Davidson v The Queen B73/1999 [2000] HCATrans 706 (24 November 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B73 of 1999

B e t w e e n -

JOHN MICHAEL DAVIDSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 NOVEMBER 2000, AT 10.06 AM

Copyright in the High Court of Australia

MR M.J. GRIFFIN, SC: Your Honour, I appear with my learned friend, MR M.C. CHOWDHURY, for the applicant. (instructed by Legal Aid Queensland)

MR M.J. BYRNE, QC: Your Honour, I appear for the respondent. (instructed by Director of Public Prosecution (Queensland))

MR GRIFFIN: Your Honour, pursuant to Order 69 rule 3(2) the applicant applies - - -

GUMMOW J: Yes, an extension of time is required, is that opposed.

MR BYRNE: No, it is not, your Honours.

GUMMOW J: Yes. You have that leave.

MR GRIFFIN: Thank you, your Honours. The applicant also seeks leave to refer to additional summary of argument, which was filed yesterday. Your Honours, the issue raised in this application is as to the proper meaning to be given to the concept of voluntariness and whether that concept so far as the decided cases in this Court has been too narrowly confined. We contend that voluntariness, the exercise of a free choice to speak or to remain silent, involves the operation of a fully informed mind as to the circumstances at which - - -

KIRBY J: But did we not go over all this in Swaffield and Pavic? I mean, we had certain differences between the Court, but the Court took a very important step to reconceptualise the law on this. It seems an unlikely thing that the Court would want to go back and re-explore all those issues so soon after Swaffield and Pavic.

MR GRIFFIN: Your Honour, those issues, we submit, were explored in the context of the exercise of a judge's discretion to exclude or admit evidence. This is a wider argument that comprehends the issue of whether, in particular circumstances, statements of a confessional kind which are made are, in fact, voluntary. Different consequences of course flow from that characterisation.

KIRBY J: But voluntariness was one of the three steps that were recognised in Swaffield and Pavic and therefore it is not as if the Court did not have the question of voluntariness in the type of arguments you want to advance in its mind, when it reformulated the principles. It would be rather unsettling, one would think, to the trial judges and to police practice and so on, if so soon after Swaffield and Pavic the whole thing was up for grabs again.

MR GRIFFIN: Well, we would submit it is not up for grabs. What our argument contends is that it is a different focus on the confessional statements which are made, the focus being on the operation of the confessionalist's mind rather than considerations of fairness to the accused or considerations of public policy as to discretionary - - -

KIRBY J: This was not overlooked in Swaffield and Pavic, I do not think. I think there were references to the arguments about the content of voluntariness.

MR GRIFFIN: That is so, your Honour, and in fact our - - -

KIRBY J: So it is not as if the Court, as it were, was overlooked by the way in which the case was argued. I just feel a sense of disquiet to be returning to this matter so soon, after having quite significantly reconceptualised the law in those cases, where the factual situations bore certain similarities to the facts of your client's case.

MR GRIFFIN: Yes there are indeed similarities, but our submission is that the Court focused upon discretion and, in those circumstances, failed to consider the question of the narrowness or the possibility of a wider ambit on the question of voluntariness.

HAYNE J: Well, can I just understand that, a moment, Mr Griffin. In the courts below, the question of voluntariness has been assessed according to free choice to speak or be silent. You would say that the proper test is free choice to speak or be silent knowing of certain surrounding facts; is that the position?

MR GRIFFIN: That is precisely so.

HAYNE J: But the courts below have determined that there was a free choice to speak or be silent here and the absence of knowledge of certain surrounding circumstances was not a sufficient reason in the exercise of discretion to reject the statement. Does that capture it?

MR GRIFFIN: Yes, that is so, your Honour.

HAYNE J: What you seek to do is to move consideration of knowledge of certain surrounding circumstances from consideration under discretion to another legal heading?

MR GRIFFIN: That is precisely so, and focusing in doing so - - -

HAYNE J: And that is an exercise in legal classification rather than an exercise of substance, is it not?

MR GRIFFIN: We submit it is an exercise in substance for it focuses upon different issues, that is, the subjective issues in relation to the confessionalist rather than - - -

KIRBY J: But, if the proposition you are advancing before us now had been embraced by the Court, would it not inevitably have led to the consequence, say, in Mr Pavic's case, because he did not know that his friend was wired, that this was not therefore truly voluntarily given and therefore that the Court erred in confirming the decision of the trial judge in that case to allow that evidence to go before the jury? It would inevitably follow from your argument that Pavic was wrongly decided.

MR GRIFFIN: It would follow that Pavic, upon our argument - - -

KIRBY J: Do not beat around the bush, it has to follow from your argument. "Voluntariness" means voluntary with knowledge that a person is wired to take a sound recording.

MR GRIFFIN: Yes. Your Honour Justice Kirby mentioned that the Court erred in deciding the issue in relation to Pavic, but, in a sense, it did not decide or consider the question in relation to voluntariness. The result may have been different, in fact we will contend that it should have been, and it should have been different because different considerations apply, rather more subject considerations apply, in respect of the consideration in the scope of voluntariness. That is really the argument, and that is the - - -

KIRBY J: I think I disagreed myself in the case of Pavic and I therefore have a certain sympathy with the proposition you are advancing, but we have to look at this in a practical way. The Court took a very big step in those cases in reconceptualising the law, and it really would be a very destabilising step for the Court now, so soon afterwards, to be revisiting it and reconceptualising it again. I feel a sense of disquiet about doing that.

MR GRIFFIN: Your Honour, we submit that the statements made in this Court from McDermott and so on, point to the coincidence of voluntariness and discretion in terms of certain factual situations.

KIRBY J: That is true, but you see McDermott was a while back and over years the experience of Courts of Criminal Appeal and trial judges give this Court the information and the commentary and the discussion of the way in which legal principles work, that can as in McKinney and Judge, lead over time and over a series of steps to a different principle. But you are really coming back before Pavic and Swaffield have had a chance to operate and had the benefit of the commentaries of the Courts of Criminal Appeal and trial judges on whether it operates successfully or not. I have to reveal this, because this is the stumbling block as far as I am concerned.

MR GRIFFIN: Yes. The submissions which we make in our outline follow upon what we submit to be a dissenting, but important judgment, of the former President of the Court of Appeal Justice Fitzgerald, who takes and did take quite a strong view about the operation of this principle and its relationship to the right to silence. When considering issues of discretion, there is no impact upon what we submit to be the most important principle in the operation of the criminal trial, and that is the argument we advance and the basis upon which we put this application as an important principle for the Court to revisit the issue.

GUMMOW J: Revisitation is not always the right way of thinking about these things, I think.

MR GRIFFIN: I do not know whether I can take my submissions any further, your Honours.

GUMMOW J: Yes, thank you, Mr Griffin. We do not need to call on you, Mr Byrne.

The issues which the applicant seeks to agitate recently have been considered by this Court in Swaffield (1998) 192 CLR 159. The Court is not persuaded that the actual decision here of the Queensland Court of Appeal is attended by doubt. There will be the order for the extension of time, as indicated, but special leave is refused.

AT 10.16 AM THE MATTER WAS CONCLUDED