Van Der Meer v The Queen

[1988] HCA 56

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Deane, Dawson and Toohey JJ.

ROBERT VAN DER MEER AND ORS v. THE QUEEN

2 November 1988

Decisions

MASON C.J.: The facts of this matter are set out in the judgments of the other members of the Court. However, in order to deal with the central thrust of the applicants' case - the challenge to the reception into evidence of the police interrogation of the applicants - I need to reiterate some of the history of the police interrogation and refer to the ruling of the trial judge after the hearing of the voir dire. At the trial counsel for Ayliffe and Storhannus challenged the admissibility of the statements made by their clients on the grounds that the statements were not voluntary and that, even if voluntary, they were improperly obtained and should be excluded in the exercise of the trial judge's discretion. The trial judge overruled the challenge on both grounds. The applications by Ayliffe and Storhannus for special leave to appeal ultimately sought to establish that the trial judge erred in overruling the challenge so far as it related to the statements made by these applicants, so it is necessary to examine his Honour's reasons with a view to ascertaining whether he was in error and whether any error gives rise to a special leave point.

2. No objection was made on behalf of Van der Meer to the reception into evidence of the statements made by him to the police. The absence of an objection at the trial to the reception of his statements constitutes a serious obstacle to the success of Van der Meer's application, the more so because Van der Meer, who alone of the applicants gave evidence at the trial, relied strongly in his defence on the exculpatory character of his statements.

3. The history of events at the Mareeba police station on 3 February 1984 began when Sergeant Dickson, who was in charge of the station on that day, saw Mrs W and Mr M at about 5.30 a.m. and heard their complaint that she had been raped by four men and he had been assaulted earlier that morning. The complainants did not know the four men. However, they knew that one of them was called "Moose" by his companions. At about 9.35 a.m. Dickson encountered Ayliffe who had just arrived at the police station, expecting to be driven to Atherton where he was to give evidence as a police witness in an unrelated case. Dickson asked Ayliffe some general questions and then proceeded to Ayliffe's home. There Dickson found Van der Meer and Mayo and, after asking them some general questions, brought them back to the police station. In response to one question Dickson ascertained from Mayo that he was known as "Moose".

4. On his return to the police station Dickson interviewed Ayliffe, Mayo and Van der Meer in turn, beginning with Ayliffe at 10.15 a.m. and continuing with Mayo at 10.35 a.m. and Van der Meer at 10.55 a.m. The interviews were recorded on tape, unknown to the three men. They each denied participation in the commission of the alleged offences, though Mayo implicated the others and Storhannus in the rape of Mrs W and in the assault of Mr M. Mayo accompanied Detective Wall to the scene of the alleged offences at about 12.30 p.m.

5. At this time Dickson had a further discussion with Van der Meer, followed at 12.56 p.m. by another discussion lasting twenty minutes with Ayliffe and a further discussion with Mayo at 1.50 p.m. which lasted for much of the afternoon. Storhannus arrived at the police station at 3.00 p.m. Dickson interviewed him at 3.39 p.m. for half an hour, the interview being recorded to the knowledge of Storhannus. After completion of this interview, the men other than Mayo were identified by the complainants in a line-up sometime after 6.30 p.m. Mayo was separately identified by the complainants.

6. After the identification parade there occurred the extraordinary confrontation between the complainants and Storhannus which has been sufficiently described in the other judgments. There followed further final interviews with Ayliffe, Storhannus and Mayo which were recorded as records of interview. These interviews were subject to interruptions for varying periods of time. Ayliffe's record of interview was completed shortly after midnight when he was arrested. Storhannus' record of interview concluded at 12.26 a.m. when he signed the record and was also arrested. The police interviewed Van der Meer shortly after 8.00 p.m. with a view to making a record of interview. He declined to answer further questions on the advice of his solicitor. It seems that he was arrested that night, but the exact time of arrest is unclear.

7. According to the police evidence, the four men were free to leave the police station at any time before their arrest. They were not instructed not to leave nor were they prevented from leaving. However, it was made plain that they were expected to remain in case they were required for further questioning. They were not in custody in the sense that they were assigned to the control or supervision of police officers. They were kept apart, though it is possible that at some time during the day they may have spoken to each other. The police station was undermanned on the day and this evidently had some impact on the way in which the police investigation into the offences was pursued. But Dickson conceded that the tactic of keeping the four men apart was adopted so that the police could "play one off against the other".

8. It seems that the applicants were not warned that they did not need to participate in the identification line-up. Ayliffe was not given the usual caution about answering questions until shortly after 7.57 p.m. when the interview began which became the subject of the record of interview. He was asked whether he was prepared to answer further questions to which he responded, "No, not really." He was then asked, "In all fairness to you do you wish to be made aware of the allegations which have been made by (M) and (W) so that you may have the opportunity to comment on them?" His answer was, "Yes, I would like to comment on them if I could."

9. Storhannus was not cautioned until late in his record of interview, although he had earlier been warned that he did not need to participate in the confrontation which the police set up with the complainants.

10. In ruling on the voir dire the trial judge, with reference to the police interrogation of the four men, said:

"The pattern which emerges is that the four

men under investigation - the three prisoners and a fourth who was originally charged - initially denied all knowledge of these events. A clearer picture emerged progressively from the complainants during the day, and finally at the identification line-up all four were identified. The other thing that emerges is that during the day as they were asked further questions each of the suspects started to make statements exculpating himself and implicating the others. The police station is, for present purposes, undermanned, and it was necessary for the officer charged with the investigation, Detective second class Dickson, to check the information as it emerged progressively from the complainant, to put to the prisoners and the fourth man what was being said and to obtain their reactions."

11. The trial judge regarded the statements made by Ayliffe as presenting a special problem. There were passages in Ayliffe's interrogation which indicated that he was objecting to being examined. There was one such passage in the interview that commenced at 10.15 a.m. and another in the interview that commenced at 12.56 p.m., as well as the answer in the record of interview to which I have already referred. And some of the evidence given by Dickson suggests that Ayliffe was objecting to being questioned about his activities on the night in question, though Dickson himself did not treat Ayliffe's responses as being indicative of such an attitude. In the ultimate analysis the trial judge came to the conclusion that, when the interviews were read in their entirety, they conveyed the impression that Ayliffe was not unwilling to take the opportunity of exculpating himself, while resisting, as far as it was possible to do so, saying anything about his associates. Accordingly, his Honour found that Ayliffe's statements were voluntary.

