Reg v Swaffield- Pavic v The Queen
[1997] HCATrans 171
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 TUESDAY, 24 JUNE 1997, AT 11.46 AM
Copyright in the High Court of Australia
____________________________
MR M.J. BYRNE, QC: May the Court please, I appear with my learned friend, MR M.C. CHOWDHURY of counsel, for the appellant in the matter of Swaffield. (instructed by Director of Public Prosecutions (Queensland))
MR A.J. GLYNN, SC: May it please the Court, I appear with my learned friend, MR A.J. RAFTER, for the respondent in the matter of Swaffield.(instructed by Director, Legal Aid Office (Queensland)
MR D. GRACE, QC: If the Court pleases, I appear with my learned friend, MR O.P. HOLDENSON, for the appellant in the matter of Pavic. (instructed by The Office of David Grace QC)
BRENNAN CJ: Yes, Mr Grace. Is there any difficulty about hearing these matters together?
MR GRACE: Not that I foresee, your Honour.
BRENNAN CJ: Is there any agreement as to the order in which argument should be presented?
MR GRACE: That has not been discussed, your Honour.
BRENNAN CJ: It has not been?
MR GRACE: No.
BRENNAN CJ: Yes. Yes, Mr Morgan‑Payler?
MR W.H. MORGAN‑PAYLER, QC: If it please the Court, I appear with my learned friend, MR D.M. SALEK, for the respondent in the matter of Pavic. (instructed by Solicitor to the Director of Public Prosecutions (Victoria))
BRENNAN CJ: Yes. Well, there seems to be some appropriateness in calling upon the first appellant, that is, the Crown, in the case of Reg v Swaffield and, perhaps, following that by Mr Morgan‑Payler. Does that seem to be appropriate?
MR GRACE: Your Honour, Mr Morgan-Payler is in the matter of Pavic.
BRENNAN CJ: Yes, I know but if they are being heard together perhaps we should hear what is to be said on one side, then hear what is to be said on the other.
MR GRACE: That course, your Honour, would then seem to deprive the appellant in Pavic of the right of reply, and that would be a matter that perhaps I could seek leave in relation to, if it grows, at a later date.
BRENNAN CJ: I think that you can be given any right of reply if you need it but, after all, you would have had the opportunity of hearing what the Crown has to say, will you not?
MR GRACE: Yes.
BRENNAN CJ: Mr Byrne.
MR BYRNE: If your Honours please, the appeal in the matter of Reg v Jason Roy Swaffield is concerned, we submit, with the concept “the right to silence”. That is an expression which has been called, in another jurisdiction, namely, the House of Lords, “an expression which arouses strong, but unfocused feelings”. May we say at the outset, with great respect, that the “strong” aspect of the feelings aroused are evident in the conflicting judgments which have emerged in the Court of Appeal, Queensland, not only in respect of this case, but in cases referred to as leading up to, if it were to this case.
We would make the general submission that there is a fundamental difference in considering that concept between the compulsory interrogation of a suspect by a person in authority and what is, on the other hand, a suspected person making voluntary admissions to an assumed confidante. If there is that fundamental difference, we will go on to submit that that seems, in our respectful submission, to be the basis for what we say is the error in the majority of the Court of Appeal’s decision in this case.
We would go on to submit, generally, that the answer to that dilemma, if it be one, is to be found in statements made by members of this honourable Court in the course of decisions over the course of many years, and we would go on to say that those statements find reflection in statements by appellate courts in other jurisdictions throughout Australia and, indeed, throughout the common law world.
May we begin by examining what the basis of the majority of the Court of Appeal’s decision in overturning the discretion exercised by the trial judge in this matter was? To do that, if we could take your Honours to, firstly, the judgment of Mr Justice Helman, which appears relevantly at page 231 of the appeal book.
GUMMOW J: This case was also reported in 88 A Crim R at page 98.
MR BYRNE: Thank you, your Honour. At page 231, at about line 22, his Honour said this:
With respect to his Honour I conclude that in this case he was clearly wrong in failing to give sufficient weight to the protection of the appellant’s right to, silence, and as a result of that error his discretion miscarried.
We say that focuses quite clearly the decision in this Court upon what that expression “right to silence” means relevantly in this area of the law. That is picked up, we further submit, in the short judgment of his Honour, Justice Fitzgerald, the President, in the bottom of page 193, going on to page 194 of the record book, where his Honour states:
However, in my opinion, neither O’Neill nor Davidson and Moyle is decisive of this case. My reasoning on those occasions would necessarily lead to the conclusion at which Helman J. has arrived, which is supported by the decisions of the English Court of Appeal to which he has referred.
Where we say that leads us is it is necessary to examine what the reasoning of his Honour the President was in the earlier cases referred to and, indeed, in a subsequent case - subsequent to the decision, at least - by the Court of Appeal in Swaffield, the matter of Davidson.
KIRBY J: Do we really have to go into that, except as it illustrates the theme, given that we have an appeal from the Court of Appeal of Victoria and the Court of Appeal of Queensland? I mean, it may be helpful to go into that, but we are not here to elucidate the correctness or otherwise of his Honour’s reasoning, are we?
MR BYRNE: I take your Honour’s point. But what we say, at least, is that reasoning is really conclusive of the decision of the Court of Appeal, Queensland, in this case and, for that reason, it is necessary to at least attempt to define what the majority of the Court of Appeal was talking about when they referred to the “right to silence”, and that can be done. We can do that quite briefly.
Part of our - the cases on the list, one of which is the unreported case of Reg v John Michael Davidson, (1996) No CA 203, judgment delivered 20 December 1996. That was a specially-convened Court of Appeal, which sat five judges. His Honour Justice Fitzgerald - if your Honours have that case, the relevant - it is not Davidson and Moyle, it is an unreported decision of Davidson, which was handed to the Court crier this morning, on my instructions. I can deal with it quite shortly, perhaps.
BRENNAN CJ: Let that be distributed now to the tipstaves.
MR BYRNE: Thank you, your Honour. Your Honour, the President, in that matter, found that - well, he would have allowed the appeal in the matter of Davidson. His reasons were, and I can state them quite shortly:
I consider that the reception of incriminating admissions into evidence against an accused is unfair when the evidence was obtained by breach of his or her right to silence.
Now, the facts in Davidson which your Honours may be aware - but, put briefly, are Davidson was in custody. A person agreed to co-operate with police and went and spoke to Davidson when he was in custody. The conversations were recorded and, during the course of those conversations, Davidson admitted to a murder. He went to trial, and Davidson is the appeal in that point.
GUMMOW J: Which page were you reading?
MR BYRNE: Page 11 of his Honour the President’s judgment.
GUMMOW J: Thank you.
KIRBY J: Do you challenge his proposition that the criterion is “unfairness”?
MR BYRNE: No, we do not.
TOOHEY J: That is a different test, though, is it not, at least on its face, to the passage from Justice Helman’s judgment you took us to on page 231? I am not sure what you say as to that passage. I mean, it speaks of failure to give sufficient weight to the protection of the appellant’s right to silence, as if that right is something that is to be weighed along with a number of other things. The passage you just took us to in Davidson seems to focus on “unfairness”.
