Van Der Meer & Ors v The Queen
[1988] HCATrans 53
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No BS9 of 1987 B e t w e e n -
ROBERT VAN DER MEER
First Applicant
and
SAUL EERICK STORHANNUS
Second Applicant
and
PETER ROSS AYLIFFE
Third Applicant
and
THE QUEEN
Van Der Meer
Respondent
Application for special leave
to appeal
MASON CJ
WILSON J
DEANE J
DAWSON J
TOOHEY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 24 MARCH 1988, AT 10.17 AM
Copyright in the High Court of Australia
ClTl/1/HS 1 24/3/88
MR K. MURRAY, QC: May it please Your Honours, I appear with my learned friends, MR D. CAMPBELL and MR D.J. DURSTON
for the applicant. (instructed by Foreshaws)
MR P.G. NASE: May it please the Court, I appear with MR D. BULLOCK on behalf of the respondent.
(instructed by D.G. Sturgess, QC, Director of
Public Prosecutions)
MASON CJ: Yes, Mr Murray. MR MURRAY: May it please Your Honours, the applicant needs an extension of time and has some problem with the
delay in the prosecution of the appeal.
MASON CJ: Yes. MR MURRAY: An affidavit was filed, Your Honour, with the Court yesterday, I believe, from Mrs Van Der Meer.
MASON CJ: Yes, we have that. MR MURRAY: I would ask Your Honour to permit me to include
that in the material before the Court.
MASON CJ: Yes. MR MURRAY: The problems are also addressed, Your Honour, in an affidavit that the Sydney solicitor for the
applicants prepared a little earlier, Your Honour.
WILSON J: That one is not very informative, Mr Murray, is it? MR MURRAY: Almost laconic, Your Honour. WILSON J: Yes. In particular the date when instructions were
first received was given as 1986.
MR MURRAY: Just the year. WILSON J:
Yes. Any more particularity? MR MURRAY: Your Honour, I am unable, from the table, to give
Your Honours any more precise terms than that. The best I could say, Your Honour, in relation to the
question of delay is as is set out in Mrs Van Der Meer's
affidavit. That family first learned of their son's
problems about the time of the hearing before the
Court of Criminal Appeal in Brisbane and the families
were spread significantly, even by Australian standards.
The Van Der Meers have resided successively in far
north Queensland, in the top end of the Northern
Territory and in central Queensland over the history
of the preparation of this matter, Your Honour.
ClTl/2/HS 2 Van Der Meer MR MURRAY (continuing): Several solicitors have been involved;
solicitors were initially engaged in Brisbane;
solicitors were then engaged in the town of Katherinein the Northern Territory, that is Darwin solicitors
with a Katherine branch and, Your Honour, it isa matter of concern but the facts are that it has
just, Your Honour, been a problem of time and space
and resources.
MASON CJ: It certainly is a matter of concern because 1n cases of this kind the notion of a new trial after
a considerable lapse of time is one that is
exceedingly disturbing.
MR MURRAY: I am very conscious of that, Your Honour. Nevertheless, we would ask Your Honours to consider the matter
on its merits. It is an important and substantial
matter; it is a special leave matter, in our submission,
particularly the confession which, we would respectfully
submit, when examined shows that almost all of
the safeguards which this Court has laid down were
not followed.
MASON CJ: Now, Mr Murray, is that all you wish to say in support of the application for an extension of
time?
MR MURRAY: Yes, Your Honour. MASON CJ:
Very well. You might, I think, proceed with the balance of your case and we will hear Mr Nase,
in due course, on your application for an extension
of time.
MR MURRAY: I hand up, Your Honour, the outline of my submissions. My learned friend has a copy and I understand the
Court officers have already been given copies.
MASON CJ: Thank you.
MR MURRAY:
The main issue, Your Honour, is the confession material.
We respectfully submit that it is precisely
a special leave case and a matter of importance
to the general administration of criminal justice
in Australia. We respectfully submit that the case discloses a deliberate flouting of the rules
of police procedure and the rules that are guiding
the Queensland Police Force; that it shows an incorrect
application of the rules of the law; rules which
have been described by Your Honour Mr Justice Mason
and His Honour Mr Justice Brennan as being safeguards
to ameliorate the risk of uncons~ionable pressur~
on people in custody, and that is from WILLIAMS'
case, Your Honours, at 296 point 8. We respectfully submit that the rules of law are precisely designed
to prevent what happened in this trial and that
ClT2/l/AC 3 24/3/88
Van Der Meer (Continued on page 3A) the facts represent a graphic illustration of
the need for the rules to exist, to be understood
and to be applied. We respectfully submit that the situation at Mareeba on the day in question,
or the days in question, contains all conceivablebreaches of propriety and conduct, except violence.
(Continued on page 4)
ClT2/2/AC 3A 24/3/88 Van Der Meer
t1R. MURRAY (continuing): We say that there was no caution, there was unlawful detention for questioning, that the police
officer ignored request for information; for example,
the first man interviewed the applicant, Ayliffe, was
asked to "tell us about your movements?" His response
was, "I just want to get out of here." We respectfully say that the trial judge erred, that there were wrong
principles and they were wrongly applied and once the
evidence, Your Honours, went in against the applicant,
Ayliffe,and later evidence obtained against the
applicant, Storhannus, we say that the trial against
all fundamentally miscarried. We say that, at least
in Australia, from McDERMOTT's case, custody for the
purpose of questioning has been condenmed repeatedly,
and WILLIAMS, the case from Tasmania concerning the
confessions to burglary,after arrest had been effected
in relation to charges, as it were (a) and (b) and
then interrogation went on to charges (c) to (z),
make it clear that the Court will not permit the
use of confessional material even if it is the only
evidence and even if part of the submissions are
that their statements are not untruthful.
I would like now to take Your Honours to what
happened; page 62 of the book. The first applicant, Your Honours, who is involved is the applicant
Ayliffe,at page 62 point S. At 9.35 the witness,
Sergeant Dickson, sees Ayliffe at the police station.
The evidence discloses that the applicant,Ayliffe,
had gone to the Mareeba police station some time
after 9 o'clock on the morning in question, he being
required as a police witness to go to Atherton, a
nearby town, and went to the Mareeba Police Station
in order to get a lift with the police officers so
he could go and give his evidence in the police case
on some traffic matter.
(Continued on page 5)
ClT3/l/MB 4 24/3/88 Van Der Meer
MR MURRAY (continuing): He was first seen by Dickson at about 9.35 and he was spoken. to, at page 63, at the
office of the Mareeba CIB, at about 9.37.
DAWSON J: I am sorry, page 63 of - - - MR MURRAY: Of the appeal book, Your Honour, volume 1. It really begins at page 62 at about point 6,
Your Honour; that is the jury trial evidence.
DAWSON J: Yes. MR MURRAY: Your Honours see at page 63 the evidence of the
first encounter. The first encounter with the applicant Ayliffe is not taped. Later, the police
officer clandestinely taped his conversations with
the suspects and Your Honours can see there the
questions by Ayliffe:
"What's going on? ..... Peter, we want to ask
you some questions about your movements
last night, starting from about 7 o'clock
until now".
The answers are given and further questioning takes
place. Of course, by this time, Your Honours, the
police have in their control the complainant womanand the male who had gone to the police station at
fiveish that morning and the police officers had
come on duty and they had been investigating this
matter, including the obtaining of medical evidence
and so on,in the time between the arrival of Mrs Wehr and Mr Mitrovic at the police station until up to and
including the time that Ayliffe is spoken to at 9.37am.
MASON CJ: But, where had Ayliffe and the others been in the intervening period of time?
MR MURRAY: It appears, Your Honour, that Ayliffe had been to his home where he had prepared himself by changing
his clothes and having a shower or something like that for his going to Atherton and had come to the police station some time after 9 o'clock. The evidence does not make it clear exactly what time he was there.
(Continued on page 6)
ClT4/l/SH 5 24/3/88 Van Der Meer
MASON CJ: When did the police first make contact with Ayliffe?
MR MURRAY: At the police station at about 9.37. He remained at the police station all day until the early hours
of the following morning and successively the police
oficers collected the applicant Van Der Meer, the
deceased Mayo and then later, Storhannus, in a
succession of actions over the daylight hours. And they were then respectively, we say, clearly detained
at the police station, kept in separate rooms
and incorrrrnunicado from each other for varying periods
of time, but many hours of that day and night.
MASON CJ:
Mr Murray, at 9.30 on that morning were the police in fact looking for Ayliffe?
MR MURRAY: They say, no, Your Honour. They say, no. There is an explanation given as to why Ayliffe was
thought that he might have been involved. They had some information about a man called Peter who had
come from Newcastle- had been at the hotel.
Detective Sergeant Dickson gave evidence that he
was aware that Ayliffe came from Newcastle, that
his name was Peter. Detective Sergeant Dickson
was, it appears, clearly the principal police officer
at Mareeba, had been in the town for some time and
knew at least something about some of the young men
who became the suspects.
MASON CJ: How did he come to enter the police station with Constable Hayes?
MR MURRAY: There are two buildings, as I understand it
from the evidence; One is referred to as the uniformed police place. He went to the car
park actually. And there is some suggestion that Ayliffe was in fact in the police car about to go to Atherton_at the time that Dickson became aware of his presence there and asked that he be brought over to the detectives' office. That is how it happened.
(Continued on page 7)
CITS/1/JM 24/3/88 Van Der Meer MR MURRAY (continuing): Soon after that
Detective Sergeant Dickson telephoned the the prosecutor - his arrangement, firstly, being
a request that the case involving Ayliffe not
arrangements were made without Ayliffe being
proceed because he wanted Ayliffe kept at Mareeba
the prosecutor, accordinR to DetectiveSergeant Dickson, said, Well, that's all right.
informed and those arrangements were in hand
before 10 o'clock.
TOOHEY J: Are you suggesting, Mr Murray, that there should have been a caution administered immediately
Detective Sergeant Dickson spoke to Ayliffe?
MR MURRAY: Yes, Youi Honour, certainly. Detective Sergeant Dickson, by this time, was aware, as were the other police officers, of the
nature of the complaint, the circumstances of the complaint, the offences which were alleged, where it was alleged to have happened including
particularly the assaults which were alleged to
have taken place. They were aware, Your Honour, certainly sufficiently, to have carried out their
duty to inform Ayliffe, the first man spoken to,
of the nature of their suspicions and inquiriesand of his own situation as having been involved.
Nothing like that was done.
DAWSON J: When do you say they were taken into custody? MR MURRAY: From the moment they, each of them, arrived,
Your Honour. They were effectively under the necessary restraint to prevent them from leaving.
The police officer wae cross-examined on the vo1r dire
about that aspect and he said, "Of course, they
were free to leave at any time. I did not arrest them; I could not have lawfully arrested them", and he gives quite candid reasons as to why they were being kept there. They were being kept there so he could question them, which we say is
another example of a breach of the rules of
propriety,if not the law. We also point to the
fact that when Van Der Meer, who was in a room,
I think the kitchen, went to sleep under the table, some police officer thought he had walked out or disappeared and I think the words, "a mild panic",
were accepted in cross-examination by the officers
working for and with Detective Sergeant Dickson
who then, as it were, pressed the alarm bells to
see what action was needed to be taken to "recapture",
as I would put it, Van Der Meer and bring him back
to the police station. Before that response had
been given effect to they discovered Van Der Meer
asleep under the table and all continued to be well.
ClT6/l/SDL 7 24/3/88 Van Der Meer There is no doubt, in my respectful submission,
Your Honour, as His Honour Mr Justice Connolly
found, that the applicants "probably", His Honour
said, believed that they were in custody and when
one looks at the totality of the evidence there
appears no doubt that the necessary degree of restraint
which the law requires was in existence. They were not free to leave; they were under the police
care and custody and there could have been no other
reason for their being retained.
We directed His Honour's attention to difficulties
which were found to be at the hands of the police.
The police station was said to be undermanned:
my count of the names in the evidence - that there
were 13 police officers named who were working for and with, including Detective Sergeant Dickson,
on this inquiry that day and that far from being,
as it were, undermanned in any relevant sense there
was quite an adequate number of police officers
available. Police were brought from Atherton, police were brought from Cairns as the inquiry
continued, and we respectfully submit that the
second point that is made much of in His Honour's
reasons for permitting the evidence is that their
inquiries had to continue with further questioning
of and the obtaining of statements from Mrs Wehr,
the complainant, and also her companion, Mr Mitrovic.
Two comments I say on that, Your Honours, that
firstly from the time that - I think Detective
Sergeant Trotter was the first officer spoken to in the early hours of the morning who took some
sort of a statement from Mrs Wehr. From then on, Your Honour, the police were clearly in possession
of what the complaint was; they had descriptions
of the young people concerned, including their
association with Dunlap's Hotel the night before;
names such as Peter and Saul were forthcoming to
the police.
(Continued on page 9)
ClT6/2/SDL 8 24/3/88 Van Der Meer
MR MURRAY (continuing): In any event, the duty, of course, of the police officers was not to keep these men there
in custody against the convenience of their being
questioned, but it was to investigate the offence
until they had sufficient material which, in their eyes,
permitted lawfully the arrest, the detention of the
suspects, and we say that there is no question thatwhen you turn to the evidence, including the interviews
and also the material given on the voir dire, that
Detective Sergeant Dickson deliberately refrained from
caution, that he deliberately kept the people there and
he deliberately continued to question them in the way
that unfolds, questioning A, leaving A, finding out
something from B, putting to A something which he
says is a contradiction, and so on.
I do not want to unfairly summarize the matter,
Your Honour, but it appears quite clear that
Detective Sergeant Dickson deliberately embarked upon
the course of action of which we complain. It was not forced upon him by any circumstances of emergency or exigency which could have apologized or explained
it, it was not nominal or accidental, and therefore
we say that those matters are clearly within the rules
and that we prevent those matters from - - -
DAWSON J: All of these are matters of fact. Where is the special point of importance in all of this?
MR MURRAY:
Well, Your Honour, the special point is that it is, of course, vital to the administration of the criminal
justice in Australia that the rules that have been laid down be understood and be applied. Now, they were not correctly interpreted by the learned trial
judge, they were not applied, a wrong standardwas - - - DAWSON J: Rather you are complaining about his findings of fact, are not you?
MR MURRAY:
I am complaining, Your Honour, about the directions that he gave himself concerning the legal principles
that applied. The only matter to which he refers is whether or not the evidence discloses that Ayliffe,
for example, was overborne, whereas that is not the
criterion that this Court has laid down, and I am
secondly submitting that the Court of Criminal Appeal
in Queensland similarly failed to address the real
issues which are involved and therefore that the matter
is a matter of general importance and a special leave
point. It is not a matter only of the determination
of fact, Your Honour; that the principles as stated
in His Honour's reasons for the admission of the
evidence, we respectfully submit, are wrong. For
example, he said that he found, as a matter of fact,
that these men were cross-examined and says that that
ClT7/l/HS 9 24/3/88 Van Der Meer is not unlawful in Queensland. That, Your Honour,
I would respectfully submit, is something which does
give rise to a matter of general importance in the
administration of justice and is a special leave point.I would like to take Your Honours to the evidence concerning - the tapes were concealed, they were not cautioned, they were cross-examined, a reading of the
transcripts of the material on the tapes reveals an
extraordinary state of affairs, if I could put it that
way, an extraordinary state of affairs. Those are
the matters which I would respectfully submit do raise issues of general importance in the way that the rules
concering the admission of confessional evidence in
these circumstances should be applied in practice.
It is not much use at the coal face, as it were, for
the rules to be clear and understood if they are just
not properly applied or not properly construed and they
therefore do not become the safeguards which Judgesof this Court have said they should be.
(Continued on page 11)
ClT7/2/HS 10 24/3/88 Van Der Meer
DEANE J: Mr Murray, is your complaint about the caution, or the absence of a caution, that no caution was
administered at any time to any of the applicants?
MR MURRAY:
No, Your Honour. Cautions were admitted during the afternoon. Cautions were admitted, it is probable,
associated with the line-up by the officer who conducted the formality of the confrontation line-up
which took place somewhere about 7.00 pm. Some warnings in the afternoon were given; they were all given after the interrogation~ after the questionings, had substantially proceeded; after
admissions are made and after requests for information,
"What is this about? I just want to get out of
here''. No information was given by the police officer as to what he was about.
Now those things in the accumulative, in my
op1n1on, Your Honour, disclose a most disturbing
state of affairs.
MASON CJ: You will identify for us precisely, in due course, when the cautions were given and in what form they
took place?
MR MURRAY: I will, Your Honour, do that for each of the
applicants. I would like to take Your Honours Your Honours' attention - I have not read it - to to book 3, exhibit Q - Your Honour, I have directed
the materials 63, 64 and 65 of book 1 of the appeal
book - page 12, Your Honour, book 3 is numbered
in handwriting at the top right-hand corner.
Your Honour, what I am referring to is the
third page of book 3 of the appeal books - a list
of exhibits and at page 10 there is the first page
of the police-made transcript of the tape. As it begins Your Honours can see that it is picking
up in conversation things which have occurred already.
The evidence discloses that this part of the
witness Dickson repeats certain questions that interrogation commenced at about 10.15 am. The he is asked and more particularly, Your Honour, at page 11 - let me commence there at about point 4, he says:
DICKSON said, "When you told us you went home last night why didn't you tell us you
went to the Hotel ..... "
AYLIFFE said, "Yeah, I went by myself, I got dropped off by Geoffrey."
DICKSON said, "Yeah, but you said you went to Malanda." AYLIFFE said, "Yeah."
ClT8/l/AC 11 24/3/88 Van Der Meer
DICKSON said, "And went home and didn't go OU t . II ••••• DICKSON said, "Did you forget that you went
to the pub."
AYLIFFE said, "No, I said I went to the pub." DICKSON said, "No, I told you you went to the pub." AYLIFFE said, "Sorry, I'rn getting mixed up a bit."
DICKSON said, "Alright, why did you go to
Malanda."
AYLIFFE said, "Went over to see Ashley." ..... "Mainly to see Ashley."
DICKSON said, "Who's Ashley."
WALL said, "Ashley Pedersen."
AYLIFFE said, "I was to go to Court for him
today."
DICKSON said, "Right."
AYLIFFE said, "And I didn't get to see him anyway." DICKSON said, "And now I asked you about this fellow Moose."
Moose is a nickname used to identify one of the
suspects, Mayo.
(Continued on page 13)
ClT8/2/AC 12 24/3/88 Van Der Meer MR MURRAY (continuing):
"And you said that he was staying at
your place ..... Had been for the last
couple of days ..... About a week eh.But he wasn't down at your house before. About 20 minutes ago when I was asking you".
In the meantime, I forgot to inform the Court, having spoken to Ayliffe at the police station, the police went down to Ayliffe's home where
they saw Mayo and Van de Meer and they brought
them back to the police station. Clothing were
the subject of investigation at this stage, the presence of clothing in the washing machine and other matters concerning clothing were already in
the police officer's mind. Going on to page 11: DICKSON said, "Did he leave with you."
AYLIFFE said, "No, I left before him."
Page 12:
DICKSON said, "Now before you told me
that he left five minutes before you."
AYLIFFE said, "Not five minutes."
DICKSON said, -"Well did he leave before you or did you leave before him."
AYLIFFE said, ''I left before him eh. 1·1
DICKSON said, "Well why did you say before
that he left five minutes before you."
AYLIFFE said, "Sorry I didn't mean it."
..... PICKSON said, "How do you mean you didn't mean it. Just another mistake." AYLIFFE said, "I had a shower and then he had a shower and then I said I'm going to Atherton and he said he'd be going up that way too so he'd drop me up." DICKSON said, "What time did you get home last night."
Further questions are asked about his movements,
been at Dunlops, what beers he had had. Not wishing
at all, Your Honour, to do other than take the Court
to the parts which, I submit, are the most significant,
there is a whole series of questions of Ayliffe by
ClT9/l/SH 13 24/3/88 Van De Meer Dickson on page 12, page 13 and then we come to page 14:
(Dickson walked to other office and
returned immediately)
He says to the other police officer:
"What time is it Roy."
WALL said, "Ten thirty four."
DICKSON said, "Peter, have you ever seen that
shirt before. ( ..... green and white t-shirt on table ..... ) AYLIFFE said, ''Mine''.
DICKSON said, "It I s yours ir ...... h. t " DICKSON said, i''Is this the shirt you were
wearing last night."
AYLIFFE said, "Yeah it is."
DICKSON said, "Pardon."
AYLIFFE said, "Yeah it is."
DICKSON said, "Have you an accident or anything
lately."
AYLIFFE said, "What do you mean. 11 ••••• "What do
you mean by that."
DICKSON said, "Well have you been involved in a fight or anything."
The police officer believes there is blood on the
clothing which he is showing, without any explanation
Your Honours, that certainly at this stage there has or caution. to the suspect and, might I say, been no mention of any complaint made by Mrs Wehr or Mr Mitrovic to Ayliffe.
TOOHEY J: Mr Murray, I am sorry to interrupt you but I am not
clear what point is being made at the moment. Is it that the questioning was of an overbearing nature
or that there should not have been any questioningat all without a caution? What exactly is the
complaint about this part of the interview?
MR MURRAY: There are several, Your Honour. One is, no caution had been administered, yet the police officers clearly
regarded this man as one of the offenders.
ClT9/2/SH 14 24/3/88 Van De Meer
TOOHEY J: Why do you say that? MR MURRAY: Well, Your Honour, they had his name and his
origin, Newcastle, in their mind already; that
he had been to the Dunlop Hotel.
TOOHEY J: They did not have his name from the complainant, did they?
MR MURRAY: They had his name, Peter. TOOHEY J: Yes.
MR MURRAY: Blood on the shirt, Your Honour. They had taken his clothing and, firstly, there is no complaint or
any other indication. Secondly, that he is clearly
in custody. Thirdly, the questioning is commencing
to be shown to be cross-examination. It is overbearing.It is designed to do other than elicit information.
In fact, it is designed, partly, to have them say
things which Detective Sergeant Dickson can later
prove to be wrong. He admits that when he comes to be cross-examined on the voir dire. He is given no
explanation of his rights and, as I emphasize, he is
not told, for example, why he is being asked questions
such as:
DICKSON said, "Have you had an accident or
anything lately".
AYLIFFE said, "What do you mean" ..... .
DICKSON said, "Well have been involved in a fight ..... II
AYLIFFE said, "No" ..... "No I haven't been in any fight".
DICKSON said, "And was that a clean shirt when
you wore it out last night".
AYLIFFE said, "Ah a little bit dirty now. I had a nose bleed last night". DICKSON said, "Did you" ..... "You had a nose bleed last night". AYLIFFE said, "Yeah".
DICKSON said: "And are you".
II
AYLIFFE said: "I get them all the time ..... DICKSON said: "Do you". AYLIFFE said: "I've had me nose broken three
times".
ClT9/3/SH 24/3/88 Van De Meer 15
DICKSON said, 11 Oh I see. What caused your nose bleed". AYLIFFE said, "Just normally when it gets real
hot" ..... "Hot weather ..... " DICKSON said, "And did it bleed alot".
AYLIFFE said, "Not a real lot eh".
DICKSON said, "There's blood on this shirt ..... "
DAWSON J: Are you complaining that he was not told why he was
being asked those questions?
MR MURRAY: Yes, Your Honour, certainly. DAWSON J: Does he have to be told why he is being asked those questions?
MR MURRAY: In my respectful submission, he has to be told why he is there and what is the complaint made against
him. He has to be told that because he is in custody and he has to be told that in fairness. It cannot be that the presence of a person in the control of the
police can be used to - I do not shrink from the word, to trap them into making statements, telling
lies which can be later used for the benefit of the
prosecution.
DAWSON J: Well, is there any authority for those propositions?
MR MURRAY: I beg your pardon, Your Honour?
(Continued qn page 17)
ClT9/4/SH 24/3/88 Van De Meer 16 DAWSON J: Any authority for those propositions? MR MURRAY: Your Honour, that they cannot be interrogated? DAWSON J: That they have to be told the reason why the questions are being asked, that there should not
attempt to entrap them in any way?
MR MURRAY: There is no purpose of the caution, Your Honour, unless that is what it goes to.
DAWSON J: You are complaining that the caution was not administered?
MR MURRAY: Yes, Your Honour. Your Honour, the purpose of the caution is to say what they are investigating,
firstly, and secondly, they do not have to answer.
The caution has only two sensible purposes, in
my respectful submission. One is to alert the suspect
as to the topic of the police inquiries sufficiently
for them to know what they are said to have been
involved in; that is firstly and fundamentally.
Secondly, to alert them to their right to silence,
otherwise the caution is meaningless and cosmetic.
DAWSON J: I wonder if the reason why they are to be told what the charge that is to be laid is, is to alert
them as to why they are in custody rather than to
lay the ground for questioning.
MR MURRAY: Your Honour, in my respectful submission, it is
twofold. They must be told why they are in custody because otherwise the arrest is unlawful. Secondly,
they are required to be told of their rights and
there is no point in telling you, "Look, I'm hereto ask you a few questions about your movement last
night. You don't have to answer if you don't want
to", unless it relates to "I'm inquiring into a" -
what he later describes in the trenchant terms
as a savage rape and a savage beating. Unless he
are in danger of countenancing is custody for the tells them, in my respectful submission, what we purpose of investigation.
DAWSON J: I understand that. MR MURRAY:
That is the submission I am making, Your Honour, and I think as the interrogation unfolds the exact
purpose, the deliberate purpose of Mr Dickson becomes
clearer. I got to the stage where he said: DICKSON said, "There's blood on this shirt.
Would that be from your nosebleed.
A YL I FFE said , " I '· d say so . 11 DICKSON said, "Are you certain that that blood
on the shirt is your blood."
ClTl0/1/MB 24/3/88 Van Der Meer 17 AYLIFFE said, "Yeah ..... yeah, it's mine."
DICKSON said, "If we were to have that blood
yours. 11 examined it would be the same blood group as
AYLIFFE said, "I'd say so."
DICKSON said, "Well, was there any other way you could have got blood on that shirt."
AYLIFFE said, "No ..... I haven't been in any
fights or anything."
DICKSON said, "There was no one bleeding near you
last night."
AYLIFFE said, "I don't know."
DICKSON said, "Well later on some time would you
be prepared to be examined by a Doctor to verify
that you had a noseblood last night."
AYLIFFE said, "If you like eh."
DICKSON said, "Pardon?"
AYLIFFE said, "If you like eh."
DICKSON said, "No. Well it's up to you. Are
you prepared to be examined by a Doctor to see to
verify that you did have a nosebleed last night.
AYLIFFE said, "I don't even know what's going
on here."
Now, if it is forgivable until then for the police
officer - he is only young, what is he, 19 or something,
Your Honour.
AYLIFFE said, "I don't even know what's going
on here."
They had been, by the way, to his home and spoken to
his mother in the meantime. There is no evidence
as to what was said I regret to say.
DICKSON said, "I realise that. I know you don't know what is going on here, I was just asking
you some questions about your movement as I told
you before."
Whereas, in fact, Dickson is preparing his case against this man on an aggravated assault and multiple accusations
of rape. He says it: "Doesn't worry me."
DICKSON said, "Are you prepared to be examined
then. Is that what you say."
ClTl0/2/MB 24/3/88 Van Der Meer 18 AYLIFFE said, "I don't want to get examined eh."
DICKSON said, "You don't want to get examined.
Fair enough. Is there any reason why you don't
want to be examined."
He has no right to ask him that. It is like saying,
"I don't want to answer." "Have you any reason why
you don't want to answer?" It is eroding and
emasculating the civil liberty right to silence against
self incrimination.
AYLIFFE said, "No reason. I just want to get out of here." DICKSON said, "Alright. You left the Dunlops
and where did you go after you left the
Dunlops.
AYLIFFE said, "Straight home."
DICKSON said, "Straight home ..... "
DICKSON said, "And who did you go home with."
AYLIFFE said, "Moose."
DICKSON said, "That's Brandon."
(Continued on page 20)
ClTl0/3/MB 19 24/3/88 Van Der Meer MR MURRAY (continuing): Well, Your Honours, just to
illustrate what I said earlier about the knowledge
of the police officers, they know that Brandon Mayo,
deceased now, not at the trial, was Moose, the name
that was used as the evidence unfolded to describe
that person during the night before.
DICKSON said, "Anyone else."
AYLIFFE said, "Just him and me."
DICKSON said, "Alright, and you walked
from the Dunlops directly to your home and
stayed there last night."
AYLIFFE said, "I don't know. I was a bit drunk. Been drinking for a while. ii DICKSON said, "Well you didn't but you,
are you certain you didn't go anywhere else."
There is a misprint there, Your Honour. I think I have made it clear to the Court. This is a transcript
made by the police officers from tapes made inwhat I have never seen but I understand is a small
tape recorder, that y.o.u cannot even hear properly
unless you use an earpiece. It became evidence in
the trial wrongly and which apparently were not playedin the voir dire examination. "I don't know when
I went."
AYLIFFE said, "Iknow where I went. Never went nowhere else. DICKSON said, '¼lright, is there any questions
you want to ask Peter."
WALL said, "What time was it last -
The next detective says - I am sorry, I misread that,
Your Honour. Dickson says to Wall:
"Is there any questions you want to ask Peter. 11
WALL said, "What time was it last night you
had your nosebleed. Was it at the hotel or after you left."
AYLIFFE said, "In the Dunlops. When I was in the Dunlops. WALL said, "Well who else was there who can verify thatyou had a ,nosebleed last night."
AYLIFFE said, "Someone there."WALL said, "Did any of the boys you were with see that." AYLIFFE said, "The only guy that was there I wouldn't know him. It was in the toilets."
WALL said, "What about -
And this is put in leading form, Your Honour -
CITll/1/JM 24/3/88 Van Der Meer 20 "You were with Robert Van Der Meer. Would he have either known would he that you had a nosebleed."
AYLIFFE said, "I wasn't with him at the time."
WALL said, "What about Brandon."
AYLIFFE said, "No, because I wasn't with them
all night eh, I don't. I only run into them in there. 11 WALL said, "Well what did you do when you had
your nose bleed. Did you go down to the toilet
and"
AYLIFFE said, "Washed it off eh."
WALL said, "Washed it off."
DICKSON said, "How much blood did. How badly did it bleed." Your Honour, at this stage the woman has been taken
to the doctor, to the Government Medical Officer and
it is clear, in my respectful submission, that the
only purpose of this is not information but is to
have the man claim and say that it is his blood against
the probability that the police can prove it is
one of the victim's blood. And it amounts to an
improper use of custody and an improper use of
questions. We respectfully submit that that is against the established principles. The next question: DICKSON said, "And you were telling me
before you don't wear underpants."