12. His Honour then found that the long time spent at the police station did not represent any form of impropriety by the police. He remarked that, as they were overworked and understaffed, it was understandable that it took the entire day to unravel the story of what occurred. His Honour considered that the police engaged in cross-examination of the four men but concluded that it was not unlawful in Queensland. He went on to say:

"the question from my point of view is not whether there has been a breach of the literal spirit of the Judges Rules, which judges have pointed out many times do not have the force of law in Queensland, but merely provide a yardstick against which police interrogative procedures may be judged. Now, at the end of the day the question is

still whether anything has occurred which would render it unfair to admit the statements. To my mind it is not unfair in a situation like this to face an accused person progressively with other versions of the events which call for his comment if he wishes to make such a comment, and to point out to him that what he is now saying is hardly consistent with what he said earlier. In my view, this situation does not call for the exercise of the discretion to exclude the statements."

13. With respect to Storhannus, his Honour concluded that, notwithstanding the very late giving of the caution, Storhannus had taken the opportunity of putting forward his own version of events, exculpating himself and, where it was helpful to do this, involving his associates. In the result his Honour concluded that, notwithstanding that the absence of a caution at the beginning of the interview was a matter of concern, on the probabilities the statements were all voluntary.

14. The applicants' criticism of the reception of the statements into evidence, which was rejected by the Court of Criminal Appeal, is based on a number of specific points. They are that the police:
(i) interrogated the applicants whilst they were

unlawfully detained against their will;

(ii) interrogated the applicants despite their

unwillingness to be questioned;

(iii) did not caution the applicants until long after the

police suspected, or had reason to suspect, that the applicants had committed the offences with which they were subsequently charged;

(iv) interrogated them over a very long period of time; (v) subjected them to intensive cross-examination;
(vi) confronted each applicant with statements made by

the other men which contradicted the account given by the particular applicant; and

(vii) used a concealed tape recorder at interviews and

that this amounted to an inducement.

15. As some of these criticisms are designed to reflect the injunction contained in the English Judges' Rules as amended in 1964, I should deal with the status of those Rules before turning to the specific points of criticism. The Judges' Rules no longer have a part to play in the United Kingdom. They were displaced by the new regime introduced by the Police and Criminal Evidence Act 1984 (U.K.) which introduced entirely new procedures regulating, amongst other things, powers of arrest and detention and conditions of detention and questioning: see Leigh, "The Police and Criminal Evidence Act 1984: (1) Search, Entry and Seizure", (1985) Criminal Law Review 535.

16. It has been repeatedly stated that the Judges' Rules do not have the force of law in Australia. It is worthwhile repeating the statement made by the Chief Justices of the Commonwealth, the Australian States and New Zealand at the conclusion of their conference in New Zealand on February 1965. The statement was in these terms:

1. "Neither the old nor the new English

Judges' Rules have the force of law in Australia or in New Zealand. In considering whether confessional statements made by persons charged with crimes ought to be admitted in evidence the Australian and New Zealand courts have taken into account whether police officers have complied with the spirit of these Rules. But our courts have never regarded compliance or non-compliance as a decisive factor and have always emphasised that it is for the court to take into account all the circumstances of an individual case in determining whether a confessional statement should be admitted." 2. "The Australian Chief Justices emphasised

that they had no authority to make any such rules. It is for the authorities in charge of the various Police Forces to make their own rules for the good conduct and guidance of their officers. The judges are always on their guard to ensure that fair conduct is observed by the police in the examination of suspects. The law requires a judge to determine whether in the light of all the circumstances of a case there are such elements of unfairness in the use made by the police of their position in relation to the accused that a confession alleged to have been made by him ought to be rejected. There is a right of appeal against the decision of a judge admitting an incriminatory statement."

17. This statement reflected the view expressed by Dixon J. in McDermott v. The King (1948) 76 CLR 501, at pp 514-515:

"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 rule of law has yet been established either here 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 after he has been taken into custody or while he is 'held,' though held unlawfully."

In like vein, in R. v. Lee (1950) 82 CLR 133, the Court said (at p 154):

"With regard to the Chief Commissioner's

Standing Orders, which correspond in Victoria to the Judges' Rules in England, they are not rules of law, and the mere fact that one or more of them have been broken does not of itself mean that the accused has been so treated that it would be unfair to admit his statement. Nor does proof of a breach throw any burden on the Crown of showing some affirmative reason why the statement in question should be admitted."

The Court went on to say ( at p 154):

"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. ... 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."

18. The ambiguous and imprecise manner in which the Rules are expressed makes them susceptible to strong criticism of the kind made by the Court in Lee, at p 154. One of the criticisms is that the standards set by the Rules are so imprecise that they have proved to be an ineffective safeguard for suspects who are subjected to police interrogation: see Glasbeek and Prentice, "The Criminal Suspect's Illusory Right of Silence in the British Commonwealth", (1968) 53 Cornell Law Review 473. Indeed, although this Court has declined to treat them as expressing precise standards to be applied in the resolution of cases, arguments are invariably presented, as in this case, with a view to showing that one or more of the Rules has been violated. Thus, courts have been called upon to decide whether a suspect was "in custody" (Rule 3) and whether interrogation amounted to "cross-examination" (Rule 7).

19. The first question which the trial judge had to decide was whether the confessional statements were voluntary. If they were voluntary, he had then to decide whether they should be excluded on the ground that they were improperly obtained. The Judges' Rules have more relevance to the first than to the second of these questions. Indeed, it is possible that the emergence of the discretionary basis for excluding a voluntary statement on the ground that it was improperly obtained may have been associated with a failure to appreciate the wide operation of the requirement that a statement be voluntary before it is admissible in evidence: see McDermott, at pp 512-513.