MR BYRNE: I will go to his Honour the President’s reasoning, and the matter of O’Neill is specifically referred to there. But what his Honour is saying, in our respectful submission, is that it must ipso facto be unfair to an accused person if there is a breach of the right to silence. And, in the context of that case and in the case of O’Neill, to which we will turn nextly, the breach of the right to silence is simply having a suspect talk to a person who, unbeknownst to them, is carrying a tape recorder on behalf of police. We would submit that that reasoning is incorrect, and such a breach does not necessarily result in unfairness, which his Honour seems to be saying it does.
TOOHEY J: Well, is that what you are postulating with the test, Mr Byrne?
MR BYRNE: Yes, it is.
TOOHEY J: Whether, in all the circumstances, it was unfair to admit the statement into evidence?
MR BYRNE: We say it was not unfair.
TOOHEY J: No, I understand you say that. But is that what you say is the test; whether, in all the circumstances, it was unfair to admit the statement into evidence?
MR BYRNE: Yes, your Honour. That is the test which has been adopted in all the cases, and we do not argue to the contrary. We simply say that that test has been misapplied because of the ‑ ‑ ‑
BRENNAN CJ: The unfairness is in the admission of the statement into evidence?
MR BYRNE: Yes, resulting in an unfair trial, as it has been called, to the accused.
KIRBY J: That is a somewhat softer test than Justice Lamer suggested when the Supreme Court or Court of Appeal, Manitoba, where he said that this was whether it involved a dirty trick that shocks the community. That is why I was interested to see if you embraced the rather softer test of “unfairness”. It can encompass a lot of things.
MR BYRNE: We do not necessarily say it is a softer test. We say that decisions in this Court, which we will turn to briefly, talk about all the circumstances of the case; that is, the manner in which the police conducted the investigation, the manner in which the admission was obtained. That goes to whether it is unfair, and the unfairness is to be judged, I believe in Canada as well as in Australia, by the trial judge taking into account all relevant factors.
TOOHEY J: I am just not clear, when you put it that way, what you mean by “the right to silence”. You seem to be saying, as a general proposition, that evidence can be admitted in breach of this right, whatever it be, so long as it is not unfair.
MR BYRNE: We say there is no breach of the right to silence in the circumstances here; that his Honour Mr Justice Helman was incorrect in concluding that way, and necessarily wrong in concluding that insufficient weight was given to the factor, because the reasoning on which that is based and the reasoning on which the President’s reasoning is based, refers to a right to silence, which is against compulsory self-incrimination. That is clear, we would submit, from his Honour’s reasoning in the case of O’Neill.
BRENNAN CJ: We need to identify two things, do we not? One is the fairness discretion, or the unfairness discretion which allows a judge to exclude evidence which is otherwise admissible and that, as I have always understood it, relates to fairness to the accused in allowing the statement that he has made against himself to be admitted into evidence in proof of his guilt.
MR BYRNE: That is so.
BRENNAN CJ: There is a second basis on which the discretion to exclude may be exercised and that is that the means by which the police have obtained it is so unlawful or improper that, in the interests of the community and law enforcement generally, the evidence should be excluded. I suppose Ridgeway would be the high point of that.
MR BYRNE: Yes, your Honour.
BRENNAN CJ: But that is a completely different ground which does not sound in terms of fairness or necessarily sound in terms of fairness at all; they are two distinct bases.
MR BYRNE: Quite so.
BRENNAN CJ: You are concerned with the fairness one, is that right?
MR BYRNE: We are, yes.
BRENNAN CJ: And the question then is, was it unfair to allow this evidence to be admitted in proof of the accused’s guilt on his trial.
MR BYRNE: Yes, your Honour.
BRENNAN CJ: Now, what is it that the Court of Appeal have said that is inconsistent with that test?
MR BYRNE: What the Court of Appeal have said is that they have - the majority have simply stated that because insufficient weight was given to the right to silence then it would necessarily be unfair, and no proper exercise of the discretion could have allowed the admission of this evidence.
BRENNAN CJ: Is the right to silence said to consist in a right not to be asked a question by a police surrogate, as it were?
MR BYRNE: It must, your Honour, yes.
GAUDRON J: Without warning.
BRENNAN CJ: Without warning, yes.
MR BYRNE: Without warning, yes.
BRENNAN CJ: In other words, if the police get somebody to go and talk to somebody else, then all the limitations that there are on persons of authority, being police officers, should be inferred.
MR BYRNE: That, with respect, must be the reasoning of the majority of the Court of Appeal.
KIRBY J: Well, it is a little more than that. This was a case where the police had earlier gone to the accused and had asked him ‑ ‑ ‑
MR BYRNE: He, indeed, had been arrested, your Honour, yes.
KIRBY J: ‑ ‑ ‑ and he then exercised his right to silence. They knew that he was declining to make a statement. And then, in another inquiry, and for a different pretext, they, as it were, set him up.
MR BYRNE: Well, what it amounts to - and your Honour is quite correct ‑ he was, in fact, charged with the very offence, that is, arson of which he was ultimately convicted. Charges were discontinued at committal stage. He was then released and, in the course of the subsequent operation, the police surrogate - in fact, it was a police officer acting as an undercover agent - did speak to him. But what we say, your Honour, is that there could be no breach of the right to silence in the circumstances which pertained; that is, the admissions made were made voluntarily, the respondent in this case knew that he was under no compulsion to speak. He had, in fact, been warned by police that he need not speak to them. He knew he was a suspect by the police. He had been charged. Knowing there was no obligation to speak to police, let alone to his assumed friend, he then voluntarily spoke, knowing that if police could capture any admission by him they would have used that against him.
We would respectfully, adopting the words in one United States Supreme Court case, say, in the circumstances he spoke at his peril, and there was no right to silence pertaining to protect him where he did speak at his peril without any compulsory nature, or where any police officer was acting as a police officer interrogating him.
KIRBY J: Some of the US and Canadian authorities that we have been referred to seem to rest their principle on the absence of coercion; that it is the coercion that police can bring to bear when they are acting as police in a police station.
MR BYRNE: Quite so.
KIRBY J: But if you turn it on its head and say, well, the fundamental right to be silent is something which inheres in the individual wherever the individual is and is not, as it were, dependent upon coercion in a police station, then you reach a different conclusion.
MR BYRNE: But assuming that right to be there, no one has taken away from this person. He has exercised the right to speak. The fact that he has wrongly believed that the person to whom he was speaking would not divulge that to police is his prerogative. It is not a breach of any right to silence in the sense that he is not being compelled to speak.
BRENNAN CJ: You just present your argument, Mr Byrne. We understand now what it is about.
MR BYRNE: Thank you, your Honour. Can I just continue briefly. In O’Neill, which is the reasoning of his Honour Justice Fitzgerald which he took up in the present case - I will give your Honours the page reference. At page 424 - I am sorry, this is Reg v O’Neill (1996) 2 Qd R 326.
GUMMOW J: Page?
MR BYRNE: Page 422, at about line 28 on that page, it is the left-hand column. His Honour said:
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.
The breach of the right to silence which his Honour is there referring to, we would respectfully submit, goes back to his Honour’s discussion at pages 410 to 413 of the report, where his Honour is dealing directly with the privilege against self‑incrimination; that privilege being one which has been discussed in this Court often, but which we submit has no application to the facts of either O’Neill or, indeed, the present matter.
