Rogers v The Queen

[1993] HCATrans 331

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S224 of 1992

B e t w e e n -

GRAEME ANDREW ROGERS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
GAUDRON J

McHUGH J

Rogers 1 27/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 27 OCTOBER 1993, AT 11.19 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC: If the Court pleases, I appear with

MS V.M. BELL, for the applicant. (instructed by

Hovan & Co)

MR R.O. BLANCH, QC:  May it please the Court, I appear for

the Crown with my learned friend, MR R. KELEMAN.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

DEANE J: Yes, Mr Basten.

MR BASTEN:  On 27 August 1988 the applicant was arrested and

was interviewed by police in relation to 14

robberies. He signed four records of interview.

The third contained brief confessions to eight

robberies. Of those eight, two were contained in

an indictment filed in 1989 before His Honour

Judge Phelan. On a voir dire which preceded the

trial His Honour considered the admissibility of

three records of interview and he rejected all

three documents, not being satisfied that that

confessional material was voluntary, and that

appears in the judgment of His Honour at pages 4 to

9 of the application book, to which I think I need

not take the Court.

A further indictment was filed in 1992 which

related to a number of counts, including the six

robberies contained in the third record of

interview which had not been the subject of the

first indictment. The Crown sought to tender the

record of interview on three counts, there being no

other evidence in relation to those counts. That

appears at page 13 of the application book in a

passage commencing at line 13 in the judgment of

Judge Kinchington on the stay motion. At line 13

His Honour noted:

The Crown further says that the only charges

which would fail, should that confessional in counts one, four, six and eight.

material be excluded, would be those contained

There is other evidence in relation to the other

matters. One, six and eight are counts which are

dealt with in the third record of interview.

There is also evidence in respect of the

material to be tendered on the voir dire to the

effect that no new material was to be tendered by

the Crown other than that which had been tendered

before Judge Phelan. That appears at page 14 at

line 15 where His Honour notes that the Crown had

indicated the same evidential material would be

relied on on the question of voluntariness.

Rogers 2 27/10/93

The matter was dealt with by way of an

interlocutory application and judgment. His Honour

Judge Kinchington rejected an argument that the trial on those counts, or indeed any of the counts,

should be stayed. An application for leave to

appeal from that judgment was made to the Court of

Criminal Appeal under section SF of the Criminal

Appeal Act, and leave was granted, His Honour the

Chief Justice noting at page 23 firstly at line 5 that he considered that this was an unusual case.

He then sets out the special nature of the case,

and at the bottom of page 23 His Honour accepted

the submission -

that the point sought to be raised is one of

general importance and one which does not
appear to be directly covered by authority of
this Court or binding on this Court.

on two bases: firstly, that there is a claim based

On the hearing of the appeal, the judgment of

on issue estoppel running against the Crown; and

secondly, that the material should be excluded on

the grounds of an abuse of process. If I may take

Your Honours to page 32 in the application book,

the consideration of the question of issue estoppel commences at the bottom of the page. Over the page

at page 33 His Honour refers to the need to

identify the precise issue to be determined as that

which had been relevantly determined by

Judge Phelan. He says:

To treat the ruling of Phelan DCJ, following

the voir dire in the earlier trial, as itself

being a judicial determination giving rise to

an issue estoppel, would be contrary to the

decision of this Court in Blair.

What His Honour means, I think, by that appears at

page 34 at line 10 where His Honour, having noted

that there was no final determination in Blair's case because the trial had aborted, noted that -

the first trial judge's ruling on evidence was
not itself, and standing alone, a judicial
determination disposing of an issue.

That matter is one which was considered in two cases which His Honour does not deal with in

relation to the question of issue estoppel, but

does turn to in relation to the argument concerning abuse of process, namely, Bryant's case and Hunter.