20. The requirement that a statement be voluntary means that it must have been made by the author in the exercise of his free choice to speak or remain silent. Although the cases largely concern statements said to be non-voluntary because they were procured by an inducement held out by a person in authority, it is well settled that a statement made as a result of duress, intimidation, or sustained or undue insistence or pressure cannot be voluntary: McDermott, at p 511. The Crown bears the onus of proving that a confessional statement is voluntary before it becomes admissible: Lee, at p 144; Cleland v. The Queen (1982) 151 CLR 1, at pp 18-19.

21. Accordingly, the first question for the trial judge was whether the evidence of Dickson satisfied him that the confessional statements were voluntary and, in the circumstances of this case, that meant that the statements were not made as a result of sustained or undue insistence or pressure. The trial judge pronounced himself to be so satisfied, although he did not deal with all the specific criticisms made in this Court by counsel for the applicants. His Honour did, however, conclude that the applicants were not unwilling to make the statements and in this respect he appears to have accepted the evidence of Dickson, notwithstanding that there were aspects of his evidence that might be thought to have pointed in a different direction. In the Court of Criminal Appeal Matthew J. (with whom Andrew C.J. and Carte J. concurred) concluded that the trial judge applied the correct principles in dealing with the issues of voluntariness and discretionary exclusion and that there was no basis for interference with the admission of the statements. Once again the Court of Criminal Appeal did not examine the specific criticisms which have been made in this Court.

22. I am conscious that all these criticisms may not have been drawn to the attention of the trial judge and the Court of Criminal Appeal. Nonetheless the features of the evidence on which the applicants rely were evident for all to see. Consequently I have serious misgivings about the way in which the trial judge and the Court of Criminal Appeal came to conclude that all the statements were voluntarily made. However, I do not need to reach a conclusion on this view because I am satisfied that the majority of the statements, if voluntary, should have been excluded on the ground that, having been improperly obtained it was unfair, at least to Ayliffe and Storhannus, to use the statements against them.

23. No doubt his Honour was minded to accept Dickson's testimony because it was not denied in the hearing of the voir dire. But Dickson's evidence revealed enough to raise serious doubts about the voluntary character of the answers given by the applicants to the questions put to them. Quite apart from indications that Ayliffe was unwilling to participate in the interrogation, a matter to which the trial judge referred, there were other aspects of the interrogation that were hostile to the notion that the applicants exercised a free choice to speak or remain silent. At any time interrogation at a police station has a compelling aura about it. In the present case this was accentuated by the very lengthy nature of the questioning, the persistent confrontation of each applicant with the alleged statements of the other participants in an endeavour to break down his denial of guilt and the absence of any caution to Ayliffe and Storhannus until a late stage of the interrogation. In addition, there was, in the case of Storhannus, the inexcusable trial within a trial when he was confronted by the complainants and induced to comment on their account of events. Interrogation at a police station not preceded by a caution creates a risk that the answers will be non-voluntary because the suspect may feel bound to answer questions put to him: see Devlin, The Criminal Prosecution in England (1960), p 27. This risk was enhanced in the present case because the applicants, even if not in custody stricto sensu, may have felt that the police expected them to stay and would prevent them from leaving, if they attempted to do so.

24. In the face of all these difficulties, it is not easy to see that the Crown discharged the onus of showing that all the confessional statements were voluntary. In saying this, I do not suggest that the use of the concealed tape recorder amounted to an inducement. I am not satisfied that the concealment of the recorder entrapped or misled the applicants into making statements.

25. I turn now to examine the correctness of the trial judge's refusal to exclude the evidence as an exercise of discretion. At the trial it was for the applicants to establish the facts justifying the exercise of the discretion in their favour: Wendo v. The Queen (1963) 109 CLR 559, at p 565; MacPherson v. The Queen (1981) 147 CLR 512, at pp 519-520; Lee at pp 152-153; Cleland, at p 19. In this Court the applicants must show, at least, that there was an erroneous exercise of the discretion and, in the circumstances of this case, that means that the trial judge erred in principle or failed to take account of relevant considerations or that the reception of the evidence was so unreasonable that it could not amount to an exercise of the discretion in accordance with principle. His Honour's stated conclusion seems to indicate that he thought that there was no impropriety on the part of the police rather than that impropriety did not render reception of the evidence unfair. As we have seen, his Honour expressly stated that in the circumstances it was not unfair to face an accused person progressively with other versions which called for his comment and to point out that his version of events was hardly consistent with what he had said earlier.

26. In reaching the conclusion that there was no impropriety in the interrogation of the applicants the trial judge overlooked the well-established constraints that apply to the interrogation of suspects. The common law balances (a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and (b) the need to ensure that a suspect is fairly treated and his right to silence protected. This balance is achieved by permitting the police to conduct a general inquiry into an unsolved crime until the stage is reached when the accusatory stage begins. It is notoriously difficult to define the point at which that stage begins because there is an infinite variety of fact situations. The Judges' Rules endeavoured to meet this problem by imposing restrictions on police interrogation by reference to the occurrence of three events in the course of an investigation. They were: (1) when a police officer made up his mind to charge the suspect with a crime (Rule 2); (2) when a suspect was taken into custody (Rule 3); and (3) when a suspect was formally charged (Rule 8). The occurrence of any one of these events may be taken as marking the beginning of the accusatory stage when the giving of a caution is required: see Teh, "An Examination of the Judges' Rules in Australia", (1972) 46 Australian Law Journal 489, at p 493. And in one other situation at least the obligation to give a caution will arise earlier. For example, when the police have sufficient evidence in their possession to justify a charge, even if they have not decided to charge the suspect: see Devlin, op.cit., p 29.

27. Each of the four events just mentioned is a signal that the general inquiry has reached the stage whereby the suspect has been identified as the perpetrator of the crime and as the guilty party. It follows, therefore, that further investigation will almost certainly be directed to the obtaining of further evidence to support a prosecution. In saying this I have so far referred to "custody" in the sense in which it seems to have been understood in Lee (at p 155), that is, as the equivalent of formal arrest, at least for the purposes of Rule 3. In Smith v. The Queen (1957) 97 CLR 100 Williams J. took a rather different view, observing (at p 129):

"Any person who is taken to a police station under such circumstances that he believes that he must stay there is in the custody of the police. 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 custody."

