Kane v The Queen S119/2001 [2001] HCATrans 448 (18 September 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S119 of 2001

B e t w e e n -

PETER CLIVE BASIL KANE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 SEPTEMBER 2001 AT 2.48 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with MR S.J. ODGERS, SC. (instructed by North & Badgery, Solicitors)

MR R.D. ELLIS: If the Court please, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

McHUGH J: Yes, Mr Game.

MR GAME: If the Court pleases, I will deal with the detention for questioning point first. The detective, who is Detective Smith, had said that his belief was that there was no need to take a person before a magistrate until after the police officer had made up his mind to charge. Justice Barr found that that was wrong, that he knew that that was wrong. The detective also said that the purpose for his arrest and detention of Mr Kane was for the purpose of questioning him and Justice Barr accepted that.

The detective said that he had not made up his mind to charge until after the first interview was over. Justice Barr found that he had already made his mind up to charge from the outset, but Justice Barr rejected the case that was put to him that it followed inextricably from Detective Smith's evidence that Mr Kane was unlawfully detained at the time of the first interview commencing at 9.10 and concluding at 10.49. He found, however, that the detention was unlawful from a point at 9.51, about which I will say some more in a moment.

Now, the basis upon which Justice Barr rejected the case can be seen by looking at a passage first at 272 and then through to 273 of the application book. At 272, lines 10 to 25, you will see the conclusion of a portion of his judgment where he said, in effect, that Detective Smith had an intention right from the start to charge Mr Kane at some point and that he knew the law. Then in paragraph 12 we find an acceptance of the proposition that detention was for the purpose of questioning. We would submit that is the effect to be drawn from paragraph 12. We go to paragraph 13 and we see why it is that our case is rejected.

McHUGH J: Which paragraph?

MR GAME: Paragraph 13 at 273, your Honour. Paragraph 13 is really the heart of the argument, or at the heart of the judgment.

McHUGH J: I appreciate that but the question is whether you have formulated the question correctly at 3.2 of your argument at 318.

MR GAME: At 318, yes, your Honour.

McHUGH J: You say:

the trial judge did not ask the correct question. The correct question was whether or not Smith had an intention to take the applicant before a magistrate as soon as practicable.

But that is not the correct question, is it? Is not the correct question this: it is whether the applicant proved that Smith did not take the applicant before the magistrate as soon as practicable in order to provide an opportunity to investigate his complicity in the offence?

MR GAME: No, your Honour, first of all - - -

McHUGH J: You cleverly, if I might say so, have to invert the onus here. You leave it as an abstract question, rather. You carry the onus of proof here.

MR GAME: I know that is what is put against us, your Honour, but - if I say diffidently, there is no cleverness in what we put.

HAYNE J: We will not believe you.

MR GAME: I have never been accused of diffidence, but any way I will try it today. First of all, we would say this, that there are two separate routes to unlawfulness. One is undue delay and one is intention. You can get there either way. If you do not have an intention to - put the onus to one side for a moment, but if you do not have an intention to take a person without undue delay then there is unlawfulness - or as soon as reasonably practicable - there is unlawfulness, even if there is no magistrate available at that particular time. I think that follows from the decision of this Court in Michaels.

McHUGH J: Yes. In Michaels the four of us really followed the two passages in Williams.

MR GAME: Yes, but there were two arguments that you had to answer in order to dispose of the applicant's case in that particular situation, so that it is not a question here of whether or not a magistrate was in fact available at 9.10 or 8 o'clock, it is a question of intention. The answer that is put to me is that we have inverted the onus of proof but we would say not. We would say that cases such as Bales v Parmeter and Ex parte Evers and so forth, say that it is unlawful to detain for the purpose of questioning.

Now, we then rely on the absence of anything more. We say there is an absence of something, namely, an absence of a particular intent, an absence of intent to take before a magistrate as soon as reasonably practicable.

McHUGH J: Certainly, in Williams Case Sir Harry Gibbs did not think there was anything unlawful about arresting a person for the purpose of questioning. I cannot recollect, from memory, whether or not - - -

MR GAME: Yes. He was in dissent on that particular issue. He followed Dallison v Caffery and that line of English cases.