AYLIFFE said, "No, I had some.underpants on
last night. I just put a different pair on." DICKSON said, "Which underpants did you have
on last night."
AYLIFFE said, "I don't know. I didn't keep track." DICKSON said, "Well where are they now." AYLIFFE said, "Wouldn't know." WALL said, "Well are they in your bedroom or are they in the washing machine or"
At the visit to the police - wrong - at the visit to
home the police had discovered, so the evidence discloses,
that there was certain clothing in the washing machine
at the Ayliffe house.
AYL IFFE said, "Mind if I have a look - my
underpants I've on."
DICKSON said, "Go ahead."
AYLIFFE said, "Yeah, these are the ones."
CITll/2/JM 24/3/88 Van Der Meer 21 DICKSON said, "They're the same ones you had on last night."
AYLIFFE said, "Yeah, yeah."
DICKSON said, "Are you sure about that."
AYLIFFE said, "Ye, pretty sure."
DICKSON said, "Pretty sure. When you got
dressed this morning where were they."
AYLIFFE said, "They were on me. I sleep in my jocks eh." DICKSON said, "Slept in your jocks and you
just got up and put your duds on."
AYLIFFE said, "Yeah, went to work this morning ..... .
AYLIFFE said, "I've got a cleaning job. Do it
for two hours. Get up at six o'clock and went
up and done that."
DICKSON said, ""And you went. Where do you clean. Up here at the Centre or." AYLIFFE said, "No, Coles New world."
DICKSON said, "For Bob Bertoldo,"
AYLIFFE said, "I think Cornelious is his name."
DICKSON said, "Cornelios."
That is just another illustration of how well
Detective Sergeant Dickson knows this town.
DICKSON said, "Yeah, alright if you bear with
us we will be back in a minute. We just want tO, II AYLIFFE said, "How about this court case."
Meaning, of course, Your Honours, the court case at
Atherton.
DICKSON said, "No. It's right."
Because Dickson had arranged for it to be adjourned
so he could keep Ayliffe there.
DICKSON said, "Yeah, yeah it's right. They've
fixed it."
AYLIFFE said, "Do I still have to go."
DICKSON said, "Probably at a later date. It
is only a traffic matter, is not it. Some traffic accident." AYLIFFE said, "Getting it remanded or something."
WALL said, "It's been arranged anyway that there's
no problems because y~'re not there. Do you understand that. DICKSON & WALL left office and walked into Stock
Squad Office to speak to Brandon Patrick MAYO.
CITll/3/JM 22 24/3/88 Van Der Meer
MR MURRAY (continuing): Your Honours, rather than interrupt as the inquiry interrupted, perhaps if I went to
page 57. This is a conversation, Your Honours,
at 12.56; this is with a different detective,
Your Honours, but again it is Mr Dickson. It is 12.56:
Dickson: "Peter, we have just interviewed um Brandon and Rob. 11
Ay 1 i f f e : "Wh a t ' d Rob have to say ? " Dickson: "Well, I'm not going to tell you what either person has to say. I'd rather
hear it from you. You've told me before that you never went anywhere last night."
Ayliffe: "And I just told you different, didn't I?"
Dickson: "Well, 6ou've just told me now that you were present. ' ..... "Is that the truth?" ..... "You were with Brandon, Brandon and Robert, Who's the other man?"
Ayliffe: "Wouldn't know." ..... "Ask Moose."
Dickson: "And a man and a woman. What happened while you were there?"
Ayliffe: "The lady was complaining about how that bloke had - - -
TOOHEY J: Mr Murray, I am sorry, I have lost you. 56 1n which volume?
MR MURRAY: Your Honour, 57 in volume 3. WILSON J: I think it is page 38, Mr Murray. There are two
numberings.in this third booklet.
MR MURRAY:
Your Honour, I know how irritating it is, Your Honour, if we do not have the right pages.
WILSON J: There is one at the top and that is the one you
are referring to but the third volume starts at
page 10 on that basis and I think the proper numbering
is that at the bottom.
MR MURRAY: Your Honour, unfortunately my copy has no numbers on the bottom.
WILSON J: Well, page 38 is what you are reading at the moment.
MR MURRAY: Thank you, Your Honour. In any event, Your Honour,
if that helps at all, my page has page 57 in handwriting
on the top right-hand corner, almost indistinguishable -
it looks life 51.
ClT12/l/SDL 24/3/88 Van Der Meer 23 TOOHEY J: Thank you. WILSON J: For the record it is page 38. MR MURRAY: Thank you.
"It's uh 12.56 ..... I'd rather hear it from II you .
Further down I had reached the stage:
had beaten her up." ..... Knocked a few of "The lady was complainin8 about how that bloke
her ribs in and all this. Some of the blokes ther didn't like it. You know they had bit of piss in him. Sort of agro at the bloke."
Dickson: "Agro at the bloke, you mean the
boy. Her boyfriend?" .....
Ayliffe: "Had nothing - up until this time, Your Honour, as best as I
understand the evidence, Ayliffe had said nothingincriminating.
"Wouldn't know, wasn't watching."
Dickson: You weren't watching, well what were you doing?"
Ayliffe: "Sittin in the car." Dickson: '"'Well, they tell me that whilst
he was in the car he was seriously assaulted
in the car, with blood all over the inside
of the car and all around the outside and
you say that you were sitting in the car and
he was screaming out for help."
Ayliffe: "Ah, I helped him."
Your Honours, also, there has been no caution administered to Ayliffe at this stage.
Dickson: "And beggin8 for mercy and you didn't see or hear anything?
At this stage, Your Honours, we see.where~_there are colourful.,.
I would respectfully submit, cross-examination
adversary type questions used by the police
which are not quotations, not even claimed to be
quotations, of the material the police have collected
from the two complainants.
ClT12/2/SDL 24/3/88 Van Der Meer 24
Dickson: "And begging for mercy ..... Ayliffe: "I helped him. I picked him off the ground and helped him to the car."
Dickson: "When." Ayliffe: "Just after someone got into him. If
Dickson: "Just after who got into him?"
Ayliffe: "I wouldn't know."
Dickson: "You don't know who got into him?" Ayliffe: (No reply) Dickson: "I'm sorry I can't hear you.
You say you don't know who got into him?"
Ayliffe: "No." Dickson: "But you were there, only a matter of feet away with three of your friends."
Ayliffe: "I'm sure Moose would have told you. II Dickson: "Pardon."
Ayliffe: "I'm sure Moose would have told you. II
Dickson: ~Who's moose. Which one's Moose. That's Brandon Mayo."
Ayliffe: (Nods)
Dickson: "But I. See I don't want to say
to you what Brandon has said. I would rather
• f II
h ear 1t rem you.
Now, Your Honour, that clearly is an inducement. It is not permitted on any view of propriety to
conduct an interrogation in that way.
DAWSON J: Why is it an inducement? (Continued on page 26)
ClT12/3/SDL 25 24/3/88 Van Der Meer
MR MURRAY: Your Honour, it hints - Moose has told us that you are involved, Moose has - excuse the vernacular -
put you in, but I would like to hear it from you.
He does not say it, but what other inference could
you draw. Do you see what it says, Your Honour: Ayliffe: "I'm sure Moose would have told you."
Dickson: "Pardon. 11 Ayliffe: "I'm sure Moose would have told you."
Dickson: "Who's Moose. 11 ••••• "See I don't want to say to you what Brandon has said. I would rather hear it from you."
Now, it cannot be, Your Honour, that Brandon has
exculpated you, but I would like to hear your denials.
It is clearly that I already know, my boy, all about this.
If you put these words, I already know the truth, but it would be better for you if you told me yourself.
Now, there are examples of that sort of matter in the
authorities which have specifically been found to be
an inducement by a person in authority which I know
is only one of a whole raft of criteria for
refusing to admit evidence on either of the two grounds.Ayliffe goes on:
Ayliffe: "I told you eh. I told you what they'd say."
Dickson: "I 'm sorry. I can' t even hear you. 11 Ayliffe: "I told you what they'd say."
Your Honour, the only explanation I can give is that
that appears to be relating to something that has been
said before this tape was again resorted to.
Dickson: "Are you saying now that you didn't see any of this happen? Did you hear the
woman calling for help at any time?" Ayliffe: "Yeah, but what could I do." Dickson: "Well, I don't know. What happened when she was calling for help. Why was she calling for help." Ayliffe: ''I don't know.'' Dickson:
"You don't know. Where were you when she was calling for help?"
Ayliffe: "I don't know."
ClT13/l/HS 26 24/3/88 Van Der Meer
Dickson: "You don't know. Where were you when she was calling for help."
Ayliffe: "I don't know."
Dickson: "You don't know. Well, were you still seated in the car?"
Ayliffe: "Wouldn't know."
Dickson: "Why was she calling for help? Did you have any idea?" What do you think?"
Ayliff e: "What do you think?" Dickson: "I know what I think but what do you say happened?"
Ayliffe: "I'm not saying nothing."
Dickson: "Beg your pardon." Ayliffe:
"Not saying nothing." "I didn't want to have nothing to do with it."
Dickson: "Nothing to do with what?"
Ayliffe: ".Nothing to do with it." Your Honour, I do not suppose one is entitled to address
these things with too much meticulousness, but is he
not there saying, "I'm not saying anything", and then
does not the interrogation go on, because it is an
interrogation.
Ayliffe: "Didn't want to have nothing to do with it in the first place."
Dickson: "But why not tell us the truth
when you came in here?"
Now, that has to be, Your Honour - there is no way that can be supported:
Ayliffe: "Let you'se find out for yourselves."
Dickson: "Fair enough. What part did you have in it?"
And he has not yet told him anything of his, the
police officer's suspicions, or the topic of his
inquiry:
Ayliffe: "I had nothing to do with it. He gave that bloke a hand to get in the car.
He was telling the others to lay off."
Dickson: "What about the woman?"
C1Tl3/2/HS 27 Van Der Meer
Ayliffe: "They started to piss off." Dickson: "Did you see that her clothes were torn from her body. That she" -
presumably, that is an interruption -
Aylif fe: "No idea." Dickson: "Completely destroyed. That her
bra and pants were torn off. Her dress was all torn."
The evidence does not support those colourful
descriptions, Your Honour, of what happened:
Ayliffe: "(Shakes head)
Dickson: "Well, you heard her screaming for
help. Why was she screaming for help?" Ayliffe: "Why do you think?" Dickson: "Pardon."
Ayliffe: "Why do you think?" Dickson:
"Why do I think. Why do you think she was screaming for help?"
Ayliffe: "Wasn't anything I could do."
Dickson: "You keep saying there wasn't
anything you could do. What was happening?" Ayliffe; "I told them to leave her alone, told them to leave her alone. Told me to
piss off."
Dickson: "Who did you say this to?"
Ayliffe: "The blokes who were there."
Dickson: "Which blokes?" Ayliffe: "All the blokes."
Dickson: "You told all. The other three to leave them alone, and they told you to piss off."
Ayliffe: "Mrmn" -
and of course, the police officer puts down the word -
(Affirmative)
ClT13/3/HS
Van Der Meer 28
Dickson: "And what did you do." Ayliffe: "Wasn't much I really could do, eh."
DEANE J: Mr Murray, what is the evidence about when these additional words in brackets were added, and who
added them?
MR MURRAY: The police officer, Your Honour. DEANE J: When? MR MURRAY: When he typed the transcripts of the tape in the days after - - -
DEANE J: When was that? MR MURRAY: It could have started the following day, and
thereafter, Your Honour. I am not certain that the evidence is precise.
DEANE J: Well, did he do it from - - - MR MURRAY: I understand, Your Honour, that if you look at pages 66 and 67 of book 1 - Your Honour, as I recall
the evidence, that they commenced the following day to
go over their notes and to make typewritten
transcriptions, Detective Sergeant Dickson and Detective
Sergeant Wall, but the best answer I can give to
Your Honour Justice Deane is that the specifics were
not adverted to, except (a) they were done by the
police officers and (b) they were done after the
accused had been charged.
(Continued on page 30)'
C1Tl3/4/HS 29 Van Der Meer MR MURRAY (continuing): Your Honour, could I return now to page 6~ in the top right-hand corne~ of book 3 -
I was down the bottom:
Dickson: "No, but did you just stand there and watch, or did you walk away."
Ayl if f e: "Walked away."
Dickson: "Where did you walk to?" Ayliffe: "Side of the car, eh." Dickson: "The side of the car?"
Ayliffe: ''Near the bloke who got beat up, apologising to him."
Dickson: "Were you near the car the whole time?" Ayliffe: "Round near it,yeah. 11 Dickson: "Round near it. Because Brandon has told us and the woman has told us that she was, had her clothing torn off and was
forced down onto the bonnet of the car where
she was raped. Now, if you were near the car, did you see anything?"
Now, Your Honour, again I do not suppose in the
totality of this case it matters but in othercircumstances you would be putting with some confidence
that that question by Mr Dickson is not an accurate description
of the evidence that he had at that stage. It is
a summary and it is an exaggerted summary. I am
not denying that clothing was not torn; I am not
denying that events took place on the bonnet of
the car but if there is anything in the principle
that you should not read a statement from another
suspect, you should give the statement to the accused. I know that is one of the, so-called, judges' rules,
it is a guidance matter, I am not hanging our hat
solely on that but I just pause there to say that
that is, in other circumstances - if we were examining
a recorded interview, that itself would be objectionable -
the case is much more substantial here than that.
Ayliffe: "I was talking to the bloke eh."
Dickson: ''But you never saw, when she was
screaming for help, did you look over to see
what was wrong?"
Ayliffe: "I knew what was wrong." Dickson: "What was wrong?"
ClT14/l/AC 30 24/3/88 Van Der Meer
Ayliffe: "What could I do about it eh." Dickson:
"Yeah, but what was wrong? You keep saying you knew what was wrong. What was wrong?" Ayliffe: "The blokes were gettin intoher." Dickson: "She was being raped?" Well, that is a leading question, Your Honour.
Ayliffe: "Yeah." Dickson: "Who was she being raped by?" Ayliffe: "I wouldn't know."
Dickson: "Well, there was only four of you' s
there."
Ayliffe: "Yeah."
Dickson: "And you were standing as you say within a few feet of her. 11
II
Ayliffe: "It wasn't Rob eh, 'cause he left.
Dickson: "It wasn't Robert who."
Ayliffe: "He walked off." Dickson: "Robert. II Ayliffe: ''VANDERMEER. II Dickson: "VANDERMEER, he walked home. Well,
that only leaves you."
Ayliffe: "I had nothin todo with it."
Dickson: "And Brandon and this other person, and out of that you say, somebody nor you or Robert. That somebody else was raping
her and there were two people left. Who was raping her?" Ayliffe: "I wasn't watchin it." Dickson: "Did you see who was near her when she was screaming for help?"
Ayliffe: "They were both near her." Dickson: "You mean Brandon and this other person were both near her. Do you know Saul Storhannus?"
ClT14/2/AC 31 24/3/88 Van Der Meer
Ayliffe: "Not really." Dickson: "Do you know Saul Storhannus?" Ayliffe:
"No, I don't know him. Probably the other bloke. Suppose. I'd never met him before. First time I'd really met him that
night. I didn't even know his name." Dickson: "Who introduced you?" Ayliffe: "No-one introduced anyone." 11 D 0 d
D. 1c son: k 1 you. II
Ayliffe: "A bloke." Dickso"n: "Did you touch this woman last night?" Ayliffe: "No way." Dickson: "And you are saying now that you were present within a few feet of everything
that happened, but you didn't see what happened."
Ayliffe: "I wasn't gonna look." Dickson: "Why not." Ayliffe: "I didn't want to see it happen.
You think Ilike seeing chicks get raped?"
Dickson: "Probably not."
Ay 1 if f e : "Pretty 1 ow, eh . "
Dickson: "Most people wouldn't"
(Continued on page 3J)
ClT14/3/AC 32 24/3/88 Van Der Meer
MR MURRAY (continuing): Well, Your Honour, that is not - Dickson: "Who bashed the bloke?"
Ayliffe: "Wouldn't have a clue."
Dickson: "The boyfriend, he's got some very serious injuries ..... And may have some permanent
eye damage."
Ayliffe: "I never touched him, eh."
Dickson: "Well, he says he was hit by a flagon
several times."
Ayliffe: "Wasn't me, eh."
Dickson: "Well, who was it, Peter." Ayliffe: Wouldn't know. I didn't even see him get hit by a flagon. He just told me." Dickson: "There's blood all around the car on
the outside and the inside so he was obviously
subjected to a fairly savage sort of beating
on numerous, on different parts of the car.
The back, the front, both sides are splattered with blood."
Well, Your Honours, I merely just, again, flag that as an example.
Ayliffe: "I didn't want to have nothing to
do with it. I wouldn't even watch to see what happened ...... I told you after they
left me. Well, I migh have just helped him
up, and I put him back in the car."
Dickson: "Who left him: After who left him, alone?"
Ayliffe: "Whoever was getting into him." Dickson: "Who was getting into him?" Auliffe: "I wasn't watching."
Dickson: "Did you keep your back turned?" Ayliffe: "Yeah, I was having nothing to do with it." Dickson: "You never looked around once? Ayliffe: "It was dark. Didn't want to see
who was in it."
Dickson: "I was out last night. It wasn't
all that dark."
ClTlS/1/MB 33 24/3/88 Van Der Meer
Ayliffe: "Yeah." Dickson: "Last night. It was a lovely clear night ..... I spend a lot of time out at night
and no matter how dark it is, you can alwaxs
see something. Would you agree with that? 1 That is improper.
Ayliffe: 11 Yeah. 11 Dickson: "And particularly if you are with three or four of your friends near a car. 11
Ayliffe: "Wouldn't call them me friends."
Dickson: "Three or four peofile at a car,
you can still see something.'
Ayliffe: "Not if you're not watching." Dickson: "Not if your not watching. Peter,
the lady says that she was raped by all four
men there last night."
Well, Your Honours, that is the first time that
there is any accusations specifically put like
that.
Ayliffe: "Not by me. I wasn't in it. She wasn't raped by me. That's for sure."
Dickson:· "Did you try to rape her?" Ayliffe: 11 No. 11 Dickson: "Did you tell Brandon Mayo that you were going to rape her?"
Ayliffe: 11 No. 11
Dickson: "But you couldn't get an erection?" Ayliffe: "They told me and I thought that I couldn't get an erection."
Dickson: "What were they telling you?" Ayliffe: "They told me to come and have a go." Dickson: Who was telling you this?" Ayliffe: "Whoever, eh. 11 Dickson:
• II h W oever, Peter, xou k now. You're
being very evasive with me. 1
ClTlS/2/MB 34. 24/3/88 Van Der Meer
MR MURRAY (continuing): Your Honour, that is locus classicus, in my respectful submission, of what is not permitted.
Dickson: Why won't you tellme who told you to come and have a go?"
Ayliffe: "They both did then, eh." Dickson: "Who's both?"
The next page, Your Honours, 65:
"Never layed any hands on her or anythin?i.
Just asked her if she was alright." ..... 'There wasn't anything I cold do .....
Dickson: "Well, why didn't you leave when
Robert left?"
Ayliffe: "Cause I didn't even know Rob had
left, at the time. He left. I didn't know he'd gone, otherwise I would of, eh."
Dickson: "Did you see Brandon Mayo rape the woman?" Ayliffe: "No." Dickson: "Did Brandon tell you he had raped
the woman?"
Ayliffe: "Nub. (negative)"
Dickson: "Did Brandon ask you to come and have your turn at raping the woman?"
Ayliffe: "(Shakes head negative response)"
Dickson: "Did the other man ask you to come and have your turn at raping the woman?"
Ayliffe: "I don't know. Not saying, eh." Dickson:
. " Beg your pardon? "
Ayliffe: "No." Dickson:
"You' re not saying. Why not?"
A 1 .ff . y i e. "I d on t want to. . .... I "
D . ic son. k . "D on t want to. . . . . . I " "Wh y not, p eter. ? II
Ayliffe: "Look, I never raped her, and I never bashed that bloke either. Tried. Tried
me best to stop it. Just told them to stop.
That's about all I could do. Couldn't go
and grab em, and start chucking them around?"
ClT16/l/SDL 35 24/3/88 Van Der Meer
Dickson: "Why not?" Ayliffe: "Ah, look at the size of them, two of them against me. You reckon I could flatten them. If I could have stopped it I would
of, eh."
Dickson: "Did you see them raping the woman?" Ayliffe: "No, I wasn't there." Dickson: "Did Brandon tell you he'd raped the woman?" That is the second time.
Ayliffe: "No, he didn't." Dickson: "He did tell you to come and have your turn though?"
Ayliffe: "Yeah, they both did. 11 Dickson:
"Where were. They both told you that? And what. What words did they say to you, that?"
Ayliffe: "Oh look, I was still pretty drunk, II
e . h Dickson: "Yeah, but can you recall what they said to you when they said it? 11
Ayliffe: "Can't recall every little detail."
Dickson: "But can you recall words to the similar to what they said to you?"
11 They said, 'Oh, Pete.
Ayliffe: You can come over and have a go,' and I said, 'No.'
So he got up me."
Dickson: "And was the woman screaming and calling out for help at this time? 11
Ayliffe: "She was. For a little while."
Dickson: 11 For a little while, and what happened after that. 11 Ayliffe: 11 She was shut up. 11 •••••
11 She shut up.
Dickson: Were any threats made to the woman or the man about getting a 303 rifle and shooting them?''
CIT16/2/SDL 36 24/3/88 Van Der Meer MR MURRAY (continuing): Well there is a page, Your Honour,
or two missing:
Ayliffe: "He said Moose was washing clothes
when you went round there."
Dickson: "Yeah but there were no white jeans
there to be washed and this had blood on it(showing shirt) and it wasn't washed."
Ayliffe: "I wouldn't know, eh."
Dickson: "Do you know that Brandon washed all
his clothes this morning?"
Ayliffe: "Yeah, cause he told me." Dickson: "Why did he wash his clothes?" Ayliffe: "Wouldn't know."
Dickson: "Did he say why?"
Ayliffe: "To get the blood off." Dickson: "To get the blood off." Ayliffe: "I wasn't talking to him, I didn't
even know he was going to wash his clothes."
Dickson: "Was there some discussion this morning between you about what had happened?"
Ayliffe: "Not really."
Dickson: "Well not really. Was there anything
said?"
Ayliffe: (No answer) Dickson: "And which pair of jeans did you have on this. A pair of white jeans. "What similar to these."
Corduroys, straight jeans and so on. Next page,
Your Honours:
Dickson: "The ones you've,·go.tt on now. Why did you. You had different pants on because
they blood on them. Did you make a point of
washing them because they had blood on them?"
Ayliffe: (shakes head negatively) Dickson: "Did Brandon."
ClT17/l/SR 37 24/3/88 Van Der Meer Ayliffe: "I don't know I wouldn't have a
clue, I didn't even know he was going to do
the washing."
Dickson: "What was the position with the key?" Ayliffe: "Pardon."
Dickson: "With the key to the car." Ayliffe: "Don't know what happened to that, eh."
Dickson: "Did um, You remember hearing her boy friend saying he wanted to wait there till
morning. Didn't want to go in the car again
with you?"
Ayliffe:"Just asked him if he wanted to go back into town."
Dickson: "Who started the car?" Ayliffe: "I did."
Dickson: "How did you start it?" Ayliffe: "Hot wired it, eh."
Dickson: "Just hot wired it. Did he object to you doing that?"
Ayliffe: "No, he didn't, eh. He asked me to start it." Dickson: "It seems funny he asked you to start
it when he had the key in his pocket."
Ayliffe: "Did he, he didn't tell us that he."
Dickson: "Well as you just said, he asked you
to start it, hot wire it."
Ayliffe: "Yeah." Dickson: "Yet all the time he has the key in
his own pocket. Why would he do that?
That is clearly cross-examination, Your Honour:
Ayliffe: "Don't know."
Dickson: "He says he asked you not to start it and not to leave there and to leave them there
till morning."
Ayliffe: "Don't remember him saying that, eh."
ClT17/2/SR 38 24/3/88 Van Der Meer
Dickson: "You don't remember him saying that?" Ayliffe: "Yeah, I didn't even pull the wires out." Dickson: "Well did he ask you to hot wire his car." Ayliffe: "No ..... what had happened the wires had been pulled out and I was just sitting there
looking for the keys. He didn't tell me anything about it might of just bumped the wires
together and it started taking off because it
was in gear and we realised ...... so I started .... .
(Continued on page 40)
ClT17/3/SR 39 24/3/88 Van Der Meer MR HURRAY (continuing):
Dickson: "Well you just told me he asked you to hot wire his car and then you said he didn't ask you."
Ayliffe: "He didn't ask me to hot wire it. But I started it."
Dickson: "He didn't ask you to hot wire it." Ayliffe: "No. " ..... Ayliffe: "Then I stalled it toJd me to start it up again take them back to town."
Dickson: "Who was driving?" Ayliffe: "I drove up." Dickson: "Did you drive back and up?" Ayliffe:
"No. I just drove back. 11 Dickson: "Who drove out?" Ayliffe: "Saul I think." Dickson: "Saul. You know Saul do you."
Ayliff e: "Nuh. 11 Dickson: "Why did you call him Saul?" Ayliffe:
"I know his name now. You told me." Dickson: "He is a friend of your brothers." Ayliffe: "I didn't know that. Seem to have known me." Dickson: "Pardon. 11 Ayliffe: "Seemed to have known me, but I didn't know him.'' .....
Ayliffe: "Seemed to have known me, but I didn't know him."
Dickson: "Does he work?" Dickson: "Someone said to the people that you Ayliffe: "Wouldn't have a clue, eh."
had to get back to go work this morning.
Ayliffe: "Yeah, 6 o'clock. 11 Dickson: "Was that you?" Ayliffe: "Yeah." Dickson: "And what time did you get back?" Ayliffe: "Ah, about half past five." Dickson: "And you went straight to work?" Ayliffe:
"No I slept about half an hour. Then I got up at six and went to work."
Dickson: "You got home at about half past five. What time did you go out there."
Ayliffe: "I wouldn't have a clue." .....
CIT18/l/JM 40 24/3/88 Van Der Meer
Dickson: "Straight after the Dunlops shut?" Ayliffe: "About that." Dickson:
"About that mm. This when Mrs Buck was going around asking everyone to leave because
it was closing time?"
Ayliffe: "Nodds. (Affirmative)" Mrs Buck, Your Honour, is the publican of the Dunlop Hotel.
Your Honour, the reasonable inference from that
is, of course, that by this time the detectives knew
quite a lot about the movements of the accused,
in fact, on that night.
Your Honour, I think it might be convenient if
I take You~ Honours to the witness Mayo. Now, Your Honour, I appreciate that Mayo was not at the trial.
Use was attempted to be made of Mayo's evidence by counsel appearing for one of the then accused because
it was said that material had been mentioned by Mayo
to the police which exculpated one or other of them.
But I am referring to it because it was, in my
respectful submission, clearly relevant on the voir dire
for His Honour to have investigated the totality of the
police inquiry to see just what took place at thepolice station in that period of many hours.
I apologize again for the pagination, but I
think I now go to page 12 in the handwritten version.
(Continued on page 42)
CIT19/2/JM 41 24/3/88 Van Der Meer MR MURRAY: Yes, Your Honour. It is page 37 in the top right-hand corner, if Your Honours could -
well, Your Honour, it is not easy to follow. It
is not easily followed for us, so it must be harder
still for the Court.
At the back of my copy of the book, Your Honour,
there are a number of pages. There are six pages,
Your Honour. I do not know, Your Honour. I cannot
explain the notations on the page before them. I understand and I mention it because that is my
understanding that those pages at tne back of thebook are references to a conversation between Dickson
and Mayo before the conversation which I am about to
refer to, appears at page 37. Your Honour, perhaps I should read a little bit
at any rate of the material at the back:
DICKSON said, "Brendon, we want to ask you some more questions about your movements - - -
MASON CJ: Well, now, how many pages from the back?
MR MURRAY: I believe it is six, Your Honour. MASON CJ: The sixth page from the back. MR MURRAY: Yes, that is where it starts. MASON CJ: Starting:
DICKSON said, "Brendon -
MR MURRAY: It is six, Your Honour, and it starts:
DICKSON said, "Brendon, we want to ask you some more questions about your movements last
night".
MAYO said, ''Allright. Can I go to the dunny?"
WILSON J: That is numbered "31" in -
MR MURRAY: At the top right-hand corner. MASON CJ: Yes, and "116" is the correct number in
MR MURRAY: In the correct pagination. Thank you, Your Honour. MAYO said, " ..... Can I go to the dunny?"
DICKSON said, "Sure. It's just there".
MAYO then went to the toilet and returned a
short time later and sat back in the office.
C1Tl9/l/SH 42 24/3/88 Van Der Meer DICKSON said, 'Brendon, would you please go
through your ~ovements for us again last
night?"
:MAYO said, "It's just like I told you before".
DICKSON said, "You told us before that you
walked around for hours talking to Peter AYLIFFE.
He is in my office now and he tells a completely
different story. He says that he went straight home last night. Why would he tell a different story to you?" :MAYO said, "Maybe he forgot. I don't know. Ah, you know anyway". DICKSON said, "Know what Brendon?"
:MAYO said, "Ah man. You've put it all together.
Your not an idiot. Your smart enough to know.
You've got it all figured out".
DICKSON said, "What Brendon?"
:MAYO said, ·"Ask one of the others to tell you
and then you can ask me. Just so you don't get it off me first. I'll tell you but I don't want to be the one to give everyone up".
DICKSON said, "What do you mean Brendon?"
:MAYO said, " ..... You know. You know everything. You guys are not dumb. You knew all along". DICKSON said, "No we didn't Brendon. We are just trying to find out what's going on. Everyone is
telling different stories about their movements
last night".
(Continued on page 44)
C1Tl9/2/SH 43 24/3/88 Van Der Meer MR MURRAY·(continuing): MAYO said 'Have you got ROB?'
DICKSON said 'Robert VAN DER MEER. Yes.'
MAYO said 'So you know it all.'
Van Der Meer, Your Honour, when spoken to refused to answer, made contact with a solicitor and was
cautioned.
DICKSON said 'Brendon, are you prepared to
tell me what you are talking about?'
MAYO said 'What I told you before was all
lies. None of it was true. Not the main
bits. I was down the pub like that and things but the rest wasn't true. I was there.' DICKSON said 'Where?' MAYO said 'With them.' DICKSON said 'Who is them?' MAYO said 'With Peter and Rob and.'