True it is, unlawful detention for the purpose of interrogation does not have quite the same significance in marking the end of the general inquiry into the crime as do the other events already discussed. On the other hand, it is a fundamental principle of the common law that a person cannot be taken into custody or kept in custody for the purpose of interrogation: Williams v. The Queen (1986) 161 CLR 278, at pp 291-299, 305. And there is much to be said for the view that, when interrogation takes place at a police station in the circumstances described by Williams J. in Smith (at p 129), the police come under an obligation to administer a caution. That is not only because the interrogation takes place under compelling circumstances but also because the fact that the police create the impression that they are detaining the suspect is in itself some indication that they are contemplating the taking of further steps in relation to him.

28. I do not doubt that in some situations the police, though believing a suspect to be guilty of the crime, wish to ascertain whether he has an answer to the suggested case against him, before making a definitive decision to charge him. But, recognition of the right to silence and considerations of fairness to the suspect demand that, in these situations, the police should issue a caution and that they should not whittle down the effect of the caution by pressuring or cajoling the suspect into speaking once he has clearly indicated his wish to remain silent. Whether the suspect wishes to take advantage of the opportunity given to him is a matter for him to decide. And it is vital that the law should ensure that his freedom of choice is respected. It follows that the police will be acting improperly if they attempt to use the occasion as an excuse for attempting to break down a prior voluntary account given by the suspect of his relationship with the critical events in relation to the crime. The injunction, expressed in the Judges' Rules and elsewhere, that a person arrested or in custody must not be cross-examined, means no more than that. As Williams J. observed in McDermott (at p 517):

"But the mere asking by the police of a question which would only be asked in cross-examination at the trial does not, in my opinion, amount to cross-examination ... A cross-examination for this purpose would be an examination intended to break down the answers of the accused to questions put by the police to which they had received unfavourable replies."

29. Considered in the light of what I have said, the police interrogation of the applicants was remarkable. It infringed the principles which are designed to preserve the suspect's right to silence and it subjected the applicants to the kind of pressure to speak which the law strives to prevent. Although it is not clearly established that Dickson suspected that Ayliffe was one of the men responsible for the offences complained of when Ayliffe arrived at the police station early in the morning, it seems plain enough that Dickson regarded Ayliffe, Van der Meer and Mayo as suspects after he visited their place of residence and requested them to accompany him to the station. By then he had learnt that Mayo was known as "Moose". However, the materials do not give rise to an unavoidable inference that Dickson was then satisfied of the applicants' guilt or that he was then of a mind to charge them. On the contrary, at that time he seems to have been conducting a general inquiry into the alleged offences. The investigation seems not to have reached the accusatory stage until (asometime after Dickson had completed his first interview of Ayliffe and, after returning to the place of residence, had taken possession of blood-stained clothing which he sent for testing or (b), what is more likely, after Mayo had first been interviewed, Mayo having implicated the others. Thereafter, instead of treating the applicants as suspects, giving them a caution and generally dealing with them as suspects should be dealt with, he and his colleagues in the course of a very lengthy interrogation proceeded to induce Ayliffe and Storhannus to answer questions by various expedients, such as attempting to break down the denials of each by reference to contradictory statements made by the others. As we have seen, these tactics culminated in the confrontation of Storhannus by the complainants. And all the while the four men remained at the police station in circumstances which to them must have seemed compelling. It can scarcely be supposed that the police would have been willing to allow them to leave if they had refused to co-operate in the continued interrogation. The inescapable inference is that the applicants believed that the police were detaining them. That detention was unlawful because it was for the purpose of interrogation.

30. In the course of his evidence on the voir dire Dickson asserted that, until the stage had been reached when cautions were issued, he was not satisfied that he had a case against the applicants. This assertion strains credulity. There was the complaint of Mrs W, corroborated in some degree by the account of M, later supported by the account of Mayo in which he implicated the others. Mrs W alleged that she had been raped by the four men. Ayliffe and Van der Meer at all times denied that they had sexual intercourse with her. In their initial interviews they did not volunteer that they had been present at the scene. Their answers were vague, but suggested that they had played no part in the matters which were the subject of the investigation. Subsequently, they acknowledged that they had been present on the occasion in question. Storhannus alone of the applicants claimed that Mrs W was willing to have intercourse with him. Certainly from the time when Mayo implicated the others, the police were primarily seeking evidence to prove the guilt of the four men.

31. In these circumstances, granted that the applicants bore the onus of establishing the facts necessary to support an exercise of the discretion in their favour, the police conduct of the interrogation was such as to make it unfair to use the later statements made by Ayliffe and those made by Storhannus against them. Had the police observed the principles governing the interrogation of suspects, it might well have transpired that the statements would not have been made or not have been made in the form in which they were made.

32. With regard to Van der Meer, it is difficult to conclude that the trial judge erred in admitting his confessional statement. His counsel did not object to the reception of his statement and no voir dire was held with respect to the admissibility of that statement. Indeed, it seems clear that Van der Meer's counsel was anxious to have the statement admitted as it was consistent with the oral evidence later given by Van der Meer.

33. The applications of Ayliffe and Storhannus stand on a somewhat different footing. Nevertheless, it is not enough for them to show that the trial judge erred in refusing to exclude the confessional statements to which I have referred. Once a confessional statement has been received into evidence at the trial, on appeal the accused must establish, in order to set aside his conviction, not only that the trial judge erred in refusing to exclude the statement, but also that there was a miscarriage of justice: McDermott, at p 515.

34. The initial step in deciding whether the reception of the statements gave rise to a miscarriage of justice is to ask what the Crown achieved by introducing the statements into evidence. Neither Ayliffe nor Storhannus inculpated himself, though both admitted their presence at the scene and Storhannus admitted attempting to have intercourse with Mrs W, asserting that she consented. On the issues that arose at the trial the statements did not add much to the Crown case. Ayliffe's statements did not derogate from his defence that he did not have intercourse with Mrs W. As he did not give evidence, his statements constituted the only account in evidence of his participation in the critical events on the morning in question. Naturally, it was to Ayliffe's advantage that his counsel could rely on them in his address to the jury. The statements constituted the only foundation for contesting the strong case presented by the Crown against him. Likewise with Storhannus. His statements, consistent with his defence, again provided the one foundation in the evidence on which his counsel could rely in order to contest the Crown case and to assert that his client had consistently maintained his innocence.

