cleland concepts, but the question is whether we ought to contemplate any possibility of reformulation if there is no application to reconsider these earlier cases. In other words, do you wish to apply to reconsider the earlier cases?

MR GRACE: Yes, I do so, your Honour.

BRENNAN CJ: We will have to hear what all of the counsel have to say about that proposition, of course. The problem is to give some content to the notion of unfairness to an accused in admitting evidence which ex hypothesi is a confession voluntarily made that is ex facie reliable. Can you conceive of a situation in which it would be unfair to do that, unfair in the sense of the present formulation of the unfairness discretion?

MR GRACE: Unless you introduce public policy considerations, it is difficult to envisage a circumstance that would give rise to that sort of unfairness. There was suggestion yesterday of the position of a tribal Aboriginal. You have Foster’s Case where it is an example of a semi‑illiterate young man. They may be the closed categories of persons in those types of situations or ‑ ‑ ‑

BRENNAN CJ: They are not really closed categories because one category that has been opened is any breach of the Judges’ Rules. That has always enlivened the fairness discretion, has it not?

MR GRACE: Although the Judges’ Rules have not got the standing of being a law, it would almost get into the category of unlawful conduct/public policy. So the submission I made yesterday was that we have been constrained to date with what I submit are very difficult delineations between the two discretions and that one can see from the analysis of Duke and Foster the strain or even the overlapping of the considerations that are relevant to the exercise of both discretions. So that we now have a situation, it is submitted, in Australia where it is perhaps unclear as to what has to be taken into account in the exercise of a fairness discretion or what may be taken into account in the exercise of a fairness discretion.

BRENNAN CJ: You were going to take us to some other authorities, I think.

MR GRACE: Yes, I was. Before I do so, your Honours, could I just touch upon this issue of voluntariness. There has not been much judicial comment on the concept of what is meant by the word “voluntary” in recent times. The discussion seems to have ended with Justice Murphy’s comments in Cleland and if I could take your Honours to Cleland’s Case (1982) 151 CLR 1. At page 13 in the judgment of Justice Murphy under the heading of “Voluntariness” his Honour said this:

To be admissible the alleged confessional statement must be voluntary, that is, made by the choice of the accused completely free from any threats or other pressure. It may be a question of classification whether a confession induced by false representations or other trickery is voluntary. In older decisions these were regarded as negating voluntariness (see for example Reg v Johnson; Attorney‑General (NSW) v Martin; see also various statutory provisions such as Crimes Act (NSW) 1900, s. 410; Evidence Act 1928 (Vict.), s. 144 which treated inducement by false representations as requiring exclusion).

Then his Honour goes on to quote from an extract from Reg v Johnston and Ibrahim v The King - and also from Lee’s Case I might add - and on page 15 after quoting from Lee’s Case his Honour said this:

The court stressed “the great breadth of the common law rule that a statement is not admissible unless it is proved to be voluntary”.
The voluntariness of a confession is suspect if it is obtained by interrogation rather than being volunteered, or if, although volunteered, the procedure involved interrogation; if the confessor was in custody, lawful or otherwise; or if anything suggests inducement by threats, promises, false representations or other trickery. Because of circumstances appearing from the evidence, a judge may treat a confession as suspect for involuntariness (even if this was not asserted by the accused because he denies making it).

So it may be, taking this case, the appellant’s case, as an example, that the trickery or misrepresentation affects the issue of voluntariness, so we do not even have to get into the area of discretion to determine the admissibility, but as Foster’s Case indicates this issue of voluntariness, particularly in factual circumstances which are similar to the appellant Pavic’s case, the matters attributable to determining whether a statement is voluntary or whether it should be excluded in the exercise of the fairness discretion may well overlap.

TOOHEY J: But the word has to be given a meaning and it is a meaning that has a long history in decisions of the courts in terms of the overbearing of a person’s will. If you were going to attribute involuntariness in the sort of situations you were just canvassing, you would have to recognise that the word has taken on a new meaning.

MR GRACE: Yes, but it appears to have been the meaning that was attributed to the word before the development of the existence of the Bunning v Cross and the fairness discretions in Australia. This appears to have been a meaning that was attributed to the word, the wider meaning, but we have taken a more narrow approach it is conceded, notwithstanding Justice Murphy’s comments in Cleland, which were not adopted by any other members of the Court nor in my researches have I encountered any other judge of any superior court adopting, and we appear to have in Australia ‑ ‑ ‑

KIRBY J: What do you say that voluntariness is? Is it voluntariness of making a statement or is it voluntariness of making a statement as confession? Now, Justice Murphy seems to be thinking that it is voluntariness of making a statement as a confession to police, but I understood that voluntariness merely looks to whether the statement was made to whoever it was made and for whatever purpose as a free will of the person.

MR GRACE: Yes, but Justice Murphy seems to be saying that there is no such thing as a free will if the statement has been made through subversion of choice, through trickery or misrepresentation, inducement or threats. That appears to be the rationale behind those statements.

KIRBY J: Do you support that proposition?

MR GRACE: We do not necessarily support that proposition, your Honour, because the matters that would normally be taken into account in determining voluntariness on that basis would also be taken into account in either exercise of the fairness discretion or the Bunning v Cross discretion. So those factors would still come into play but they may not come into play at the first stage.

KIRBY J: Under the reformulation as suggested there is no question of separate fairness. It is, is it voluntary; if not, end to matter; if it is, then you go to the question of, is it reliable; if so, you then go to the discretion in which you have to somehow incorporate fairness.

MR GRACE: Yes. It may be that in reformulation of the rules it would be much easier to be understood if the question of voluntariness had the more narrow interpretation which your Honour has mentioned and then those other issues that Justice Murphy raises could be brought into play when one considers fairness.

BRENNAN CJ: I do not know about a narrow interpretation of voluntariness. If the statute ‑ ‑ ‑

MR GRACE: In a sense that we have been discussing, your Honour.

BRENNAN CJ: I take it voluntariness in Victoria is affected by, what, the common law or by statute?

MR GRACE: Well, common law essentially.

BRENNAN CJ: Common law. There is no reason why the common law concept of voluntariness should be narrowly confined, is there?

MR GRACE: Subject, of course, to any reformulation of the test by this Court to ‑ ‑ ‑

BRENNAN CJ: Yes, but if voluntariness is given - I will be generous, but an adequate coverage then you are in the area where you are speaking about admissibility.

MR GRACE: Yes.

BRENNAN CJ: If you are speaking about a residual discretion, you are speaking about that which might or might not get in. It seems to be every reason associated with the fairness of the criminal process why the tendency should be to expand the voluntariness at the expense of the discretion.

MR GRACE: If one accepts Justice Murphy’s characterisation of matters to be taken into account in assessing voluntariness then there must be some acceptance that it does infringe into that other area that was traditionally reserved for the exercise of the fairness discretion.

