Tofilau, Marks, Hill & Clarke v The Queen
[2007] HCATrans 204
•17 May 2007
[2007] HCATrans 204
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M144 of 2006
B e t w e e n -
LEMALUOFUIFATU ALIPAPA TOFILAU
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Melbourne No M145 of 2006
B e t w e e n -
MATTHEW JOSEPH MARKS
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Melbourne No M146 of 2006
B e t w e e n -
SHANE JOHN HILL
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Melbourne No M147 of 2006
B e t w e e n -
MALCOLM JOSEPH THOMAS CLARKE
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 17 MAY 2007, AT 10.17 AM
Copyright in the High Court of Australia
__________________
GLEESON CJ: I think you were part heard, Mr Coghlan. Is that right?
MR COGHLAN: I was, your Honour. I had been dealing with the proposition really of basal voluntariness at the time we adjourned and the question had been raised by the Court of what the attitude was in civil cases, contract cases, particularly as it related to the question of duress. We referred to some articles in the Law Quarterly Review. That had arisen in the context that your Honour the Chief Justice had raised directly the question of how do we judge the overbearing of the will? Are we dealing with that as a philosophical or psychological proposition? Very difficult for judges to decide.
It seems true, at least in dealing with the notion of duress in the law of contract, that the courts have moved and stayed away from the proposition of the overbearing of the will, based largely on the notion, but not completely, that because in result the contract would only be voidable, that seems to not reasonably fit with the notion that it was a contract entered into with the will being overborne for, if that had been established, you would have ordinarily regarded a contract as being void or it ought to be void rather than voidable.
In truth, it is submitted that it is analogous with very close to the inducement proposition that relates to the law of voluntariness; inducement held out presumption of involuntariness, the test being almost entirely objective, avoiding the notion contained in basal voluntariness of needing to enter into the mind of any particular confessionalist as to what operation duress, threats and other matters might have had on them to decide the question of basal voluntariness.
GLEESON CJ: Yes. Your very use of the word “mind”, which is an expression that comes very comfortably to a lawyer, would be regarded by a psychiatrist as extraordinarily old fashioned, and by a philosopher.
MR COGHLAN: Entirely, your Honour.
HAYNE J: These things were looked at by Justice Windeyer in Ryan 121 CLR, particularly at 244, which is a Code case about voluntary act and reflex acts. As his Honour said:
That an act is only punishable as a crime when it is the voluntary act of the accused is a statement satisfying in its simplicity. But what does it mean?
His Honour goes on to analyse the various ways in which “voluntary” can be used.
MR COGHLAN: In the notions of non‑insane automatism we have struggled greatly with the notion of how voluntariness operates in that section of the law. We are happy enough to say conscious, voluntary and deliberate act needs to be proved elementally as part of a crime, but what point do we go to from there?
HAYNE J: Does it then suggest that the judge considering the question of basal voluntariness in a case where you have first examined the questions about person in authority and statements made to persons in authority, which have their own particular rules, does the judge relevantly ask two questions cast in terms of, was there freedom to speak or stay silent? Was there freedom about what was said?
The two questions may be required because there may be a distinction to be drawn between the case of the person who is told, “I will give you a million dollars if you tell me the truth about event X”, and the case of the person who is told, “I will give you a million dollars if you confess that you killed Y”.
Now, freedom to speak or stay silent is much affected by threats. The line between threat and inducement is not bright, but if there is motivation to speak, does that mean there is no freedom to speak or stay silent. Is not that the area for debate?
MR COGHLAN: It has become the area – well, it probably was always the area for debate, your Honour, and it may well be that is why the discretions have developed in the way that they have, that we simply found the question, the basal voluntariness issue, too hard, and that what really developed in the law and what we saw was the necessity for the development of the discretions to exclude evidence.
KIRBY J: The difficulty with that is that it then depends very much on the reaction and I might say the value system of the individual judge. The law is giving very little guidance except as to the matters that the judge is to take into account. Take, for example, Justice Murphy’s view that false representations and other trickery will virtually always render a statement involuntary because trickery has impeded on the operation of what you call “the mind” to reach a conclusion with a full will.
MR COGHLAN: But, your Honour, in a circumstance that that trickery came from a person recognised by the law as being a person in position of authority, we would deal with easily enough because we would account it as being so akin to and part of the inducement rule that it would be taken to be involuntary in the appropriate circumstances.
GLEESON CJ: One of the problems is that from the point of view of the person who is being deceived, there is no relevant difference between an innocent misrepresentation and a fraudulent misrepresentation. There might be a world of difference when you are judging the conduct of the person who makes the misrepresentation, but no difference at all from the point of view of the person to whom the untrue representation is directed, and yet section 410 of the Crimes Act (NSW) was interpreted for 100 years as excluding confessions induced by fraudulent representations, but not confessions induced by innocent misrepresentations.
MR COGHLAN: There is some difficulty attended, your Honour, it is submitted, by both the notion that was in section 410 of the New South Wales Act and the notion that is in section 149 of the Victorian Act, that grew out of the idea that it had simply become too easy to have confessions excluded on the basis of inducement held out.
KIRBY J: As Chief Justice Barwick pointed out, there is always this fundamental problem, the purpose of the criminal law to secure convictions, if it is based on reliable evidence, and the purpose of the law to ensure that it is not bought at too high a price. That is the core problem in this area.
MR COGHLAN: Your Honour, the matters though identified arising really from Baldry’s Case onwards, which is discussed in Ibrahim which is discussed in McDermott, really was faced with the law coming potentially in disrepute for the too easy exclusion of evidence. The response in Victoria, and similar jurisdictions being section 149, to say not merely any inducements, only inducements calculated to get a false confession, section 410, they grew up for a particular purpose at the time. Section 149 has been interpreted out of existence effectively. I mean nobody can find cases where it has been applied to lead to the admission of evidence. But in the present case, in each of these cases, struggling with the test as it is for basal voluntariness, the trial judges found it met in all the circumstances, all the evidence, hearing each of the accused, came to the conclusion that basal voluntariness was made out.
We finish up in the strange dichotomy in this case that if the question of person in authority is found against us you would actually have the notion of presumed involuntariness alongside – and it is only presumed, only a presumption – you would have running alongside it, an actual finding of voluntariness. If Lee’s Case be right that it really is the one rule, voluntariness is found in these cases in any event, even in the face of presumed involuntariness. Is that task difficult for trial judges? I suspect it is very difficult.
The question might be that the response is the potential moving away, that is while retaining the rule of inducement, that the basal voluntariness rule be seen reflected not any longer by that rule as such, but by a proper consideration of the discretions because the distinction for many of the basal voluntariness cases, the oppression cases, and the operation of an unfairness discretion are very close.
GLEESON CJ: The Law Reform Commission got rid of the idea of voluntariness altogether, did it not, replacing it with objective tests of the kind you mentioned and then adding the discretion in?
MR COGHLAN: Yes, that is so, your Honour, and they are objective tests very close to what we would call the inducement rule. That is the part of it that remained. Foster is a very good case that demonstrates the closeness of the two propositions. The analysis of the majority was analysis that led to exclusion ‑ ‑ ‑
KIRBY J: I do not remember the details of Foster.
MR COGHLAN: It is the young Aboriginal boy held for a long time, your Honour. It is one of the cases following on not long after Cleland and the question was - he had been held over a very long period of time in very difficult circumstances to lead the majority to say the confession should have been excluded in the exercise of the discretion.
Justice Brennan, as he then was, in a different analysis, said there was really a question of voluntariness to be addressed and it was basal voluntariness and it was to be addressed on the basis of the oppression that was involved in keeping a young man detained in these circumstances and again referred to the passage from Collins – it has oft been referred to about all the factors that need to be looked at when judging the question of voluntariness including age and so on.
But the line there - it is only illustrative and I only refer to it as being illustrative of how close the line is now in very many of the cases between basal voluntariness on the one hand and the exercise of the discretion, call it in a compendious way the unfairness discretion, particularly relating to that part of the unfairness discretion which recognises unreliability as a feature. If the underlying basis of the voluntariness rule is reliability, as seems to have been said perpetually that that is reliability, we have now taken that on and rightly taken it on in the discretionary rule as well. So it occurs in both places.
The difference, however, is, and in a sense the difference between these and the civil cases is, it is for the Crown to prove voluntariness. So that a basal voluntariness went in the form that we presently recognise it, the overbearing of the will, and I wonder in relation to the way that that test is put that if what has to be is that the Crown has to prove on the balance that the will was not overborne, is that a slightly easier question than proving the will was overborne.
It has not been particularly easy I suspect for trial judges but there is a difference, that is, if there be an evil in saying no longer need for the basal voluntariness rule as we have understood it, let it be taken care of in the way that we have now developed the discretion, it would be the criticism that said you have put the Crown in a more powerful position, that is, the Crown had to prove voluntariness. That may have occurred in the Evidence Act reforms to that extent.
KIRBY J: I have forgotten how the Law Reform Commission and the Evidence Acts changed this, but I thought there was a lot going for what this Court said in Swaffield and Pavic. You go through three gateways. First of all, you go through the voluntariness gateway, which is not just that we do not have torture in Australia to extract confessions, but that there has to be an exercise of the will in the context of an accusatorial system of criminal justice, that people have to have the right to keep silent. Then you get through that and then you have the reliability question, whether what has been put before the Court looks as though it is safe and an accurate record. Then you still have to get through the third gateway of the public policy considerations where discretions come in.
It was quite a logical – it built on all the old law but it sort of brought it together in what seemed quite a logical, to me, and I think the whole Court was unanimous about the approach. Chief Justice Brennan suggested it during argument and then the Court embraced it, but it may have gone out the window with the new uniform Acts.
MR COGHLAN: I do not think particularly, your Honour. I think there is recognition of ‑ ‑ ‑
KIRBY J: But if voluntariness is now dealt with in a different way then you do not go through these three gateways which seemed to have a logic about it. If you torture people and get confessions that way or if you, in one sense, ignore the fact that they have a right to remain silent, well that is preliminary and that is in one way of looking at it a public policy consideration, but it is sort of fundamental. Then you deal with the reliability. Is it a safe record and so on and then you have the final question of whether you do not want police engaged in this type of trickery or deception.
Do not forget that Swaffield was a case where the trial judge left the evidence in. It is very difficult. I can understand for trial judges faced with these big trials, and you have what looks to be totally reliable evidence, it is asking a lot to keep the evidence out, but the Court of Appeal of Queensland in Swaffield said that it should have been excluded and this Court affirmed that. We were unanimous on Swaffield.
MR COGHLAN: Not quite unanimous on the Victorian case of Pavic, your Honour.
KIRBY J: No, there was one very notable dissent in that of Mr Pavic. He was tricked.
MR COGHLAN: Your Honour, if I can say whether it requires, with the greatest respect – the logic in Swaffield and Pavic is perfectly clear. I mean, it is a perfectly satisfactory analysis of what needed to be decided but ‑ ‑ ‑
KIRBY J: The fact that there was a dissent is simply part and parcel of the nature of the evaluative judgments that have to be made in these cases?
MR COGHLAN: Exactly, your Honour, and that is merely a fact of history in that sense, but the question still remains – I have never been entirely sure as to whether or not in the modern law we have not in very many cases simply stepped over the question of voluntariness in any event and gone straight to the discretions. Why, because it is simply easier. It is easier than dealing with the notions of the overbearing of the will. If you have a simple case of inducement held out by a person in position of authority, apart from the subjective elements that enter into this case in particular, those subjective elements related to what the confessionalist knows about the position, it is objective in the way that it operates and it is pretty simple.
The discretions are not quite so objective but have a whole lot of the objective elements about them that basal voluntariness does not have, and it may be that in very many cases we have simply gone to the question of the exercise of the discretion, because the finding must be in Foster by the majority of the court that they were dealing with a voluntary confession because they moved to the question of the exercise of the discretion. It mattered not in the result because they were so convinced of the operation of the discretion, and I wonder whether in the operation of the law we do not in any event go to the discretion without properly considering perhaps the question of voluntariness. We do not go quite through the first gate that your Honour says arises out of Swaffield and Pavic.
KIRBY J: Do not be too surprised about that because it has been said for centuries that it is very difficult for the law to know what is in the mind of people and therefore it is more comfortable to look at a number of public policy considerations than to be trying to work out whether a young Aboriginal boy in police custody for a very long time actually had an exercise of his will. How can a judge tell that?
MR COGHLAN: Except by the judgment of the oppressive circumstances, your Honour, I suppose.
GUMMOW J: Foster is one of those cases that did not achieve election into the CLRs. I think it is reported in 67 ALJR 550. I think Mr McArdle had a copy.
MR COGHLAN: That is it, your Honour, but it was in ‑ ‑ ‑
GUMMOW J: It was referred to in Swaffield.
MR COGHLAN: Swaffield and Pavic is a useful case for a number of reasons, not the least of which is the gathering together of all of the authorities that were then involved in the question of voluntariness and involved in the question of the exercise.
KIRBY J: Did the accused argue voluntariness in Swaffield and Pavic?
MR COGHLAN: No, your Honour.
KIRBY J: I do not think so, and I must say I had the same reaction as you when reading it through. Could you not say that Mr Pavic, who thought he was talking to his bosom friend, was not really voluntarily confessing to him, exercising his will, but that just was glided over and it went through reliability straight to the policy discretions.