DICKSON said 'And who else Brendon?' MAYO said 'I don't know who the other bloke
was. I don't know his name.' DICKSON said 'Have you ever seen him before?'
MAYO said 'No. Never met him before. I was pretty drunk and can't remember him too
well.'
DICKSON said 'What happened last night Brendon.' MAYO said 'I was at Dunlops. Pretty pissed. Look man. I never touched her. Whatever the others idd had nothing to do with me. I wasn't it that.' DICKSON said 'Brendon, are you prepared to tell me what happened last night?' MAYO said 'After we got out of the Dunlops I was talking to Peter like I said and we were talking to this man and the woman and someone suggested a party so we got some wine
and went for a drive to somewhere. When we got there there was a fight.'
DICKSON said 'What was the fight about?'
ClT20/l/AC 44 24/3/88 Van Der Meer MAYO said 'Dunno. Just a fight with Rob and
the man.'
DICKSON said 'What happened then.' MAYO said 'It was terrible man. They nearly
killed him. He was begging and screaming for help and they just kept into him. Over and over.' DICKSON said 'Who is they?' MAYO said 'Rob and Peter and other blokes. Well you know anyway. Well it was Saul. You know that. You knew all along.' DICKSON said 'Saul Storhannus?' MAYO said 'Saul Storhannus. He's crazy you
know. He really frightened me last night. I thought he was going to kill that man.
Saul jsut goes off and you can't stop him.
I wanted to stop him but if I tried he would
kill me. He goes crazy. He had the bloke down and was kicking and punching him and
kicking him with his boots, you know those
big boots he wears. Then when the bloke was screaming for mercy Saul started jumping up
and down on his back or face ..... Just had
him beside the car and he was holding onto
the roof and jumping and kicking on him.'
DICKSON said 'Who was holding onto the car?'
MAYO said 'Saul. You know. He had his hands on the roof and jumping in the man's back.
Poor bastard was nearly dead .....
DICKSON said 'Why didn't you tellus this before Brendon?'
MAYO said 'Scared I suppose.' DICKSON said 'Scared of what.' MAYO said 'Of being invovled in this. It's pretty bad.
DICKSON said 'Go on Brendon.'
MAYO said 'What do you want to know?'
DICKSON said 'What happened to the woman there. Carlene WEHR.' MAYO said 'Don't know her name. You know what happened.'
ClT2O/2/AC 45 24/3/88 Van Der Meer
DICKSON said 'What happened to her?' MAYO said 'She was raped. It was awful. They
just didn't give her a chance.'
DICKSON said 'Who is they?'
MAYO said 'You know. Saul and Peter.' DICKSON said 'Did Robert VAN DER MEER rape
the woman last night?'
MAYO said 'I don't know. You know it was so fucking terrible I didn't want to watch
it. Do you think I like being there and not being able to do anything about it.'
DICKSON said 'Why couldn't you do anything
about it?'
MAYO said 'Ah, because they would have killed me ..... ' DICKSON said 'Whose idea was it.' MAYO said 'Saul's. It was all his idea.'
DICKSON said 'Was he the ringleader?'
MAYO said 'Yeah.'
DICKSON said 'Who inflicted all the injuries on the man. His name is Michael MITROVIC?' MAYO said 'She kept calling out for Michael.'
DICKSON said 'What was she saying?'MAYO said 'Things like help me Michael and
get them off me. You know. She was calling
for help and screaming and fighting but they
DICKSON said 'Who inflicted all the injuries on the man Mitrovic?' MAYO said 'Saul did. He's really v1c1ous.
He frightens me when he gets like that. You can't stop him.'
DICKSON said 'Was what you told us before true? 1
MAYO said 'That was all lies. I was covering up for them because I don't want to be the one to get them into trouble. They did it so ask them. Don't put me into them please because they will kill me.' held her down and then they raped her.'
ClT2O/3/AC 46 24/3/88 Van Der Meer DICKSON said 'Did you assault the man Mitrovic
last night?'
MAYO said 'No. I tried to help him. I kept asking Saul to stop because I was frightened
he would kill him.'
DICKSON said 'Did anyone else hit him last night?'
MAYO said 'I didn't. I don't know about the others.' DICKSON said 'Did the woman resist the others
when you say they were raping her?'
MAYO said 'Ah yeah. All the time. She was screaming out for help all the time and kicking . ' an d trying ..... DICKSON said 'Did you have sexual intercourse
with the woman last night Brendon?'
MAYO said 'No I didn't. I wouldn't be part of that. I wanted them to stop.' DICKSON said 'Did you go near her at any time?'
MAYO said 'No. Never.'
DICKSON said 'The woman has told me that
when Saul was raping her you came over and
put your hand over her mouth and said something
about someone would hear because she was screaming
so loud and to shut her up.'
MAYO said 'Well I did do that. But just so I could talk to the others.'
MAYO said 'I wanted to ask the others to
DICKSON said 'What do you mean?' go because a light was coming on in a house there and I was asking the others to stop raping her and she was screaming and I just
put my hand over her mouth to quiet her downso that I could speak to the others.'
DICKSON said 'Why was it necessary to put your hand over her mouth to speak to the others?' MAYO said 'Because she was screaming out
so loud I did it so I could speak to the othersand ask them to stop it and lets go.'
ClT20/4/AC 47 24/3/88 Van Der Meer DICKSON said 'Exactly what did you do when you
put your hand over her mouth Brendon?'
MAYO said 'I went over.
DICKSON said 'Over where?'
MAYO said 'Over to them. Saul had her on
the bonnet and all her clothes were torn and
he was raping her on the bonnet. She had all her clothes torn off and he was getting
into her there and laughing about it.'
DICKSON said 'Was Saul naked or how was he
dressed when he was raping the woman?'
MAYO said 'I don't know for sure. He had his pants down when he was doing it I think.
Yeah he did.'
DICKSON said 'Where did this light come on?'
MAYO said 'At a house. Fair way away.'
DICKSON said 'How far?'
MAYO said 'Dunno. Maybe a kilometre.' DICKSON said 'Brendon did you have sexual
intercourse with this woman last night?'
(Continued on page 49)
ClT20/5/AC 48 24/3/88 Van Der Meer
MR MURRAY (continuing): I think that is the third time that question is asked.
MAYO said 'No I didn't. I couldn't do that. They asked me to have a go but I didn't want
to. I thought about it but I couldn't and when I went over and saw how bad she looked
I couldn't.'
DICKSON said .... did you have an erection?'
MAYO said "I' 11 tell you the truth. I did but when I saw here ..... it just went up and
down.'
DICKSON said, 'And you did not touch the woman?'
MAYO said, 'Just to put my hand over her mouth
so I could speak to them.'
DICKSON said 'What happened then?'
MAYO said 'We came back to town. I got the bloke up out there and he couldn't see to
drive for blood in his eyes and we drove them
back and let them go. I'll tell you the truth.
We wiped all our fingerprints off before we
let them go.
DICKSON said 'Who wiped them off?'
MAYO said 'Me and Peter. Probably find plenty
there. I know your looking for them.' DICKSON said 'Whose idea was this?'
MAYO s a id ' Both of us . '·
DICKSON said 'Where did Saul go?'
MAYO said 'We let him off and he walked.
On the road. I then left the office and returned almost immediately and tape recorded a conversation
with MAYO at 12.05.
And that is what appears, Your Honours, at page 37
at the top right-hand corner.
DAWSON J: When was the caution administered to Van Der Meer? MR MURRAY: Your Honour, I can turn that up. DAWSON J: Well, it was after these interviews had been conducted, was it?
MR MURRAY: Your Honour, I am not sure it was not before. Can I just answer that, Your Honour, when my junior
turns it up.
ClT21/l/MB 49 24/3/88 Van Der Meer DAWSON J: Yes. Perhaps your junior could look it up and you can tell me later on.
MR MURRAY: Then, Your Honour, the interview - however that last one was recorded - the next one is a tape.
DICKSON says, "Just sit back up here please
Brandon. What's time please Peter ..... Now Brandon, we were talking here before and you
said that what you told us earlier in the
day wasn't true."
MAYO said, "It was all true because we did
go up the street and have a talk so you ccan
get the people in. You know we were talking." DICKSON said, "When you told us before that
you w·e n t , d id n ' t go in the c a r and a 11 th i s
sort of thinR and didn't go anywhere, that
wasn't true.
MAY said, "That wasn't true."
DICKSON said, "And you also told us that didn't -
sorry, 37, at the top - well, he says it was not true.
MAYO said, "Listen man, you're not no-ones
stupid. You knew who it was straight away
too."
TOOHEY J: Mr Murray, this goes on for pages and pages. Can you tell us what the relevance of the interview,
or two interviews, that appear to have taken place
with Mayo, is?
MR MURRAY: Because ,Your Honour ,they are improper and they are used to confront the applicant, Storhannus~
Improperly obtained confessional material is usedin the accumulative, as it were, in the interrogation
of Storhannus. Now, I respectfully submit that however viewed the authorities make it clear that -
in we are dealing with confession material - the
effect is to the quality of the evidence obtained.
TOOHEY J: Yes. But it is not Mayo's confession that is under attack, it is the use made by it, is it not?
MR MURRAY: Your Honour, it is the admission of it. It is obtained substantially by the use of the previous
interrogations of Ayliffe and Mayo.
(Continued on page 51)
ClT21/2/MB so 24/3/88 Van Der Meer
MR MURRAY (continuing): Once those are obtained wrongly we say that the use of the information obtained
illegally and for the interrogation of Storhannuseffectively makes the use of that either unlawful
or unfair or both. So we say that the interview with Mayo has two effects: one is, it shows the technique that is being adopted deliberately by
the police officers, therefore it is evidence which
in the voir dire of His Honour's duty to examine
the circumstances of the obtaining - the totalcircumstances of the obtaining of the confessional
material and, secondly, we say that this material
was used in the interrogation, the overbearing, of Storhannus. They are the two bases on which
we put it.
TOOHEY J: Is there ,authority for the proposition that if a
statement is obtained from a witness in circumstances
that would make that statement inadmissible as
against the person who made it, but the information
in the statement is put to an accused that that somehow
makes the interrogation of the accused unfair or
inadmissible?
MR MURRAY: ThEre is no specific authority, Your Honour. There is a decision in Western Australia as to what should be done where there is material which
should not be admitted against one of a number of accused. But we say, Your Honour, that the
principles make it quite easy to determine what
the law is in such circumstances and the fact that
there is no factual precedent does not make it
any more difficult to ascertain what procedure
should be followed. We say it is not the facts obtained in the statement, Your Honour; it is
not the information obtained, the movements or
whereabouts, it is the fact of it having been made.
The fact that the confession, the full confession
of Mayo and the full confession of Ayliffe, obtained
improperly, is then, we respectfully submit, used
apparently to persuade Storhannus to confess. It is not just information concerning, for example,
objective facts such as the movement of the car
or which car it was or the actual location of the
scene where this dreadful incident took place,it is the fact of him having confessed.
TOOHEY J: You mean the vice lies in putting to Storhannus that Mayo made a statement when the statement made
by Mayo was obtained unfairly?
MR MURRAY:
Yes, or unlawfully. It is as if, Your Honour, Dickson had said, falsely, "Mayo has confessed
his part fully and has nominated you as the ringleader." That is not the fact, Your Honour, but just assume it is. If that were fals~ and Storhannus then said, "Oh, well, bring the typewriter in and I'll confess~, that would be inadmissible. That would be improperly or unlawfully obtained.
ClT22/l/SDL 51 24/3/88 Van Der Meer I respectfully submit, Your Honour, that where
the statement that persuades Storhannus to confess
is obtained unlawfully or unfairly, it is not only
a matter of its admissibility against Mayo, who is
dead, or Ayliffe, who is not, but it then becomes
relevant on a consideration of whether, firstly,
as a matter of law, secondly, as a matter of discretion,
the admissions of Storhannus should have been admitted.
That is the submission we make.
TOOHEY J: Are you saying then that what was put to Storhannus was not merely information that had been derived
from Mayo but that it was put to Storhannus that
Mayo had said certain things?
MR MURRAY: The effect of it, Your Honour, is that, "You
are in this position now. We know all about this from what Mayo has told us". That is the effect
of what is done by the police officers.
(Continued on page 53)
ClT22/2/SDL 52 24/3/88 Van Der Meer
TOOHEY J: But are you saying in relation to any specific piece of information put to Storhannus that
Detective Sergeant Dickson said, "Mayo says such- and-such. What do you say?"
MR MURRAY: It is not put, Your Honour, as specifically as that, but certainly the use is made of the fact that
we have Mayo - as you already have seen it, Your Honour,
in relation to one of the other statements - "We have
them here, and they have told us." Remember the part
I read, Your Honour, "We want to hear it from you."
He is clearly saying successively, "The game is up.
X and Y are here and have told us what you have done.
Now you might as well tell us yourself."
TOOHEY J: You may be right in that submission, but if you are, then do we need to go to the detail of the interview
with Mayo, if none of the detail was in fact put to
Storhannus as having been volunteered by Mayo?
MR MURRAY: Your Honour, it is difficult for me to assure Your Honour that none of the material is put by Dickson
to Storhannus. So much is extracted from Mayo in the cross-examination interrogation.
TOOHEY J:
Yes, but it would not be difficult to take us to passages where Detective Sergeant Dickson said to
Storhannus, "Mayo said such-and-such. What do you say?"
MR MURRAY: It is not done that way, Your Honour. That would be less exceptional than the way it has in
fact been done.
TOOHEY J: Then again, I wonder what the value of going to the detail of the interview with Mayo is.
MR MURRAY: It shows, Your Honour, the conduct of the officer in the way that he was carrying out his day's
investigation. He was not looking for information,
Your Honour. He did not need information. He was
looking for confessions or contradictions. Now, that is wrong, to keep them in for hours and do that.
You cannot keep - there is no need for me to say it
again - confessions obtained from people who
are unlawfully in custody are not admissible. That is the law in Australia and it should have been applied at the Cairns sittings of the Queensland Supreme Court at this trial. Your Honour, I would wish to come back - I know subject to what Your Honour Justice Toohey has asked me, but in answer to a question Your Honour the Chief Justice
asked me, at page 320, at seven minutes past eight,
the applicant Van Der Meer at about point 4.5
is cautioned by Detective Sergeant Wall.
ClT23/l/HS 53 24/3/88 Van Der Meer
MASON CJ: Van Der Meer, what,page 320? MR MURRAY: Page 320, Your Honour, of the machine-numbered pages at the bottom this time, and at about line 20,
in evidence to the prosecutor, he gives evidence that:
At 8.07 p.m ..... This is Plain Clothes
Senior Constable Hayes ..... I intend to
ask you some questions in relation to
these matters and I intend to make a
typewritten record ..... Do you understandthat?
Van Der Meer replied that:
"I am not going to say nothing until I
get a solicitor." I said, "Do you want to
contact·a solicitor now?" He said, "I don't think he's got an after hours number."
..... "Do you know if Mr Gayler is still
practising as a solicitor?" He said,
"He's got an Elliott or something like
that, his off-sider." I said, "Is he fromCairns?" He said, "Yeah. He's down from
Cairns." I said, "I will suspend this record of interview to see if he can be
contacted ..... The record of interview was
then suspended at 8.12 p.m. and I phoned
Mr Mal Cleland of Gayler and Cleland
Solicitors of Cairns and gave the telephone
to the accused .... !'Mr Cleland has just told
me that you do not wish to answer any
further questions in relation to these matters.
Is that correct?II ..... "Are you prepared to read
through this record of interview and sign it?"
TOOHEY J: That does not suggest a caution was administered. MR MURRAY: No,it does not, Your Honour. TOOHEY J: Simply no statement was given.
MR MURRAY: No statement was taken. It does not get to the stage.
(Continued on page 55)
ClT23/2/HS 54 Van Der Meer MR MURRAY (continuing): As I recall it Your Honours, and I am fallable in these matters, at line 30, the words: I intend to ask you some questions in
relation to these matters and I intend
to make a typewritten record of myquestions and any answers you care to
make ..... Do you understand that?
That is part of the caution. It usually goes on,
Your Honour, I want you to - - -
WILSON J: What page is that?
MR MURRAY: Page 320, Your Honour, at line 30. The caution generally goes on after that, Your Honour, "I want you to clearly understand that you need not answer any such questions if you wish, but that if you do so such questions and any answers you may care to give
may be taken down in writing and given in evidence.
Do you understand that?"
WILSON J: Was any application made on behalf of Mr Van Der Meer to exclude any of the conversations with the police?
MR MURRAY:
No, Your Honour., Van Der Meer gave evidence, the others did not.
MASON CJ: What was the reason for this display of rectitude
in the opening of the conversation with Van Der Meer?
Had the police already known that Mr Gayler would be
acting for Van Der Meer?
MR MURRAY: My recollection, Your Honour, is that when brought to the police station earlier that morning, I think
about 10.00 o'clock, he said, "I am not going to
say anything until I see a solicitor". That is
my recollection, Your Honour, I will do my best to
point that out to Your Honours. Well, Your Honour, I
was taking Your Honours to what was said by Mayo,
but the evidence in response to Your Honour Mr Justice Toohey's question of Storhanrrus and the interview, occurs at page, what appears, Your Honour,
to be page 80, it appears to be exhibit Win the
voir dire from the previous page. And at page 86,
Your Honour, on the top right-hand corner, from
about point 3 down to about point 8, Your Honour will
see specific accusations that Dickson puts to
Storhannus about what Mayo has told him.
TOOHEY J: There is a handwritten note on the page, "inadmissable".
I do not know whether that is somebody's hope in regard
to the statement. Was any section of the statement ruled inadmissable?
MR MURRAY: In the trial, Your Honour, after the voir dire, there was deletion by His Honour of material concerning what
ClT24/l/SR 55 24/3/88 Van Der Meer
the deceased Mayo had said. I do not know, Your Honour but my learned friend - I do not know if he knows
either, but I would be guessing.
TOOHEY J: I do not suppose it matters for your purposes because one can ..... the admissability of the
statement?
MR MURRAY: Mine is the voir dire, Your Honours, yes. WILSON J: What page is this? MR MURRAY:
Yes, Your Honour, page 86, at the top right-hand corner, the machine number at the bottom I do not
have. I would be guessing, Your Honour, and it might be improper for me to suggest that that is a notation from one of those involved in the trial, but
we believe, and it is not easy to follow from thetranscript, that that material within the brackets, Your Honour, starting with "Dickson said" and finishing with "Storhannus said" was deleted when
handwriting.· that is, I do not know. it came to the trial before the jury. Whose TOOHEY J: That would not be surprising?
MR MURRAY: No. Your Honour, I might come to Storhannus if I could just. - - -
(Continued on page 57)
ClT24/2/SR 56 24/3/88 Van Der Meer
MR MURRAY (continuing): Your Honour, at page 16 in the machine numbered, and at page 37 in the top right hand corner
there is the Mayo conversation of 12.06. I had started to read it, Your Honour, and perhaps I could
pick it up again at about point 5:
MAYO said, "Ah listen man you, you're not
no-ones stupid. You knew who it was straight away too." DICKSON said, "Well that's right. We had an idea who it was and then you said to us, 'Well it was
Saul'''.
MAYO said, "Mrrnn"
DICKSON said, "Right."
MAYO said, "I knew you know now those guys now.
No cunt's dumb. Anyone could have sort of worked it out from say the fingerprints. I've got
fingerprints, Peters got fingerprints, Rob's
got fingerprints. Saul's got bound to have
fingerprints. ·
DICKSON said, "And you saw the fingerpint man."
Your Honour, that must be a reference to the scenes
of crimes officer who had come up by now from Cairns,
and it just provides another illustration of the way
how, as the events unfold, al though these men are
kept incommunicado,the total dominance by the police
officers, and the accumulation of the pressure is
going forward because it is now 12.06.
DICKSON said, "On the car."
MAYO said, "When I was in the toilet, you
saw me. I looked down at the thing, didn't you."
Well, I presume he means that he looked down at the car
from the lavatory and saw the fingerprint man
fingerprinting the car. Then Detective Martin says:
"That's right." MAYO said, "I looked down, I was looking at the car you know and I saw him down there taking." DICKSON said, "Who wiped the car down to get the fingerprints off it."
He answers that.
"Because I was ....... saying to her to keep him
calmed down."
DICKSON said, "Well Brandon."
MAYO said, "Calm him down."
CIT25/l/JM 57 24/3/88 Van Der Meer DICKSON said, "Would you please tell me
right from the start just go through it please"
He says, a bit further down: "You realise now that you don't have to tell
me any, answer any questions or make any
evidence. 11 statements as anything you say may be given in
Well, Your Honour, if that is the caution, that is when
the caution is administered, and that is some time about
12.10, 12.15.
DICKSON said, "Are you prepared to tell me now
what you told me before, just from the start."
MAY said, "Probably taped it anyway."
Remembering, Your Honours, that these are secret recordings
in the beginning.
MAYO said, "Probably taped it anyway."
DICKSON said, "The whole lot."
MAYO said, "You taped it already, haven't you."
DICKSON said, "No."
MAYO said, "I saw the tape microphone before
when you sat down before and I was telling a
whole lot of crap.DICKSON said, "All crap."
( Continued on page 59)
CIT25/2/JM 58 24/3/88 Van Der Meer :MR MURRAY (continuing): DICKSON said, "Well why did you tell lies".
MAYO said, "Because I could see the phone, microphone".
DICKSON said, "What microphone".
MAYO said, "The microphone in your shirt.
You had it in there before, I see I've seen
that sort of thing done before. I know what it's all about". DICKSON said, "Well alright". MAYO said, "Me fathers done it, you know. It's making me feel like, look like I'm just dumb
you know. See. You sort of make me feel then like I was dumb, stupid".
DICKSON said, "The position is, you've told us
a lot of lies".
MAYO said, "Yeah".
DICKSON said, "Then you told us the correct
version what you say was the correct version
of the incident".
MA~O said, "See I don't want to do anything.
Say nothing now. If you're going to say to them say how I behaved."
And that does not deter the officer, Your Honour.
DICKSON said, "Well that's".
MAYO said, "That puts me in. That puts me down
to them you know. Then I'll be".
DICKSON said, "How do you mean, it puts you down to them". MAYO said, "That puts me down to them right.
Like you they know how I did it. They know
that I <lobbed them all you know. Why don't
you go. Why don't you get Peter. He gives
under pressure. Why don't you keep getting on his hassle". DICKSON said, "Well, it's not a matter of
pressuring anyone at all Brandon you know .....
As I said to you several times since you been
here like it's we just got you in and we asked
you the truth about the matter eh".
ClT26/l/SH 59 24/3/88 Van Der Meer MAYO said, "That's right, and I told you
the truth".
DICKSON said, "But you don't initially tell
us the truth. Initially you told us you'd
never been there ..... "
MAYO said, "Yeah, I told you after that when
I saw you didn't have the microphone. I did
tell you the truth. As far as I know you probably still got it there now. Probably
got it somewhere else but there's no way put
any answers down to anything so like, so I
put them so I get them and they get in go
to jail with them, I'm going to get knockedout in jail or something like that".
DICKSON said, "Mate, It's not a matter we're
not threatening you with jail or anything.
All we want to know is the truth. You told us before that eh, Saul STORHANNUS was the
fourth person involved. You told us he's the one that inflicted all the injuries on
the man. You said that he was". MAYO said, "Not all of them". DICKSON said, "Well who inflicted. Who else inflicted them". MAYO said, "I told you that before ..... Rob
was this guy hitting the chick. Rob got out of the car and said, "What are you a blimmin
mouse"."
DICKSON said, "Did he hit him did he".
And so on.
MAYO said, "Look like Rob hit him because he
hit the chick and -
And so on. He gives a version of about what happened and then the next few questions down:
DICKSON said, "Did you rape this woman".
MAYO said, "No, I didn't rape her. I didn't
even, I didn't. Do. I went over there, I put my hand over her mouth".
DICKSON said, "I went and spoke to her and
she said that everybody had intercourse with
her".
MAYO said, "Not everyone".
ClT26/2/SH 60 24/3/88 Van Der Meer DICKSON said, "Except the big fellow.
Because he couldn't get an erection".
MAYO said, "No, I didn't. I didn't go. I didn't even get mine in, then".
DICKSON said, "Did you try".
And so on. Well, then, Your Honour, it is - the
questions - well, I say, it is clearly cross-examination.
For example, at about point 6:
DICKSON said, "And she was naked and he had
his trousers off".
DICKSON said: "And she was lying back on the bonnet".
The next question, Your Honour:
DICKSON said, "Are you frightened of Saul".
Well, Your Honour, there are pages of it, as
Your Honour Mr Justice Toohey says,and it is not to
be informed. It is not to be fair to the prisoner
so he will know what these people have said. It is
not giving them the statements and saying, "You do· not have to make any cormnent"'but that is what they
are saying, "You may cormnent if you wish", et cetera.
( Continued on page 62
ClT26/3/SH 61 24/3/88 Van Der Meer
MR MURRAY (continuing): And there are questions about Robert Van Der Meer at page 43 at the top right-hand corner and Storhannus jumping on him. Your Honours,
at page 44 at the top right-hand corner at point 6
or point 7 on that page: Dickson said, "Well, you know, why didn't
you just come out and tell us this this
morning, if you weren't involved?"
Mayo said, "Well, for starters, I was scared.
I didn't want to try and nark any of me mates which I've done now cause Peter's me mate.
Rob's a mate of mine also but ah it just
makes me feel sick, you know. You're not
dumb. You know you got fingerprints. You know that we were there, right, You know we
were there."
Dickson said; "Well, what you told us before that you were too drunk to remember what
happened. That was just a cover up was it."
He was drunk, and then what I say, Your Honours, is utterly improper questioning continues for pages
where the effect of it all is that it completely
over-bore the witness. At page 52, Your Honours - I am not wishing to avoid directing Your Honours'
attention to any part of it, it is just that it
is repetititous. There are questions at 52 in
the top right-hand corner:
I shaved my beard off .....
DICKSON: "Are you quite happy to out with -
this is when they are asked, at the bottom of page 51,
to go out to the scene.
"Are you happy to out with Mr. WALL and ... "
MAYO: "Yeah, I'll go out now." ..... Can I have a cigarette."
DICKSON: "Yeah." MAYO: "I'll go out with you'se."
DICKSON: "See if you can find the spot hey." WALL: ""Just stay there and I' 11 get you one." MAYO: "I'm very upset ya know."
DICKSON: "You see what I mean it's just what I said, cause when you said you could see
me I knew you couldn't because I was standing
here before. I didn't know who was in here
ClT27/l/SDL 62 24/3/88 Van Der Meer because of the reflections on the window.
That's why when you said that I couldn't
understand it."
WALL: "Yeh will get Byrn sy to come too, I think, hey."
DICKSON: "Yeah. Watch the matches alright."
WALL: "Well Swanny and I will take him out with the photographer and fix it up properly".
It is not often one, Your Honours, does get such a complete version of what has actually happened in the police station but that is where it takes
us, Your Honour.
(Continued on page 64)
ClT27/2/SDL 63 24/3/88 Van Der Meer
MR MURRAY (continuing): In the book, Your Honours, the next one is with Mayo, and the next one is with
Ayliffe, another one with Mayo. I think they have been out to the scene with Mr Wall. At 73, Your Honours, at the
top right-hand corner. By now it is 1.50 µn. It starts off:
DICKSON: Brendon, Mister WALL was just telling me that you've changed your story again.
MAYO: Oh yeah. DICKSON: Or you've told him.
MAYO: The truth, eh. DICKSON: The truth. MAYO: Because I did put it in, and pulled it out. DICKSON: Into the woman. The complainant.
MAYO: Yeah, yeah. Because he reckons he
can get my trousers scientifically exaMINED.
Well, Your Honour, there is a piece of evidence
which rarely comes the way of the accused as to
exactly what the police officer has said. Wall
is clearly being quoted by Mayo of having said on
the journey out to the scene, "He can get my trousers
scientifically examined"; it is there.
DICKSON: Oh yeah. We will be having your clothing scientifically examined.
MAYO: Yeah. DICKSON: What's the use of saying. What's
the use of saying, when it's going to be p~oven
anyway, hy?
DICKSON: Well, what's the right story? MAYO: (Talking to WALL) Just what I told you .. Don't need togo through it again.
DICKSON: Well, I wasn't there. Did this
happen when you were out looking at the scene?
MAYO: But I've told him everything. I've told him.
DICKSON: What was that Roy? WALL: Are you prepared to tell Sergeant DICKSON what you have told me?
MAYO: We went out. We got. When we got,
left the Dunlops they, I went down and got
them a flagon, and they all jumped in the
ClT28/l/MB 64 24/3/88 Van Der Meer
car. We went out to this place ..... how toget there properly. You go out Ray Road -
and so on - "swinging gate". Your Honours, there is further, again, questions, detail. The same
things are put to him about his involvement, leading
questions from the police officers; for example,
at page 79:
(Continued on page 66 )
ClT28/2/MB 65 24/3/88 Van Der Meer MR MURRAY (continuing): DICKSON: Do you think that, when Robert just
hit him, would cause all those awful injuries
to his face, you know?
MAYO: I tink so. He's got a powerful punch, eh. Page 80 - Sorry, it has got to be picked up,
Your Honours, at the bottom of page 80, question
about Storhannus again. Then he goes on:
DICKSON: Yes. The alcohol consumed last
night. Did any of youse have any drugs last night? MAYO: No. DICKSON: There was no marijhuana or anything
truth. Might as well tell you. I had a
smoked last night? the
joint beforehand.
DICKSON: Where did you get thatfrom? MAYO: It was only my own stuff.
DICKSON: You got any other stuff? MAYO: No. DICKSON: Did anybody else smoke any cannabis last night? MAYO: No.
"I just like enough" and so on.
TOOHEY J: Mr Murray, I am sorry, I just do not understand what bearing this has on the interrogation of any
of the applicants.
MR MURRAY:
No more, Your Honour, than I have already explained: of the police officer; which confirm exactly what
the techniques that are being used; the persistence
has happened with the others and then the fact that it
was part of the material that was used with which to
persuade Storhannus to - - -
TOOHEY J: Well, you say that and I take it in due course you
will show us where in the interrogation of Storhannus
information given by Mayo was put to Storhannus.
MR MURRAY: I showed Your Honour once, already, where we discussed the question of an exclusion in handwriting
we do not recognise. That is one place. But, and I will certainly do what is available from the
transcript to answer your Honour's question. I say that them all being there, we have an example whereby
Mayo looks out the window and sees the police from the
CIT29/l/JM 66 24/3/88 Van Der Meer lavatory, and sees the police officers going over
the fingerprint, and in the absence of there
being any proper caution, or advice given to these
young men - they know that each other is there.