TOOHEY J: Mr Byrne, I am still having a bit of trouble fastening onto the principle that the Court is being asked to apply here, although you have answered the Chief Justice by focusing on unfairness, as opposed to the community’s outrage by reasons of the means employed by police or comparable authority. In the passage that you have just taken us to on page 423, if that is offered as a statement of principle, do you have any quarrel with it?
MR BYRNE: Yes, we do. We say that what his Honour is speaking of there as the right to silence is the privilege against self-incrimination involving, as do the American authorities, some aspect of coercion, or authority figures being involved. In O’Neill’s Case, as in the present case, there was none of that; there was simply a person who voluntarily spoke to someone ‑ ‑ ‑
TOOHEY J: Yes, I understand that. But I was trying to get away from the particular facts for a moment to fasten onto principle. If the accused is deliberately tricked into surrendering his or her right to silence at the instance of law enforcement personnel by an implicit representation that X sought his or her confidence as a friend, not as a police agent, what do you say? Does that automatically exclude the evidence on the grounds of unfairness? I take it you would put the proposition in some more modified form than that?
MR BYRNE: Well, we would say that does not. Of course, our submission would be that that does not lead to the exclusion because, if there is a right to silence in those circumstances, it is only but one of the factors to be taken into account in the unfairness discretion.
KIRBY J: It is slightly offensive to principle, though, is it not, that the police, knowing that there is a right to silence, set up a system that, as it were, deliberately goes about reducing it and perhaps, in the end, eroding it so much that it disappears. No one will bother asking anybody questions in a police station; instead, all their friends and others will be wired up to have conversations with them. That is the problem.
MR BYRNE: The question is one of what are fair police methods, and what is fair to the accused when it comes to his trial - to go back to the Chief Justice’s proposition. Where there is voluntary admissions made by a person which are recorded so there is no doubt as to reliability, then our submission primarily would be it could not be unfair to a person at his trial to have that type of evidence led against him, unless there is something improper, unless there is something in the circumstances where there has been a breach of the right against self-incrimination. None of those factors are present here.
KIRBY J: The accused would doubtless say, “I was voluntary to a friend in circumstances where I had no reason to believe that it would end up incriminating me. But those who were speaking to me had a different object in mind”.
MR BYRNE: Quite so. And that is the direct point considered in O’Neill’s Case; the majority finding that that did not result in unfairness. It was, similarly, the point considered in Davidson, where four of the five members of the court on that occasion found there was no unfairness. And it is also the point which is being considered by other intermediate appellate courts around the country.
TOOHEY J: Well, on that footing, it is a right which can be breached, as I take your submission to be, so long as, in the consideration of all the circumstances, it is not unfair to the accused to admit the statement. Is that how you are putting it, or in some different way?
MR BYRNE: We accept the end part of your Honour’s submission, but we do not - and I probably have not made myself ‑ ‑ ‑
TOOHEY J: It was not a submission.
MR BYRNE: Your Honour’s statement, I am sorry - the first part of your Honour’s proposition that there is an existing right to silence such as a breach of it in these circumstances would go or could go to the exclusion as to being unfair. What we say is that the concept of the right to silence has been misunderstood, at least in the Queensland Court of Appeal, as not being persons in authority or police officers speaking to a suspect, but, rather, any conversation a suspect has, be they with a friend or otherwise, would require, on the reasoning, a warning to be given.
GAUDRON J: I am somewhat at a loss. I do not see why the critical issue is not the absence of a warning, in which event one goes to the question: what purpose does the warning serve? I would have thought that was to ensure reliability of the evidence, rather than anything else. Well, as much to ensure reliability as anything else. So that you never really could isolate “right to silence” as the critical determinant.
MR BYRNE: We have not found in the authorities a direct statement that says that the warning goes to reliability. What we have found is statements as to the reason the warning is given, and the basis and principle behind it, and perhaps if we take your Honours to those statements now.
GAUDRON J: Do not take yourself out of your planned argument though.
MR BYRNE: No, I can deal with that directly now. Our first reference would be to the case of Petty v The Queen (1991) 173 CLR 95, at 118.
GUMMOW J: What will these cases which you are about to take us to show? What is the destination? It is good to know the destination before we get to the - - -
MR BYRNE: The destination, we hope, your Honour, is to show what the basis for the warning is.
GUMMOW J: Well, what is it?
MR BYRNE: It is to avoid persons being put at the risk of being overborne by police.
KIRBY J: It is not to enliven in their mind, who may be laymen and may not know their legal rights, the fact that by our system of justice they have a right to be silent, and that the State tells them of that right? I thought that that was one of the reasons, at least, for the warning.
MR BYRNE: No, that is not, we say. We have not found that to be identified in the cases as one of the reasons.
KIRBY J: Why do we, therefore, have written notices and make sure they are in their own language, and all these other protections? Is it not to enliven knowledge of basic rights?
MR BYRNE: It is to overcome the risk that suspects being interrogated by police will be overborne because they are in an unequal situation. They are not in a situation where they are conversing with a person who is at the same level as them and they are doing so voluntarily. There are innate pressures, as has been recognised in the cases on persons who are being investigated or spoken to by police, particularly in police stations, and those pressures have been recognised by this Court in a line of authorities.
GUMMOW J: Well, you rely on Petty at 118 because Justice Dawson’s focus is on:
traditional objection of the common law to any form of compulsory interrogation.
MR BYRNE: We do.
BRENNAN CJ: Just take us to the passages that you want to take us to.
MR BYRNE: It is 118 initially, your Honour, about halfway down that page, the paragraph beginning:
The right to silence is a convenient, if somewhat imprecise, expression -
His Honour goes on:
It embraces the absence of any obligation on the part of a person suspected of having committed a crime to answer questions by the police or other person in authority.
We submit that that is a recognition of what the purpose of the warning is. It is to protect persons who are otherwise vulnerable against this sort of real or perceived pressure. It is not a position where they are speaking to equals; that they require a warning not to speak, or they may incriminate themselves not with compulsion, but simply by telling their friend or equal what they have done in the past.
We also take your Honours briefly to the statements by your Honour the Chief Justice at pages 106 and 107. They are short statements but they again go to that same theme. At about two‑thirds down 106 your Honour the Chief Justice said:
A suspect has a right to maintain silence when questioned by persons in authority about the occurrence or authorship of an offence.
Your Honour goes on to discuss it further. And, at the first full paragraph at the top of page 107, it is stated:
The rule is designed to prevent oppression by the police or any authorities of the State -
and your Honour goes on to discuss inferences that a jury may, in any event, draw.
KIRBY J: His Honour says, at the bottom of page 111:
These questions touch the balance between investigative power and individual freedom; their answers determine whether we live in a free society.
MR BYRNE: A free society, we would submit, allows a person who chooses to speak at his peril to have that used against him or her if it is a voluntary admission of guilt. He or she does not have to be warned, because there is no coercive power, there is no authority of the State overtly in operation at that time.
KIRBY J: It is the fact that the Crown, or the State and its agencies here, knew that this was a person asserting the right to silence. I can see a distinction between picking up things that people say and picking them up after you know that the person claims the right to silence, but then going around the back way to get it when you could not get it directly, and you are the agency of the State.