BRENNAN CJ: Yes, if one took it that far.

MR GRACE: Could I take your Honours to O’Neill (1996) 2 Qd R 326 and your Honours were referred yesterday to the extract of that part of the judgment of his Honour the President Justice Fitzgerald, page 422 where at about point 6 on the page - I cannot see it on my copy, it is approximately line 30, your Honours - his Honour says this:

The appellant was deliberately tricked into surrendering her right to silence at the instance of law enforcement personnel by an implicit misrepresentation that Lally sought her confidence as a friend, not a police agent. That being so, in my opinion, it was unfair to the appellant to receive evidence of her recorded statements to Lally at the appellant’s trial.

Now, it is accepted that his Honour the President was in the minority but nevertheless his Honour appears to be applying the traditional type of public policy considerations in the exercise of the fairness discretion.

KIRBY J: Why would Australian law come to a different conclusion on that than the US law, given that the US law starts on such a stronger foundation of the constitutional right?

MR GRACE: It goes back to basic concepts of the freedom of the individual and how ‑ ‑ ‑

KIRBY J: They are pretty well developed in the United States of America.

MR GRACE: Of course that must be accepted, but we have a situation in Canada, for instance, where the Full Supreme Court of Canada comprising nine judges decided that they would not follow Illinois v Perkins because they were of the view that the fundamental rights of the individual must be given paramount importance and that the approach in Canada would diverge from that of the United States because it would appear that, reading between the lines, the Supreme Court of Canada did not regard the approach of the Supreme Court of the United States in Illinois v Perkins as being the appropriate approach. Now, I can take your Honours to that specific part of the judgment.

KIRBY J: This is founded on the charter, I assume?

MR GRACE: Yes, it is but I might say in relation to the charter there was comments on what the width of the right to silence was in the charter ‑ ‑ ‑

GUMMOW J: The charter uses the expression in section 7 “the principles of fundamental justice”, does it not?

MR GRACE: Yes, it does.

GUMMOW J: Is not the whole of this an extrapolation from that?

MR GRACE: Not necessarily, your Honour, and I can refer the Court to - can I answer Justice Gummow’s point first, if you do not mind, Justice Kirby. In the judgment of Justice Sopinka at page 16 in the case of the Reg v Hebert (1990) 57 CCC (3d) 1, at page 16 in Justice Sopinka’s judgment at paragraph f his Honour says:

It is not necessary in the present case, however, to trace out every implication of the constitutional right to remain silent. For the purposes of the circumstances of this case, it is sufficient to observe that the right extends at least as far as the common law right. It must be left for subsequent cases to determine whether the constitutional right extends further.

I trust that that answers your Honour Justice Gummow’s question. If I could now turn to the point raised by your Honour Justice Kirby. It is in fact in the case of Broyles (1991) 68 CCC (3d) 308, which is a subsequent decision of the Canadian Supreme Court. The judgment of the court was delivered by Justice Jacobucci and at page 320 of the judgment in dealing with the issue of elicitation the court took the view that there would only be a violation of section 7 of the charter if the evidence was obtained or acquired by infringing the suspect’s right to choose to remain silent and the question of knowledge of the agency of the receiver of the information was held to be important and reference to Hebert’s Case appears at page 320, but at paragraphs e, f and g on page 320 his Honour says this:

In developing a definition of elicitation, I have found it unnecessary to refer at length to the U.S. jurisprudence dealing with the Fifth and Sixth Amendments of the U.S. Constitution. In broad terms, the concern with Sixth Amendment right to counsel is, to quote the judgment Brennan J. in Maine v Moulton, 474 U.S. 159 (1985), at p. 176 to protect the right of an accused “to rely on counsel as a ‘medium’ between him and the State”, and not specifically to protect the right of an accused to choose whether or not to make a statement. Although the Fifth Amendment privilege against self‑incrimination is similar in form to the right to silence in s. 7 of the Charter, the Supreme Court of the United States has recently held, in Illinois v Perkins, 110 S. Ct. 2394 (1990), that Fifth Amendment rights do not prohibit surreptitious jailhouse conversations of the kind which this court found to violate s. 7 in Hebert. This is not to say that U.S. jurisprudence will not be useful in resolving particular problems that may arise in developing the contours of the right to silence as McLachlin J. did in Hebert. In general, however, Canadian courts should not be hesitant to develop a uniquely Canadian approach to the right to silence, in keeping with the over‑all goals of the Charter.

So, Canada is now diverting from the United States in relation to this very important area of fundamental rights, and it is submitted that ‑ ‑ ‑

KIRBY J: But both the United States and Canada rest their jurisprudence on a right which is given to citizens, or to individuals, by the Constitution. Such “right” as Australians have is merely the common law’s statement of the residue that is left over from any law that impinges on that right, or diminishes it.

MR GRACE: Yes. But your Honour will recall the answer I gave to Justice Gummow as to the extent of the right to silence under section 7 of the Canadian Charter, at least at this stage in Canada, does not appear to extend beyond what is meant by the “common law right to silence”. So, given that starting point, it is not without significance, it is submitted, that Canada has nevertheless decided to diverge from the United States in relation to this particular area.

KIRBY J: It is a big thing to exclude statements that are made to informants, given that the nature of some crimes - particularly one thinks of drug importations and the like - informants are a regular, and necessary perhaps, means of securing the Crown’s evidence.

MR GRACE: I hope the Court is not under some misunderstanding about the submissions made on behalf of the appellant, Pavic. The submissions are based upon the factual situation that the investigatory stage had concluded. We are not submitting that, in the investigatory stage of a crime, the type of conduct that your Honour has just mentioned is not appropriate.

KIRBY J: So, there are two factors. There is the fact that it has passed the investigatory stage. The prosecution has, in your submission, passed the Rubicon. It has the material on which to form the view validly that the offence has been committed by your client and, secondly, it has the assertion by your client of the right to silence.

MR GRACE: Yes. Not only has it passed the Rubicon, it has formed not only the belief, but the intention to charge the appellant with murder. There was unequivocal evidence that prior to the covert tape recording there was sufficient evidence to charge the appellant with murder.

KIRBY J: That might distinguish your client’s case from Mr Swaffield, where they were still not entirely certain.

MR GRACE: Yes. And your Honour may recall, in the special leave application, there was some discussion about the relative strengths of the case; that is, Pavic vis-a-vis Swaffield, and we submitted, and we still do, that our case is a stronger case than Swaffield, not just because of that factor, but that factor is a very important aspect of the reason why it is stronger.