MR COGHLAN: Yes, but because the Court was examining the whole issues in Swaffield and Pavic, the whole Court dealt in turn with the question of voluntariness first, because it had to be taken on board in that way and in that sense ‑ ‑ ‑
KIRBY J: It is not argued. It is very difficult for a court to say, “Well, we do not care what the parties say. We are going to deal with this as a voluntariness question”.
MR COGHLAN: But, your Honour, I suspect it came into the development of the argument in the way that it was put in Swaffield v Pavic because it is what led to the identification of the discretions and the way that they were to be exercised ‑ ‑ ‑
GUMMOW J: If you look at page 160 about six lines from the bottom:
The judge (Judge Nase) declined to exercise his discretion to exclude the conversations from evidence on grounds of unfairness.
Then if you go to the next page about the middle of the page:
Coldrey J declined to exclude the conversation between Pavic and Clancy from evidence on grounds of unfairness.
So that set the framework of the case.
MR COGHLAN: There is no doubt, your Honour, and it appears in a number of the judgments, that the question of voluntariness was not before the Court. It only fell for discussion in the way that it did as the preliminary into the question of the exercise to the discretion.
GLEESON CJ: The Australian Law Reform Commission in its 1985 Interim Report in paragraph 764 said:
It is not proposed, however, to recommend retention of the voluntariness test. It is unsatisfactory because of uncertainty about:
·the precise meaning of ‘voluntary’ and the related concept of ‘free choice’ in the test -
One of the reasons it is sometimes difficult to answer a question is that it is difficult to understand the question.
MR COGHLAN: That is so, your Honour. It is submitted they are more fundamentally about basal voluntariness than it is about the presumed involuntariness that arises out of the inducement rule. So the inducement rule has not – we simply took the view that inducements would lead to unreliable confessions. If that was the view of it, the law would exclude, regard as inadmissible such confessions, non-voluntary. Now, that is not such a hard test. The hard test is the next part of it, overbearing of the will or right to remain - to speak or not speak.
KIRBY J: If you look at paragraph 76 in Swaffield in the joint reasons it says:
The wider the operation given to the principle that, to be admissible, a confession must be voluntary, the less scope there is, in practice, for the exercise of the unfairness discretion.
That is understandable because if you say we are going to deal with torture and trickery and so on under the public policy discretions and that we do not want to have as a matter of principle torture or police deception and so on, then you do not get into the semi-theological questions of whether the mind had gone with the words, which are very difficult to be sure of. Different people will react to that problem in a different way, as I did in the Pavic Case, but on the other rubric of the public policy.
MR COGHLAN: That is the path, your Honour, that the Law Reform Commission has gone down and that is the path that the uniform Evidence Act preserved.
KIRBY J: But it does not seem very congenial in principle to exclude, as it were, a fundamental threshold point, say, of excluding torture, confessions extracted by torture just assume, or a full police inducement, “You confess and we will get you a light sentence”. That just seems, if you have been brought up in the old law, a sensible threshold question. Then you get to reliability and then you get to the discretions. But I can understand why following, in a sense, the way courts have been dealing with it, the Law Reform Commission moved to deal with the voluntary questions under the public policy discretionary issue.
GLEESON CJ: No, I was not intending to suggest that at all. What they did was to deal specifically with violence, threats and inducements in one section and then they had these discretions in the others. What they deliberately decided not to do was retain this concept of basal voluntariness.
MR COGHLAN: That is so, your Honour, and on the rationale and on the way your Honour raised when we were last here - how do we decide the notion of - and the result of the contract cases saying at least in part that is an impossible decision.
GLEESON CJ: As I understand the point they ultimately reached in relation to duress, they said “We will try and get away from this idea of wills being overborne because we do not understand what that means. What we will do is say certain kinds of conduct will be treated as duress and will vitiate the contract.
MR COGHLAN: That is why I said, your Honour, that is close then to what we have regarded as being the inducement rule rather than ‑ ‑ ‑
GLEESON CJ: It is section 84 of the Evidence Act (Cth) that now deals with admissions induced by violence and certain other forms of conduct. They would previously have been treated – and no doubt still can be treated – as aspects of voluntariness, but what they did was to get away from the concept of basal voluntariness.
MR COGHLAN: In the way that it is expressed the onus is still on the Crown to demonstrate it, your Honour, and it remains for the Crown to prove it under section 84 and then 85 relates in a different way to how confessional evidence is to be.
GLEESON CJ: But how do you deal with the example that was given – I think it was given by Sir Owen Dixon, maybe it was somebody else, in one of the judgments – of the person who makes a confessional statement to somebody masquerading as a religious confessor? Do you deal with that under the rubric – forget the Evidence Act for the moment – of basal voluntariness or do you deal with it under the discretion?
MR COGHLAN: I would deal with it under the discretion, your Honour, because it might depend on who the person was who made the pretence.
GLEESON CJ: Assume it is not a person in authority.
MR COGHLAN: I think it is very hard to say – if we had to deal with it on a voluntariness basis, basal voluntariness would be the issue.
GLEESON CJ: What do you mean? Do you ask yourself whether the person intended to make the statement? In one sense of course the person intended to make the statement.
MR COGHLAN: Asking the question, was the will overborne, was it done in the right – knowing your right to remain – to not need to make any admission, but since it did not involve the authorities, how do we make that of application in any event. It fits better with the exercise of the discretion, it is submitted, your Honour.
KIRBY J: If you search in Swaffield for what was the basic reason that this Court upheld - the majority view of the Court of Appeal of Queensland – remember Justice Pincus dissented – it is found at paragraph 98 in (1998) 92 CLR 159 at 203 – it says:
In the circumstances of this case, the admissions were elicited by an undercover police officer, in clear breach of Swaffield’s right to choose whether or not to speak.
But it seems to be being dealt with under the public policy or discretionary basis rather than a voluntariness basis because of the way the case was argued. Their Honours go on to say:
The Court of Appeal was right in its conclusion and this appeal should be dismissed.
So the essence of it seems to be the right of the accused to choose whether or not to speak, which is an attribute of our accusatorial system of criminal justice.
MR COGHLAN: Your Honour, if that is what the Court of Appeal in Queensland said, and I have not read that judgment, that is the language of voluntariness. That is not the language of the use of the discretion.
KIRBY J: I think you may be right, but the parties in Swaffield, as I recollect, were not arguing voluntariness. You can say it does not really matter, you can also deal with it under the discretionary basis anyway.
MR COGHLAN: It would come into the discretion because it would be part of the behaviour of the relevant authorities, that they did something – that the whole procedure that they adopted was a procedure that many would not be informed of his right.
KIRBY J: But if that is the essence of Swaffield, is that not relevant to the decision in these appeals?
MR COGHLAN: Your Honour, it is submitted that is not the basis on which this Court made the decision that it made in Swaffield.
KIRBY J: Reading the last summation paragraph of the joint reasons, I agreed with that and I think Chief Justice Brennan did. The whole Court was unanimous in the Swaffield appeal, that it would dismiss the appeal from the majority view of the Court of Appeal of Queensland. It is only in Pavic that a difference arose.
MR COGHLAN: But it is clear, your Honour, that was being considered as part of the discretion. There was no argument of voluntariness ever advanced in Swaffield and Pavic, never put on the basis of voluntariness. That language though is language of voluntariness, but it is not language that excludes the operation of discretion.
KIRBY J: Do not forget the trial judge had let the evidence in in Swaffield, but the Court of Appeal by majority said he should not have.
MR COGHLAN: That is so.
KIRBY J: This Court says “clear breach of” his “right to choose whether or not to speak”.
MR COGHLAN: But the majority expressed themselves, your Honour, as I understand it, and referring to those passages that Justice Gummow recently took us to, the arguments were all arguments about discretion. So that is to be seen in the way that it operated in that case as part of the operation of the discretion, not a separate issue of voluntariness. It is only as a separate issue. I am not quibbling, your Honour, with the proposition that he would plainly be entitled to take into account such issues in the exercise of the discretion.
KIRBY J: The normal way you search for a ratio of the case is you first find the judges in the majority and then you look to what it is that led to their orders and if you look into what it is that led to their orders, you normally go towards the very end and see what it is that led to the order in this case. I am just saying that when I am trying to understand exactly what Swaffield stands for, because I joined in that approach and I think I just agreed with the majority and the joint reasons, it does seem to be posited on the right to silence in this country and that if you act in clear breach of a right to choose whether or not to speak, then you run into problems.
MR COGHLAN: Yes, your Honour, we will always give rise to the considerations that take place in the balancing exercise of the discretion.
KIRBY J: But you do not put it as crudely as to say, well, if it is a very bad crime and if the evidence is totally reliable, then we do not worry too much about how it was secured?
MR COGHLAN: Would never go that far, your Honour.
HEYDON J: Why not? I mean, the Bunning v Cross‑type discretion involves that type of analysis, and the Bunning v Cross discretion evolved out of the Lee discretion, the more general type of common law exclusionary power.
MR COGHLAN: Yes, what about torture, your Honour, was really the ‑ ‑ ‑
HEYDON J: In R v Lee the joint judgment does place into the scales the impropriety of the methods used to elicit the confession.
MR COGHLAN: More I was contending, though, your Honour, for the proposition that the seriousness of the crime is a pretty important consideration. I think I was really conceding as a matter of logic it cannot overwhelm the circumstances.
HEYDON J: Not overwhelm, but it must be relevant.
MR COGHLAN: That is all, your Honour. I would still want to maintain that it is a very important consideration.
GUMMOW J: If you can just look at Swaffield for a minute, Mr Coghlan, at page 203, paragraph 97. It was his “right to choose whether or not to speak to the police?” Then paragraph 98:
the admissions were elicited by an undercover police officer, in clear breach of Swaffield’s right to choose whether or not to speak.
Right to silence is like freedom of interstate trade. It is an incomplete statement. Silence to speak to whom?
MR COGHLAN: Yes, and in what circumstances, your Honour.
GUMMOW J: Yes.
KIRBY J: That was the point of distinction in Pavic, that he was not speaking to a police officer though he was speaking to a person who had been wired up by police but was a friend and that person was not subject to the police obligations.
MR COGHLAN: I will come ultimately, after Mr Tehan’s submission, to a more detailed analysis of these matters, but it is submitted in this case that one of the considerations at least when looking at the public policy considerations are that this is no frolic of any individual police officer. This is a decision made to pursue a particular course of a means of investigation based on a technique successfully used and curially approved in Canada.
It fits into a different public policy consideration to most of the cases involving impropriety of police officers which more often than not involve a frolic of their own. Now, that might be different from the way that we view the question of, can you lie and importune and do whatever you like for the means of obtaining a confession when looking at will it be fair to use that confession in the trial, but there will be much more about the public policy considerations that relate to decisions made within a police force to adopt a particular technique and to do so within, as it were, the rules of the police force.
KIRBY J: But the questioners in the present appeals – and I use the neutral word, the questioners – were all, were they not, undercover police officers?
MR COGHLAN: They were, your Honour, yes.
KIRBY J: So they are sworn officers of the police and servants of the community? They are not just friends of the accused?
MR COGHLAN: Yes, but except now in the application to amend by Mr Tehan to add the question of discretion, that issue is only before the Court in the other cases going to the question of basal voluntariness. It is not otherwise before the Court in the other cases. The other cases are principally argued on the basis of a person in position of authority, there being a concession that inducements were held out.
It is interesting in the way the discussion Mr Tehan developed, your Honour, because he was arguing basal voluntariness at the point that the true issue about where does the line crossed into discretion come? Because whenever you want to talk about basal voluntariness you are talking about nearly all the same issues that come into the consideration in relation to the exercise to the discretion to exclude and that is ‑ ‑ ‑
GLEESON CJ: We have not got to discretion yet in this point of the argument because we are hearing your answer to three appeals relating to voluntariness and after we hear you we are going to hear a reply from Mr Holdenson and Mr Lyon and then it will be bye-bye, Mr Holdenson and Mr Lyon, and you and Mr Tehan can fight it out on the discretion.
MR COGHLAN: It might be the first time that counsel for the respondent asked to be excused, your Honour. I am not sure. It is submitted there is a genuine issue about whether in the common law where the actual question of basal voluntariness takes us, but in any event in this case, in relation to the test said to be appropriate now in a number of the cases really from McDermott onwards in Australia, the judges in each of these cases have applied those principles and found basal voluntariness, having considered it first of all on the basis of the question of whether there was a person in a position of authority found against that proposition, found therefore no application of section 149 because it simply did to fit into the framework and then moved on to consider the question of basal voluntariness and came to the conclusions that they reached.
It is submitted it was open to them to do so. They applied all the proper principles and the decisions of the judges were correct and the decision of the Court of Appeal was correct. That really deals with the question of basal voluntariness.
We are left then, in relation to that argument, with the arguments relating to person in position of authority. We have put in reasonably extensive written submissions on the point. We really adopt what has been said by the Canadians, that there has to be at least some subjective element to the proposition ‑ ‑ ‑
HAYNE J: The Canadians seem to have made the person in authority rules do a lot of work. It seems that a lot of the learning is put under this single heading rather than perhaps dividing it up into two, three separate but overlapping elements, as in Australia. So I am not entirely sure what you are taking from Canada.
MR COGHLAN: Your Honour, it is what has been said about who is a person in a position of authority for that part of the rule. I mean, there is no basal voluntariness rule in Canada. The Canadians have not seen the need for it. Whether it is because of the matters that have been discussed here I do not know, but these are not ‑ ‑ ‑
KIRBY J: They have the charter now so they have got an added complication we do not have.