McHUGH J: Dallison, yes.

MR GAME: On that particular issue, he was in dissent. So, we say there is support in those judgments of Sir Frederick Jordan, particularly in Bales v Parmeter, for the proposition that detention for the purpose of questioning is unlawful. That is to say, unless there is something more - and it is not as if there is an onus on us to show that there is not something more. The onus has been turned against us in a situation where really the critical parts of the detective's evidence have been rejected, except for his assertion that he had detained for the purpose of questioning. That part of his evidence can never go because otherwise there is no explanation for why he detailed this person.

McHUGH J: That only makes it a question of fact.

MR GAME: No, it does not really make it only a question of fact because there is a legal question, "What is the correct question to pose?"

McHUGH J: That is a different point.

MR GAME: What is the different question to pose? We say that we do not have to prove, on the balance of probabilities, a second positive intention, namely an intention to delay charging the accused until after the time when it first became practicable to take him before a magistrate. We say we have got there by proving the first thing which is the intention to detain for the purpose of questioning.

McHUGH J: That is not really the way in which Williams and Michaels proceed, is it? The relevant passages in both those cases say that it is unlawful for a person having the custody of an arrested person to delay taking before a justice in order to provide an opportunity to investigate that person's association or complicity in the offence. That is what is unlawful: if you have custody and you delay taking him before the magistrate so as to give you the opportunity.

MR GAME: I think, your Honour, that without descending to an argument about what actually they said, I think the point of it is really this, that if you detain a person for questioning, that is only unlawful if at the same time you are taking steps or you are in the process or you have an intention to take that person, as soon as reasonably practicable, before a magistrate, and that is what makes it lawful, which is the dual intentions. I do not think that you will find a passage in those cases that disputes that proposition.

McHUGH J: But, again, it seems to me that you are inverting the onus. Again. You say you cannot arrest somebody unless you have an intention to take that person before the magistrate as soon as practicable.

MR GAME: Yes, that is right. That is what we say.

McHUGH J: I know, yes. What case supports that? You do not get any support, in terms, from either Williams or Michaels in that respect, do you?

MR GAME: Yes, your Honour, we would say so. I have the cases here. Perhaps if I hand your Honours the cases. There is Michaels and there is Williams. Now, in Williams there is a passage at 293.

McHUGH J: The passage that is usually cited is at 295, is it not?

MR GAME: Yes, but can I just go back, your Honour?

McHUGH J: I am sorry, yes.

MR GAME: Certainly, your Honour, but can I just go back? At 293, that citation from Bales v Parmeter - it is the passage I was think of, at 293, towards the bottom of the page:

"If a person has been arrested, and is in process of being brought before a magistrate questioning within limits is regarded as proper in New South Wales . . . The purpose of interrogation is not only insufficient to warrant an arrest; it is insufficient to warrant the retention of the arrested person in the custody of the arresting officer.

Then there is a quote from Ex parte Evers:

"It is now thoroughly well established that arrest and imprisonment cannot be justified merely for the purpose of questioning . . . "

Then there is citation to:

In R v Jeffries Jordan CJ, after reiterating the rule laid down in the New South Wales cases, condemned in strong terms the taking of arrested persons not to a magistrate to be charged but to a police station to be question in the hope of extracting something that can be used in evidence against them.

Then there is a passage from Reg v Clune at the bottom of that page which we say would support the proposition.

McHUGH J: But does not your argument result in this conclusion, that unless the officer has a positive intention to take the person before a magistrate as soon as practicable, the custody is unlawful up until the time he does take the accused person in front of a magistrate?

MR GAME: That is right. If he arrests he must arrest for the purpose of taking him before a magistrate and so long as he is in the process of executing that intention he can question during that time but if he does not have that intention it is unlawful, even if there is no magistrate available at that particular time and we would say that follows from the passages that I have just read to your Honour.

It is probably not much point in taking you to the same passages in Michaels but Michaels is a variation on it because Michaels is a situation in which there was custody that was unlawful that became lawful because there was a changed intention, so that is a "changed intention" case.