MR BYRNE: That is part of the balancing exercise, and whether it is unfair to do that - we would submit it is not in circumstances such as this, where police have good reason for suspecting this person. Traditional methods of investigation have failed. That does not mean, we submit, that they must abandon all hope, but it does leave them free to make further inquiries, as long as those inquiries are not improper or result in unfairness to the accused at the trial.
BRENNAN CJ: Are there any other passages in Petty v The Queen that you wish ‑ ‑ ‑
MR BYRNE: No, thank you, your Honour. Can we take your Honours briefly to a statement made by Sir Anthony Mason in Van Der Meer v The Queen 82 ALR 10, the relevant passage being at page 17. It is about line 37, the sentence beginning:
Interrogation at a police station not preceded by a caution creates a risk that the answers will be non-voluntary because the suspect may feel bound to answer questions put to him.
Again, we say that is a proper construction of why the warning is given, and a construction which is not present in circumstances such as this case, where they are on equal footing. Could we seek to illustrate that point ‑ ‑ ‑
KIRBY J: Of course, his Honour was there dealing with the case - as I see on page 12 - where Van Der Meer had been interrogated at the Maroubra police station, so that is all he is dealing with.
MR BYRNE: Yes.
KIRBY J: Not dealing with this case; it is difficult to take things out of the context.
MR BYRNE: We accept that. But what we are saying is that we are unable to find a case which says that a warning is required in circumstances such as this, and the authorities that we have been able to find point to a reason in principle for the giving of the warning, which is not present in circumstances such as those here. May we illustrate that by contrasting the position of the respondent in the present matter with the persons O’Neill and Barker, who were subject of appellate decisions; O’Neill being in Queensland, Barker being a decision of the Full Federal Court. The contrast is simply this: the respondent in this matter was aware not only that he was a police suspect, but he had specifically been warned that anything he said would be used against him. The Court of Appeal said in those circumstances it would be unfair to use the voluntary statements obtained by a police agent against him at trial.
In O’Neill and Barker, both of those persons were police suspects, but completely unknown to them. In similar circumstances, a police agent was sent in and admissions made. Both the Court of Appeal in Queensland and the Full Federal Court found there was no unfairness in those circumstances ‑ ‑ ‑
BRENNAN CJ: What are the references?
MR BYRNE: O’Neill I have given your Honour the reference to. It is (1996) 2 Qd R 326. Barker is (1994) 127 ALR 280.
TOOHEY J: Mr Byrne, what is it on the approach that you are taking that constitutes or might constitute unfairness to the accused? You are saying that perhaps deception of itself is not necessarily unfair.
MR BYRNE: That is so.
TOOHEY J: Well, what sort of circumstances would constitute unfairness?
MR BYRNE: Unfairness is something which has been recognised in the cases as going to, as I have stated before, the reliability. Although that is not conclusive, it is certainly an important factor to be borne in mind. And where it would be unfair is where there was, for example - to use something close to here - a vigorous interview at a police station between police acting as police and a suspect, in which he or she was not warned and was cross‑examined. Those circumstances were, in fact, present in Van Der Meer, and that is an example of where it would be unfair because the reliability is suspect, and it would have been unfair because his privilege against self-incrimination was overborne. None of those circumstances, we say, exist where there is a conversation between equals which is tape recorded.
BRENNAN CJ: What if you got a suspect drunk and got a statement out of him?
MR BYRNE: That is a factor, and that is, again ‑ ‑ ‑
BRENNAN CJ: Or, even if you did not get him drunk, but you took the statement from him while he was drunk.
MR BYRNE: One would think the drunkenness would affect reliability.
BRENNAN CJ: Well, whether it did or not, it is the sort of thing that a person might have no confidence in in terms of the desire to express that which was the truth so far as that person was concerned.
MR BYRNE: Yes, that must be so. But where there is simply a conversation between equals, those concerns do not come into it. There is no suggestion here of any intoxicating substance being used; it is a series of voluntary statements which are inculpatory.
KIRBY J: So, your concept of “unfairness” is if the policeman gets the person drunk and then they make some rash statements. But if they simply have a conversation, pretending that they are drunk on friendship, then there is no unfairness.
MR BYRNE: Yes, because that is a conversation between equals.
KIRBY J: But telephone conversations are conversations between equals, but our law protects them, though doubtless it would be very useful if they could generally be intercepted.
MR BYRNE: Well, they often are intercepted under statutory schemes.
GUMMOW J: Well, that is the point, there is not one here.
MR BYRNE: I am sorry, your Honour.
GUMMOW J: They are intercepted under a statutory scheme, which permits this surreptitious activity. There is no such statutory scheme here.
MR BYRNE: No, there is not, and we say there is no unfairness.
TOOHEY J: But the notion of “conversation between equals” is one that I am having a bit of trouble with. What if a police officer has a conversation with a suspect, says nothing as to his position as a police officer, but just has a bit of a chat. They might meet in a casual situation. Admissions are made. What is it that then constitutes unfairness in that case?
MR BYRNE: We say there is none.
TOOHEY J: There is none.
MR BYRNE: Similarly, assume the person is not a police officer, he is simply someone to whom the suspect chooses to speak. That person then relates that to police. There is no unfairness there, we say.
TOOHEY J: So, the inequality arises in what manner, because one of the persons is seen to be a police officer and, therefore, the suspect is immediately in a less strong position? Is that the sort of inequality you are talking about?
MR BYRNE: Yes, it is, because the power of the State comes into play then. It is the person who is being investigated and knows he is being investigated by an agent or a person acting on behalf of the State, and that necessarily, on the authorities, brings about real inequality, let alone perceived inequality. If that does not exist, then the statements are simply made in the exercise of a choice to speak without any coercion, and we say there is no unfairness there.
KIRBY J: It is not an informed choice to speak though, is it, really? It is a tricked choice to speak.
MR BYRNE: In the circumstances here it is an informed choice to speak. The only thing to which the person is deceived is that he does not believe he was speaking to either a police officer or to someone who will report the conversation to police, but certainly an informed choice to speak in the sense that he chooses to speak and does so voluntarily.
BRENNAN CJ: Are there any passages in Barker v The Queen that you wish to draw our attention to?
MR BYRNE: Not specifically, your Honour, no. The courts considered there a factual scenario where a police agent, with a tape recorder, was sent in, conversations conducted, and the Federal Court applying principles of unfairness admitted the conversation, saying it would not result in an unfair trial.
KIRBY J: Was that a case where there had been earlier a claim to the right to silence by the accused?
MR BYRNE: No. In fact, the accused had no idea that they were under police investigation.
KIRBY J: Is that a point of distinction in this case, and in Pavic, that in both cases the accused had asserted their right to silence and that then there was the circumvention.
MR BYRNE: It is certainly a point of difference, but whether one distinguishes - because on our argument, at least, it is open to say that that person was put on guard, whereas a person such as Barker was not on guard, even though they were the subject of a police investigation.
TOOHEY J: What is the purpose of the warning that the law requires? Is it in some way to restore an equality between the parties that might otherwise not be present?
MR BYRNE: We say yes to that question, your Honour.
TOOHEY J: Yes, thank you.