(Continued on page 68)
CI'f29/2/JM 67 24/3/88 Van Der Meer MR MURRAY (continuing): It is the fact of having one behaved
as the Mayo evidence does disclose, which was
His Honour's duty to consider on the voir dire, and
secondly, as I have said before, the use of that
fact as assisting the police officers to persuade
Storhannus to join in.
MASON CJ: Now we have taken up a good deal of time in going through this material. Is it not convenient for
you to sununarize the remaining material? You have
given us, as it were, samples of what is involved
in this?
MR MURRAY: Your Honour, I am quite happy to do that. The interrogations, Your Honour, continue; the questions
are leading; they amount, Your Honour, to an
attempt to deprive the listeners of their right to
silence, their right to make a free election and a
considerable -
DAWSON J: Cautions were administered, subsequently?
MR MURRAY:
Yes, Your Honour, late in the piece after all the confessional material had been obtained.
DAWSON J: Yes, but what time in relation to each of these people?
MR MURRAY:
In relation to each person, Your Honour. I have given the date, the best I can do as far as
Van Der Meer is concerned - could I just Your Honour - - - DAWSON J: Well if you answer that some time, any way?
MR MURRAY: - - - I will give Your Honours the answers to those
questions, the exact time I will certainly do.
MASON CJ: With a reference to the page number in the papers?
MR MURRAY: Page numbers, Your Honour, I will have that done
in some convenient way. Your Honour, I would then like to take Your Honours from the interrogation
evidence to the voir dire examination.
TOOHEY J: Can I just ask you one more question, before you do, Mr Murray? I understood you to tell us earlier
on that Van Der Meer made no statement - - -
MR MURRAY: Yes, Your Honour.
TOOHEY J: - - - but if you look at page 53 of volume 3, there is a record of a conversation between Sergeant Dickson
and Robert Van Der Meer. I am not asking you to take
us to the detail of it, but if you can fit it into
the time sequence?
MR MURRAY: 12.30 pm, Your Honour.
ClT30/l/SR 68 24/3/88 Van Der Meer
TOOHEY J: Yes, but in relation to the other conversation at which Van Der Meer said that he did not want to make
a statement?
MR MURRAY: Your Honour, the statement to which I have already made reference is at 8.07 pm.
TOOHEY J: So there had in fact been a conversation between Detective Sergeant Dickson and Mr Van Der Meer at midday on 3 February?
MR MURRAY: Yes, Your Honour. TOOHEY J: That is really-all I wanted to put to you.
(Continued on page 70 )
ClT30/2/SR 69 24/3/88 Van Der Meer MR MURRAY: Yes, Your Honour. Your Honour, may I just use the opportunity of Your Honour having pointed that out
to me and indicate there the use that is made by
Dickson of the talk with Brandon Mayo. That illustrates with Van Der Meer the point that I intend
also to make with Storhannus:
We have just had a talk to Brandon
Mayo and he has told us that last night
he went with you with a man and a woman
in that small yellow car.
WILSON J: Was this evidence of the conversation with Van Der Meer admitted into evidence before the jury?
MR MURRAY: Yes, Your Honour. WILSON J: Without abjection? MR MURRAY: Without objection. WILSON J: What complaint does Mr Van Der Meer make of the verdict that - - -
MR MURRAY: Of the trial, Your Honour - that he was involved in a trial at which the jury heard material that should
never have been before them in that - - -
WILSON J: Relating to the other accused? MR MURRAY:
In relating to the other accused. Although directions were given as to separate trials, a separate
trial was, in our respectful submission, impossible.
I know that that is not always a legitimate criticism.
WILSON J: You mean the jury were properly directed about considering the evidence in relation to each accused
separately?
MR MURRAY: Yes, Your Honour, but, of course, once we have the situation where the material grossly prejudicial
to the person against whom it is not evidence is
admitted, and admitted wrongly, then the whole trial, in our respectful submission, must miscarry. It
cannot be that once the material against Ayliffe and
Storhannus is admitted wrongly that the trial of
Van Der Meer can be said to have other than
miscarried.
WILSON J: Although that evidence, from my recollection of what I have seen so far - and I have not read it exhaustively -
did not dob Van Der Meer in, did it?
MR MURRAY: Extensively, Your Honour. WILSON J: It did? MR MURRAY: Extensively. ClT31/l/HS 70 Van Der Meer WILSON J:
I see some reference here from Mayo that would seem to confirm with the evidence that Van Der Meer
gave, namely that he left the scene. MR MURRAY: That he had left the scene, and that is why counsel appearing for Van Der Meer at that time made
some attempt to get the benefit of Mayo's statements to the police officers, but what, of course, is said against Van Der Meer is contained in the statements of
Ayliffe and Storhannus, and they are - whilst, as
His Honour said, self-serving by the speaker - they
are hugely prejudicial to Van Der Meer, and the
situation then, we would submit, is that - - -
WILSON J:
On the basis that the jury could not be expected to regard the trial judge's direction?
MR MURRAY: Your Honour, no, I do not have to make that submission because it is not an easy submission to successfully
make, but I do make the submission that where evidence
has been wrongly admitted which is grossly prejudicial
to an accused person, the trial therefore, if it is
miscarried against the person against whom the evidence
was incorrectly admitted, but had it been correctly
admitted would have been admissible and able to be taken
into account by the jury, that the hapless person who is
being jointly tried cannot be said to have gotten a fair
trial himself, Your Honour, where he is standing in the
dock with people against whom grossly prejudicial
material against he himself is admitted which shouldnot have been admitted.
The failure to reject the confessional evidence,
Your Honour, is such a substantial flaw, that it, for a variety of reasons, means that the trial of Van Der
Meer himself has miscarried.
DEANE J: Mr Murray, you said that the evidence of Ayliffe and Storhannus was gravely prejudicial to Van Der Meer.
MR MURRAY: Yes , Your Honour.
DEANE J: Are you referring to the attack on the man or the rape of the woman?
(Continued on page 72)
ClT31/2/HS 71 Van Der Meer MR MURRAY: I am referring, Your Honour, to the attack on the man.
DEANE J: But not to the rape on the woman? MR MURRAY:
Your Honour, I do not think they do accuse him of raping the woman.
DEANE J: My reading corresponded with Mr Justice Wilson's and that is that they supported his evidence as to
when he left.
MR MURRAY: But, Your Honour - yes, however, the way the case
was put was - - -
DEANE J: I was not asking you to argue that, I just wanted to know whether my understanding of the evidence was
correct, of the statemmt.MR MURRAY: Your Honour, yes. DEANE J: And while I am interrupting you, what about the three
and four-sided conversations between Storhannus,
Mrs Wehr and -
MR MURRAY: Mitrovic?
DEANE J: Yes, did they go into evidence?
MR MURRAY: Yes, Your Honour, that is my understanding, Your Honour. That is as I understand it, that is where the confrontation, not the line up, but where
they were brought in and he says, "Now, you can ask
Michael any questions you like.", that is the evidence
to which Your Honour is referring? When they were
actually brought into the room where Storhannus is
there?
DEANE J: That was prejudicial to Van der Meer in relation to
the rape.
MR MURRAY: Your Honour, I would respectfully submit it was prejudicial to Van Der Heer as well and, of course,
grossly prejudicial to Storhannus. That is,
Your Honour, where Storhannus is first of all
interviewed and interviewed at some length and then
he is asked - well - and he says - I am accepting
what Your Honour the Chief Justice has suggested,
I am not going over back to it.
MASON CJ: No.
MR MURRAY:
A look at Storhannus itself, Your Honour, does two things.
One is it further provides overwhelming
evidence of the way that the matter was conducted,
and conducted deliberately. And secondly, Your Honour,it sees how prejudicial material, which must have
impacted upon the trial of the other two, comes before
the court.
CIT32/l/JM 72 24/3/88 Van Der Meer Now, Your Honour, if we could then turn -
assuming, Your Honour, that I have done enough to
at least open the topic of the material, if we
could go then to volume 1, Your Honour, the
trial itself. The first thing that happened, Your Honour, was the prosecutor himself initiated
at the bottom of page 2, and at the top of page 3.
From then on, Your Honour, effectively, although
there isno mention of it formally, objections to
evidence by counsel for Ayliffe and Storhannus
preoccupied His Honour in a voir dire examination.
Now, there were various objections taken,
Your Honour. At the bottom of page 3 there is some reference to photography. But at page 4
the prosecutor, Your Honour, on behalf of the accuseds'
counsels:
There will be an attack on this witness's
method of interview.
Now, Your Honour, I want to make a submission very
briefly that although I have conceded and it is
the fact that counsel appearing for Van Der Meer
did not ask for the exclusion of evidencP., it is quite clear that the methods of the police officers were
under attack by at least two of the accused and
they were the same police officers who had interviewed
the witness - the accused Van Der Meer. And I respectively submit that the resonsibility of the
trial judge is not at an end merely because no
formal objection is taken on behalf of Van Der Meer
for the admission of his evidence and despite the
fact that he is represented by counsel.
(Continued on page 74)
CIT32/2/JM 73 24/3/88 Van Der Meer
MR MURRAY (continuing): I say, Your Honours, that once the material was before His Honour which made it clear that
the fairness or legality of the conduct of the
interrogation, including the periods in custody,
was before the court His Honour had an independent
duty in the interests of the conduct of a fair
trial to intervene on behalf of the three of them.
Your Honours, I do not have a convenient method
at my fingertips of shortening this but the prosecution
examination of his witness goes forward and it
attempts to show that he was overworked, that he
was understaffed and that he was doing his best
to cope with a very difficult circumstance. I am submitted to Your Honours that my assessment
of the evidence is that there were 13, or something
like that, police officers; the case went forward
all day, Se~geant Dickson said he was too tired
to do anything by about 1 o'clock in the morning,
went home and they came back the next day to do
statements and so on. That situation was of his
own election, Your Honour, and anticipating a thought that Your Honours may have, his duty was
to have waited until properly he could have
investigated this matter of the complaint of rape
and assault and not until then. Not until he was
ready properly could he have brought these men
in for an interrogation marked with propriety.
That was not done and irrespective, Your Honours,
of the view that any decent citizen would have
of the conduct of these men their civil libertieshave been ignored and that is more important, in
my respectful submission, than any public interest
associated with whether they should or should not
have been convicted of this offence on this evidence.
The evidence should not have been admitted and
the conviction, Your Honour, if it had been obtained
without it, would have been unable to be complained
about. But it has been obtained with that taint. Your Honours, there at page 6 at point 5, the evidence to which I have alluded why Ayliffe
is at the police station'- Your Honour the Chief Justice
a,sk:ed me why he was going. I thought it was because he was going to be a police witness;
I note when I was reading a moment ago some of
his statement he said, "I was going there on behalf
of a named person who could have been the defendant~.
Nothing, in one sense, Your Honours, turns on that
but if he was getting a lift with the police I,
perhaps wrongly, assumed that he was going to be
a police witness. I do not suppose anything turns
on that. He says, Your Honours - and this is
a question of the prosecutor leading the sequence.
It appears, Your Honours, that copies of Mr Dickson's
statement, copies of the transcript and so on,
were available and were referred to during the
voir dire examination.
ClT33/l/SDL 74 24/3/88 Van Der Meer Page 6, Your Honours, at about point 7, the evidence
about him going to Ayliffe's home and speaking
to Van Der Meer, Ayliffe's brother and Mayo. I
indicated to Your Honours earlier that my understanding
was that he also spoke to Ayliffe's mother - I
hope I have not misled the Court about that because
I see there where I have read that it is his brother.
At page 8:
you went to Ayliffe's house ..... what happened
to Ayliffe? ...... he remained at the police
station.
Question without objection:
Did he indicate to you he was prepared to
do that?---Yes, we asked him if he would wait
there and he said he would.
Now, you went to Ayliffe's house and there
you spoke to Mayo and Van der Meer ..... you
asked them about their whereabouts ..... did you have any information to suggest that they
may hav~ been involved in the matter?---No,except we knew one person was named Moose.
Mayo was named Moose. Page 7 of the witness's statement: Van der Meer about his whereabouts ..... Later
on a subsequent visit to the home we gathered
some exhibits.
They took Van Der Meer and Mayo back to the police
station in the police vehicle and were away about
20 minutes. He had a further conversation with Mr Ayliffe to which I have made reference already.
Did you -
go back to Ayliffe's residence ..... I picked
something. up - Ayliffe still remained at the police station ..... I took a shirt which had what appeared to be fresh blood on it, to the surgery of Dr Panter - I have mentioned this to Your Honours in passing.
That is where we came to the stage where, without
any caution or warning,the police officer proceeds
to examine Mr Ayliffe about the blood on the shirt.
C 1 T 33 / 2 / SDL 75 24/3/88 Van Der Meer
MR MURRAY (continuing):
How long were you away on that trip?
About 20 minutes?
I spoke to the accused Peter Ross Ayliffe
at 10.15.
A transcript has been prepared of that, and that
is, Your Honour, the one to which I have made some
reference in my submission. A copy was used in the voir dire examination. He then spoke to Brandon Mayo. His Honour says about Mayo's
evidence:
It all goes to the story as it unfolded to him and what steps he took.
Counsel did not object.
BY MR DEVLIN: You spoke to Brandon Mayo next.
And the answer, Your Honour:
He admitted knoweldge to indicate he was
there.
At page 11, at the top of the page:
So Mayo was the first indication that at least
Mayo himself was out there at some time?--And
also that Ayliffe was - his version was different.
One of them was being untruthful.
Mayo gave a version which was totally different.
So that was the position you were in after
speaking to Mayo and taping that conversation?
Who did you speak to next?---Van der Meer ..... at 10.55 am.
They were where they were seated:
left Ayliffe sitting where he was.
Ditto with Mayo when you finished with
him?---Yes.
There were police officers coming back and
forward.
Did you specifically station a police officer
with Ayliffe or Mayo?---No.
ClT34/l/MB 76 24/3/88 Van Der Meer
Transcript of Van Der Meer's conversation handed. "I do not ask Your Honour" on the 11 voir dire."
HIS HONOUR: Van der Meer does not take it any further. MR DEVLIN: No. BY MR DEVLIN: Have you got the transcript of Van der Meer there?---Yes.
Just have a quick look through it to refresh
your memory?
HIS HONOUR: Mayo is saying that he knows what has happend but "Just so you don't get 11 it off me first ... -
the part to which I have referred the Court.
The witness asked Mayo, : "Did you assault
Mitrovic?- 11 and Mayo said, "No. I tried to help him. I kept asking Saul to stop because I was frightened he would kill me.
HIS HONOUR: And you have "Did the woman resist the other when you say they were raping her?"
It is certainly clear enough that he says
Saul was the ringleader, that the woman was
resisting and screaming for help. I would have thoughtrha:t took it some distance.
Well, Your Honours, I do not know what His Honour
means there but I cannot tribute that remark to
any principle of which I am aware.
You would agree that after speaking to Mayo
the first time you went somewhere?---Yes.
HIS HONOUR: That is Van der Meer we are on now?
MR DEVLIN: Yes.
HIS HONOUR: That is Exhibit "R".
WITNESS: I spoke to Mayo first, and the tape- recording ran out, and we had some notes of that. Then I went back and re-interviewed him, more or less covering the same ground
again to have it on tape-recording.
BY MR DEVLIN: By the way, one of the accused noticed the tape-recording being done, did
he not?---No. That was Mayo. He did tell me two or three occasions that he had seen
the microphone and he knew it was being taped.
ClT34/2/MB 77 24/3/88 Van Der Meer MR MURRAY (continuing): Certainly the accused Storhannus would
have been, because I had the tape-recorder on the table in front of him. That was at about 3.39 p.m. that day ..... .
But Vander Meer and Ayliffe so far as you are aware didn't know they were being taped; is
that the position?--I don't think so. Yeah. I don't think they knew. They certainly didn't say anything to you?--
That's correct.
As we said -
Van Der Meer - - didn't admit any implication in any
offence?--No.
Who did you speak to next at that stage?--
Again we spoke to Mayo, for the second time.
Was that the effort to correct the running-out
of the tape ...... ?--On fresh ground and covering
the same ground. The version had been changing somewhat. So you have a transcript of that conversation
with Mayo?--Yes.
MR DEVLIN: I tender that.
That became exhibit Son the voir dire, Your Honours.
Further down: Where was Ayliffe?--In my office.
And where was Mayo?--In the Stock Squad office.
stage?--No. He never - he never came to the police station for approximately three hours. Was Storhannus at the police station at that
In fact, Your Honour, police were sent out to find him and he was - I think the words - picked up in the street by two uniformed police officers and brought back to the station sometime after 3 o'clock.
Just refresh your memory ..... ?--Yes. I am reasonably familiar with this particular
transcript ..... over the last couple of days.
ClT35/l/SH 78 24/3/88 Van Der Meer So the effect of that was that Mayo was
certainly implicating himself and the others
in a sexual assault out of Mareeba?--At this
time Mayo denied that he had actually had
forced sexual intercourse with Mrs. Wehr,but he had implicated the others in it - in that offence and also in the assaults and everything else that took place. He more or less told us everything except his
part in it. He denied that he had actually raped the complainant.
To Wall, as I have just referred the Court to that.
To 12.05:
Wall and Mayo went out to that scene ..... at
about ·12.30.
And they came back and the conversation with
Van Der Meer, Your Honours, exhibit T:
BY M. DEVLIN: Who did you speak to after speaking to Van der Meer?--The accused Ayliffe.
It was about 12.56pm. Where in the police station was that?--In
my office again.
Have you got a transcript of that?--Yes.
Exhibit U. On the next page, Your Honour, on page 15:
MR DEVLIN: There should be ten pages of that transcript.
Do you know when that conversation finished
in relation to when you started with Storhannus?--
No. Actually it wouldn't have been very long. On the tape it's indicative it goes from 498
to 594 - that's the counter. So it would be probably only, at the most, five or six minutes. So did you keep the tape running?--No.
Well, the counter, of course, is indicating where
places are on the tape. At about point 6:
Di-:! they remain in their separate positions
wi :.::..in the police station to have their
lunch?--No. A lot of us - Mayo did. Mayo
stayed in the second office and he had lunch
in there, because Detective Sergeant Wall was
telling me something that happered while they
had been absent with Mayo.
ClT35/2/SH 79 24/3/88 Van Der Meer Your Honours will recall that is where Mayo had
told Wall something when Wall had said, "Well,
I will get your trousers examined".
And Van der Meer stayed in the kitchen.
Ayliffe went out to the kitchen and made himself coffee, that sort of thing, and
I think he went to the toilet once or
twice. And that was it. He went back to the other office.
Did Ayliffe and Van der Meer talk together?--
No. There were police present having a meal
in the meal room.
If they had commenced to talk together would you have stopped them ..... ?--No. There was no way I could have stopped them talking to one another.
(Continued on page 81)
ClT35/3/SH 80 24/3/88 Van Der Meer MR MURRAY (continuing):
In any event, you don't recall seeing
them talking - Ayliffe and Van der Meer?
They may have talked at different times, yes.
An hour and a half gap, the answer was:
Oh, no. During that time we were put in
together - trying to put together a
picture of what had happened, and I was
interviewing Mrs Wehr, trying to get on
paper throughout the morning - every
opportunity I got I put more and more
details from the complainant Wehr to tryand get it down on paper as soon as
possible - and we had a problem with the
man Mitrovic at the hospital ..... We had
rung the doctor ..... Dr Panter.
Then, Your Honour, at the bottom of page 16, the conversation with Storhannus which was admitted on
the voir dire: ·
BY MR DEVLIN: Now, that transcript does cover the period when there was a line-up .....
No.
Your Honour, of course, is being referred there to the confrontation not the line-up to which
Your Honour Mr Justice Deane referred when Your Honour
asked me a question:
BY HIS HONOUR: "Conversation between
Sergeant Dickson and ..... Storhannus after
the identification ..... 6.30, 7 o'clock.
Notebook sequence:
The Prosecutor'~sks:
What happened in the delay?-- Again, I was working with the complainant Wehr, and it took well over an hour to organise the line-up -
and the policeman's manual and he had to tell
Sergeant Nichols what to do and so on. 10 persons in the line-up: Who then did the identifying? Was it Wehr
or Mitrovic or both?-- Both.
At the middle of the page, Your Honour, on page 18:
Had Wehr been in a position during the
day as it unfolded to have seen you talking
ClT36/l/SR 81 24/3/88 Van Der Meer to these various people at the police
station?-- No, that was one point I was
extremely careful about, that there was
no possibility of the complainants and
the accused persons seeing each other,
and when Mrs. Wehr did return - she had
only been visiting; she had no clothing.
We got her some clothes, and all this
took a long time during the day. When she did return to the police station, and
Mitrovic, they were kept outside in
different areas and at no time did they
see any of the accused ..... .
interviewing ..... In the prosecutors'
section out at the front of the C.I. Branch,near the entrance door .....
So you continued with Storhannus after
the identification parade, you say, at
8.30 p.m. on tape?---Yes.
At about point 8 on the page:
It started at ..... 8.30 p.m.
..... the first transcript on Storhannus
already?-- Yes.
Did that start at 8.30? How many transcripts have you got left?-- There is
one. I have one additional transcript. This includes the confrontation of the complainant Wehr with the accused Storhannus.
(Continued on page )
ClT36/2/SR 82 24/3/88 Van Der Meer MR MURRAY·(continuing):
How does that transcript begin?-- It is headed
up the top, "Conversatoin between myself" .....
When did that start?-- At 8.30p.m.
BY HIS HONOUR: Inthe previous exhibit, after
the line-up there is a conversation which
I think you told us earlier started at 8.30p.m.
That is at p.5 of the previous exhibit?-- Yes,
Your Honour, Ihave it here. Three-qaurters of the way down the page
there is the notation that there has been
a line-up and then thee is the conversation
that starts. I thought you told us that started at 8.30? ..... When did the conversatio after the line-up
start ..... -- Your Honour, that would have been about 7.30 to 8 o'clock.
Your Honour, His Honour is quite clearly seized
of the elapse of time and the prosecutor then continues
about the time and the sequence of events,·and
a bit further down at line 42 or 43:
There is the conversation with the accused
Storhannus in the first part, and then he
goes outside, and then we have a further
conversation, and the last transcript includes
the confrontation with the complainant Wehr.
What was the location of the transcript that begins half way through that conversation?--
In my office at the C.I. Branch.
MR DEVLIN: I tender that transcript.
On the next page, which is 20: How long after the conclusion of the tapes did that begin?-- Almost immediately.
There was the confrontation with Mrs. Wehr
and Storhannus, and then we made preparations
for a record of interview. I think it was commenced at 10.56. Does 10.06 ring a bell?-- 10.06, yes .....
Is that the record?--Yes
Admitted.
BY MR DEVLIN: At what stage did you arrest Storhannus?-- Following the completion of
this record of interview.
ClT37/l/AC 83 24/3/88 Van Der Meer That is there, Your Honours, at page 20 at line 20,
after the reference to exhibit Y. His Honour makes a point of that in the decision and our respectful
submission is, of course, that that is referring
to the formality - they had been under detention forvarying times from 9.35 onward during that day.
In particular, did you arrest Ayliffe?-- No,
I did not.
Who interviewed Ayliffe further? ..... Yes, he was interviewed in the form a type-written
record of interview ..... .
--Oh, yes, I organised it.
The interview -
it took place after the line-up?
WILSON J: Is there any evidence, Mr Murray, of either Mr Storhannus or Ayliffe asserting their wish to
leave? Did they get up and try and leave and were
restrained or - - -
MR MURRAY: There is no evidence that they got up and tried to leave or were restrained, Your Honour. Ayliffe
says in - I think it is the first of his conversations -
"I just want to get out of here", and several times
during the interrogations Your Honour sees that
they express, "I don't want to say anything",
whatever. There is no confrontation, there is
no - - -
WILSON J: There is no testing whether or not they were in
custody during the -
MR MURRAY: No testing, they, in fact do not leave. They are, respectively, either at the police station
as I have described Ayliffe's misadventure,
Van Der Meer and Mayo are brought in the police
car by the detectives from the Ayliffe house and Storhannus is picked up "in the street by two uniformed
police officers who had been looking for him, found
him and brought him to the police station."
(Continued on page 85)
ClT37/2/AC 84 24/3/88 Van Der Meer
WILSON J: But all that is consistent with simply people voluntarily going to the station to assist the police
in their inquiries.
MR MURRAY: Theoretically, Your Honour, and also theoretically volunteering to stay there, and theoretically
volunteering to be interviewed without murmur orcomplaint, theoretically. The fact, Your Honour, is that they are there, in our respectful submission, as
His Honour found, in circumstances where it would
be - - -
WILSON J: There is a finding of their being in custody? MR MURRAY: Your Honour, a finding that they probably believed
they were under restraint. His Honour found that. I will come to that shortly, Your Honour.
WILSON J: Thank you. MR MURRAY: I am sorry, Your Honour, this is taking a little time, but it is important to just get what
His Honour the learned trial judge had before him.
I have reached page 20, and I had reached the stage of an
interview with Storhannus which took place after the
line-up and that became exhibit PP in the voir dire.
Then, Your Honour, at page 22 the cross-examination commences and there are some important things that emerge from the cross-examination which I regret will
take me a few minutes to show to the Court. Before
I do start, Your Honour, at 2.34 when the court resumed
the prosecutor says he has missed an interview with
Mayo.
At page 23 the movements of Mrs Wehr: She was taken away to the doctor's and
after going to the doctor's at different times she went out to the area where it happened, but mostly she stayed at the police station all day. When did she first leave?--About 9 o'clock
she went to get some clothing. The lay-out of the police station and the fact that
there are, at least on my understanding, Your Honour,
two buildingst and the car park is mentioned at page 23;
where Mrs Wehr was is mentioned at page 24, and thereat page 24 there is cross-examination about how
Ayliffe got to the police station:
I found out about 10 - 9.35 - that he
was over at the counter inquiring about
a lift to Atherton.
When he came into my office I got men
to go over to her in the other section
and ask him to come over.
ClT38/l/HS 85 Van Der Meer Wasn't he waiting to see you for a short wile before 9.35?--Not that 1-----
Waiting in a room?--Sorry?
Waiting in a room before he saw you?--
Well, he may have waiting for a couple of
minutes with the two men who went overto see him, which, if that was the case,
would have been the meal room.
(Continued on page 87)
ClT38/2/HS 86 24/3/88 Van Der Meer MR MURRAY (continuing):
You sent a couple of men over to get him,
did you?---Yes.
They would have brought him back?---Yes. Well, Your Honours, I respectfully submit we are
getting to evidence where a couple of police
officers go over and get Mr Ayliffe and bring him
back to see the sergeant. He is kept waiting outside. I was in the office and he came into the office
where Wall and I were.
Why did you ask to see him?--Our inquiries
had at that late stage - it just sort of indicated
he may have been involved.
On what basis? ..... We didn't have any idea
who the men were, and we interviewed some
men in town who fitted the descriptions and- or who we knew were at the Dunlap's Hotel
that night - and, of course, from interviewing
them we established that - all we knew was
a person who said he was from Newcastle,
New South Wales ..... And then the accused Ayliffe's
name was mentioned, and I had knowledge that
he was born in Newcastle, and sort of it -we didn't know he was involved; it was just
another lead to follow.
It wasn't the fact that the complainant Wehr
had seen him at that stage at the station?
--No. No. Not to my knowledge.
Were you aware that he had been out the back
near the cars waiting for a lift?--No. He
wouldn't have been out the back ..... He shouldn't
the answer is given. have been - I am suggesting that he was taken out the back with another officer ready to go to Atherton
and was then called back. Could that have happened?--Could have happened, yes. It may have been from the area of the cars that he was brought back?--Yes.
To see you. As you understood it, he had come to the station because he had been subpoenaed
as a witness and he was going to be takento Atherton for a case; is that right?---Yes. To give evidence on behalf of the police - some traffice matter?--Yes.
ClT39/l/MB 87 24/3/88 Van Der Meer Did you arrange for that matter to be adjourned
that day?--No. I contacted Senior Constable Thompson of Atherton, who was prosecutin9 that day, and he told me the matter wasn t going to proceed. You didn't arrange for it to be adjourned?--No. There was some - there was some problem with one of the witnesses not being available. It might even have been this chap Ashley, who was the defendant in that traffic matter. It wasn't the matter that the unavailability of the wintess was in fact Ayliffe and that you wanted to keep him and you-----No. Naturally we did want to interview him. Sorry?--Naturally we did want to interview him. I considered it was important, and when I rang Senior Constable Thompson he said more
or less, "There's no problem. That matter's
not going ahead today anyway."Were you going to try to get an adjournment? --What is that? The case in Atherton?--I don't know if I really considered that. It's - you know - it was - I may have if I considered it was - you
know - serious enough.You wanted to interview Ayliffe?--Yes. You wanted to talk to Ayliffe and you didn't want him going off to the court at Atherton; is that right?--As I said, that sort of handn't entered my mind at the time. yes. I did want to interview him, and if he had gone to court You rang the Court to inquire as to whether
it would have been inconvenient. it was going on or whether you could possibly adjourn it?--Yes. Mainly to - yes. Basically the main thing was - first was to make sure it was going on, and I would think that if
he had said, "Yes." - it was - I would havethen inquired whether an adjournment was possible. So then you spoke to Ayliffe on the first occasion, about 9.35 or 9.36, something like that; is that right?---Yes. 9.35. That was the taped interview? That was taped, I think.
ClT3 9/1/MB 88 24/3/88 Van Der Meer TOOHEY J: Mr Murray, could I interrupt you. What do you ask us to draw by way of inference? What conclusion do you ask us to reach from the page or two that
you have just read?
MR MURRAY: Your Honour, that the police officers intended to keep Mr Ayliffe for the purposes of interrogating
him, questioning him, and that was the way that
it was done. Whilst there was no formal laying
on of the hand or the statement, "You are under
arrest", it is quite clear, in my respectful submission,
Your Honour, that he was under the control of the
police and not free to leave. His movements were
being restricted de facto from 9.35 onwards. That
is our submission. And the police, in order to facilitate that, cancelled or would have cancelled
the Atherton case - adjourned the Atherton case.
If, Your Honour, that view is not taken, we are in
the dangerous, I would respectfully submit, situation
where then it becomes a technical matter; if someone
is to be kept for days, as it were, at a police
stat ion, or somewhere e 1 se - and hours and days
would have exactly the same effect - and there being
no formal arrest as there was in WILLIAMS but that
the effect of it being that someone is kept wrongfully
for the purpose of being questioned - - -
DAWSON J: Why are we talking about that? That is not the
question, is it, really, in these cases? There
is no law against cross-examining someone when
they are in custody?