McHUGH J: Yes.

MR GAME: Your Honours, we would say that there is a significant question that arises here for determination as to what is the appropriate test and that by framing it in a particular way against us we have lost the case in circumstances really where the detective's own evidence conceded, effectively, in our submission, the unlawfulness that was necessary for us to establish and it is difficult to see what more could have been actually extracted from the officer in cross-examination.

I was also going to say in respect of this point, it is not as if this period of detention is of little significance because it was during this time that evidence that was regarded by the judge and by the Crown as important was extracted. In effect, it consisted of denials of involvement. Then, at 10.46, the police put to the applicant that his fingerprints matched those found in - some found in the flat, but that was a fact that the police had known at all times, so the questioning would have taken a very different form, in our submission, if the police had been mindful of their legal obligations from the outset.

The final point I was going to make about the detention point is this: it is said against us that section 352 has been repealed and therefore the question has no current application. That submission, in our respectful submission, must be qualified by this. Under the new provision there is four hours for detention but at the conclusion of the four hour period the common law applies. Exactly the same principles apply because section 356(c) says that "at the end of the period the person must be brought before a justice, magistrate or court within that period or if it is not practicable to do so within that period as soon as practicable after the end of the period so that the same common law considerations apply at the end of the four hour period". So, those are the submissions we make in respect of that particular point.

The other point we raise concerns written directions given on liability in Mr Kane for acts done by Mr Andrew and at page 262 you will see the written directions about which we complain.

McHUGH J: I do not think this is your strongest point. I would rather hear you at the moment, if you do not mind, on this question of discretion, Mr Game.

MR GAME: Going back to the other point?

McHUGH J: Yes.

MR GAME: Certainly, your Honour. Can I just say before I leave that - - -

McHUGH J: I am sorry.

MR GAME: I just wanted to say this: those directions we say are wrong. There is a House of Lords case of Powell which says that they are wrong and it was not really suggested otherwise than that they were wrong but what was said was that the oral directions fixed them up in a sense and we say the jury was out for a day and what would they have to go back to but these directions and that is the point that we wanted to make about that. If I come back to discretion on the other point which is the point your Honour wanted me to return to.

His Honour addressed the question of discretion but only in the context of what occurred after 9.51. Now, what occurred after 9.51, in terms of the analysis in Michaels and in Williams, must be a conclusion that from 9.51 it was reasonably practicable, regardless of intention, it was reasonably practicable to take him before a court, and, of course, he was not taken before a court. I think section 138 of the Evidence Act throws the onus on our opponents to establish that the evidence should be admitted.

Now, we would say this - and I was really putting this to the Court a moment ago - you cannot say that the questioning would have been the same or even similar if lawfulness had been followed by the police officers because what we say the police officers did was adopt a particular tactic and the particular tactic was to question over a lengthy period of time and obtain a whole series of denials of involvement and then get to the end at 10.46 and put the killer question which is, "We have got your fingerprints" and then we have a complete change of scene and hold another record of interview.

The police admitted in cross-examination that they had that fingerprint right from the start and they went through this elaborate thing of asking Mr Kane for fingerprints during the record of interview, and so forth, and they went off and took fingerprints even though they knew at all times. So, the point is this, once we get to unlawfulness it cannot be said with any confidence that the record of interview would have been the same or that there would have been any answers, necessarily. So, we would submit that discretion should be exercised in our favour, for that reason.

CALLINAN J: What is paragraph 3? How do you apply section 138(3)(b):

the importance of the evidence in the proceedings -

as one of the discretionary factors. The more important the evidence, what, the worse the conduct or the impropriety can be? I really do not understand that.

MR GAME: That is the way it has been approached. It has actually been approached on that. That part of it, I think, is probably taken from Bunning v Cross but section 138 - we actually submit in respect of the importance of the evidence that the evidence is not that important in this case because these denials would - - -

CALLINAN J: But I do not understand the principle. The more important the evidence then the greater the impropriety permissible, is that what - - -

MR GAME: There is an oddness about that because if you remember cases such as Ireland the evidence was absolutely critical in Ireland but it was held to be inadmissible. I think it was a finger - I cannot remember what it was but it was a crucial piece of evidence in Ireland. But, the point about (3)(b) is that if the evidence is terribly important in the case then that is a fact of favouring admissions, as I read it, your Honour.

