EM v The Queen [2007] HCATrans 65 (9 February 2007)

Last Updated: 23 February 2007

[2007] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S398 of 2006

B e t w e e n -

SOPHEAR EM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 FEBRUARY 2007, AT 11.42 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC: I appear for the applicant, your Honour. (instructed by Legal Aid Commission of NSW)

MR D.C. FREARSON, SC: I appear for the respondent, if the Court pleases. (instructed by Solicitor for Public Prosecutions)

GUMMOW J: Yes, Mr Odgers.

MR ODGERS: Your Honours, can I take you to what the United States Supreme Court said in Miranda v Arizona?

GUMMOW J: We all know about Miranda v Arizona. How is that going to help us construe the Evidence Act sections?

MR ODGERS: Your Honour, the Evidence Act, as you know, talks about fairness – the fairness of admitting the admissions that were made by the applicant in this case. The reason I wanted to take you to Miranda was because the United States Supreme Court - - -

GUMMOW J: To try and make a clap of thunder, I suppose.

MR ODGERS: I thought it might be a snazzy way to start, your Honour, but it was more a case of providing a clear and short and pithy explanation of why it is that the second part of the caution needs to be given. Can I do that, then, your Honour?

GUMMOW J: Yes.

MR ODGERS: It is in tab 3 of the materials.

HAYNE J: Why do you not hand it up to us on a little card, Mr Odgers?

MR ODGERS: The quote from Miranda, your Honour?

HAYNE J: Yes.

MR ODGERS: I want to make sure you understand, your Honour. I will provide you with legal advice as well. Your Honours, at page 1625 of the - - -

GUMMOW J: This is in [1966] USSC 143; 86 S Ct 1602?

MR ODGERS: Yes, 1625 paragraph [30]:

The warning of right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege.

So the Supreme Court was saying there that the primary reason for the warning, the second part of the caution, is to ensure that the suspect engages in an informed exercise of the right to speak or remain silent. There is another reason for the second part of the caution. It is to increase the chance that any admissions made by the suspect are reliable by ensuring that the suspect understands that any such admissions can be used as evidence against him, that is, that anything he says may be used – made against interest in the sense that it may result in his conviction.

The Victorian Court of Appeal in Tofilau last year recognised that real questions of reliability arise if the suspect believes that it is safe to make admissions, particularly if he has some motive to make a false admission. I will come back to what their Honours said later in these submissions.

Very briefly, your Honours, can I just remind you of the facts of this case because they are critical. He was arrested in April 2002. He is taken to a police station. He is cautioned in a conventional manner. In relation to these offences, the Logozzo offences, he asserts his right to silence. Weeks later, in May 2002, he is taken to a park by the police. They repeatedly give him the first part of the caution but they leave out the second part, they leave out the part that says anything he says may be used in evidence against him.

He believed during this questioning in the park that anything he said could not be used as evidence against him on the basis that he believed, wrongly, that the conversations were not recorded but the key thing here is that he believed nothing he said could be used in evidence against him. The Crown accepted this at the trial, presumably because he had been recorded after the April arrest talking about police questioning him off the record, which in turn may have arisen from the fact that when he had made unrecorded full confessions about another offence he had nonetheless been released without charge, but put that to one side. The fact is he believed nothing he said could be used as evidence against him.

The police who were questioning him knew from the beginning of the conversation that he would not speak to them if he knew the conversation was recorded and thus could be used as evidence against him. They knew he would not speak to them if he knew it was recorded and could be used as evidence against him.

HAYNE J: Assume all that to be so, what is the point you then make about section 90? How do you relate it to the statute?

MR ODGERS: Yes, I relate it to the statute, your Honour, because even though in Swaffield and Pavic this Court was looking at the whole issue of admissibility of admissions in a common law context and there was no statutory provision like section 90 and indeed the High Court moved away from formulations in terms of fairness, what emerges from that case in a blindingly clear manner is that a critical issue in determining the admissibility or justifying the discretionary exclusion of an admission is where the actions of the police impugn the exercise of the right to silence.

There is no doubt that in the application of section 90 a critical issue – apart from questions of reliability the actions of the police impacting on the reliability of an admission, a critical issue is the extent to which, if any, the actions of the police had impugned the exercise by the suspect of his right to silence. Relating it to the facts of this case - - -

HAYNE J: No, relate it to the words of the section.