May I take the Court briefly to Hunter's case in order to establish the way in which Their Lordships

analysed this matter in Hunter, a manner which was

followed by the Court of Appeal in New Zealand in

Rogers 27/10/93

Bryant. In Hunter v Chief Constable,

(1982) AC 529, at page 542 - in the middle of the

page in a discussion as to the finding on the voir
dire in relation to the record of interview,

Lord Diplock said at line D:

In the instant case the relevant final

decision by a competent court in which the

identical question sought to be raised has

been already decided is the ruling of Bridge J

on the voir dire in the murder trial, that

Hunter's confession was admissible.

The Court will recall that this was a civil claim

for damages arising out of an assault alleged to

have preceded the confession. His Lordship refers

to Watson and says -

his ruling became final when the trial ended

with the return of the jury's verdict of

guilty -

I am sorry, I should have read the material in

between at lines D to E:

Initially his ruling may have been provisional

in the limited sense that up to the time that
the jury brought in their verdict he had power

to reconsider it in the light of any further

evidence that might emerge when the whole

question of the circumstances in which the
confession was obtained was gone into again

before the jury.

He then says that the jury became final on the

verdict being returned, but it is clear from what

His Lordship says at the bottom of the page at

line H that -

technically it was only the first of those

decisions -

namely that on the voir dire -	that eventually qualified as the final
decision against him by a competent court upon the very question that he seeks now to raise.

So that there was a provisional finding subject to

it being reconsidered on the basis of further

evidence prior to the completion of the trial. A similar approach is adopted in Bryant v Collector

of Customs, (1984) 1 NZLR 280, and the passage in

Bryant's case appears at page 284, and if I may

just read one sentence from His Honour's judgment

at line 30:

Rogers 27/10/93

Now Judge Callander's ruling at the first trial that the tendered statements were not voluntary and were accordingly inadmissible

was immediately binding on the Crown and

became final when the verdict of the jury was

entered.

So, in my respectful submission, Blair's case does

not foreclose the argument which was put in the

Court of Criminal Appeal in this case in so far as

it may be seen to have some limited application.

In my submission, it should be reconsidered.

The matter is dealt with, if I may put it this

way, by raising first the question of issue

estoppel in the judgment of the Court of Criminal

Appeal, and that approach was open on the basis

that issue estoppel has been found to be available

in criminal proceedings in Australia, at least by a

majority of this Court in Storey's case and

subject, of course, to the principle of mutuality

not being applicable. But the real role of the
doctrine of issue estoppel, in my submission, in

this context in a criminal proceeding, may need to

be reconsidered in the light of the more modern

refinements of the laws relating to abuse of process and unfairness. It may be that the question and the principles underlying issue estoppel are better considered by considering it as

one element of an argument based on abuse of

process, whereby all the technical elements of

estoppel need not necessarily be found for one to

have an unfairness giving rise to abuse which would

justify a stay. That is the second ground on

which -

DEANE J: Taking you back to the issue estoppel, are there

not different questions involved in the two
rulings? Let me give you an example which is not

this case. Assume there was an alleged confession

in which the accused admitted seven different

offences and it was said, "I did admit the first

three which are the ones charged now, but I didn't

voluntarily admit the other four. That was the

result of violence after I had admitted the first

three." On the trial of the first three, the

question would be - you would no doubt edit - "Is

the alleged confession admissible, at least in so

far as it relates to the first three?" And when

you got to the next four, there would be a quite

different question. Now, to finish the question:

if you have a variety of different offences, should

you not treat the overall confession really as

severable, because normally you would think as a

matter of course if you were going to admit it on

the trial of some, you would exclude it in so far

as it dealt with the others?

Rogers	27/10/93
MR BASTEN:	I think the point that Your Honour makes is

similar to that which the Chief Justice raised in

saying that parts of the document would have been

inadmissible because irrelevant at the first trial.

That is undoubtedly so. If I might come back to

this example in order to answer Your Honour's

question.

The issue which was before Judge Phelan

concerned the tender of a document which contained

the confessional material. The act of adopting

that document which was not, of course, the

accused's, but the police's document, was the

signature in this case at the end of the document.