Could I just remind your Honours about the US decision in Illinois v Perkins, that it was a case that involved the investigatory stage, not the accusatory stage. In Illinois v Perkins, what had occurred was that an informer had told the police that the defendant might have murdered the deceased. The defendant was a prisoner in gaol for other matters, and the police placed an undercover agent in the gaol, who spoke with the defendant and the defendant made admissions. So, those were the simple factual circumstances of Illinois v Perkins; clearly investigatory stage, clearly not sufficient evidence to charge the defendant prior to the placing of the undercover agent in gaol.

KIRBY J: This is a notoriously difficult question, as to the point at which you pass the investigatory stage. I mean, it is something that has bedevilled the common law.

MR GRACE: Your Honour, in our submission, the evidence in this case was absolutely unequivocal. At that stage ‑ ‑ ‑

KIRBY J: Was it accepted by the police? Did they accept that they had passed that stage?

MR GRACE: Yes. Could I take your Honours to the appeal book.

KIRBY J: Well, if you would just give us the reference, I think we can look at that. It can be given later. Please do not take up your time, Mr Grace.

MR GRACE: Pages 138 and 139 of the appeal book, which is the evidence of Marc Alan Drew and, indeed, the ruling of the trial judge, at page 202, line 2, where his Honour said:

Mr Drew also stated that on 9 January, after taking Clancy’s statement and prior to the arranging of the meeting between Clancy and the accused he considered the police had sufficient evidence to arrest and charge the accused.

Your Honours, I am just reminded by my learned junior that this Court had no difficulty in delineating between the investigatory and the accusatory stage in Alexander’s Case, which was an identification case, and there may be some helpful comments in that case for your Honours.

BRENNAN CJ: Did your junior give you the reference to it?

MR GRACE: Yes, 1981 he has just said, unauthorised, at 34 ALR.

KIRBY J: But an awful lot of cross-examination has been directed in magistrate’s courts to whether that stage has been reached: “Are you on the brink of it, have you got passed it?”

MR GRACE: Yes, (1981) 145 CLR, page 395. Could I turn your Honours to Davidson and Moyle (1996) 2 Qd R, at page 505? Once again, the President of that court, dissenting and declining to answer certain questions of law that have been referred to the court, and going somewhat out on a limb, as he had done in O’Neill, at page 507, at line 35, his Honour says this:

At a more fundamental level, a reference such as the present distracts attention from matters of legal principle to considerations which, in my opinion, are irrelevant; namely, the “reliability” of the evidence and related matters such as the demonstrable guilt of the accused (according to the impugned evidence) and the seriousness of the offence. While I accept that others do not share my view, I am of opinion that, as the law now stands, the discretion to reject evidence on the ground of unfairness starts from the premise that the evidence is admissible and hence relevant and, given the context, inculpatory. Further, differently from the “policy” discretion to reject admissible evidence, the nature of the offence is immaterial to the unfairness discretion. The judge at a criminal trial in considering the unfairness discretion is required only to determine whether the circumstances in which evidence was obtained, viewed in the context of the legal rights which the accused person enjoys with all other citizens, make it unfair to receive the evidence against him or her.
It is my opinion that, in the consideration and implementation of the discretion to reject admissible inculpatory evidence on the ground of unfairness it is no part of the judicial function to be concerned with the consequences of applying the law. There are many steps which could be taken for the purposes of law enforcement which would improve crime “clear‑up” statistics and make it more difficult for the guilty to escape conviction and punishment. All such possible activities raise other considerations, of personal freedom, privacy, etc. It is for the community, not the judiciary, or law enforcement agencies, to decide whether, as a matter of social policy, these and other possible activities and the use of evidence obtained from them should be permissible. There might be many logical and practical reasons for doing so and for eliminating or diminishing such of the inhibitions which decrease the efficiency of law enforcement, but, until the community, by its elected representatives, decides to do so, both the existing rules and their consequences must be accepted in the courts.

Then his Honour went on to discuss issues of reliability, and the penchant for boasting that criminals one to the other often engage in, and the difficulty concerning reliability in that context. So, a strong judicial comment, which places Justice Fitzgerald, as I indicated, out on a limb, it would seem, to many of his brethren on that court, and certainly other judges of superior courts in Australia.

I now want to go in greater detail than I have to the Canadian cases, and the first one is Reg v Hebert, which I have already referred your Honours to. The facts can be gleaned - and they are in short compass - on pages 21 and 22 of the judgment of Justice McLachlin, with whom six other members of the court concurred. I will not read those statement of facts, your Honours, but they appear at pages 21 to 22. What had occurred was, in short compass, he was interviewed; he was told that he had the right to counsel; he contacted counsel; he spoke to him; he, after exercising that right, was taken into an interview room; he declined to make any statement, exercised the right to silence; he was then placed in a cell with an undercover police officer disguised in plain clothes and posing as a suspect under arrest by the police and, whilst in the cell, the undercover police officer engaged in conversation with Hebert, during which various incriminating statements to robbery were made.

Now, at page 41, her Honour, after considering what the scope of the right to silence was on pages 40 and previous, she set out on page 41 an approach, which could now be said is the approach adopted by the Supreme Court of Canada, in which she ‑ ‑ ‑

GUMMOW J: Well, the passage I had in mind was in her Ladyship’s judgment at page 25, top of the page; these “principles of fundamental justice” are not frozen with the common law in 1982.

MR GRACE: Yes.

GUMMOW J: Well, that is the view of the majority of the court.

MR GRACE: Yes. But could I take your Honours to page 41 where her Honour said that the approach that she advocates:

retains the objective approach to confessions which has always prevailed in our law and would permit the rule to be subject to the following limits.

She has then set out four matters on pages 41 and over the page, on to page 42. Paragraph b refers to the first matter, which says this:

First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers -

and there is a volunteering of information -

there will be no violation of the Charter.

The second aspect is this - this is paragraph c:

it applies only after detention. Undercover operations prior to detention do not raise the same considerations. The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charter extend the right to counsel to pre-detention investigations.

KIRBY J: Just pause there. That knocks you out, does it not, because you were not detained at the time of the - - -?

MR GRACE: We were arrested, detained, cautioned, interviewed, told of the belief that we would be charged with murder.

KIRBY J: You were not under detention, I see. You say her Ladyship is referring to the detention point as the indication of the time when the decision is made that you are going to be charged?

MR GRACE: Yes. It is made clearer in paragraph f, the third point, and paragraph g, where the fourth point is made:

Thirdly, the right to silence predicated on the suspect’s right to choose freely whether to speak to the police or to remain silent does not affect voluntary statements made to fellow cellmates. The violation of the suspect’s rights occurs only when the Crown acts to subvert the suspect’s constitutional right to choose not to make a statement to the authorities. This would be the case regardless of whether the agent used to subvert the accused’s right was a cellmate acting at the time as a police informant, or an undercover police officer.
Fourthly, a distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect’s choice to remain silent. When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect’s constitutional right to silence: The suspect’s rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.