MR MURRAY:. I would respectfully submit, Your Honour, there
lS.
DAWSON J: No, there is not. The question is whether the confessions were voluntary or unfair to give the
judge a discretion to exclude them. Now, it may
be that you can draw from the fact that they were
in custody the conclusion that their wills were over~borne but it does not follow as a necessary
conclusion.
MR MURRAY: Your Honour, my respectful submission is that to cross-examine someone is at least improper and
unfair and I respectfully submit that if it does
have the effect of preventing from exercising their
free choice it is illegal.
DAWSON J: That is the matter to which you should be directing
your attention. It is not enough to say that they
were in.custody at this point of time; you should be saying that in the circumstances their wills
were over-borne or that this was unfair and the
judge ought to have exercised his direction in
a particular way. What I am searching for is the special leave point.
ClT40/l/SDL 89 24/3/88 Van Der Meer
MR MURRAY: Your Honour, I was endeavouring to answer by saying that the case should not be determined
on whether or not words such as, "You are under
arrest", were formulated. Your Honour, the special leave point is that this conduct is not permitted
under the established principles that are laid down
was accepted by the learned trial judge and turther
accepted by the Queensland Court of Criminal Appeal.
DAWSON J: When you say "not permitted", there again, that
is the complaint I am raising. You may draw from - there are certain, as it were, rules laid down
as to the proper conduct and the non-observance
of those rules may give rise to the conclusioneither that the confession was not voluntary or
that, in the exercise of the discretion, it ought
to be exciuded because it was unfairly obtained.
But those are the real questionsto which you should
direction your attention.
MR MURRAY: Yes, Your Honour, quite. But if I might, just to explain myself, just to put it the other way:
an example of unfair conduct which may even lead
to an illegal conduct, is cross-examination or
lengthy questioning of a person who has not been -
I am putting it all in the accumulative - informed
of his situation or his rights.
(Continued on page 91)
ClT40/2/SDL 90 24/3/88 Van Der Meer MR MURRAY, (continuing): Now, I submit further, Your Honour,
that the cases say that you cannot cross-examine som:·one in
Australia, any more than you could keep them in
custody for the purpose of questioning them. The
police are not permitted cross-examination in the
sense of the adversary situation.
"MASON CJ: You have repeated these statements on a number of occasions, but, of course, we have still got to come
to the precise submissions on the law that you make.
MR MURRAY: Yes. Your Honour, I was endeavouring just to set
the stage by pointing the facts first.
"MA.SON CJ: Yes, I realise that, but you have taken some time
to do it and in the course of it you have, as it
were, repeated on a number of occasions the views
that you are going to express in terms of, presumably,
legal propositions at a later stage.
MR MURRAY: Yes, Your Honour. That will be done. I was merely pointing Your Honour to parts of the evidence as
I reached them, which I would be using, Your Honour,
to illustrate the legal principles which I espouse
have been breached at those points. That was all I
was attempting to do.
And, Your Honour, the purpose of me going to
this evidence on the voir dire is to show that,
particularly during the cross-examination of
Mr Dickson, the course of conduct that he took was
embarked upon by him as a matter of election,
because that is one of the factors that should be taken
into account as a matter of law.And, Your Honour, at page 26 I had reached the stage where - perhaps I should read the point at the
bottom of the page:
I suggest that when you asked him to wait a
little while he asked you why he should wait? ---No. I said to him, "Do you mind waiting for a bit?", and he said, "No." - it wasn't actually the word "No.", it was "Nuh." What have you got recorded is "Do you mind waiting for a bit?" and you have got recorded "Nuh." I suggest that after that he asked you why he should wait and why he was being held?---No. And that you said, "Well, you'll just have to wait and see."---No. And he said, well, would it be all right if he made a phone call to try and find a solicitior?---No. Definitely never said that.
And that, Your Honour, was not pursued. There was
no evidence given on the voir dire. And the question:
CIT41/l/JM 91 24/3/88 Van Der Meer
. d II • h "?
..... Just wante ... to get out ot ere .. ..... And you ignored that?---No. He did say, "I want to get out of here now." I took it in the context of "I just want to
get out of here, get this cleared up and getout of here - get going."
" ... just want to get out of here urgently."?
---No. People often say things like that.
"I want to get out of ... "?---Yes. "I want
to get out of here."
You take it in the context of when it was
cleared up?---That's what he meant.
You didn't ask him what he meant?---I knew
what he meant. You can tell by the tone of conversation. Or weren't you game to ask the question "What do you mean by that?"?--I can't explain
everything he says. I don't know what the question before it was. It might indicate what the tone of conversation was.
(Continued on page 93)
CIT41/2/JM 92 24/3/88 Van Der Meer MR MURRAY (continuing):
Look, he indicated to you fairly
clearly just before that I suggest, he
didn't know what was going on, he didn't
want to be examined and he just didn't -
and he wanted to get out of there?-- That's
right. I remember it now. That's right.
And that was in the context as I have
explained it.
In the context of he was trying to
help you with your inquiries to clear it
up? Is that what you are saying?-- That's
right. He didn't want to waste time being medically examined: he just wanted
to get out of there, take as little time
as possible and ..... be on his own way.
As little time as possible being not
then but when?--- I don't know when. I didn't know much about it at this time -
whether he was involved or to what extent
he was involved.
You asked him if he would be examined .....
nrf you like." ..... "Pardon?" ..... "if you like."
And, then Your Honour, there was this cross-examination,
perhaps I do not need to read that. I have drawn
attention to it in the reading from the tapes
themselves. Further down - perhaps I should read
it, line 31:
You say you never had any impression
there that he wanted to leave?-- No. None whatsoever. In between that time where had he been
sitting?-- He was in the meal room ..... and
then he came into the office. Yes. Did he stay there then, in your office? .....
For most of the day?-- No. Not for
most of the day, but for some - you know,
different times during the day.
And you were getting other people in
about that time?-- Yes.
Who was the next one that came ..... Well,
it was Mayo and Van der Meer together.
At about what time? ..... 10 a.m.
ClT42/l/SR 93 24/3/88 Van der Meer So when you are having this first
recorded conversation with Ayliffe, starting
at 10.15, the other two were in there
somewhere? .....
Van der Meer and Mayo? .....
They were in separate rooms?-- Yes.
Mayo was in the Stock Squad Office and
Van der Meer was in the kitchen.
And they were being supervised in a
general fashion ..... Well, I don't know.
Not to my knowledge.
You were in charge of this whole
complex, weren't you?-- Yes.
A bit further down:
You placed one in one room and one
in another room? .....
And you told them to wait there?-- I
don't know what I told them. We asked them at the house if they would come to
the police station. Probably said, "Somebody
be with you shortly." - something like that.
"You go there and we'll be with you
shortly." or something like that?-- Something
like that, yes.
But they were deliberately placed in
separate rooms, weren't they?-- Yes.
And they were certainly indicating to
them that they should stay in those rooms
until you were ready to talk to them?-- No.
(Continued on page 95)
94
ClT42/2/SR 24/3/88 Van der Meer MR MURRAY (continuing):
Was there an officer of the Stock Squad
..... ?--Initially, yes. Only for the early part of the day. Who was that?--He was a relieving constable,
Duncan.
He was minding Ayliffe at one stage, wasn't
he?--No. Nobody was minding anybody at all. Everyone was free to leave whenever they
liked?--Yes.
Ayliffe could have walked out?--Yes. I didn't have any evidence on which to charge them.
And his suggestion that he just wanted to
get "out of here" you didn't take that as a desire to leave?--No. Listening to the tape, it still doesn't sound that way to me.
This is the first recorded conversation with
him, starting at 1O.15?--Yes.
After that conversation I suggest that he
was left sitting in your office for a while.
Would that be right?--Yes.
Until the second conversation with him?--Yes.
Which is 12.36 or something ..... ?--Yes ..... .
He was assisting you that morning?--Yes.
If Your Honours would go to page 31:
I am suggesting between that first conversation,
the 10.15 starting one, and the second one,
he in fact spent most of the time sitting with Ayliffe in your office?--No, not that I recall. No, he didn't. Duncan spent a lot of his time - he was doing a lot of the
little jobs, the running around jobs. He spent a lot of his time in his own office, the Stock Squad Office.
Certainly, you still -MASON CJ: What is this establishing, Mr Murray?
MR MURRAY: Your Honour, it establishes the fact that the
prisoner was effectively being kept there for the
purpose of the inquiry in the police officers' - - -
ClT43/l/SH 95 24/3/88 Van Der Meer MASON CJ: I mean, that may be your submission. It just does not seem to me to support that submission.
:t-1:R. MURRAY: If Your Honour pleases. He is there all day. WILSON J: But, at best for you,Mr Murray, is it not that
there is a conflict of evidence which the trial
judge on the voir dire was confronted with and
he, having heard the evidence, although neither
of the applicants gave evidence,as I understand it,
having heard it, he - is that wrong?
:t-1:R. MURRAY: One did, Your Honour. On the voir dire, nobody did.
WILSON J: Nobody on the voir dire, so all he had was the evidence from Detective Sergeant Dickson and he
said, "Well, having heard all that, I am satisfied
that these confessions were voluntary". Does that
not pose a significant obstacle to your case?
:t-1:R. MURRAY: Your Honour, if the - that, of course, is the beginning and the end. It is what occurs in between,
Your Honour, and His Honour has directed himself as
to the criteria which I would like to come to in a
moment as to what he was examining for, as to whether
they were overborne. That, in my respectful submission,
is not the question to be asked and it may be,
Your Honour, unnecessarily tedious for me to go
to the evidence. I would just ask Your Honours,
therefore, to accept that in the course of the cross-examination it was clear that Mr Dickson
knew quite a lot about the matter, much more than
he admitted at first; that he knew the identity
of these people quite early in the piece; thathe had access to the information from the
complainants and so on.
WILSON J: Perhaps the interventions from the Bench are
prompted by, perhaps, not yet having had the lege.l
outline and to which you insert these submissions on the facts.
MR MURRAY: Well, Your Honour, I can - - -
WILSON J: I do not want to distract you from your course, Mr Murray.
:t-1:R. MURRAY: No, Your Honour, I can rectify that. Perhaps,
before I do, I would like to take Your Honours to what took place at the end of the voir dire and what His Honour the trial judge found.
ClT43/2/SH 96 24/3/88 Van Der Meer
MR :MURRAY QC (continuing): Well, Your Honour, would Your Honoursjust permit me, if there is anything I particularly
want to refer to, perhaps, just to mention a page
number. It is important, Your Honour. For example,
at the bbttom of page 32, he admits he wants ''to play one
off against the other"; on the next page: To try and get something from them .....
And you went on doing that all day with one
or the other?---Yes.
A tape recorder was concealed; turned on and off.
Then the parts I have read, Your Honour. Page 33:
you accused him of being evasive .....
"Why won't you tell me who told you to comeand have a go?"? ..... "I'm not saying
nothing" -
and so on. Page 34, Your Honours:
You were accusing him of not telling you
the truth?---He has admitted - he admits
himself he was telling lies.
"You accused him of being evasive".
you were determined to push him until you
got what you thought was the truth?---Well,
I wasn't pushing him at all, but I would be failing in my duty if I didn't try to
get the truth.
If he said one thing you told him he was not telling the truth, you told him he was being
evasive .. ; ..
HIS HONOUR: It is possible if you point out to somebody he hadn't been truthful -
and His Honour- said this - that some good may come of it, Mr Darvall I can't see anything wrong with it, really
I can't.The police officer's reply was:
It was exactly as we said, just asking
him what his movements were as we would
ask some other young men that morning.
About the Van Der Meer disappearance, Your Honours,
at page 36 on the bottom - well, before, only becauseI have got the page open, Your Honour, there was:
any warning about the identification
parade?---No.
ClT44/l/PLC 24/3/88 Van Der Meer 97 Wasn't there a stage where you thought
Van der Meer had left the station?---No. You couldn't find him for a while?---No. You don't recall the situation where he was
found to be asleep on the floor and you
thought he had left the station, and
everyone getting very excited?---Actually,
yes, he went to sleep under a table. I forgot that. And you thought he had left the station?---Yes.
And there was:
dashing around to try and find him?
Well, there is the evidence to 'Wfl.ich I referred
earlier.
And at page 37 at about point 4:
Tell me, when did you start investigating .....
did you pick him up for discussions?
3.39?
At page 38, Your Honour: that the witness knew
Saul Storhannus, and that emerges, of course, in
the interviews where he says: We'll now have a record of interview, Saul.
You have been in these before, haven't you? Your Honours will see that.
You had also been informed ..... dropped off at
Chewko Road or near Chewko Road?---On Chewko
Road, yes.
And you knew yourself that that was in fact where Storhannus mother lived?---Yes.
I have already put to Your Honours about Ayliffe coming
from Newcastle. The police officer knew that. He knew Storhannus; he knew he lived in
T44 Chewko Road and he knew his name was Saul. On that evidence, leaving aside ..... you
would normally arrest a person?---No,
definitely not.
So, on that evidence you would permit
Storhannus to continue walking around the community?---Yes.
And there are questions about what he knew, Your Honour, and the second-last question:
ClT45/l/PLC 98 Van Der Meer 24/3/88 And also you had the situation in which
you had a person being dropped off atChewko Road near where this man lived?
---Yes.
Now, if Mr Storhannus had -
and so on. And at page 39, Your Honour: The situation was, was it not, that you
wanted Storhannus in, hopefully, to get
an admission from him?---Yes
So the situation was that you told other
police to go out and pick him up?---No.
No?---Actually we didn't know if it was
Storhannus.
I see?---Because I believed he was
residing in Brisbane and I was surprised
when it was him and the description
didn't fit.; ... when I saw him I was
surprised how much weight he had put on:
he was quite chubby.
And so on. At the bottom, Your Honours:
In any event, the situation was that he was
at the police station and you then proceeded
to question him?---Yes.
At that stage you were aware that
allegations had been made concerning
him by other accused?---Yes.
That is the time that Storhannus comes to the
station.
And the charges you were investigating were
most serious?---Yes. And you did have some other evidence ..... And, given that material, you did
not warn him ..... ?---No. I had actually very scant evidence. The implication by his co-accused was not evidence against
him.My question was: You didn't warn him, did you?---No.
The police officer persists, Your Honour, at 40 point 5:
Very little evidence.
ClT45/2/PLC 99 24/3/88 Van Der Meer He then says, Your Honour, at the bottom of page 40,
this evidence that he was looking for:
I am of the view that you have to have
a prima facie case, and you have to have
evidence and - not admissions; actual
scientific evidence in rapes has provedextremely important.
I was looking for any evidence I could
get, particularly scientific evidence,
particularly evidence of denials -
as I put to Your Honour that is what Mr Dickson was
looking for -
and then looking for evidence to actually
negate the versions given by the
accused.
That was your plan, was it: get those denials
and then get evidence to refute the denials?
---No. I didn't intentionally set out to get denials. I intentionally set out to get a version of incidents, whether it be true or
not -
a bit further down:
So you commenced that process without
warning the person who you were talking to?
---That's correct. It was just a standard
interview.
And, Your Honour, because the point made there -
that he elected no caution.
Further down, Mr Storhannus was just invited
to stay there;
Wasn't at all in custody?---Definitely not.
Quite free to leave?---Yes. I suggest that if Mr Storhannus had set one foot out of the door people wouldhave prevented him?
---There was no-one there to prevent him. You know, we had three, four men trying to do a hundred different jobs that day, and I didn't have men to be sitting around doing nothing -
and so on. There was quite a panic about
Van Der Meer's disappearance.
ClT45/3/PLC 100 24/3/88 Van Der Meer Yes?---Not quite a panic; it was concerning
me -
at the top of page 42.
There was no warning, was there -
about the line-up -
and then it depends upon the evidence of Sergeant Nichols.
| T45 | Sergeant Nichols was not called on the voir dire. |
I went through the manual -
and told him. Page 43, if Your Honour pleases:
The situation was that you had a situation
where.Storhannus was to be part of a line-up
and you had statements from both complainants
that they were able to positively identify---?
---Yes.
The person concerned. In fact, they did identify
Storhannus, did they not?---Yes.
That being so, you clearly were seized of
quite compelling evidence, were you not?
---Good evidence, yes.
And, no doubt, then you would have charged
the accused?---No.
You wouldn't have charged him even then
when he is still free to go?---Difficult to say really what in hypothetical situations.
I know it didn't arise, but the situation was after Storhannus had been identifiedthat clearly you at that stage were minded
to charge him?---No.
You weren't?---No. So you still didn't warn him, did you?---No, but I don't like to charge anyone with any
offence, particularly a very serious offence,until I have the complainant's and witnesses' statements so I can - just to be
fair to them - to the accused.The situation is this: that you just kept on talking and talking and questioning Storhannus with a view, I suggest, to trying to obtain further evidence?---Yes, because he also maintained he had committed
no criminal offence.
ClT46/l/PLC 101 24/3/88 Van Der Meer And this is in circumstances in which he had been positively identified by both complainants?---As being one of the men
involved, yes. But I had Mitrovic in hospital. I couldn't get accurate corroboration from him. He was very sick at the line-up and I was still looking for
some corroborative evidence for Mrs Wehr.
Well, that was Sergeant Dickson's intentions. And
on page 44, Your Honour, part of the tapes were
played on the voir dire - some question about the
veracity of the tapes, if Your Honour pleases.
That was the evidence and then at page 47 is
His Honour's findings.
Your Honours, I have done a summary of His Honour 1 s findings.
It may save some time if I hand
up copies to Your Honours.
| T46 | MASON CJ: | Thank you. | Mr Murray, we will adjourn at this stage. |
We will adjourn until 2 o'clock.
AT 12.51 PM LUNCHEON ADJOURNMENT
ClT47/l/PLC 102/104 24/3/88 Van Der Meer UPON RESUMING AT 2.03 PM:
MASON CJ: Yes, Mr Murray. MR MURRAY: The cautions, Your Honour, appear as follows: Ayliffe, 7.57 pm, volume 2 of the appeal book at
page 307 point 9; Van Der Meer at 8.07 pm, volume 2
at 37.0 point 5; Storhannus, 8.37 pm, volume 3 -
Your Honour, these are the handwritten numbers
to which we have made earlier reference, top right-hand
corner - page 105 point 9 and 106 point 1, and
that was exhibit X; Mayo, 12.05 pm, again in volume 3,page 38 point 7 - my numbering - exhibit S.
WILSON J: That is midday ?
MR MURRAY: Yes, Your Honour, 12.05 pm. Your Honour, I now wish to take Your Honours to my submissions on
the criteria of voluntariness and, we respectfully
submit that there is a need to settle the criteria
by which the Court is to determine whether the
accused has freely elected to speak in the absence
of caution and where no allegation has been put
and where the accused has been in the police station
for a significantly long period of time.
We say that that is a matter of public importance,
if Your Honour pleases, and we would take Your Honours
to the well-known remarks of His Honour Mr Justice Dixon,as he then was, in McDERMOTT, 76 CLR 501, at page
511 point 2. McDERMOTT was decided, Your Honours, in 1948. Your Honours will, no doubt, need no
reminding as to the background of the case - a
murder case - and I would like to take Your Honours
to 511 point 2 where His Honour is considering
the trial judge's findings:
His Honour went on to say that that did not
end his function because he had a discretion for the exercise of which he must make well-
defined inquiries. Herron J. found -
and Your Honours, I am listing six here although
His Honour lists five -
(i) a proper caution had been administered
to the prisoner before the questions were
asked; (ii) he was not unwilling to be questioned
and make an answer; (iii) there was no insistence
or pressure by the police officers; (iv) the
matters inquired about pertained to an
investigation by the police and -
SlX -
it was an investigation of an event occur1ng
ten years before.
ClT48/l/AC 105 24/3/88 Van Der Meer I am sorry, that is five, Your Honour, I have added
one.
WILSON J: Now, those are matters going to the discretion, not voluntariness.
MR MURRAY: In that circumstance, Your Honour, yes, but may I just go on?
He was of opinion that there was nothing in
the actual questioning which should cause
him to exclude the evidence of the confessional
statements.
In considering whether the decision of
Herron J. to admit the evidence should be
sustained it is important to distinguish between
the imperative rules of law requiring the
rejection of confessional statements unless
made voluntarily and the so-called discretion
of the court to exclude evidence of such statements
if the manner in which they are obtained isconsidered to have been improper.
(Continued on page 107)
ClT48/2/AC 106 24/3/88 Van Der Meer MR MURRAY (continuing): The imperative rules of law are founded upon the principles of the
common law ..... and also section 410 of
the CRIMES ACT of New South Wales.
At common law a confessional statement
made out of court by an accused personmay not be admitted in evidence against
him upon his trial for the crime to which
it relates unless it is shown to have
been voluntarily made. This means substantially that it has been made in
the exercise of his free choice -
and those words we underline -
If he speaks because he is overborne
his confessional statement cannot be
matter by what means he has been overborne.
received in evidence and it does not intimidation, persistent importunity, or sustained or undue insistence or pressure,
it cannot be voluntary.
The inducement by a person in authority is in the next
sentence and it is now well established, of course,
that although the authorities often concentrate upon
that area, that is only one of the areas. At page 515,
Your Honours, point 5 - here, Your Honour, His Honour
is upholding the decision of His Honour Mr Justice Herron,
and I respectfully submit, however, it is an example
of the listing of some of the things which should be
considered by a court when determining impropriety
or unfairness, and indeed unlawfulness:But the facts of the present case do not bring it within any rule established in
Australia which requires the rejection
of the confessional statements complained of. The fact that the police intended to arrest the prisoner, that they virtually held him in custody and delayed for an hour
making the charge, and that they asked him
questions are not in themselves enough to require that the statements made to them
should be excluded. The character of the questions, the absence of any insistence or
pressure in putting them, the fact that no
questions were put directed to breaking down
or destroying the prisoner's answers or
statements and the fact that there was no
attempt to entrap, mislead or persuade himinto answering the questions, still less
ClT49/l/HS 107 Van Der Meer into answering them in any particular way,
these are all matters which negative such
a degree of impropriety as to require the
exclusion of the testimoney as to the
prisoner's admissions.
Now, whether His Honour is there addressing either the
mandatory or the discretionary exclusion principles,
I respectfully submit that they are examples of
matters which should be taken into account and we
further, Your Honour, say that at 513, point 9:
It is apparent that a rule of practice
has arisen, deriving almost certainly
from the strong feeling for the wisdom and
justice of the traditional English principle
expressed in the precept nemo tenetur se
ipsum accusare. It may be regarded as an
extention of the common law rule excluding
voluntary statements. In referring the
decision of the question whether a
confessional statement should be rejected to
the discretion of the judge, all that seemsto be intended is that he should form a
judgment upon the propriety of the means by
which the statement was obtained by reviewingall the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.
If I could interrupt there, Your Honour, that is a
matter that I would respectfully submit does not
depend upon being formally under arrest.
(Continued on page 109)
ClT49/2/HS 108 MR MURRAY, QC 24/3/88 Van Der Meer MR MURRAY (continuing): I read on: The growth of rules of practice and their
hardening so that they look like rules of
law is a process that is not unfamiliar.
It has occurred that the rule relating to
cautioning juries to require corroboration
of the testimony of an accomplice. This rule,
being one of practice, seemed to Cussen J
not to bind Victorian Courts. Indeed, heconsidered it inapplicable.
PEACOCK is referred to, and then the Latin phrase,
"Sed dis aliter visum" which is, as I understand it,
means roughly "but without great vision."
Your Honours, again, at page 514 point 10 at the
bottom:
This Court is now invited to lay it down
that the practice now obtaining in England
must be followed and in particular that the
Judges' Rules must be accepted as a standard
of propriety. To do so would be to go beyond the function which this Court so far has exercised
in appeals by special leave in criminal matters.
No rules of law has yet been established eitherhere or in England imposing either upon the judge at a criminal trial or upon the Court of Criminal Appeal the duty of rejecting confessional
statements if they have been obtained in breach
of the "Judges' Rules" or if they have been
obtained by questioning the accused afterhe has been taken into custody or while he
is "held", though held unlawfully.
And, again, Your Honours, interrupting, the distinction
there is being drawn, I would respectfully submit,
between being held although not under arrest. I
read on:
In some circumstances the Court of Criminal Appeal may consider that such a method of obtaining admissions implies a miscarriage. A judge at the trial may adopt in advance the same view and reject the statements as improperly procured. But that is all. Here as well as in England the law may now be taken
to be, apart from the effect of such specialstatutory provisions ass. 141 of the EVIDENCE
ACT 1928 (Viet.), that a judge at the trialshould exclude confessional statements if in all the circumstances he thinks that they have been improperly procured by officers of police, even although he does not consider
that the strict rules of law, common law andstatutory, require the rejection of the evidence.
ClTS0/1/MB 109 24/3/88 Van Der Meer The Court of Criminal Appeal may review his
decisi~n and if it considers that a miscarriage
has occurred it will allow an appeal from
the conviction.
Now, Your Honours, in LEE's case - I think I did
remind Your Honours that McDERMOTT is in 1948.
In LEE's case, Your Honours - LEE's case was in
1950 - a joint judgment of the Full Bench of this Court.
It is at (1950) 82 CLR 133. That was an appeal
from the Supreme Court of Victoria by the Crown.
(Continued on page 111)
ClT50/2/MB 110 24/3/88 Van Der Meer MR MURRAY (continuing): At 155 point 5 there is a paragraph, Your Honours,
which relates to the facts of the case. Perhaps
to pick it up, although I do not want to read
unnecessarily, Your Honours, page 154 at point 1:
With regard to the Chief Commissioner's Standing Orders -
which is the reference, as they say in Victoria, to the judge's rules, not rules of law. A bit further
down:
As has already been pointed out, the
protection afforded by the rule that this
statement must be voluntary goes so far that
it is only reasonable to require that some
substantial reason should be shown to justify
a discretionary rejection of a voluntary
admission. The rules may be regarded in a general way as prescribing a standard of propriety
and it is in this sense that what may be called
the spirit of the rules should be regarded. But it cannot be denied that they do not in every respect afford a very satisfactory standard.
Their language is in some cases imperative
and in others merely advisory: sometimes the word "must" is used: sometimes the word "should", and the tendency to take them as
a standard can easily develop into a tendency
to apply rejection of evidence as in some
sort a sanction for a failure by a police
officer to obey the rules of his own
organization, a matter which is of courseentirely for the executive.
Whether, Your Honours, that view has been overtaken
to some extent by decisions since, such as WILLIAMS'
case, is a matter that one would find from reading
the later decisions.
It is indeed, we think, a mistake to approach
the matter by asking as separate questions, first, whether the police officer concerned
has acted improperly, and if he has, then
whether it would be unfair to reject the accused'sstatement. It is better to ask whether, having
regard to the conduct of the police and allthe circumstances of the case, it would be unfair to use his own statement against the accused.
Then they go on to quote from Mr Justice Street,
as he then was, in JEFFRIES and I refer Your Honours
to that. The next part which I want to read is at page 155:
ClTSl/1/SDL 111 24/3/88 Van Der Meer In the present case it does not appear to us to be possible to say that there was
any serious breach of any of the rules contained
in the Commissioner's Standing Orders.
I should have reminded Your Honours that in LEE's
case the evidence was concerning admissions which
they said had not taken place.
Perhaps the nearest approach to a serious
breach lay in the reading of Clayton's statement
to Andrews. But it was immediately afterwards given to Andrews to read for himself. Rule 3 applies only to persons in custody. At the material time the three respondents would
most probably not be regarded by the detectives
as being in custody: they had not been arrested .or_ charged: the matter was still in the
stage of police inquiry and investigation:
cf. RV VOISIN -
that is about the judge's rules.
It is to be noted that the prescribed "caution"
begins with the words "Have 6ou anything to say in answer to the charge?' In any case we think that O' Bryan J. was right in saying that the absence of a caution was of no consequence in this case, having regard to
all the circumstances. The expression "voluntary statement" in rule 7 probably has reference
to a volunteered statement. But in any case an invitation to explain established facts can hardly be called cross-examination in any relevant sense. It is cross-examination in the sense of breaking down the will and
extorting admissions by persons who are being
T51 questioned by the police that is to be reprehended. At page 159 point 5, they refer to the decision
below of His Honour Mr Justice Barry of the Supreme
Court of Victoria: We should perhaps add that we do not think that our view of this case or anything
that we have said in any way violates any
of the general principles stated in the judgment
of Barry J. It is, of course, of the mostvital importance that detectives should be
scrupulously careful and fair. The uneducated -
perhaps semi-illiterate - man who has a "record"
and is suspected of some offence may be
practically helpless in the hands of an over-
zealous police officer. The latter may be honest and sincere, but his position of
superiority is so great and so over-powering
ClT52/l/SDL 112 24/3/88 Van Der Meer
II II b II k II h' h
tat a statement may e ta en w 1c seems h very damming but which is really very unreliable.
The case against an accused person in such
a case sometimes depends entirely on the
"statement" made to the police. In such a
case it may well be that his statement, if
admitted, would prejudice him very unfairly.
Such persons stand often in grave need of
that protection which only an extrmely vigilant
court can give them. They provide the real
justification for the Judges' Rules in England
and the Chief Commissioner's Standing Orders
in Victoria, and they provide (if we are to
assume that the requirement of voluntariness
is not enough to ensure justice) a justification
for the existence of an ultimate discretion
as to the admission of confessional evidence.
The duty of police officers to be scrupulously
careful and fair is not, of course, confined
to such cases.
Your Honours, the Court has, in the past, considered voluntariness, fairness, lawfulness and impropriety
in these cases. Standards are expected, as
Your Honour Mr Justice Deane said in CLELAND, (1982)
151 CLR 1. CLELAND was handed down by this Court in 1982. At page 26 point 5, Your Honour Mr Justice Deane says this:
A police power or practice of arbitrary detention is, like a police power or practice
of arbitrary arrest, a negation of any true
right to personal liberty and a hallmark of
tyranny. It is of critical importance to
the existence and protection of personal liberty
under the law that the restraints which the
law imposes on police powers of arrest and
detention be scrupulously observed. In a
number of recent cases, judges of the Supreme
Court of South Australia have rightly been
at pains to emphasize the importance of observance by law enforcement officers of those restraints by excluding, on the grounds
of public policy, evidence of a confessional
statement obtained while an accused wasunlawfully detained (see, e.g. REG V STAFFORD:
REG V EYRES: REG V KILLICK). Again, it will be a matter for the trial judge on the material before him on any new trial to determine whether the need to discourage unlawful conduct on the part of those whose task it is to enforce
the law is outweighed, in the circumstances,by the requirement of public policy that, if the applicant be guilty, he be brought to conviction.