35. In two respects the reception of the statements was damaging to Ayliffe. His initial denials of involvement were vague and rather evasive. The statements revealed that he shifted his ground after the initial interview, no doubt as a result of further interrogation, following Mayo's implication of his companions. But Ayliffe's early claim of non-involvement was made in his initial interview which the trial judge was right to receive into evidence. Ayliffe's change of position was evident, not only from the reception into evidence of his later statements but also from the way in which his defence was presented at the trial. However, the way in which his defence was conducted at the trial was almost certainly influenced by the knowledge of what he and his companions had said in the course of the police interrogations. The improper interrogation of the applicants inevitably influenced the conduct of the trial and the presentation of the defence cases. On this score alone I am persuaded that there was a miscarriage of justice so far as Ayliffe was concerned, notwithstanding the absence of any suggestion that the confessions were fabricated or untrue.

36. There is a stronger basis for finding that there was a miscarriage of justice in the case of Storhannus. By the time the police brought him to the police station in the afternoon they had every reason to believe that he assaulted M and raped Mrs W. The police had the allegations of the complainants. Storhannus had already been implicated by Mayo, Ayliffe and Van der Meer. At the beginning of his interrogation he denied any knowledge of the events in question. Following his identification by the complainants at a line-up, he was interrogated again. He then admitted that he was present at the scene, but denied that he had participated in the offences complained of. In the face of further interrogation, he changed his position once more, admitting that he had attempted to have intercourse with Mrs W with her consent, but claimed that he was unsuccessful. He was not cautioned until much later when his record of interview was almost completed. That record of interview recited his change of position during his earlier interrogation.

37. The reception into evidence of Storhannus' confessional statements must have been damaging to his case. The statements reveal that he changed his position progressively in the course of interrogation. In the minds of the jury, these changes of front, evidently adopted to meet the exigencies of his situation, would have cast a profound shadow over his defence. Although I appreciate that the jury would in any event have been impressed by the Crown case, the confessional statements of Storhannus were substantially damaging to his prospects of acquittal. What is more, the general picture that emerged from all the confessional statements is one that would strengthen the acceptability of the Crown case. After all, the picture is one in which each applicant was admitting that offences were committed, yet asserting that his companions were offenders and denying his own complicity.

38. It seems to me that, in these circumstances, it is impossible to resist the conclusion that the reception into evidence of the confessional statements of Ayliffe and Storhannus resulted in a miscarriage of justice. The trial took place on materials which, though they should have been excluded, in all probability affected the jury's deliberations adversely to the applicants. Ordinarily this conclusion would result in the grant of special leave, the issues being of general importance, the allowance of the appeals and the setting aside of the convictions. If such orders were to be made on the applications of Ayliffe and Storhannus, similar orders might be made on the application of Van der Meer, notwithstanding that his counsel did not object to the admission of his confessional statements. Such a course might be justified on the ground that the irregularities in the police interrogations had such an impact on the conduct of the trial that Van der Meer's convictions should not remain undisturbed if those of Ayliffe and Storhannus were to be set aside, more particularly as the Crown case against Van der Meer was not as strong as that against Ayliffe and Storhannus.

39. But there is a further difficulty with the applications. They are over two years out of time and no adequate explanation for the delay has been made out. We have not had the benefit of argument on the difficult question whether an extension of time should be granted in the particular circumstances of this case, notwithstanding the existence of prolonged and unexplained delay. In other circumstances I would be inclined to give the applicants a further opportunity to make submissions on the issue. However, the majority is of the view that there is no substance in the applications for special leave to appeal and consequently it would serve no purpose to invite further argument on whether an extension of time in which to apply for special leave to appeal should be granted. Accordingly, the applications for special leave to appeal should be refused in accordance with the judgment of the majority of the Court.

WILSON, DAWSON AND TOOHEY JJ.: On 22 September 1984 at the Cairns Circuit Court in Queensland the applicants were convicted on a number of counts. The applicant Van der Meer was convicted on one charge of rape and on one charge of assault occasioning bodily harm. The applicant Storhannus was convicted on two charges of rape, one charge of indecent assault and one charge of assault occasioning bodily harm. The applicant Ayliffe was convicted on two charges of rape and on one charge of assault occasioning bodily harm. All charges arose out of an incident near Mareeba on 3 February 1984

2. The applicants appealed to the Queensland Court of Criminal Appeal against conviction and sentence. On 15 March 1985 all appeals were dismissed. There was no application for special leave to appeal to this Court until 17 August 1987, that is nearly two and a half years after the dismissal of the appeals. The applicants seek an extension of time in which to apply for special leave to appeal against their convictions. Counsel was permitted to present the case for the applicants in full, without the Court first ruling on the question of an extension of time. The applicants' main complaints related to the manner of their interrogation by police officers

3. In 1983 the complainants, Ms. W. and Mr. M., had lived together on a farm just out of Mareeba. Ms. W. then moved to Cairns but had occasion to return to Mareeba at the end of January 1984 in connection with a traffic charge. On her return she stayed with Mr. M. and on the afternoon of Thursday, 2 February 1984, both went into town in Mr. M.'s car. They spent some hours in and around hotels, in the course of which they met the three applicants and another man Mayo who was also charged arising out of the incident but who died while on remand. None of the four men was personally known to Ms. W. or to Mr. M. Because of Mr. M.'s condition as a result of drinking, Ms. W. was reluctant for him to drive his car and her driving licence was under suspension. In the end the six people got into the car, with Storhannus driving. At one point there was a change of drivers and Van der Meer took over the driving. The car eventually stopped on a dirt road out of town but not, it appears, anywhere near Mr. M.'s farm. It was then early on the morning of Friday, 3 February. According to Mr. M., whose evidence was corroborated by Ms. W., he was then beaten savagely, first by Van der Meer and then by the others. There was some suggestion that the attack was related to Mr. M.'s alleged ill-treatment of Ms. W. while in the car, at the scene or on a previous occasion. The point did not emerge with great clarity at the trial. But clearly Mr. M. did not invite the attack made on him. It was the case against the applicants that each of them (and Mayo) then raped Ms. W., in each case assisted by the others holding her and restraining Mr. M. in the car. The charge of indecent assault against Storhannus related to acts of biting Ms. W. in the course of raping her

4. Eventually all persons, other than Van der Meer, returned towards Mareeba in the car. Van der Meer had already left the scene. It was then daybreak. The applicants and Mayo left the car and Mr. M. drove himself and Ms. W. to the police station where complaints were made. Both needed medical attention. The investigation into the offences was conducted largely by Detective Sergeant Dickson. The sequence of that investigation is important.