We say it is clear in the appellant Pavic’s case that there has been a clear elicitation, and the elicitation had the effect of ensuring a state of mind on the part of the appellant that Clancy was not a police agent, or in any way acting on behalf of the police; that the appellant could talk to him freely, with impunity, in accordance with their very close personal friendship; and that this was emphasised by Clancy’s claims that he, Clancy, was a prime suspect for the murder.

BRENNAN CJ: Now, this is all postulated on the footing that what the suspect is entitled to is a choice to speak or be silent as a right, is that right?

MR GRACE: Yes.

BRENNAN CJ: Is there any Australian authority relevant to questions of voluntariness which indicates that that is the nature of the concern of the courts? Let me put it another way, and that is that, as I understood it, the notion of the choice between speaking and being silent was, in our jurisprudence, the consequence of precluding any duress being brought to bear on a suspect to make him speak.

MR GRACE: Yes. And the rationale, perhaps, behind that was to give the suspect the right that he would not be put in a position where he or she betrayed himself.

BRENNAN CJ: The understanding I have, and perhaps I am wrong, is that it was in order to ensure that the incriminating evidence was not - to use the words - “wrung out of him”, but was obtained from the mouths of other men. In other words, it was a protection of personal, physical integrity.

MR GRACE: With respect to your Honour, I would not restrict it just to those factors.

BRENNAN CJ: I appreciate that. But what I would like to know is, is there any Australian authority which does not restrict it in that way?

MR GRACE: Well, there may be two that bear upon the answer. The first is the more relatively recent decision than Petty and Maiden, and that is the decision I referred to yesterday of the Environment Protection Authority v Caltex, 178 CLR 477 and, at page 527, in the joint judgment of Justices Deane, Dawson and your Honour Justice Gaudron - perhaps I will commence at page 526 where there is a short discussion of the Pyneboard Pty Ltd v Trade Practices Commission Case, where their Honours say this in the first substantive paragraph in 526:

In Pyneboard Pty Ltd v Trade Practices Commission Mason ACJ, Wilson and Dawson JJ observed that it is not easy to assert confidently that the privilege against self-incrimination serves one particular policy or purpose. It is generally recognized that it emerged as a reaction against procedures of the Courts of Star Chamber and High Commission, and in particular their use of the ex officio, or inquisitorial, oath. This was compulsorily administered so that a person might be examined and himself provide the accusation to be made against him. The principle is said to be expressed in the -

and I will not read that Latin maxim ‑ ‑ ‑

GUMMOW J: This was a dissenting judgment, was it not?

MR GRACE: This was a dissenting judgment, but not on this point, with respect, your Honour:

no one is bound to betray (or accuse) himself. The Courts of Star Chamber and High Commission were abolished in the seventeenth century and the ex officio oath to answer criminal charges went with them, but the Latin maxim (which is in fact part of a wider proposition with a somewhat different meaning) came to be reflected in a variety of ways both at common law and in equity. The abolition of the Star Chamber and High Commission marked not only the end of the ex officio oath, but the rejection of inquisitorial procedures. The so-called “right to silence” is often invoked in an attempt to express compendiously this rejection, although in truth there is not just one right but a number of rights, or immunities, of differing scope. There is, of course, the general right, which everyone has, not to answer questions, whether or not the answers might incriminate him. The law, generally speaking, does not oblige person to answer questions if they do not wish to do so. But that right, or immunity, is not absolute.

And then there is exceptions discussed. And then, over on to page 527, the first paragraph:

However, other inter-related rights or immunities have emerged which have become woven into the law, particularly the criminal law, both by way of procedure and in substance. For example, the fact that persons suspected of having committed a crime are immune from having to answer, under compulsion, the questions of police officers or others in authority, has led to the development of rules which render inadmissible in evidence confessions which are involuntary or unfairly obtained. And an accused person (who is a competent witness only as a matter of fairly recent history) has the right to refrain from giving evidence and to avoid answering incriminating questions.
The latter right is by no means wholly explained by reference to the maxim nemo tenetur seipsum prodere. Rather it is to be explained by the principle, fundamental in our criminal law, that the onus of proving a criminal offence lies upon the prosecution and that in discharging that onus it cannot compel the accused to assist it in any way. Thus, whilst the basic adversarial procedure of the criminal law may have roots in the seventeenth century, it has grown in a way that is not explained solely by reference to a specific immunity such as the privilege against self-incrimination. Rather it must be explained by reference to broader considerations which may in turn explain the privilege.

Then it goes to discuss other matters. I do not know whether that is helpful in answering your Honour’s ‑ ‑ ‑

BRENNAN CJ: As I read it, it is concerned to reject the notion that compulsion can be brought to bear on an accused.

MR GRACE: Yes. But issues of freedom of choice and matters that we have already canvassed today are relevant in consideration of the application of the right, particularly in the circumstances of this case, where we say there has been the conclusion of the investigatory stage and we are now into the accusatory stage.

BRENNAN CJ: I appreciate that, but the point that you are making, as I understood it, by reference to the Canadian judgment, was that there is a right to choose between speaking or being silent - a free-standing right - and that, if something is done to subvert that right by way of getting somebody to pose as a police officer, then the right is undermined and, therefore, the evidence ought not to be admitted. My question to you was: have we ever recognised a right in those terms or is our recognition of the right to silence or the right to choose simply a right to be free from compulsion?

MR GRACE: That would appear to be the case, your Honour. I cannot refer the Court to any other authorities other than EPA v Caltex or Petty and Maiden, which your Honours are familiar with, on this issue. But that is the basis of the right, as expressed by this Court, and the rationale behind it, and it seems to have had a number of historical antecedents.

Now, could I just finally, in relation to the case of Hebert, refer your Honours to page 43b, where her Honour, under the heading “Application of the right to silence in this case”, describes the essence of the right to silence in the first paragraph, and then in the last paragraph under that subheading said at paragraph d:

In this case, the accused exercised his choice not to speak to the police when he advised them that he did not wish to make a statement. When he later spoke to the undercover policeman, he was not reversing the decision and choosing to speak to the police. He was choosing to speak to a fellow prisoner, which is quite a different matter. The Crown, in using a trick to negate his decision not to speak, violated his rights.

The result of the case was that the incriminating statements were ruled to be inadmissible and the lower court’s decision was overturned. That was not the end of the discussion of this particular area of law in Canada, and the next case that dealt with it was Broyles, which is a decision which I previously referred your Honours to.

TOOHEY J: Does this line of authority culminate in a particular decision? In other words, is it necessary to go through each of the cases if, in fact, they are subsumed in some later statement of principle?

MR GRACE: Well, Hebert and Broyles has been applied in Canada subsequently. There is nothing ‑ ‑ ‑

GUMMOW J: Yes, but is there any like Supreme Court decision to Broyles?