It was the voluntariness of that act which, in my

submission, would govern the question of

admissibility. So that in the facts of this case,

the question of voluntariness necessarily went to

the whole of the document, but I concede that

Your Honour's example would provide a different

analysis, and I would infer a different solution,

and it might well be that the issue would not be

estopped in that case.	In this case we say it is.
Your Honour, if I might turn then to the analysis based upon abuse of process.	The

discussion in the judgment of the Court of Criminal

Appeal, the judgment of the Chief Justice,

commences at page 35 of the application book at

about line 16, and His Honour deals with both

Hunter's case and Bryant's case and accepts that

for present purposes, at pages 37 to 38, it is

really a test of whether the collateral attack is

one which would, as a necessary consequence,

involve a decision which might be inconsistent with

that given in the earlier proceedings. That is the

test of whether or not the collateral attack may

possibly constitute an abuse. His Honour considers

both Bryant and Hunter in some little detail and

deals briefly on page 40 with the possible

relevance of any right of appeal which may or may

not be available to the Crown who may be bound

otherwise by a ruling on the voir dire.
Perhaps I can hand up to Your Honours copies of section 380 of the New Zealand Crimes Act to

which His Honour refers as being the one relevant
in Bryant; and copies of section SA and SF of the

New South Wales Criminal Appeal Act which would

govern these proceedings. It is our short

submission that the availability of an appeal in

this State is more complete than that in New

Zealand, although section SA appears to be in

substance equivalent to section 380 of the New

Zealand Crimes Act. A curious difference of substance between our provisions and New Zealand

seems to be that perhaps in a way which we would

Rogers 6 27/10/93

not tolerate, the New Zealanders are prepared to
upset an acquittal in some circumstances.

The other point I note at this stage is that section SF which provides a basis of appeal as of

right to the Crown in relation to interlocutory

orders and judgments in section SF(2) was a

provision which was not in the legislation at the

time that Blair's case was handed down in the Court

of Criminal Appeal in 1985.

Without taking Your Honours through the detail

of those provisions, may I come to what I

understand to be the crux of His Honour's

conclusion in relation to abuse of process. It

comes at the end of His Honour's judgment from

page 41 line 24 through to the end, and adopting

the terminology of Reichel v Magrath, His Honour

basically finds that there is an inadequate degree

of scandal attached to the practical inconsistency

which might result from varying determinations on

the voir dire. In my submission, it is there in

relation to this particular aspect of the case that

His Honour erred, and may I ask rhetorically: why

would there not be a sufficient scandal if in a

case such as this, where the Crown has no other

evidence, a man could go to gaol for a lengthy

period solely on the basis of confessional material

which has already been rejected as involuntary by

one judge in a decision which is binding on the

Crown?

It is in this context, perhaps, that it is

worth recalling that the rules relating to

involuntary confessions provide but one element of

the general principle of the criminal law to ensure

that procedural matters are not unfair to the

accused.

McHUGH J: But that is only one side of it. Suppose in this

particular case Judge Phelan had held that the

put him up again on the charges that they have put record of interview was admissible and your client had been convicted on those charges, and the Crown him up on. Would you submit it was an abuse of

process for the Crown to say that you were bound by

the judge's ruling at the first trial in respect of
the involuntariness of this confession? That is

the other side of the coin.

MR BASTEN:  I agree that there would be a practical

inconsistency seen between the two rulings if the confession was thrown out at the later trial, and

if one were to apply a doctrine of mutuality that

would follow. It is clear from comments in

Storey's case that that principle does not apply

and that only the Crown is bound by an issue

Rogers 7 27/10/93

estoppel. For the same reasons that the Court was

minded in Storey's case to so hold, in my

submission, the reasoning would apply to stop there

being any abuse in relation to the accused

challenging the voluntariness of the second trial,

and it really comes down, I think, to the policy

behind establishing fairness against the Crown, as

it were, rather than against the accused.

McHUGH J:  What do you mean by "fairness", in this context?

I know the word "fairness" is used frequently but

what does it mean in a concrete situation such as

this?