MR BYRNE: We have referred the Court to Barker’s Case and we will not take your Honours to Pavic specifically, because that will be subject to lengthier discussion later in the day. May we take Your Honours briefly to the case of Reg v Giaccio and Edginton, which is an unreported decision of the Court of Criminal Appeal of South Australia, judgment delivered 29 April 1997. The judgment of the court was delivered by Justice Cox, and that was a case where, whilst there had not been an earlier warning, it was a situation where the police had evidence of the commission of the crime before they used the method of an undercover agent. At page 17 of the judgment, beginning on the first full paragraph on that page, about the middle of the page, his Honour considers that there was no illegality such as in the present case:
That leaves the aspect of deceit.....The use by the police of unfair or improper methods of interrogation or investigation will always raise a question of discretionary exclusion, but the use of deceit by the police in their dealings with a suspect will not always be improper or unfair.
That is adopting really what was said in this Court in Ridgeway. And at the next paragraph his Honour goes on:
It is true that the police probably had reasonable cause to suspect, from the time Hall went to them on October 13.....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.
Further down:
There is nothing wrong with such tactics -
And if I could ‑ ‑ ‑
BRENNAN CJ: The question that was asked there is were the police methods here unfair? That is a very different question from whether it is unfair to admit the evidence again an accused. This question is really related to the notion that conduct is such that the court ought to frown upon it and not let the evidence in. It is not an unfairness discretion, is it?
MR BYRNE: No, in that sense that is correct, but it is treated as an unfairness the same way that - if one applied that test, your Honour, to the present facts one would assume the same reasoning applies. It is the conduct of police which is being said to be unfair, ie, the breach of the right to silence rather than what we have accepted is the correct test, namely whether it would be unfair to use the evidence obtained against him at trial. The statement of policy made for the court appears at page 18, at about one‑third down the page, the sentence beginning on the left hand side
I would so hold on the simple policy ground that, disagreeable though deceit and subterfuge may be, it is possible for the courts to be overscrupulous in supervising the methods the police use to detect and prove serious crimes. Fairness in a criminal trial may not mean the same as fairness on the cricket ground. Nothing that the police did here was illegal or was calculated to shock the public conscience.
That really takes up the point your Honour the Chief Justice just made with me, but we would adopt that in saying there was certainly nothing done by the police in the present case which would attract that sort of response.
KIRBY J: I understand that submission, but one has to test propositions by what happens if it becomes a general rule, and if what is sanctioned in this case is that when an accused says, “I exercise my right to silence,” which the law protects and which some will regard as a fundamental right, the police then adopt a general rule, or a common rule, that they will find a way to go round that, that that would not be a good thing for the right to silence and for the kind of society we live in, in the view of some.
MR BYRNE: Yes, we understand your Honour’s point, naturally, and that topic was the subject of some discussion in the judgments in the present matter, particularly that of Justice Pincus and Justice Helman. It has also been the topic of discussion in the English Court of Appeal, where the courts have said in effect that yes, it would be a bad thing if this were to become a common practice, but there are cases where it is appropriate and they each have to be tested on their own facts. One of the factors relied upon in the judgments are the nature of the crime and the seriousness of the crime. Those, we say, are factors in the exercise of the discretion, and here the crime was one of some seriousness, the arson on a rowing club.
KIRBY J: The difficulty is that once the evidence is in it is a natural human reaction, if it is relevant, and often highly relevant, to object to it being excluded because that may lead itself to an affront. But if what has been done here is sanctioned, then there is no obligation to introduce the intermediate step that exists in telephone interceptions, that some independent mind is brought to bear, or with search warrants, to decide whether or not this extraordinary step will be taken which would, at the threshold, look to the seriousness of the crime, whether there were alternative ways to get it and so on.
MR BYRNE: No, we had - - -
KIRBY J: It is just a free go; it is a free kick.
MR BYRNE: To answer your Honour’s question, we have no statutory scheme in Queensland touching on any of those matters, and certainly it is a judgment call on behalf of the authorities.
KIRBY J: Ex post.
MR BYRNE: Yes. And it is a judgment call which is often exercised in drug operations. All drug operations where there are purchases by undercover agents, if a requirement were to give a warning in each of those circumstances, then it would make the investigation of that type of crime quite difficult. The courts seem to accept that that is fair to conduct investigations in that way. We would say that in the circumstances of this case the perceived right to silence was not such that where voluntary admissions were made a proper exercise of discretion must have resulted in those being excluded.
Could we move to the second part of our submissions, and that is to say that the basis for the warning which we have attempted to expose this morning, and has been recognised in courts in Australia, also finds reflection in courts in other jurisdictions. Could we take your Honours firstly to the United States of America and the decision of Illinois v Perkins 496 US 292. We acknowledge certainly that in America there are constitutional complications to the scheme, but we say the statement of principle reflects what is the principle pertaining in Australia. If we take your Honours to page 297 of the opinion of the court.
KIRBY J: You accept that the position is the same, because at least arguably there is a point of distinction between a country where the Constitution gives people a legal right and a country where it is, as it were, part of the legal culture, not the constitutional right?
MR BYRNE: We say a fortiori if there was such a right to be recognised it would be recognised in America. Illinois v Perkins was a case which dealt specifically with the question whether a warning was required in an undercover operation, and at 297, the first full paragraph beginning there, the court stated:
It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation. We reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent. Questioning by captors, who appear to control the suspect’s fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect’s will, but where a suspect does not know that he is conversing with a government agent, these pressures do not exist. The state court here mistakenly assumed that because the suspect was in custody, no undercover questioning could take place. When the suspect has no reason to think that the listeners have official power over him, it should not be assumed that his words are motivated by the reaction he expects from his listeners.
The next paragraph we say is important too:
Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner.
We ask the Court to read down to the end of the sentence beginning:
Ploys to mislead a suspect or lull him into a false sense of security -
KIRBY J: That was not a case where there was a previous assertion of a right to silence.
MR BYRNE: The situation there was that -
KIRBY J: It was just a stop or stopped. It is at page 305 of Justice Marshall’s ‑ ‑ ‑
MR BYRNE: Yes. Perkins was in custody but in respect to another offence. We say also that that passage of the judgment of the Supreme Court of the United States reflects a statement of principle made in this Court in The King v Lee (1950) 82 CLR 133 at 159. At 159 the relevant passage in the judgment of the Court appears as beginning on the third sentence of the last full paragraph. It begins:
The uneducated - perhaps semi-illiterate man -
Can we invite the Court to read to the bottom of that page, because our submission is that it does again at point of principle give a rationale for the existence of the warning which is inconsistent with it being applicable in the present circumstances.
BRENNAN CJ: That statement there perhaps does not give full acknowledgment to the extent of the inadmissibility of statements which are not voluntarily given. In other words, this seems to take into the discretionary area that which in truth might well be excluded as being involuntary.
MR BYRNE: Yes, that is accepted.
TOOHEY J: Because you are not talking here about situations in which someone’s will is overborne.
MR BYRNE: That is so.
TOOHEY J: That is why some of those decisions bearing on voluntariness may not be of very much assistance, particularly where the question is whether in the circumstances the rule of a person making the statement was overborne.
MR BYRNE: We accept that, your Honour. Could we take the Court, whilst we have that case in front of us, to an earlier passage in the judgment at page 153. This is a passage which commented upon much in subsequent decisions of the Court we do not understand to have been found to be not presently applicable. The passage begins in the sentence:
If it is proved to be voluntary then it is prima facie admissible.
