Norton v The Queen P39/2001 [2002] HCATrans 266 (31 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P39 of 2001

B e t w e e n -

ROBERT MICHAEL NORTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 31 MAY 2002, AT 10.39 AM

Copyright in the High Court of Australia

MS C.S. AMSDEN: May it please the Court, I appear for the applicant. (instructed by the Director of Legal Aid (WA))

MR R.E. COCK, QC: May it please the Court, I appear with my learned friend, MR D.T.J. SCULLY, for the respondent. (instructed by the Director of Public Prosecutions for the State of Western Australia)

GUMMOW J: Yes, Ms Amsden.

MS AMSDEN: May it please the Court, this is a matter that has now resulted in reported decisions. I have recently furnished your Honours with copies of the decision as it is reported in Australian Criminal Reports at No 121 and 122. It is a case which provides the most recent and detailed reference not only for Western Australia, but for possibly other States in Australia, in regard to the Police Commissioner's Orders and Procedures for videotaped records of interview.

The reason for seeking an application for special leave in this matter is that it is my submission that the decision of the Court of Criminal Appeal is based on two fundamental errors. The first of those errors is the elimination of clearly explanatory words that occur in the foreword in the Commissioner's Orders and Procedures and those words taken in their ordinary and natural meaning incorporates the effect that the Police Regulations 1979 has in requiring police officers to comply with orders and instructions provided to them. In the judgment this occurs specifically at page 196, paragraph 151 in the application book.

The submission that I would make in regard to that particular error is that it is an example of the Court engaging in a procedure to simply eliminate the significance and the meaning of the words that follow the use of the ellipsis. The second error, in my submission, is that there was not a submission made to the Court of Criminal Appeal that the Commissioner's Orders and Procedures were subsidiary legislation. That occurs at page 194 at paragraph 138 of the Court of Criminal Appeal judgment.

KIRBY J: That would not matter, the classification of the Commissioner's orders, if the consequence of the orders did not miscarry. I mean, how the Court of Criminal Appeal classified it, whether as subordinate legislation or as guidelines, would not really matter, would it?

MS AMSDEN: No. It is simply that - - -

KIRBY J: I suppose you say that if it has the force of legislation, that is an indication that it is to be taken seriously. It is not just motherhood statements from the Commissioner. It has the stamp of law.

MS AMSDEN: That is correct. That is the effect that the Police Regulations actually has through the power in section 9 of the Police Act to make it enforceable.

KIRBY J: You may have a good point there, but there still is the issue of whether, even if they have that effect, or some of them have that effect, the ultimate conclusion is not correct, that is that a breach of them does not automatically throw a charge out, it simply enlivens a discretion as to whether your client had a fair trial.

MS AMSDEN: Yes. That is a correct point, I accept that, your Honour. One thing that I would point to to illustrate - - -

GUMMOW J: Wait a minute. Do you not then have to face up to paragraph 209 of the Court of Criminal Appeal judgment, looking at what happened in this case? Now, is that wrong in principle?

MS AMSDEN: It is my respectful submission that it is wrong in principle and it is going back to the difference that the Commissioner's Orders and Procedures have made in this State in incorporating the Judges Rules and, in particular, incorporating the fact that the Commissioner's Orders and Procedures Manual is designed to ensure that the principles with respect to the interrogation of suspects is carried out correctly and - - -

GUMMOW J: Yes, but you want to say this is material illegally obtained and, therefore - and it is the "therefore" that is the jump - it has this drastic consequence in the law of evidence and in the law relating to the conduct of the trial. There are many consequences of something being done that does not conform to the law. You have to focus on this particular consequence which you say applies as a matter of statutory intent and construction. That seems inherently unlikely. Why take it away from the wisdom of the judge controlling the trial?

MS AMSDEN: If I could refer your Honours specifically to the learned trial judge's summing up. That occurs in the application book at pages 58 and 59 and that simply illustrates, in my respectful submission, the fact that this particular trial judge was not fully aware of the question that the admissibility of a videotaped record of interview was a question of law and not a question of fact. That occurs at page 58, specifically beginning at line 25, in the paragraph where the summing up of the trial judge included a direction to the jury that it was a matter for them to be satisfied that the record of interview was made without a result of any threats or promises and made voluntarily, and that occurs in the - - -

HAYNE J: The proposition for which you contend is that a departure from the procedures laid down in the Manual is conclusive of admissibility. Departure from the procedures means the videotaped record is not admissible. That is the position you contend for, is it not?

MS AMSDEN: I think, in looking at the way the application has been founded, that would be correct, your Honour.

KIRBY J: There is an awful lot in the Commissioner's instructions and you could get a police officer who had a mental blank about some little aspect of the instructions and in a large number of cases, including murder cases and cases of armed robbery, he just kept forgetting that he had to ask this and, on your theory, end of case. No matter how strong the case is, you have to keep that particular part of the case out; there is no discretion. That seems unlikely.

MS AMSDEN: I think that would be unlikely but, again, we could look to the instructions and the foreword and it does allow for what would be a minor departure in those cases and, again, that comes through the Police Regulations 1979 which would allow, in certain circumstances, a departure that was made in good faith and in fairness. In this case the departure was far more significant than that for the simple reason that the fundamental questions which have evolved from the Judges Rules in regard to the voluntariness of a record of interview were simply never asked. That is the departure in this particular case which brings it into a category where, it is my submission, it requires a further look at the matter to give a conclusive answer.

The application as it has been filed, it was my intention to rely on the written submissions and the written submissions set out in the concluding paragraph, the effect that this particular matter has and also in general the importance of having a policy and adherence to guidelines in terms of the public interest and the protection that it provides to the community for citizens in policing, and that is particular at paragraphs 16, 17 on page 237 of the application book and going to 238.

GUMMOW J: Thank you. Now, the orders you seek appear at page 226. They seem a bit ambitious but incomplete, do they not? The end of it would have to be a new trial, would it not?

MS AMSDEN: Yes, I think the end of it would ultimately have to be a new trial. It would cause some difficulty because this person was tried with three co-offenders and much of the evidence related to the co-offenders and not this applicant in particular. Certainly, a new trial would be sought if the application for special leave proceeds.

KIRBY J: And the appeal is allowed.

MS AMSDEN: And the appeal is allowed. I would invite your Honours to rely on the submissions as they are written without taking up too much more of your time.

GUMMOW J: Yes, we have studied them.

MS AMSDEN: Thank you. May it please the Court, unless there are further questions, that completes my submissions.

GUMMOW J: Yes, thank you, Ms Amsden. We do not need to call on you, Mr Cock.

The applicant seeks to contend that certain videotaped records of interview made by police were not admissible at his trial because the police did not comply with the Police Commissioner's orders and procedures as established in Western Australia for the conduct of such interviews. Further, the applicant seeks to submit that unless police seek to ask a suspect at the end of such an interview whether he or she has been offered any threat, promise or inducement to give the interview, it cannot be presumed that the interview was made voluntarily.

The central question governing admissibility of confessional statements of the kind made by the applicant here in his records of interview is whether the statements were made in the exercise of a free choice to speak or be silent: see R v Lee [1950] HCA 25; (1950) 82 CLR 133. There may be cases in which a failure to comply with the Commissioner's orders and procedures will have an important bearing upon whether the statements of a suspect were made in the exercise of a free choice to speak or be silent, but a failure of a compliance does not, in every case, conclude that issue.

We are not persuaded that it is arguable that there has been any miscarriage of justice in this case. That being so, special leave to appeal is refused.

AT 10.54 AM THE MATTER WAS CONCLUDED