Tran v Clanchy

[1999] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M62 of 1998

B e t w e e n -

TIEN TRAN

Applicant

and

MAGISTRATES’ COURT OF VICTORIA

First Respondent

GERARD CLANCHY

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 MAY 1999, AT 10.40 AM

Copyright in the High Court of Australia

MR J.P. BRETT:   May it please the Court, I appear on behalf of the applicant.  (instructed by Kuek & Associates)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with MS K.E. JUDD, for the respondent.  (instructed by the Office of Public Prosecutions (Victoria))

McHUGH J:   I have a certificate from the Deputy Registrar stating that she has been informed by the Deputy Chief Magistrate of the Magistrates’ Court of Victoria that the first respondent will abide by the decision of the Court, save as to any order for costs.  Yes, Mr Brett.

MR BRETT:   As your Honour pleases.  Can I just mention, in that context, that I think the first respondent is probably improperly named as a party to this appeal, and it may be appropriate - - -

KIRBY J:   Well, that can be corrected if you are granted special leave.

MR BRETT:   Yes, your Honour.

McHUGH J:   Statements were made about it in the Court of Appeal, were they?

MR BRETT:   Yes, your Honour, and with respect, I think those statements were probably correct.

Your Honours, the thrust of this application is directed to those charges – and the thrust of it, not the entirety – where the respondent, Clanchy, alleged that he was a victim of these assaults and, nevertheless, proceeded to use powers of interrogation to investigate the offences and then to lay the informations or, as they are now called, charges against the applicant.  Our submission is that this is a practice which is described by Mr Justice Coldrey in his initial judgment at first instance in the Supreme Court as being a practice which occurs frequently and that accords with common experience and, in our submission, it is a practice which is – one which is quite improper and, when examined, quite offensive to common notions of fairness and justice and, accordingly, should now attract the intervention of this Court.

The public, in my submission, expects that the investigation of charges by the police will be a complete, thorough and mutual investigation.  That, in my submission, is a statement of principle with which there can be little disagreement.  If I can refer your Honours to some material which was filed late, being only this morning – and I apologise for that – it is material which I was, in fact, able to locate only yesterday, and that was a book by later Lord Devlin, called “The Criminal Prosecution in England” where he refers - - -

KIRBY J:   Does this go to the question of the integrity of police investigation or some other purpose?

MR BRETT:   The book, your Honour - - -

KIRBY J:   What is the point?

MR BRETT:   The point is that that book provides support for the proposition which I have just stated.  In his book, Lord Devlin says, at page 16, that:

There is a convention –

and he is speaking of a relatively formal convention –

that the police will act fairly, and the judges are the guardians of it.

And at page 77 of his book, he says:

The ideal is that there should be an impartial investigator whose only duty it is to bring the true facts to light.

KIRBY J:   Yes.  Just accept that principle as a principle of desirable practice which the courts, in appropriate cases, will enforce, why is not the answer that your client has the remedy of seeking the exclusion of any evidence that is unlawfully or unfairly obtained?

MR BRETT:   Because, in my submission, it goes beyond that and it goes to the entirety of the circumstances of the investigation and it goes to questions which cannot be remedied simply by the exclusion of evidence.  In the broader context – and some of these matters arise in the present case but, in terms of principle, they could often arise in other cases – an investigator would, for example, in a case of assault, be expected to interview the victim, to obtain a detailed statement from the victim, to interview the accused, to examine, perhaps, the crime scene to see if there was material which assisted the investigation, and it may well be and frequently is the case in assault cases that the accused person alleges that he has acted in self-defence, that he was in fact the recipient of the assault and not the perpetrator of it, or that he was provoked.  All of those matters are matters which would require independent investigation and examination of any witnesses to the incident and, perhaps, an investigation of injuries suffered by both the alleged victim and the alleged perpetrator.

KIRBY J:   But how could you lay down an absolute, unbending and rigid rule?  I mean, you may have a situation in a country town, in urgent circumstances, and there is only one police officer available.  I mean, the common law being common sense will bend to the exigencies of the case.

MR BRETT:   Yes, your Honour.

KIRBY J:   So, there cannot be an absolute rule.

MR BRETT:   No, I do not ask this Court to make an absolute rule.  I ask this Court to espouse principles which would require that the course that was taken in this case, which did not occur at a country police station, it occurred at a suburban police station, and the material indicates a very well manned one, and it is a course which occurs frequently at suburban police stations, that in such circumstances a court ought intervene.  But, of course, in considering an application such as that which was originally made, that is to stay the proceedings, a court could have regard to the fact that the circumstances were exceptional as in that there was no other capacity for an independent investigation. 

It is my submission that ultimately the principle should be laid down and that this is in appropriate forum in which to lay down that principle.