And then it continues:
Surely, if the judge thought that the “impropriety” was calculated to cause an untrue admission to be made, that would be a very strong reasons for exercising his discretion against admitting the statement in question. If, on the other hand, he thought that it was not likely to result in an untrue admission being made, that would be a good reason, though not a conclusive reason, for allowing the evidence to be given.
That, we would respectfully submit, remains the law. There have been statements made expanding upon that; indeed, one of them is the judgment of your Honour the Chief Justice in Dukes’s Case, which is referred to in our opponent’s written outline of submissions, but we submit that still remains a general statement of principle which is applicable. In the circumstances here, there is no question of it resulting in an untrue admission being made in the circumstances of the case.
BRENNAN CJ: Is this a convenient time, Mr Byrne?
MR BYRNE: Yes, your Honour.
BRENNAN CJ: The Court will adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
BRENNAN CJ: Yes, Mr Byrne.
MR BYRNE: Thank you, your Honour. May I take the Court to authorities which we say relevantly set out this Court’s view on what is the test on unfairness. We only seek to take your Honours to two cases on that: one is Van der Meer v The Queen, (1988) 82 ALR 10; and then Foster v The Queen (1993) 67 ALJR 550. In Van der Meer we take your Honours to the passage in the judgment of Justices Wilson, Dawson and your Honour Justice Toohey, which appears at page 26 of the report. In the penultimate paragraph on that page it reads:
In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him. Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.
The most recent authority of which we are aware, directly on the unfairness point, is Foster v The Queen. I have given your Honours the citation to that. We refer, firstly, to the passage in the judgment of Sir Anthony Mason, Justices Deane and Dawson and your Honours Justices Toohey and Gaudron, which is on page 554, starting at the left-hand column, halfway down. The passage begins:
It is now settled that, in a case where a voluntary confessional statement has been procured by unlawful police conduct, a trial judge should, if appropriate objection is taken on behalf of the accused, consider whether evidence of the statement should be excluded in the exercise of either of two independent discretions.
The first is said to be unfairness and the second is “unlawfully obtained”. At the top of the right‑hand side of the page, it said:
To no small extent, they overlap. The focus of the two discretions is, however, different. In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the questions of the requirements of public policy is under consideration, the focus will be on “large matters of public policy” -
May we also, before we state a point on this aspect, take your Honours to the judgment of Justice McHugh, which appears relevantly at 563, right‑hand paragraph, under the heading “The unfairness discretion”. His Honour there states:
In determining whether it would be unfair to the accused to use a voluntary confession again him or her, the trial judge is bound to consider not only evidence of impropriety or other conduct which has caused or may have caused the accused to make the confession, but also evidence which suggests that the confession is reliable. Unfairness is not a one way street.
Could I invite your Honours to read the rest of that paragraph, which concludes at the top of 564.
KIRBY J: But what is your answer from the point of view of unfairness, or public policy unfairness, to the suggestion that if the rule that is established, or that you seek to have established, is unfair then you do really worry too much about the warnings of the right as to silence, you just find a way of getting somebody to talk to another person, in a situation where they believe they are safe, and they make statements that they would never have made if they had been warned. Is that not a bad thing, from the point of view of the type of society we live in?
MR BYRNE: Perhaps the answer to your Honour’s question is this. The unfairness discretion, as expounded in the passages to which we have referred, does not seem to cover the point which your Honour makes with us, quite rightly. Perhaps the point your Honour is making to us is that it is a public policy issue which goes to that. That is, if the police have acted in a way which is so improper or to a degree which society would condemn, then that is the discretion to be exercised. If that be the case - and we accept your Honour’s proposition that that may be the case - then it becomes a balancing exercise as to what have the police done. Is what they have done unlawful? Is the crime they are investigating so serious that the public interest requires them to use deception, of the type considered in the cases?
That may well be what your Honour is asking us. If it is not - I am sorry, but that seems to be the point your Honour is putting, and that seems to be the point which was taken up in Ridgeway v The Queen, where the point was that the public policy required exclusion of the evidence rather than any unfairness, because the evidence was, quite simply, so reliable that there was no room - as your Honour the Chief Justice stated specifically, there was no unfairness. The question of unfairness simply did not arise in the matter of Ridgeway. We stress, before we leave that point, that in the cases which deal with unfairness, there is no discussion of right to silence that we can find, it is more a question of the reliability, focusing upon that aspect of the evidence.
I have taken your Honours to Ridgeway. I note in passing, without requiring your Honours to look at it, that there is reference in there that in appropriate circumstances deception and subterfuge are legitimate tactics, and, indeed, it is said, will ordinarily be legitimate unless there is particular circumstances, none of which are present here.
Could we move directly then to look at the facts in this case, which we have not set out in our written outline, but they are short and perhaps they need examination to assess what the police conduct was in the case. The relevant interviews, or transcripts thereof, run from 183 to 186 of the record book - I am sorry, 182 it begins. “C” is the covert police officer, as appears on the record. “M1” is the respondent in this appeal. Your Honours will see that the police operative, from about line 20 down to line 44, is talking about a fictitious brother‑in‑law of his who is in trouble for burning a car. There is no direct questioning, there is simply that opportunity, we would submit, given to the respondent. The respondent takes that opportunity and says:
M1: I went through for arson for last year hey.
There is then a question asked:
C: Did you get off it though?
M1: Yeah.
A question not directed to the accused but simply saying:
C: That’s alright. Like I said I don’t know what they’ve go on him.
ie the brother-in-law, and the respondent again volunteers an amount of damage. A question is put and the answer is a simple one:
M1: Leichhardt Rowing Club.
C: Huh?
M1: Leichhardt Rowing Club.
He goes on to volunteer:
M1: Yeah. Got a brief here UI in Rocky.
BRENNAN CJ: What is “UI”?
MR BYRNE: Intelligible, in police parlance, your Honour. You will see a few of those in the transcript.
BRENNAN CJ: Yes, indeed. I noticed them and I did not understand what they were.
MR BYRNE: There is further discussion, but it is not, we would submit, in any sense an interrogation; it reads quite clearly as giving this person an opportunity to discuss, or as we have put it in the written outline, brag about his involvement, which he takes up. He volunteers, over at page 185 ‑ volunteers, as I say, that it was a safe job, and that coincides with the evidence that oxyacetylene gear had been stolen from the other side of Rockhampton and used in the burglary and subsequent fire in the Leichhardt Rowing Club. At page 186, line 25, he volunteers again that the police repossessed his car for scientific examination, but says:
M1: ..ui.. before they done that I had to fucken change my tyres, fucken put sand all over me boot and carpet vacuumed out.
KIRBY J: What is the brief that they are referring to at page 188, first line?
MR BYRNE: The respondent volunteered, back at page 183, about line 33, that he had a brief in Rocky. And by that it is assumed he means a police brief in respect to the arson.
KIRBY J: Yes, he goes on to say that ‑ ‑ ‑
MR BYRNE: A police brief containing statements of relevant witnesses et cetera. So one has to then look whether that behaviour by police is such either that would require public policy exclusion, given the nature of the crime, the lack of illegality, the fact that these were voluntary statements made, and that whether the public would be so outraged at this behaviour that they court should act to exclude it. I have to say that it does not appear that the primary judge was asked to exclude on that basis, rather, he seems to have been requested to exclude on the unfairness basis. We could submit that, clearly, on the passages we have referred the Court to on unfairness, there is nothing which would require on that limb of the discretions to require exclusion. It is reliable, cogent, et cetera.