MR COGHLAN: Where I come from we do, your Honour.
KIRBY J: That is true, but not in this case. That is a pleasure for the future.
MR COGHLAN: We do not here. One of the great joys of living in a federation. Can you use the word “joy” ironically? I am not sure whether you can.
KIRBY J: That will depend on judges’ values I suppose.
MR COGHLAN: It is a great adventure ahead of us in Victoria, your Honour, and we will apply it in accordance with the application of the law. Your Honour, to come back to the – there had in any event been a wide development in Canada of the discretions. There is no doubt about the discretions operating in Canada. But, your Honour, they have been asked to deal with the question so clearly of a person acting in undercover in these circumstances, is that a person in position of authority. It is submitted that there is no error of principle, taking into account the differences that exist between the way the law has developed in Canada because the rationale of the rule must be that the person who is offering the inducement can reasonably influence the result of the prosecution by virtue of a position that they hold that has a capability of influencing it.
KIRBY J: Does that have to be “hold” in the official sense, or can it include, as is said to be the case in Mr Tehan’s client, a person who though pretending not to be a policeman nonetheless had some influence within the police force by reason of corruption?
MR COGHLAN: Claimed to have some influence in the police force.
KIRBY J: Yes. Did not in fact, but claimed to have that and pretended and thereby secured an impression on the accused.
MR COGHLAN: But it is submitted that the rule, as it has developed, developed on the basis that it had to be a person capable of having a real influence, not a pretended influence, had to be seen as a person who would have, capable of having, because that is what truly went to the question of reliability.
KIRBY J: But if it was corruption, if the person was using authority by violence or threats and so on, it was not lawful influence. It could not have been a lawful and proper exercise of that police officer’s power. That police officer was acting corruptly. So the old law developed against the background that did not posit a police officer acting in a lawful way to secure influence.
MR COGHLAN: No, but had the capability of doing it, your Honour. The mere assertion that I have got – a corrupt police officer – is just part, it is submitted really, of the words that he used. What if he said, “I have the capability of breaking into the police station and stealing the file?” It is really only a means by which he describes “I can carry out the promise I am making to you. I have got a corrupt police officer.” It could equally be any other kind of representation that is related to trying to make the promise good. It does not take on the authority of the estate or the authority of the prosecution by the mere mention of corrupt police officers.
HAYNE J: It seems to me that your proposition has to come to the persons in authority are confined to those whom the confessionalist knows or believes have lawful authority to affect the course of the prosecution ‑ ‑ ‑
MR COGHLAN: Yes, your Honour.
HAYNE J: ‑ ‑ ‑ the subject of the confession. Now, if that is the proposition, the debate is whether that is right or wrong, but do you make some wider or different proposition from that?
MR COGHLAN: No, your Honour, that is the proposition that I made.
KIRBY J: But you go on, do you not, to say “But does not include a person, though a sworn officer of the police, who was pretending that he was not and whom the accused, making the confession, did not believe to be a person with lawful authority or with authority to influence the prosecution”?
MR COGHLAN: Yes, to that extent there is a subjective part of the proposition.
HAYNE J: The confessionalist knows or believes the person is a person having lawful authority to affect the investigation or prosecution.
MR COGHLAN: I do not really put it any wider than that at the end of the day, your Honour.
GUMMOW J: Can you say that again?
MR COGHLAN: I do not put it any wider than that. That states the proposition and, it is submitted, that is supported by the authorities. Other cases, cases that identify the mother of the complainant in a sex case, an Aboriginal liaison officer, cases that are seen by the confessionalist as a person who can have an effect in that way.
HAYNE J: Or have a lawful effect on investigation or prosecution.
KIRBY J: A lawful effect.
MR COGHLAN: Yes, your Honour.
KIRBY J: Because often the threats and so on are very unlawful and the inducements are very unlawful. “I can fix this up”, that does not sound lawful to me.
MR COGHLAN: But it is more descriptive of the position held than it is of the conduct itself. Who is the person? Who is the person in position of authority? What qualities do they have?
HAYNE J: If such a person then says, “Confess or I will beat the living daylights out of you”, it is well known that that is not a lawful threat, but the person is still a person in authority because the person, police officer, is known or believed to be a person who has lawful authority to effect investigation or prosecution of the offence, classifies the person whose threat or inducement then falls for consideration.
MR COGHLAN: Yes, and it is submitted, your Honour, they are the propositions that have the support of the Supreme Court of Canada.
KIRBY J: Do your written submissions refer to any English cases or New Zealand or other Commonwealth countries?
MR COGHLAN: No, your Honour.
KIRBY J: Do you know what the situation there is?
MR COGHLAN: Yes, I am reminded, your Honour, that the PACE Act in England has abolished the notion of person in position of authority. Your Honour, really they are the matters that I would seek to put on.
GLEESON CJ: Yes, thank you, Mr Coghlan. Mr Holdenson or Mr Lyon?
MR HOLDENSON: On the last occasion I was pressed extensively with respect to whether or not there was one principle or policy or rationale or justification underlying the voluntariness rule. I made submissions concerning that, but over the break between the last occasion and today we spent quite a deal of time examining and re‑examining, I should say, both the cases and the learned journal articles and our reading discloses to us that both the courts and the learned commentators have at various times and with different emphases stated that the rule operates so as to protect an accused person from a number of things: first, from being wrongly convicted on the basis of unreliable or untrustworthy evidence; secondly, from abusive or improper practices of interrogation; and, thirdly, the wrongful undermining or negating or setting to one side of a person’s right to silence with the consequence that incriminating statements are made.
In recent days, we have reduced the content of our reading to a supplementary list of materials which was provided earlier today, not a supplementary outline but a supplementary list of materials in which we have identified the authorities which deal with these – to use the language of his Honour Mr Justice Wood in Dixon and Smith - “justifications”, the textbooks, the Law Reform reports and what can be said to be the leading journal articles.
KIRBY J: This is very nice of you to read all these things and to think about it and go through them all, but normally we in this Court require something more than just a list. I mean we look to you for analysis and for examination.
MR HOLDENSON: I am about to provide the supplementary analysis orally as to what each and all of those articles say in different words. Most of the articles identify the same, to use the language of Mr Justice Wood again, “justifications”, the reliability principle, the disciplinary principle and the protective principle, albeit some of the learned authors divide the protective principle into two: first, a principle which protects a person’s privilege against self-incrimination and right to silence and the protection of the right of suspects to make autonomous decisions.
Now, if I could just nevertheless speak in the language of the three justifications as identified and described by his Honour Mr Justice Wood in Dixon and Smith. The reliability principle is obviously designed to exclude evidence which may not in fact be trustworthy. As to the protective principle and albeit there are about a dozen articles there identified, there listed, when each of the articles comes to discuss the protective principle, they make reference to the Latin maximum, again identified by his Honour Mr Justice Wood in Dixon and Smith, that the protective principle proceeds from the premise that no one is bound to make incriminating statements against himself or herself.
Ours is a system, accusatorial in nature, in which the State bears the burden of proving the commission of a criminal offence with the consequence, some of the authors say, that a suspect is not to be made an unwilling collaborator in establishing his or her own guilt. The suspect has a right to decide, free from – and I understand some of these notions could be the subject of debate – unfair pressure whether he or she wants to confess.
It is in this regard that some of the authors speak in terms of free choice, language familiar to us having read McDermott, Lee, Cornelius, Sinclair, Swaffield and Pavic and so on. Some of them speak in terms of reasoned choice or rational choice. Of course it is at this point that one can see a great deal of overlap with the other principle described as the disciplinary principle. The articles, in particular the Canadian and American articles on that list, speak in terms of the rights of an individual to be protected and not subverted from unfair methods pre-trial.
So the result of the principle as identified by again Mr Justice Wood in Dixon and Smith ensures that the suspect’s privilege against self‑incrimination is protected and the cases put that also in terms of the right of suspects to make decisions which are autonomous is protected.
Now, as to the disciplinary principle, it is concerned to ensure that the agents of the State do not engage in – various expressions are used – abusive, improper, inappropriate methods of interrogation. The principle ensures that statements obtained from suspects are not obtained in an - and again there can be some argument about the words – inhumane or offensive manner. So in these circumstances the courts deter or discourage misconduct of this nature, that is, misconduct by agents of the State which is calculated to “persuade” by the use of improper methods or means suspects to provide self-incriminating statements. So the possibility of exclusion by reference to the disciplinary principle ensures that the agents of the State do not use improper methods of interrogation.
That is what one finds literally in each and all, with varying emphases, in those articles. In those circumstances, the submission we made on the last occasion is respectfully confirmed when one has regard to the cases and the learning, and indeed, on the last occasion some time was spent in discussion with respect to the Canadian decision of R v Oickle [2000] 2 RCS 3 and within a passage to which I will take the Court in a moment, the voluntariness rule was there described – and in our submission correctly described – as a complex of values.
In that regard, if we could just take your Honours to the report at page 43 where on the left‑hand side toward the foot of the page your Honours will see – indeed, it is on the right‑hand side as well – paragraph 70, but if we could just take your Honours to the English version, paragraph 70 in the judgment of Justice Iacobbuci which reads:
Wigmore perhaps summed up the point best when he said that voluntariness is “shorthand for a complex of values” . . . I also agree with Warren C.J. of the United States Supreme Court, who made a similar point in Blackburn v. Alabama –
and there is the quote –
[N]either the likelihood that the confession is untrue nor the preservation of the individual’s freedom of will is the sole interest at stake.
Then there is a quote within the quote, and if I could just take your Honours to the head of the next page:
life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.”
If I could just pause there within the quote. With no disrespect, we query whether the appropriate expression is “illegal methods” or “abusive methods” so as to catch something closer to the facts of this case, but it goes on by reference to that phrase “complex of values” still within the quote from the judgment of Chief Justice Warren:
Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case.
GLEESON CJ: That expression “by way of convenient shorthand” may be very important because it illustrates that the word “involuntary” is a convenient shorthand for this complex collection of rules, and you are not going to work out the solution in a particular case by going to a dictionary and looking up the definition of the word “involuntary”.
MR HOLDENSON: No.
GLEESON CJ: It works in the reverse way.
MR HOLDENSON: Yes.
GLEESON CJ: The word “involuntary” is a word that the law has applied as a shorthand description to cover a complex set of values.
MR HOLDENSON: So the appropriate mode of reasoning with respect to any given case is to ask the question is one of those justifications engaged on the facts of this case?
GLEESON CJ: Yes.
MR HOLDENSON: Now, if I could just finish reading ‑ ‑ ‑
HAYNE J: It is perhaps assisted by asking the two questions I put to Mr Coghlan, did he have to speak, did he have to say what he said, that is, you look to speak or stay silent, you look to content of what is said.
MR HOLDENSON: Yes, well, on the facts of this case, both Tofilau and Hill had to speak and had to speak in such a manner as to confess to causing the death.
HAYNE J: If they were to achieve the benefit of joining the gang and riches beyond the dreams of avarice.
MR HOLDENSON: Yes, do not have to work, friends, and not be charged and found guilty because the, wrong word, scenario presented to each was, “Homicide squad are onto you and they do not give up and they have got you and you will be found guilty”. Can I just revert to the facts for a moment without the appeal book open in front of me in response to your Honour Justice Hayne.
When one looks through the course of conversations on that final day, both preceding the conversations, plural, in the hotel room and at the start of the conversations in the hotel room – and if I can just be forgiven for using bad language for a moment because it is there – it is said to him by the police officers acting as covert operatives, “I reckon what happened here was you were having sex with this person”, et cetera, “and I reckon you did it”. He having said, “No, I didn’t do it” and saying it again.
It is similar in Hill, indeed, and I know this is the language of the lawyer, if one looks at the opening passages in the conversation in the hotel room in Hill there is a premise, a necessary implication within the conversation, “I reckon you did it, now let’s deal with it because we’ve all got a problem, including me as the boss of the gang”. So it is do not just tell us, it is tell us by way of confession.
Could I just conclude my reading, albeit I am sure your Honours have read ahead, within paragraph 70 of the judgment of his Honour Justice Iacobucci. Reference is made to Hebert:
While the “complex of values” relevant to voluntariness in Canada is obviously not identical to that in the United States, I agree with Warren C.J. that “voluntariness” is a useful term to describe the various rationales underlying the confessions rule that I have addressed above.
Could I just at this point, slightly out of order, respond to a point made on the last occasion by your Honour Justice Gummow with respect to Oickle and with respect to the voluntariness rule in Canada. As is perhaps implicit within that last paragraph, it is entirely appropriate to treat under the heading of voluntariness trickery and deceit engaged in by police officers in their obtaining a confession, that is, as a matter which will on occasions render the confessional statement involuntary.
If it is not apparent by implication within that last paragraph, could I take your Honours back to page 43, the preceding page, because it is within paragraph 69. At about point 3 on page 43 it is said, perhaps halfway through, after the reference to the text by Sopinka and others:
Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence –
sounds like Swaffield and Pavic –
this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.
So it is plain, in our submission, that in Canada there are cases where the trickery and deceit engaged in by police officers is such that the confessional statement is capable of successful challenge by an accused under the voluntariness rule. That might give rise to the question of Grandinetti, but if I can just remind your Honours as to Grandinetti and how it is that this Court could permit each of these appellants to succeed and yet not be inconsistent with Grandinetti, it is apparent from paragraph – and I was not going to read the paragraph to your Honours – but it is apparent from paragraph 34 in the Supreme Court of Canada in Grandinetti that the only point argued in that case was inducement held out by “person in authority”.