5. As mentioned earlier, none of the applicants or Mayo was personally known to Ms. W. or Mr. M. Nevertheless, during the course of the evening, both in Mareeba and at the scene where the offences were committed, names were used and other information given which the complainants passed on to the police and which helped to identify the accused. Sergeant Dickson carried out some preliminary enquiries, mainly of a technical nature. At about 9.35 a.m. and quite fortuitously, Ayliffe arrived at the police station. He was expecting to be a witness at a court hearing in a nearby town and called to get a lift. The information given earlier to Sergeant Dickson caused him to link Ayliffe with one of the men involved in the rape of Ms. W. and the assault on Mr. M. He asked Ayliffe a number of questions as to his movements on the previous evening; they were questions of a general nature. Dickson made notes of that conversation later in the day. He then went to Ayliffe's home where Van der Meer and Mayo were present. He asked both men some questions, again of a general nature, and returned with them to the police station. At this stage Sergeant Dickson had not mentioned to Ayliffe, Van der Meer or Mayo the purpose of his enquiries.

6. At 10.15 a.m. Sergeant Dickson began a further interview with Ayliffe, which he recorded on a micro-cassette tape recorder. He did not tell Ayliffe the conversation was being recorded. With the assistance of another police officer, Dickson later transcribed the tape. To anticipate somewhat, there followed a number of interviews which were taped and transcribed. In each case the practice adopted at the trial was to play the tape (rather than for a police officer to give oral evidence of what was said), admit the tape as an exhibit, provide each member of the jury with a transcript of the tape while the tape was being played, and thereafter to mark the transcript for identification. The tape, but not the transcript, was part of the material accessible to the jury while considering its verdict. This procedure was adopted because counsel for the applicants objected to the receipt of the transcripts as exhibits; they raised no objection to the course adopted by the trial judge as just described.

7. After the second interview with Ayliffe, Sergeant Dickson spoke again to Mayo and that conversation was recorded, again it would appear without Mayo being so informed. There followed a series of interviews, one with Van der Meer then another with Mayo, yet another with Van der Meer and a further interview with Ayliffe. Subsequent interviews extended into the night. Some were conducted by Dickson, others by other police officers. Those conducted by Dickson were recorded without the person interviewed being so informed. Those conducted by other officers were typed in question and answer form. Although counsel for the applicants was strongly critical of the course adopted in recording the interviews, no principle or authority was offered to justify a conclusion that the interviews were thereby rendered inadmissible or that, by reason thereof, they should have been excluded in the exercise of the trial judge's discretion.

8. Reference was made to Storhannus in the course of one or more of the interviews. At about 3.00 p.m. he was brought to the police station by police officers, at the request of Sergeant Dickson. He was brought into a room where Dickson was present. It was the detective's intention to put the tape recorder in his pocket and record the interview as he had done on previous occasions. But before he had a chance to do so, Storhannus arrived. As a result, Sergeant Dickson simply turned on the recorder which was on a table and it was apparent to Storhannus that the interview was being recorded.

9. Between 6.30 and 7 p.m. Sergeant Dickson organized a line-up, in the course of which Ms. W. and Mr. M. identified the three applicants as those involved in the rape and assaults. Mayo took no part in the line-up; he had earlier been confronted with the two complainants.

10. There followed a rather bizarre procedure in which, in the presence of Sergeant Dickson, another police officer and Storhannus, first Mr. M. and then Ms. W. recounted what had happened to them. Storhannus was invited to ask questions of each, though warned that he did not have to comment on anything said by them. Not surprisingly, he did comment from time to time. This was a procedure which should not have been followed, having about it the air of a trial before anyone had been charged.

11. It was a procedure deliberately adopted by Sergeant Dickson and for that reason distinguishable from the chance encounter considered in The King v. Christie (1914) AC 545. It is true that a somewhat similar procedure was adopted in The King v. Grills (1910) 11 CLR 400 and that it does not appear to have been the subject of criticism by the Court. But in Grills the evidence of the interview between police officer, complainant and accused was admitted without objection and no point was taken on the hearing of the appeal other than as to the sufficiency of the trial judge's direction to the jury. Woon v. The Queen (1964) 109 CLR 529, referred to by counsel for the respondent, is also distinguishable for in that case there was no confrontation and the question was whether the prisoner's answers to questions might be used, not only for the purpose of admissions, but also as unintended proof of a consciousness of guilt. The procedure adopted in the present case was virtually to put Storhannus on trial.

12. One of the applicants' complaints was that no caution was administered to them until after they had been interviewed several times when, it was said, the police must have suspected that the applicants had committed the offences with which they were later charged. The first time a caution was administered to Ayliffe was on 3 February at 7.57 p.m., when he was interviewed by Constable Martin in the presence of Detective Forsberg. Ayliffe was charged on 4 February at 12.05 a.m. A caution was administered to Van der Meer at 8.07 p.m. on February by Detective Sergeant Wall in the presence of Senior Constable Hayes. Van der Meer was charged at 8.34 p.m. that day. A caution was administered to Storhannus at 8.37 p.m. on 3 February by Sergeant Dickson in the presence of Sergeant Nichols. Storhannus was charged on 4 February at 12.26 a.m. However Sergeant Dickson gave evidence on the voir dire, which was accepted by the trial judge, that until the respective cautions were issued he was not satisfied that he had a case against the applicants. The applicants' complaint must therefore be rejected.