MR BASTEN:  In terms of the way in which the criminal law

has treated confessions, I suppose using the phrase

in Warracksaw's case, one of the earlier cases, the

confession which is not seen to be voluntary comes

in questionable shape and it is a rule governing

the way in which the Crown prosecutes criminals or

people suspected of crimes that requires very great

care to be taken, but where the material comes from
their own mouths it should not be available to the

jury as the basis for conviction unless it has been

properly obtained. The fact that the Crown

establishes in one case that it has been properly

obtained does not, in my submission, lead to an

abuse of process if in subsequent cases where the
accused, for reasons best known to the Crown, is
coming before another court in relation to the same
confessional material should be entitled to, again,

challenge that material.

This is a case where one can indeed ask why,

if one document contains confessions of numerous

crimes, some only should be put up in one

indictment; others reserved till later. That is a

decision made by the Crown. It may be for very

good reasons. But if they lose the point in the

first indictment they should be bound by that

umpire's decision. It is not in the accused's

hands to determine how the charges come before the

jury. So, in my submission, the logic does not

follow that he should be bound by an adverse

finding in the first case. May I just give the

references to Storey's case, 140 CLR 365, in the

judgment of Justice Gibbs the lack of mutuality is
referred to at page 380, half-way down the page

where he says:

It can hardly be denied that it would be most

unfortunate if an issue estoppal could be

raised against a person accused of a serious

crime.

At about point 6 or 7, His Honour says:

Rogers 8 27/10/93

This objection is again not insuperable since the law, not being strictly logical, may apply

to doctrine against the Crown but not against

the accused.

And there is a similar passage to be found in the

judgment of Justice Murphy at page 413 at about

point 5.

Your Honours, this was also an approach which

was adopted in the House of Lords in Humphrys case,

(1977) AC 1, which I have not given Your Honours

for this purpose, where Their Lordships found that
estoppel did not apply in the criminal law in

England but, nevertheless, in considering rules of

abuse of process, held that such a policy would run

against the Crown but not against the accused, and

that appears at pages 32 to 33 in the judgment

speech of Lord Hailsham, and I think elsewhere in

the judgments of Their Lordships.

I was also saying, Your Honours, that this

arises in the context of confessional material and

I was simply intending, in the same vein, to refer

to one sentence in the judgment of

Chief Justice Mason in Jago, 168 CLR 23, at page

27 - and again I need not take the Court to the

judgment, but His Honour, after referring to

Connelly's case and Lord Devlin's statement, that:

a general power, taking various specific

forms, to prevent unfairness to the accused -

again not suggested to be a mutual power -

has always been part of the English Criminal

law.

That is the end of the quotation, and the

Chief Justice comments:

Two of those specific forms included the

doctrine of autrefois and the rule requiring
that a confession to police be voluntary if it

is to be admitted into evidence.

So that, in my submission, the concern which was

raised in Hunter's case and Bryant's case, relating

specifically to inconsistencies in relation to the

admission of confessional material, has a far

greater consequence in terms of the public

perception of the administration of justice, than

is conceded by the Chief Justice in this case.

McHUGH J:  I must say I would have thought that the public perception these days is that the system of

Rogers 9 27/10/93

criminal justice is too heavy and stacked in favour

of the accused.

MR BASTEN:	Your Honour, it may be that despite public perceptions of how the criminal law operates, it is
necessary, nevertheless, to maintain a fair system
that persons accused of crime may also have public confidence in the administration of justice, but I take what Your Honour says.
Might I finally refer briefly to the recent decision of the Court in Walton v Gardiner,
(1993) 67 ALJR 485, and I hand up copies. The
point I seek to make is that the Court has considered on three occasions in recent years the
grounds on which a stay of proceedings may be
based, including Jago and Williams v Spautz and, more recently, the decision in Walton v
Gardiner, and at page 492 there is a discussion of
the proposition that there is no narrow power of staying based only upon cases where there is an improper purpose or inevitable unfairness.