So on the assumption just for the purposes of this point I make, if that point fails in this Court then we can nevertheless achieve a different result from that reached in Grandinetti. Now, that is the first matter I wanted to deal with by way of reply. It was an attempt to grapple with the question which was put to me with some persistence on the last occasion, and we feared we did not answer it sufficiently well.
GUMMOW J: Let us go back to Oickle for a minute, the paragraph you took us to on page 43 in the middle there.
MR HOLDENSON: Yes, your Honour, if I can just – I took your Honours to paragraphs 69 and 70.
GUMMOW J: After the quotation of Justice Sopinka’s book where it says “Voluntariness is the touchstone” and then the next sentence is disjunctive, is it not? You have to read “threats or promises” or “the lack of an operating mind, or police trickery”. Then the words “that unfairly denies the accused’s rights to silence”, does that govern the whole three, does it, or is it an added requirement of unfairness or what is going on? It is rather loosely written.
MR HOLDENSON: It is loosely written in one sense because there is one comma too many.
HEYDON J: It has to be surely ‑ ‑ ‑
MR HOLDENSON: There ought not be a comma after the words “operating mind”.
HEYDON J: There has to be one.
MR HOLDENSON: But no, in any event, threats and promises do not need to – I am sorry? Threats or promises ‑ ‑ ‑
HEYDON J: I am agreeing with the point you are making. One, threats or promises; two, lack of an operating mind; three, police trickery that unfairly denies the accused’s right to silence.
MR HOLDENSON: Yes.
HEYDON J: If you can prove a threat you do not have to bother about whether it unfairly denies anything.
MR HOLDENSON: Yes, that is correct. I am sorry, your Honour. I had difficulty hearing your Honour. It is my fault. The next matter is this, and it is a matter your Honour Justice Heydon raised on the last occasion, albeit not with me, but your Honour did with both Mr Tehan and with Dr Lyon albeit the transcript discloses that it was also with one of those barristers by reference by my clients. That was your Honour’s question concerning the facts found by the trial judges in considering a question of basal voluntariness.
Could I deal with that with respect to Tofilau and Hill in this way? An examination of the passages with which this Court is more than familiar in McDermott, Lee and the other cases, makes it clear that this Court has recognised a number of situations or circumstances where the Crown will fail to prove that the confessional statements made by a person were made voluntarily. Those authorities state that the test is whether or not the confessional statement has been made in the exercise of free choice. Those authorities then proceed in those passages to identify a number of situations or circumstances where that test will be found or held not to have been satisfied. Your Honours will recall the phrases “duress”, “persistent importunity” and so on.
Also there to be found is the phrase “overbearing of will”, but when one reads those passages, what one does not read is that the question as to voluntariness is confined to whether or not will has been overborne. So a trial judge must go further than consider the question of whether or not the will of the suspect has been overborne in order to determine the question of voluntariness.
Now I get to the first part of the answer in particular to the question raised by your Honour Justice Heydon. In Tofilau however, the learned trial judge confined almost the entirety of his analysis to this question of basal voluntariness to the question of whether or not the will of Tofilau had been overborne. If I might make that good by taking your Honours to the ruling of the learned trial judge, reported as it is in 13 VR 1. If we could take your Honours to some passages at pages 15 to 16, your Honours will of course have noted that toward the foot of page 14, there is the subheading “Basal involuntariness” and then one sees McDermott sighted, the Victorian case of Buchanan and then Collins. In paragraph 47 one sees at the end of the paragraph, third‑last line and I quote:
Moreover, I do not accept that he was intimidated, importuned or overborne into speaking as he did.
Over the page to paragraph 51 which is where his Honour comes to his concluding remarks, paragraph 51 at the head of page 16, second sentence:
I am nevertheless of the view that the accused’s will was not overborne.
Then the concluding paragraph, paragraph 52:
In the present case the accused was fundamentally misled as to the context in which the confessional statements were made, but he was not compelled to make those statements or threatened in such a way that it could be concluded that his will was overborne.
Now, the submission I make and I know I have only just gone to three or four sentences within those few pages, is that his Honour has concentrated upon the question to the exclusion of other matters as to whether or not the rule was overborne. Indeed, when one reads those passages in context, and I will not read the entirety of those paragraphs out, but our submission is this. His Honour’s analysis and employment of the phrase “overbearing of will” is an analysis in terms of destruction of will as distinct from what we learn from cases such as Lynch and the articles by Professor Atiyah, it is deflection of will as distinct from destruction of will.
KIRBY J: Are these points made in your original written submissions, I mean with reference to the transcripts, reference to his Honour’s rulings?
MR HOLDENSON: Yes, we have in part but the point made by Justice Heydon with Dr Lyon concerning paragraphs 70 and 71 of the ruling in Marks and the questions put I think again by Justice Heydon to Mr Tehan ‑ ‑ ‑
KIRBY J: I am just asking you when I sit down to write something in this, whether I have it all there laid before me in a convenient, succinct, analytical form or whether I now have to plough through the things you are saying orally as well.
MR HOLDENSON: Well, I will be honest, I am not repeating myself.
KIRBY J: I mean we need help. These are three cases and their facts are different. There are common questions. But we really have to have more help than having things thrown at us in oral submissions.
MR HOLDENSON: Some of the points – some of the points, not all of the points I am making in this context – have been set out in writing in our written submissions. Some of them have not and it is by reason of our understanding as to that which has been put by Justice Heydon, that a trial judge must consider whether or not the statement was made in the exercise of free choice.
HEYDON J: Mr Holdenson, can I just ask this. One, was the argument you were mounting about deflection of will put to the trial judge; two, what authority was put to the trial judge to support the deflection theory, if any?
MR HOLDENSON: My recollection is that the phrase “deflection of will” was not put to the trial judge in either Tofilau or Hill.
HEYDON J: What authority would you put to us now to suggest that the doctrine was so essential to the just disposition of the application that it was an error of law for the trial judge to fail to analyse the facts in the light of deflection questions?
MR HOLDENSON: If I understand your Honour’s question, both the trial judge – I will start with Hill. In Hill, there was a fundamental error in his Honour’s reasoning on the ruling in that he determined as a fact that there had been no inducement held out. Of course, we succeeded on that ground in the court below. That error in Hill, coupled with his Honour’s seeming acceptance of the account given by Hill in his record of interview, which is set out in the ruling at pages 120 and 121 of the transcript ‑ ‑ ‑
HAYNE J: Pages 78 and 79, I think, of the appeal book.
MR HOLDENSON: Yes, where that sets out the content of the record of interview with the appellant, Hill, insofar as that record of interview concerned the state of mind of Hill at the time he was speaking with the covert police officers in the hotel room. For example, on page 79, line 18:
and I thought this is really good and – and, you know, like, befriended me and then, you know, promised me all this shit, like all this money and a better life and all this, that sort of thing, and a better life and all that sort of thing and make – and make this go away and – yeah, pretty much okay for the rest, not for the rest of me life, but, you know, I’ll be in with a good crew of guys and everything was going to be okay. That’s what I was told.” Question: “All right. So you are saying that what you said on the video was untrue?” Answer: “I don’t know about untrue, but it is just what I presume, you know, how it happened, and if it is – well, I don’t know, I don’t even know if it is.” The record of interview then goes on to other matters.
Perhaps I should have gone up the page to line 8. The police officer asked the question:
“But you would agree that there was no compulsion on you to tell that?” Answer: “Yeah, there was.” Question: “To tell the person there anything?” Answer: “Yeah, there was.” Question: “You are saying there was compulsion . . .” at which point the transcript records that the sound cut out momentarily.
I have to respond more particularly to the answer. In Tofilau the submissions on the voir dire were not in the exercise of free choice. Indeed, one sees them, albeit only in summary form, in paragraph 49 of the ruling of Tofilau toward the foot of page 15. That is just the points that were made and all the authorities were cited and, indeed, all the authorities were considered.
One sees in the context of basal voluntariness in paragraph 43, the relevant passage from McDermott, for example. One sees back earlier on in the judgment on page 7 in the middle of the page under the subheading “Voluntariness” at paragraph 19 references to Swaffield and Pavic, Sinclair, Cleland. Then over to page 8 at paragraph 23 there is that statement from the judgment of his Honour Justice Dixon, as he then was, at page, I think it is 511 to 512 of McDermott. Then there is the Lee statement. So all these passage were put ‑ ‑ ‑
HEYDON J: Which one supports deflection? Is it, for example ‑ ‑ ‑
MR HOLDENSON: I am sorry. Not one of them ‑ ‑ ‑
HEYDON J: Is it Mr Justice Dixon’s statement, “the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure?”
MR HOLDENSON: Not one of them speaks in terms of, and if I have not made it clear I do not suggest for one moment that our predecessors used the phrase “deflection of will”. The phrase “deflection of will” is not there.
HEYDON J: Is it part of the law?
MR HOLDENSON: I am sorry.
HEYDON J: I would just be comforted if there were an authority saying that it is part of the law of voluntariness that something where the will has been deflected makes a confession inadmissible.
MR HOLDENSON: I do not have an authority ‑ ‑ ‑
HEYDON J: I appreciate that the cases do not exclude the idea, but do they ever mention the idea?
MR HOLDENSON: The best answer I can give is those passages in DPP v Lynch ‑ ‑ ‑
HEYDON J: That is a case about duress in murder, is it not?
MR HOLDENSON: That is correct. It is about duress.
HEYDON J: It is a little remote from confessions.
MR HOLDENSON: Professor Atiyah took them to the law of contract and we are taking them one step further.
HEYDON J: But you cannot expect trial judges to read the Law Quarterly Review articles on duress in contract in deciding what evidence to admit or exclude unless they have been referred to them.
MR HOLDENSON: No, I cannot. What we can do is rely upon what is said to be the test, the requisite test in these cases and it is said in every case, McDermott and Lee, the test is whether or not what was said was said in the exercise of free choice. If I could move on to how his Honour dealt with that. His Honour Justice Osborn spoke in terms of in paragraph 46 of his Honour’s ruling:
In the present case the accused was given a clear choice whether to speak or not as to his past. He was encouraged to speak the truth but the ultimate choice was his –
Then in the last sentence of paragraph 47:
He was offered an increasingly attractive choice and he made it.
What his Honour did was certainly found that there was a choice. What we say about that is yes, but not a true choice, but when one couples with that – and this was of course accepted in the court below that the inducements that were held out were such as to cause, lead to the so‑called confessional statements made by Tofilau, then the choice that was there referred to is not a choice which was free.
His Honour did not, having dealt with inducements as he did, having found choice, did not marry the two together and reach the result not a free choice. In the same way that one sees throughout the ruling and, indeed, within these paragraphs reference to misleading and so on, for example, the opening words at paragraph 48:
The fundamental deceit in the present case ‑
Paragraph 47, first line:
It can of course be said that he accused was misled as to the circumstances in which he spoke. He was misled as to the true identity –
In paragraph 52, the concluding paragraph, first line:
In the present case the accused was fundamentally misled –
Nowhere did his Honour in those passages deal with misleading fundamental deceit and so on as bearing upon the question as to whether or not free choice was exercise. So what we have done in a longwinded way is attempted to point out, by way of submission, as to how it is that those findings of fact with respect to basal voluntariness in no way present an insurmountable hurdle for us in this Court with respect to our submissions concerning basal voluntariness. In Hill, I have made the submission, his Honour expressly found at page 80 of the appeal book at line, I think 14, one would say:
was voluntary and made by him in a free exercise of his will to speak or not to speak. He could at any stage have left.
The question as to whether or not he could have left, certainly there was a choice, but in the context it was not, in our submission, either a true choice or, to use the language of the authorities, a free choice. But in any event that finding is, in our respectful submission, incompatible with and vitiated by his Honour’s erroneous finding concerning inducements which was corrected by the court below coupled with his Honour’s seeming acceptance as to the state of mind of Hill which, as to seeming acceptance, one would look page to page 78, the page to which your Honour Justice Hayne referred earlier, of the appeal book at line 22.
What we say is that both Tofilau and Hill made a choice to speak, a choice which was affected or burdened materially by a desire to speak so as to ensure that he not be charged with the commission of an offence, et cetera, in circumstances where the police officers had deliberately, knowingly and intentionally induced in both Tofilau and Hill a fundamentally mistaken apprehension as to the context in which he was speaking and as to the benefits in either speaking or not speaking and as to the detriments of either speaking or not speaking.
GLEESON CJ: I thought you said that in-chief.
MR HOLDENSON: I went to it for this reason, because your Honour at page 80 of the transcript asked the question of Mr Coghlan twice, when is it that deception leads to involuntariness? Our answer is this. It is whenever the justifications for the voluntariness rule are engaged.
If I could attempt to give a more complete answer it is this, and there are four components to it: where a police officer, obviously acting on behalf of the State, has conducted – and if I could use the language of Justice Osborn – the functional equivalent of an interrogation of a suspect; next component, in circumstances where the police officer has by improper means, the particulars as to improper means, course of trickery or deceit whereby the police officer has deliberately induced the state of mind in the suspect which is completely, wholly, fundamentally mistaken as to the circumstances or context in which he answers questions and the consequences of answering questions; third component, such that the suspect as a result of that induced mistaken state of mind consciously makes a choice to answer questions where those answers are incriminating in nature, then at least two, if not three, of the justifications are engaged such that the court will hold or determine that the confessional statement is involuntary in order to protect the accused’s right to silence, the protective principle, in order to protect the accused from improper practices of interrogation, the disciplinary principle.