MR ODGERS: But, your Honour, it is a discretion to exclude evidence, an admission where it would create unfairness to the accused if it were to be admitted. Those are the words.

GUMMOW J: Part 3.4 of the Evidence Act is dealing with admissions, is it not, and that includes section 90.

MR ODGERS: Yes, your Honour.

GUMMOW J: What is the relation between 3.4 and 3.11, which is dealing more generally with discretion, turning in particular to section 138?

MR ODGERS: Because under section 138 there is a general discretion, a public policy discretion to balance public policy considerations where there has been any impropriety by the police.

GUMMOW J: That is evidence generally, though.

MR ODGERS: Evidence generally. With evidence generally there is no discretion to exclude on the basis it would be unfair to admit the evidence. There is no such general discretion. However, exclusively in relation to admissions there is and the question arises, what was the legislature intending to achieve here? Plainly, it is not concerned with public policy. Plainly, it is not concerned with strictly questions of reliability because there are other provisions that deal with that. It must be serving some function.

When one goes back to the old common law cases fairness was a principle which justified exclusion of admissions, even though they were voluntarily made in appropriate circumstances. One is where the actions of the police impair the reliability of the admission. I will come back to that in a moment. Another was where, as Swaffield and Pavic recognised, there was an impact on the exercise of the right to silence by the conduct of the police. Nothing I have said in that respect is controversial.

The difficulty is - the question in this case, was there any such conduct of the police which impacted on the exercise of the right to silence in a significant way, and the Court of Criminal Appeal held that there was not, but in so doing they made a number of significant errors. Perhaps I should go to that. I can just simply say, in respect of the trial judge, he said almost nothing about what happened in the interview or the conversation prior to the point where the police did explicitly say to him that anything he said would not be used in evidence.

GUMMOW J: Just a minute, Mr Odgers. Is there any particular passage in the Court of Appeal’s reasons which you say manifests a misconstruction of the statute, quite apart from its application of the particular facts?

MR ODGERS: I cannot point to a misconstruction of a statute given that the statute is expressed in, with respect, the vaguest terms. What is fairness? What the court held – perhaps I can just take your Honours to what the court said at 250 of the application book, volume 1, paragraph 65 of the judgment:

Accepting, as the judge found in his [130], that at the commencement of the conversation the appellant believed that an unrecorded conversation with the police could not be used against him in criminal proceedings, I do not think it correct that what the detectives said and did not say tended to confirm –

his belief that what he said could not be used against him.

The detectives did not correct the erroneous belief, on their evidence in the voir dire enquiry because they had a like belief, but failing to correct is very different from confirming. The fact that the detectives did not tell the appellant that anything he said may later be given in evidence in court was not confirmatory. The appellant already held the belief, it did not need confirmation, and the appellant gave no evidence in the voir dire enquiry - - -

HAYNE J: We have read it all, Mr Odgers.

MR ODGERS: All right, your Honour. There are two significant matters in respect of that passage. One is there is a clear factual error and a critical factual error. The reason that the police gave for not giving the second part of the caution was nothing to do with a belief that if it was not recorded it could not be used in evidence against him. They knew it was being recorded. The reason they gave for not giving him the second part of the caution can be found at page 383 in the second application book. At the top of the page:

Q. You had an obligation to caution him, didn’t you?

HIS HONOUR: Your question relates to both of those offences, does it, Miss Flannery?

FLANNERY: Q. Yes?
A. Yes, when I spoke to him when?

Q. On the 15 May?
A. Yes, I wanted to make sure he was aware of his common law right to silence, yes.

Q. And that common law right to silence is not just that he doesn’t have to say anything, is it, but that he understands that anything that he does say may be used in evidence against him?
A. I was more concerned he was aware of his common law right to say nothing to the police.

Q. You were more concerned about that because you knew you would be lying if you gave him the second part of the caution?
A. No, if I gave him the second part of the caution I was of the opinion that he may become aware that he was being recorded.

GUMMOW J: All right, we have read that, too.