We have made the point, we hope, that there is no right to silence again referred to in the authorities there. We take up the point, your Honour Justice Gummow made before lunch, about the statutory basis and the telephone intercept. The difference, we would say, in respect to that situation at present is that what is being invaded there is not so much a right to silence per se, it is more an invasion of the privacy, because the conversations which are being intercepted and used are between, usually, the target and a third party rather than a voluntary conversation between the person taping the conversation and the target.
KIRBY J: But do not the Listening Devices Acts of Australia require various warrants if you are intercepting or recording something that one party to a conversation does believe is private, which is what would be the case here.
MR BYRNE: Our point is a simple one; it relates to invasion of privacy rather than right to silence because, at least under the Queensland Act, the Invasion of Privacy Act, no warrant or statutory basis is needed if one of the parties to the conversation is consenting to the recording of the conversation, as was the case here. So it is a small point but it is simply an answer to the matter which was raised this morning.
KIRBY J: So it is enough in this State if the recorder is consenting to the recording though the recorded does not know?
MR BYRNE: That is so. I cannot answer the question as to whether that is different in other States.
KIRBY J: I think it is.
MR BYRNE: Could we take your Honours briefly - we have referred to Illinois v Perkins. There is one other passage, if we may take your Honours briefly back to that. Again the citation is (1990) 486 US 292 at page 298. We say this passage is reflective of what the true situation was in the present case, that is a situation as viewed from the respondent’s point of view. At the top of page 298, the first full paragraph reads as follows:
Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates. This case is illustrative. Respondent had no reason to feel that undercover agent Parisi had any legal authority to force him to answer questions or that Parisi could affect respondent’s future treatment. Respondent viewed the cellmate-agent as an equal and showed no hint of being intimidated by the atmosphere of the jail. In recounting the details of the Stephenson murder, respondent was motivated solely by the desire to impress his fellow inmates. He spoke at his own peril.
That is the phrase we adopted at the outset of argument, of course. We say that factual situation, having now directed your Honours to the interviews here, is quite close to the circumstances prevailing.
A similar approach, we say, to conversations of this type has been adopted in the Supreme Court of Canada. May we refer your Honours to the case of The Queen v Herbert (1990) 2 RCS 151 at 184. The left-hand column, middle paragraph beginning “Second”, her Honour her Ladyship Justice McLachlin had been considering the situation of in custody, given the Canadian Charter of Rights ‑ ‑ ‑
GUMMOW J: Where is the actual text of the relevant provision of the charter? Over at 159?
MR BYRNE: Yes, page 159. What is said there, in the he second sentence beginning:
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. The two circumstances
are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state. After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee’s rights are respected.
KIRBY J: Would it be feasible to draw a line in the sand that said that if the police, as it were, sent their informant to take the recording, that is one thing but if having been told that a person asserts the right to silence they set out and record it, that that does affront the community’s sense of justice or, whether it does or not, it is offensive to the principle of respecting the right to silence?
MR BYRNE: The difficulty with such a line in the sand is that - one can argue it a number of ways, but if that were the line to be drawn, to use your Honour’s earlier analogy, it may encourage the police not to seek to use traditional ways. So that if a warning were given that bestows a de facto immunity from further questioning at a later time because, if the warning once given must be for all times acted upon, then ‑ ‑ ‑
It was clear that in relation to the involvement of the appellant in the killing the matter had moved from the investigation stage to the accusatory stage. There in fact had been a record of interview on 3 January 1995 - and I refer your Honours to the chronology which has been supplied to the Court ‑ in which the appellant had been told by the police that they believed he had committed the crime of murder. Now, in those circumstances we submit that it was incumbent, if there was to be any further interview, covert or otherwise, of the appellant, that he be properly cautioned.
The right to silence is founded upon a concern to maintain a fair balance between a State and the individual. In Victoria both the common law and Division 30A of the Crimes Act recognises that and specifically could I refer your Honours to section 464J of the Crimes Act. This Court perhaps most recently in the case of EPA v Caltex (1993) 178 CLR 477 and specifically at page 527 their Honours Justices Deane, Dawson and your Honour Justice Gaudron found that the right to silence partly derives from the principle that no one may be compelled to betray himself or herself and that the right is also to be explained by the fundamental principle:
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.
Now, in this case it was found unequivocally by the trial judge that there had been a deception. His Honour found further that the deception had in no way operated upon the appellant. We submit that that particular finding is in error and, further, that it is by no means clear from his Honour’s reasons why his Honour reached that conclusion. The deception was manifested in a number of ways. The deception was manifested by Clancy concocting a story at the behest of the police that he, Clancy, was a prime suspect for the murder and that Pavic had to tell the police that Clancy was not involved.
It was further manifested by the failure by Clancy to advise the appellant that he was acting on behalf of the police, that he was tape recording the conversation and further manifested in marked extent by Clancy’s staged appearance of being distraught. We submit that it is clear that a combination of all of those deceptions resulted in the appellant’s admissions. There was unequivocal evidence given by the police involved in setting up the covert taping operation that the deception was necessary in order to best ensure that Pavic made admissions to the murder of Astbury and we say that the deception in these circumstances operated to deprive the appellant of the freedom to make an informed choice in relation to surrendering his right to silence.
TOOHEY J: Does that mean, Mr Grace, that you are not putting this in terms of an unfairness discretion at all?
MR GRACE: I am, your Honour.
TOOHEY J: You are.
MR GRACE: Yes.
TOOHEY J: Well, I only ask you that because of the emphasis you have put on what you describe as deception and trickery almost as if those factors of themselves would call for the exclusion of the evidence and perhaps I should say coupled with the absence of a warning, but I am still not clear which way you ‑ ‑ ‑
MR GRACE: Yes. In our submission, that does not take it out of the considerations that are applicable to the exercise of the fairness discretion.
TOOHEY J: So there is still a discretion left in the trial judge, is there?
MR GRACE: Yes.
TOOHEY J: Notwithstanding the absence of a warning, the use of deception and all those other factors to which you point?
MR GRACE: Yes. Each case must be looked at on its own facts and circumstances. The extent and the nature of the degree of the deception are all relevant matters to take into account. If the deception was minor then perhaps it would not result in the exercise of a discretion to exclude, but we say in this case there can be no question the deception was major and it did result in the admissions being made and there was clear trickery involved.
KIRBY J: Is there a link conceptually between the voluntariness discretion, the fairness discretion and the Bunning v Cross discretion? I mean, obviously they are all aimed at ensuring a fair trial, but are they entirely separate and distinct discretions?
MR GRACE: No, with respect, not, your Honour. It may be that voluntariness is attached to the question of freedom of choice, that is, can a statement be voluntary in the legal sense if a person is not given the freedom of choice which the right to silence gives that person. That is a matter that will cause overlaps if accepted into other areas.
BRENNAN CJ: Speaking for myself, voluntariness if properly understood goes a long way to covering what might otherwise fall under the fairness discretion. In other words, voluntariness, the onus of which rests on the Crown and which does not create any discretionary power takes it to the extent that if the statement is not made in the free exercise of a choice to speak or to be silent, that is the end of it, but once you have got that, as Justice McHugh said in the judgment where he picked up something I had said in Collins’ Case, you have got a statement which has been made in the exercise of a free choice to speak when you come to think about whether or not the fairness discretion is to be exercised.