Why is that the test? Because on those facts at least the test of free choice has not been satisfied. An alternative approach would be that in those circumstances there might well be undue or improper pressure, to use the language that one does see in McDermott, or the type of language.
Could I, by reference to a case which we recently discovered - your Honours do not have it, but it is R v Anderson (1991) 105 FLR 25 a ruling in a trial by his Honour Mr Justice Martin and that case concerned the question of the police officer in the interrogation making a false representation and it was held at the middle of page 31 that the false representation may have worked in such a way that:
he considered that things might go better for him if he were to co‑operate rather than that he decided to make his confession without regard to the purportedly strong police case. Taking the traditional elements which tend to rob confessions of voluntariness, a false representation on a critical matter such as this would amount to undue pressure upon the accused and thus his confession be excluded.
That was in the context of the false representation having the context that the confession was deprived of its voluntary nature.
GLEESON CJ: How long do you expect to require to complete your reply?
MR HOLDENSON: I have now finished. That was the last page subject to one of the – Anderson was of course, and this was how we found it – Anderson was sighted in Cross on Evidence.
GLEESON CJ: Thank you.
KIRBY J: Could I just ask you – you heard Mr Coghlan’s submission that the weight of a Canadian authority appears to support the notion that inducement by a person in authority does not apply to the case of a person who is in fact in authority but has not appeared to be a person in authority so far as the accused is concerned. Now, given that this is a rule of the common law, and given that we therefore would look at the heart of what is the reason behind it, why would one not limit the “person in authority” principle to a person who is holding out and appears to hold out the authority, which was not the case in the instance of your client.
MR HOLDENSON: Well, on the last occasion we made submissions by reference to the tests, objective coupled with subjective, Dixon and Smith, the Queensland case of Kassulke, the test is satisfied. We pointed out by way of submission as to how it is that the Canadian holding in Grandinetti is contrary to the holdings in cases in this country with respect to whether or not the person holding out the inducement was acting lawfully or contrary to the interests of the state or saying something which amounts to the commission of an offence, whether ‑ ‑ ‑
KIRBY J: Anyway, you are now repeating what you said last time.
MR HOLDENSON: That is right, we go back to that, yes.
KIRBY J: You say that it is sufficiently dealt with in what you have earlier said.
MR HOLDENSON: Yes, and the only other thing to say is we do rely upon, and I assume your Honours received it back before we last appeared,
our reply in Tofilau dated 22 February where we deal with some of these matters.
KIRBY J: That last authority or article on your list is a paper by Mr Skinnider, which might be difficult to find. Is that on the Internet or is that something ‑ ‑ ‑
MR HOLDENSON: It is on the Internet but we have a copy here, albeit it might have been coloured in, but we can provide a copy of Skinnider to the Court soon, very soon.
GLEESON CJ: Thank you. Yes Dr Lyon.
MR LYON: If the court pleases, given the nature of the reply made by my learned friend, Mr Holdenson, I can be very brief indeed. In the case of Marks, unlike Grandinetti, we put the issues forward on both aspects, that is person in authority and basal voluntariness and as Mr Holdenson stated Grandinetti was confined to person in authority, so we have the additional aspect.
KIRBY J: Dr Lyon, you were a party to the preparation of this supplementary list of materials, were you?
MR LYON: Yes, your Honour.
KIRBY J: But you, like Mr Holdenson, have not prepared any analysis of the documents.
MR LYON: No, we simply adopted the ‑ ‑ ‑
KIRBY J: Well, I just have to say to both of you that speaking only for myself, I do not believe that that is the proper assistance to the High Court of Australia dealing with conceptual issues of some difficulty and complexity to say you have read what looks to be about 15 or 16 or more – 20 authorities – and just to hand us up the list.
MR LYON: I accept that criticism, your Honour.
KIRBY J: I mean one expects from the members of the senior Bar more help that. A list is not good enough.
MR LYON: I accept that criticism. We debated long and hard putting in further written submissions, your Honour, but the Rules did not provide for ‑ ‑ ‑
KIRBY J: You can always ask for leave of the Court to – it is really, if I can put it quite brutally, it is rather ridiculous that you say you have sat down and you have read all these things and you have it all in your brain but you are just keeping it a big secret from us, the analysis, except for the oral submission that Mr Holdenson gave for about, on my account, 20 minutes. Anyway, I have said it. I just do not think it is good enough.
MR LYON: As I say, I accept your criticism, your Honour. If I can take up a line of inquiry that was raised at lines 2748 by Justice Heydon on the previous occasion and then also by Justice Kirby, the line of inquiry was that we were asked, in effect, whether or not we were challenging the trial judge’s findings of fact on the voir dire, and this is a matter that was touched on by Mr Holdenson just a few minutes ago. At that point at 2748 Justice Heydon said:
To succeed you have to successfully attack what Justice Coldrey does on pages 205 to 207 –
that is, of the appeal book in the ruling of the trial judge -
He formed the view that your client had considerable self‑possession and was well able to cope with situations of stress. There was no apparent evidence of him being compliant.
Then Justice Kirby, at 2768, raised after I said:
I do not intend to make an attack on paragraphs 70 and 71 –
of the trial judge’s ruling. Your Honour said:
If you do not do that, how can you possibly have this Court hold that the confession was not voluntary?
I replied:
Through the first aspect, your Honour.
Now, just to ensure that there is no misunderstanding about the position on behalf of those representing Marks, it should not be thought that I was in fact giving away our submissions as to basal voluntariness. Rather we refer back to paragraphs 28 and 29 and then 45 to 52 of our written submissions. Accordingly, we submit that upon a proper analysis of the legal principles and their application in that case, the facts as found by the learned trial judge would lead to a ruling that the confession made by Marks was inadmissible because it was involuntary.
Now, in the ruling at paragraph 47, which is at page 199 of the appeal book, his Honour found that the accused, as he then was:
was subjected to some psychological pressure –
He found at paragraph 71, appeal book 207, that he was, in the words of the learned trial judge:
totally misled as to the circumstances in which he found himself, including the real identity of the persons to whom he ultimately confessed.
His Honour found at paragraph 99, appeal book 214, that:
In this case, as in all cases involving the Canadian model, the accused was the subject of a massive and elaborate subterfuge.
Now, accordingly, at paragraph 70 of the ruling, where his Honour says:
there is no evidence that the will of the accused was overborne –
we adopt the reply made by Mr Holdenson that the test is in fact or the inquiry as to basal voluntariness is wider than simply determining whether the will was overborne, and that the test of voluntariness is simply not answered by the single narrow inquiry as to overbearing of the will.
HEYDON J: You adopt his reliance on DPP v Lynch?
MR LYON: Yes, your Honour, we do.
HEYDON J: And Professor Atiyah’s ‑ ‑ ‑
MR LYON: And Professor Atiyah’s articles.
HEYDON J: You said nothing about that in-chief, did you?
MR LYON: I did not know about them in-chief. They were articles raised in the course of discussion for the first time with my learned friend, the Director of Public Prosecutions.
HAYNE J: But reduced to its essential, the proposition for which you contend is that confession to a crime to a person whom the confessionalist does not know or believe to be a person in authority in the hope or expectation of avoiding prosecution for the crime is involuntary? That is what it comes to, does it not?
MR LYON: Might I add to that, with respect, your Honour, that there is more to it because of the circumstances, the subterfuge and the trickery.
HAYNE J: I understand that is how the hope or expectation is engendered, but the bottom line is it is the hope or expectation of avoiding prosecution that is the motive for the confession which on your contention makes it an involuntary confession. What I want you to address is the evident tension that is thus revealed.
MR LYON: In the case of Marks, yes, that was the bottom line, but again I say that it must be taken in the gloss that was put forward, because it was not simply his intention it was put forward as proffered by the interrogator ‑ ‑ ‑
HAYNE J: Colour and lights and movement. I understand that and we have to have a look at all the colour and the lights and the movement.
KIRBY J: But Justice Hayne’s question omits one ingredient, and it may be because of the way you and Mr Holdenson for Tofilau have chosen to argue the case. One ingredient is, who is in fact an officer of the police service? Now, it may not, as Justice Hayne has asked it, be relevant to the way you present the case because at least possibly the factual consideration as distinct from its impact on your voluntariness may be a matter that is relevant to the third stage, that is to say, the public policy discretion that the law does not want to have its police service contaminated with people who are going around tricking people into confessing. What do you say as to whether it is also relevant to the voluntariness question, the first issue, that the person is in fact a sworn officer of the police?
MR LYON: It is our position that it is relevant to the question of voluntariness.
KIRBY J: How can it be to voluntariness if the person does not know that that is the fact? How can it have impinged on the will and voluntariness of your client when he does not know and the whole point of the exercise is that he should not know?
MR LYON: I do not want to sound too fuzzy in my answer, but the whole of the police methodology can – or the police conduct – can be taken into account in the consideration of voluntariness. That was said in Cleland, it was said in Collins, because it is not simply a case of looking at or trying to penetrate the mind of the accused or the confessionalist ‑ ‑ ‑
KIRBY J: But they were not cases about covert operations by undercover officers.
MR LYON: No, they are not covert operations.
KIRBY J: So they did not present the problem that is now presented.
MR LYON: But the setting up of the deception and the trickery which causes the situation where in the circumstances that the choice of the confessionalist is coloured by the scenery that is painted by the covert officers.
KIRBY J: I will have to think about that, but that sounds to me relevant to the public policy issue which you and Mr Holdenson have disclaimed.
MR LYON: If your Honour please.
GLEESON CJ: Thank you, Dr Lyon. Mr Tehan, we will hear you first in your reply on the existing grounds of appeal and then we will hear your application for leave to amend together with any arguments you want to put in support of the amended ground of appeal and we will hear what Mr Coghlan has to say about that and we will decide when we reserve our decision in giving our judgment what we will do about your application for leave to amend.
MR TEHAN: Thank you, your Honour. Your Honours, we have nothing to put in reply. Could we turn immediately to the application to amend? Your Honours, let us turn immediately to that application and alert the Court to the ground that we seek to rely upon. It is in these terms. The Court of Appeal of the Supreme Court of Victoria erred in failing to determine that the trial judge had erred in not excluding in the exercise of his discretion the evidence of the admissions made by the applicant to covert operative M on 6 June 2002.
In our submission, the line between voluntariness and discretion is not capable of easy precision. This is a case where considerations as to both voluntariness and discretion arise. Unless we press argument touching upon discretion our client’s case will not be properly put.
HAYNE J: The discretion is confined to the statements to the covert operatives?
MR TEHAN: Yes.
HAYNE J: Let there be no mistake about this, Mr Tehan, the ground as framed does not challenge the reception of the subsequent police record of interview?
MR TEHAN: No, it does not, your Honour.
HAYNE J: In which the accused man made very full admissions?
MR TEHAN: That is true, your Honour, yes.
KIRBY J: Is it your submission that that followed from the earlier deception?
MR TEHAN: That was the submission put in the court below and we have not sought an acquittal. We have sought a retrial knowing of the existence of that record of interview. That issue has not been dealt with by the intermediate court. I mean, if we succeeded here and we went back for retrial we would press the trial judge to rule out the record of interview because of the impact of what had happened beforehand on the record of interview. That argument has not been litigated, that is all we say.
HAYNE J: No, because there would be questions then about the proviso, because you have a full-scale confession by this man to the police in an interview which is not challenged. Now, what is an intermediate Court of Appeal going to do in the face of that? We are not playing games here, Mr Tehan. If your point is confined to the covert interview, right, we argue it on that basis.
MR TEHAN: That is the way we argue it, but we would certainly argue before an intermediate court and before a trial court that what happened in the scenario evidence taints the whole of the record of interview. That matter has not been litigated yet and does not fall for decision ‑ ‑ ‑
HAYNE J: It was litigated at trial, it was found against you at trial.
MR TEHAN: And that was it.
HAYNE J: Yes.
MR TEHAN: It has not been litigated in an intermediate court.
HEYDON J: What order do you want then?
MR TEHAN: A retrial.
KIRBY J: It was found against you on a basis which you are challenging now.
MR TEHAN: The first matter having fallen, that fell. It just did not arise. The position taken in the intermediate court was that if the scenario evidence went in the record of interview would go in. So it has not been argued yet. That is why we say it does not fall for determination by this Court, and that is why we say the correct order if we succeed is for a retrial.
The matter of principle that now is at stake is this. Where is the line to be drawn between voluntariness and the exercise of discretion and what are the distinct considerations that touch upon these two matters? In McDermott v The King (1948) 76 CLR 501 at page 512 Mr Justice Dixon suggested that the development of the discretion rule was perhaps:
a consequence of a failure to perceive how far the settled rule of the common law goes in excluding statements that are not the outcome of an accused person’s free choice to speak.
His Honour doubted:
whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will.
In argument in Swaffield and Pavic (1997) 192 CLR 159, the then Chief Justice appeared to invite counsel to address the court on voluntariness. Swaffield and Pavic was, however, argued as a discretion case. Ultimately, the invitation was declined, a consideration in that case being that voluntariness had not been argued in the court below. Perhaps the then Chief Justice had in mind Mr Justice Dixon’s dicta in McDermott.
Certainly counsel for the appellant, Pavic, recognised the overlap between issues touching upon voluntariness and discretion when he answered the Chief Justice’s question as recorded at page 164 of the report. Indeed, such overlap, in our submission, was recognised in the judgment of Justices Toohey, Gaudron and Gummow at paragraph 74 at page 196 where their Honours said:
One matter which emerges from the decided cases is that it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues.