CALLINAN J:   The principle really was laid down, I think, in Penney in this Court.  Have you looked at that case?

MR BRETT:   No, your Honour, I am not familiar with it.

McHUGH J:   Well, it concerns this very issue.  When I say, “very issue”, in the conduct of the police prior to the commencement of proceedings.

CALLINAN J:   And the principle is that:

there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process or –

indeed –

of a fair trial.  That is not to give any imprimatur to incomplete, unfair or insufficient police investigations.  Indeed there may be cases in which the deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. 

So, the principle was stated, as recently as last year, by five members of this Court.

MR BRETT:   Your Honour, I apologise for not being familiar with the case that - - -

CALLINAN J:   There is no criticism of you, I am just pointing out that I think your submission that a principle needs to be stated is wrong because a principle has very recently been stated by this Court.

MR BRETT:   In so far as I have now – now that your Honour has cited those passages to me – a recollection of that case, it did not deal with the power to stay proceedings and, in fact, the passage that your Honour has referred me to contemplates that there be a retrial and it was also in the context of whether it is appropriate for a trial judge or trial magistrate to, in effect, investigate the investigation as a necessary or a frequent occurrence in a criminal proceeding.

CALLINAN J:   No, that was not the principle at all.  The statement that I just read to you is a statement of general import and you may take it, I think, that the Court intended it to be, as it always does when a statement in those terms is made, of general import.

MR BRETT:   Your Honours, could I reply by saying that if it is to be taken that way, it does not seem, in the present case, that it was taken by the Court of Appeal in that way.  The Court of Appeal, I noted, referred to the dearth of authority on this point and certainly found no fault with the course taken by the magistrate in permitting these proceedings to continue. 

There is also, in this case, the added question of the appropriateness of the compulsory interrogation - and it was compulsory - of the accused by the respondent who was the victim.  That process goes beyond, for example, a process that took place in Van der Meer where the investigating officers confronted the victim and the accused and invited the victim to the story and the accused to deal with it.  That was characterised in Van der Meer as being a bizarre process and it was characterised by the then Chief Justice Mason as being inexcusable, and yet it is exactly what took place in the present case.  The police exercised their powers to interrogate a person in custody and the IID refused to investigate his own complaint until he had completed that interrogation.

Those are matters which, in my submission, go to the heart of this process and to the complaints that we have with it and in so far as the case to which your Honour has referred me disagrees with that, it appears perhaps not to have been put into effect, at least in the courts in Victoria.  I apologise for not being able to deal more thoroughly with that case, your Honour, because I am afraid I am not familiar with it.

In my submission, what this case raises is the appropriateness of the remedy of a stay for abuse of process being exercised where, on the face of it, there is an unfairness being occasioned to the accused.  The face of it, we say here, is that the police informant has blurred beyond redemption his role as a police informant who carries the cloak of authority of the State, and a private informant who is answerable, in effect, to no one.  He has conducted the investigation, conducted the interrogation, those under the cloak of authority of the State, but has done so as the victim which would only be appropriate in a case of a private information, we would submit.

The problem now, your Honours, is that this process has received the stamp of authority of Justice Coldrey and then of the Court of Appeal unanimously and unless this Court now intervenes, despite the judgment to which your Honour has referred me, it may continue as, in effect, an endorsement of a practice which is commonplace and which, in my submission, is unacceptable.

KIRBY J:   I cannot see how it can, given that there is authority of the High Court of Australia on the matter.

CALLINAN J:   And in Penney’s Case the Court said that what had happened probably should not have happened, that the police – there was not any allegation of police impropriety, it was police incompetence, but the Court said that the police should have done better than they did do and that the Court was deliberately not approving what was done.  But, nonetheless, the fact that there may have been a defect in the investigation did not mean that the trial process and anything leading up to it was such that a different result should have been reached on appeal.

MR BRETT:   Your Honour, that appears to be a point alongside the point to which I am attempting to make.  Perhaps if I can turn to another line of authority, and that is the case of Horseferry Road Magistrates Court; Ex parte Bennett in the House of Lords which is included in the applicant’s materials.  In that case the proceedings were stayed as an abuse of process ultimately by the House of Lords where there had been impropriety in the extradition process bringing the person to the Court.  Now, I take it from the references that your Honours made to Penney’s Case that in that case it was still contemplated that the matter could go back to trial and a trial be properly conducted.  The Horseferry Road Case was saying in certain circumstances a trial should not be conducted at all.