CALLINAN J: What about (g)? Was there any evidence whether the police officer is going to be dealt with for the post-9.51 contravention?

MR GAME: No, your Honour, there is no suggestion of that. But, your Honour, what we say is this, is that with respect to deliberateness, that once you conclude that the police officer knows what the law is then you must conclude that this unlawfulness is deliberate, so that is a factor which strongly favours exclusion.

CALLINAN J: The trial judge made a finding, did he not, that the police officer knew the law?

MR GAME: Yes, he did. So that really, in our submission, when you look at the actual course of what happened, coupled with a knowledge of the law, so that must feed back into a knowledge that what he did was unlawful, then the factors favouring exclusion are powerful. But can I say this: applying the decision of this Court in - there is a recent decision of this Court that said that the trial judge - it may have been open for the trial judge on an exercise of discretion to decide the case one way or another way and that since the Court could not come to - Reg v Graham - a conclusion as to which way the discretion would be exercised, therefore there had to be a retrial because it was a case of unexercised discretion. Now, really, that is the situation here. The Court cannot determine that the discretion - - -

McHUGH J: It was like that in Stanoevski, as well..

MR GAME: It is similar to Stanoevski, yes. It is an unexercised discretion because he did not say, "If I am wrong about the unlawfulness from 9.10 I would exercise my discretion in a particular way". He simply made a finding about what occurred after 9.51 which was a different question than the one which we are concerned with here. We say that that leads us into Reg v Graham, the knowledge by the police officer of the law, the lack of relative importance of the evidence in the case and the inability to say that that evidence would necessarily have come out are all factors which lead one to the conclusion that the evidence would not necessarily have been admitted and therefore we should succeed. So, that is the way I put those submissions on discretion.

McHUGH J: Yes. Yes, Mr Ellis.

MR ELLIS: Thank you, your Honours. Just dealing with that point, a number of findings were made by the trial judge which the Crown submits the Court of Criminal Appeal was correct in saying were in fact open to the trial judge. At application book 270 his Honour pointed out that Detective Smith was now a retired police officer and he had been asked to cast his mind back some 31/2 years. He indicated that, at about line 7:

I think that he was wrong in some important respects, though I do not think that he was dishonest in giving his evidence and wrongness or inaccuracy in one part of his evidence does not lead me necessarily to doubt the acceptability of any other part.

His Honour had the distinct advantage of hearing the officer during the course of the voir doir and the Crown submits there is no reason to contravene those finds. At application book 272, at line 20, his Honour having just prior to that found that it was:

unlikely that he would not have known -

assumed or said that:

He must also have known that it would be unlawful to arrest a suspect merely for . . . I am satisfied that when he arrested the accused Detective Sergeant Smith had already made up his mind to charge him with murder.

That being the case, that would in fact have entitled him to make the arrest. He then goes on at line 32:

I am satisfied that Detective Sergeant Smith intended to question the accused, if possible by some means that would produce admissible evidence in due course.

But, again, it is not suggested, I do not think, that having lawfully arrested a person intending to charge them with murder if one then, as an officer, gets that person before a court as soon as practicable there is no suggestion that during the course of, or from the time arrest until the taking before the court, that questions cannot be asked if the individual is prepared to answer them.

At page 273, line 15, his Honour said:

but I am not satisfied that at the time of the arrest itself he intended to delay charging the accused until after the time when it first became practicable for him to be taken before a magistrate.

So at 8 o'clock he did not have that intent, so that is a specific finding against what - depending on how it is actually put by Mr Game, whichever way you put the onus, that is a finding that is against him on the point which he specifically raises. The Crown says it again was a finding which was open to his Honour and there is no basis for this Court to interfere with such a finding.