ClT52/2/SDL 11J/114MR MURRAY, QC 24/3/88 Van Der Meer MR MURRAY (continuing): It would, however, seem appropriate that
I express my agreement with the comments
of Mitchell J. in REG V KILLICK, to the
effect that where a confession has been
procured while the accused was unlawfully
imprisoned by the police, special
circumstances, such as the illegality
being slight, would commonly need to exist
before the balancing of considerations of
public policy would fail to favour the
exclusion of evidence of the confession(see, also, per Bray C.J., REG V STAFFORD).
Your Honour, pronouncements have been made
concerning the effects of unlawful detention on
confessional evidence obtained during that state
and I refer, I hope fairly briefly, to the decision
in WILLIAMS V THE QUEEN, (1986) 161 CLR 278,where
reference is made to the way that the law must
jealously guard the privilege against
self-incrimination - I think, my respectful
submission is - I will withdraw that. I am talking about where detention is unlawful. Page 291 point 8
is the first paragraph to which I wish to refer.
It is from the joint judgment of Your Honour
Mr Justice Mason and His Honour Mr Justice Brennan.
WILLIAMS, of course, was an appeal from the
Tasmanian Court of Criminal Appeal - Crown appeal - and it says at point 8:
The Tasmanian Court of Criminal Appeal
thus appears to have accepted the proposition
that when a person, having been lawfully
arrested, is in the custody of a police
officer, s. 34A(l) does not require the
police officer to bring him before a justice
before the police officer has had a reasonable
opportunity to question the person arrested
person is willing to provide information arrested and other offences about which the about the offence for which he has been to the police. That proposition is contrary to principle
and is inconsistent with the unanimous
judgment of this Court in Reg V IORLANO. In that case, the statute which authorized detention of an arrested person was s. 212
of the CUSTOMS ACT 1901 (Cth). It provides - and it is quoted.
ClT53/l/SH 115 24/3/88 Van Der Meer
In IORLANO, the Court said:
"It is unnecessary for present
purposes to decide whether s. 212 is
intended to give a wider power to detain
an arrested person than that which exists
at conunon law. There is simply nothing in
the provisions of s.212, or in the context
in which that section appears, that suggests
that the fact that the arresting officer
desires to question the arrested person
affords any legitimate reason for delay in
taking him before a justice. The section
gives no power to question an arrested
person, and does not make justifiable a
delay which resulted only from the fact
that the arresting officer wished to engage
in questioning."
Your Honour and Mr Justice Brennan go on:
The Court's statement of the principle
does not depend on the particular language
of s. 212 of the CUSTOMS ACT nor on the
particular character of the officer who
might be exercising the power to detain the
person arrested. The principle is of general application to all statutory powers to detain
a person after arrest for an offence although
it can, of course, be excluded by statute.
(Continued on page ll7)
ClT53/2/SH 116 24/3/88 Van Der Meer MR MURRAY (continuing):
The right to personal liberty is, as
Mr Justice Fullagar described it, "the
most elementary and important of all common
law rights'.': TROBRIDGE V HARDY. Personal liberty was held by Blackstone to be an
absolute right vested in the individual bythe immutable laws of nature and had never
been abridged by the laws of England
"without sufficient cause": He warned: "Of great importance to the public is the
preservation of this personal liberty; for
if once it were left in the power of any, the
highest, magistrate to imprison arbitrarily
whomever he or his officers thought proper ...there would soon be an end of all other rights
and immunities."
That warning has recently been echoed.
In CLELAND V THE QUEEN Mr Justice Deane said:
"It is of critical importance to the existenceand protection of personal liberty under the
law that the restraints which the law imposes
on police powers of arrest and dentention be
scrupulously observed."
The right to personal liberty -
the judgment goes on -
cannot be impaired or taken away without
lawful authority and then only to the extent
and for the time which the law prescribes. The issue in this case is the extent of the power
of the police to detain in their custody forquestioning a person who has been lawfully
arrested.
The common law conferred on constables a power
to arrest without warrant on suspicion of felonv,
but the aurhority to keep
the person arresred in custody was limited "till he can be brought before a justice of the
peace": The time could not be extended to allow for the collection of witnesses:
WRIGHT V COURT is quoted:
•~tis the duty of a person arresting anyone
on suspicion of a felony to take him before a
justice as soon as he reasonably can, and the
law gives no authority even to a justice to
detain a person suspected, but for a reasonable
time till he may be examined".
Your Honour, at 295 point 5, that judgment
goes on:
That view is surelv right. If a person cannot be taken into custody for the purpose of
CIT54/l/JM 117 24/3/88 Van Der Meer interrogation, he cannot be kept in custody
for that purpose, and the time limited by the
words "as soon as practicable" cannot be
extended to provide time for interrogation.
It is therefore unlawful for a police officer
having the custody of an arrested person to
delay taking him before a justice in order to
provide an opportunity to investigate thatperson's complicity in a criminal office,
whether the offence under investigation is the
offence for which the person has been arrested
or another offence.
In DRYMA.LIK V FELDMAN, the Full Court of the
Supreme Court of South Australia constured
s.78 of the POLICE OFFENCES ACT as requiring
an arrested person to be brought "forthwith"
before a justice. So construing the section, their Honours were able to distinguish
DALLISON V CAFFERY -
the United Kingdom case, Your Honours.
MASON CJ: Is it necessary to read all this, Mr Murray?
MR MURRAY: If Your Honour pleases, no. I would like to draw Your Honour's attention to the quote down to and including 296 point 8. And I would make the
same, Your Honour, about 297 from point 6 to the end of the words, "SMITH V CORRECTIVE SERVICES
COMMISSION (N.S.W.)" is referred to, Your Honour,
and also refer to the same judgment at 299 point 3
down to the words, "after the police investigation
is finished."
I submit that Williams is authority for the proposition that we jealously guard the right of
people not to be kept in detention for the
purposes of questioning and I respectively submit
that we should, in the same way, jealously guard
the privileges against self-incrimination. Your Honour, the Court has laid down that unlawful detention, with perhaps some minor
exceptional circumstances, excludes the evidence
and I have referred Your Honours to the judgment
in WILLIAMS. I have referred Your Honours to the judgment of his Honour Mr Justice Deane in CLELAND.
We respectfully submit that the privilege against self-incrimination is just as important as the protection of one's citizens rights against detention.
(Continued on page 119)
CIT5_4 /2/ JM 118 24/3/88 Van Der Meer MR MURRAY (continuing): For example, in McDERMOTT at 503,
point 7, His Honour refers - perhaps I might just
briefly refer to that Your Honour. I take Your Honour the Chief Justice's point, I will not
read it - I will not read it all anyway. "It is
apparent that a rule of practice has arisen'and
onwards, Your Honour, to which I have already made
reference. I respectfully submit, Your Honour, that that is a matter of importance and I respectfully
submit, that it is a matter in respect of which
Your Honours would be inclined to grant special
leave. Without leaving WILLIAMS, Your Honour, again
from the same judgment at page 301:
The importance of the question requires
the granting of special leave to appeal.
The conclusion that the applicant's detention
for quest·ioning was unlawful requires that
the appeal be allowed and the applicant's
acquittal on the twenty-six charges be
restored.
Your Honour, in passing~ section 553 of the CRIMINAL CODE OF QUEENSLAND uses the term "forthwith"
as far as someone being taken before the justices
and we respectfully submit that the police here
have failed to comply with that. Now, Your Honour, there is no determination of this Court as to what
is the conduct permitted of police officers and
we respectfully submit that these are matters
Your Honour, that have not yet been fully covered,
if covered at all. Ones to the extent to which the
police may ask questions that are ordinarily
described as "cross-examination", presumably questions
which would suggest the answer, questions which
contradict previous answers or draw contrasting
submissions from other answers given or other answers
given by other people. There is no determination
of this Court as to what is permitted of police
in circumstances where no caution is administered.
DAWSON J: It would be impossible to lay down rules about that and that was pointed out by the Court in LEE's
case_ where they said a minuteness of scrutiny,which in the one case may be entirely appropriate,
may be in the other entirely misplaced.and lead
only to perversion of justice. Each case must, of
cou~se, depend upon11 its own circumstances, considered
in°their entirety. No better guidance is to be found", and so on.
MR MURRAY: Your Honour, well of course what I am saying is that we have now a definitive rule from the Court
that confessions obtained whilst you are improperly
in detention should not be admitted. I am saying, the gap, Your Honour, is as to what guidance is
ClT55/l/SR 119 24/3/88 Van Der Meer given to the law enforcement officers in other
circumstances such as Your Honour might be disposed
to find here if Your Honours were against me on
the question of my clients being in custody in the
arrest sense from the various times during the day.
And, Your Honour, for example, what is the current
status of the judges' rules in these matters. It
has been left, as I understand the authorities, in
a situation where they are relevant in varying
degrees and_varying places. They apply in Queensland
as has been held in Queensland. They apply differently,
it is said, in Mr Justice McClemens in RAGEN's case,
in New South Wales where they are, as it were
subregulations that flow from the delegated authority
of the commission under the POLICE REGULATION ACT.
Your Honour, what is the position? We have
a situation in the case of which we are dealing
whereby a whole list of the judges' rules have been
ignored, breached if you like, but no conclusion
was sought fit to be drawn by His Honour as a result
of that fact.
MASON CJ: Can you give us the authority which holds that the
judges' rules are applicable in Queensland?
MR MURRAY: Yes, Your Honour. The name of the case is
REG V McKAY, '(1965) Qd R -240. It is a decision only of a single judge,and there may be another one,
Your Honour.
(Continued on page 121)
ClTSS/2/SR 120 24/3/88 Van Der Meer MR MURRAY (continuing): Well, also, Your Honour, REG V HART,
(1979) Qd R 8. It is a confessional case, Your Honour. It is a Full Bench case of the Oueensland Court of Criminal Appeal. It is page 13, Your Hon.our, in a decision of
His Honour Mr Justice Connolly.
Accordingly I am of the opinion that the
evidence should have been rejected.
This would be sufficient to dispose of thisapplication but I think it desirable to advert to one other aspect of the case.
The circumstance that an accused person has
been refused access to his solicitor will
not render evidence of his subsequent
interrogation
and so on.
This is recognised by the judgment of
Gibbs J. in DRISCOLL V REG, a judgment
which was agreed in by both Mason and Jacobs JJ.
And then, Your Honour, at the end:
In BORSELLINO Dunn J expressed, in similar circumstances, the view that the court should recognise principle C of the 1964 Judges'
Rules, which reads ..... r·am of the same opinion.
DAWSON J: But that does not mean that the judges' rules are
in force in Queensland.
MR MURRAY: I beg your pardon, Your Honour? DAWSON J: That does not establish that the judges' - - -
MR MURRAY: No, no, I do not suggest they have the force of law in Queensland, Your Honour, but they do have some
status; exactly what it is, this Court has not yet
laid down. They are referred to in the Victorian cases as "the standing orders" and, Your Honour, they are·referred to in other cases as "the Judges'
Rules". Your Honours, of course, are aware of the
Chief Justice's adjudication along similar lines
fairly recently in Australasia. It, in my respectful
opinion, is appropriate that this Court now, in this
case, indicate just what is the effect that should
be given to a breach of those rules particular where,
I respectfully submit, the examination of the facts
here means that they are,-almost every one of them,
breached. And, Your Honour, we would submit,
from reference to the police officers' conduct,
deliberately breached as part of the plan to do
what I have already referred to when I made my
reference to the facts.
I would also add, Your Honour, that we are in
an area where some deliniation, some instruction
ClT56/l/PLC 121 24/3/88 Van Der Meer is needed, Your Honour, as to what is the effect
of interrogation - confessional material obtained
when someone is waiting, as it were - even if the
hypothetical question put to me by Your Honour
Mr Justice Wilson that these lads were, as it were,
co-operating as they waited all day in the police
station, and I take that, Your Honour, with all
seriousness.
WILSON J: I was not putting that as my view. I was drawing attention to the evidence of Detective Sergeant Dickson
which the trial judge accepted.
MR MURRAY: And I am responding, Your Honour, in exactly the same spirit, that even if the evidence is accepted
as His Honour in one sense did having, however,
found that the accused may well have thought they
were in custody or not free to leave, but what is
the position of someone who is waiting? We know from WILLIAMS what the position is for someone
who is under arrest and I, earlier, made the
submission, Your Honour, that there should not be
room for a half-way house to develop.
(Continued on page 123)
ClT56/2/PLC 122 24/3/88 Van Der Meer
MR MURRAY (continuing): I say, Your Honour, that the question of - and I do not mean in the American sense -
entrapment; there is no doubt that a moat was beingdug by the interrogating police officer around
these young men into which they eventually fell.
And I would ask Your Honours to say that where
there should be rules which express in an uncompromising
way in the way that those words were used in
WILLIAMS - it is the joint judgment - I have not
referred, I do not think, yet to the judgment of
Your Honours Mr Justice Wilson and Mr Justice Dawson
in WILLIAMS - that quote, Your Honour, it is only
a sentence so I will read it - 306 at point 9 from
Your Honour Mr Justice Wilson and Your Honour
Mr Justice Dawson:
Because the extent of the power of arrest
and the deprivation of freedom which it involves
are such important matters, it is not surprising
that the ~a~ has been expressed in an
uncomprom1s1ng way.
Well, I respectfully submi½ Your Honours, that
the matters to which I have briefly drawn attention
also warrant, in order to protect the right to
exercise one's right against self-incrimination
also be expressed in an uncompromising way. And it goes, Your Honour - this is a lengthy quotation
so I will do no more than refer to where it begins
and ends, Your Honours, and that is on page 308,
the same joint judgment in WILLIAMS, commencing
at the top of page 308: "There is also the recent decision of this Court in REG V IORLANO." And
I commend to Your Honours the total analysis on page 308 and 309 down to 310 - at the top - in the
course of which Your Honours consider Lord Diplock's
judgment and the DALLISON V CAFFERY case in the
United Kingdom and Your Honours, as did the other
judges, as I read it, came to the conclusion that
that was not grasped in Australia.
And I respectfully submit that those matters indicate that this is a case which is a special leave matter because there do not appear to be the same guidelines where we are talking about
the right against self-incrimination as there exist
when we are talking about the right to liberty
and the consequences where that right is breached.
(Continued on page 125)
ClT57/l/AC 123/124 24/3/88 Van Der Meer
MR MURRAY (continuing): The trial miscarried - and this is slightly, Your Honour, out of the stream of what I
want to put - the trial miscarried because the
admission - I put this before lunch, but I did not
give the page - because the admission of Storhannus'record of interview was induced, and that is, Your Honour, at volume 3, page 105 at the top
right-hand corner. Would Your Honours bear with me while I read this, and I tend to read very quickly,
if that is tolerable. At the top:
"I'm just at a loss to know why these
people would say this if it's not true.
Four of them, five of them now. Coupled with the fact that you denied strenuously
ever being there right from the start.(long pause) Saul are you prepared to,
I intend to interview you the form of
typewritten record of interview where I
will type down a question and read that
question over to you any answers you may
give to those questions will be typed
down by me and at the conclusion of the
record of interview you will be given the
opportunity of reading it over aloud if
you desire and signing it if you wish.
Do you understand that?"
STORHANNUS : "Mmm. II DICKSON: "You've given a record of interview before haven't you."
STORHANNUS : "Yeah. " DICKSON: "We'll kick one off."
STORHANNUS: "I suppose." DICKSON: "We'll all get home before the sun
comes up. How about taking Saul out and putting the billy on and make yourself a cup of coffee Saul and I'll set this up with paper eh and the stuff."
Then, Your Honour, Storhannus re-enters the room after
drinking coffee, and speaking with Dickson and Nichols
in the kitchen:
DICKSON: "Saul you just indicated to me in the kitchen when we were having a cup of coffee there that you were prepared to be confronted by the complainant. You realise you don't have to."
Then it just develops, Your Honour, on to the next page.
I will just read the words again:
ClT58/l/HS 125 Van Der Meer "We'll all get home before the sun
comes up."
Your Honour, that is a classic, in my respectful
submission. Your Honour, I am reminded by my diligent junior that that would be specifically in
breach of section 10 of the CRIMINAL LAW AMENDMENT ACT
of Queensland, concerning confessions:
No confession shall be received which
has been adduced by promise.
Your Honour, we respectfully submit, coming to the
decision on the voir dire, that the remarks of the trial
judge at page 48 of the appeal book at line 19 - "As
they were asked further questions", is the quote -
fails to ask the key question that, as they were
asked further questions, what was the nature of the
questions, what was the quality of the questions.I have referred Your Honour to the way that McBERMOTT's
appeal was dismissed and I have referred Your Honour
to LEE in which the Court here has said the reasons
why are because this did not happen, this did not
happen, and so on.
Now, even if they are negative directions they
are relevant, I would respectfully submit, here and,
nevertheless, the special leave area, Your Honour, would
encourage the Court to express what are the positive
matters, not necessarily as has in the past been
stated. We do not want to regard it as an exhaustive list. It is a common law approach. It has to be
living and breathing and we do not want there to be
thought that because the judges' rules have been
technically breached that that automatically, as
apparently applies in some parts of the United States, leads to the rejection of evidence, but we do need some
guidance. At page 48, line 30, Your Honour, where
His Honour says, "I'm concerned", in effect, "about
Ayliffe. At first glance there appears unwillingness." I respectfully submit that those paragraphs there
indicates His Honour has failed to apply the onus on the Crown to show voluntariness.
(Continued on page 127)
ClT58/2/HS 126 Van Der Meer MR MURRAY (continuing): Now, I know it is put in the negative but, Your Honours, the law clearly - and if I could
just read the name of the cases and put them on
the record - that it is wrong to say that he appears
unwilling at first. But when I see what happened after lunch - excuse me putting this broadly,
Your Honours - I am satisfied that by the night
time, as it were, when Storhannus' record of
interview is being taken they are speaking. That
is not the point. The law, in my respectful submission, it does not matter whether it is volunteered,it
is the question of voluntariness, and that is the
distinction that His Honour has failed to grasp.
Your Honours, for example, in the special
leave matters, STEPHENS,58 ALR 753 at 757 point 9,
this Court says that the Court of Criminal AP.peal 1n
New South Wales revealed a "misunderstanding' of
what the High Court said in DRISCOLL:
and an approach which cannot be accepted.
Therefore, the application received special leave
and, in fact, was successful. I respectfully submit, Your Honours, that this is on all fours with cases
such as STEPHENS' case on the question of the grant
of special leave.
We respectfully submit, Your Honours, that
the law is, as Mr Justice Dixon said in McDERMOTT
at 511 point 7 - if Your Honours would pardon me
I will not take Your Honours to the page - and
on the fact here Mr Justice Connolly failed to
apply that principle about the determination of
free choice. Now, I respectfully submit, Your Honours,
that my clients were over-borne by means apparent
on the record. The Crown has the onus, and that is clear. Your Honour Mr Justice Mason in MacPHERSON, at 532 point 8; from the Court in
LEE at 144 point 9; CLELAND, Mr Justice Deane,
was over-borne." Now, I respectfully submit that His Honour says "I am far from satisfied his will Your Honour, at 19 point 4 and at the end is a reversal of the onus.
WILSON J: It certainly is in terms there, Mr Murray, but then you look at the conclusion the trial judge
expresses at page 51 and he says:
I am satisfied on the preponderence of
probability that the statements were
voluntarily made in the relevant sense.
His Honour seems to correct himself.
MR MURRAY: His Honour gives what, perhaps, would be unexceptional and that applies, Your Honour, to
His Honour's words in both the mandatory exclusion
ClT59/l/MB 127 24/3/88 Van Der Meer and when His Honour came to exercise the
discretionary exclusion. But, really, does it
mean that His Honour has corrected in words or
does it mean that he has nevertheless found that
the accused has not satisfied himself. He does not at any stage say that the onus is on the
prosecution nor does His Honour look at the specificitems of impropriety which emerge from the evidence
and which one can only assume - because they made
submissions for half an hour or so - that counsel
directed His Honour's attention to. There is not
a question about time, there is not a question
about court - I beg your pardon - His Honour does
not appear to make findings on those matters which
I have referred to from Mr Justice Dixon and from
the joint judgment of the Court in LEE's case which,
as I say, are in those cases expressed in the negative.
None of those matters His Honour directs his attention
to.
(Continued on page 129)
ClT59/2/MB 128 24/3/88 Van Der Meer
MR MURRAY (continuing): He finds that there is cross-examination. His Honour finds that they may have thought they were
in custody and His Honour takes completely irrelevant
matters into account. It is irrelevant on the
question of whether or not there has been a freeexercise of the law given right to answer or not
by saying the police were short-handed and, indeed,
that they were facing a difficult situation. It
is irrelevant and, therefore, is on the record, an
error, to say that this was voluntary because the
police were short-handed. The courts have said, Your Honour, that it is not for the Court here to
be even assisting in - it is in the joint judgment of the present Chief Justice and Mr Justice Brennan. Your Honours will know where it is said that it is for the legislature to assist the police because then they can give safeguards.
DAWSON J: That is in WILLIAMS' case, of course.
MR MURRAY: Yes, Your Honour. That is the joint judgment of -
Your Honours, indeed, at page 50 of the
transcript, His Honour finds by the end of the day
that they had not been over-borne. Now - by the end of the day that they had not been over-borne -
firstly, that is not the criterion. It is not
whether they had been nver-borne or not. It is a
question of whether their unwillingness had been
produced by them being over.:bome.. The issue is not whether they had been over-borne or not.
DEANE J: Mr Murray, can I divert you while you have these pages open because it is something that has been concerning me and that is, at page 51, one gets the impression that Mr Van Der Meer's counsel,
not only did not object to the admission of thestatements but that he actually wanted it and
that there is no objection. He took no part in
the voir dire and then he indicates, in effect, that he wants to make use of the Mayo. Well, now, there
may be an answer to that. I do not know but it is just something I thought I should draw to your attention.
MR MURRAY: Yes, Your Honour. I meant to advert to that conduct when I was earlier referring the Court to
the fact that some parts of what the deceased,
Mayo, had said to the police were wanted by
Mr Van Der Meer's counsel because - - -
DEANE J: Well, you did refer to that, yes.
MR MURRAY: - - - Mayo says that he had left the scene which
was Van Der Meer's defence. Well, Your Honour,
ClT60/l/SH 129 24/3/88 Van Der Meer
I have carefully considered that. The only thing I can say is that there comes a time when the duty
of the trial judge cannot be delineated solely by
objections by or the matters of counsel. There,
Your Honour, ~y predecessor is seeking to have
reference to Mayo's material, not only to his own
client's material. So, Your Honour, there are two matters, I respectfully submit, occur from Your Honour's
question to me: one is, does my predecessor's conduct in not making any objection to his own client's
interview preclude me from making submissions here?
I respectfully submit, no, Your Honour, for two
reasons. One is the duty of the trial judge to
consider the overall legal effect of the matters
that were raised by the other two accused.
(Continued on page 131)
ClT60/2/SH 130 24/3/88 Van Der Meer MR MURRAY (continuing): Secondly, Your Honour, the fact that
the evidence of the other men having, as I have
put earlier, wrongly been admitted, that now creates
a new case for Van Der Meer.
DEANE J: Well now, the other thing I wanted to ask you about
while I am interrupting you is, as I read His Honour's
ruling he does not distinguish between admitting
the statements made under questioning by the police
and admitting the transcript of that
somewhat extraordinary confrontation. Now, one could probably draw from that an inference that no
distinction was made by counsel in terms of objecting
that the only objection was on. the basis of whether
it was voluntary or in that line of territory. Are
you in a position to say anything about that?
MR MURRAY: Your Honour, certainly. When you read - that sounds a little self-protective. In my respectful submission,
the objection taken is to the conduct of the
investigative police officers. I know it is said by the prosecutor but it is the objection that was before His Honour; I know the voir dire was raised by the prosecutor and I know the police were the only
ones who called the evidence but nevertheless,
Your Honour, I respectfully submit that the issue of
the conduct of that day is fairly before the learned
presiding trial judge. That covers the tape ofthe confrontation when the two complainants are
brought in and the extraordinary conversations take
place in which there are two police officers, twocomplainants and the accused in the room all at once.
Your Honour will recall - Your Honours may
already have read it, "You may, Saul, ask Michael
any questions you like if you want to whilst he is
here in the room". Now, it came, Your Honour, in the same. area of objection on the voir dire,that was
part of the tapes submitted on the voir dire and
upheld on the voir dire. I have a submission, Your Honour, which I can make now if it is convenient.
DEANE J: I did not want to divert you and all I really wanted to know was is there anything in the transcript
that indicates whether any additional or special
objection was made in relation to that confrontation
or minor court case or whatever you would like to
call it?
MR MURRAY: I cannot recall any, neither can my junior. DEANE J: I see, thank you. MR MURRAY: Your Honour, I do not want to interrupt myself either but I do have a submission that the tapes
were admitted into evidence wrongly. They became
exhibits wrongly. Your Honour, I was submitting -
ClT61/l/PLC 131 24/3/88 Van Der Meer
I think that I have reached this point - that His Honour took into account the state of affairs
at the end of the day. I say that even if by the
end of the day when the record of interviews arebeing taken, when the cautions are being given, when
it is going forward in a much more conventional way,
that His Honour, when so doing, applies the wrong end of the telescope to His Honour's judicial eye
by saying, "Well, look, when I read it all, the first
view I had that Ayliffe did not want to be
interrogated'disappears because by 8 oclock at night
he is freely speaking to the police officers. Well,
that is to misunderstand, in my respectful submission,
what "overbearing" means; what "overbearing conduct" -
what is meant by the authorities when they talk
about "the dominant position of the police" and those
matters. And it is not the issue required by the
law. You need to know that you need not talk and you need then to decide freely to speak. This, we
respectfully submit, was not even addressed.
(Continued on page 133)
ClT61/2/PLC 132 24/3/88 Van Der Meer
MR MURRAY (continuing): Your Honour, would Your Honour permit
me just to read something briefly from page 149 of LEE's case, on this question of the subjective voluntariness, and not volunteered: The introduction of a discretion rule -
this is at page 149, point 5 - it is 82 CLR:
The introduction of a discretion rule
may be considered by some to be, on the
whole, unnecessary.
Now, Your Honour, that relates back in turn to
His Honour Mr Justice Dixon in McDERMOTT and I just draw Your Honour's attention to the ongoing
relationship between the judgment in LEE and what
was said in 1948 in McDERMOTT, that perhaps we
did not ever need a special discretion because we
perhaps misunderstood the great breadth of the
voluntariness directive rule:
The word "voluntary" in the relevant
connection does not mean "volunteered".
It means "made in the exercise of a free
choice to speak or be silent". But a
full understanding and correct application
of the cotittnon law rule that confessional
statements must be voluntary provides
(as Mr Justice Latham observed in McDERMOTT
V R) extensive protection to accused persons.
And Mr Justice Dixon as he then was, judgment is
quoted:
suggests that the development of the
discretion rule may perhaps be "a
consequence of a failure.
Well, it is quoted again, Your Honour, and I
respectfully submit that that is what His Honour Mr Justice Connolly just failed to consider. It
is no use saying that by the time he was even taken
before the confirmatory inspector, as happens in
some circumstances - it happened in WILLIAMS' case,
for example, when the large new numbers of
recorded interviews were in fact adopted in front
of the inspector, it is too late then. The success
of Detective Sergeant Dickson's deliberate plan
has been achieved and it is too late, I respectfully
submit, to say he was talking freely at midnight,
therefore his reluctance at 10.00 am is irrelevant
and that appears to be the basis, and I say this
with no disrespect to His Honour, upon which the
decision was formulated.
ClT62/l/SR 133 24/3/88 Van Der Meer Your Honour, there are two other matters I want to address. That is all I have, Your Honour,on
the voluntariness. Your Honour, we submit, that the tapes having been objected to should not have been
admitted and I can put this quite briefly, a.lthough
it is a very important and indeed in itself it is
a special leave point, we would submit. Your Honour, the tapes should never have been an exhibit. The only circumstances in which the tapes could be
admitted is where the fact of the interviews havingtaken place became an issue. Then, of course, in
cross-examination or even indeed in reply they
could have been admitted.
We respectfully submit that BUTERA is the law Your Honour it is at 76 ALR 35.
The principle has
also been considered in DRISCOLL, unless
irrespective, Your Honour, of the approval by this
Court of the use of tape recordings as eavesdropping
evidence, I respectfully submit that that doesnot change the law of evidence concerning the use
of tape recordings in confessional evidence. I
am aware that there is a growing feeling in law
enforcement circles that the desirability of there
being video and tape outweights whatever logistical
difficulties there are and, Your Honou~,I know that
quite early in the piece there is a comment by
His Honour Mr Justice Barwick concerning the use of
such matters.
(Continued on page 135)
ClT62/2/SR 134 24/3/88 Van Der Meer
MR MURRAY (continuing): I mention just in passing the basic
principle which rroved _the 'majority in DRISCOLL that unless it is adopted - you know the signature on
the record of interview is one of the main points
in DRISCOLL - it is not his document; it is anaide-memoire as the Chief Justice of the day said
in DRISCOLL. Sure Dickson could have used the tapes to refresh his memory but they should not
have been an exhibit. In fact, Your Honours, a
reading of the transcript indicates that the evidence
of the confession was never given - the tapes weretendered and they were played and that, in my
respectful submission, is a departure, an· extraordinary
departure.
BUTERA, Your Honours, sets out rules governing the use of transcript of tape recordings, tapes
recording no.is es and so on and, we respectfully
submit, Your Honours, that these rules do not arise
where there is a witness, in the ordinary sense,
to a conversation otherwise admissible which happens
to have been electronically recorded. We all know, Your Honours, as Your Honour Mr Justice Deane referred
to in CLELAND that the confession evidence of a
police officer is an accepted variance from the
hearsay rule. Now we say the admissibility of the interview conversation is also as an exception
to the hearsay rule because it is in a statement
against the interests - and I have mentioned that
Your Honour Mr Justice Deane makes that statement
in CLELAND - and the evidence is that of the
listener participant. It is the police officer
who says what was said. It should be prima facie
be given orally. The tape is, prima facie, no more than an aide-memoire of what was said. It
gives the evidence - - -
DAWSON J: That does not make sense, with respect. The tape
would be the best evidence of what took place.