MR GRACE: There is a case of Brown, which merely endorses what was said in Broyles and Hebert and, in fact, endorses what a dissenting judge in the Alberta Court of Appeal had decided prior to the decision in Hebert being published. So, there had been a decision in a case of Brown prior to Hebert. Brown then appealed to the Supreme Court, and the dissenting judgment in Brown was, in fact, preferred by the Supreme Court in a very short judgment.

KIRBY J: Could you give us the citation for that?

MR GRACE: Yes, your Honour. The short judgment in Brown of the Supreme Court is at (1993) 105 DLR 3d, at page 199. I just briefly wanted to refer to the facts in Broyles which may give some assistance to your Honours. The accused was charged with the murder of his grandmother. The evidence was largely circumstantial. The Crown also relied on a statement which the accused had made to a friend. After his arrest, the accused was advised of his right to counsel and cautioned that he was not required to say anything. The friend of the accused was then asked by the police to visit the accused. The authorities facilitated this visit by allowing the friend to visit the accused in what was termed “an open visit” in gaol. During the visit, the accused’s friend was wearing a tape recorder and, in the course of the conversation, the accused’s friend questioned him about the killing of the deceased. The friend also made several disparaging comments about other matters, and the trial judge admitted the statement. There was a conviction and, in appeal, the court held that the statement should not have been admitted, there was a violation of the Charter. The threshold question was expressed in this way in the judgment for the court given by Justice Jacobucci at page 318:

In every case where the right to silence is raised, the threshold question will be: was the person who allegedly subverted the right to silence an agent of the state? In answering this question one should remember that the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. Accordingly, if the person to whom the impugned remarks is made is not an agent of the state, there will be no violation of the right to silence.

KIRBY J: Well, how does that apply here? You say that the friend was an agent?

MR GRACE: Yes, clearly he was an agent. That was accepted, we submit, by the trial judge, and it is clear from the factual scenario that this case paints that that was the situation. Now, applying the principles enunciated by the Canadian Supreme Court to the circumstances of the appellant Pavic’s case we submit would lead inevitably to a conclusion that the proper exercise of discretion ought to have led to the exclusion of the evidence. It is submitted that the approach of the Canadian Supreme Court is not inconsistent with the way in which the law in this area has developed in Australia, as Duke and Foster have highlighted. The decision of the Court of Appeal of Queensland in Swaffield might be another indication of the way the law has developed if ‑ ‑ ‑

GUMMOW J: Is there any summary of the Canadian decisions in Mr Justice Sopinka’s book on evidence.....or is it too early or too late?

MR GRACE: No, it is not - the last edition is 1992 and there does not appear to be any summary.

KIRBY J: The result of this would be the police asserting that they had, anyway, enough evidence against your client that the conviction would be set aside and the matter would be sent back for retrial on the basis of all the rest of the evidence without the confession.

MR GRACE: Yes, that would be the result, your Honour. The other matters I seek to raise are these; that the extensive written submissions in part adumbrate a lot of what has been said orally, and we rely upon them. We also rely, in part, upon what has been said by other counsel as to the state of the law and we submit that, in the circumstances of this case, the exercise of discretion by the learned trial judge was erroneous, not just because of the matters that he took into account, but also because of the way in which he took the matters into account; for instance, taking into account the matters individually and reaching a decision after consideration of each of the matters, rather than taking into account all the factual circumstances in all the matters before reaching the decision. We submit, your Honours, that the appeal ought to be allowed, and that there ought to be an order for a retrial in the circumstances of this case.

BRENNAN CJ: Mr Grace, if one was taking this question of differences between what the police may do in the first stage and in the second stage, what is the criterion for distinguishing between the two: when the police have sufficient evidence which, in the view of the trial judge, a jury might reasonably act upon to convict?

MR GRACE: Or a prima facie test.

BRENNAN CJ: The prima facie test being what?

MR GRACE: That prima facie there is sufficient evidence that the accused has committed the crime.

BRENNAN CJ: Even though if that evidence, and that alone, went before the court, the court might find that it would be unsafe and unsatisfactory to convict upon it?

MR GRACE: That is not such an unusual occurrence in the courts, as a result of Doney’s Case, your Honour. There are quite a number of examples of decisions of appellate courts, whether intermediate or this Court, where a conviction is held to be unsafe and unsatisfactory as a result of there being a prima facie case.

BRENNAN CJ: Well, that may be so, but your proposition is that at the time when so much evidence is acquired, then the liberty that the police have to engage in further inquiries by this kind of method is terminated.

MR GRACE: No, the ability to continue inquiries is not terminated. What is terminated is the ability to continue with these inquiries without affording the accused the necessary cautions, or advising him, or reminding him of his rights.

BRENNAN CJ: Well, that is the same thing as saying that you cannot use an undercover agent.

MR GRACE: That is right.

BRENNAN CJ: So he can use ‑ ‑ ‑

MR GRACE: You can use an undercover agent, provided the undercover agent ‑ ‑ ‑

BRENNAN CJ: Gives a warning.

MR GRACE: Gives a warning, but then, of course ‑ ‑ ‑

BRENNAN CJ: And says, “I’m an undercover agent.”

MR GRACE: Yes. Of course, that is going to have no effect; but you never know, your Honour.

BRENNAN CJ: No. Some people might exclude themselves. But your proposition is that the effect of undercover agency terminates so soon as there is a prima facie case?

MR GRACE: In this case, what business did the police have in arresting the appellant on 3 January? You cannot arrest a person for the purposes of interview; Foster’s Case makes that absolutely clear.

BRENNAN CJ: We are not concerned with that, are we? He wasn’t in custody at the relevant time.

MR GRACE: He was not in custody at the relevant time, but he had been in custody for this crime prior to the relevant time.

BRENNAN CJ: What you are saying is that the test to be applied is whether or not there was sufficient to justify the finding of a prima facie case.

MR GRACE: Yes.

BRENNAN CJ: Even in crimes of murder?

MR GRACE: Yes. I am reminded, your Honours, in paragraph 3.4 of the outline of submissions of the appellant these factors are clearly elucidated. Those are the matters on behalf of the appellant.

BRENNAN CJ: Thank you. Mr Glynn, have you any submissions to make as to the formation of the approach that the Court might take to the question of admissibility of confessional statements?

MR GLYNN: Your Honour, if I might deal with the formulation of the test, as your Honour indicated this morning.

BRENNAN CJ: It was not intended to be a definitive test; it was intended to court submissions from counsel either as to the appropriateness or the formulation of it.

MR GLYNN: Yes. Your Honour, my first submission is that - and this is a note I made at the time I noted what your Honour had said - is that the test, at least in that State, would be a much harsher test as for an accused person in that it would move away from the current fairness test and more towards the balancing process of the other discretion to exclude on the grounds of public policy. My submission is that if the test were formulated that way, I would submit that the Court would not adopt a test of that nature but rather would stay with the test, as is formulated in particular in your Honour the Chief Justice’s judgment in Duke.