The Court will not doubt recall that in a

judgment of the Chief Justice and Your Honour

Justice Deane and Justice Dawson, approval was

given to the passage from Lord Diplock in Hunter's

case, set out in the middle of page 493, and also

to the remarks of Justice Richardson in the New

Zealand Court of Appeal in Morevao at the top of

column two at page 493, but significantly, for

present purposes, in a passage in column one at

about point 3, the Court accepted a proposition

which involves similar principles to that espoused

by the applicant in this case:

Yet again, proceedings before a court should

be stayed as an abuse of process if,

notwithstanding that the circumstances do not

give rise to an estoppal, their continuance

would be unjustifiably vexatious and

oppressive for the reason that it is sought to	litigate anew a case which has already been
disposed of by earlier proceedings.

That is then followed by the quotation from Hunter's case, which dealt with a voir dire

determination and, in similar vein, is the extract

in the second column from Your Honour

Justice Deane's judgment in Jago where, again,

Your Honour referred to the:

unfairly and unjustifiably oppressive -

conclusion that might flow from

Rogers 10 27/10/93

Multiple prosecutions arising out of the one set of events but separated by many years -

and so on.

So that what I suggest in that regard is that,

if in fact there has been a ruling, binding on the

Crown, made at the conclusion of a formal voir

dire, it is not clear that a later reversal of a

verdict on grounds not touching the issue of

voluntariness, a matter considered by His Honour
the Chief Justice, could affect the unfairness

inherent in allowing the Crown to relitigate the

issue. If that relitigation be seen as a head of

abusive process, then it is one of the basic

principles that a stay should issue to stop the

prosecution.

In my submission, it would be a proper case

for the Court to consider an application for

special leave to reconsider these matters, given

the two important aspects: firstly that there is no other evidence upon which the accused might be convicted and no other evidence in relation to the

voir dire and the question of voluntariness.

DEANE J: Thank you, Mr Basten. Yes, Mr Blanch.

MR BLANCH:  May it please the Court. The first matter that

I would put to the Court in addition to the summary

of argument that has already been advanced is this,

that the Court has already noted, as the

Chief Justice did in the course of his judgment,

that the confessions relied upon in this

prosecution are not the same confessions that were

relied upon in the earlier trial although they are

contained in the same document.

That is an important distinction perhaps if

one is looking at the narrow issues of issue

estoppel which my friend might seek to broaden in

the sense that issue estoppel is ordinarily a

doctrine that relates to a prior decision of a

tribunal with final jurisdiction in the matter

which settles the issue of fact or law between the

parties. There is some intellectual attraction to

the idea that that, as a doctrine, might be

extended in a criminal trial to a voir dire
examination where a trial judge had heard evidence

and made a judgment about that evidence although,

of course, the trial judge in an ordinary case of

trial by jury is not the tribunal which makes a

final decision.

DEANE J:  What is your approach to Mr Basten's point that

the real question in the case was not as to

Rogers 11 27/10/93

different parts of the document but as to the

voluntariness of the single signature?

MR BLANCH:	Your Honour, my friend raises that point in the context of seeking to argue that the appropriate
way of looking at cases such as this is perhaps not
to restrict it to issue estoppel but look at
matters as a question of abuse of process and when
you look at the whole of the proceedings, whether
you can then assess the matter as an abuse of
process. That seems to have been the way
Lord Diplock looked at the matter in Hunter's case
and in many ways there is a certain attractiveness
about doing that rather than looking at issue
estoppel which has certain technicalities attached
to it but perhaps has no real place in the
administration of the criminal law.

MCHUGH J: But leaving aside any question of technicality,

you say the real issue was, "Was the confession the

subject of the Kinchington indictment, made

voluntarily?", and you say, "Well that is a matter

that has never been determined and never looked

at". Why is not the real question, "Did the

accused voluntarily sign this record of interview?"

MR BLANCH:  Your Honour, that is certainly a question that

can be asked but ultimately the question then

becomes, "Does the attempt by the Crown to reopen

that question in front of a second judge, does it

amount to an abuses of process?"