The reality is that things can intervene once people are arrested; factors can take either short or longer than one may have expected; courts may become available earlier or later than expected. Clearly at the point in time at 9.51 am the interview was just about concluded as his Honour indicated. Indeed, after that break when fingerprints were taken and when the applicant spoke with his father, what followed thereafter, I think, in the 58 questions which were asked, apart from there being quite a large number of formal questions to conclude the interview, the applicant, in fact, gave a number of lengthy answers in which he, as it were, put his arguments in relation to why it was that the evidence that the police had from his ex wife and his mother-in-law, was not reliable, and his Honour then went through the process under section 138.

The Crown's submission then is perhaps two-fold, that is that there was an appropriate arrest. Even when one looks at it now objectively, he did have evidence upon which an arrest could be made in relation to a murder count. His Honour's rulings in relation to the state of mind of the police officer, as he then was, were open to his Honour and then when his Honour came to consider the issue of discretion, there would seem to be no real factor which would not have been in the balance that his Honour replied, but which would have been in the balance had the entire record of interview been deemed to have been unlawfully obtained.

So that the first and important point is that his Honour did go through the process of the exercise of weighing up the factors which the section asked to take into account. His Honour reached a conclusion in relation to that, which is set out on page 275 of the application book and thereafter. Again his Honour's conclusion in relation to section 138 - or firstly, his reasoning does not demonstrate any error, and the conclusion was available to his Honour, both as a matter of law and as to a matter of fact.

I think your Honour Justice Callinan made the observation about section 3(b), whether or not that was in essence saying that the stronger the case the worse the conduct, but perhaps the way to put it, your Honour, is that if you have a case where there is a weak evidence against the accused, with a slight breach, that may, in the balance, weigh against admitting the evidence, but where you have a strong evidence and a slight breach, in that type of case it would weigh towards admitting the evidence. So I am not sure that - with respect, I think, to turn it the other way is perhaps what was not intended. I do not think it is an encouragement for people to breach the law as much as they can - - -

CALLINAN J: I hope not.

MR ELLIS: - - -but rather that if, in fact, you do not have grave breaches, the stronger the evidence is then the more important to the community that it would, in fact, go in and that becomes part of that weighing process. It is a process which the Court of Criminal Appeal considered and found to have been undertaken in accordance with the law and found that factually it was available to his Honour to conclude as he did.

Your Honour, I think I have addressed some specific arguments in the written submissions. There is probably little point in going specifically to those, I have asked your Honours to take that into account. I have - - -

McHUGH J: We do not want to hear you on the other point.

MR ELLIS: Yes, thank you, your Honour. I was going to say there are many references I could have given in a shorthand to your Honours, but I will not do that. In essence, your Honour, I think the Crown's position is that there is - perhaps I should cover this. My friend said that the common law situation still exists under the current legislation. The current legislation provides that it is now, as it were, legal for someone to be detained for the purpose of questioning, which is contrary to the common law. It provides that after four hours an extension can be sought from a magistrate. It then says, as one would think is just a practical provision, that clearly you should be taken before the court within that four hour period or such extended period, as you have been granted, but if there is some practical reason why that cannot be, then the onus would be on the prosecution to establish that practical reason as to why it had not happened within the four hours and again that would be purely a matter of fact.

So it is a different situation to what pertains here. As I understand it, legislation has been enacted in all States and Territories, with the exception of Western Australia and Tasmania, which is where Williams Case actually comes from, so, as I understand it, those two jurisdictions still have no legislation. But certainly, so far as New South Wales is concerned, it is no longer an issue. Your Honour, I am not sure that I can say any more without repeating myself.

McHUGH J: Yes, thank you. Yes, Mr Game. Mr Game, what do you say about the finding of fact at page 273, line 15?

MR GAME: Your Honour, that is not a comment on intention; that is merely a comment on undue delay. If one goes back to page 15 - - -

HAYNE J: Sorry, I do not understand what you have just told us.

MR GAME: What I am saying is this: that was not offered, put forward, as a comment on his intentions; that is just a comment about whether or not a court was available. If you go back to page 15, it says:

Q. What did you understand the effect of that to be?

McHUGH J: Page 15, I do not follow?

MR GAME: Of the application book.

McHUGH J: Page 15.