MR ODGERS: And then, the next line:

Q. And then he would refuse to talk to you?
A. He may have done so, I don’t know.

HAYNE J: It comes to this, Mr Odgers, do you challenge paragraph 73 at pages 253 and 254 and if you do what is the proposition that you advance?

MR ODGERS: The proposition I advance is that there is no justification for drawing a distinction between the police actively misleading a suspect into believing that what he says cannot be used in evidence and the police deliberately leaving out the part of the caution - - -

GUMMOW J: But do you challenge the proposition that there is no unfairness in the statutory sense simply because if the accused had known of the recording he would have declined to participate?

MR ODGERS: I do not challenge the mere fact – the critical issue here, your Honours, is the conduct of the police. That is what matters here. Your Honour, there is no question here he believed it could not be used in evidence. I am not saying there is unfairness simply because of that. He did not know it was being recorded. I am not saying there is unfairness simply because of that. What is the critical thing here is that by deliberately leaving out the second part of the caution which, as the United States Supreme Court said must be given, deliberately leaving it out they did so because they knew that if he knew it was being recorded he would not speak to them. They left it out deliberately with the result that his misconception was not corrected. How can he exercise his right to silence in an informed manner - - -

GUMMOW J: Now, did the Court of Appeal deal with that point distinctly, that you have just been putting to us.

MR ODGERS: No, they did not deal with it distinctly because they said there is no difference between – I am sorry, they did not deal with it distinctly because they saw a distinction between the police positively misleading him, which they did at page 25 of the conversation, and the police deliberately failing to correct his misconception. You cannot positively mislead him but even though you are required to give the full caution it is okay if you fail to do so even though that will mean that you will not correct his misconception.

Your Honours, how can that be the case that in Australia under the Australian criminal law that there is no problem if the police deliberately fail to correct a misconception as to whether or not it can be used in evidence against him? Given the importance of the caution as for both the reasons of ensuring that there is an informed exercise of the right to silence and to ensure that one is confident about the reliability of an admission, this is a case where the police deliberately chose to leave it out because they knew that if they gave it he would not speak to them.

GUMMOW J: I think partly it is a product of the sidenote to section 90. At paragraph 78 on page 255 it is said:

I am not persuaded that the judge’s exercise of discretion was unreasonable or plainly unjust within the House v The King - - -

MR ODGERS: Yes. Your Honour, there was an issue before the Court of Criminal Appeal about the proper approach of the Court of Criminal Appeal to the application by a judge of section 90. The contention was made that there was a breach of House v The King principles.

GUMMOW J: If the Court finds that having regard to the circumstances in which the admission was made it would be unfair to the defendant to use the evidence, is that the end of it?

MR ODGERS: Yes, it must be excluded.

GUMMOW J: Or is there some supplementary discretion?

MR ODGERS: It is inconceivable how there could be. Your Honours, can I just say this, that there was an issue - it was argued before the Court of Criminal Appeal that it is wrong to apply House v The King principles here, that because section 6 of the criminal appeal statute talks about a miscarriage of justice, if an appeal court considers that it was unfair to admit it then we submit that in those circumstances the only proper conclusion - - -

HAYNE J: It would be a wrong decision on a point of law. You would not be on the miscarriage ground, there would be wrong decision.

MR ODGERS: That may be so, your Honour. The court proceeded on the assumption that if an appeal court accepted that it was unfair it would be unfair – was unfair, then that is the end of it.

HAYNE J: Which requires the articulation of the content you seek to ascribe to unfairness. I know you say, “Look at what the police did. Gee, isn’t that unfair.”

MR ODGERS: No, I am not - - -

HAYNE J: At some point, if you were to get leave, on the grounds you asserted in your notice of appeal 277, in effect, in argument, you are going to be pressed to the point of saying, “Why was there error in holding it was not unfair? What is the proposition that you are implicitly advancing?

MR ODGERS: I have tried to make it as clear as I can. I will repeat it. That, one, if effectively impugned the exercise is right to silence – the first proposition; two, it created a very real danger of an unreliable admission because in circumstances where he believed it cannot be used in evidence against him and that belief is not corrected, if he has a motive to make false admissions – in this case the evidence was he was trying to help his friends who he knew were involved, and he believes it is safe to do so - - -

GUMMOW J: Yes, we understand all that, Mr Odgers. I am just looking at your draft notice of appeal in 279 which I may say is the usual common law stuff.