13. Something must be said about the form of the interviews, in particular those conducted by Sergeant Dickson. For this purpose it is unnecessary to refer to the interviews in any detail. But there is no doubt that from time to time they assumed the character of cross-examination. When an inconsistency emerged, each applicant was reminded in no uncertain terms of what he had said earlier. Each was told, sometimes in so many words and sometimes by implication, what others had said at their interviews. Nevertheless, it was not the applicants' case that any police officer misrepresented to one applicant what other applicants had said when questioned.

14. The aggressive style of the interrogations was undesirable and in other circumstances may have led a trial judge in the exercise of his discretion to exclude evidence of the interviews on the basis that they were unfair. However, as we shall see, in the present case nothing in substance of an incriminating kind resulted from the interrogations conducted in this way.

15. At the trial counsel for Ayliffe and Storhannus challenged, on the voir dire, the admissibility of the statements made by their clients. Each did so on the ground that the statements were not voluntary and further that they should be rejected in exercise of the trial judge's discretion as having been obtained improperly or unfairly. The trial judge held the statements to have been made voluntarily and that, in the exercise of his discretion, they should not be rejected.

16. Van der Meer did not challenge the admission of his interviews, no doubt because in them he sought to absolve himself of having any part in the rape and assault. Van der Meer gave evidence; neither of the other applicants did so

17. At trial, after the ruling on the voir dire, counsel for Storhannus objected to some parts of the interview with Dickson. To a large extent those objections were upheld, mainly because they related to statements said to have been made by Mayo to Dickson which the latter put to Storhannus. It appears that no objection was taken by Storhannus to the admissibility of the interview in which he faced Ms. W. and Mr M., other than the general objection taken at the voir dire.

18. The relevant principles are clear. They were summed up by Gibbs C.J. in Cleland v. The Queen (1982) 151 CLR 1, at p 5 in this way:

"A confession will not be admitted unless it was 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 trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.

19. The scope and operation of the principle have been explored by this Court in a number of cases: see for instance McDermott v. The King (1948) 76 CLR 501, at pp 506-507; The King v. Lee (1950) 82 CLR 133, at pp 151, 154; MacPherson v. The Queen (1981) 147 CLR 512, at pp 519-520, 532-533.

20. The precise status of the Judges' Rules in Queensland does not appear to have been decided. But it is apparent that they are regarded by the judges as a yardstick against which questions of impropriety and unfairness may be judged: The Queen v. Nichols, Johnson and Aitcheson (1958) Qd R 200; The Queen v. McKay (1965) Qd R 240; The Queen v. Juraszko (1967) Qd R 128; The Queen v. Borsellino (1978) Qd R 507; The Queen v. Hart (1979) Qd R 8. In Lee, at p 154, the Court said of the Chief Commissioner's Standing Orders which in Victoria corresponded to the Judges' Rules as they then existed in England:
"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.

21. In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him: Lee, at p 154; Cleland, at p 18. Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardized if a statement is obtained in circumstances which affect the reliability of the statement.

22. The trial judge concluded, after the hearing on the voir dire, that the statements made by Ayliffe and Storhannus were made voluntarily in the sense that the will of neither was overborne by police officers in the course of questioning. His Honour said that, so far as Ayliffe was concerned, "he appeared to me at first glance to present a special problem in that in the interview of 10.15 there are one or two passages which, taken in isolation, might indicate that he was objecting to being examined". Nevertheless, his Honour concluded:

"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 statements he made were inculpatory of his associates rather than himself.

23. His Honour then continued, still referring to Ayliffe:

"In his interview of 12.56 again there is a passage which, at first glance, appears to express an unwillingness to be examined."

Having referred to the passage and the context in which it appeared, his Honour said:

"The whole tone of these statements ... do not suggest to me a person whose will is overborne ... 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."

As to Storhannus, his Honour concluded:

"... 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.

24. The Court of Criminal Appeal considered that his Honour had not erred in the application of well-established principle and, in our view, the applicants have not demonstrated that his Honour did in that regard err. Although much was said in the course of argument about the admissibility of confessional statements, it should be understood that the three applicants were at pains, in the course of their interviews, to demonstrate their own innocence. It is true that as the interviews progressed each applicant, other than Van der Meer, moved from the position of knowing nothing of the relevant events to admitting being at the scene but exculpating himself and then to some extent inculpating others. But in large part the stand taken by the applicants initially seemed to have been based on the assumption that the police knew nothing of their involvement or at any rate might have difficulty in establishing it. And, from the point of view of the investigating police officers, they began with two complainants who had suffered serious physical abuse and who were not able initially to provide a coherent account of the events that had occurred and the identity of the persons who had attacked them. Certainly the interviews continued throughout the day and into the night but, in all the circumstances, it does not appear that the questioning of the applicants was excessive. There were four accused, each of whom initially denied any involvement in the incident. It was not until late in the day that a reasonably clear picture emerged of each one's participation in the attacks on Ms. W. and Mr. M.

25. Likewise it has not been shown that the trial judge erred in the exercise of his discretion in refusing to exclude the records of interview.

26. We do not accept the submission made on behalf of the applicants that they were in custody from the time each of them was brought to the police station. As mentioned earlier, Ayliffe arrived at the police station for reasons quite unconnected with the incident giving rise to the charges against him. When Van der Meer and Mayo were first seen at Ayliffe's home, they were asked questions of a general nature. Sergeant Dickson asked them to accompany him to the police station and they did so. Storhannus was not interviewed until the middle of the afternoon and while it is true that he was brought to the police station by police officers, the evidence does not suggest that he was then in custody. From the very nature of the investigation being carried out and the difficulties surrounding that investigation, given the condition of the complainants and the varying roles played by each of the accused, it would inevitably have taken some time before any police officer could reasonably suspect that one of the applicants had committed an offence. Certainly, none of the applicants was encouraged to leave the police station but that is a far cry from saying that they were in custody from the outset. The trial judge implicitly held that none of the applicants was taken into custody until the times respectively when each was charged and we are not persuaded that his Honour was wrong in so holding.

27. There are unsatisfactory features of the police interviews, as already mentioned. There was no justification for presenting the complainants to Storhannus and inviting him to question them. This is a matter about which his Honour might have been more critical. Had MsW. and Mr. M. not given evidence, the procedure of presenting them to Storhannus would have assumed much greater significance. But they did give evidence and in effect repeated what they had said at the time they faced Storhannus.