MR GRACE: There is two different aspects to that, your Honour. The traditional way of looking at the question of voluntariness is to see whether a person has been forced to say the words that come out of that person’s mouth.
BRENNAN CJ: That seems to me to be a radically wrong way of saying it and inconsistent with Sinclair and other cases.
MR GRACE: The Crown repeatedly makes submissions in trial courts to say, “Well, the accused had freedom not to say anything but chose to make a statement.” We submit that a statement can only be truly voluntary in circumstances where it contains admissions against interest in either a covert situation such as here or in a non‑covert situation in a police station if the accused is given the freedom of choice, that is, if he is cautioned and reminded of the right to silence prior to making the damaging statement.
BRENNAN CJ: Are you now saying that this statement ought to have been excluded because it was involuntary?
MR GRACE: No, I am not saying it should have been excluded on that basis. It certainly has never been a matter that has been raised either before the trial judge or before the Court of Appeal. I do not seek to raise it or agitate it for the first time here. I am content to rely upon what we submit is the improper or the fallacious exercise of discretion in this case in the factual circumstances which are not in dispute.
KIRBY J: Do you put that on the basis that the discretion miscarried because the judge did not apply correctly the fairness discretion but alternatively he did not apply a Bunning v Cross discretion?
MR GRACE: No, I am constrained in relation to the issue of the Bunning v Cross discretion because it was never argued that way before the trial judge and it was never argued that way before the Court of Appeal, but we submit that it is still relevant to the exercise of the fairness discretion to take into account what the public interest would be in sanctioning a type of police conduct that is being promoted in this case.
KIRBY J: I see the way that you are constrained by the way the case was presented, but why is it not a better way to look at the matter as a matter of concept, to say you look at the voluntariness, if it is not voluntary, that is an end to the matter? You look then at the fairness because it is not fair you agitate a discretion and that is concentrating on fairness to the accused and then if it gets through that gateway you look at the Bunning v Cross principle to see whether if for other reasons of public policy, quite apart from the accused, it offends society and proper discipline of police and fair procedures and so on and thereby you get to a third gateway. Is that not conceptually a better approach to the matter?
MR GRACE: Yes, I would agree with that, your Honour, and perhaps, and I say this with the greatest respect, in the course of the development of the criminal law or the jurisprudence in this area, both from counsel’s point of view and from judgments of courts, we have been unduly restricted by the division between Bunning v Cross voluntariness and unfairness discretions where there is often considerable overlap and this case may well be one example of that.
KIRBY J: What would be the approach that you would submit the Court should take if that is the correct conceptual framework given that this case seems to have been argued on a fairness basis which appears to be focused on the fairness to the particular accused, not the issues of general principle or public policy which may more properly be considered under Bunning v Cross?
MR GRACE: I would certainly not be against opening up those other areas, but it is submitted that within the exercise of fairness discretion there is still a place for considerations of the public interest. So that one does not need to go that one step further that your Honour Justice Kirby suggested to deal with all relevant factors in the exercise of discretion in this matter.
GAUDRON J: You are really asserting, are you not, a broad general discretion to exclude of which unfairness and public policy are but two discrete aspects?
MR GRACE: Yes, and in my respectful submission that is the approach that might best be warranted in development of the jurisprudence in this area. Your Honours of course will be aware of the development of the area of judicial warnings in sexual cases, Longman being the high point in that area, and Longman’s decision in effect took the position that in an appropriate case it is appropriate to give a corroboration warning and left it to the discretion of the trail judge to determine what was an appropriate case or to give a Longman-type warning. So in this particular area, and I ask this rhetorically, why should we unduly constrain ourselves by divisions between Bunning v Cross, unfairness, voluntariness? Why cannot the whole issue, as Justice Gaudron just ‑ ‑ ‑
GUMMOW J: This is the “why not” school of jurisprudence. Let us concentrate on the “why” school of jurisprudence.
MR GRACE: The “why” school - the reason for the “why”, your Honour, is because it gives greater certainty in the administration of criminal justice. It gives greater delineation of the circumstances which would enliven the discretion to exclude evidence. That is the “why” school.
BRENNAN CJ: I think you can find some consideration of the relationship between the two in the judgment of Justice Deane in Cleland v The Queen 151 CLR 1 at 23 to 24. You need not go to it now. You must keep distinct, must you not, whatever discretion it is to exclude from the question of voluntariness? The statute demands it.
MR GRACE: Yes.
BRENNAN CJ: So your first question has got to be what is the scope of the test of voluntariness and it is only whence you have passed that that you come to any question of any sort of discretion, but if you have passed that then the discretion is to be exercised with respect to a confessional statement that has been made in the exercise of a free choice to speak or to be silent.
MR GRACE: That is correct, your Honour.
BRENNAN CJ: That must say a fair amount, if not conclusively, a fair amount about fairness.
MR GRACE: Yes, I concede that, your Honour. I wanted to take the Court to some examples of cases where one might have thought from first looking at them that it was an exercise of a Bunning v Cross‑type discretion where in fact it was an exercise of the fairness discretion and if I could take your Honours firstly to Pfennig (1992) 57 SASR 507 at page 514 and I will not rehearse the facts in the case. I will go straight to what his Honour. Justice Cox said in a pre‑trial ruling at page 514. Halfway down the page his Honour said:
So this was a clear and familiar case of a man being charged with a serious crime and making it very plain to the police that he was refusing to answer any questions about the matter. No doubt the police could always have asked the accused to reconsider his refusal, notifying his solicitor beforehand so that he could be present, but short of that they were obliged to respect his wishes scrupulously.
Then there is discussion about how the police used a fellow prisoner as an agent and then in the next paragraph:
Ms Vanstone argued that Rose‑Royal’s overtures involved no inducement or threat or illegality; nor is there anything improper about one prisoner giving evidence of a conversation he had with another. Furthermore, some of the accused’s alleged statements were
volunteered. I do not think these considerations do anything to save the evidence. The police set a trap for the accused of an impermissible kind. Any volunteered statements were interspersed with Rose‑Royal’s questions and suggestions and deceptions. It is as though the police, faced with a plain refusal to answer, sent in an undercover police officer in disguise to interrogate the accused or otherwise inveigle him into making admissions. Anything said in response to such a stratagem in the circumstances described would have to be ruled inadmissible, and the result here must be the same.
Now, although it does not appear to have been specifically stated, it appears that the exercise of discretion in that instance was based upon the exercise of the unfairness discretion rather than Bunning v Cross. So that is an example of a situation where there may be some merging of the exercises of discretion.
TOOHEY J: Mr Grace, this judgment is headed (No 1). I take it this was not the point that came before the High Court.
MR GRACE: No. The evidence was ruled out, Pfennig was convicted. The matter came before the High Court on a different issue.
TOOHEY J: So there has been no comment by the members of the High Court on this judgment of Justice Cox.
MR GRACE: No, not as far as I am aware.
TOOHEY J: Thank you.
BRENNAN CJ: How long would you expect your argument to take?
MR GRACE: I would expect another 45 minutes, your Honour.
BRENNAN CJ: Yes. We will adjourn now until 10.15 tomorrow morning.
AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 25 JUNE 1997
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