MR MURRAY: Your Honour, it is what was said and the law permits it to be given by the police officer who
heard it.
DAWSON J: It permits what was said to be proved by the best method.
MR MURRAY:
On my respectful submission, Your Honour, until this Court says otherwise, the best method of a
confessional material being given - unless its having occurred is challenged - is the verbal statement
of the officer. The witnesses can see him in thewitness box - - - DAWSON J: And he is dependent on his recollection whereas a tape is, in effect, an auditory photograph of
the occasion.
ClT63/l/AC 135 24/3/88 Van Der Meer
MR MURRAY: Well, Your Honour, it has been held by this Court that the desirability of the evidence being
given viva voce has advantages. They are: the witnesses can be assessed by the jury; it is more
familiar to them; they are used to talking to and
from people; it gives - the unsigned record of
interview was held in the decision of His Honour
Mr Justice Gibbs to be - - -
DAWSON J: But there it was said to be a fabrication. That was a different case altogether.
MR MURRAY: Your Honour, but the case of DRISCOLL and the admissibility of the evidence, followed by STEPHENS,
does not turn on whether or not it is a fabrication,
it turns upon whether or not the exhibit can go
into the jury room - whether it becomes an exhibit.
DRISCOLL's case, Your Honour, does not turn, I
respectfully submit, upon whether or not the
confessional material is, in fact, said never to
have happened, and I will take Your Honours briefly to it. In my respectful submission, the circumstances of eavesdropping are different and because it is -
real evidence is a different area and I know that Your Honour Mr Justice Dawson has referred to this on this very issue of voluntariness and discretion
as to whether or not method affects evidence which
is real. The gun obtained unlawfully is nevertheless a gun; BUNNING V CROSS - the blood analysis is
nevertheless blood analysis even though they got
is seemingly unlawfully - - -
TOOHEY J: Mr Murray, is it the tape that you are objecting
to or the transcript of the tape or what?
MR MURRAY:
Your Honour, the transcript did not get into evidence and could never have got into evidence.
The transcript was given to the jury and the tapes, are so unintelligible that the jury could not have
I understand from the transcript, Your Honour, been listening to the tapes, they must have been
watching the transcript. They had an unsigned transcript made by the police officers; they had a tape, the audibility of which was difficult -
you will see in the transcript references are made -"Well, Your Honour, you cannot hear this but if
you place the ear-piece you can hear it" and thenthe counsel say, "There are parts where it is unintelligible" - - - MASON CJ: Where is the tape recording at the present time? MR MURRAY: I do not know, Your Honour, neither does my friend.
ClT63/2/AC 136 24/3/88 Van Der Meer
TOOHEY J: Well, are you saying that the tapes should not
have been played?
MR MURRAY: Yes. TOOHEY J: And should not have been admitted in evidence?
MR MURRAY: Correct. That is my submission. And the law,
Your Honour, is - - -
TOOHEY J: And what about the transcript?
MR MURRAY: The transcript should not have been adverted to. TOOHEY J:
Though there is no question of the transcript having been admitted in evidence, from what you are saying.
MR MURRAY: They fail because the tapes are not admitted. BUTERA says that in certain - - -
TOOHEY J: But I am not talking about the - I am talking about the factual situation at the trial.
MR MURRAY: Yes. Your Honour, the factual situation - my objection is - my submission is the tapes should
never have been exhibits; the evidence should have been given viva voce by Dickson. Then if they had
said nothing like that took place, then the tapes
may have been admitted.
TOOHEY J: But, Mr Murray, are you saying that while the
tapes were played, the members of the jury had a
transcript in front of them?
MR MURRAY: One between two. TOOHEY J: Right, but that at the end of the trial, not the
transcript, but the tape was admitted in evidence
and was made available to the jury?
MR MURRAY: The learned presiding trial judge made the tapes
an exhibit without them even being offered.
TOOHEY J: Well, I suppose the answer is, yes, to the question
that I put to you?
MR MURRAY: Yes, Your Honour, but I was saying, Your Honour, they did not wait until the end; they became an
exhibit and were played as they were tendered.
While they were being played, the jury had on their
knees, as it were, one between two, a copy of the
police officers' transcript.
TOOHEY J: But when the jury retired, from what you say,
they did not take the transcripts with them?
MR MURRAY: No, as I understand it. TOOHEY J: They were presumably returned to somewhere.
CIT64/l/JM 137 24/3/88 Van Der Meer
MR MURRAY: Presumably, Your Honour, and - - - TOOHEY J: Yes, thank you.
t"1R MURRAY: - - -the tapes were exhibits. DEANE J: Well, they took the tapes; did they take something
to play them with?
MR MURRAY: The transcript is silent, but Your Honour, elsewhere DEANE J: But, Mr Murray, what is the implication of your
answer that you do not know where the tapes are,
and that the -
MR MURRAY: Well, it is the implication that I am telling
and I do not want to give you a voluntary admission -
Your Honour the truth, and that I am also telling
the implication is, Your Honour, that we thought
it might be in the Registry; the tapes might be here.
MASON CJ: Well, the tapes, indeed the exhibits in the case
have never been, apparently, within the Registry of
this Court. This Court has been informed by the
district court registry in Cairns that the exhibits
are not with that court and apparently, it is suggested,
that in accordance with normal practice the exhibits
may have been returned to the police.
MR MURRAY: I do not know, Your Honour. MASON CJ: But certainly the exhibits are no longer with the
registry in Cairns, and they have not been forwarded
to this Court.
MASON CJ: Perhaps we might ask Mr Nase to enlighten us in
anyway, if he can.
MR MURRAY: I cannot assist Your Honours any further, other
than giving hearsay evidence.
MASON CJ: Mr Nase, do you know anything about it? MR NASE: Yes, I do, although indirectly, because I made
endeavours to obtain copies of the transcripts,
they not being in the application book which was supplied
to me. The registry of the Court of Criminal Appeal in Brisbane hold a receipt from the circuit court
registry at Cairns. However, extensive searches have been carried out and the complete file is missing;
everything has gone, without trace.
MASON CJ: So that they were in the custody of the Court of Criminal Appeal in Brisbane?
MR NASE: Yes.
CIT64/2/JM 138 24/3/88 Van Der Meer
MASON CJ: Were returned to the district court in Cairns? MR NASE: Yes. MASON CJ: And somehow, since then, have disappeared? MR NASE: Yes, that is so, and I understood the Registrar of this Court was obtaining some document from the
Cairns registry to that effect.
(Continued on page 140)
CIT64/3/JM 139 24/3/88 Van Der Meer
MASON CJ: I have stated the effect of the document that he has received from the District Gourt at Cairns,
namely that they have not got the documents.
MR NASE: Yes. I can inform the Court that efforts were made over a period in excess of a week to locate
them. I even had people appearing on Saturday morning
to search the registry and they were simply not
there.
TOOHEY J: Is it the practice for exhibits to be returned
to the police after a time?
MR NASE: Yes, although the whole file is missing. The additional complication in this case is that
Mr Dickson is no longer a member of the police
force.
WILSON J: Do you happen to have a date on which the documents were returned to Cairns, Mr Nase?
MR NASE: The receipt, from memory, I was told was dated
22 March 1985.WILSON J: That would be shortly after the conclusion of
the appeal to the Court of Criminal appeal?
MR NASE: Yes. WILSON J: And there then followed the long period before the application for special leave was lodged.
MR NASE: Yes. I cannot assist the Court any further.
MASON CJ: Thank you. MR MURRAY:
Your Honours, in the same spirit I can tell Your Honours that during 1985 and during 1986 extensive efforts were made by the solicitors who
were endeavouring to locate the exhibits and the
tapes so that we could hear them, because we thought
they may be advantageous, Your Honours, and informative. Indeed, not that it matters, I became involved personally in a phone· call level with someone in Brisbane about that and we were unable to get any satisfactory answer as to where the exhibits, including the tapes, were in the total period that we have been
trying to get this case brought forward, Your Honours.I hope I have made my position clear,
Your Honours, as far as that is concerned. Taking
it in reverse, there was no call for the transcript
to have been used; the tapes should not have been
exhibited. Whether they went to the jury room
I can only sur1mise. There is nothing in the transcript
which indicated that they did or did not; I have no knowledge as to whether the jury were playing
them; the trial judge, when he sent them out at
ClT65/l/SDL 140 24/3/88 Van Der Meer the end of his summing up or charge said, "If you want
to, you can have the tapes played", and they did
come back and ask some questions about the evidence,
not the tapes. So I respectfully submit, Your Honour, that that is another important matter
about which this Court would be concerned to grant
special leave, namely, what are the rules that
govern the evidentiary use that can be made of
electronic recordings of confessional material?
BUTERA is silent on the matter.
And, Your Honours, I should have added this
on the list of things that I was putting to
Your Honours earlier concerning the need for some
definitive delineation of the law concerning conduct
and to guide the courts below, the tapings were
secret. They were not informed that they were being taped. In fact, Your Honours will recall
that I read earlier where Mayo is saying, "I saw
the microphone; you've been taping this", and
so on. And I referred to Dickson's cross-examination on the voir dire whereby he said, "Yes, they did
not know", and he listed Ayliffe, Van Der Meer
T65 and Storhannus did not know they were being taped.
DAWSON J: Why should they know, Mr Murray? MR MURRAY: Your Honour, it is part of the fairness rule that just as you cannot be deceived as to whether
the police officer is really inquiring out of
curiosity where you were last night or whether
he is trying to have you commit yourself for an
indictable offence carrying life; secondly, and
do not permit them to be the subject of secret
in my respectful submission, all of the rules concerning
fairness do not permit people to be deceived.
recording circumstances, particularly where you
have conversations - "We'll put the billy on,
now, Saul, and we'll be home before sunrise."
It is chat, it is informal, you could be lulled
into a feeling of, really, there is no one writing, and so on. Remember, the caution says, "Anything you do say may be taken down or recorded and be
given in evidence". That is part of the caution.
So, Your Honour, I would respectfully submit
that it cannot be consistent with the rights of
the citizen for people to be deceived about whether
or not what they are saying is being recorded.
Your Honour, there is no specific authority of
which I am aware and which our research can find,
which gives any guidance other than what the Court
has recently said in the case of BUTERA. BUTERA does not apply to confessions, it applies to
eavesdropping evidence.
ClT66/l/SDL 141 24/3/88 Van Der Meer DAWSON J: You say BUTERA does not apply to confessions. Was it not a confession, or admission~ anyway, that were
taken down on tape?
MR MURRAY:
Your Honour, BUTERA was eavesdropping evidence of the commission of the offence.
The conversation
between the Pakistanis, or whatever they were,
who spoke a foreign language, was, Your Honour,
recorded clandestinely- and I know, Your Honour,
that that is able to be distinguished from confessional
materials which cannot be done clandestinely -and
it was an overt act in the conspiracy; the chain
of overt acts.
DAWSON J: That is true but it also constituted, from memory,
some admissions, did it not, on the part of the
people who were speaking but not on the part of the
appellant in that case.
MR MURRAY: They were not confessional admissions, Your Honour. They were admissions of the commission of the offence.
It was as if you have a movie of the murder, no
one could possibly object if the television cameras
are rolling watching the Sydney to Surf and they
inadvertently capture on film the commission of
a crime. That is not what the law is concerned -but if they take that person to the police station,
secretly photograph him, secretly get his fingerprints,
secretly record what he is saying, secretly take
a blood sample - they are the things that the Court
has got to be concerned with and, I would respectfully
submit, Your Honours, there is another area in
which the Court should, in this case, grant specialleave.
The final matter, Your Honours, is the failing
of His Honour to give any direction concerning
the - two matters, I beg Your Honours' pardon.
One is the lies as corroboration, and I jusy take
Your Honours not to the pages but to see that several
times, perhaps six, in His Honour's summing up, His Honour gives directions as to - which I respectfully
submit are wrong - as to what use can be made by
the jury of lies and corroboration. Your Honours, there are two points about it: the lies come out
of the objectionable confessional material, they
come out of the objectionable interviews, and secondly,Your Honour, they are misused because they are
said, without further ado, to be evidence of
corroboration and evidence of guilt.
Your Honour, the cases are LUCAS, I have on
these notes, Your Honour, the Weekly Law Reports
but it is in the Queens Bench now. It is on our
list, Your Honours; LONERGAN, a Tasmanian case
which is on our list~ BUCK, Your Honour, which
I think is from Western Australia, 8 A Crim R,
and SUTTON, Your Honurs, which again is on our list. I have the print here. Those cases, in
ClT66/2/SDL 142 24/3/88 Van Der Meer my respectful submission, although I do not intend to
address them, they are clear. The law is clear, that you just cannot say that a man who tells lies
is corroborating the complainant or that that is
evidence that you may take of evidence of his guilt,
unless you also explain that lies might have other
motivation and those time-honoured things which,
I respectfully submit, can be found in LUCAS and
in SUTTON, which is a decision of the Supreme Court
of New South Wales sitting as a court of criminal
appeal, handed down, Your Honours, on 20 March 1986.
Your Honours, I apologize for not having the page
of the report but I have it just on the print -
it says this, it is only two sentences:
I have already quoted the passage from REG V BUCK
delineating the matters to be taken into account
when determining whether a 1 ie can be used by the Crown in aid of proof of guilt. I shall
add that reliance by the Crown on collateral
conduct eloquent of guil½ such as flight
or a lie, is fraught with the risk of miscarriage.
The link between the conduct and the crime
in question must be demonstrable.
Those matters, Your Honour, are inconsistent with the points that were made by His Honour
Mr Justice Connolly in the summing up.
MASON CJ: That case is reported. (1986) 5 NSWLR 697.
MR MURRAY: Yes, it was on our list, Your Honour. MASON CJ:: I do not precisely know where the passage 1s that you have just read.
MR MURRAY: Your Honours, it will be on the second or the
third last page, Your Honour. The paragraph will begin:
REG V BUCK. I have already quoted the passage from
MASON CJ: Yes, 701.
MR MURRAY: I apologize, Your Honour, for not having it here. We left it upstairs.
(Continued on page 144)
ClT66/3/SDL 143 24/3/88 Van Der Meer
MR MURRAY (continuing): Now, Your Honour, the final matter is a matter that arises under the defence of
consent that was raised by Storhannus. His Honour
failed to give any direction as to the way the jury
should consider a defence of consent. It is said,
Your Honour, that the Queensland CRIMINAL CODE, section 347 - section 347 is headed'The Definition
of Rape" I direct Your Honours' attention to it. I direct Your Honours' attention to section 24
and, perhaps, section 23 of the Code. I direct Your Honours' attention to the ATTORNEY-GENERAL'S
REFERENCE No.l of 1977, (1979) WAR 45.
Your Honour, we have placed on our list,and
I do not wish to go to them, the well-known cases of MORGAN V DPP in the United Kingdom and McEWAN in New South Wales and we do not have on the list
but it is picked up in the other cases, SPEROTTO
in New South Wales and it is a PROUDMAN V DAMON
issue, Your Honour, con::erning whether or not the
Code defines the offence of rape in a way that means
that there is an issue of mistaken belief in consent
and whether that issue is determined according to
SPEROTTO or to McEWAN in a State where the criminal
law as to rape is governed by the Griffith Code.
We respectfully submit, Your Honour, that a
reading of the Code as, for example, is required
by this Court in cases including BRENNAN's case
in 55 CLR to which I do not wish to take the Court,
that it is clear that the definition, in our
respectful submission, in the Code is the connnon
law definition of rape. His Honour Mr Justice Burt,
the Chief Justice of Western Australia,finds in the
case to which we have referred that on his reading
of the Code: there is no issue of belief in consent
in rape but there is in attempted rape. We respectfully submit that that would produce a
quaint, a puzzling situation. We respectfully submit that however the law is reviewed, either
section 3 or section 24, either SPEROTTO or McEWAN or MORGAN, that, in any event, His Honour
Mr Justice Connolly failed to give any direction
as to Storhannus' defence.
MASON CJ: Was any direction sought on this point? MR MURRAY: No, Your Honour. WILSON J: I beg your pardon. MR MURRAY: Nor was it argued in the Court of Criminal Appeal. Nor was the matter, Your Honour, of lies as
corroboration, argued in the Court of Criminal
Appeal. Nor was a direction sought on that. Those are my submissions, Your Honour.
MASON CJ: Thank you, Mr Murray.
ClT67/l/SH 144 24/3/88 Van Der Meer
MASON CJ: Yes, Mr Nase.
MR NASE:
I have prepared an outline of submissions for the Court.
The submission is that stated in point 1
in the outline of submissions. The principles applied by both the trial judge and the Court of Criminal Appeal
are consistent with the cases mentioned in paragraph 1.
If I can refer briefly to the judgment of the Court
of Criminal Appeal -.at pages 415, 416, are the cases
relevant passages -including passages read to
the Court by Mr Murray.
WILSON J: Page 415, did you say? MR NASE: Pages 415 and 416 were referred to by the court, concluding at the top of page 417:
Without· particular reference to these
authorities, the learned trial judge
clearly applied the principles stated in
them to the questions which he had for
consideration; and it follows, in my view, that his application of those principles
to the relevant facts discloses no basisfor interference by this Court with his
admission of the relevant evidence.
Indeed, in CLELAND Sir Harry Gibbs, 151 CLR 1, at
page 5 - Sir Harry Gibbs said:
The principles governing the admissibility
of confessional evidence are not in doubt -
reading the final paragraph on page 5 -
The principles governing the admissibility
of confessional evidence are not in doubt.
The were recently restated in the joint
judgment of Wilson J and myself in
MacPHERSON. A confession will not be admitted unless it is made voluntarily,
that is in the exercise of a free choice to speak or be silent. But even if the
statement was voluntary, and therefore
admissible, the triar judge has a discretionto reject it if he considers thatitwas
obtained in circumstances that would
render it unfair to use it against the
accused. In LEE in the course of a discussion of the rule that allows the
Court a discretion to reject evidence of
statements voluntarily made to police
officers, the Court said -
and then there is a passage which contains principles
which are familiar to the Court. Now, the applicant has argued that the police questioning of suspects
ClT68/l/HS 145 24/3/88 Van Der Meer without the administration of a caution or
subjecting the suspect to cross-examination gives
rise to a matter of public importance. The Judges' Rules prescribe the relevant standards of propriety
in these respects. It has been held in Queensland
that they apply to that State, but the controlling
principle wherever a court is asked to exercise its
discretionary powers of exclusion is that of
unfairness.
(Continued on page 147)
ClT68/2/HS 146 24/3/88 Van Der Meer
MR NASE (continuing): In our submission no question of
principle arises in this case. The difficulty, it is submitted, with respect, with the applicants'
argument is that he focuses on the relevant standards
of propriety as if they state principles. If point, at the risk of going over the same ground.
At page 154, in the judgment of the Court, it was said, a little under half-way down the page:
It is indeed, we think, a mistake to approach the matter by asking as separate questions, first, whether the police officer concerned
has acted improperly, and if he has, then
whether it would be unfair to reject the accused's
statement. It is better to ask whether having
regard to the conduct of the police and all
the circumstances of the case, it would be
unfair to use his own statement against the
accused.
And then a little later the Court said:
"It is a question of degree in each case,
and it is for the presiding Judge to determine,
in the light of all the circumstances, whether
the statements or admissions of the accused
have been extracted from him under conditions
which render it unjust to allow his own words
to be given in evidence against him."
If I could pick out another brief passage in the middle of page 151 where one sees a similar approach,
a little above the middle of page 151:
What is impropriety in police methods and
what would be unfairness in admitting in evidence
against an accused person a statement obtained
by improper methods must depend upon the
circumstances of each particular case and
no attempt should be made to define and thereby to limit the extent or the application of these conceptions.
The broad principle, or I should say the exercise
of the discretion to exclude invovles a consideration
of whether it is unfair to the suspect in all thecircumstances of the case to admit the confessional
material.
MASON CJ: What do you say about the suggestion that what occurred here amounted to cross-examination and
the suggestion, certainly in LEE, that interrogation
should not involve cross-examination, bearing in
mind that the trial judge appears to have said
cross-examination was not unlawful in police
interrogation in Queensland?
ClT69/l/MB 147 24/3/88 Van Der Meer
MR NASE: Well, what the trial judge said was that cross- examination is not unlawful, although he did then
go on to refer to the Judges' Rules by commenting
that it was not recommended. In the passage in
LEE which appears at page 155 - I am sorry, I am
not answering the question directly. Cross-examination
may represent a breach of the Judges' Rules .
A breach of the Judges' Rules enlivens the
discretion, the exclusionary discretion that a
trial judge has to reject a voluntary confession.
(Continued on page 149)
ClT69/2/MB 148 24/3/88 Van Der Meer MR NASE (continuing): If I can turn to the passage that I
read earlier, and continue reading, at the bottom
of page 154, the Court said, about 10 lines from
the bottom of page 154, after referring to the
passage by Justice Street saying:
It is a question of degree in each case .....
whether the statements ..... have been
extracted from him under conditions which
render it unjust to allow his own words
to be given in evidence against him.
The passage then continues, third line from the
bottom:
It was conceded, he said, that in that case
"the examination demonstrably transgressed
the limits permitted under the Judges' Rules."
It appeared, however, that the accused was
in a condition properly to answer to the"gruelling questioning" which had been
administered to him, and the learned trial
judge admitted the evidence.
Then if I can move down a little bit further, along page 155, to again about 10 lines from the bottom
of the page, the question of cross-examination is
again addressed, the Court saying:
But in any case an invitation to explain
established facts can hardly be called
down the will and extorting
cross-examination in any relevant sense. breaking
admissions by persons who are being
questioned by the police that is to bereprehended.
Now the trial judge, in my submission, acknowledged
that there were passages where cross-examination
occurred, but his overall conclusion was that the
cross-examination did not produce any relevant inculpatory confession, nor did it have any effect
upon the particular applicants whose cases were
under review. His finding was that throughout
both applicants took advantage of the time they were
at the police station to put forward what was,
from their point of view, an exculpatory accountof the events that evening.
In my submission, Mr Murray has,in parts,
confused notions of impropriety and notions of
illegality. It is not illegal for a police officer
to cross-examine or to fail to caution. It may
involve or it may represent a breach of the
Judges' Rules and may misrepresent an impropriety
within that particular investigation, but it is not
ClT70/l/SR 149 24/3/88 Van Der Meer
unlawful in the sense that that is used. Now there is, for the purposes of the Judges' Rules, an
extended definition attributed to the word "custody"
as that word appears in those rules. And a convenient statement of that extended definition
is found in a judgment by Justice Gowan in
RV SMITH, 1964 VR 95, page 97, where at about line 15
these words were accepted as representing an
extended definition of the word "custody" as it
appears in the Judges' Rules:He may go only in response to an invitation from the police that he should do so, and the police may have no power to detain him
but if the police act so as to make him
think that they can detain him, he is in
their cus.tody.
Now there is a distinction between that notion, for the purposes of the application of the Judges' Rules
and the notion of keeping a suspect in custody,
that is in real custody, in defiance of an obligation
in law to deal with the person in a particular way.
And that is the sense in which the words"illegal
detention"were used by this Court in WILLIAMS.
(Continued on page 151)
ClT70/2/SR 150 24/3/88 Van Der Meer
MR NASE (continuing): Now, let me say that in this case there was no attempt on behalf of either of the
applicants below to set up a case of illegal detention.
There was no attempt to do so in the cross-examination,
or in the way it is obvious the submissions were
addressed to the particular judge. And, indeed,
there was no evidentiary basis for such an attack to be made upon the confessional evidence in this case.
And, indeed, there was no finding of illegality by
the learned trial judge. There was no finding of
illegality in the circumstance that the applicants
were in the police station for varying lengths of
time.
I may usefully refer to the relevant Judges' Rule in relation to caution. The relevant Judges' Rule imposes the obligation to administer the caution when the police officer has decided to
arrest the suspect.
Now, that completes my submissions on paragraph 1,
which is my main submission, that is that there is
simply no special leave point in the application; that
the decisions of this Court collected in the paragraph
contain a consistent body of law which is understood
throughout Australia and on a daily basis applied
by the Courts of the land.
Now, if I could turn to paragraph 2, and these are subsidiary matters that I would draw the Court's
attention to,given the nature of the application before
the Court. I do not wish to elaborate an paragraph 2 (a),
or paragraph 2(b). In relation to paragraph 2(c),counsel at the trial did not ask the trial judge to
exclude the evidence and, in my submission, there was
no credible argument available to him. Van Der Meer was interviewed twice briefly and his comments were
recorded by Mr Dickson. In each of those interviews
the applicant Van Der Meer asserted that he simply had
nothing to do with the events of the evening. He
asserted them in a quite strong way to the police officer. The evidentiary use of that initial explanation, or account, by Mr Van Der Meer provided the source
against him of what was used by the Crown as a false
account of his movements.
TOOHEY J:
Mr Nase, do you accept the information given to us by Mr Murray as to when each of the accused was
cautioned? MR NASE: Yes, I do. TOOHEY J: Thank you. MR NASE: Now, if I could move to paragraph 2(d) in the outline
of submissions. The interviews with both Ayliffe and Storhannus nacurally fell into two segments.
CIT71/l/JM 151 24/3/88 Van Der Meer
MR NASE (continuing): Each of them was initially interviewed, a relatively brief interview, and questioned about their
movements. It was at a time in each case when, on
the material before the Court, the police officer
investigating had sketchy information in his possession and each gave a false account of his
movements, saying that he went to the hotel and then
went home. Now, in my submission, no credible attack could be made upon the admission of each of
those initial interviews. At each interview the
respective applicants applied a false account of his
movements. There was no necessity, on the material
before the court, for a caution to be administered.
The Judges' Rules in these circumstances do
no recommend the cautioning of a suspect. Mr Dickson's
evidence, in relation to Ayliffe, for example, was that
he was a number of people that they were endeavouring
to run about to ask them. Secondly, whether or not
the conversations were recorded in Ayliffe's case, in
my submission, is quite immaterial. In Storhannus' case, of course, Mr Dickson's evidence, in the
passages we were referred to this morning, showed that
the tape-recording machine was put on the desk in
front of them. So Mr Storhannus, at all times, knew that his conversations were being recorded.
Thirdly, in relation to the initial explanation, the initial false account of the movements, there was
no cross-examination. Ayliffe gave evidence that he was at the hotel and that he went home at closing time.
That appears at pages 63 and 64 in the record. The account is repeated in the first taped interview which
commences at page 2 of the exhibit book. Both initial
interviews were relatively short and there was, in my
submission, no difficulty with the admission into
evidence of Ayliffe's first account of his movements
to the police. In my submission, much the same
analysis can be made of Mr Storhannus' initialinterview with the police.
Mr Storhannus was interviewed much later in the
day than Mr Ayliffe. This first interview was at
3.39. Mr Dickson, the police officer, at pages 37 to 40, was cross-examined about the state of his knowledge,
or the state of his brief at the time he interviewed
Mr Storhannus and in those pages he explained that what
he had was firstly a description from the complainant
that fitted Storhannus; secondly, a statement by eachcomplainant that he or she was in a position to identify
the offender; thirdly the name Saul, and fourthly, the fact the person Saul was dropped off somewhere near where Storhannus' mother apparently lived.
He
also - that is Dickson - pointed out that he did not have any identification by the complainants and, secondly, that he had two names for the man Saul.
ClT72/l/HS 152 24/3/88 Van Der Meer Now, Saul gave an account of his movements.
He said in the initial interview, the initial
relatively short interview, that he had seen Mayo
and Ayliffe earlier in the evening, but that he
spent the latter part of the evening with an
Angelo Venturato at a place called Apollo's, and
then went straight home.
(Continued on page 154)
ClT72/2/HS 153 24/3/88 Van Der Meer MR NASE (continuing): In my submission nothing emerges,
looking at that interview,which would necessitate
the rejection of that conversation. There is no
notion of a concept of tainting moving forward
as distinct from moving back to perhaps taint a
subsequent admission or statement by a person undercustody.
Now, those two false accounts were the two
false accounts on which the Crown relied in
presenting its case against each of the applicants.
Each was clear and each was well proved. Each was admitted to be false or, at least, there was no contest at the trial and each account was given
in circumstances that, in my submission, did not
require any serious consideration to rejecting the
evidence.
Now, the submission was made that in each case,
that is in Storhannus' case and in Ayliffe's case,
the contact that each applicant had with the police
could be looked at in two sections. The first section was the initial false account of the
movements. The second section was an account given by each applicant that was essentially exculpatory
in character and the second account that was given
was the one that was persisted in by the applicant
during the balance of the time that he was in contact
with the police.
In my submission, it is an interesting feature of the case that the exculpatory account which was
given, for example, by Ayliffe, throughout the time
that he was with the police, was the version of
events that was both suggested to the complainant
and apparently presented to the jury by his counsel.
In putting A's case to the complainant, Ayliff e's
counsel did not take issue with her evidence she
was raped but rather he suggested her evidence that"A" himself had sexual intercourse with her or that "A" himself assisted others have sexual intercourse
with her, was either wrong or mistaken and those suggestions were made between pages 171 and 180 of
the record but, most clearly, at page 180. The suggestions were rejected by the complainant. The suggestions being rejected by the complainant -
for example, at the top of page 180, Ayliffe's
counsel says:
I suggest to you that Peter was not involved
with you at any stage in terms of having
intercourse with you?--Yes.I suggest he wasn't holding you in any way when Saul was having intercourse?--He was.
ClT73/l/SH 154 24/3/88 Van Der Meer I am suggesting you are mistaken about
that, it was somebody else?--I beg your
pardon.
I am suggesting you are mistaken about
that, that it could have been somebody
else?--No.
I suggest he certainly never had intercourse
with you himself?--Yes, he did.
I suggest somebody called out to him or somebody said to him did he want to have
intercourse, and he said he couldn't
raise an erection?--No.
(Continued on page 156)
ClT73/2/SH 155 24/3/88 Van Der Meer MR NASE (continuing): Now, those, or that account, is the
account that Ayliffe presented to the police during
the time of his interrogations. His account atall times was an exculpatory account, while inculpatory
of others. The suggestions being rejected by the complainant, the only evidentiary source of the
suggested defence was, in fact, the interview
with the police. A reference to the case that
was put on his behalf appears at page 360 of thelearned judge's summing up. That leads me to the
question of reliability. The reliability of any confessional statement is always relevant to its
admission and in LEE there is a passage at page 156
where that view is expressed - I will not read
the passage.