In my submission, the way your Honour has formulated it in Duke gives as much clarity as this sort of test can ever have, given that being a test of a discretionary nature there are going to be variables to be applied in every case that can never be entirely foreseen. However, if the Court were also in the process to consider the extent of the test in relation to

voluntariness - and I concede that the formulation that your Honour the Chief Justice mentioned this morning is on the authorities, with respect, a correct one, namely that there has to be some form of, if I can use the term broadly, compulsion, otherwise the evidence is strictly admissible.

If the test were to be widened to include the exclusion of statements where it was not an informed choice to confess, in other words, to make the statement to the authorities, if voluntariness was widened in that way, then, in my submission, the test proposed, the three-stage test proposed this morning, would be appropriate. Of course, in the final formulation your Honours might formulate it in that wider test, namely the third stage, as it is in Duke. If it is formulated as it is in Duke, then it may simply be a change in the catagorisation.

In particular, one of the matters that, with respect, seems to often be forgotten is that not only must the confession be reliable but the other issue is whether the confession would have been made at all but for, in this case, the deception but generally the impropriety that occurred. Your Honours, in saying that, I do not say that deception alone is a basis for exclusion but in this case there was the additional factor that the deception involved getting around an expressed or informed choice not to make a confession. I think, your Honours, without attempting to reopen matters that I have already addressed, that is as far as I would like to take my submissions.

BRENNAN CJ: Thank you, Mr Glynn. Mr Byrne.

MR BYRNE: If the Court pleases, on that aspect I confess to some difference from my learned friend’s recollection and discussion this morning as to the test for voluntariness. My understanding of the discussion which proceeded was that voluntariness was to remain as it is currently understood, that is the exercise of a choice, a free choice to speak or to remain silent, not in the sense that a confession would not have been made if the person, for example, knew they were speaking to a police officer, which is a classic test in the undercover operation.

An example your Honour the Chief Justice put to our learned friends yesterday, where there is an undercover operation and a police officer is purchasing drugs, certainly if that person were wearing a blue uniform it could be expected that the person would not have made the confessions or admissions to him; but that would still not prevent them from being the exercise for free choice to speak or to remain silent. So our understanding, at least so far as the test proposed by the Court this morning, is that voluntariness would remain as it is currently understood. There would be a second phase exclusion for a liability which was until recent times thought to be the sole criteria for the unfairness test, as discussed in Lee and the earlier cases.

GAUDRON J: But does it not go a bit further than that in terms of the discussion today? If you came to the conclusion that the evidence was unreliable, it would not be admitted, it would simply not be a discretionary consideration, would it?

MR BYRNE: Yes, that is accepted.

GAUDRON J: And it would not be correct to talk of it in terms of a discretion in that area.

MR BYRNE: No, it is a decision to be made, the same as voluntariness, a decision for the trial judge, one would have thought. Sinclair’s Case is an example of that. The third category is where we understand the discretion to remain, and that is ‑ ‑ ‑

BRENNAN CJ: Where is Sinclair?

MR BYRNE: 73 CLR. The third category is the discretionary category under the new formulation. Again, our submission is that it would, in effect, make the administration of the law in this area a simple one for trial judges to apply. It would allow them to take into account behaviour and weigh it against what seems to be the factors used, at least in Canada, that is community reaction to the methods of investigation by police. So with those limited qualifications ‑ ‑ ‑

KIRBY J: It is a sort of a catch-all, though; it is not just, as I see it, the questions may be raised in the discretionary, was there some element of unlawfulness and if not, even though lawful, does it, for reasons of unfairness to the accused or affront to the public, otherwise in light of a discretion to exclude it?

MR BYRNE: We accept that, but we would still, as we understand the formulation, see that unlawfulness would be a factor. If there was an unlawfulness certainly there would still be room for the operation, but there would be - if one adopts a sliding scale, it would be harder to gain the exercise of the discretion if there were no unlawfulness, if that answers your Honour’s question.

GUMMOW J: It looks rather like section 138 of the Evidence Act.

MR BYRNE: Yes, it sounds like that, your Honour.

BRENNAN CJ: What do you say about desirability of the formulation?

MR BYRNE: Certainly, in our experience trial judges, at least in Queensland, and recently in the cases which have been discussed over the last two days appellate judges, have expressed concern as to where one of the discretions ends and the other one starts. So to that extent a fusion would, in our respectful submission, make life a little easier for those practising in this area of the law.

BRENNAN CJ: What do you say about Mr Glynn’s point, that if you produce a fusion of the two concepts, then it is likely to result perhaps in the admission of evidence which might otherwise have been kept out, because looking at the overall situation the public interest is better served by letting it in and perhaps getting a conviction than keeping it out and having a manifestly guilty person be acquitted.

MR BYRNE: We would understand the formulation of the discretion to still maintain the balancing exercise currently exercised by criminal courts, so there would still remain that balancing of the various competing public policy matters. To that end, one would not see the scale tipping one way or the other, it would still be a test ‑ ‑ ‑

BRENNAN CJ: It would not tip if it is a Bunning v Cross situation, but the fairness discretion is focused upon the accused, and if you blend the two and formulate it in terms of all the circumstances of the case, including fairness to the accused, have you downgraded the fairness item in that commixture.

MR BYRNE: We do not believe so, on our current understanding of the formulation.

BRENNAN CJ: You have nothing further to add?

MR BYRNE: I do want to reply to the matters said this morning, and yesterday, for that matter.

BRENNAN CJ: Then proceed.

MR BYRNE: Could we basically state our understanding of the law as it applies in the overseas jurisdictions discussed. The only distinction between Canada and the United States is that Canada says that the Charter applies to interrogations conducted whilst the person is in custody. Illinois v Perkins extends it to persons in custody, but it is clear from the judgment in Hebert that none of the considerations relied upon by her Ladyship applied to pre-detention or ex-custody interrogations. That, of course, we remind the Court, is the situation in Swaffield.

Similarly, in England, the English courts have gone the way of the United States courts. They too see no distinction between custody and non‑custody applying the legislation and the principles in that jurisdiction, and they are clear from the cases of Roberts and Bailey and Smith, which are on our outline. The only distinction in Canada, as we say, is that whilst in custody, as we referred to yesterday, there are additional factors, namely the person is under the control of the State.