McHUGH J:  Why should it not, when that issue has merged in

the verdict of not guilty? It would be a different thing if the jury were discharged and you had to go before another judge. Certainly civil cases - I

have been in numerous cases at the bar where in new

trials there have been different rulings on

admissibility of evidence from there was at the

first trial. No one ever suggests - although I did

once argue in a case called Justin that there was	an issue estoppel which was correctly rejected by	the Court of Appeal - but once the interlocutory
ruling merges in the verdict of not guilty or
guilty as the case may be, why should not the issue
be disposed of as between the Crown and the
accused?

MR BLANCH:  Your Honour, that is a little more difficult in

a case such as this than in the case of Hunter. In

the case of Hunter, clearly the only issue that the

jury was to determine was whether there was any

possibility of involuntariness in the confession

and they were told to acquit if they were. They

convicted. They clearly settled that issue between

the parties. In this case, there was an

interlocutory ruling. Those admissions were

Rogers 12 27/10/93

excluded, they were never considered by the jury at

all, and the accused was acquitted.

DEANE J: But does the Crown start here with the position in

the second trial, "Well now look, this document

contains confessions of the first lot of offences.

It is established beyond question that he is

innocent of those, therefore this document must be

treated as false in relation to those", or does the

Crown come along and say, "Looking at the document

as a whole, you disregard the fact that he is not

guilty of half the offences it is said here that he

admits", or do you say, "We will start all over

again on the voir dire"?

MR BLANCH:  We do start all over again on the voir dire on

that basis.

DEANE J:  "And we say he is guilty of the ones that he was

acquitted of"?

MR BLANCH:  No, Your Honour, they do not become relevant

because they are excluded from the document.

DEANE J: But what if he says, "Look, this document contains

confessions of matters of which it is now

established, I am completely innocent".	What does
the Crown say then?

MR BLANCH:  Your Honour, he could say that and the Crown is

bound by the verdict of acquittal, but the point

that I was making to Justice McHugh, the verdict of

the jury which is the final tribunal did not - - -

DEANE J:  You get the point I am making and that is, the

Crown really would be in the position where they

would be saying, "We are bound by the verdict of

acquittal but", nod nod, "now you see you should

have taken this, you know what you can think about

those".

MR BLANCH:  Your Honour, the point, however, is that the

tribunal that determined the admissibility of the

confessions was not the final tribunal.

McHUGH J:  Does that matter? Because, you opened this case

in the first trial before Judge Phelan. You said,

"This man is guilty of these crimes because he has

voluntarily confessed to them", and ultimately that

issue went against you, as the jury's verdict

records. It is proved. It went against you

because the trial judge made a particular ruling

but, ultimately, his ruling merged in the verdict.

MR BLANCH:  Yes, I understand what Your Honour has said

about that. The only other point that I would wish

to make about these is this, and it arises from the

Rogers 13 27/10/93

New Zealand case and a passing reference by

Chief Justice Gleeson about the New Zealand case,

and my friend's reading out of section 380 of the

New Zealand Act. There is a difference in all of

those cases, and the difference is that where there

is a ruling such as that in New Zealand, clearly

from the Act, the point of law can be reserved to

the Court of Appeal.	There can then be an
acquittal.	However, because the point of law has

been reserved to the Court of Appeal, it is open to

the Crown to get a ruling from the Court of Appeal

to say that that ruling was wrong, therefore the

acquittal is wrong, go back and have a retrial.

There is an avenue open to the Crown to

correct any error or the disagreement with the

ruling of a judge which might happen during the

course of the proceedings. The essence of that

point is that the judge's ruling then does become a

final tribunal which is open to attack. If it is

attacked, then there is another ruling on it and

that would be the end of the proceedings, but if

that rule were to be introduced into the

New South Wales context there would be these

rulings against which the Crown had no recourse at

all, and then there would be this - but that is a

policy argument in the context of extending the

matter and I cannot put it any higher than that.

DEANE J:  In this matter there will be a grant of special

leave to appeal.

AT 11.59 AM THE MATTER WAS ADJOURNED SINE DIE

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