Fraser v The Queen [2005] HCATrans 454 (23 June 2005)

--

Fraser v The Queen [2005] HCATrans 454 (23 June 2005)

Last Updated: 1 July 2005

[2005] HCATrans 454

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B9 of 2005

B e t w e e n -

LEONARD JOHN FRASER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 10.25 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC: If the Court pleases, I appear for the applicant. (instructed by Legal Aid Queensland)

MRS L.J. CLARE: May it please the Court, I appear for the respondent. (instructed by Director of Prosecutions (Queensland))

GUMMOW J: Yes, Mr Byrne.

MR BYRNE: Your Honours, this is a case in which an extension of time is required.

GUMMOW J: Is that opposed?

MRS CLARE: No.

GUMMOW J: You have that extension.

MR BYRNE: Thank you. Your Honours, this application, we would submit, squarely raises the question of how far authorities may go in securing incriminating statements against a citizen. To put the questions as, it is submitted, they directly arise in this case, they are two. Can authorities avoid critical safeguards in questioning suspects by simply allowing an agent to do the questioning without specific instructions from the authorities as to how - - -

GUMMOW J: Phase 4 seems to be the critical juncture, does it not?

MR BYRNE: It does, and that is the second question. Does such lack of instruction also allow the authorities to take advantage of admissions made to the agent who has devised and executed a plan to trick the suspect into revealing material? That is the matter, and why we say this is a matter which is a good vehicle for special leave can be found in paragraph [59] of the Chief Justice’s reasons for judgment where his Honour notes that even if only phase 4 was held to be inadmissible, then one could not be satisfied, he says, or confident, that “the convictions would still have followed.” In other words, what his Honour the Chief Justice is saying is that this is not a case for the proviso, and that strengthens the submission that this is an appropriate vehicle for the issues raised to be discussed.

To answer the second question posed in the affirmative would, it must be acknowledged, create deep inroads into the citizen’s right to silence. There is also - - -

HEYDON J: Your client seemed to be perfectly well aware of the right to silence. Sometimes he talked to or co-operated with the police and sometimes he did not.

MR BYRNE: That is so. He exercised his right of silence in respect to the first two matters and then what, it is submitted, Quinn, the agent, became more friendly, kept talking, to the extent that Squeaky, which is the phase 4, the false alibi, was introduced and at that stage it was really twofold. Your Honour is quite right. The applicant was speaking to the police about that matter but at the same time he was being inveigled by Quinn to reveal more and more about that, which was being fed directly to the police against his interests.

The submission is that the approach by the learned trial judge admitting that evidence must flow from – if Swaffield is the fountainhead in respect to this area of the law, then the approach by the learned trial judge here seems, with respect, to be contrary to the approach in the Victorian Supreme Court in the cases of KS and Roba, which have been referred to in the outline. Further, the conclusion confirmed by the Court of Appeal in this case, particularly as to the tricked admissions in phase 4, is contrary, it is respectfully submitted, to the reasoning and conclusions of the Court of Appeal, Victoria, in R v Juric. That is another basis, we submit, for this being an appropriate case for special leave.

We should point out in response to some of the material put against us in the written outline that in paragraph 7 of my written submissions the first sentence of that paragraph where it is said that the conversations in which Quinn sought to obtain evidence from the applicant were - - -

GUMMOW J: I am sorry, what page, Mr Byrne?

MR BYRNE: It is page 442 of the application book, paragraph 7, your Honour. The quotation in that, “on nearly a daily basis . . . for many hours a day”, that is taken of course from Quinn’s evidence. Paragraphs 11 and 12 of the outline on the following page, 443, show that it was not simply the police but also Corrective Services authorities who were working against, if you like, the applicant to facilitate admissions being obtained from him.

Finally on that point, could I take your Honours to footnote 3 on that page, where again there is a quotation from the agent Quinn’s evidence which gives the flavour, in my submission, of what was being done in phase 4, that is, “I told him that I would assist him. I also told him that if you are going to put Squeaky in the situation, then the real facts must come out, there must be things put in there that police don’t know.” In my
submission, this is a development in the law which needs careful consideration by this Court. Unless there is something further.

GUMMOW J: Thank you, Mr Byrne. Yes, Mrs Clare.

MRS CLARE: Just on that - - -

GUMMOW J: It is said against you essentially that this is a step too far.

MRS CLARE: Yes. Obviously each case depends on its own circumstances, but in relation to that issue of deceit by Quinn, it has to be understood that the plan to blame someone else, namely Squeaky, was already up and running by the applicant because he had already approached the police with this information on 1 January and on 10 January he was blaming somebody else, saying he had only dumped the bodies. By 10 January, before he had even been approached by Quinn about this – I think that can be seen in paragraph [63] of the Court of Appeal judgment – he had already told police that Squeaky was involved.

Furthermore, when Quinn on 12 January suggested that he might go about blaming someone else, it was Fraser who then said, “We need to come up with facts that only the murderer would know”. That was Fraser’s idea. So when one examines the nature of the deceit by Quinn acting on his own, not on any instruction or even any general authority of the police but acting on his own, that deceit really is limited to the notion that he would pass on that which was given to him by the applicant to the media rather than the police.

If one takes that through to its logical steps, if the complaint then has to be that there was a deceit about where the information would go, that would go to the media and not the police, one has to ask what would happen if in fact Quinn had passed it on to the media, as he was supposed to do? Should there then be an embargo on him ever telling the police that it had come from the applicant, or even a step further, if he had done as Quinn understood he would do, and that is pass it on to the media, and obviously the police would then obtain that information, what if then there was some forensic material that linked it back to the applicant? Would the police also be embargoed from using the evidence in that sense as well?

So there is a trail that just continues to go down the layers, which really comes back to, in my submission, a submission. This complaint about the admissibility of this evidence is really amounting to a submission that there was immunity for this man from any self-incrimination.

GUMMOW J: What do you say about the alleged disjunction between the State courts? Reference is made to Juric in Victoria and it is said that there is a provision opening up in the application of Swaffield.

MRS CLARE: This is a different case from Juric because in this case there was no evidence at all that the police had done anything improper. In fact, the consistent evidence was that the police had simply been passive in this. They had been approached by Quinn that Fraser was approaching him and giving him detail about these murders.

HEYDON J: You say it is distinguishable because in Juric the police told the informer how to proceed. In this case the informer proceeded without their foreknowledge and just gave him the results afterwards?

MRS CLARE: That is right. So not only without instruction but without their knowledge.

HEYDON J: Yes.

MRS CLARE: That is a very big distinction.

MR BYRNE: That, however, is our point. The submission is that by phase 4 – and this was clear in the judgments of the Court of Appeal – there was no doubt that Quinn was acting as a police agent. The question is, being acting so with the full weight of the authorities assisting him, putting in listening devices and him going off to deliberately trick the applicant, what the Court of Appeal in Victoria in Juric adopted was that the test embroils, that the police or the authorities cannot take advantage of what an agent does in those circumstances. That is the point which was rejected by the Court of Appeal here.

GUMMOW J: Thank you. We are not satisfied that there is raised any question of general principle here, nor in our view do the interests of justice require a grant of special leave. Accordingly, special leave is refused.

AT 10.37 AM THE MATTER WAS CONCLUDED