Could we remind the Court, to establish that proposition, a case which is a later can than Hebert and Broyles, and that is Reg v Unger (1993) 83 CCC (3d) 28. It is a unanimous decision by the Manitoba Court of Appeal, in a factual scenario quite similar to the case in Swaffield. Put simply, Unger had been charged by police with an offence of murder; the charge was discontinued due to lack of evidence. After his release, an extensive undercover operation was mounted by police in which several police officers posed as members of a criminal gang. They spoke to him, they got him to see if he was up to joining the gang, and taped confessions were obtained. The appeal focused solely on whether those confessions should have been excluded and the court unanimously, as I have said, said that they should not. They referred to two passages by Justice Lemar, as his Honour then was, in which he sets out, at page 248 of the judgment, what we would say expresses a test at least along the line of what has been proposed by this Court this morning. At page 248d it is said:

It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community.

We would, with respect, adopt that. Similarly, at point f on that page, quoting again his Honour:

I am still of the view that the resort to tricks that are not in least unlawful let alone in violation of the Charter to obtain a statement should not result in the exclusion of a free and voluntary statement unless the trick resorted to is a dirty trick, one that shocks the community. That is a very high threshold, higher, in my view, than that to be attained to bring the administration of justice into disrepute in the context of a violation of the Charter.

The next paragraph there is another statement which is of some relevance. Could we point out also that leave to appeal to the Supreme Court of Canada was refused in that case. The reference to that, the court refusing leave, was Chief Justice Lemar, her Ladyship Justice McLachlin and Justice Major. It is noted at (1994) 84 CCC (3d) at VI.

In reply to matters said yesterday, could we make the submission that no distinction can be drawn between the facts in Swaffield and a covert drug operation, traditionally and routinely carried out by covert police operatives. In both there is an undercover police officer involved. He is speaking on equal terms, not as a police officer; voluntary admissions are obtained which, it is true to say, would not have been made, to repeat what I said earlier, if the person asking questions was wearing a police uniform. In neither of those cases is there impropriety or any reason to doubt reliability.

The second aspect of understanding that principle goes to answer the point made yesterday, that there comes a point in a covert operation where the police officer must say, “Stop. I have prima facie or some degree of evidence. I will now warn you and we will proceed with the investigation.” That, with respect, misunderstands the test where there is a conversation between equals. It does not appear, from our researches, to be the law in this country, and to illustrate that, if we may point to a covert drug operation such as Ridgeway, where if that were the test to be applied one would imagine that Ridgeway would have been warned and arrested well before the ordered heroin found its way to Australian Customs.

It is also, as we understand it, not the law, and we refer the Court to a case we referred to yesterday. That is the unreported case of Reg v Giacco and Edginton, a recent decision of the Court of Criminal Appeal, South Australia. At page 17 of the judgment of his Honour Justice Cox for the Court of Criminal Appeal his Honour said this in the final paragraph:

It is true that the police probably had reasonable cause to suspect, from the time Hall went to them on 13 October, that the appellants had solicited Hall to commit a murder, but undercover operations will not necessarily be unfair because they are undertaken or continued after the police have evidence of the commission of a crime. In the days when the police would watch a hotel for evidence of after hours trading, they were not obliged to step in as soon as they had, or thought they had, evidence of a single illegal sale, and the same holds good for the surveillance of suspected drug dealers now.

Commonly an undercover officer will buy a quantity of an illegal drug from a dealer and then see whether the dealer is willing to make another sale of a larger quantity or of a different, more deleterious drug. There is nothing wrong with such tactics, where the purpose is to provide evidence of the nature and size of the suspect’s illegal drug business or simply, as here, to strengthen the police case against a suspect by supplementing within reasonable limits the evidence they have already obtained.

May we point that the similarity and reasoning in that case to that adopted in the case of Davidson. I will not take your Honours to the case now but that is the recent five judge decision in Queensland, where there was evidence but it came from the uncorroborated statements of a criminal associate of Davidson. The court there held that it was not unreasonable for the police to seek to supplement that evidence by sending him back armed with a tape recorder.

Could we also say this in respect of the point of the Crown appealing the present matter. It is not a case, as our learned friend said yesterday, of the sand shifting and that being the difficulty. The point in the Crown appeal is that the Court of Appeal, in overturning the trial judge’s discretion in the case of Swaffield, was carving a line into stone and thereby saying that no evidence obtained in these circumstances could ever, in the exercise of the discretion, be admitted. We say on the facts of this case that was not an appropriate line to draw, particularly where in the case of Swaffield there was no evidence justifying the charging of him at the time of the operation, that being illustrated by the facts that the charges against him had been discontinued.

Finally, could we point out that the test of compulsion to speak, as referred to in EPA v Caltex, that test, if that is not the correct test for freely choosing and to make a voluntary statement, it was that reasoning which was relied upon by his Honour Justice Fitzgerald in O’Neill’s Case
to reach the conclusion that he did, and that reasoning, referring to EPA v Caltex is to be found at page 410 to 413 of the decision in O’Neill. That is our reply, if the Court pleases.

BRENNAN CJ: Thank you. Mr Morgan-Payler.

MR MORGAN-PAYLER: If the Court please. As a result of some discussion yesterday afternoon we had come to Court this morning prepared to submit that the three stages, as set out in Foster, accurately reflected the law in Australia and that to then speak of a further residual discretion would not be helpful, and one of the reasons we would have advanced would have been, it would have made a difficult job for a trial judge even more difficult. On these questions, in our submission, anything that assists the now complex and difficult job of a trial judge is worthy of very close consideration indeed.

One of the difficulties with the law as it now stands, in our submission, as has been demonstrated in many of the cases considered over the past two days, is very often there is some misunderstanding in the distinction between the two present discretions and the identification of precisely the nature of those discretions. In our submission, the proposed reformulation in this area in relation to confessions is certainly one that, in our submission, would make the task of a trial judge easier with, of course, voluntariness remaining the same and being the primary question, the confession must be shown to be voluntary. Secondly, in our submission, a discretion to reject unfair material - and, in our submission, it must remain as a discretion because that material is otherwise admissible - the fact that it may be unreliable, in normal circumstances, would be a matter of weight for the jury.

GAUDRON J: Well, it depends, does it not? There may be circumstances where that is the case, where that is so, but there may be circumstances, may there not, where if it would be unsafe for the jury to act on the basis that it was reliable, then it must, of necessity, be taken away from the jury.

MR MORGAN-PAYLER: Indeed, your Honour, yes.

GAUDRON J: So it is not really right to talk of it as a discretion as such, is it?

MR MORGAN-PAYLER: In our submission, yes, your Honour, because the trial judge in fact exercises a discretion in coming ‑ ‑ ‑

GAUDRON J: It may be that he forms a value judgment, or she forms a value judgment, but if it comes to the point where it would be unsafe for the jury to act upon it, it must be taken away. If it would not be unsafe for the jury to act upon it, then it would seem to be proper for the jury to give it whatever weight it thinks for the matter to go to the jury.

MR MORGAN-PAYLER: I do not wish to argue with the proposition, your Honour.

KIRBY J: I think there may have been cross-purposes there. I think you started by talking about an unfairness discretion, whereas the three-stage reformulation that has been raised for consideration is voluntariness, reliability and then discretion, with its catch-all, including fairness.