The same recognition may be found in Foster v The Queen (1993) 67 ALJR 550 at 554. There is an overlap between exclusion on the basis of involuntariness and discretion. The opportunity should not again be lost to properly put on the table for consideration by this Court all matters touching the admissibility of confessional evidence in this country. They do arise in this case because, if the Court were not to uphold the broad view of basal involuntariness that is being contended for by all the appellants in this case, then matters that would have been relevant under that head would become relevant under discretion. It is against that eventuality that we seek to protect our client and so the added ground of appeal.
In our submission, there are three identifiable errors in the reasoning of the Court of Appeal and in the trial judge’s reasons concerning discretion and we have set these out at pages 8 to 12 of our supplementary submissions. We did disavow discretion at the special leave hearing and we understand that as a result of this application the Court and the parties are inconvenienced. For this we apologise.
Your Honours, they are the submissions in support of the application for leave to amend and it is for those reasons that we now ask to be heard upon the amended ground and if we could direct our argument to that now. The proposed ground concerns what is sometimes said to be two independent discretions to exclude confessional evidence, the fairness discretion and the public policy discretion. These discretions were described in the joint judgment of Justices Toohey, Gaudron and Gummow in Swaffield and Pavic at paragraph 91 at page 202 in the following terms:
Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.
KIRBY J: What paragraph was that?
MR TEHAN: Paragraph 91 and it is, in fact, set out, your Honour, at paragraph 5.2 of our supplementary outline of submissions. It has been said that in the instance of confessional evidence the two discretions are really part of the one larger discretion to exclude evidence. We note in this regard the decision of the Victorian Court of Appeal comprised of President Winneke and Justices Charles and Chernov in R v Juric (2002) 4 VR 411 at 437 to 446.
Although described as a discretion, the judgment as to whether or not the admission of confessional evidence is unfair or contrary to public policy is, in our submission, truly a question of law. It is trite but such a question involves admissibility of evidence, whether the evidence is admissible or not. Necessarily, the judgment involves a value based decision. It is, in some respects, not dissimilar from an appellate court involved in reviewing a trial judge’s decision to admit evidence of propensity. At least that decision, in Victoria, being value based, is treated as a question of law.
In R v Tektonopoulos [1999] 2 VR 412 at 416 to 419, and in particular at paragraph 27 of page 419, President Winneke said ‑ ‑ ‑
HEYDON J: This is a question about the construction of the Victorian statute. It has nothing to do with common law.
MR TEHAN: It is a question about a statute and if your Honour would bear with me for just a moment, because I appreciate that we are not in the present case dealing with a statute. President Winneke said that when a judge decides to admit propensity evidence, in truth he has, he or she has:
no discretion because he concludes that the evidence is sufficiently probative as to render it just to admit it despite its prejudicial affect, he must admit it.
The reference to what Justice McHugh said in Pfennig v The Queen answers the question that your Honour Justice Heydon perhaps had in mind. His Honour pointed out that in Pfennig v The Queen (1994) 182 CLR 461 at 515, Justice McHugh said:
[O]nce it is accepted that the prejudicial effect of the evidence is a matter going to admissibility, no scope remains for the exercise of the discretion to reject probative evidence in criminal trials on the ground that is unduly prejudicial to the accused.
Pfennig of course was not concerned ‑ ‑ ‑
HEYDON J: I was just going to say the unfairness discretion though, can that be described as a rule which depends on the prejudicial effect of the evidence being a matter that goes to admissibility?
MR TEHAN: No. It is an argument by analogy, your Honour, in this sense, that the steps along the way are these. Firstly, only admissible – and these are trite – but only admissible evidence gets before a jury. Secondly, whether the evidence is admissible or not is a question of law. Thirdly, the prejudicial effect of evidence is a matter going to admissibility, and finally and therefore, whether the prejudicial effect of the evidence renders it inadmissible is a question of law.
If that is good then what Justice McHugh says in Pfennig is good then the same would apply to the exercise of a fairness discretion or public policy discretion. They are, whilst described as discretions, they ultimately in our submission involve a question of law. The matter is tested perhaps in this way: could a judge exclude admissible evidence because of its prejudicial effect, the answer to which of course must be no.
A properly seen discretion under House v The King allows for an appellate court to say the judge took into account all relevant considerations in this case. He did not take into account any irrelevant considerations. Therefore the judicial discretion has been properly exercised, even though we as a Court of Appeal might come to a different result. Now, that cannot be the case in relation to the admissibility of evidence, with respect. That is why we say that this is truly a question of law.
In the case of confessional evidence this court and intermediate courts have examined considerations for the exercise of judicial discretion in ruling such evidence inadmissible. We have attempted to set these out in a concise form at paragraph 5.3, page 3 of our supplementary outline of submissions. They are some of the considerations which, in our submission, arise from the reported cases. A judgment as to whether a confession should be ‑ ‑ ‑
GLEESON CJ: If your argument is right the heading to section 90 of the Evidence Act is singularly inappropriate.
MR TEHAN: You might be right, your Honour.
GLEESON CJ: It is headed “Discretion to exclude admissions” and it deals with the unfairness ground.
MR TEHAN: Yes, well, it is only a heading.
GLEESON CJ: It is the rubric under which the Law Reform Commission discussed the matter.
MR TEHAN: Yes.
HEYDON J: The problem is most of these questions you ask in paragraph 5.3 would be answered no. Some would be answered yes, but most would be answered no.
MR TEHAN: Your Honour is a bit ahead of us. We would say that if those considerations applied to the present case, they would be answered sufficiently favourably to our client.
HEYDON J: Your client had no special characteristics related to gender, race, age, education or health.
MR TEHAN: On those scores, no. I am going to say something ‑ ‑ ‑
HEYDON J: Your client was not in custody.
MR TEHAN: I am going to say something about that, too.
HEYDON J: The police methods were not likely to lead to an unreliable confession which was repeated shortly after it had been made ‑ ‑ ‑
MR TEHAN: Your Honour is ahead of me again. I am going to turn to the considerations in a moment.
HEYDON J: Is now the time?
MR TEHAN: Not quite, your Honour. If I could just finish on this matter.
KIRBY J: Whether it is strictly a discretion or one might say an evaluative matter of judgment, the fact is that it is not completely immune from appellate review as the decision in Swaffield showed, because the Court of Appeal of Queensland did review the decision in that case.
MR TEHAN: That motivates me to move immediately to the major ground that we want to press which is the public policy ground encapsulated in the third error. I will not bother the Court any longer with where I was. It is to this matter which involved questions of high public policy to which we now turn.
The principle emanates from the case of Ireland. Since this Court’s decision in R v Ireland (1970) 126 CLR 321, Australian law has recognised that evidence may be excluded on the grounds that it was obtained by prosecuting authorities by improper or legal means. This basis for exclusion was extended to confessional evidence in Cleland v The Queen (1982) 151 CLR 1. The rationale for this form of exclusion is not so much unfairness caused to an accused upon his trial rather than the need to protect the integrity of the processes of courts of law in administering criminal justice.
A non-exhaustive list of considerations relevant to the determination of this issue was described by Justices Stephen and Aickin in Bunning v Cross (1978) 141 CLR 54 at pages 78 to 80. Those considerations were noted and added to by your Honour Justice Kirby in Swaffield and Pavic at pages 212 to 213. They are these: was the improper conduct deliberate? We give these answers. In the present case it clearly was.
GUMMOW J: What was improper?
MR TEHAN: What was improper was the extraction of a confession.
GUMMOW J: How was it extracted?
MR TEHAN: By pressure and duress and force.
HEYDON J: What force?
MR TEHAN: He had to make – he had to admit to the murder, otherwise he would be charged with it. That was the pressure. It was concerted psychological pressure.
GLEESON CJ: It would be slightly more accurate, I think, and not inconsistent with your argument to say, “He was led to believe that he had to”, et cetera.
MR TEHAN: Yes, it is true.
GLEESON CJ: Saying that somebody has to do something is a very ambiguous or imprecise expression.
MR TEHAN: We can live with that. So that is the first question. The second matter ‑ ‑ ‑
GLEESON CJ: The devil made me do it. Go ahead.
MR TEHAN: Was the improper conduct deliberate? It clearly was. Secondly, did the conduct affect the cogency of the evidence? It may well have. Thirdly, how easily might the prosecuting authorities have complied with the law or behaved in an appropriate manner? In our submission, very easily. They could have got him in for questioning. Fourthly, what is the legislative intention, if any, in relation to the law that is said to have been infringed and, in our submission, we answer that question in this way. His right to silence was deliberately circumvented and undermined.
GLEESON CJ: Now, what do you mean by right to silence?
MR TEHAN: His right to say nothing in answer to a charge.
GLEESON CJ: In answer to a charge?
KIRBY J: In Victoria.
MR TEHAN: When being questioned about a criminal offence, to put it another way.
GLEESON CJ: What about people who answer questions under legal obligation such as people who are being examined in bankruptcy or in the liquidation of a company? Their statements are admitted as voluntary and yet they are statements made under a legal obligation. Does that throw some light on this concept of voluntariness and right to silence? You do not have a right to silence unless – it depends on the construction of the statute, of course, but the fact that a statement is made under legal obligation does not mean it is illegally involuntary and it does not mean it is inadmissible in evidence against you.
MR TEHAN: No, not necessarily. Not necessarily, I agree with that.
KIRBY J: Is there any statute in Victoria that encapsulates the Judge’s Rules?
MR TEHAN: Yes. It is to be found in section 464A, B, C. I think it is 464C, in particular, that encapsulates what are known as the Judge’s Rules, your Honour.
KIRBY J: Of the Crimes Act 1958, is it?
MR TEHAN: Yes, and in fact it is in very similar terms to the uniform Evidence Act.
GLEESON CJ: I think it was pointed out by a member of the House of Lords that again the expression “right to silence” is a summary or a shorthand method of describing the combined effect of a number of legal rules, and once again, you would not work out what is involved in the right to silence by going to a dictionary and looking up the word “right” and the word “silence”.
MR TEHAN: Yes, we appreciate that, your Honour. We are not arguing illegality here.
HEYDON J: There is no breach of the Crimes Act (Vic), then?
MR TEHAN: No. In fact, as I think was pointed out in argument – it might have been by your Honour Justice Kirby, “investigating official” is defined in the same way as it is in the uniform Evidence Act to exclude from the requirement to give a warning covert police. The same definition, in terms, appears in the dictionary under the uniform Evidence Act. We do not complain of illegality in this case.
HEYDON J: So factor (iv), line 3 on page 213 does not arise?
MR TEHAN: No, strictly it does not arise. No, it does not arise, your Honour. Factor (v) is was the improper conduct:
encouraged or tolerated by those in higher authority in the police force –
Yes, without doubt, and one assumes at the very highest of levels. Number (vi), would admission of the impugned evidence:
involve the court itself in giving, or appearing to give, effect to illegality or impropriety in a way that would be incompatible with the functions of a court, or such, or which might the damage the repute and integrity of the judicial process –
Yes, and we will develop that argument in a moment, and, (vii) was the improper conduct:
contrary to, or inconsistent with, a right of the individual which should be regarded as fundamental.
We have really touched upon that already when we have spoken of the right to silence.
When applying these considerations it is important to remember that exclusion of confessional evidence by virtue of police impropriety focuses attention on the behaviour and actions of the police, rather than on questions of apparent reliability or otherwise of the confessional statement. Support for that is to be gained from the judgment of Chief Justice Brennan in Swaffield at pages 181 to 182.
To the extent that there may be nothing unfair to an accused in admitting evidence of a confession that is voluntary and reliable, considerations in public policy have little or nothing to do with unfairness. Rather, such considerations concern themselves with the liberty of the subject. In circumstances where such liberty is pitted against invasive action by the State and where the toleration of such invasion by the courts – and I now quote from what Justices Stephen and Aickin said at page 78 in Bunning v Cross:
would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm.
It is a discretion which involves the balancing of the public interest in placing all relevant and admissible evidence before the court with the public interest in ensuring that law enforcement officers do not act unlawfully or improperly and let us apply it to the present case.
KIRBY J: That is Chief Justice Barwick in Ireland.
MR TEHAN: Yes, it is, your Honour. In our submission, the action of the State in this case demonstrates that the police, agents of the State, sworn officers of the law, sworn to uphold the law, were acting in bad faith and acting corruptly.
HEYDON J: But not unlawfully.
MR TEHAN: But not unlawfully, true enough. The action of the State in the present case was to lie to the individual about the status of any future prosecution of that individual for a criminal offence. The State said to the individual that it might not prosecute the individual for a criminal offence on condition that the individual confessed to the offence. In circumstances where it was always the State’s intention to prosecute that individual for the criminal offence if the individual confessed ‑ ‑ ‑
KIRBY J: Only if they could get a proper confession.
MR TEHAN: Confession.
KIRBY J: A confession.
MR TEHAN: A confession.
KIRBY J: The State did not really offer that out. A person who we now know was an officer of the State.
MR TEHAN: They were police. In our case they were police. I think your Honour Justice Kirby might have asked a question earlier this morning which suggested that in our case they might have been agents of the police rather than actual police, but they were actual police in our case also, your Honour. All of them, all the coverts and overts.
KIRBY J: Was that the case in all three appellants?
MR TEHAN: It was, yes.