28. It must be remembered that no application was made on behalf of Van der Meer to exclude the statements made by him. Indeed it is clear that his counsel relied very much upon those statements to demonstrate consistency with his evidence that he took no part in the rape of Ms. W. In the case of Ayliffe and Storhannus, no evidence being called on their behalf, the only material of an exculpatory nature was in the statements made by them.

29. There were other complaints made on behalf of the applicants but it is unnecessary to examine those complaints in detail. Contrary to the submission made by counsel for the applicants, the procedure followed at trial relating to the tapes and transcripts was not inconsistent with the decision of this Court in Butera v. DPP (Vic) (1987) 62 ALJR 7; 76 ALR 45. The procedure was in any event acquiesced in by counsel for the applicants. There was criticism made of the trial judge's direction on the question of consent in regard to the charge of rape, a matter which went to Storhannus' defence. But no redirection was sought from the trial judge and the point was not taken before the Court of Criminal Appeal. A complaint that his Honour did not properly instruct the jury as to the significance they might attach to lies told by the applicants must be rejected. We are not persuaded that there was any misdirection in this regard; again, no redirection was sought and the matter was not made a ground of appeal before the Court of Criminal Appeal.

30. The applicants were convicted in September 1984 and their appeals were dismissed in March 1985. The affidavit made by the solicitor acting as agent for the solicitors for the applicants and filed in support of an extension of time in which to apply for special leave is expressed in such vague terms as to deny to the court the detail that might reasonably be expected and required to explain the very substantial lapse of time before any application was made to this Court. In any event, we do not consider that the applicants have made out a case for intervention. The trial judge and the Court of Criminal Appeal did not misunderstand the principles to be applied in assessing the admissibility of statements made by the applicants to the police officers. And we are not persuaded that the trial judge or the Court of Criminal Appeal misapplied those principles.

31. In our view, an extension of time should be refused, with the consequence that the application for special leave to appeal made on behalf of the three applicants must fail.

DEANE J: The essential facts and issues involved in these applications for special leave to appeal are set out in the joint judgment of Wilson, Dawson and Toohey JJ. I shall endeavour to avoid unnecessary repetition.

2. At the outset, it is necessary to draw attention to a particular problem which is involved in a case such as the present where the appropriate order on a successful appeal would be for a new trial and where there has been an inordinate delay in applying for special leave to appeal to this Court from a decision of a court of criminal appeal dismissing an appeal from a conviction of an offence involving a serious and degrading sexual assault on a woman. In such a case, the Court cannot simply ignore the fact that the ordinary problems and disadvantages of a new trial after a prolonged delay are compounded by the potentially devastating effect upon the innocent victim of such a new trial in circumstances where the failure to apply for leave to appeal until long after the expiry of the prescribed time would have led her to believe, with justification, that the book was finally closed and the prolongation of her ordeal through consequent court proceedings had at last come to an end. Even though the circumstances might otherwise be appropriate for the grant of special leave to appeal, I consider that the Court will not, at least in the absence of a fully satisfactory explanation of the prolonged delay, be justified in re-opening the closed book in such a case by extending the time for applying for leave unless it is persuaded that there is a real risk that the effect of the alleged error, misdirection or unfairness may, in the circumstances, have been that the trial miscarried to an extent that an innocent person may stand convicted. The question whether the Court is satisfied that there is a real risk of such a miscarriage will often closely correspond with the question whether, notwithstanding that an alleged error, misdirection or unfairness might have occurred in the course of the trial, the appeal should in any event be dismissed for the reason that the Court "considers that no substantial miscarriage of justice has actually occurred" (see The Criminal Code Act 1899 (Q.), s.668E). Ignoring the matter of onus, the main difference between those two questions can be shortly identified. The common form proviso (s.668E) does not extend to a case where error, misdirection or unfairness has so affected or fundamentally flawed the trial that it cannot properly be said that the accused has, for relevant purposes, had a fair trial according to law (see Wilde v. The Queen (1988) 62 ALJR 100, at pp 103, 104-105, 107; 76 ALR 570, at pp 575, 577-579, 581-582). In such a case, the conviction of the accused without a relevantly fair trial according to law is of itself a miscarriage of justice and it is not to the point that the case against the accused was so overwhelmingly strong that the appellate court considers that the jury would have convicted him in any event. On the other hand, this Court will not be persuaded that there is a real risk that the effect of even a fundamental error, misdirection or unfairness may be that the trial has miscarried to an extent that an innocent person may stand convicted if it is positively satisifed that, in all the circumstances of the trial, the jury's verdict of guilty would plainly have been the same even if the alleged error, misdirection or unfairness had not occurred.

28. In the result, the question whether Van der Meer should be convicted or acquitted of the offences of which he was convicted finally turned upon whether the jury was satisfied beyond reasonable doubt that the account of Mrs. W and M of his participation should be accepted and his own sworn denials rejected. On that, the overall effect of the evidence of what had been said by his co-accused in the course of interrogation (and confrontation) was to assist, rather than damage, his case. That being so, the fact that that material was wrongly placed before the jury as evidence against one or other of his co-accused could not, in a context where the jury was expressly directed that the material could not be used against Van der Meer, properly be seen as having affected the verdict of guilty on the charges of which Van der Meer was convicted, namely, that he actually raped Mrs. W and that he unlawfully assaulted M causing grievous bodily harm. Indeed, it may well be that the fact that the contents of that material were known to the jury assisted in procuring his acquittal on the charges of participating in the rapes of Mrs. W by Ayliffe and Storhannus.

29. It follows from what has been said above that the learned trial judge's failure to exclude evidence of statements made in the course of the interrogations of Ayliffe and Storhannus or in the course of the confrontations between Storhannus and M and Mrs. W could not, in the particular and unusual circumstances of the case, properly be seen as affecting the reliability of the convictions of any of the applicants. That being so, in the absence of any satisfactory explanation of the prolonged delay in applying for special leave to appeal, the application for extension of time for applying for leave should be refused.

Orders

Application for an extension of time in which to apply for special leave to appeal refused.