MR MORGAN-PAYLER: No doubt, if there were such a formulation, the formulation would also stress that the final overall discretion would be rarely exercised; although one can think of a number of examples.

GAUDRON J: Why would that be so?

MR MORGAN-PAYLER: In that the first two, voluntariness and reliability, in our submission, would eliminate much of the material that might otherwise be found to activate the overall discretion.

BRENNAN CJ: That is an assumption which we need not make, I think.

MR MORGAN-PAYLER: Yes. Your Honour the Chief Justice posed that question this morning earlier; some examples of what might remain. I will not ask the Court to go to the page in the report. In Roberts, which was discussed yesterday, at page 231, is an example of an unreported case of Hall:

In Hall, the defendant was charged with murdering his wife and Waterhouse J excluded tape recorded conversations instigated by an undercover W.P.C. who seduced the defendant and inveigled him into making a confession.

It may be that such material was reliable but it may be the type of material that would be found, on current standards, to perhaps be unacceptable.

KIRBY J: Was that a metaphorical seduction or a real seduction?

MR MORGAN-PAYLER: Real, your Honour. Similarly, perhaps covert eavesdropping in circumstances of a confessional box, or something, might, although reliable and voluntary, may well be seen to offend against contemporary standards to a sufficient extent as to warrant the exclusion of the material. There certainly would be, in our submission, various examples, however, we do submit that it would be a discretion that would be rarely invoked because ‑ ‑ ‑

KIRBY J: Often invoked, rarely exercised.

MR MORGAN-PAYLER: Yes, thank you, your Honour, because such material would either be involuntary, in any event, or at least the circumstances of the obtaining of the material would be such as to make it sufficiently unreliable as to justify its exclusion. Those, in very brief compass, are our submissions in respect of that particular matter. Might we turn very briefly to reply in respect of the present appeal? It is submitted that the appeal ought be dismissed on the facts as found by the trial judge. Whatever test one might apply would not operate to produce the rejection of this material, which is why our learned friends yesterday had to attack the trial judge’s fact-finding process. This, of course, is a court of principle and not a court of facts. In respect to the crossing ‑ ‑ ‑

KIRBY J: Do you concede that if it were the application of the Hebert test that the evidence would be excluded, because there are the two factors that Justice McLachlan refers to there, namely an assertion of a right to silence and the interrogation after the point of arrest and detention?

MR MORGAN-PAYLER: No, your Honour, not in the particular circumstances of this case due to the nature of the conversation, which we drew the Court’s attention to yesterday. We submit that it is not correct to regard this as an interrogation, it is simply a conversation and a conversation being used by the appellant to his own ends in circumstances where he demonstrated three things: he was aware of his right not to answer questions to police; he was aware of the fact that this and other conversations may well find their way into evidence against him; and he was also using the conversation to his own purposes to endeavour to find out the then state of police knowledge in respect of the investigation.

We submit that it is inappropriate to speak of a Rubicon, crossing the Rubicon, when one passes from the investigatory stage, particularly in this case. I do not have the case here; we did not anticipate it would become relevant, but Canadian authorities were referred to and, yes, they all deal with a detention period, however, in a case of Reg v McIntyre (1994) 2 SCR at 480, a judgment of the Supreme Court of Canada, even if a person has been detained, if he is subsequently released on bail, then the charter right, again, does not apply. We simply refer to that in passing.

Similarly, I think the Court of Appeal, at appeal book, page 224, line 33, and over the page, although a police officer, not the most senior police officer involved in the inquiry, swore at the committal that he felt, prior to the impugned conversation, there was enough to charge the appellant with murder, the Court of Appeal said:

In this context, it is apparent that although at least one of the investigating police members accepted that an adequate basis existed for the laying of a charge before the arrangements were made to obtain the tape recorded conversation under consideration, the case against the applicant consisted of expressions of animosity and some other circumstantial evidence. There was only limited material available to the police which enabled them to determine, to the extent to which it was necessary for them to do so, what had actually taken place at the time that the deceased met his death. It is understandable that they desired to secure more detailed information before any formal step was taken.

We simply submit that it is perhaps not quite accurate to strongly assert that it was the unequivocal evidence is that at that time there was sufficient evidence to charge the appellant with murder. Certainly a police officer involved in the investigation was of that opinion, however, the appellant was not charged. He had earlier been interviewed. He was in custody, as that term in used in section 646(1)(c), namely:

in the company of an investigating official and is -
(i)    being questioned; or
(ii)   to be questioned; or
           (iii) otherwise being investigated

to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.

There was some circumstantial evidence: there was some evidence of animosity. He was taken into custody, questioned and then released without having been charge.

KIRBY J: What statute is that?

MR MORGAN-PAYLER: Section 464(1)(c) of the Crimes Act. It is set out in the submissions of the respondent. In respect of the agency point of my learned friend, the respondent simply asserts that if in fact Clancy was the agent of police, then the respondent prays in aid the exclusion of members or other persons engaged in covert investigations, which is found in the definition of an “investigating official” in section 464(2). The respondent does not assert that Clancy would have thereby been excluded. The respondent asserts that the very spirit of that exclusion to members and other persons - and I think “other persons” there refers to other investigating officials - engaged in covert operations. If Clancy were the agent of police, then at least the spirit of that exclusion would apply to him, in the submission of the respondent.

BRENNAN CJ: Mr Morgan-Payler, is there any statutory provision in Victoria which specifies the conditions upon which the right to arrest a person in respect of an offence arises?

MR MORGAN-PAYLER: Yes, there is, your Honour, sections 457 and 458 and 459. In fact, generally ‑ ‑ ‑

BRENNAN CJ: Reasonable grounds for believing, or reasonable grounds for suspecting?

MR MORGAN-PAYLER: Yes. A person found committing offences and 459, if he believes on reasonable grounds an offence has been committed and indictable.

BRENNAN CJ: Believes on reasonable grounds?

MR MORGAN-PAYLER: Yes, your Honour.

BRENNAN CJ: So that is the one that is imported into 464(1)(c)(iii)?

MR MORGAN-PAYLER: Yes. And subdivision 30(a) deals with the specific provisions of the custody and investigation and interrogation.

BRENNAN CJ: Is it reasonable grounds that an offence has been committed and that the suspect has committed it?

MR MORGAN-PAYLER: Reasonable grounds that has committed an indictable offence in Victoria. And there is another provision for offences that may have been committed extraterritorially. I think those are the matters in respect of the present appeal, if the Court please.

BRENNAN CJ: Thank you, Mr Morgan-Payler. The Court will consider its decision in this matter.

AT 12.21 PM THE MATTER WAS ADJOURNED

[1997] HCATrans 173

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Sentencing

Appeal