MR GAME: Yes, line 32, and then he said:

Q. Were you at that time aware of a decision commonly referred to as Williams' Case?

A. Yes.

Q. What did you understand the effect of that to be?

A. That where an officer had made up his mind to charge the offender that he should place that person before the first available court.

Q. What was your understanding at the time of the availability of a court to take an offender before?

A. Well my understanding is that a court wasn't available at the time we commenced the interview.

But, on his account, the availability of a court was an irrelevance. So you could not rely on his comment about the availability - - -

McHUGH J: Yes, I know, but what the judge is saying at page 273 is that you had not proved that he intended to delay charging the accused until after the time when it first became practicable for him to be taken before a magistrate.

MR GAME: Well, we have already put the submission that - - -

McHUGH J: Well, I know.

MR GAME: - - -that is not quite what we have to prove, and that we have proved it by proving that the purpose of the detention was for questioning and that was in accordance with what the detective positively asserted at 16 and 17. So if you go back to that passage at paragraph 15, what I am saying is all that that can be used as is a comment on undue delay; it cannot be used as a comment on intention when the detective never advanced that as having any relevance at all to his intentions.

McHUGH J: Well, except that you have got the onus of proof.

MR GAME: But an onus to prove something much more limited, in our submission, than is being put against us and something that we have established out of Mr Smith's own mouth, which is that he arrested and detained to question and not any other reason - no other reason advanced. I mean, it is very odd that - - -

HAYNE J: Well, how does that fit with between lines 10 and 15 on 273, which seems to be directed to state of mind of Detective Smith when he arrested the accused shortly after 8 am. He had a number of ideas in his head, is how I read that passage; do I read it wrongly?

MR GAME: Yes. Well, he did have more than one idea, but the ideas that he suggested were fairness to the accused in the accused giving his account, but they were all ideas concerned with questioning the accused, and one sees that at pages 16 and 17 of the application book. Like, for example, at line 20:

Q. You said that the purpose of I think going around to Mr Kane's home and arresting him was for the purpose of interviewing him as to his knowledge regarding the death of Wayne Tonks, is that correct?

Q. Yes.

The answer before that was he said "No he didn't" - and similar at page 17, lines 3 to 5:

Q. Then it follows, does it not, Mr Smith, that your intention in arresting him was to interview him?

A. Yes that would be true, yes.

Now, in our submission, that without more is enough and, as I said before, that comment at paragraph 15 cannot be a comment on intention because the detective never advanced it in that context at all and that paragraph at page 15 is moving to a different topic, which is the topic of undue - - -

McHUGH J: Yes, but you want us to retry the facts and on a special leave application you have to show, at least as a minimum surely, that there has been some misdirection of law on the part of the learned trial judge.

MR GAME: What I am saying, your Honour, is that it follows inexorably from his own findings - the detective's own evidence of detention for questioning and from the judge's own findings - that this was unlawfulness and that we do not have to prove the positive thing, namely an established intent to delay, that we are entitled to rely on the absence of something, namely a particular intent, in circumstances where the evidence establishes that the purpose of the detention was for the purpose of questioning. We say we do not have to prove what appears in the last four lines of paragraph 13.

Now, with respect to discretion, the exercise of discretion was, with respect, to a different question, which was undue delay after 9.51 am; it was not addressed to intention and the intention raised those specific separate issues, in our submission.

McHUGH J: Thank you, Mr Game.

MR GAME: So we do say that a question of law arises, and it is not merely a question of fact. If the Court pleases.

McHUGH J: The first point which the applicant would wish to argue if special leave were granted concerns a question of fact. It concerns the state of mind at various times of an investigating police officer in the course of questioning the applicant. The trial judge's finding - which was adverse to the applicant - was open on the evidence. It was not disturbed on appeal to the Court of Criminal Appeal. No basis for a different conclusion has been demonstrated in this Court.

The second point raised by the applicant concerns a written direction to the jury. If there was an error in it, it was more than adequately compensated for by the lengthy and correct oral directions given by the trial judge.

Special leave to appeal is therefore refused.

AT 3.28 PM THE MATTER WAS CONCLUDED