That case, in fact, has some authority in Australia or some prior authority in Australia in a case in which two of your Honours were involved in New South Wales of Levinge which, although the power was not exercised in that case, your Honours held in the judgments that there was such a power, and that is a power to stay proceedings even though no actual unfairness is demonstrated in the trial process as such but, rather, there is such a defect in the processes they would have - - -

McHUGH J:   They were kidnapping cases, in effect.  Levinge was an allegation of kidnapping, being taken from Mexico to California.

MR BRETT:   Yes, that was the allegation and your Honours found that it was not sustained or, on the material, it was not sustained, but you did advert to the fact that had it been sustained, in effect, your Honours indicated that the power could have been exercised, the power to stay.

Now, my submission, in the present case, is that to exclude the interview would not be enough in the present case, for example.  An interview can have positive points and, again, in Devlin’s book, “The Criminal Prosecution in England” – and because of time I will not take your Honours to the various passages – but at around page 60 there is quite an extensive discussion of the benefits that an accused man can receive from complying with an interview, that is, of putting his defence on the table at the earliest opportunity, of raising issues which the investigator might then wish to investigate with a view to perhaps even not laying charges at all.

KIRBY J:   Remind me if I am wrong but was your client not silent during the interview?

MR BRETT:   He was and that is why, in my submission, it was not enough to simply say he could always have the interview excluded.  It was a “no comment” interview but we say that it is an appropriate use of an interview for an accused person to use that interview not to exercise his right to remain silent but to speak.

McHUGH J:   Yes, but he gave his answers on the advice of his solicitor.  His solicitor advised him to make no comment.

MR BRETT:   In those circumstances, he was being interviewed by the very people whom he, in turn, accused of assaulting him.  For him to answer their questions, in an interview which, of course, is controlled by their questions - not by a mutual discussion but an interview which is controlled by their questioning which means that they can direct the course of it; deal with areas which they believe assist them and not deal with areas which they believe may hurt them.  In those circumstances - - -

KIRBY J:   Are you saying that if we apply our common sense to the matter, we should infer that if he had been interviewed by a neutral policeman only and not one of his accusers, that he would have spoken fully and in detail, give exculpatory statements and would have been not troubled by this prosecution?

MR BRETT:   I do not know that that is an inference you can properly draw and I do not know - - -

KIRBY J:   It seems unlikely.

MR BRETT:   With respect, no, your Honour, in that certainly my understanding is - and I have heard what your Honour Justice Callinan said about affidavit material regarding matters not in the application book - but I understand he made a complete statement to the Internal Investigation Department which is exactly - - -

KIRBY J:   But that would have been about the alleged assault.

MR BRETT:   It would have been about the entirety of the circumstances of the incident in the interview room.

KIRBY J:   Presumably, he will be able, if he so elects, to give that evidence before the court.

MR BRETT:   Then he is in the position, your Honour, where he can do one of two things.  If he has exercised his right to speak in the initial interview conducted by Clanchy, then he is in the position of being cross‑examined twice, in effect:  once by the victim and once by the representative of the victim which, Clanchy, in his turn, is not in that position.

KIRBY J:   But one would expect that if the trial court excluded the statement of the police, it would draw no inferences adverse to your client from the fact that his reasons for silence during the interview could have been connected with the fact that he had been interviewed by one of his accusers.

MR BRETT:   I do not understand the court could draw an inference from his exercise of his right of silence in any event, but an accused person who speaks - - -

KIRBY J:   I am not familiar with what the state of the law in Victoria on that matter is.

MR BRETT:   I think it is still governed by Petty and Maiden, your Honour.  But, in any event, had he exercised his right to speak during the interview, then, firstly, when the hearing arrived he could have relied upon that and exercised his right to stand mute at his hearing.  By being, we say, in effect, forced by the chain of events to give a “no comment” record of interview, he therefore had no choice at the hearing but to give - - -

McHUGH J:   But how do we know he was forced by the course of events when the obvious conclusion to draw is that his solicitor did not want him saying anything?

MR BRETT:   Your Honour, with respect, his solicitor would have been very wise to advise him, in the circumstances that he was being interrogated by the victim, to exercise his right of silence.  Whether the advice would have been the same had he been interrogated by an independent person is a matter of conjecture.  Given that he was quite prepared to provide a statement to the IIB setting out his version of events, then it is certainly not an inference which we would say could be drawn that he would have exercised his right to remain silent had the interview been properly conducted.

It is for that reason that we say to exclude the interview is really of no assistance to him at all.  It is my submission that not only is that an inadequate remedy but there is also the fact that he may well have raised certain matters and, in fact, later did raise matters; that is, matters of injury to himself, supported by some independent evidence – well, evidence of those that observed him which was, in fact, his solicitor.  So, I hesitate to use the word “independent” but supported by evidence which an independent investigator would have followed.  One could not, realistically, expect Clanchy to follow that course because they were all accusations against him.  We say that by allowing a victim to conduct the police investigation there is an irrecoverable flaw and by the nature of the adversarial process, that is ultimately going to permeate the trial process.