MR ODGERS: Yes.

GUMMOW J: There is a statute involved, the Evidence Act. There are a couple of relevant sections. One of those sections uses the word “unfair”. That word has to be given some content. You say it was given the wrong content.

MR ODGERS: Yes.

GUMMOW J: All that would have to go in the draft notice of appeal. It should be there in the first place. It should not emerge now.

MR ODGERS: Yes, your Honour. Can I move on to the other aspect of the application which is the question of the direction to the jury. As I have said, there is an issue about reliability. In this case the applicant testified that because he believed the conversation was off the record he felt it was safe to say what he had said in order to help his friends. The Victorian Court of Appeal in Tofilau talked about circumstances like that requiring warnings to a jury about the potential unreliability of those kinds of admissions.

No such direction was given in this case even though the Crown Prosecutor argued that it was absurd somebody would tell the police he was involved in a murder to help his friends and the Crown argued that the fact that he believed that he could say anything because it could not be used against him actually increased the reliability of what he said.

Notwithstanding that, the judge gave no warning of any kind. Again, we say the Court of Criminal Appeal erred in the approach it took to that question. At page 265 of the application book in paragraph 107 the court considered the question of whether it was necessary to give a warning in the circumstances of this case. At line 30 they said:

That the appellant may have believed that what he said could not be used against him, not articulated by him in his evidence –

Well, with respect, it was. It was articulated by him when he said that the reason he spoke to the police was that it was off the record, so he articulated it in his evidence. At the top of paragraph 107 the court said:

That the appellant believed that he was not at risk was not, on his evidence, founded on belief that what he said could not be used against him; it was because he was innocent.

With respect, that is a distortion. He believed his admissions could not be used against him and he believed there was no other evidence existed against him because he was innocent, and in those circumstances he believed that it was okay or safe to make the admissions he did. With respect, the reasoning of the Court of Criminal Appeal was flawed, significantly flawed. This is a classic case where there is a risk that a jury will not appreciate something that lawyers know, that is that admissions are – if they are not against interest or not perceived to be against interest, that a major justification for the belief of the reliability of that admission is taken away and that is something that needs to be drawn to the attention of a jury.

GUMMOW J: Even in a case where section 90 is not made out?

MR ODGERS: If 90 is made out it does not get in. In this case it got in. We are saying that even if it was legitimate to come in you at least had to say something to the jury about this critical fact. Thank you, your Honours.

GUMMOW J: Yes, Mr Frearson.

MR FREARSON: Your Honours, the situation is this, if section 90 places a very broad discretion and - - -

GUMMOW J: It does not, you see, and that is the point. We can never get the common law Bar to grapple with statutes. Where is the discretion? It is a difficult term, “unfair”. It either is or is not and that is not a discretion.

MR FREARSON: Except that the court – the sections in the terms of the court may refuse to admit evidence if - - -

GUMMOW J: That is the further question. Is there then a discretion if there is not an initial discretion? Anyhow, I will not repeat it again.

MR FREARSON: Thank you, your Honour. There is certainly a threshold of unfairness but what my friend cannot do and has not done, he cannot point to any misapplication of the statute. He says there is no misapplication of the statute.

GUMMOW J: He does, I think. He says in this case you could not say that it was not unfair.

MR FREARSON: If he is correct about that then you could not have any covert operation at all because every time you had a covert operation you would necessary impugn the right to silence, if Mr Odgers is correct. The section certainly cannot go that far. On the question of unfairness, and that was the threshold question, what needed to be considered was the nature of the trick and the nature of the trick was the covert recording of the conversation. What the court held was that the police did not contribute to the formation of any belief by the applicant as to the admissibility of unrecorded conversations.

In the Court of Criminal Appeal the applicant argued that what the police did tended to confirm the applicant’s belief. Here he argues that what the police did was to allow the applicant to have a certain belief. Neither is correct. What they did was they simply covertly recorded a conversation and there was no reason for the applicant to reconsider his belief as to whether unrecorded conversations were admissible. A covert recording, of itself, does not equate to unfairness and there is no suggestion here that it does. When one looks at it, the relevant belief was really - - -

GUMMOW J: Mr Odgers then says there is something more.