KIRBY J: That is what I thought.
MR TEHAN: Yes.
KIRBY J: No, I mentioned in Pavic.
MR TEHAN: Pavic, I am sorry, your Honour.
KIRBY J: He was an agent of the police. He was wired by the police. He was sent by the police.
MR TEHAN: He was a friend.
KIRBY J: He was a friend. He was not a police officer.
MR TEHAN: Yes, they were all police in these cases, these appeals. In those circumstances where it was always the intention of the State to prosecute, the State’s assurance to the individual was a positive act of bad faith. Leaving aside for the moment the question of whether or not when the State offered the assurance not to prosecute, it had already given the individual to believe that prosecution was inevitable, a moment’s reflection reveals that if the State is permitted to induce confessions to criminal offences by promises of this nature made in bad faith the very authority of the State will itself be placed in jeopardy.
Added to this in this case is the element of extraction and it is truly what this case is about; the extraction of a confession by pressure. It is one thing for the State to covertly observe, listen or perhaps even discuss. It is quite another matter for the State to induce on a false premise and to do so by extraction of a confession. After reliance on the Canadian cases of R v Herbert and R v Broyles your Honour Justice Kirby correctly, in our submission, stated the law in Australia in Swaffield when your Honour said at paragraph 155 at pages 220 and 221 of the report the following:
The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self‑incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect’s right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made.
In this case the State did not induce the individual to confess by merely offering not to prosecute as bad and as corrosive to the State’s own authority as that may be. In addition, the State’s assurance not to prosecute in this case was made in the context of the State telling the individual the prosecution was, unless he confessed, a certainty. To bolster the credibility of those statements of inevitability, the State conducted an overt investigation into the individual of which the individual was made fully aware, an incident of which was a request that the individual supply a sample of his DNA and undertake a lie detector test.
The State’s lie to the individual, in our submission, went beyond mere inducement or elicitation. The State intentionally set up a procedure where it would extract a confession from the individual. The minimum standards to which the State or its executive arm ought be held accountable, might allow for pure trickery or deception to the extent that a confessionalist interlocutor is permitted to hide his or her capacity as State representative. As I said earlier, section 464(c) of the Crimes Act (Vic) and the like provisions under the Uniform Evidence Act would seem to allow for it. Those standards may allow for an agent of the State to hide from the confessionalist the fact of State agency. That is what happened in Pavic.
The concept of there being a test of impropriety based upon “the minimum standards” which law enforcement agencies should accept, was developed by this Court in Ridgeway v The Queen (1994-1995) 184 CLR 19. That case did not concern confessional evidence but, rather, real evidence, the commission of the offence itself in the application of the public policy discretion to that situation. In dealing with the question as to when the line of unacceptable police conduct will be crossed, Chief Justice Mason and Justices Deane and Dawson said at page 37:
the stage of impropriety will be reached in the case of conduct which is not illegal –
which is our case –?
only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct –
Earlier on the opposite page, page 36, they had approved the following statement of the Supreme Court of Canada in R v Mack to this effect:
“there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions”.
That statement is particularly appropriate to the present case. What the law will not permit, in our submission, is the State actively eliciting confessions from individuals. The line of propriety is crossed when the State puts pressure, whether such pressure be moral, psychological or physical, on the individual. It is at that stage that the balance between State interest and individual rights is upset then the courts must act to restore the balance.
CALLINAN J: There is always some pressure. Even in a properly conducted interview there is going to be disparity and there will be evidence or claims later by a person who wishes to recant of his confession that he was frightened or he was not comprehending or he was trying to protect somebody else. All of those things amount to pressure simply by circumstance and place. There is always a jury question about this so the amount of pressure is always a question of degree.
MR TEHAN: The pressure there, your Honour, comes about from the position of the individual being questioned, by the fact of him being questioned.
CALLINAN J: And the place where he is being questioned and the persons by whom he is being questioned and the circumstances in which he is being questioned.
MR TEHAN: And would it not be worse here? This was no junior constable questioning a man about something. This was the alleged boss of a criminal gang, a man who had dealings with corrupt police.
CALLINAN J: A colleague.
MR TEHAN: Not a colleague at all.
CALLINAN J: An intended colleague. He wanted to be one of the boys.
MR TEHAN: An employer.
CALLINAN J: An employer? Was there that sort of hierarchy?
MR TEHAN: An employer, a head of a criminal gang, which had links with corrupt police of such an order – this is what was put forward – that the murder investigation would be stopped, would go away.
GLEESON CJ: A patron.
MR TEHAN: Patron, indeed. Not some junior constable conducting a record of interview. It is at that stage when there is pressure put, as there was in this case, that the confession is, in our submission, obtained at quite too high a price and the use of such a confession in a court of law demeans not only the court but the whole administration of justice. In this case, the acts of the State went well into the realm of the intentional application of pressure or force. As such, the State crossed the line and upset the balance between its interests and those of the individual and achieved confessional evidence at too high a price.
Here the pressure applied was calculated to obtain the very goal achieved to turn an individual’s repeated statements of denial into a confession. One could easily imagine, in order to achieve such a result, the State would need to exercise force upon the individual of a powerful variety. Clearly, such force, at least these days, could not be physical. As is commonly understood, however, the infliction of psychological force or pressure upon an individual may, in some circumstances, prove far more effective and, as a consequence, far more easily persuasive than physical force.
Here the State deliberately sought to extract from the individual evidence of a confession by means of the exploitation of fear on the part of the individual, a fear that the State new the applicant would feel keenly and to his core. The State knew that the applicant had spent considerable periods in custody. It knew that he was a key suspect and had denied the offence 20 years earlier. The State knew, however, that the applicant had in recent years made certain advances in his life. They knew or suspected the applicant would protect those advances at all costs. For instance, in this case the State knew that the applicant had obtained work in an area that provided him with great satisfaction. They also knew that he was preparing to marry and that marriage meant everything to him.
Most importantly, the State thought, however, correctly or otherwise, that the applicant was probably guilty and, therefore, particularly vulnerable. With all this knowledge the State said to the applicant, “You will inevitably be charged with a criminal offence. You, yourself, know this to be true because of the actions of our overt officers. You can save yourself from such a charge and probably a lengthy term of imprisonment if you confess to us”. That is what happened.
In this manner, the State set about to pressure the applicant into confessing and it did so by a process of deception and manipulation over months involving haranguing and non‑acceptance of the applicant’s denials. It involved the supposed commission of crimes by the applicant and the covert operatives. The applicant’s personal circumstances were preyed upon. Most importantly, he was continually placed under pressure, “Unless you confess you will be charged”. This culminated in the questioning by M in the presentation of the prop, which was riddled with misinformation, on 6 June. The applicant did confess and the State charged him with the criminal offence.
GLEESON CJ: Mr Tehan, how long do you think you will be?
MR TEHAN: I would be about another 10 or 15 minutes. I think I could finish before 1.00 pm, your Honour.
GLEESON CJ: There is no need to rush it. We will adjourn until 2.15 pm.
MR TEHAN: If your Honour pleases.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Tehan.
MR TEHAN: Thank you, your Honour. Your Honours, in one sense, when examining policy considerations in the present case the applicant’s position may not provoke a great deal of sympathy.
KIRBY J: You are dropping your voice. I am not hearing you.
MR TEHAN: Our client’s predicament was different from more attractive examples which might be given. He was clearly not a law abiding citizen who was simply taken off the street and pressured into submission. He was a criminal. He took to being part of the criminal gang. But that fact entitled him to no less protection from manipulation and pressure by police at the behest of the State. His position is important when one comes to look, as I now take the Court to, the judge’s reasons for determining the policy discretion adverse to us. They appear at paragraph 98 at appeal book page 38. If I could refer to that where his Honour says:
I accept that the courts should be zealous to ensure that covert operations of the type undertaken in this case should be scrutinised carefully. It is, I think, raised fairly by Mr Morrissey as a matter of some concern that a person who, as far as I can say on the material before me, appears to have been a law-abiding citizen at the time he was first approached by covert operatives was then introduced into a world of, albeit fabricated, criminal activity.
The reference there to his status as “a law-abiding citizen” in the context of what I have just previously said is this, that he had not been involved in criminal activity for a good many years:
However, on the other hand, the fact is that the accused exercised his own free will in this regard. Indeed, he joined in the exercise with some enthusiasm. Significantly, and contrary to the then belief of the accused, no actual criminal act occurred. The police conduct, although dramatic, was not unlawful. Police officers acting as covert operatives did not commit any crimes. In particular the purported criminal activity was not designed to introduce the accused man into such activity in order to arrest and charge him for it but, rather, used as an investigative tool to solve an extremely serious crime.
It is the part whereby his Honour says that the applicant joined the criminal gang with “enthusiasm” that we particularly concentrate upon, because, as we say, that fact and his position entitled him to no less protection from manipulation and pressure than any other citizen. The other reason why public policy was rejected appears in paragraph 102 on the next page at appeal book page 39:
It is, however, appropriate to note that admissions obtained from suspects in covert operations similar to that now under consideration have been held to be admissible in a series of Canadian cases and in two Victoria cases, Tofilau and Ghiller.
One is then motivated to go to the reasoning in Tofilau and, in particular, if I could take the Court just shortly to paragraph 182 of the judgment of Justice Vincent in Tofilau, to page 71 of the report, where his Honour said:
It is evident that his Honour approached the issue of the possible exclusion of the evidence by reference to public policy considerations, and, specifically the possibility there had been unfair derogation of the applicant’s right to silence with great care. It has not been suggested that he failed to have regard to any relevant principle or authority, but rather that he attributed inappropriate significance to various considerations. The argument advanced on behalf of the applicant to the effect that the process of manipulation in which the police engaged “completely and deliberately undermined his right to silence” is, in my view, entirely without foundation. This was not a situation in which:
“the procedure employed constituted a deliberate effort to circumvent [or undermine] the [applicant’s] statutorily guaranteed right to silence.”
Nor as I have earlier indicated, can the exercise of that right be regarded as compromised solely because the police members involved engaged in subterfuge in their dealings with the applicant.
Now, in our submission, that reasoning which inferentially was taken up by the trial judge in our case is completely wrong and fails to understand and appreciate that the whole process involved here was in fact designed to circumvent the applicant’s right to silence.
KIRBY J: I understand that submission and I fully appreciate what you are saying, but given that this Court has repeatedly said that these questions of the kind that Chief Justice Barwick described are resolved according to the standard of the informed community, given that Justice Osborn in Tofilau said at 90 that he did not believe that the informed community would tolerate the exclusion of the evidence, would a person on the Moonee Ponds tram say that this is all very well for Mr Tehan to go on about these things and maybe it’s unfortunate these tricks have to be used, but more unfortunate is to have a person wandering around our community who has been shown by his own statements out of his own mouth to be a very serious criminal, a murderer, and that when we look at where we now stand, where we have this evidence, that it would not conform to the views of the informed community when you are into the third stage and you are looking at the so‑called discretionary judgmental matter to exclude it once you have got it.
MR TEHAN: When one is looking at public policy considerations, the minimum standards for police behaviour and whether the line has been crossed, what does it matter whether one is dealing with an alleged killer or an alleged thief?
KIRBY J: Because the community is very upset at the thought that it is very difficult to get evidence against these people, that they have walked free for many years and that this is a technique not alone in Australia but developed by police in a number of countries to secure evidence and to close files that are otherwise unsolved murders, the most serious crime that our calendar acknowledges.
MR TEHAN: Your Honour, it does not matter how serious it is.
KIRBY J: You say that, but ‑ ‑ ‑
MR TEHAN: The rule of law has never allowed for the extractions of confessions by pressure by covert police or otherwise, ever.
HEYDON J: You are talking about a discretion. Under Bunning v Cross it matters a lot whether the charge is murder or stealing a few apples from someone’s shop.
MR TEHAN: I appreciate, your Honour, that what I just said a moment ago is at odds with most of the authorities that do say the seriousness of the offence should be taken into account but, intellectually, where do you draw the line? Do you say, well, it does not matter if it is a 0.05 but it does matter if it is a theft, or it does matter if it is a rape but if it does not matter if it is some other offence under the Crimes Act? I mean, the concentration is upon the conduct of the police and, really, issues as to reliability and the nature of the offence should not matter. If the conduct of the police crosses the line, then that is it.
KIRBY J: That may be so where what is involved is a breach of a statutory provision. In your case there may be something in an argument that here the police, agents of the State, are set out to breach your client’s statutory entitlements enacted by the Parliament of Victoria. That is one thing. But once you are in that position and you have got the evidence and this is, as it seems, the only way of solving a very awful crime, a homicide, then when you are in the business at the end of the day in the third stage saying, do we exclude this because of the offence to basic ways in which the police have hitherto gone about their duty, it is a little unreal to say you do not take into account the seriousness of the offence. If it were jaywalking or even some minor larceny or something, it is just quite a different thing, at least in my present understanding, to dealing with and discharging a person who has been convicted on reliable evidence of such a serious crime otherwise unsolved and perhaps unsolvable.
MR TEHAN: Can I say, your Honour, we concede that there is a difference based upon the seriousness of the offence, but nothing permits a pressure. You do not say, well, because the crime is more serious we will allow for the extraction of the confession by pressure.
HAYNE J: “Pressure” simply states the problem. It does not solve it, Mr Tehan, and you apply the term to it and that just masks the problem.