Here there are two features: the accuracy
of the recordings was not challenged; the accuracy of the integrity of the tapes were not challenged. Secondly, the exculpatory account itself, the one
by Ayliffe in his case and the one by Storhannus
in his case, was the account put to the witness,
that is, the complainant, and in turn the account
put to the jury as the defence case. So the exculpatory account was important to the defence
case because it provided the only evidentiary source
on which the defence case could be put to the jury
and at the same time, at least from the defence
perspective, there was no serious question concerning
the reliability of the exculpatory account.
Now, in my submission, all of these matters
listed from (a) to (f) in paragraph 2, are relevant
to the question of whether special leave should
be granted. However, before leaving those tapes
altogether, I would like to deal in some greater
detail with Ayliffe's accounts.
WILSON J: You will show us, Mr Nase, where the cross- examination by Mr Storhannus' counsel utilized the exculpatory account in the interviews? Do
not let me interrupt if you were going to do it later.
MR NASE: The account commences at page 211. Unfortunately, I do not know that I can supply the Court with
adequate references. I must apologise.
WILSON J: Thank you. MR NASE: The reference in the summing up is at page 360. Storhannus' account was that of consensual intercourse. That was the case that was put to the complainant. If I may go briefly through
Ayliffe's dealings with the police, there was the
initial interview at about 9.37, the text of which
is found at pages62 and 63, in which he gives
Cl T74/ 1 /MB 156 24/3/88 Van Der Meer the account that he went home - he went to the
hotel and then went directly home. He was next interviewed at 10.15 am by - and a tape-recorder
was used on this occasion - and in a relatively
short interview he confirmed that initial
account that he went to Malanda and then to the
hotel and then home.
(Continued on page 158)
ClT74/2/MB 157 24/3/88 Van Der Meer MR NASE (continuing): In my submission there is no real
problem in that first interview. There is a passage
at page 7 that attracted some attention; the
passage where when he was asked whether he wanted
to get examined, about two-thirds of the way down
the page, he said:
"No reason. I just want to get out of here."
Now there are two significant answers. He was asked: "Are you prepared to be examined then ...... "
And he said:
"I don't want to be examined eh." -
and he was not. And then he was asked: "Is there any reason why you don't want to
be examined."
And he said:
"N I . f h II
o reason. Just want to get out o ere.
Now that indicates, in my submission, that he knew
he could refuse medical examination and it indicates,
in my submission, a desire on his part to minimize his time at the police station. At the conclusion
of that interview at page 9, about two-thirds of
the way down the page, the interview concluded
and Dickson said:
"Yeah. Alright if you bear with us we will
be back in a minute. We just want to."
Now, in my submission, that suggests that the police
were seeking the co-operation of Ayliffe, not that
they wer~ in any sense, standing over Ayliffe.
"Yeah. Alright if you bear with us we will be back in a minute. We just want to."
There was, in addition to the passages that the
Court was taken to this morning, a passage where
Dickson said that Van Der Meer spent most of his time in the back room of the police station - I
think it was the kitchen - right next to the open
back door and, indeed, there was the evidence that
at one stage it was realized that Van Der Meer
was not anywhere about and there was a bit of a
search for him until he was found. Now the next
interview with Ayliffe was at 12;56 - it appears
in the exhibit book at page 38 and this is the
ClT75/l/AC 158 24/3/88 Van Der Meer tape 1n which, what I have called his exculpatory
account was presented. The exculpatory account is presented both in this interview and in the
one further interview - the record of interview
that was taken from him before he was arrested.
Now in this tape he commences by making an admission
of presence at the scene of the offence. He foreshadows in this conversation his eventual record
of interview where he asserts the claim that he
was there but not party to any offence and he,
in this interview, demonstrates an unwillingness
to identify for the police anything done by any
of his companions.
Now a number of passages were referred to
1n the course of this interview; one at page 40 -
if I can endeavour to pick out the most significant
passages.
(Continued on page 160)
ClT75/l/AC 159 24/3/88 Van Der Meer MR NASE (continuing); Just under half-way down the page
he is recorded as saying:
Ayliffe: "I'm not saying nothing."
Dickson: "Beg your pardon." Ayliffe: "I didn't want to have nothing to
do with it." .....
Ayliffe: "Didn't want to have nothing to do
with it in the first place."
Now, that was the passage that was considered by the
learned judge at page 48 in the course of giving his
reasons on the voir dire. In my submission, the
passage in the context of the whole of the interview
demonstrates, not an unwillingness to talk about his
own role, that is, to assert that he had nothing to
do with it, but an unwillingness to inculpate his
companions. Irrrrnediately after the passage he re-asserted his own dissociation from the acts of
the others there. He is able to say at page 41 that
he told the others to leave her alone, in the course
of the interview. He was able to say that he was told by the,others to move himself, in rather blunt
language. He was able, on the same page, to assert his own helplessness to interfere to save either of
the complainants. And at 43 he was able to advance
a more plausible explanation for not observing the
acts of rape or the assault on the male complainant. That explanation was repeated at page 44, and
if I could read that explanation, he said, about a
third of the way down the page:
"I didn't want to have nothing to do with it.
I wouldn't even watch to see what happened."
Dickson: "Well."
Ayliffe: "I told you after they left me. Well,
I might have just helped him up, and I put him back in the car . ''
And then some discussion about who left him.
Dickson: "Who left him?" ..... Ayliffe: "Whoever was getting into him." Dickson: "Who was getting into him?" Ayliffe: "I wasn't watching." Dickson: "Did you keep your back tunred?" Ayliffe: "Yeah, I was having nothing to do with it." Dickson: "You never looked around once?" Ayliffe: "I did. It was dark, eh. Didn't want to see who was in it."
MIT76/l/JM 160 24/3/88 Van Der Meer And then at page 45, if I can connect all of these
passages together in one -
DEANE J: Why do not you just go on to that page, though, where Ayliffe says:
"I did. It was dark." .....
and Dickson said:
"I was out last night. It wasn't all that
dark."
MR NASE: Yes. DEANE J: He then says: "Last night. It was a lovely clear night."
MR NASE: Yes. DEANE J: That is precisely the sort of thing that should not
be done by a policeman conducting an investigation,
that is, throw in evidence that can be put before
the jury when the statement goes.
MR NASE: I have sympathy with the view that Your Honour expresses. If I may, I would like to - - -
DEANE J: That seems to be the whole approach of these
interviews, though: get everything incriminating
you can into the record and see how you can go.
MR NASE: There is a distinction, if I may draw it. There was cross-examination at various stages, not so
much of Ayliffe, but certainly of Storhannus. A
distinction can be drawn between whether the
cross-examination produced any relevant admission, or
any alteration in.the exculpatory statement that
was being advanced by the particular person under
question, and the question between that question and the question of whefu.erthe particular passages of cross-examination themselves ought to have been
excluded. And that can be illustrated by the attitude
of Storhannus' counsel after His Honour ruled that
in his view the confessional material was voluntarilysupplied and there were no circumstances of unfairness
to necessitate its rejection.
Storhannus' counsel at that point applied for the exclusion of various passages.
Now, His Honour
then considered that and in fact excluded a number
of pasages on the application of Storhannus' counsel.
And those are the passages at pages 69, 75, 76 - if
I can just give Your Honour the page numbers, page 85,87, 88 and page 89 and question and answers 80, 81, 82
of the record of interview.
MIT76/2/JM 161 24/3/88 Van Der Meer
MR NASE (continuing): Now, the debate and His Honour's rulings appear in the record of proceedings before
the Court of Criminal Appeal. They are not included in the application book before this Court but the
pages at which they appear in the original record
of proceeding are between pages 93 and 98 and,
indeed, the handwritten marks on those various
pages indicate the passages that were excluded by ruling of the learned judge. It was always open,
in my submission, for counsel appearing for either
Ayliffe or Storhannus to take objection to anypassages such as the passage Your Honour has just pointed out and ask that that passage be excluded
while accepting the learned judge's general finding
that the particular applicant spoke in the exercise
of his free will.
DAWSON J: It should be excluded on the basis that it was otherwise inadmissible evidence.
MR NASE: 'And had no true evidentiary value>-for whatever reason,because it reflected an opinion of the
police office or whatever.DAWSON J: Yes. TOOHEY J: Mr Nase, the pages that you have given us, beginning with 69 and finishing with 82, are a reference to
what material?
MR NASE: They are passages which were excluded by the trial
judge on application made to him after he gave his ruling on the voir dire. TOOHEY J: Yes, I understand that but the pagination itself
was - where does that come from?
MR NASE: The bottom. We have been referring to that as the orthodox pagination.
TOOHEY J: Oh, I see. MR NASE: For example, page 69, bottom right-hand side. TOOHEY J: Yes, I see that but if you go to - take the second
one. I am not going to take you through them all but 75 which is 92 on the top right-hand, where is
there an indication of material having been excluded?
MR NASE: Can Your Honour see an asterisk towards the top of the page? TOOHEY J: Yes, I do.
MR NASE: If Your Honour looks at the bottom of the page 74, there are some notations and I would suspect the
notations are in the hand of the trial judge.
ClT77/l/SH 162 24/3/88 Van Der Meer
TOOHEY J: Oh, I see. MR NASE: "Inadmissible from here to mark 'X'".
WILSON J: So it is the first six or seven lines on page 75. MR NASE: Yes. WILSON J: And do we take it, on page 69, that the whole section marked with the word "inadmissible" in the margin
went out.
MR NASE: Yes. That appears, reading the passages that I
have mentioned in the record or proceedings before the Court of Criminal Appeal, between pages 93 and
98.
MASON CJ: Yes. MR NASE: One can correlate the marks on the transcript with
the rulings that were made.TOOHEY J:
A lot of that excluded material appears to relate to what was put to the accused as having been said
by Mayo. MR NASE: Yes, it does. TOOHEY J: Is there any that falls outside that classification?
MR NASE: I think the last one may but I am not too - t.here is a passage, 87 and 88, at the bottom of page 87, for example, appears to fall - - - (Continued on page 164)
ClT77/2/SH 163 24/3/88 Van Der Meer
TOOHEY J: Al thou~· that again introduces :t-'.fay, as does the following page. MR NASE: No, I see Mayo's name there. And then on page 88, the passage there could be wider. TOOHEY J: Well, I do not know, is it, because there is
a reference to two people and the two people may be
a reference in part to Mayo? But any way it looks like generally speaking the material that
was excluded was material representing what Mayo
is alleged to have said?
MR NASE: Yes, there was much left in that could have been the subject of an application to exclude. WILSON J: I am probably confused, Mr Nase, but looking at page 88, and bearing in mind your earlier statement
that Storhannus' defence was consensual intercourse,
at page 78, he is saying in the middle there, when
he is asked if he had permission to have intercourse,
he said:
Not really I never made love to anyone.
But elsewhere he does admit consensual intercourse, does he?
MR NASE: Yes, he had a problem in sustaining an erection and there is some confusion as to whether he gives
a consistent account on that particular aspect. The material is a little ambiguous as I read it. WILSON J: Yes, well do not stay with it.
MR NASE: I was in the progress of passing through Ayliffe's
interview of 12.56, I think at around about page45, endeavouring to put together from the various references a submission that Ayliffee gave a consistently exculpatory account on his own behalf and that the various references to evasion and so forth on his part and to not seeing things that
must have been obvious were related to his disinclination to inculpate by name the others that were with him at the scene.
(Continued on page 165)
ClT78/l/SR 164 24/3/88 Van Der Meer
MR NASE (continuing): For example, at page 45, in the
middle of the page, Dickson asked him:
"Who was telling you this?"
That is, the account he was giving at that stage
was that he was not participating in the rape of
the female complainant but at one stage those that
- the unnamed that were called over to him and
told him, in his words, "To come and have a go".
And he was asked:
"Who was telling you this?" -
about the middle of page 45 - and he said:
"Whoever, eh."
Dickson: "Whoever, Peter, you know.
You're being very evasive with me."
And there was questioning like that. Again, the
reference to "evasiveness" relates to his
disinclination to inculpate by name the others
that were there. That continues on page 46-at
the bottom of page 46 where Dickson asks him:
"Did the other man ask you to come and . h ? II your turn at raping t e woman.
Ayliffe: "I don't know? Not saying, eh."
Dickson: "Beg your pardon?" Ayliffe: "No." Dickson:
"You' re not saying. Why not? 11 Ayliffe: "I don't want to."
Dickson: "Pardon." Ayliffe: "Don't want to." Dickson: "Don' t want to." Ayliffe: "(Negative response) Nuh. 11
And then at the top of page 47 he reasserted his
inability to do anything to intervene to save the
female complainant.
TOOHEY J: It is a little unreal though, is it not?
MR NASE: I beg your pardon? TOOHEY J: Is it not a little unreal. In a sense it is exculpatory - but more and more as the interv~ewing goes on Ayliffe
ClT79/l/MB 165 NASE 24/3/88
Van Der Meer (Continued on page 165A) 1s drawn closer and closer to the scene and
if not to direct participation to, perhaps, a
closer involvement than his answers at the beginningof the interview w0uld have?
MR NASE: No, I submit not. I understand the proposition Your Honour is putting to me.
TOOHEY J:
Yes, it is a difficult one, perhaps, without looking very closely at the entirety of the interview.
MR NASE: But if one remembers that they were all in a small car at an isolated place, the inference from
the bare facts is really inescapable.
(Continued on page 166)
ClT79/2/MB 165A 24/3/88 Van Der Meer
MR NASE (continuing): If I can try and just complete the point
that the references to evade and not wanting to
say relate to this area. At the top of page 48 he was asked, about line 4: "Why didn't you tell me this before, Peter?"
Ayliffe: "I just don't like to dob people . h II 1n, e .
I am sorry, I must apologize, there is another
passage that was read this morning, it is at page 43,
where, in my submission, he gives an explanation
of the same kind. Two-thirds of the way down the
page:
Ayliffe: "I wasn't gonna look."
Dickson: "Why not?" Ayliffe: "I didn't want to see it happen.
You think I like seeing chicks get raped?"
Dickson: "Probably not."
Ay 1 if f e : "Pretty 1 ow , eh . "
Dickson: "Most people wouldn't." Ayliffe: "Well, I don't like seein8 blokes gettin bashed to the shithouse too.
If I can attempt to summarize. Ayliffe, in his
first interview, and in his first taped interview,
supplies a brief account of his movements which
do not include any reference to his being at the
scene. In the second tape he immediately foreshadows
his eventual record of interview: he admits his presence at the scene, and thereafter gives a
consistent exculpatory account of his role. That
is, he was there, he did not participate in what
what occurred. Much of the cross-examiantion of occurred, and he was powerless to participate in him related to an obvious reluctance on his part to disclose the names of the other actors at the
scene.
(Continued on page 167)
ClT80/l/SDL 166 24/3/88 Van Der Meer
MR NASE (continuing): The next interview that Ayliffe participated in was the formal record of interview
at 7.57 pm which appears at page 103. In that he
was warned at the outset. He indicated that he was
not prepared to answer further questions, but then
he demonstrated an anxiousness to comment upon the
allegations of the complainants which, to that date,
he had not heard in detail. At page 104 he said that he wanted to put a statement on the record and then,
in an answer, he supplied the same exculpatory
account that he gave in the taped interview
which occurred at 12.56.Then in the balance of the record of interview the allegations of the complainants were put to him and
he gave answers that were consistently evasive with
his earlier attitude as far as the roles played by
the other actors at the scene and, indeed, if one
looks at his answers, they appear to be singularly
unconvincing and there is a sense in which the earlier
fuller explanation that he gave in the looserdiscussion with the police officer that was taped gives
a better account of his position and demonstrates
rather more clearly that his apparent evasiveness
stemmed from, on his part, a reluctance to implicate,
by name, the other actors at the scene.
But the principal submissions I make, both
in Storhannus' case and in Ayliffe's case, are these:
firstly, that the initial interviews are not subject
to any credible challenge. They were both brief interviews at an early stage in the investigation
of that suspect. They contain an account not drawn out by any cross-examination, a simple account that
he was at a hotel and then went home in each case,
and it was that initial account which, against each
applicant, supplied against him the false account
of his movements. The subsequent conversations of each applicant contained an admission of presence,
coupled with, in one case, a disclaimer of any
participation in what occurred, and in Storhannus'
case in an assertion that sexual intercourse occurred between he and the complainant, but the intercourse
that occurred was entirely concensual.
(Continued on page 168)
ClT81/l/HS 167 24/3/88 Van Der Meer MR NASE (continuing): And I repeat the submissions in
paragraphs (e) and (f) that it is significant ~n
considering the application that in both their
cases the exculpatory account which was given ~n evidence by each was the only evidentiary source
of the defence case that each put to the jury.
And I add to that the submission I made upon the
reliability of the exculpatory account. It is
acknowledged that there are passages to which
obviously exception can be taken on the part of
the police officer. But in my submission that was properly the subject of separate application
to exclude any passages that were felt to be
offensive. This is not a case in which it can be
said any cross-examination produced a confession.
It is a case in which each applicant consistently
asserted the same exculpatory account and indeed
if that exculpatory account had not got into
evidence, one can wonder how the defence cases
could have been presented in any plausible way to
the jury.
Now, I can perhaps deal with paragraph 3
in the outline of submissions briefly. I do not wish to elaborate paragraph 3 to any - - -
DEANE J: Are you passing from the records now? MR NASE: Yes, I have moved to paragraph 3 in the outline of submissions. DEANE J:
Can I take you to page 907 On what basis would you suggest that that and the following pages were admissable? MR NASE: These are the confrontations? DEANE J: It starts with a discouragement, almost, to
Storhannus to say anything, It says:
you realise when they're putting their
allegations to you you're not obliged to say anything if you do say anything
it may be given in evidence.
MR NASE: Yes.
(Continued on page 169)
ClT82/l/SR 168 24/3/88 Van Der Meer
MR NASE: Yes. DEANE J:
And then we have pages in which he says nothing except he ventures to ask a couple of questions.
Now on what basis do you suggest that was admissible? MR NASE: Well, I would submit he took a more active part than that, for example - - - DEANE J: Perhaps you might show me between 90 and 95. MR NASE: It commences at page 90; he intervenes at page 91 -
about two-thirds of the way down the page there
is an intervention attributed to him, Storhannus.
DEANE J: But it indicates that he thinks he can ask a question. MR NASE: "Who was punching ..... " DEANE J: Yes. Who was punching you, while me and Bob were
raping her? When she reckons we were raping her?
MR NASE: "And who hit you with the flagon?" DEANE J:
I am still at a loss. On what basis do you say all that is admissible? Do you suggest that he is conceding the truth of what has been said or that anything that anybody says to somebody when he has been told he does not have to say anything is admissible in evidence against him? MR NASE: I am endeavouring to remember what was said in
the summing up. I do not recall it being put to the jury that they could use any silence on his part as an admission. DEANE J: In that case, why was it in evidence?
MR NASE: And indeed, in view of the warning that was given, again I am looking at page 90 - I have not answered middle of the page:
DICKSON: Saul. You indicated before that
you're prepared to have this lady ..... Put
her allegations to you. The warning I gave you before, that you don't have to comment
at all ..... still applies.
DEANE J: If it is claimed that these should on in as admissions, what is said to him is grossly misleading
because he has been told he does not have to say
anything and if he does say anything it will be
used in evidence.
ClT83/l/AC 169 24/3/88 Van Der Meer
MR NASE: I do not understand that they were put in as admissions. Certainly the jury were not invited to
take that view of them in the course of the judge's
summing up.
DEANE J: But,you see, the problem then is that this was played
to the jury as a sort of mock court case there are the strongest allegations in it against all the accused,
and one really reaches the stage where one begins to
doubt the effectiveness of telling the jury in general
terms that they cannot regard the admissions or the
statements made by one - - -
MR NASE: I understand Your Honour's point. If I could just
make this point: if neither Mitrovic or the female complainant had given evidence in the trial, Your
Honour's point may well be irresistible, but the fact
is that both Mitrovic and Wehr gave evidence in the
trial before the jury and,without looking at it in
detail, I would assume made the same statements before
the jury, and in that sense, that deprives what
occurred - I have not expressed myself very well.
DEANE J: I see the great force of what you say as an answer down the line.
MR NASE: It deprives it of its potential prejudice, if I could put that.
DEANE J: I was just wondering whether you had anything to say before one went down the line, as it were, as
to how this could possibly be admissible in evidence.
MR NASE: I must confess, my mind had not turned towards that
as a separate problem. Your Honour asked Mr Murray whether there was any indication that counsel had
separately taken an objection to that part of the tape
and I would assume from the way in which the learned
judge dealt with the question on the voir dire that no
separate objection was taken. His focus was entirely upon the absence of cautions, the length of time and
the statements which apparently indicated some unwillingness to continue with the interviews and
with the cross-examination; and it would not appear that His Honour's attention was directly taken to
the confrontations.
(Continued on page 171)
ClT84/l/HS 170 24/3/88 Van Der Meer
WILSON J: What was the procedure when the jury returned and the trial resumed? Dickson gave evidence and were the tapes played in the course of his evidence? :t-1R NASE: I think from memory that was the sequence of events. WILSON J: And the tapes would include this,what they have called"the confrontation."
:t-1R NASE: Yes.
WILSON J: Yes, I see. But certain parts of those tapes were excised in the parts to which you have drawn attention.
:t-1R NASE: Parts of the tapes were excised when counsel took
separate objection.WILSON J: Yes, but apparently no objection was taken to the confrontation.
:t-1R NASE: Yes. WILSON J: Yes, thank you.
:t-1R NASE: I must confess I have not endeavoured in my mind to analyse the admissibility of the confrontations as a
separate question.MASON CJ: Mr Nase, perhaps we ought to give you the opportunity of directing your mind to that question and lodging
with the Court some written submission upon if you
wish to do so.
:t-1R NASE: Yes, thank you. MASON CJ: But, if you wish to do so, I think we ought to fix
a time, seven days within which you should do it.
:t-1R NASE: Yes, there is no difficulty in that. Before leaving the interviews altogether, in Storhannus' case there
is a further point that arises out of the circumstance that he elected not to give evidence and that is that technically there was no evidence that he was unaware of his right to silence. There was some evidence that the police officer had had dealings with him in the past. The evidence was that the tape-recorder was
put on the table between them from the start. Now, the onus, of course, in inviting a judge to exercise
his discretionary power to exclude the confession
is on the applicant. Although the learned judge did
not specifically advert to that consideration, he
did advert to the absence of evidence on any of the
issues on the part of both applicants in the course
of the voir dire. Then, there is the further point,if I can make another point in relation to the caution
in Storhannus, is that whether there was a caution or whether
there was not a caution in his case, he appears to have
answered questions with equal enthusiasm.
ClT85/l/SH 171 24/3/88 Van Der Meer MR NASE (continuing): It seems to have made no difference
to him either before or after. Of course, the caution lawyers attach significance too, but in one sense
it serves simply to remind the subject of the
rights that he has and, in my submission, one
ought not to assume in Storhannus' case that he
was unaware of his right to silence.
The submissions in relation to paragraph 3
I can, perhaps, put more succinctly. My submission is that the learned judge's critical findings were
findings that were open to him on the state of the
evidence before him and the submission that there
was a reversal of onus was one not shared by the
Court of Criminal Appeal in the passage to which
I have already referred nor is it, in my submission,
reasonably open. I am looking at the whole of the learned judge's directions. For example at page 48
His Honour said, from line 32:
I am far from satisfied that his will was
over-borne. Reading the material as a whole,
it seems to me that he was only too anxious to
put his current version of events forward as
a self-serving exculpatory statement, and any
statement he made were inculpatory of his
associates rather than himself.
And then there is the passage at page 49 at line 7:
From there on, the interview, as it seems to
me of 12.56, is an attempt to demonstrate that
he himself was wholly innocent whatever may
be said of others, though he was unwilling to reveal his associates 1 part in the matter so far as he could avoid doing so. Then at the same page at line 32:
The whole tone of these statements, which I have
read, do not suggest to me a person whose will
is over-borne. As I have perhaps already said, they rather suggest a person who is
not unwilling to take the opportunity of
exculpating himself while resisting, as
far as it seems possible to do so, saying
anything about his associates.
(Continued on page 173)
ClT86/l/MB 172 24/3/88 Van Der Meer MR NASE (continuing):
I am satisfied on the preponderance of
probability that the statements concerned
are admissible as a matter of law, having
been made voluntarily within the meaning
of that expression.
And again in relation to Storhannus at page 50,
His Honour said at line 52:
there is really nothing to indicate that
his will was overborne in the slightest.
Quite the contrary, he has taken the
opportunity, as I read this material,
of putting forward his own version,exculpating himself as he would see it
and, where it was helpful to do this,
involving his associates.
Now in my submission all of the findings that
were made by the learned judge were open to him.
I would specifically make the submission that
His Honour did not make a finding that any of the applicants were restrained or in custody during the time they were at the police station. That
seemed to be asserted by Mr Murray. I do not know that I can usefully make any further
submissions on ground 3. There was an additional
submission based upon the tapes. The course that
was followed at the trial once the interviews
were held to be admissible was not the subject
of controversy at the trial. And indeed, whenthe time came that the tapes were produced to
be played and the transcripts were produced by
the Crown prosecutor there was some discussion
whether the transcripts should be made an exhibit.
Counsel for the applicants objected but finally
adopted a common position that the transcriptsshould not go in as an exhibit but should be
marked for identification and should be supplied
to the jury as a form of assistance to them while the tapes were played for them.
In my submission, Mr Murray, at times in
relying upon BUTERA seemed to be confusing
the tapes with the transcripts. I submit, in any event, there was nothing in that point. In
relation to the submission that the learned judge's
directions on consent were defective, this
represents no more than an attempt to import into
the CRI}1INAL GODE a concept of mens rea.
ClT87/l/SR 173 24/3/88 Van der Meer
:MR NASE (continuing): In MORGAN the House of Lords, I think it was, were defining the concept of mens rea in a
charge of rape. Under the CRIMINAL CODE there are two elements, carnal connection in the absence of
the woman's consent. The doctrine of mens rea has no place in Queensland. If it is desired to assert any belief in consent one has to look to section 24
which provides a defence.
MASON CJ: We need not trouble you further on this. :MR NASE: And there is West Australian authority and there is a reference in one of the books.
MASON CJ: Yes, well you need not trouble about it. :MR NASE: Then the last point made, although not in sequence, was that the direction on lies was inadequate.
In my submission, it was not. His Honour gave directions on corroboration that were adequate, and
I can quickly refer the Court to the relevant pages.
At page 360 there was a direction on corroboration.
I do not ask the Court to read the passages. I~ I
can simply refer to them. Corroboration was explained to the jury in the usual terms. VAN DER MEER's case was then discussed from page 161. His Honour invited
the jury to consider, as part of the corroboration in
his case, the initial false account of his movements
that I have mentioned and that His Honour did at
page 365.His Honour gave a direction to the jury that they should not convict because they conclude lies were
told. His Honour told the jury that the false account
of the applicant's movements could afford
corroboration if they led to an inference of
consciousness of guilt. His Honour discussed that in
some detail and referred the jury's attention, on the same page to the possibility of innocent explanation
for lies.
(Continued on page 175)
ClT88/l/HS 174 24/3/88 Van Der Meer
MR NASE (continuing): So, in my submission, all of the essential directions were there given to the
jury. And His Honour, when he later directed the
jury on the other initial false account~ either
referred back to his other directions, as I recallit, or made similar comments. It may be that in some of the subsequent directions on the initial
false account His Honour did not specifically remind the jury of each of the aspects that he
had drawn their attention towards in his initial
directions on corroboration at page 360 and on
the false account at page 365.
On the whole of his directions, it is my
submission there was no reasonable prospect of
the jury misusing the evidence. There was no
redirection sought by any of the counsel present
at the trial, nor was it taken as a ground of
appeal before the Court of Criminal Appeal. I have no further submissions, Your Honours.
MASON CJ: Thank you, Mr Nase. Do you have any reply, Mr Murray?
MR MURRAY: Briefly, Your Honour. Would Your Honours just, without me taking Your Honours to it, at 365 see
that far from there being any adequate direction
concerning the use of lies His Honour makes a
statement which could be understood by the tribunalof fact to involve the reversal of onus. If there
were an innocent explanation and it is not a criminal
offence to have a . .... with a woman not your wife
wife, it is a personal thing. If there were some
innocent explanation then it could be given.
Your Honours, the only other matter I want
to draw Your Honouri attention to is in relation
to what has been referred to as the confrontation
incident and may I say, Your Honours, that would
I be permitted, Your Honours, should I get a copy
of my learned friend's submission, if any, to that. deliver to the Court something brief in reply to
MASON CJ: Certainly, within seven days of the time fixed for .....
MR MURRAY: Further , Your Honour. I accept it, of course,
Your Honour. In GRILLS' case, Your Honours,
(1910) 11 CLR, and at 422 a fairly well-known
passage from His Honour Mr Justice Isaacs says:
(Continued on page 176)
ClT89/l/ND 175 NASE 24/3/88 Van der Meer MR MURRAY (continuing):
It is an elementary rule of law, going to the very foundation of justice,
that no man shall be adjudged to be guilty
of a crime upon evidence of another person's
p.revious assertion. It matters not whether
the assertion was made in the absence or the
presence of the accused, as a mere assertion
it cannot be regarded as any proof of the
culpability of the accused or any confirmation
of his accusers.
Your Honour, I also should draw Your Honours'
attention, in answer to a question from Your Honour
Mr Justice Toohey, I express my belief that the
tape - the transcripts had not become exhibits. That appears to be wrong. I withdraw it, Your Honour, and I refer Your Honour to pages - - -
TOOHEY J: Pages 69, I think, and 70.
MR MURRAY: Page 94, Your Honour. Page 94 of what we are calling
volume 1 of the transcript and page 99.
TOOHEY J: The position as I understand it, Mr Murray, is that the tapes were played and marked as exhibits. Transcripts
were made available to the jury while the tapes were
being played, were marked for identification but it
would appear were, thereafte~ not available to the
jury.
MR MURRAY: I thought that was the case, Your Honour, but when I read now page 94, it is a question whether exhibit "F" - what Your Honour has just - - -
TOOHEY J: But they are for identification. Exhibits are given
a number. The documents marked for identification are given letters but sometimes they are described as
exhibits but, in fact, they are marked for identification.
MR MURRAY: My ignorance of detailed procedure in Queensland, Your Honour.
TOOHEY J: I share that, Mr Murray. MASON CJ: Thank you, Mr Murray. MR MURRAY: Thank you, Your Honour. MASON CJ: The Court will consider its decision in this matter and will adjourn until 10 am tomorrow morning.
AT 4.55 PM THE MATTER WAS ADJOURNED SINE DIE
ClT90/l/SH 176 24/3/88 Van Der Meer
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