CALLINAN J:   Mr Brett, speaking for myself, I think it is an undesirable  practice; in some circumstances, it may be a highly undesirable practice for this to occur to the extent that it does, but each case must depend upon its own facts and it seems to me that you cannot lay down any more general principle than has already been stated by this Court not just in Penney but on other occasions and that this case is just a case that depends upon its own facts.  Other courts have looked at it; looked at it carefully.  It does not seem to me to raise any point of principle, and I am not satisfied that any miscarriage of justice has occurred.

MR BRETT:   Your Honour, in the Court of Appeal there was certainly no statement disapproving the practice, neither was there a statement to that effect in the judgment of Justice Coldrey.

McHUGH J:   We are certainly not going to grant special leave to appeal to make a general comment about the conduct of police.

MR BRETT:   No, your Honour, I understand that but, in my submission, this case really reaches the high watermark of cases where a policeman acts as informant in circumstances where the whole prosecution should be stopped.  The circumstances, in my submission, frequently arise but never do they arise in higher form than here where, in fact, IID had stepped in and said, “We will not take a statement from you until such time as you have completed this interrogation by those whom you accuse of assaulting.”

KIRBY J:   One hopes that the comment of Justice Callinan, with which I align myself, will get to the notice of the police.  But we have dealt with the issue in Penney.  That is a recent decision.  The facts of this case are special.  It is not suggested that the Court of Appeal of Victoria misapplied the principle in Penney and you have remedies for the exclusion of evidence.

McHUGH J:   Penney was decided after this case.

KIRBY J:   But it is not suggested that the principle applied is different than in Penney.

MR BRETT:   Save, as I have said, I continue to maintain, I apologise for not being familiar with that case but that case apparently contemplated a retrial which may result in an acquittal.

CALLINAN J:   No, it examined the process, and what the remedy was was really immaterial.  The Court looked closely at the process and stated the principle that should be applied.  The case did not turn upon whether there should be a stay or an acquittal or a retrial.  The case simply turned upon the process.

MR BRETT:   My submission, your Honour, is that – and I appreciate I have a red light – an impartial observer would be deeply troubled by the fact that the respondent to this application laid these charges in these circumstances, that there ought to have been a stay and it ought to be so clear that this Court ought now lay down the principle that in such

circumstances the prosecution should not be permitted to proceed at all.  Those are my submissions, your Honours.

McHUGH J:   Thank you, Mr Brett.  Yes, we need not hear from you, Mr McArdle.

MR McARDLE:   If the Court pleases.

McHUGH J:   This application for special leave to appeal is dismissed.  The Court is of the view that the case raises no question of principle and that there is no reason to doubt the correctness of the decision given by the Court of Appeal.

MR BRETT:   If the Court pleases.

MR McARDLE:   May it please the Court, I seek costs.

McHUGH J:   Yes.  What do you say about that, Mr Brett?

MR BRETT:   Your Honour, that is set out in the application book in our outline of argument.  I do not add to the submissions contained in ‑ ‑ ‑

McHUGH J:   Yes, thank you.

KIRBY J:   Mr McArdle, though it is, in form, a civil proceeding, it relates to a criminal matter and, at the least, there is, shall we say, a certain anxiety about the point of a police officer who is himself a victim, or alleges he is a victim, interviewing an accused.  Now, would it be a correct exercise of discretion to take into account, (a) the fact that the proceedings are not criminal in nature but relate to criminal proceedings, and (b) that there is an element of disquiet about that fact to deny costs?

MR McARDLE:   In relation to the first point, your Honours, an order for costs in these circumstances is not unprecedented although I am not able immediately to bring to the Court’s attention an occasion on which such orders have been made but my memory is it has been done.

In relation to the other matter, your Honour, I thought that his Honour Mr Justice Coldrey made some observation there that this practice may or may not be desirable.

KIRBY J:   But that is not quite as high as Justice Callinan expressed it and as I would be inclined to agree.  Obviously, we have learned in the last 20 years that the decision on prosecution leads to everything that follows.  The decision on what happens at a police station leads to everything that follows up to prosecution, that leads to everything that follows and that, therefore, very critical steps can be taken very early in piece and that may be a reason why it was legitimate in the circumstances for the matter to be ventilated in this Court.  I just want to be assured that that is not an irrelevant consideration for me to take into account.

MR McARDLE:   Well, generally, costs go with the event, your Honour.

McHUGH J:   Yes.  By majority, the application for costs is dismissed.

MR McARDLE:   If the Court pleases.

AT 11.04 AM THE MATTER WAS CONCLUDED