MR TEHAN: It is the fact. It is what the case is about. It is the issue because, as I said, and I repeat unashamedly, that the rule of law has never allowed for the extraction of confessions by pressure, no matter how serious the offence is. That is what happened in these cases.
KIRBY J: It used to in the days of King Charles I. I mean, if it was treason against the King’s Majesty, a little bit of pressure in the tower was quite par for the course. I am not suggesting that we should necessarily go back to that and I do not think that that was suggested for the prosecution.
MR TEHAN: What I was coming to was item (iv) in the argument before lunch was, what is the legislative intention in relation to the law and whether that has been infringed and I wanted to make it clear ‑ ‑ ‑
HEYDON J: But you agreed that that was immaterial.
MR TEHAN: If I am retracting, I will live with that because it is not immaterial.
HEYDON J: You said it was before lunch.
MR TEHAN: It is not immaterial because what happened here was the complete circumvention of a right that the applicant had ‑ ‑ ‑
HEYDON J: Item (iv) talks about legislation.
MR TEHAN: Yes, I know, but the legislative intention must be that a person be properly informed of his right to speak or remain silent where he is being questioned in relation to a criminal offence.
HEYDON J: Which Act?
MR TEHAN: I think I had said, your Honour, it was 464C. It is 464A(3) of the Crimes Act (1958) (Vic) and then one must bear in mind section 464J which provides that:
Nothing in this subdivision affects –
(a)the right of a person suspected of having committed an offence to refuse to answer questions . . .
(b)the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence; or
(c)the discretion of a court to exclude unfairly obtained evidence; or
(d)the discretion of a court to exclude illegally or improperly obtained evidence.
What we want to make clear is that ‑ ‑ ‑
HEYDON J: But 464A relates to the detention of people in custody, does it not?
MR TEHAN: It concerns people in custody.
HEYDON J: Your client was not in custody.
MR TEHAN: No, and we have referred the Court in our submissions to the argument that was put that he was in akin to custody. Although the covert operative said, “You’re free to leave at any time”, was he truly free in circumstances where he would be charged with murder? We want to make it clear that although, strictly speaking, the conduct was not illegal within the terms of section 464, it does not necessarily mean that the legislature would have said that this sort of conduct is okay where it is clear that the legislative intention was that persons be informed of their right to speak or remain silent and where the whole process that was operative in this case was the circumvention of the applicant’s right in that regard.
In that respect, I think your Honour Justice Kirby may have asked whether there was anything in England. There is a case which is on, I think, Dr Lyon’s list of authorities, called Re Proulx R v Bow Street Magistrates’ Court and another, ex parte Proulx (2001) 1 All ER at page 57. I want to take the Court to that for a moment if I might. It is a judgment of the Divisional Court of the Queen’s Bench Division comprised of Justice Newman and Lord Justice Mance, who, as I understand is now Lord Mance.
GLEESON CJ: What page?
MR TEHAN: It is at page 57, your Honour.
GLEESON CJ: What page is the passage you want to take us to?
MR TEHAN: The passages that I wanted to take the Court to commence at page 80 and go through culminating in page 85. In short, can I just tell the Court this. It was an extradition case. What was alleged was that in Canada Proulx had committed a murder, he went to the United Kingdom, a scenario very similar to the present cases was set up, a confession was obtained in England in circumstances not dissimilar to the present cases, scenario evidence, an extradition brief was prepared, a Magistrate ordered extradition and Proulx appealed to the High Court. The argument which was advanced on his behalf is perhaps best summed up at paragraph 61 at page 81 where it was said that Mr Massih, who had appeared on his behalf, said:
The circumstances in which the confessions were obtained both infringed English notions of fairness with respect to police conduct and the trial of criminal charges, and also ‑ ‑ ‑
GLEESON CJ: What is the point you take from the judgment?
MR TEHAN: The point I take from the judgment, your Honour, is that their Honours emphasise that there is a significant difference between a scenario where rights are circumvented and a person is simply not told of their rights, simply not warned. That is the first thing. That appears in particular at paragraphs 66 and 67 in the long citation from Christo’s Case and the cases that appear thereafter. And the point of it ‑ ‑ ‑
GLEESON CJ: What they held was that the evidence of the confessions was rightly admitted.
MR TEHAN: Yes, because they were not going to say what might happen in Canada. But what they did say at 75 was this:
In the light of previous authority in this court, and in view of the nature and object of ‘Operation Implore’, I would, if the issue under section 78 of PACE related to a killing in this country and fell to be decided in a purely domestic context, expect the respondents to face very considerable difficulty in seeking to uphold a first instance decision which had admitted the applicant’s confessions. I say this despite the margin allowed to such a court in a domestic context under the Wednesbury approach to appellate review.
HAYNE J: Now, all of that is said in a particular statutory context. The statutory context with which we are concerned is 464A and following, correct?
MR TEHAN: Yes.
HAYNE J: Two points about that. One, 464J is at least consistent with, perhaps even assumes, the sequential approach to it that has been spoken of earlier in argument today and on the previous day, namely consideration separately of the various considerations mentioned in 464J. Is that right?
MR TEHAN: Yes.
HAYNE J: Secondly, you speak of rights being infringed ‑ ‑ ‑
MR TEHAN: Circumvented, with respect, your Honour.
HAYNE J: Circumvented. Section 464A does not apply in this case, does it? It does not apply because the persons concerned were covert operatives and therefore outside investigating officials. Is that right?
MR TEHAN: Yes.
HAYNE J: So 464A is not engaged, is not contravened, right?
MR TEHAN: No.
HAYNE J: So what we are left with is this undifferentiated right to silence spoken of in 464J. Is that right?
MR TEHAN: Yes.
HAYNE J: In that context is it important to consider the approach taken in Swaffield where the question was much more refined than, “Did Mr Swaffield have a right to choose whether or not to speak?” Rather it was, “Did Mr Swaffield have a right to choose whether or not to speak to the police?” That in turn presents the question of whether the bare objective fact that these covert operatives happened to be police, are police, is critical or not, or whether it is the perception. All right, that is the area for debate rather than rather grandiloquent statements about circumvention of rights, Mr Tehan. Can we deal with some principle rather than oratory?
MR TEHAN: Well it is not mere oratory your Honour, because what happened here we would say is extraction. I mean, however your Honour frames it, and we noted what your Honour said earlier today, there is a difference between sending in a fellow with a wire and simply obtaining information or discussing or whatever, and doing what happened here, which was a manipulation of the applicant of events, of what he was doing, of what he was saying, and with the sole purpose in mind, peddling him false information. It is as if the presentation of that prop is like a baton and it is hit over his head and the confession is extracted from him. That is what we say happened in the present case and, in our submission, the law has never allowed for that, and that is why we say the public policy discretion is engaged. And so it was in conclusion, in our submission, that the State did what it could never do in a free and liberal and democratic society, and that is pressurise a citizen to confess.
Now, that really deals with the third error that we complain of as to the two errors that we have identified in our submissions, your Honours. We are content to rely upon our written submissions. May it please the Court.
GLEESON CJ: Thank you, Mr Tehan. Yes Mr Coghlan?
MR COGHLAN: It is submitted that my friend is really contending for the proposition that the discretion ought to have been exercised differently. He shows no error.
KIRBY J: He accepts in his written submissions that he does have to show error.
MR COGHLAN: Yes, your Honour, but he shows no error. His submissions are directed towards a proposition when it is analysed that says no more than that this discretion should have been exercised differently. This judge should not have come to this conclusion, notwithstanding his very careful ruling. These are not cases in relation to which a judge in the run has made some careless potentially unconsidered ruling. These are rulings done in the most careful way in each of these cases. The judge is alert to the real issues. The judge is following Swaffield and Pavic in great detail and coming to the conclusions that they come to and a Court of Appeal in Victoria recognising no error.
On the question of public policy, the matter has been looked at and we admit there are some differences to be gleaned from the cases, but the matter has been looked at in Victoria by six different judges at first instance of the Supreme Court of Victoria.
KIRBY J: They do seem to be following each other.
MR COGHLAN: We follow that, your Honour, but consistent with their duty each of the judges finds no offence to the public policy considerations in relation to this technique and the purposes for which it was used in this series of cases. Three Appeal Court judges, three very senior judges, come to the same conclusion. Separately, a trial judge in Western Australia looks at the technique and comes to the conclusion. So when we are looking at public policy ‑ ‑ ‑
KIRBY J: There is a point though in Mr Tehan’s submission that it is one thing to go off with a mike and try to capture what people volunteer, but it is another thing to actually go out and seek to prove, or I suppose disprove, the theory, the scenario. This is something that is new and you cannot ignore that fact. That is why it is in this Court.
MR COGHLAN: Your Honour, I do not doubt that we would say in relation to that, we would if we could. If there were other means by which the investigation of these crimes could be approached, that is how the authorities would approach them. Dealing with the one case that is before the Court in relation to this particular discretionary matter, the crime that was committed in December 1982 and remained unsolved, the authorities know that looking at what happens round the world, in terms of the way that investigations are to be carried out, find out that there is a technique that has been used in Canada that has got curial approval that they become interested in trying in Victoria, and as much emerges from the ruling made by Justice Osborn in Tofilau. I wondered, your Honour, whether I would be game enough to say it might be globalisation of investigation, but I will not ‑ ‑ ‑
GLEESON CJ: I presume it is past its use-by date now unless the criminal community in Victoria are particularly slow in the uptake.
MR COGHLAN: I take that to be the view, your Honour, that once - there was a matter came to this Court about the police trying to resist the details coming out so that they could keep using the technique. That failed and the matter is now very public. I suppose we should never underrate ‑ ‑ ‑
GLEESON CJ: No, I know what you are going to say; I agree.
MR COGHLAN: You would wonder why the criminal community still uses telephones, your Honour, but they do. So that is the starting point, your Honours. It is submitted in the public policy consideration serious unsolved crime, new technique available, the use of technique, a technique looked at in Canada and has curial approval has been looked at by the courts in Victoria by a large number of judges and one judge in Western Australia and we have curial approval. Now, when it comes to the question of the public policy considerations, it is submitted they are largely one way. Does anyone say there are not risks in these types of techniques in relation to the rights of people? Of course there are risks? But in particular in the very careful ruling by the trial judge in this case, he was very alert to that, gave proper consideration to it and admitted the evidence or refused to exclude the evidence. It is truly discretionary because it is an application to a trial judge in the exercise of his discretion to exclude the evidence. Like all discretions it has to be operated in accordance with the proper legal principles but nonetheless a discretion. It is a discretion to exclude, not to be exercised lightly.
KIRBY J: Is this technique used in the United States or does it fall foul of the Fifth Amendment?
MR COGHLAN: I do not know about this particular technique, your Honour, but undercover officers are used and there are cases that have decided you do not have your Miranda rights in relation to undercover police officers in the United States. Whether it might fall foul of the Fourteenth Amendment as well I am not sure your Honour, due process, I am not sure. I have not found any cases, your Honour, of it being actually used in the United States. There is a written submission ‑ ‑ ‑
KIRBY J: If I can just try to explain the sense of disquiet, it is that this is the modern equivalent of the rack that James I had brought out when the Gunpowder Plot occurred, that it is using psychological torture rather than physical torture and that it does involve officers of the State in overriding what are fairly fundamental principles of the criminal law, the right to silence and the right to have a lawyer before you make confessions out of your own mouth that damn you.
MR COGHLAN: As I said earlier, your Honour, there are plainly risks associated with it but they are not risks that are so great, it is submitted, at the end of the day when the exercise which is engaged in, the investigation of very old crimes of a very serious kind as we are looking at in Clarke, that slightly more desperate measures are needed to meet the day. One thing that I suppose was true of Charles II though in those matters is that ‑ ‑ ‑
KIRBY J: I was not accusing the merry monarch. I was accusing his father, James I when the Roman Catholics ‑ ‑ ‑
MR COGHLAN: James I, your Honour, was the ‑ ‑ ‑
KIRBY J: James I, when the Roman Catholics ‑ ‑ ‑
MR COGHLAN: None of his opponents survived him by 26 years, your Honour, or 25 years. We are dealing with a crime that was more than 20 years old. That was an important consideration in the police as being part of the community officially deciding to adopt this technique. No frolic, this. This is a deliberately decided technique based on what was happening overseas and it is submitted the public policy considerations have to be firmly seen in that context.
It is submitted, your Honour, in relation to those concerns that your Honour has expressed nearly each of the judges who has had to consider the matter has considered in detail those concerns and after considering them come down on the side of admission. It is not – as I say, we all see commonly rulings in 10 lines that cover the question of admission or rejection of evidence, but very careful consideration in these cases is the way the matter was to be approached.
The other difficulty that arises in part about what is now put by my friend is that the accused man gave evidence on the voir dire, the learned trial judge had the benefit of seeing him and coming to certain conclusions about the role that he took that was part of that. We do not even, as part of the appeal books, have the transcript of any of the voir dire. That leads, it is submitted, to the reality of saying that what my friend is really asking you
to do is to look at it again and re‑decide the discretion, no real error being identified. Unless there are other matters that the Court ‑ ‑ ‑
GLEESON CJ: Thank you, Mr Coghlan. Yes, Mr Tehan. I think you have a right of reply on the amendment.
MR TEHAN: The only matter that - we do have the voir dire here, but we were not going to invite the Court to read it. If the Court desires it there are copies for each member of the Court.
GLEESON CJ: If we desire it we will let you know.
MR TEHAN: Thank you, your Honour.
GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.
AT 2.52 PM THE MATTER WAS ADJOURNED
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