MR FREARSON: He says there is something more but he has not actually articulated it, in my submission, what the something more is. The relevant belief when one looks at it was that the applicant had a belief that recorded conversations were admissible. The relevant belief was not as to what he thought about unrecorded conversations because if there was no reason for him to think the conversation was unrecorded was recorded that was the very nature of the trick.

What happened was the court looked at the trick. My friend says, “Well, look, the court has made a mistake because what happened at page 25 cannot be decisive”. That is at the point where the police said, “It’s not as if we’re going to lock you up or anything like that”. Why can it not be decisive if you have an objective consideration as to whether it is unfair to admit the evidence? That does not exclude subjective considerations – the subjective line of the police. Of course it does not because at that point the element of trickery escalates and it turns out that in the opinion of the court it was decisive on the question of whether it was unfair to admit the evidence.

There is absolutely nothing unusual about that. I would like to turn to ground 2, if I could. Ground 2 is the failure to warn. The applicant relies upon Tofilau which effectively says that it may be appropriate to give a warning where a number of conditions exist. The first condition is that what if the applicant thought it was safe to make an admission and the admission was in his interest. One of the judgments says if it was beneficial to make the admission.

That is the question here. My friend substitutes – for “beneficial” he substitutes “motive” to make the admission. Now, by no stretch of the imagination could it ever be beneficial to talk to the police and either admit or imply involvement in a murder that the police are investigating. How could that in any sense be seen to be beneficial? It is not beneficial in the sense that Tofilau – there is no analogy with the facts in Tofilau where the particular offender had a motive of a financial reward and he was also ingratiating himself into a gang that he thought that was an attractive proposition. There is no parallel here.

Prima facie, if you implicate yourself in a murder with police who are investigating the murder, prima facie, that is against your interests whether you think it can be used in evidence or not. The Court of Criminal Appeal held that the jury was well placed to undertake the necessary assessment of reliability and the arguments were referred to, the claim that the applicant was innocent; he had no belief that he was being recorded and he thought that it could not be used against him. That was the very source of unreliable proffered by the applicant in the trial. That is the way he chose to run the trial.

A combination of those factors – he was saying it was unreliable because he was simply deflecting attention from his friends. That is how the matter was litigated. My friend says today, “There should have been a warning” as I understand it, “perhaps on some other basis other than the basis that was proffered by the applicant at the trial”.

The Evidence Act has 165. It is enlivened by application. If anybody seriously thinks a warning is required they can ask for the warning and the judge undoubtedly would have given the warning but in the circumstances of this trial nobody asked for a warning. If it did not occur to people to ask for a warning it is difficult to see how it is said that that could somehow – the warning is somehow mandatory and that could constitute a miscarriage of justice by not giving it, but my real point here is that to give a warning in these circumstances in a sense we have undermined the very tack that the applicant took in the trial.

My submission is there was no reason for a warning. My submission is that, going back to ground 1, the trial judge assessed the circumstances of the “trick”, the Court of Criminal Appeal assessed the circumstances of the “trick” – everybody concluded no unfairness. This is not a suitable vehicle for special leave, in my submission.

GUMMOW J: Mr Odgers, there has been some discussion in submissions about section 90. Do you also rely on section 138? I thought not.

MR ODGERS: It was not argued in the Court of Criminal Appeal, your Honour.

GUMMOW J: No. There will be a grant of leave in this matter but you will need to revise, substantially, both grounds that are set out at page 279.

MR ODGERS: I will do the very best I can in the light of what your Honours have said to me today.

GUMMOW J: There is an appeal pending from Western Australia which, in the context of the West Australian legislation, raises not dissimilar questions.

MR ODGERS: Carr, your Honour. Yes.

GUMMOW J: This matter, conveniently, if practicable, should be listed sequentially with Carr.

MR ODGERS: I gather no date has been listed yet for Carr so we will make every endeavour to do that, your Honour.

GUMMOW J: This will be a one-day case; less, probably.

MR ODGERS: Yes, your Honour.

GUMMOW J: Very well. There will be a grant, as indicated, in application No 7.

MR ODGERS: May it please the Court.

MR FREARSON: May it please the Court.

AT 12.14 PM THE MATTER WAS CONCLUDED